Exhibit 5.2
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036
July 5, 2001
c/o Norfolk Southern Corporation
Three Commercial Plaza
Norfolk, Virginia 23510-2191
Re: NORFOLK SOUTHERN CORPORATION
REGISTRATION STATEMENT ON FORM S-3
(REGISTRATION NO. 333-57872)
Ladies and Gentlemen:
This opinion is furnished by us as special New York counsel for Norfolk
Southern Corporation, a Virginia corporation (the "Corporation"), in connection
with the issuance and sale by the Corporation of $250,000,000 aggregate
principal amount of the Corporation's Floating Rate Senior Notes due 2003 (the
"Securities") issued pursuant to the Underwriting Agreement, dated June 29, 2001
(the "Base Underwriting Agreement") and the Pricing Agreement, dated June 29,
2001 (the "Pricing Agreement," and, together with the Base Underwriting
Agreement, the "Underwriting Agreement") between the Corporation and Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as the
underwriter (the "Underwriter"), which Pricing Agreement incorporates in its
entirety all the provisions of the Base Underwriting Agreement. The Securities
have been issued under the Indenture, dated as of January 15, 1991 (the "Base
Indenture"), between the Corporation and U.S. Bank Trust National Association,
formerly known as First Trust of New York National Association, as successor
trustee (the "Trustee"), as supplemented by the First Supplemental Indenture,
dated May 19, 1997 (the "First Supplemental Indenture"), the Second Supplemental
Indenture, dated April 26, 1999 (the "Second Supplemental Indenture"), the Third
Supplemental Indenture, dated May 23, 2000 (the "Third Supplemental Indenture"),
the Fourth Supplemental Indenture, dated February 6, 2001 (the "Fourth
Supplemental Indenture") and the Fifth Supplemental Indenture, dated July 5,
2001 (the "Fifth Supplemental Indenture" and, together with the First
Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental
Indenture and the Fourth Supplemental Indenture, the "Indenture Supplements"),
between the Corporation and the Trustee (such Base Indenture, as so
supplemented, being hereinafter referred to as the "Indenture").
This opinion is being delivered in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended
(the "Securities Act").
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Registration
Statement on Form S-3 (File No. 333-57872) relating to the issuance and sale
from time to time, pursuant to Rule 415 of the General Rules and Regulations
under the Securities Act, of up to $1,000,000,000 aggregate principal amount of
debt securities, preferred stock, depositary shares and/or common stock of the
Corporation, filed with the Securities and Exchange Commission (the
"Commission") on March 29, 2001 under the Securities Act (such registration
statement being hereinafter referred to as the "Registration Statement"); (ii)
the prospectus, dated April 3, 2001, filed with the Commission as a part of the
Registration Statement (the "Base Prospectus"), together with the prospectus
supplement relating to the Securities, dated June 29, 2001, filed with the
Commission pursuant to Rule 424(b)(5) of the General Rules and Regulations under
the Securities Act (the "Prospectus Supplement" and, together with the Base
Prospectus, the "Prospectus"); (iii) the Statement of Eligibility under the
Trust Indenture Act of 1939, as amended, on Form T-1 of the Trustee; (iv) the
documents specifically incorporated by reference in the Prospectus through the
date hereof; (v) an executed copy of the Indenture; (vi) the executed
Securities; (vii) an executed copy of the Base Underwriting Agreement; (viii) an
executed copy of the Pricing Agreement; (ix) the Restated Articles of
Incorporation of the Corporation, as currently in effect; (x) the Bylaws of the
Corporation, as currently in effect; and (xi) resolutions of the Board of
Directors of the Corporation relating to the issuance and sale of the Securities
and related matters. We have also examined originals or copies, certified or
otherwise identified to our satisfaction, of such records of the Corporation and
such agreements, certificates of public officials, certificates of officers or
other representatives of the Corporation and others, and such other documents,
certificates and records as we have deemed necessary or appropriate as a basis
for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submit ted to us as originals, the conformity to original documents of all
documents submitted to us as certified, photostatic or facsimile copies and the
authenticity of the
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originals of such latter documents. In making our examination of documents
executed or to be executed, we have assumed (except as otherwise expressly set
forth below) that the parties thereto, including the Corporation, have been duly
organized and are validly existing under the laws of their respective
jurisdictions of organization, had, or will have, the power, corporate or other,
to enter into and perform all obligations thereunder and have also assumed the
due authorization by all requisite action, corporate or other, and execution and
delivery by such other parties of such documents and, except as set forth in
paragraphs 1 & 2 below, the validity and binding effect thereof. As to any facts
material to the opinions expressed herein which we did not independently
establish or verify, we have relied upon oral or written statements and
representations of officers and other representatives of the Corporation and
others.
Members of our firm are admitted to practice in the State of New York,
and we do not express any opinion as to the laws of any other jurisdiction other
than the federal laws of the United States of America to the extent referred to
specifically herein. We have assumed that (i) the Corporation has duly
authorized the issuance and sale of the Securities and the filing of the
Registration Statement under Virginia law; (ii) the Underwriting Agreement, the
Indenture and the Securities (collectively, the "Operative Documents") were duly
authorized, executed and delivered by the Corporation under Virginia law; (iii)
the choice of New York law in the Underwriting Agreement and the Indenture is
legal and valid under the laws of Virginia; and (iv) the execution and delivery
by the Corporation of the Operative Documents and the performance by the
Corporation of its obligations thereunder do not and will not violate, conflict
with or constitute a default under (A) any agreement or instrument to which the
Corporation or its property is subject (except that we do not make the
assumption set forth in this clause (A) with respect to the Operative
Documents), (B) any law, rule or regulation to which the Corporation is subject
(except that we do not make the assumption set forth in this clause (B) with
respect to those laws, rules and regulations of the State of New York and the
United States of America which, in our experience, are normally applicable to
transactions of the type contemplated by the Operative Documents, but without
our having made any special investigation with respect to other laws, rules or
regulations), (C) any judicial or regulatory order or decree of any governmental
authority or (D) any consent, approval, license, authorization or validation of,
or filing, recording or registration with, any governmental authority (except
that we do not make the assumption set forth in this clause (D) with respect to
the filing of the Registration Statement and the Prospectus with the Commission
under the Securities Act).
Based upon and subject to the foregoing, we are of the opinion that:
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1. The Indenture has been duly executed and delivered by the
Corporation (to the extent that execution and delivery are matters governed by
New York law) and is a valid and binding agreement of the Corporation,
enforceable against the Corporation in accordance with its terms, except (a) to
the extent that enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other similar
laws now or hereafter in effect relating to creditors_ rights generally and (ii)
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity) and (b) we do not express any opinion as to
Section 512 of the Base Indenture.
2. The Securities have been executed and authenticated in accordance
with the terms of the Indenture and delivered to and paid for by the Underwriter
in accordance with the terms of the Underwriting Agreement, and are valid and
binding obligations of the Corporation entitled to the benefits of the Indenture
and enforceable against the Corporation in accordance with their terms, except
(a) to the extent that enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other similar
laws now of hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity) and (b) we do not express any opinion as to
Section 512 of the Base Indenture.
Joseph C. Dimino, Esq., General Counsel-Corporate of the Corporation,
is permitted to rely upon this opinion for the purpose of delivering his opinion
to the Corporation in his capacity as counsel to the Corporation in accordance
with the requirements of Item 601(b)(5) of Regulation S-K under the Securities
Act.
We hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus. We also hereby consent to the filing of this opinion
with the Commission as Exhibit 5.2 to the Registration Statement. In giving this
consent, we do not thereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or the General Rules
and Regulations thereunder. This opinion is expressed as of the date hereof
unless otherwise expressly stated, and we disclaim any undertaking to advise you
of any subsequent changes of the facts stated or assumed herein or any
subsequent changes in applicable law.
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Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
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Skadden, Arps, Slate, Meagher & Flom LLP
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