As filed with the Securities and Exchange Commission on March 29, 2001.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
NORFOLK SOUTHERN CORPORATION NORFOLK SOUTHERN CAPITAL TRUST I
(Exact name of registrant as (Exact name of registrant as specified
specified in its charter) in its certificate of trust)
VIRGINIA DELAWARE
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
52-1188014 TO BE APPLIED FOR
(I.R.S. Employer Identification Number) (I.R.S. Employer Identification
Number)
----------------------
Three Commercial Place
Norfolk, Virginia 23510
(757) 629-2600
(Address, including zip code, and telephone number, including area
code, of each registrant's principal executive offices)
----------------------
J. Gary Lane, Esq.
Senior Vice President - Law
Norfolk Southern Corporation
Three Commercial Place, Norfolk, Virginia 23510, (757) 629-2818
(Name, address, including zip code, and telephone number, including
area code, of agent for service for each registrant)
Copy to:
Vincent J. Pisano, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square, New York, New York 10036
(212) 735-3000
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this registration statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, check the
following box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box: |_|
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CALCULATION OF REGISTRATION FEE
==================================================================================
Title of each
class of Proposed maximum Proposed maximum Amount of
securities Amounts to be offering price per aggregate offering registration
to be registered registered(1) unit(1)(2) price(1)(2) fee
- -------------------------------------------------------------------------------------
Common Stock (includ-
ing preferred stock
purchase rights)(3)(4)
Preferred Stock(3)
Depositary Shares(3)
Debt Securities
Trust Preferred Securities
of Norfolk Southern
Capital Trust I(5)
Norfolk Southern Corpor-
ation Guarantees with respect
to Trust Preferred Securities .
(6)
======================== ============ ================ ================ ==========
Total 100% $1,000,000,000 $250,000
======================== ============ ================ ================ ==========
(1) In United States dollars or the equivalent thereof in any other
currency or currencies, currency unit or units, or composite currency
or currencies. Such amount represents the aggregate offering price of
any combination of the common stock, preferred stock, depositary
shares, debt securities and trust preferred securities.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457. The aggregate public offering price of the
securities registered hereby will not exceed $1,000,000,000.
(3) Also includes such indeterminate number of shares of common stock
(including preferred stock purchase rights), preferred stock and
depositary shares as may be issued upon conversion of or in exchange
for any debt securities, preferred stock, depositary shares or trust
preferred securities registered hereunder that provide for conversion
or exchange into other securities. No separate consideration will be
received for the common stock, preferred stock or depositary shares
issuable upon conversion of or in exchange for debt securities,
preferred stock, depositary shares or trust preferred securities.
(4) Commencing on October 16, 2000, attached to each share of common
stock is one right to purchase 1/1000th of a share of Norfolk
Southern Corporation's Series A Junior Participating Preferred Stock,
issued under Norfolk Southern Corporation's shareholder rights
agreement.
(5) Subordinated debt securities may be purchased by Norfolk Southern
Capital Trust I with the proceeds of the sale of the trust preferred
securities of Norfolk Southern Capital Trust I, together with the
proceeds received from Norfolk Southern Corporation for the common
securities to be issued by Norfolk Southern Capital Trust I to
Norfolk Southern Corporation. No separate consideration will be
received for such subordinated debt securities. Such subordinated
debt securities may later be distributed for no additional
consideration to the holders of trust preferred securities of Norfolk
Southern Capital Trust I upon certain events described in the
Declaration of Trust of Norfolk Southern Capital Trust I.
(6) Norfolk Southern Corporation is also registering pursuant to this
registration statement its guarantees and other obligations that it
may have with respect to trust preferred securities issued by Norfolk
Southern Capital Trust I. Pursuant to Rule 457(n) under the
Securities Act of 1933, as amended, no separate consideration will be
received for any such guarantee or any other such obligations.
----------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANTS SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT
THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. NEITHER NORFOLK SOUTHERN CORPORATION NOR NORFOLK SOUTHERN CAPITAL
TRUST I, AS APPLICABLE, MAY SELL THESE SECURITIES UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE.
THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT
SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR
SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED MARCH 29, 2001
PROSPECTUS
$1,000,000,000
NORFOLK SOUTHERN CORPORATION
Common Stock, Preferred Stock, Depositary Shares and Debt Securities
NORFOLK SOUTHERN CAPITAL TRUST I
Trust Preferred Securities (fully and unconditionally guaranteed on a
subordinated basis, as described herein, by Norfolk Southern Corporation)
The following are types of securities that Norfolk Southern
Corporation (the "Company," "Norfolk Southern," "us" or "we") may offer and
sell from time to time in one or more offerings under this prospectus:
o common stock
o preferred stock
o depositary shares
o debt securities
In addition, Norfolk Southern, in conjunction with its newly created
trust subsidiary Norfolk Southern Capital Trust I (the "Trust"), may offer
and sell:
o trust preferred securities and related guarantees
The total offering price of these securities, in the aggregate, will
not exceed $1,000,000,000. Norfolk Southern and/or the Trust may offer
these securities separately or as units which may include other securities.
Norfolk Southern and/or the Trust will provide the specific terms of any
securities actually offered for sale in one or more supplements to this
prospectus. You should read this prospectus and the supplements carefully
before you decide to invest in any of these securities.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation
to the contrary is a criminal offense.
THIS PROSPECTUS MAY NOT BE USED TO SELL SECURITIES UNLESS ACCOMPANIED BY A
PROSPECTUS SUPPLEMENT.
The date of this prospectus is , 2001.
TABLE OF CONTENTS
Page
About this Prospectus........................................................8
Where You Can Find More Information..........................................9
Incorporation by Reference...................................................9
Certain Forward-Looking Statements..........................................10
Norfolk Southern Corporation................................................10
Norfolk Southern Capital Trust I............................................11
Use of Proceeds.............................................................14
Ratio of Earnings to Fixed Charges..........................................14
The Securities We May Offer.................................................14
Description of Capital Stock................................................15
Description of the Depositary Shares........................................18
Description of Debt Securities..............................................22
Description of the Trust Preferred Securities...............................27
Description of the Trust Preferred Securities Guarantees....................30
Effect of Obligations under the Trust Preferred Securities Guarantee
and the Subordinated Debt Securities..................................34
Plan of Distribution........................................................35
Legal Opinions..............................................................37
Experts.....................................................................37
ABOUT THIS PROSPECTUS
This prospectus is part of a "shelf" registration statement that we
and the Trust have filed jointly with the Securities and Exchange
Commission ("SEC"). By using a shelf registration statement, we and/or the
Trust may sell, from time to time, in one or more offerings, any
combination of the securities described in this prospectus in a dollar
amount that does not exceed $1,000,000,000. For further information about
the Company's business, the Trust and the securities, you should refer to
this registration statement and its exhibits. The exhibits to the
registration statement and the documents incorporated by reference in the
registration statement contain the full text of certain contracts and other
important documents summarized in this prospectus. Since these summaries
may not contain all the information that you may find important in deciding
whether to purchase the securities that we and/or the Trust may offer, you
should review the full text of these documents. The registration statement
can be obtained from the SEC as indicated under the heading "Where You Can
Find More Information."
No separate financial statements of the Trust are included in this
prospectus. The Company and the Trust do not consider that such financial
statements would be material to holders of the trust preferred securities
because the Trust is a newly formed special purpose entity, has no
operating history or independent operations and is not engaged in and does
not propose to engage in any activity other than holding as trust assets
certain subordinated debt securities (as more fully described below under
the heading "Norfolk Southern Capital Trust I") of the Company and issuing
the trust preferred securities and the Trust's common securities.
Furthermore, taken together, the Company's obligations under
o the series of subordinated debt securities issued by the
Company in connection with an issuance of trust preferred
securities by the Trust,
o the indenture under which those subordinated debt securities
will be issued,
o the Declaration (as defined below) and
o the trust preferred securities guarantee
provide, in the aggregate, a full, irrevocable and unconditional guarantee
of payments of distributions and other amounts due on the trust preferred
securities. For a more detailed discussion see "Norfolk Southern Capital
Trust I," "Description of the Trust Preferred Securities," "Description of
the Debt Securities," "Description of the Trust Preferred Securities
Guarantees" and "Effect of Obligations under the Trust Preferred Securities
Guarantee and the Subordinated Debt Securities." In addition, the Company
does not expect that the Trust will be filing reports with the SEC under
the Securities Exchange Act of 1934.
This prospectus provides you with only a general description of the
securities that we and/or the Trust may offer. Each time we and/or the
Trust sell securities, we will provide a prospectus supplement that
contains specific information about the terms of those securities. The
prospectus supplement also may add, update or change information contained
in this prospectus. You should read both this prospectus and any prospectus
supplement together with the additional information described below under
the heading "Where You Can Find More Information."
----------------------
You should rely only on the information contained or incorporated by
reference in this prospectus and the prospectus supplement. Neither we nor
the Trust has authorized anyone to provide you with different information.
If anyone does provide you with different or inconsistent information, you
should not rely on it. Neither we nor the Trust will make an offer to sell
these securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing in this
prospectus, as well as information we previously filed with the SEC and
incorporated by reference in this prospectus, is accurate only as of the
date on the front cover of this prospectus. Our business, financial
condition, results of operations and prospects may have changed since that
date.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the SEC.
Our SEC filings are available over the Internet at the SEC's web site at
http://www.sec.gov. You also may read and copy any document we file with
the SEC at the SEC's public reference rooms at 450 Fifth Street, N.W., Room
1024, Washington, D.C. 20549; Seven World Trade Center, 13th Floor, New
York, New York 10048; and Citicorp Center, 5000 West Madison Street (Suite
1400), Chicago, Illinois 60601. Please call the SEC at 1-800-SEC-0330 for
more information on the public reference rooms and their copy charges. Our
common stock is listed and traded on the New York Stock Exchange (the
"NYSE"). You may also inspect the information we file with the SEC at the
NYSE, 20 Broad Street, New York, New York 10005.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" the information in
documents we file with it. This means that we can disclose important
information to you by referring you to those documents. Any information we
incorporate in this manner is considered part of this prospectus. Any
information we file with the SEC after the date of this prospectus
automatically will update and supersede information contained in this
prospectus.
We incorporate by reference the following documents that we have
filed with the SEC:
o Annual Report on Form 10-K for the year ended December 31,
2000;
o Current Reports on Form 8-K, dated January 23, 2001, January
26, 2001, February 6, 2001 and February 6, 2001;
o Registration Statement on Form 8-B, dated April 23, 1982,
describing our common stock, including any amendments or
reports filed for the purpose of updating such description; and
o Registration Statement on Form 8-A, dated September 26, 2000,
describing our preferred stock purchase rights plan, including
any amendments or reports filed for the purpose of updating
such description.
We also incorporate by reference any future filings we will make with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of this prospectus but before the end of the offering of the
securities under this prospectus.
You may request a copy of any filings referred to above (including
exhibits), at no cost, by contacting us at the following address: Norfolk
Southern Corporation, Three Commercial Place, Norfolk, Virginia 23510-9219,
Attention: Corporate Secretary, telephone number: (757) 629-2680.
CERTAIN FORWARD-LOOKING STATEMENTS
This prospectus (including the documents incorporated by reference
herein) contains certain forward-looking statements (as such term is
defined in the Private Securities Litigation Reform Act of 1995) and
information relating to Norfolk Southern that is based on the beliefs of
management as well as assumptions made by, and information currently
available to, the management of Norfolk Southern. When used in this
prospectus or any prospectus supplement, the words "anticipate," "believe,"
"estimate," "expect," "intend" and similar expressions, as they relate to
Norfolk Southern or the management of Norfolk Southern, identify
forward-looking statements. Such statements, which include, without
limitation, the matters set forth herein or in any prospectus supplement
under the caption "Norfolk Southern Corporation," reflect the views of the
Company with respect to future events over which the Company has no or
incomplete control. In addition, realization of the expected outcomes is
subject to certain risks. These forward-looking statements also are subject
to uncertainties and assumptions relating to the operations and results of
operations of Norfolk Southern. Should one or more of these risks or
uncertainties materialize, or should underlying assumptions prove
incorrect, actual results or outcomes may vary materially from those
described herein, or in any prospectus supplement, as anticipated,
believed, estimated, expected, intended (or words of similar import).
NORFOLK SOUTHERN CORPORATION
Norfolk Southern, a Virginia-based holding company, was incorporated
on July 23, 1980 under the laws of the Commonwealth of Virginia. In 1982,
Norfolk Southern acquired control of Southern Railway Company ("Southern")
and Norfolk and Western Railway Company ("NW"). Effective December 31,
1990, Southern changed its name to Norfolk Southern Railway Company
("NSR"), and Norfolk Southern transferred all common stock of NW to NSR
(making NW a wholly owned subsidiary of NSR). Effective September 1, 1998,
NW was merged with and into NSR. NSR, with its consolidated subsidiaries,
primarily engages in the transportation of freight by rail in a single
interterritorial system that extends over approximately 21,800 miles of
road in 22 states, in the District of Columbia and in the Province of
Ontario, Canada. Norfolk Southern's noncarrier subsidiaries engage
principally in telecommunications, the acquisition and subsequent leasing
of coal, oil, gas and timberlands, the development of commercial real
estate and the leasing or sale of rail property and equipment.
As more particularly detailed in the various filings we have
incorporated by reference herein, Norfolk Southern and CSX Corporation
("CSX") secured the approval of the Surface Transportation Board, successor
to the Interstate Commerce Commission, to own and control Conrail Inc.
("Conrail"), the principal subsidiary of which is Consolidated Rail
Corporation ("CRC"), a common carrier that offers rail transportation
services in the Northeast. Through a jointly owned entity, Norfolk Southern
and CSX own the stock of Conrail. On June 1, 1999, Norfolk Southern and
CSX, through their respective railroad subsidiaries, began operating
separate portions of Conrail's rail routes and assets. Substantially all
such assets are owned by two wholly owned subsidiaries of CRC; one of those
subsidiaries, Pennsylvania Lines LLC ("PRR"), has entered into various
operating and leasing arrangements with NSR. Certain rail assets still are
owned by CRC, which operates them for the joint and exclusive benefit of
and use by NSR and the rail subsidiary of CSX.
Our executive offices are located at Three Commercial Place, Norfolk,
Virginia 23510-2191, and our telephone number is (757) 629-2600. Unless the
context indicates otherwise, references to "Norfolk Southern" or the
"Company" are references to Norfolk Southern Corporation and its
consolidated subsidiaries.
NORFOLK SOUTHERN CAPITAL TRUST I
The Trust is a statutory business trust created under Delaware law
pursuant to:
o the declaration of trust executed by the Company, as sponsor of
the Trust and
o a certificate of trust filed with the Delaware Secretary of
State.
The declaration of trust will be amended and restated in its entirety
(as so amended and restated, the "Declaration") substantially in the form
filed as an exhibit to the registration statement of which this prospectus
forms a part.
The Declaration will be qualified as an indenture under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act").
The Trust may offer to the public, from time to time, trust preferred
securities representing preferred beneficial interests in itself.
The Trust exists for the exclusive purposes of:
o issuing and selling its common securities and trust preferred
securities,
o using the proceeds from the sale of those common securities and
trust preferred securities to acquire a series of subordinated
debt securities issued by the Company and
o engaging in only those other activities necessary or incidental
to the above activities (such as registering the transfer of
the common securities and the trust preferred securities).
The Trust will sell common securities representing undivided
beneficial ownership interests in itself to the Company and trust preferred
securities representing undivided beneficial ownership interests in itself
to the public.
When the Trust sells its trust preferred securities to the public it
will use the money it receives, together with the money it receives from
the sale of its common securities, to buy a series of the Company's
subordinated debt securities. The payment terms of those subordinated debt
securities will be virtually the same as the terms of the Trust's trust
preferred securities.
The Trust will own only the applicable series of subordinated debt
securities it purchases from the Company with the money it receives from
the sale of its common securities and trust preferred securities. The only
source of funds for the Trust will be the payments it receives from the
Company on those subordinated debt securities. The Trust will use those
funds to make cash payments to holders of the trust preferred securities.
The Trust will also have the right to be reimbursed by the Company
for certain expenses.
All of the common securities of the Trust will be owned by the
Company. The common securities of the Trust will rank equally, and payments
will be made on such securities pro rata, with the trust preferred
securities of the Trust, except that upon the occurrence and continuance of
an event of default under the Declaration resulting from an event of
default under the subordinated indenture, the rights of the Company, as
holder of the common securities, to payment in respect of distributions and
payments upon liquidation or redemption will be subordinated to the rights
of the holders of the trust preferred securities. See "Description of the
Trust Preferred Securities." The Company will acquire common securities in
an aggregate liquidation amount equal to not less than 3% of the total
capital of the Trust.
The prospectus supplement relating to any trust preferred securities
will contain the details of the cash distributions to be made periodically
to the holders of the trust preferred securities.
Under certain circumstances, the Company may redeem the subordinated
debt securities which it sold to the Trust. If the Company does this, the
Trust will redeem a like amount of the trust preferred securities which it
sold to the public and the common securities which it sold to the Company.
Under certain circumstances the Company may terminate the Trust and
cause the subordinated debt securities sold to the Trust to be distributed
to the holders of the related trust preferred securities. If this happens,
owners of those trust preferred securities will no longer have any interest
in the Trust and will only own the subordinated debt securities.
Unless otherwise specified in the applicable prospectus supplement:
o The Trust will have a term of approximately 40 years from the
date it issues its common securities and trust preferred
securities, but may terminate earlier as provided in the
Declaration.
o The Trust's business and affairs will be conducted by its
trustees.
o The trustees will be appointed by the Company as holder of the
Trust's common securities.
o The duties and obligations of the trustees are governed by the
Declaration.
o The trustees will be U.S. Bank Trust National Association, as
the institutional trustee and as the Delaware trustee, and one
or more regular trustees who are employees or officers of or
affiliated with the Company. The institutional trustee will act
as sole indenture trustee under the Declaration for purposes of
compliance with the Trust Indenture Act. The institutional
trustee will also act as trustee under the guarantees and the
subordinated indenture. See "Description of the Trust Preferred
Securities Guarantees" and "Description of Debt Securities."
o The Company will pay all fees and expenses related to the Trust
and the offering of the trust preferred securities and will
pay, directly or indirectly, all ongoing costs, expenses and
liabilities of the Trust.
o No amendment or modification may be made to the Declaration
which would adversely affect the rights or preferences of the
common securities and trust preferred securities without the
approval of the majority in liquidation amount of the common
securities and trust preferred securities (which may be only
the trust preferred securities or common securities of such
trust if only that class is affected).
The principal executive office of the Trust is Three Commercial
Place, Norfolk, Virginia 23510 and its telephone number is (757) 629-2600.
USE OF PROCEEDS
Unless the accompanying prospectus supplement indicates otherwise, we
expect to use the net proceeds we receive from any offering of these
securities for our general corporate purposes, including the redemption and
refinancing of outstanding indebtedness, acquisitions, increasing our
working capital and other business opportunities.
RATIO OF EARNINGS TO FIXED CHARGES
For purposes of computing each ratio of earnings to fixed charges,
"earnings" represents income before income taxes, plus interest expenses
(including a portion of rental expenses representing an interest factor)
and subsidiaries' preferred dividend requirements, less the equity in
undistributed earnings of 20%-49% owned companies, net of dividends. "Fixed
charges" represents interest expenses (including a portion of rental
expense representing an interest factor) plus capitalized interest and
subsidiaries' preferred dividend requirements on a pretax basis.
The following table sets forth the ratio of earnings to fixed charges
for each period indicated:
Year Ended December 31
--------------------------------------------------
2000(1) 1999 1998 1997 1996
------- ---- ---- ---- ----
Ratio of earnings to fixed
charges 1.40 1.53 2.39 2.99 6.84
- -----------------
(1) Year 2000 pretax earnings included $165 million of workforce
reduction costs, which reduced net income by $101 million. These
costs included pension expense associated with early retirement
programs, costs for voluntary separation programs and protective
benefits related to other actions taken to reduce the workforce.
Excluding the effects of these costs, the 2000 ratio of earnings to
fixed charges would have been 1.62.
THE SECURITIES WE MAY OFFER
We may sell from time to time, in one or more offerings, common
stock, preferred stock, depositary shares and debt securities and/or the
Trust may sell from time to time, in one or more offerings, one series of
trust preferred securities (fully and unconditionally guaranteed on a
subordinated basis by the Company) in a dollar amount that does not exceed
$1,000,000,000. This prospectus contains only a summary of the securities
we may offer. The specific terms of any securities actually offered for
sale, together with the terms of that offering, the initial price and the
net proceeds to the Company and/or the Trust from the sale of such
securities, will be set forth in an accompanying prospectus supplement.
That prospectus supplement also will contain information, where applicable,
about material United States federal income tax considerations relating to
the securities, and the securities exchange, if any, on which the
securities will be listed. THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE A
SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
DESCRIPTION OF CAPITAL STOCK
The following summary of our common stock and preferred stock is not
meant to be a complete description. For more information, you also should
refer to our Restated Articles of Incorporation (the "Articles of
Incorporation"), our Bylaws (the "Bylaws"), the Virginia Stock Corporation
Act (the "Virginia Act") and the Rights Agreement (the "Rights Agreement"),
dated as of September 26, 2000, between Norfolk Southern and The Bank of
New York. Under the Articles of Incorporation, our authorized capital stock
consists of 1,350,000,000 shares of common stock, par value $1.00 per
share, and 25,000,000 shares of preferred stock, without par value. We will
describe the specific terms of any common stock or preferred stock we may
offer in a prospectus supplement. The specific terms we describe in a
prospectus supplement may differ from the terms we describe below.
Common Stock
As of February 28, 2001, Norfolk Southern had 384,491,145 shares of
common stock issued and outstanding. For all matters submitted to a vote of
stockholders, each holder of common stock is entitled to one vote for each
share registered in his or her name on the books of the Company. Our common
stock does not have cumulative voting rights. As a result, subject to the
voting rights of any outstanding preferred stock (of which there currently
is none), the persons who hold 50% or more of the outstanding common stock
entitled to elect members of the board of directors (the "Board"), can
elect all of the directors who are up for election in a particular year.
If the Board declares a dividend, common stockholders will receive
payments from the funds of Norfolk Southern that are legally available to
pay dividends. However, this dividend right is subject to any preferential
dividend rights we may grant to the persons who hold preferred stock, if
any is issued. If Norfolk Southern is dissolved, the holders of common
stock will be entitled to share ratably in all the assets that remain after
we pay (i) our liabilities and (ii) any amounts we may owe to the persons
who hold our preferred stock, if any is issued. Common stockholders do not
have preemptive rights, and they have no right to convert their common
stock into any other securities. All outstanding shares of common stock are
duly authorized, validly issued, fully paid and nonassessable.
The transfer agent and registrar for our common stock is The Bank of
New York.
Preferred Stock
No shares of preferred stock are issued or outstanding. However,
600,000 shares of preferred stock designated as "Series A Junior
Participating Preferred Stock" are authorized and reserved for issuance in
connection with the Rights Agreement described below. Our Articles of
Incorporation authorize the Board to issue preferred stock in one or more
series and to determine the liquidation preferences, voting rights,
dividend rights, conversion rights and redemption rights of each such
series. The ability of the Board to issue and set the terms of preferred
stock could make it more difficult for a third person to acquire control of
Norfolk Southern. The Board has the authority to fix the following terms of
any series of preferred stock, each of which will be set forth in the
related prospectus supplement:
o the designation of the series;
o the number of shares offered;
o the initial offering price;
o the dividend rate, the dividend periods, the dates payable and
whether dividends will be cumulative or noncumulative;
o the voting rights;
o any redemption or sinking fund provisions;
o any conversion or exchange provisions;
o whether the shares will be listed on a securities exchange;
o the liquidation preference, and other rights that arise upon
the liquidation, dissolution or winding-up of Norfolk Southern;
and
o any other rights, preferences and limitations that pertain to
the series.
Norfolk Southern will designate the transfer agent and registrar for
each series of preferred stock in the prospectus supplement.
Rights to Purchase Series A Junior Participating Preferred Stock
On September 26, 2000, the Board adopted the Rights Agreement and
declared a dividend of one right for each share of common stock outstanding
as of October 16, 2000. Each right entitles the holder to purchase one
one-thousandth (1/1000th) of a share of a new series of preferred stock of
the Company designated as "Series A Junior Participating Preferred Stock"
at an exercise price of $85.00. Rights are only exercisable (under certain
circumstances specified in the Rights Agreement) when there has been a
distribution of the rights (and such rights are no longer redeemable by the
Company). A distribution of the rights would occur upon the earlier of: (i)
10 business days (or such later date as the Board shall determine)
following a public announcement that any person or group has acquired
beneficial ownership of 15% or more of the outstanding shares of common
stock, other than as a result of repurchases of stock by the Company or
through inadvertence by certain institutional stockholders or (ii) 10
business days (or such later date as the Board shall determine) following
the commencement of a tender offer or exchange offer that would result in
any person or group acquiring beneficial ownership of 15% or more of the
outstanding shares of common stock.
The rights will expire at 5:00 P.M. (New York City time) on September
26, 2010, unless such date is extended or the rights are earlier redeemed
or exchanged by the Company. Until a right is exercised, the holder
thereof, as such, will have no rights as a stockholder of the Company,
including, without limitation, no right to vote or to receive dividends.
If any person or group acquires 15% or more of the Company's
outstanding common stock, the "flip-in" provision of the rights will be
triggered and the rights will entitle a holder (other than such person or
any member of such group, as such rights will be null and void) to acquire
a number of additional shares of the Company's common stock having a market
value of twice the exercise price of each right. In the event the Company
is involved in a merger or other business combination transaction, each
right will entitle its holder to purchase, at the right's then-current
exercise price, a number of shares of the acquiring company's common stock
having a market value at that time of twice the rights' exercise price.
Any of the provisions of the Rights Agreement may be amended by the
Board prior to the distribution of the rights. After such distribution, the
provisions of the Rights Agreement may be amended by the Board in order to
cure any ambiguity, to make changes which do not adversely affect the
interests of holders of rights or to shorten or lengthen any time period
under the Rights Agreement. The foregoing notwithstanding, no amendment may
be made at such time as the rights are not redeemable.
The existence of the Rights Agreement and the rights is intended to
deter coercive or partial offers which will not provide fair value to all
stockholders and to enhance the Board's ability to represent all
stockholders and thereby maximize stockholder value.
Certain Provisions of Our Articles of Incorporation
Our Articles of Incorporation contain certain provisions that, in
effect, may delay, deter or prevent a third person from acquiring control
of Norfolk Southern. Under the Articles of Incorporation, the Board
consists of three classes of directors; each class serves a staggered
three-year term, and each such term ends in a successive year. This
provision may make it more difficult for a third person to acquire control
of Norfolk Southern since it normally would require two annual
stockholders' meetings in order for a potential acquiror to elect a
majority of the directors. Because it may take a relatively long period of
time for potential acquirors to obtain control, they may be less likely to
initiate a proxy contest to elect directors or purchase a substantial block
of Norfolk Southern's common stock. These provisions, together with certain
terms of preferred stock noted above, could cause our common stock to trade
at a lower price than if these provisions did not exist.
Certain Provisions of the Virginia Stock Corporation Act
The Virginia Act contains certain anti-takeover provisions regarding,
among other things, affiliated transactions and control share acquisitions.
In general, the Virginia Act's affiliated transactions provisions prevent a
Virginia corporation from engaging in an "affiliated transaction" (as
defined in the Virginia Act) with an "interested shareholder" (generally
defined as a person owning more than 10% of any class of voting securities
of the corporation) unless approved by a majority of the "disinterested
directors" (as defined in the Virginia Act) and the holders of at least two
thirds of the outstanding voting stock not owned by the interested
shareholder, subject to certain exceptions.
Under the control share acquisition provisions of the Virginia Act,
shares acquired in a "control share acquisition," generally defined as
transactions that increase the voting strength of the person acquiring such
shares above certain thresholds in elections of directors generally, have
no voting rights unless they are granted by a majority of the outstanding
voting stock not owned by such acquiring person or by an employee-director
of the company. If such voting rights are granted and the acquiring person
controls 50% or more of the voting power, all shareholders, other than the
acquiring person, are entitled to receive "fair value" (as defined in the
Virginia Act) for their shares. If such voting rights are not granted, the
corporation may, if authorized by its articles of incorporation or bylaws,
purchase the acquiring person's shares at their cost to the acquiring
person. A Virginia corporation has the right to "opt out" of the control
share acquisition statute. Although Norfolk Southern has not done so, its
Board at any time and without stockholder approval could "opt out" of the
statute.
DESCRIPTION OF THE DEPOSITARY SHARES
Norfolk Southern may elect to offer fractional shares of preferred
stock rather than full shares of preferred stock. If so, Norfolk Southern
will issue receipts for these "depositary shares," each of which will
represent a fraction of a share of a particular series of preferred stock.
Each holder of a depositary share will be entitled, in proportion to the
fraction of preferred stock represented by that depositary share, to the
rights and preferences of the preferred stock, including any dividend,
voting, redemption, conversion and liquidation rights. Norfolk Southern
will enter into an agreement (the "Deposit Agreement") with a depositary,
which will be named in the related prospectus supplement, and with the
holders of the "depositary receipts" that represent the depositary shares.
The following summary of the depositary shares is not meant to be
complete. For more information, you should refer to the Deposit Agreement,
to the depositary receipts and the certificate of designation of the series
of preferred stock that underlies that series of depositary shares and to
the related prospectus supplement. A form of Deposit Agreement, depositary
receipt and certificate of designation will be filed as exhibits to, or
incorporated by reference into, the registration statement before we issue
depositary receipts.
General
In order to issue depositary shares, Norfolk Southern will issue
preferred stock, and immediately deposit these shares with the depositary.
The depositary then will issue and deliver depositary receipts to the
persons who purchase depositary shares. The depositary will issue
depositary receipts in a form that reflects whole depositary shares, and
each may evidence any number of whole depositary shares.
Dividends and Other Distributions
The depositary will distribute all cash and non-cash distributions it
receives, with respect to the underlying preferred stock, to the record
holders of depositary shares in proportion to the number of depositary
shares they hold. In the case of non-cash distributions, the depositary may
determine that the distribution cannot be made proportionately or that it
may not be feasible to make the distribution. If so, the depositary will,
with our approval, adopt a method it deems equitable and practicable to
effect the distribution, including the sale (public or private) of the
securities or other non-cash property it receives in the distribution at a
place and on terms it deems proper. Norfolk Southern or the depositary may
reduce the amount it distributes in order to pay taxes or other
governmental charges.
Redemption of Depositary Shares
If Norfolk Southern redeems the series of preferred stock that
underlies the depositary shares, the depositary will redeem the depositary
shares from the proceeds it receives from the redemption of the preferred
stock it holds. The depositary will redeem the number of depositary shares
that represent the amount of underlying preferred stock that Norfolk
Southern redeemed. The redemption price per depositary share will be in
proportion to the redemption price per share that Norfolk Southern paid for
the underlying preferred stock. If Norfolk Southern redeems less than all
the depositary shares, the depositary will select by lot, or by some
substantially equivalent method, which depositary shares to redeem.
After a redemption date is fixed, the depositary shares to be
redeemed no longer will be considered outstanding. The rights of the
holders of the depositary shares will cease, except the right to receive
money or other property they are entitled to receive upon the redemption.
In order to redeem their depositary shares, holders will surrender their
depositary receipts to the depositary. If Norfolk Southern deposits funds
with the depositary to redeem depositary shares, and the holders fail to
redeem their receipts, the money will be returned to Norfolk Southern
within two years from the date the funds are deposited.
Voting the Preferred Stock
When Norfolk Southern notifies the depositary about any meeting at
which the holders of preferred stock are entitled to vote, the depositary
will mail the information to the record holders of depositary shares
related to that preferred stock. Each record holder of such depositary
shares on the record date (which will be the same date as the record date
for the related preferred stock) will be entitled to instruct the
depositary how to vote the shares of preferred stock represented by that
holder's depositary shares. The depositary will try to vote the preferred
stock represented by the depositary shares in accordance with these
instructions, provided the depositary receives these instructions
sufficiently in advance of the meeting. Norfolk Southern will take all
reasonable action necessary to provide the depositary with sufficient
notice of any meeting. If the depositary does not receive instructions from
the holders of the depositary shares, the depositary will abstain from
voting the preferred stock that underlies those depositary shares.
Withdrawal of Preferred Stock
When a holder surrenders depositary receipts at the corporate trust
office of the depositary, and pays any necessary taxes, charges or other
fees, the holder will be entitled to receive the number of whole shares of
the related series of preferred stock, and any money or other property, if
any, represented by their depositary shares. Once a holder exchanges
depositary shares for whole shares of preferred stock, that holder cannot
"re-deposit" these shares of preferred stock with the depositary, or
exchange them for depositary shares. If a holder delivers depositary
receipts that represent a number of depositary shares that exceeds the
number of whole shares of related preferred stock the holder seeks to
withdraw, the depositary will issue a new depositary receipt to the holder
that evidences the excess number of depositary shares.
Amendment and Termination of the Deposit Agreement
Norfolk Southern and the depositary can agree, at any time, to amend
the form of depositary receipt and any provisions of the Deposit Agreement.
However, if an amendment has a material adverse affect on the rights of the
holders of related depositary shares, it must first be approved by the
holders of at least a majority of these depositary shares then outstanding.
Every holder of a depositary receipt at the time an amendment becomes
effective will be bound by the amended Deposit Agreement. However, subject
to any conditions in the Deposit Agreement or applicable law, no amendment
can impair the right of any holder of a depositary share to receive shares
of the related preferred stock, and any money or other property represented
by the depositary shares, upon surrender the depositary receipts that
represent their depositary shares.
Norfolk Southern can terminate the Deposit Agreement at any time, as
long as it provides at least 60 days' prior written notice to the
depositary. If Norfolk Southern terminates the Deposit Agreement, then
within 30 days from the date the depositary receives notice, the depositary
will deliver whole or fractional shares of the related preferred stock to
the holders of depositary shares, when they surrender their depositary
receipts. The Deposit Agreement will terminate automatically after all
outstanding depositary shares have been redeemed, or, in connection with
any liquidation, dissolution or winding up of Norfolk Southern, after the
final distribution of Norfolk Southern's assets has been made to the
holders of the related series of preferred stock and, in turn, to the
holders of depositary shares.
Charges of Depositary
Norfolk Southern will pay the charges of the depositary, including
charges in connection with the initial deposit of the related series of
preferred stock, the initial issuance of the depositary shares, and all
withdrawals of shares of the related series of preferred stock. Norfolk
Southern also will pay all transfer and other taxes and the government
charges that arise solely from the existence of the depositary
arrangements. However, holders of depositary shares will have to pay all
other transfer and other taxes and government charges, as provided in the
Deposit Agreement.
Resignation and Removal of Depositary
The depositary may resign, at any time, by delivering written notice
of its decision to Norfolk Southern. We may remove the depositary at any
time. Any resignation or removal will take effect when we appoint a
successor depositary. Norfolk Southern must appoint the successor
depositary within 60 days after delivery of the notice of resignation or
removal, and the successor depositary must be a bank or trust corporation
that has its principal office in the United States, and has a combined
capital and surplus of at least $50,000,000.
Miscellaneous
Norfolk Southern will be required to furnish certain information to
the holders of the preferred stock. The depositary, as the holder of the
underlying preferred stock, will forward any reports or information it
receives from Norfolk Southern to the holders of depositary shares.
Neither the depositary nor Norfolk Southern will be liable if its
ability to perform its obligations under the Deposit Agreement is prevented
or delayed by law or any circumstance beyond its control. Both Norfolk
Southern and the depositary will be obligated to use their best judgment
and to act in good faith in performing their duties under the Deposit
Agreement. Each of Norfolk Southern and the depositary will be liable for
gross negligence and willful misconduct in the performance of its duties
under the Deposit Agreement. They will not be obligated to appear in,
prosecute or defend any legal proceeding with respect to any depositary
receipts, depositary shares or preferred stock unless they receive what
they, in their sole discretion, determine to be a satisfactory indemnity.
Norfolk Southern and the depositary may rely on the advice of legal counsel
(including in-house counsel) or accountants of their choice. They may also
rely on information provided by persons they believe, in good faith, to be
competent, and on documents they believe, in good faith, to be genuine.
The depositary's corporate trust office will be identified in the
related prospectus supplement. Unless the prospectus supplement indicates
otherwise, the depositary will act as transfer agent and registrar for
depositary receipts, and if Norfolk Southern redeems shares of preferred
stock, the depositary will act as redemption agent for the corresponding
depositary receipts.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and
provisions of the debt securities. The particular terms of each series of
debt securities we may offer will be described in the related prospectus
supplement. Any senior debt securities will be issued under a senior
indenture, dated as of January 15, 1991, between the Company and U.S. Bank
Trust National Association, formerly known as First Trust of New York,
National Association, as successor trustee. Any subordinated debt
securities will be issued under a subordinated indenture between the
Company and U.S. Bank Trust National Association, as trustee. The senior
indenture and the subordinated indenture are sometimes referred to
collectively as the "indentures," and the indenture trustee under each
indenture are sometimes referred to collectively as the "indenture
trustees."
The following summary of certain provisions of the indentures and the
debt securities is not meant to be complete. For more information, you
should refer to the full text of the indentures and the debt securities,
including the definitions of certain terms not defined herein, and the
related prospectus supplement. The senior indenture and a form of
subordinated indenture have been incorporated by reference as exhibits to
this registration statement, and any supplements to either of the
indentures, will be filed as exhibits to, or incorporated by reference
into, the registration statement before we issue debt securities.
General
The indentures do not limit the aggregate principal amount of debt
securities Norfolk Southern may issue. Unless otherwise specified in a
prospectus supplement,
o debt securities will be unsecured obligations of Norfolk
Southern;
o senior debt securities will rank equally with all other
unsecured and unsubordinated indebtedness of Norfolk Southern;
and
o subordinated debt securities will be subordinate, in right of
payment, to all senior indebtedness (as defined in the
applicable subordinated indenture).
A prospectus supplement will describe the following terms of any
series of debt securities we may offer:
o the title;
o any limit on the amount that may be issued;
o the date(s) of maturity;
o the rate(s) of interest, if any, or the method of calculation,
the date(s) interest will begin to accrue, the date(s) interest
will be payable and the regular record dates for interest
payment dates or the method for determining such date(s);
o the covenants applicable to the debt securities;
o any mandatory or optional sinking fund or analogous provisions;
o the date(s), if any, on which, and the price(s) at which
Norfolk Southern is obligated, pursuant to any mandatory
sinking fund provisions or otherwise, to redeem, or at a
holder's option to purchase, such series of debt securities and
other related terms and provisions;
o the applicability of any provisions described under
"Satisfaction and Discharge of Indenture" in the indentures;
o the index used to determine any payments to be made on the debt
securities;
o the currency or currencies of any payments to be made on the
debt securities;
o whether or not the debt securities will be issued in global
form, their terms and the depositary;
o the terms upon which a global note may be exchanged in whole or
in part for other debt securities; and
o any other terms of the series of debt securities.
Conversion or Exchange of Debt Securities
The prospectus supplement will set forth the terms on which a series
of debt securities may be converted into or exchanged for other securities
of Norfolk Southern. These terms will include whether conversion or
exchange is mandatory, or is at the option of the holder or of Norfolk
Southern. We also will describe how we will calculate the number of
securities that holders of debt securities would receive if they convert or
exchange their debt securities.
Events of Default
Under the indentures, an "event of default" includes the following:
o failure to pay any principal or premium, if any, when due;
o failure to pay any interest when due, and this failure
continues for 30 days and the time for payment has not been
extended or deferred;
o failure to pay any sinking fund installment when due;
o failure to perform any covenant in the indenture, and the
failure continues for 90 days;
o acceleration of any indebtedness of Norfolk Southern (or any
"significant subsidiary" of Norfolk Southern, as defined in the
federal securities laws) in an aggregate principal amount that
exceeds $30,000,000; and
o certain events of bankruptcy, insolvency or reorganization.
If an event of default occurs and is continuing, either the indenture
trustee or the holders of at least 25%, in aggregate principal amount, of
the outstanding debt securities affected by the default, may notify Norfolk
Southern (and the indenture trustee, if notice is given by the holders) and
declare that the unpaid principal, premium, and accrued interest, if any,
is due and payable immediately. However, under certain circumstances, the
holders of a majority in aggregate principal amount of outstanding debt
securities may be able to rescind and annul this declaration for
accelerated payment. Norfolk Southern will furnish the indenture trustee
with an annual statement that describes how Norfolk Southern has performed
its obligations under the indenture, and that specifies any defaults that
may have occurred.
Subordination of Subordinated Debt Securities
The terms of a series of subordinated debt securities will be set
forth in the subordinated indenture and the related prospectus supplement.
The subordinated debt securities will be unsecured obligations of Norfolk
Southern and will be subordinate in right of payment to certain other
indebtedness of Norfolk Southern. Unless otherwise indicated in the related
prospectus supplement, the subordinated indenture does not contain any
restrictions on the amount of senior or other subordinated indebtedness
that Norfolk Southern may incur.
The subordinated debt securities will be subordinate only to senior
debt securities and secured debt. In the event of the bankruptcy or
insolvency of Norfolk Southern before or after maturity of the subordinated
debt securities, unsecured creditors who do not hold senior debt securities
will rank equally with the holders of the subordinated debt securities in
priority of payment. However, federal bankruptcy courts have broad equity
powers. A bankruptcy court may, among other things, reclassify subordinated
debt securities into a class of claims with a different relative priority
than other claims against the Company.
In the event subordinated debt securities are issued to the Trust or
a trustee of the Trust in connection with the issuance of common securities
and trust preferred securities by the Trust, those subordinated debt
securities subsequently may be distributed pro rata to the holders of the
common securities and trust preferred securities in connection with the
dissolution of the Trust, as described in the prospectus supplement
relating to the trust preferred securities. Only one series of subordinated
debt securities will be issued to the Trust or a trustee of the Trust in
connection with the issuance of common securities and trust preferred
securities by the Trust.
Satisfaction and Discharge of Indentures
Norfolk Southern may terminate its obligations with respect to a
series of debt securities under the indentures if:
o all the outstanding debt securities have been delivered to the
indenture trustee for cancellation;
o Norfolk Southern has paid all sums it is required to pay under
the respective indentures; or
o Norfolk Southern deposits with the indenture trustee sufficient
funds, or the equivalent thereof, to cover payments due under
the indentures.
As a condition to defeasance, Norfolk Southern must deliver to the
indenture trustee an opinion of counsel to the effect that (i) the holders
will not recognize gain or loss on such debt securities for federal income
tax purposes solely as a result of Norfolk Southern's defeasance, and (ii)
the holders will be subject to federal income tax in the same amounts and
at the same times as would have been the case if Norfolk Southern's
defeasance had not occurred. In the event of defeasance, holders of debt
securities must look to the funds Norfolk Southern has deposited with the
indenture trustee to cover payments due under the indentures.
Modification and Waiver
Norfolk Southern and the indenture trustee may modify or amend the
indentures by obtaining the written consent of the individuals who hold at
least a majority, in aggregate principal amount, of the outstanding debt
securities of each series that is affected. However, certain changes can be
made only with the consent of each holder of an outstanding series of debt
securities. For example, each holder must consent to changes in:
o the stated maturity date;
o the principal, premium, or interest payments, if any;
o the place or currency of any payment;
o the rights of holders to enforce payment;
o the percentage of outstanding debt securities of any series, if
the consent of the holders of those debt securities is needed
to modify, amend or waive certain provisions of the indenture;
o the conversion provisions of any convertible debt security; or
o the subordination provisions.
The holders of a majority, in aggregate principal amount, of the
outstanding debt securities of any series can consent, on behalf of the
holders of the entire series, to waive certain provisions of the
indentures. In addition, these holders also can consent to waive any past
default under the indentures, except:
o a default in any payments due; and
o a default on an indenture provision that can be modified or
amended only with the consent of each holder of an outstanding
debt security.
Consolidation, Merger and Sale of Assets
Norfolk Southern cannot merge with, or sell, transfer or lease
substantially all of its assets to, another corporation, without the
consent of the holders of a majority, in aggregate principal amount, of the
outstanding debt securities under the indentures, unless:
o the successor corporation is organized and existing under the
laws of the United States and assumes Norfolk Southern's
obligations under the respective indenture;
o after giving effect to the transaction, no event of default
(and no event which, after notice or lapse of time, would
become an event of default) will have occurred and be
continuing; and
o the successor corporation executes a supplemental indenture
that assumes the obligations of the related indenture,
satisfies the indenture trustees, and provides the necessary
opinions and certificates.
Since Norfolk Southern is a holding company, if one of its
subsidiaries distributes its assets as a result of a liquidation or
recapitalization of that subsidiary, the rights of Norfolk Southern, of
Norfolk Southern's creditors and of the holders of debt securities to
participate in the subsidiary's distribution of assets will be subject to
the prior claims of that subsidiary's creditors, except to the extent that
Norfolk Southern itself may be a creditor with prior claims enforceable
against its subsidiary.
Form, Exchange and Transfer
Unless otherwise indicated in a prospectus supplement, the debt
securities of each series will be issued only in fully registered form,
without coupons, and in denominations of $100,000 and integral multiples of
$1,000 thereof. At the option of the holder, subject to the terms of the
indentures and the limitations on global securities described in a
prospectus supplement, debt securities of any series will be exchangeable
for other debt securities of the same series, in any authorized
denomination and of like tenor and aggregate principal amount. Holders can
exchange or register the transfer of their debt securities, in the manner
prescribed by Norfolk Southern or the indenture trustee, at the office of
Norfolk Southern's security registrar or transfer agent which Norfolk
Southern will designate in the related prospectus supplement. Unless the
debt securities provide otherwise, there is no service charge to exchange
or register the transfer of debt securities. However, Norfolk Southern may
require holders to pay any taxes or other governmental charges. Norfolk
Southern can designate additional transfer agents, terminate any transfer
agent, or change the office through which a transfer agent acts, but
Norfolk Southern must maintain a transfer agent in each place, as described
in the related prospectus supplement, where debt securities payments are
made.
Concerning the Indenture Trustee
Unless the related prospectus supplement indicates otherwise, U.S.
Bank Trust National Association will be the indenture trustee under each of
the indentures, and will act as the security registrar and paying agent for
the Company's debt securities.
The holders of a majority, in aggregate principal amount, of the debt
securities of any series will have the right to direct the time, method and
place to conduct any proceeding to exercise any remedy available to the
indenture trustee, subject to certain exceptions. The indentures provide
that if an event of default occurs (and is not cured) with respect to a
series of debt securities, the indenture trustee will be required, in the
exercise of its power, to use the same degree of care a prudent person
would use in the conduct of that person's own affairs. Subject to this
standard, the indenture trustee is not obligated to exercise any of its
powers under the indentures at the request of a debt securities holder,
unless the holder offers to indemnify the indenture trustee against any
loss, liability or expense, and then only to the extent required by the
terms of the applicable indenture.
Governing Law
The indentures and the debt securities will be governed by and
construed in accordance with the laws of the State of New York, except to
the extent that the Trust Indenture Act shall be applicable.
DESCRIPTION OF THE TRUST PREFERRED SECURITIES
The Trust may issue only one series of trust preferred securities and
that series will have the terms described in the applicable prospectus
supplement. The Declaration authorizes the regular trustees of the Trust to
issue on behalf of the Trust one series of trust preferred securities. The
Declaration will be qualified as an indenture under the Trust Indenture
Act. The trust preferred securities will have terms, including with respect
to distributions, redemption, voting, liquidation rights and such other
preferred, deferred or other special rights or such restrictions as
described in the Declaration or made part of the Declaration by the Trust
Indenture Act and which will mirror the terms of the subordinated debt
securities held by the Trust and described in the applicable prospectus
supplement.
You must review the prospectus supplement relating to the trust
preferred securities for specific terms, including:
o the distinctive designation of the trust preferred securities;
o the number and the initial public offering price of trust
preferred securities issued by the Trust;
o the annual distribution rate (or method of determining such
rate) for the trust preferred securities, the date or dates
upon which the distributions will be payable and the date or
dates from which distributions will accrue;
o whether distributions on the trust preferred securities will be
cumulative, and, in the case of trust preferred securities
having cumulative distribution rights, the date or dates or
method of determining the date or dates from which the
distributions on the trust preferred securities will be
cumulative;
o the amount or amounts which will be paid out of the assets of
the Trust to the holders of trust preferred securities of the
Trust upon voluntary or involuntary dissolution, winding-up or
termination of the Trust;
o the obligation, if any, of the Trust to purchase or redeem
trust preferred securities issued by the Trust and the price or
prices at which, the period or periods within which, and the
terms and conditions upon which, the trust preferred securities
will be purchased or redeemed, in whole or in part, pursuant to
such obligation;
o the voting rights, if any, of the trust preferred securities in
addition to those required by law, including the number of
votes per trust preferred security and any requirement for the
approval by the holders of trust preferred securities as a
condition to specified action or amendments to the Declaration
of the Trust;
o the terms and conditions, if any, upon which the subordinated
debt securities may be distributed to holders of trust
preferred securities;
o the right and/or obligation, if any, of the Company to redeem
or purchase the trust preferred securities pursuant to any
sinking fund or similar provisions or at the option of the
holder of the trust preferred securities and the period or
periods for which, the price or prices at which, and the terms
and conditions upon which, the trust preferred securities will
be redeemed or repurchased, in whole or in part, pursuant to
such right and/or obligation;
o the terms and conditions, if any, upon which the trust
preferred securities may be converted into shares of the common
stock of the Company, including the conversion price and the
circumstances, if any, under which the conversion right will
expire;
o if applicable, any securities exchange upon which the trust
preferred securities will be listed; and
o any other relevant rights, preferences, privileges, limitations
or restrictions of trust preferred securities issued by the
Trust not inconsistent with the Declaration or with applicable
law.
All trust preferred securities will be guaranteed by the Company to
the extent described below under "Description of the Trust Preferred
Securities Guarantees."
Certain United States federal income tax considerations applicable to
any offering of trust preferred securities will be described in the
applicable prospectus supplement.
In connection with the issuance of trust preferred securities, the
Trust will issue one series of common securities. The Declaration
authorizes the regular trustees of the Trust to issue on behalf of the
Trust one series of common securities. The common securities will have the
terms relating to distributions, redemption, voting, liquidation rights or
such restrictions as are described in the Declaration. Except for voting
rights, the terms of the common securities issued by the Trust will be
substantially identical to the terms of the trust preferred securities
issued by the trust. The common securities will rank on a parity, and
payments will be made on the common securities pro rata, with the trust
preferred securities except that, upon an event of default under the
Declaration, the rights of the holders of the common securities to payment
for distributions and payments upon liquidation, redemption and otherwise
will be subordinated to the rights of the holders of the trust preferred
securities. Except in certain limited circumstances, the common securities
will also carry the right to vote to appoint, remove or replace any of the
trustees of the Trust. All of the common securities of the Trust will be
directly or indirectly owned by the Company.
Enforcement of Certain Rights by Holders of the Trust Preferred Securities
If an event of default under the Declaration occurs and is
continuing, then the holders of trust preferred securities will rely on the
enforcement by the institutional trustee of its rights as a holder of the
applicable series of subordinated debt securities against the Company. In
addition, the holders of a majority in liquidation amount of the trust
preferred securities will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the
institutional trustee or to direct the exercise of any trust or power
conferred upon the institutional trustee under the Declaration, including
the right to direct the institutional trustee to exercise the remedies
available to it as a holder of the subordinated debt securities.
If the institutional trustee fails to enforce its rights under the
applicable series of subordinated debt securities, a holder of trust
preferred securities may institute a legal proceeding directly against the
Company to enforce the institutional trustee's rights without first
instituting any legal proceeding against the institutional trustee or any
other person or entity. However, if an event of default under the
Declaration has occurred and is continuing and such event is attributable
to the failure of the Company to pay interest or principal on the
applicable series of subordinated debt securities on the date such interest
or principal is otherwise payable (or in the case of redemption, on the
redemption date), then a holder of trust preferred securities of the Trust
may directly institute a proceeding for enforcement of payment to the
holder of the principal of or interest on the applicable series of
subordinated debt securities having a principal amount equal to the
aggregate liquidation amount of the trust preferred securities of such
holder (a "Direct Action") on or after the respective due date. In
connection with a Direct Action, the Company will be subrogated to the
rights of such holder of trust preferred securities under the Declaration
to the extent of any payment made by the Company to a holder of trust
preferred securities in a Direct Action. This means that the Company will
be entitled to payment of amounts that a holder of trust preferred
securities receives in respect of an unpaid distribution that resulted in
the bringing of the Direct Action to the extent that such holder receives
or has already received full payment relating to such unpaid distribution
from the Trust.
Information Concerning the Institutional Trustee
Information concerning the relationship between the institutional
trustee and the Company will be set forth in the prospectus supplement
relating to the trust preferred securities.
Information Concerning the Delaware Trustee
Information concerning the relationship between the Delaware trustee
and the Company will be set forth in the prospectus supplement relating to
the trust preferred securities.
DESCRIPTION OF THE TRUST PREFERRED SECURITIES GUARANTEES
The guarantees with respect to the trust preferred securities will be
executed and delivered by the Company for the benefit of the holders from
time to time of trust preferred securities. Each guarantee will be
qualified as an indenture under the Trust Indenture Act. An institutional
trustee will act as trustee under each guarantee for purposes of the Trust
Indenture Act. Such trustee under each guarantee shall be referred to
throughout this prospectus as the guarantee trustee. The terms of each
guarantee will be as set forth in that guarantee and those made part of
that guarantee by the Trust Indenture Act. The summary of the terms and
provisions of the guarantees in this section does not claim to be complete
and is subject in all respects to the provisions of, and is qualified in
its entirety by reference to, the form of guarantee, which is filed as an
exhibit to the registration statement of which this prospectus forms a
part, and the Trust Indenture Act. Each guarantee will be held by the
guarantee trustee for the benefit of the holders of the trust preferred
securities of the Trust.
General
Under each guarantee, the Company will irrevocably and
unconditionally agree, to the extent set forth in the guarantee, to pay in
full, to the holders of the trust preferred securities, the guarantee
payments (as defined below), except to the extent paid by the Trust, as and
when due, regardless of any defense, right of set-off or counterclaim which
the Trust may have or claim to have.
The following guarantee payments with respect to trust preferred
securities, to the extent not paid by the Trust, will be subject to the
applicable guarantee (without duplication):
o any accrued and unpaid distributions which are required to be
paid on the trust preferred securities, to the extent the Trust
has funds available for such payments;
o the redemption price, including all accrued and unpaid
distributions to the date of payment, to the extent the Trust
has funds available for such payments with respect to any trust
preferred securities called for redemption by the Trust; and
o upon a voluntary or involuntary dissolution, winding-up or
termination of the Trust, other than in connection with the
distribution of subordinated debt securities to the holders of
trust preferred securities or the redemption of all of the
trust preferred securities, the lesser of (a) the aggregate of
the liquidation amount and all accrued and unpaid distributions
on the trust preferred securities to the date of payment to the
extent the Trust has funds available for the payment and (b)
the amount of assets of the Trust remaining available for
distribution to holders of the trust preferred securities in
liquidation of the Trust.
The redemption price and liquidation amount will be fixed at the time
the trust preferred securities are issued.
The Company's obligation to make a guarantee payment may be satisfied
by direct payment of the required amounts by the Company to the holders of
trust preferred securities or by causing the Trust to pay such amounts to
the holders.
Each guarantee will not apply to any payment of distributions except
to the extent the Trust has funds available for the payments. If the
Company does not make interest payments on the subordinated debt securities
purchased by the Trust, the Trust will not pay distributions on the trust
preferred securities issued by it and will not have funds available for
such a payment. The guarantee, when taken together with the Company's
obligations under the subordinated debt securities, the subordinated
indenture and the Declaration, including its obligations to pay costs,
expenses, debts and liabilities of the Trust, other than with respect to
the common securities and trust preferred securities of the Trust, will
provide a full and unconditional guarantee on a subordinated basis by the
Company of payments due on the trust preferred securities.
The Company has also agreed separately to irrevocably and
unconditionally guarantee the obligations of the Trust with respect to the
common securities to the same extent as the guarantees, except that upon an
event of default under the subordinated indenture, holders of trust
preferred securities will have priority over holders of common securities
with respect to distributions and payments on liquidation, redemption or
otherwise.
Modification of the Guarantees; Assignment
Except with respect to any changes which do not adversely affect the
rights of holders of trust preferred securities (in which case no vote will
be required), each guarantee may be amended only with the prior approval of
the holders of not less than a majority in liquidation amount of the
outstanding trust preferred securities issued by the Trust. The manner of
obtaining the approval of holders of the trust preferred securities will be
described in the applicable prospectus supplement. All guarantees and
agreements contained in a guarantee will bind the successors, assigns,
receivers, trustees and representatives of the Company and will benefit the
holders of the outstanding trust preferred securities.
Termination
Each guarantee will terminate as to the trust preferred securities
issued by the Trust:
o upon full payment of the redemption price of all trust
preferred securities of the Trust;
o upon distribution of the subordinated debt securities held by
the Trust to the holders of the trust preferred securities of
the Trust; or
o upon full payment of the amounts payable under the Declaration
upon liquidation of the Trust.
Each guarantee will continue to be effective or will be reinstated,
as the case may be, if at any time any holder of trust preferred securities
issued by the Trust must restore payment of any sums paid under the trust
preferred securities or the guarantee.
Events of Default
An event of default under a guarantee will occur upon the failure of
the Company to perform any of its payment or other obligations under the
guarantee.
The holders of a majority in liquidation amount of the trust
preferred securities relating to a guarantee have the right to direct the
time, method and place of conducting any proceeding for any remedy
available to the guarantee trustee in respect of the guarantee or to direct
the exercise of any trust or power conferred upon the guarantee trustee
under such trust preferred securities. If the guarantee trustee fails to
enforce the guarantee, any holder of trust preferred securities relating to
the guarantee may institute a legal proceeding directly against the Company
to enforce the guarantee trustee's rights under the guarantee, without
first instituting a legal proceeding against the Trust, the guarantee
trustee or any other person or entity. However, if the Company has failed
to make a guarantee payment, a holder of trust preferred securities may
directly institute a proceeding against the Company for enforcement of the
guarantee for the payment. The Company waives any right or remedy to
require that any action be brought first against the Trust or any other
person or entity before proceeding directly against the Company.
Status of the Guarantees
Unless otherwise provided in the applicable prospectus supplement,
the guarantees with respect to the trust preferred securities of the Trust
will constitute unsecured obligations of the Company and will rank (i)
subordinate and junior in right of payment to certain other liabilities of
the Company, as described in the prospectus supplement and (ii) on a parity
with any guarantee now or hereafter entered into by the Company in respect
of the Trust or any other similar financing vehicle sponsored by the
Company.
The terms of the trust preferred securities provide that each holder
of trust preferred securities by acceptance of the trust preferred
securities agrees to the subordination provisions and other terms of the
guarantee as described in the applicable prospectus supplement.
The guarantees will constitute a guarantee of payment and not of
collection, meaning that the guaranteed party may institute a legal
proceeding directly against the guarantor to enforce its rights under the
guarantee without instituting a legal proceeding against any other person
or entity.
Information Concerning the Guarantee Trustee
Prior to the occurrence of a default with respect to a guarantee, the
trust preferred guarantee trustee will undertake to perform only the duties
that are specifically described in the guarantee and, after default, will
exercise the same degree of care as a prudent individual would exercise in
the conduct of his or her own affairs. Subject to such provisions, the
guarantee trustee will be under no obligation to exercise any of the powers
given it by a guarantee at the request of any holder of trust preferred
securities, unless the guarantee trustee is offered reasonable indemnity
against the costs, expenses and liabilities which it might incur in
exercising the powers.
Information concerning the relationship between the guarantee trustee
and the Company will be set forth in the prospectus supplement relating to
the trust preferred securities.
Governing Law
The guarantees will be governed by and construed in accordance with
the laws of the State of New York.
EFFECT OF OBLIGATIONS UNDER THE TRUST PREFERRED SECURITIES
GUARANTEE AND THE SUBORDINATED DEBT SECURITIES
The sole purpose of the Trust is to issue the common securities and
the trust preferred securities evidencing undivided beneficial ownership
interests in the assets of the Trust and to invest the proceeds from the
issuance and sale in a series of subordinated debt securities issued by the
Company.
As long as payments of interest and other payments are made when due
on the subordinated debt securities, the payments will be sufficient to
cover distributions and payments due on the trust securities because of the
following factors:
o the aggregate principal amount of subordinated debt securities
will be equal to the sum of the aggregate stated liquidation
amount of the common securities and the trust preferred
securities;
o the interest rate and the interest and other payment dates on
the subordinated debt securities will match the distribution
rate and distribution and other payment dates for the trust
preferred securities;
o the Company will pay, and the Trust will not be obligated to
pay, directly or indirectly, all costs, expenses, debt, and
obligations of the Trust, other than with respect to the common
securities and the trust preferred securities; and
o the Declaration provides that the trustees of the Trust will
not take or cause or permit the Trust to, among other things,
engage in any activity that is not consistent with the purposes
of the Trust.
Payments of distributions, to the extent funds are available, and
other payments due on the trust preferred securities, to the extent funds
are available, are guaranteed by the Company as and to the extent described
under "Description of the Trust Preferred Securities Guarantees". If the
Company does not make interest payments on the subordinated debt securities
purchased by the Trust, it is expected that the Trust will not have
sufficient funds to pay distributions on the trust preferred securities.
The guarantee does not apply to any payment of distributions unless and
until the Trust has sufficient funds for the payment of such distributions.
The guarantee covers the payment of distributions and other payments
on the trust preferred securities only if and to the extent that the
Company has made a payment of interest or principal on the subordinated
debt securities held by the Trust as its sole asset. The guarantee, when
taken together with the Company's obligations under the subordinated debt
securities held by the Trust and the subordinated indenture and its
obligations under the Declaration, including its obligations to pay costs,
expenses, debts and liabilities of the Trust (other than with respect to
the common securities and trust preferred securities of the Trust), provide
a full and unconditional guarantee on a subordinated basis of amounts due
on the trust preferred securities.
If the Company fails to make interest or other payments on the
subordinated debt securities held by the Trust when due, taking account of
any extension period, the Declaration provides a mechanism whereby the
holders of the trust preferred securities may direct the institutional
trustee to enforce its rights under those subordinated debt securities. If
the institutional trustee fails to enforce its rights under those
subordinated debt securities, a holder of trust preferred securities may
institute a legal proceeding against the Company to enforce the
institutional trustee's rights under the subordinated debt securities
without first instituting any legal proceeding against the institutional
trustee or any other person or entity. However, if an event of default
under the Declaration has occurred and is continuing and such event is due
to the failure of the Company to pay interest or principal on the
subordinated debt securities held by the Trust on the date that interest or
principal is otherwise payable (or in the case of redemption on the
redemption date), then a holder of trust preferred securities may institute
a Direct Action for payment on or after the respective due date.
In connection with a Direct Action, the Company will be subrogated to
the rights of such holder of trust preferred securities under the
Declaration to the extent of any payment made by the Company to such holder
of trust preferred securities in a Direct Action. The Company, under the
guarantee, acknowledges that the guarantee trustee will enforce the
guarantee on behalf of the holders of the trust preferred securities. If
the Company fails to make payments under the guarantee, the guarantee
provides a mechanism whereby the holders of the trust preferred securities
may direct the guarantee trustee to enforce its rights under the guarantee.
Any holder of trust preferred securities may institute a legal proceeding
directly against the Company to enforce the guarantee trustee's rights
under the guarantee without first instituting a legal proceeding against
the Trust, the guarantee trustee, or any other person or entity.
The Company and the Trust believe that the mechanisms and obligations
described above, taken together, provide a full and unconditional guarantee
by the Company on a subordinated basis of payments due on the trust
preferred securities. See "Description of the Trust Preferred Securities
Guarantees -- General."
PLAN OF DISTRIBUTION
The securities offered under this prospectus may be sold in one or
more of the following ways:
o to underwriters for resale to the public or to institutional
investors;
o directly to institutional investors; or
o through agents to the public or to institutional investors.
The related prospectus supplements will set forth the terms of the
offering of the securities including:
o the name or names of any underwriters or agents;
o the purchase price of such securities;
o the proceeds to Norfolk Southern and/or the Trust from such
sale;
o any underwriting discounts, agency fees and other items
constituting underwriters' or agents' compensation;
o any initial public offering price;
o any discounts, concessions or commissions dealers receive from
underwriters; and
o any securities exchanges on which the securities may be listed.
If underwriters are used in the sale, the underwriters will acquire
the securities for their own account, and they may resell the securities,
from time to time, in one or more transactions, including negotiated
transactions, either at a fixed public offering price or at varying prices
determined at the time of sale. Underwriters may receive compensation from
Norfolk Southern and/or the Trust in the form of discounts or commissions,
and to the extent they act as agents, they may also receive commissions
from the purchasers of securities. Underwriters also may sell securities to
or through dealers. Dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters, and to the
extent they act as agents, commissions from the purchasers of securities.
Unless otherwise set forth in a prospectus supplement, the
obligations of the underwriters to purchase any series of securities will
be subject to certain conditions precedent, and the underwriters will be
obligated to purchase all of such series of securities, if any are
purchased.
Underwriters and agents may be entitled, under agreements entered
into with Norfolk Southern and/or the Trust, to be indemnified by Norfolk
Southern and/or the Trust against certain civil liabilities, including
liabilities under the Securities Act of 1933, as amended (the"Securities
Act") or to contribution with respect to payments which the underwriters or
agents may be required to make in respect thereof. Underwriters and agents
may be customers of, engage in transactions with, or perform services for
Norfolk Southern and/or the Trust and their affiliates in the ordinary
course of business.
Other than Norfolk Southern common stock which is listed on the NYSE,
each series of securities will be a new issue of securities and will have
no established trading market. Any common stock sold pursuant to a
prospectus supplement will be listed on the NYSE, subject to official
notice of issuance. Any underwriters to whom securities are sold by Norfolk
Southern and/or the Trust for public offering and sale may make a market in
the securities, but such underwriters will not be obligated to do so and
may discontinue any market making at any time without notice. The
securities, other than common stock, may or may not be listed on a national
securities exchange.
LEGAL OPINIONS
Joseph C. Dimino, General Counsel - Corporate for Norfolk Southern
(or another senior corporate counsel designated by the Company) will pass
upon the validity of the common stock, preferred stock, depositary shares
and debt securities for Norfolk Southern. Skadden, Arps, Slate, Meagher &
Flom LLP, New York will pass upon the validity of the trust preferred
securities for the Trust and upon certain United States federal income
taxation matters for Norfolk Southern and the Trust. The counsel named in
the applicable prospectus supplement will pass upon the validity of the
securities for any underwriter. Mr. Dimino, as General Counsel - Corporate
for Norfolk Southern, participates in various employee benefit and
incentive plans, including stock option plans, offered to employees of
Norfolk Southern.
EXPERTS
KPMG LLP, independent certified public accountants, audited Norfolk
Southern Corporation's consolidated financial statements and related
schedule as of December 31, 2000 and 1999, and for each of the years in the
three-year period ended December 31, 2000, as indicated in their report.
All of these documents have been incorporated by reference into this
prospectus and elsewhere in the registration statement in reliance on the
report of KPMG LLP and upon their authority as experts in auditing and
accounting. The consolidated financial statements of Conrail Inc. as of
December 31, 2000 and 1999, and for each of the years in the two-year
period ended December 31, 2000, appearing in the Annual Report on Form 10-K
of Norfolk Southern Corporation for the year ended December 31, 2000, have
been incorporated by reference into this prospectus and elsewhere in the
registration statement in reliance on the report of KPMG LLP and Ernst &
Young LLP, both independent certified public accountants, given on the
authority of said firms, as experts in auditing and accounting.
The consolidated statements of income, of stockholders' equity and of
cash flows of Conrail Inc. and subsidiaries for the year ended December 31,
1998 incorporated in this prospectus and elsewhere in the registration
statement by reference to the Annual Report on Form 10-K of Norfolk
Southern Corporation for the year ended December 31, 2000 which includes
such financial statements of Conrail Inc. in Exhibit 99, have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the expenses to be borne by Norfolk
Southern in connection with the offerings described in this registration
statement. All such expenses, other than the Securities and Exchange
Commission registration fee, are estimates.
Securities and Exchange Commission Registration Fee........... $ 250,000
Transfer Agents, Trustees and Depositary's Fees and Expenses.. $ 75,000
Printing and Engraving Fees and Expenses...................... $ 100,000
Accounting Fees and Expenses.................................. $ 250,000
Legal Fees, Blue Sky Fees and Expenses........................ $ 600,000
Rating Agency Fees and Expenses............................... $ 100,000
Miscellaneous (including Listing Fees, if applicable)......... $ 15,000
--------
Total......................................................... $ 1,390,000
=========
Item 15. Indemnification of Directors and Officers
The Virginia Stock Corporation Act (the "Virginia Act") provides, in
general, for the indemnification of Norfolk Southern's directors and
officers in a variety of circumstances, which may include indemnification
for liabilities under the Securities Act. Under Sections 13.1-697 and
13.1-702 of the Virginia Act, a Virginia corporation generally is
authorized to indemnify its directors and officers in civil or criminal
actions if they acted in good faith and believed their conduct to be in the
best interests of the corporation and, in the case of criminal actions, had
no reasonable cause to believe that the conduct was unlawful.
Article VI of Norfolk Southern's Restated Articles of Incorporation
provides, in general, for mandatory indemnification of directors and
officers (including former directors and officers), to the fullest extent
permitted by Virginia law, against liability incurred by them in
proceedings by third parties, or by or on behalf of Norfolk Southern
itself, by reason of the fact that such person is, or was, a director or
officer of Norfolk Southern, or is, or was, serving at the request of
Norfolk Southern as a director, officer, employee, agent or otherwise of
another corporation. However, the Virginia Act does not permit indemnity
for willful misconduct or for a knowing violation of the criminal law.
Article VI of Norfolk Southern's Restated Articles of Incorporation
also provides that in every instance, and to the fullest extent, permitted
by Virginia corporate law in effect from time to time, Norfolk Southern
directors and officers (including former directors and officers) shall not
be liable to Norfolk Southern or its shareholders. Under current Virginia
law, this provision cannot limit liability for willful misconduct or for a
knowing violation either of the criminal law or of any federal or state
securities law.
Norfolk Southern directors and officers are covered by certain
policies providing directors' and officers' liability insurance. In
general, the insurers are obliged to make payments under these policies
only if Norfolk Southern may indemnify a director or officer and does not
or cannot do so. The policies are issued on a "claims made" basis, and
apply as well to service performed by such individuals at the direction of
Norfolk Southern as a director, officer, employee, agent or otherwise of
another corporation.
In the distribution and underwriting agreements, filed or to be filed
as Exhibits 1.1-1.2 hereto, underwriters and agents will agree to
indemnify, under certain conditions, Norfolk Southern, its directors,
certain of its officers and persons who control Norfolk Southern within the
meaning of the Securities Act against certain liabilities.
The Declaration limits liability to the Trust and certain persons and
provides for the indemnification by the Trust or Norfolk Southern of
trustees, their officers, directors and employees and certain other
persons.
Item 16. Exhibits
The following is a list of all exhibits filed as a part of this
registration statement on Form S-3:
Exhibit
Number Description of Exhibits
1.1 Form of Distribution Agreement; incorporated by reference to Exhibit
1 to Norfolk Southern Corporation's Registration Statement on Form
S-3 (No. 33-38595).
1.2 Forms of Underwriting Agreements with respect to each series of
securities registered hereunder and issued pursuant hereto will be
filed as an exhibit to a Current Report of Norfolk Southern
Corporation on Form 8-K and incorporated herein by reference.
4.1 Senior Indenture, dated January 15, 1991, between Norfolk Southern
Corporation's and U.S. Bank Trust National Association, formerly
known as First Trust of New York, National Association, as successor
to the trustee; incorporated by reference to Exhibit 4 to Norfolk
Southern Corporation's Registration Statement on Form S-3 (No.
33-38595).
4.2 Form of Subordinated Indenture between Norfolk Southern Corporation
and U.S. Bank Trust National Association, formerly known as First
Trust of New York, National Association, as trustee; incorporated by
reference to Exhibit 4.2 to Norfolk Southern Corporation Registration
Statement on Form S-3 (No. 333-20203).
4.3 The form or forms of securities with respect to each particular
series of securities registered hereunder and issued pursuant hereto
will be filed as an exhibit to a Current Report of Norfolk Southern
Corporation on Form 8-K and incorporated herein by reference.
4.4 The form of any certificate of designation, or other similar
document, with respect to any preferred stock registered hereunder
and issued pursuant hereto will be filed as an exhibit to a Current
Report of Norfolk Southern Corporation on Form 8-K and incorporated
herein by reference.
4.5 Form of Depositary Agreement for depositary shares, with respect to
any particular series of depositary shares offered pursuant hereto,
will be filed as an exhibit to a Current Report of Norfolk Southern
Corporation on Form 8-K and incorporated herein by reference.
4.6 Rights Agreement, dated as of September 26, 2000, between Norfolk
Southern Corporation and The Bank of New York; incorporated by
reference to Exhibit 4 to the Current Report on Form 8-K of Norfolk
Southern Corporation, dated September 26, 2000.
4.7 Certificate of Trust of Norfolk Southern Capital Trust I.
4.8 Declaration of Trust of Norfolk Southern Capital Trust I.
4.9 Form of Amended and Restated Declaration of Trust to be used in
connection with the issuance of the trust preferred securities will
be filed as an exhibit to a Current Report of Norfolk Southern
Corporation on Form 8-K and incorporated herein by reference.
4.10 Form of Guarantee with respect to the trust preferred securities will
be filed as an exhibit to a Current Report of Norfolk Southern
Corporation on Form 8-K and incorporated herein by reference.
5.1 Opinion of Joseph C. Dimino, Esq., General Counsel - Corporate of
Norfolk Southern Corporation, will be filed as an exhibit to a
Current Report of Norfolk Southern Corporation on Form 8-K and
incorporated herein by reference.
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP will be filed as
an exhibit to a Current Report of Norfolk Southern Corporation on
Form 8-K and incorporated herein by reference.
8.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP as to certain
federal tax matters will be filed as an exhibit to a Current Report
of Norfolk Southern Corporation on Form 8-K and incorporated herein
by reference.
12.1 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Joseph C. Dimino, Esq., General Counsel - Corporate of
Norfolk Southern Corporation (included in Exhibit 5.1).
23.2 Consent of KPMG LLP.
23.3 Consent of KPMG LLP and Ernst & Young LLP.
23.4 Consent of PricewaterhouseCoopers LLP.
23.5 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 5.2).
23.6 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 8.1).
24.1 Powers of Attorney (see signature page).
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of U.S. Bank Trust National Association, formerly
known as First Trust of New York, National Association, as successor
to the trustee, with respect to the senior indenture, and as trustee,
with respect to the subordinated indenture.
25.2 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of the property trustee under the Amended and
Restated Declaration of Trust will be filed as an exhibit to a
Current Report of Norfolk Southern Corporation on Form 8-K and
incorporated herein by reference.
25.3 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of the guarantee trustee under the trust guarantee
pertaining to Norfolk Southern Capital Trust I will be filed as an
exhibit to a Current Report of Norfolk Southern Corporation on Form
8-K and incorporated herein by reference.
Item 17. Undertakings
Each of the undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: (i) to
include any prospectus required by section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; (iii) to include any material information
with respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement, provided, however, that paragraphs (i) and (ii) do
not apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of the
Exchange Act that are incorporated by reference in the registration
statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering;
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof;
(5) That, (i) for purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it was declared
effective and (ii) for the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof; and
(6) Each of the undersigned registrants hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee
to act under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Act.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrants pursuant to the provisions set forth in Item 15,
or otherwise, the registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrants of expenses incurred or paid by a director,
officer or controlling person of the registrants in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrants will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Norfolk, in the Commonwealth of
Virginia on March 29, 2001.
NORFOLK SOUTHERN CORPORATION
By /s/ David R. Goode
--------------------------------
Name: David R. Goode
Title: Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes J. Gary
Lane, Henry C. Wolf and W. J. Romig, and each and any one of them, as
attorneys-in-fact and agents, with full powers of substitution, to sign on
his or her behalf, individually and in the capacities stated below, and to
file any and all amendments (including post-effective amendments) to this
registration statement (or any other registration statement for the same
offering that is to be effective upon filing pursuant to Rule 462(b) under
the Securities Act) with the Securities and Exchange Commission, granting
to said attorneys-in-fact and agents full power and authority to perform
any other act on behalf of the undersigned required to be done in the
premises, as fully to all intents and purposes as such person might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact, or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- ------------------------ ------------------------ ------------------
/s/ David R. Goode Chairman, President and March 29, 2001
- ------------------------
David R. Goode Chief Executive Officer and
Director (Principal Executive
Officer)
/s/ Henry C. Wolf Vice Chairman and Chief March 29, 2001
- ------------------------
Henry C. Wolf Financial Officer (Principal
Financial Officer)
/s/ John P. Rathbone Senior Vice President and March 29, 2001
- ----------------------
John P. Rathbone Controller (Principal
Accounting Officer)
/s/ Gerald L. Baliles Director March 29, 2001
- -----------------------
Gerald L. Baliles
/s/ Carroll A. Campbell, Jr. Director March 29, 2001
- ----------------------------
Carroll A. Campbell, Jr.
/s/ Gene R. Carter Director March 29, 2001
- --------------------
Gene R. Carter
/s/ Alston D. Correll Director March 29, 2001
- -----------------------
Alston D. Correll
/s/ Landon Hilliard Director March 29, 2001
- ---------------------
Landon Hilliard
/s/ Steven F. Leer Director March 29, 2001
- --------------------
Steven F. Leer
/s/ Jane Margaret O'Brien Director March 29, 2001
- ---------------------------
Jane Margaret O'Brien
/s/ Harold W. Pote Director March 29, 2001
- --------------------
Harold W. Pote
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Norfolk, in the Commonwealth of
Virginia on March 29, 2001.
NORFOLK SOUTHERN CAPITAL TRUST I
By: /s/ William J. Romig
------------------------------
Name: William J. Romig
Title: Regular Trustee
By: /s/ John P. Rathbone
------------------------------
Name: John P. Rathbone
Title: Regular Trustee
EXHIBIT INDEX
1.1 Form of Distribution Agreement; incorporated by reference to Exhibit
1 to Norfolk Southern Corporation's Registration Statement on Form
S-3 (No. 33-38595).
1.2 Forms of Underwriting Agreements with respect to each series of
securities registered hereunder and issued pursuant hereto will be
filed as an exhibit to a Current Report of Norfolk Southern
Corporation on Form 8-K and incorporated herein by reference.
4.1 Senior Indenture, dated January 15, 1991, between Norfolk Southern
Corporation's and U.S. Bank Trust National Association, formerly
known as First Trust of New York, National Association, as successor
to the trustee; incorporated by reference to Exhibit 4 to Norfolk
Southern Corporation's Registration Statement on Form S-3 (No.
33-38595).
4.2 Form of Subordinated Indenture between Norfolk Southern Corporation
and U.S. Bank Trust National Association, formerly known as First
Trust of New York, National Association, as trustee; incorporated by
reference to Exhibit 4.2 to Norfolk Southern Corporation Registration
Statement on Form S-3 (No. 333-20203).
4.3 The form or forms of securities with respect to each particular
series of securities registered hereunder and issued pursuant hereto
will be filed as an exhibit to a Current Report of Norfolk Southern
Corporation on Form 8-K and incorporated herein by reference.
4.4 The form of any certificate of designation, or other similar
document, with respect to any preferred stock registered hereunder
and issued pursuant hereto will be filed as an exhibit to a Current
Report of Norfolk Southern Corporation on Form 8-K and incorporated
herein by reference.
4.5 Form of Depositary Agreement for depositary shares, with respect to
any particular series of depositary shares offered pursuant hereto,
will be filed as an exhibit to a Current Report of Norfolk Southern
Corporation on Form 8-K and incorporated herein by reference.
4.6 Rights Agreement, dated as of September 26, 2000, between Norfolk
Southern Corporation and The Bank of New York; incorporated by
reference to Exhibit 4 to the Current Report on Form 8-K of Norfolk
Southern Corporation, dated September 26, 2000.
4.7 Certificate of Trust of Norfolk Southern Capital Trust I.
4.8 Declaration of Trust of Norfolk Southern Capital Trust I.
4.9 Form of Amended and Restated Declaration of Trust to be used in
connection with the issuance of the Trust Preferred Securities will
be filed as an exhibit to a Current Report of Norfolk Southern
Corporation on Form 8-K and incorporated herein by reference.
4.10 Form of Guarantee with respect to the Trust Preferred Securities will
be filed as an exhibit to a Current Report of Norfolk Southern
Corporation on Form 8-K and incorporated herein by reference.
5.1 Opinion of Joseph C. Dimino, Esq., General Counsel - Corporate of
Norfolk Southern Corporation will be filed as an exhibit to a Current
Report of Norfolk Southern Corporation on Form 8-K and incorporated
herein by reference.
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP will be filed as
an exhibit to a Current Report of Norfolk Southern Corporation on
Form 8-K and incorporated herein by reference.
8.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP as to certain
federal tax matters will be filed as an exhibit to a Current Report
of Norfolk Southern Corporation on Form 8-K and incorporated herein
by reference.
12.1 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Joseph C. Dimino, Esq., General Counsel - Corporate of
Norfolk Southern Corporation (included in Exhibit 5.1).
23.2 Consent of KPMG LLP.
23.3 Consent of KPMG LLP and Ernst & Young LLP.
23.4 Consent of PricewaterhouseCoopers LLP.
23.5 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 5.2).
23.6 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 8.1).
24.1 Powers of Attorney (see signature page).
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of U.S. Bank Trust National Association, formerly
known as First Trust of New York, National Association, as successor
to the trustee, with respect to the senior indenture, and as trustee,
with respect to the subordinated indenture.
25.2 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of the property trustee under the Amended and
Restated Declaration of Trust will be filed as an exhibit to a
Current Report of Norfolk Southern Corporation on Form 8-K and
incorporated herein by reference.
25.3 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of the guarantee trustee under the trust guarantee
pertaining to Norfolk Southern Capital Trust I will be filed as an
exhibit to a Current Report of Norfolk Southern Corporation on Form
8-K and incorporated herein by reference.
EXHIBIT 4.7
CERTIFICATE OF TRUST
The undersigned, the trustees of NORFOLK SOUTHERN CAPITAL TRUST
I, desiring to form a business trust pursuant to Delaware Business Trust
Act, 12 Del. Code ss. 3810, hereby certify as follows:
i. The name of the business trust being formed hereby is
"Norfolk Southern Capital Trust I." (the "Trust").
ii. The name and business address of the trustee of the Trust
which has its principal place of business in the State of
Delaware is as follows:
U.S. Bank Trust National Association
300 Delaware Avenue
Suite 812
Wilmington, DE 19801
iii. This Certificate of Trust shall be effective as of the
date of filing.
Dated: March 28, 2001
/s/ William J. Romig
-----------------------------
Name: William J. Romig
Title: Regular Trustee
/s/ John P. Rathbone
------------------------------
Name: John P. Rathbone
Title: Regular Trustee
/s/ Henry C. Wolf
-------------------------------
Name: Henry C. Wolf
Title: Regular Trustee
U.S. Bank Trust National Association,
as Delaware Trustee
By: /s/ Patrick J. Crowley
-----------------------------
Name: Patrick J. Crowley
Title: Vice President