EXHIBIT 4.8
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DECLARATION OF TRUST
Norfolk Southern Capital Trust I
Dated as of March 28, 2001
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.......................................1
ARTICLE II
ORGANIZATION
Section 2.1 Name..............................................4
Section 2.2 Office............................................4
Section 2.3 Purpose...........................................4
Section 2.4 Authority.........................................4
Section 2.5 Title to Property of the Trust....................5
Section 2.6 Powers of the Trustees............................5
Section 2.7 Filing of Certificate of Trust....................6
Section 2.8 Duration of Trust.................................7
Section 2.9 Responsibilities of the Sponsor...................7
Section 2.10 Declaration Binding on Securities Holders.........7
ARTICLE III
TRUSTEES
Section 3.1 Trustees..........................................8
Section 3.2 Regular Trustees..................................8
Section 3.3 Delaware Trustee..................................9
Section 3.4 Property Trustee..................................9
Section 3.5 Not Responsible for Recitals or Sufficiency
of Declaration....................................9
Section 3.6 Appointment, Removal and Resignation
of Trustee.......................................10
ARTICLE IV
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS
Section 4.1 Exculpation......................................11
Section 4.2 Fiduciary Duty...................................12
Section 4.3 Indemnification..................................13
Section 4.4 Outside Businesses...............................17
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
Section 5.1 Amendments.......................................17
Section 5.2 Termination of Trust.............................18
Section 5.3 Governing Law....................................18
Section 5.4 Headings.........................................18
Section 5.5 Successors and Assigns...........................18
Section 5.6 Partial Enforceability...........................19
Section 5.7 Counterparts; Facsimiles.........................19
DECLARATION OF TRUST
OF
NORFOLK SOUTHERN Capital Trust I
March 28, 2001
DECLARATION OF TRUST ("Declaration"), dated and effective as of
March 28, 2001, by the Trustees (as defined herein), the Sponsor (as
defined herein), and by the holders, from time to time, of undivided
beneficial interests in the Trust to be issued pursuant to this
Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a
trust (the "Trust") pursuant to the Business Trust Act (as defined herein)
for the sole purpose of issuing and selling certain securities representing
undivided beneficial interests in the assets of the Trust and investing the
proceeds thereof in certain Debentures (as defined herein) of the Debenture
Issuer (as defined herein);
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust constitute a Business Trust (as defined herein) under the
Business Trust Act and that this Declaration constitute the governing
instrument of the Trust, the Trustees declare that all assets contributed
to the Trust will be held in trust for the exclusive benefit of the
holders, from time to time, of the securities representing undivided
beneficial interests in the assets of the Trust issued hereunder, subject
to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration, but not defined
in the preamble above, have the respective meanings assigned to them
in this Section 1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration"
are to this Declaration of Trust as modified, supplemented or amended
from time to time;
(d) all references in this Declaration to Articles and Sections
are to Articles and Sections of this Declaration unless otherwise
specified; and
(e) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to
close.
"Business Trust" shall have the meaning ascribed to it in the
Business Trust Act.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Codess.3801 et seq., as it may be amended from time
to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be
set out in any amendment to this Declaration.
"Company Indemnified Person" means (a) any Regular Trustee; (b)
any Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of
any Regular Trustee; or (d) any employee or agent of the Trust or its
Affiliates.
"Covered Person" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii)
the Trust's Affiliates and (b) any holder of Securities.
"Debenture Issuer" means the Parent in its capacity as the
issuer of the Debentures under the Indenture.
"Debenture Trustee" means the trustee under the Indenture until
a successor is appointed thereunder, and thereafter means such successor
trustee.
"Debentures" means the series of debentures to be issued by the
Debenture Issuer and acquired by the Trust.
"Delaware Trustee" has the meaning set forth in Section 3.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 4.3(b).
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the indenture to be entered into between the
Parent and the Debenture Trustee and any indenture supplemental thereto
pursuant to which the Debentures are to be issued.
"Parent" means Norfolk Southern Corporation, a Virginia
corporation or any successor entity in a merger.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other
entity of whatever nature.
"Preferred Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be
set out in any amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware
Trustee and the Institutional Trustee (as hereinafter defined).
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Sponsor" means the Parent in its capacity as sponsor of the
Trust.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office
in accordance with the terms hereof, and all other Persons who may from
time to time be duly appointed, qualified and serving as Trustees in
accordance with the provisions hereof, and references herein to a Trustee
or the Trustees shall refer to such Person or Persons solely in their
capacity as trustees hereunder.
ARTICLE II
ORGANIZATION
Section 2.1 Name.
The Trust created by this Declaration is named "Norfolk
Southern Capital Trust I." The Trust's activities may be conducted under
the name of the Trust or any other name deemed advisable by the Regular
Trustees.
Section 2.2 Office.
The address of the principal office of the Trust is c/o Norfolk
Southern Corporation, Three Commercial Place, Norfolk, Virginia 23510. At
any time, the Regular Trustees may designate another principal office.
Section 2.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Securities and use the proceeds from such sale to acquire
the Debentures, and (b) except as otherwise limited herein, to engage in
only those other activities necessary, or incidental thereto. The Trust
shall not borrow money, issue debt or reinvest proceeds derived from
investments, pledge any of its assets, or otherwise undertake (or permit to
be undertaken) any activity that would cause the Trust not to be classified
for United States federal income tax purposes as a grantor trust.
Section 2.4 Authority.
Subject to the limitations provided in this Declaration, the
Regular Trustees shall have exclusive and complete authority to carry out
the purposes of the Trust. An action taken by the Regular Trustees in
accordance with their powers shall constitute the act of and serve to bind
the Trust. In dealing with the Regular Trustees acting on behalf of the
Trust, no person shall be required to inquire into the authority of the
Regular Trustees to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the Regular
Trustees as set forth in this Declaration.
Section 2.5 Title to Property of the Trust.
Legal title to all assets of the Trust shall be vested in the
Trust.
Section 2.6 Powers of the Trustees.
The Regular Trustees shall have the exclusive power and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however,
that the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities, and,
provided further, that there shall be no interests in the Trust other
than the Securities and the issuance of the Securities shall be
limited to a one-time, simultaneous issuance of both Preferred
Securities and Common Securities;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission a registration
statement on Form S-3 prepared by the Sponsor, including any
amendments thereto in relation to the Preferred Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be
necessary in order to qualify or register all or part of the
Preferred Securities in any State in which the Sponsor has
determined to qualify or register such Preferred Securities for
sale;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange or any other national
stock exchange or the Nasdaq National Market for listing upon
notice of issuance of any Preferred Securities;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto,
prepared by the Sponsor relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange Act;
and
(v) execute and enter into an underwriting agreement and
pricing agreement providing for the sale of the Preferred
Securities;
(vi) execute and deliver letters, documents, or instruments
with the Depository Trust Company relating to the Preferred
Securities;
(c) to employ or otherwise engage employees and agents (who may
be designated as officers with titles) and managers, contractors,
advisors, and consultants and provide for reasonable compensation for
such services;
(d) to incur expenses which are necessary or incidental to carry
out any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform all duties
and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing.
Section 2.7 Filing of Certificate of Trust.
On or after the date of execution of this Declaration, the
Trustees shall cause the filing of the Certificate of Trust for the Trust
in the form attached hereto as Exhibit A with the Secretary of State of the
State of Delaware.
Section 2.8 Duration of Trust.
The Trust, absent termination pursuant to the provisions of
Section 5.2, shall have existence for forty (40) years from the date
hereof.
Section 2.9 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility
to engage in the following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred
Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate action
to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which
must be taken by the Trust, and advise the Trust of actions it must
take, and prepare for execution and filing any documents to be
executed and filed by the Trust, as the Sponsor deems necessary or
advisable in order to comply with the applicable laws of any such
States;
(c) to prepare for filing by the Trust an application to the
New York Stock Exchange or any other national stock exchange or the
Nasdaq National Market for listing upon notice of issuance of any
Preferred Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of
the class of Preferred Securities under Section 12(b) of the Exchange
Act, including any amendments thereto; and
(e) to negotiate the terms of an underwriting agreement and
pricing agreement providing for the sale of the Preferred Securities.
Section 2.10 Declaration Binding on Securities Holders.
Every Person by virtue of having become a holder of a Security
or any interest therein in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and
shall be bound by, this Declaration.
ARTICLE III
TRUSTEES
Section 3.1 Trustees.
The number of Trustees initially shall be four (4), and
thereafter the number of Trustees shall be such number as shall be fixed
from time to time by a written instrument signed by the Sponsor. The
Sponsor is entitled to appoint or remove without cause any Trustee at any
time; provided further that one Trustee, in the case of a natural person,
shall be a person who is a resident of the State of Delaware or that, if
not a natural person, is an entity which has its principal place of
business in the State of Delaware (the "Delaware Trustee"); provided
further that there shall be at least one trustee who is an employee or
officer of, or is affiliated with the Parent (a "Regular Trustee").
Section 3.2 Regular Trustees.
The initial Regular Trustees shall be:
Henry C. Wolf
William J. Romig
John P. Rathbone
(a) Except as expressly set forth in this Declaration, any
power of the Regular Trustees may be exercised by, or with the
consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act, any Regular
Trustee is authorized to execute on behalf of the Trust any documents
which the Regular Trustees have the power and authority to cause the
Trust to execute pursuant to Section 2.6; provided, that, the
registration statement referred to in Section 2.6(b)(i), including
any amendments thereto, shall be signed by a majority of the Regular
Trustees; and
(c) a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of
21 his or her power for the purposes of signing any documents which
the Regular Trustees have power and authority to cause the Trust to
execute pursuant to Section 2.6.
Section 3.3 Delaware Trustee.
The initial Delaware Trustee shall be:
U.S. Bank Trust National Association
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers, nor
shall the Delaware Trustee have any of the duties and responsibilities of
the Regular Trustees described in this Declaration. The Delaware Trustee
shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Business Trust Act. Notwithstanding
anything herein to the contrary, the Delaware Trustee shall not be liable
for the acts or omissions to act of the Trust or of the Regular Trustees
except such acts as the Delaware Trustee is expressly obligated or
authorized to undertake under this Declaration or the Business Trust Act
and except for the gross negligence or willful misconduct of the Delaware
Trustee.
Section 3.4 Property Trustee.
Prior to the issuance of the Preferred Securities and Common
Securities, the Sponsor shall appoint another trustee (the "Institutional
Trustee") meeting the requirements of an eligible trustee of the Trust
Indenture Act of 1939, as amended, by the execution of an amendment to this
Declaration executed by the Regular Trustees, the Sponsor, the
Institutional Trustee and the Delaware Trustee.
Section 3.5 Not Responsible for Recitals or
Sufficiency of Declaration.
The recitals contained in this Declaration shall be taken as
the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part
thereof. The Trustees make no representations as to the validity or
sufficiency of this Declaration.
Section 3.6 Appointment, Removal and Resignation
of Trustee.
(a) Subject to Section 3.6(b), Trustees may be appointed or
removed without cause at any time except during an event of default:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the
holders of a majority in liquidation amount of the Common Securities
voting as a class at a meeting of the holders of the Common
Securities.
(b)(i) The Trustee that acts as Institutional Trustee shall not
be removed in accordance with Section 3.6(a) until a successor
Institutional Trustee (a "Successor Institutional Trustee") has been
appointed and has accepted such appointment by written instrument executed
by such Successor Institutional Trustee and delivered to the Regular
Trustees and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not be
removed in accordance with Section 3.6(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under
Sections 3.1 and 3.3 (a "Successor Delaware Trustee") has been
appointed and has accepted such appointment by written instrument
executed by such Successor Delaware Trustee and delivered to the
Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or
resignation. Any Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing signed by the Trustee
and delivered to the Sponsor and the Trust, which resignation shall take
effect upon such delivery or upon such later date as is specified therein;
provided, however, that:
(i) No such resignation of the Trustee that acts as the
Institutional Trustee shall be effective:
(1) until a Successor Institutional Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Institutional Trustee and delivered
to the Trust, the Sponsor and the resigning Institutional
Trustee; or
(2) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the holders
of the Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware
Trustee has been appointed and has accepted such appointment by
instrument executed by such Successor Delaware Trustee and delivered
to the Trust, the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Delaware Trustee or Successor
Institutional Trustee as the case may be if the Institutional Trustee or
the Delaware Trustee delivers an instrument of resignation in accordance
with this Section 3.6.
(e) If no Successor Institutional Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in
this Section 3.6 within 60 days after delivery of an instrument of
resignation or removal, the Institutional Trustee or Delaware Trustee
resigning or being removed, as applicable, may petition any court of
competent jurisdiction for appointment of a Successor Institutional Trustee
or Successor Delaware Trustee. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper and prescribe, appoint a
Successor Institutional Trustee or Successor Delaware Trustee, as the case
may be.
(f) No Institutional Trustee or Delaware Trustee shall be
liable for the acts or omissions to act of any Successor Institutional
Trustee or Successor Delaware Trustee, as the case may be.
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
Section 4.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered
Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good
faith on behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of the authority conferred
on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's negligence or
willful misconduct with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the Trust
by any Person as to matters the Indemnified Person reasonably
believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on
behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and
amount of assets from which distributions to holders of Securities
might properly be paid.
Section 4.2 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not be liable
to the Trust or to any other Covered Person for its good faith
reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties
and liabilities of such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provide terms that
are, fair and reasonable to the Trust or any holder of
Securities,
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative
interest of each party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits and burdens relating
to such interests, any customary or accepted industry practices, and any
applicable generally accepted accounting practices or principles. In the
absence of bad faith by the Indemnified Person, the resolution, action or
term so made, taken or provided by the Indemnified Person shall not
constitute a breach of this Declaration or any other agreement contemplated
herein or of any duty or obligation of the Indemnified Person at law or in
equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to consider
such interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the Trust
or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express
standard and shall not be subject to any other or different
standard imposed by this Declaration or by applicable law.
Section 4.3 Indemnification.
(a) (i) The Sponsor shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a
party or who is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or
in the right of the Trust) by reason of the fact that he is or was a
Company Indemnified Person against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the Company
Indemnified Person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of
the Trust, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is
a party or who is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the Trust to procure a judgment in its favor by reason
of the fact that he is or was a Company Indemnified Person
against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed
to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue or
matter as to which such Company Indemnified Person shall have
been adjudged to be liable to the Trust unless and only to the
extent that the Court of Chancery of Delaware or the court in
which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses
which such Court of Chancery or such other court shall deem
proper.
(iii) To the extent that a Company Indemnified Person
shall be successful on the merits or otherwise (including
dismissal of an action without prejudice or the settlement of
an action without admission of liability) in defense of any
action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 4.3(a), or in defense of any claim, issue
or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection
therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of
this Section 4.3(a) (unless ordered by a court) shall be made
by the Sponsor only as authorized in the specific case upon a
determination that indemnification of the Company Indemnified
Person is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (i) and
(ii). Such determination shall be made (1) by the Regular
Trustees by a majority vote of a quorum consisting of such
Regular Trustees who were not parties to such action, suit or
proceeding, (2) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a written opinion, or
(3) by the holder of the Common Securities of the Trust.
(v) Expenses (including attorneys' fees) incurred by a
Company Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 4.3(a)
shall be paid by the Sponsor in advance of the final
disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such Company Indemnified
Person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Sponsor as authorized in this Section 4.3(a). Notwithstanding
the foregoing, no advance shall be made by the Sponsor if a
determination is reasonably and promptly made (i) by the
Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent legal
counsel in a written opinion or (iii) the holder of the Common
Securities of the Trust, that, based upon the facts known to
the Regular Trustees, counsel or the holder of the Common
Securities at the time such determination is made, such Company
Indemnified Person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best
interests of the Trust, or, with respect to any criminal
proceeding, that such Company Indemnified Person believed or
had reasonable cause to believe his conduct was unlawful. In no
event shall any advance be made in instances where the Regular
Trustees, independent legal counsel or the holder of the Common
Securities reasonably determine that such person deliberately
breached his duty to the Trust or its Common or Preferred
Security holders.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of
this Section 4.3(a) shall not be deemed exclusive of any other
rights to which one seeking indemnification and advancement of
expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Sponsor or
Preferred Security holders of the Trust or otherwise, both as
to action in his official capacity and as to action in another
capacity while holding such office. All rights to
indemnification under this Section 4.3(a) shall be deemed to be
provided by a contract between the Sponsor and each Company
Indemnified Person who serves in such capacity at any time
while this Section 4.3(a) is in effect. Any repeal or
modification of this Section 4.3(a) shall not affect any rights
or obligations then existing.
(vii) The Sponsor or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company
Indemnified Person against any liability asserted against him
and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Sponsor would have the power
to indemnify him against such liability under the provisions of
this Section 4.3(a).
(viii) For purposes of this Section 4.3(a), references to
"the Trust" shall include, in addition to the resulting or
surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a consolidation or
merger, so that any person who is or was a director, trustee,
officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a
director, trustee, officer, employee or agent of another
entity, shall stand in the same position under the provisions
of this Section 4.3(a) with respect to the resulting or
surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 4.3(a) shall,
unless otherwise provided when authorized or ratified, continue
as to a person who has ceased to be a Company Indemnified
Person and shall inure to the benefit of the heirs, executors
and administrators of such a person.
(b) The Sponsor agrees to indemnify (i) the Delaware Trustee,
(ii) any Affiliate of the Delaware Trustee, and (iii) any officers,
directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Delaware
Trustee (each of the Persons in clauses (i) through (iii) being
referred to as a "Fiduciary Indemnified Person") for, and to hold
each Fiduciary Indemnified Person harmless against, any loss,
liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs
and expenses (including reasonable legal fees and expenses) of
defending itself against, or investigating, any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder. The obligation to indemnify as set forth in this
Section 4.3(b) shall survive the termination of this Declaration and
the resignation of the Delaware Trustee.
Section 4.4 Outside Businesses.
Any Covered Person, the Sponsor and the Delaware Trustee may
engage in or possess an interest in other business ventures of any nature
or description, independently or with others, similar or dissimilar to the
business of the Trust, and the Trust and the holders of Securities shall
have no rights by virtue of this Declaration in and to such independent
ventures or the income or profits derived therefrom and the pursuit of any
such venture, even if competitive with the business of the Trust. No
Covered Person, the Sponsor nor the Delaware Trustee shall be obligated to
present any particular investment or other opportunity to the Trust even if
such opportunity is of a character that, if presented to the Trust, could
be taken by the Trust, and any Covered Person, the Sponsor and the Delaware
Trustee shall have the right to take for its own account (individually or
as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person and the Delaware
Trustee may engage or be interested in any financial or other transaction
with the Sponsor or any Affiliate of the Sponsor, or may act as depositary
for, trustee or agent for or may act on any committee or body of holders
of, securities or other obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
Section 5.1 Amendments.
At any time before the issue of any Securities, this
Declaration may be amended by, and only by, a written instrument executed
by all of the Regular Trustees and the Sponsor.
Section 5.2 Termination of Trust.
(a) The Trust shall terminate and be of no further force or
effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or
its equivalent with respect to the Sponsor or the revocation of
the Sponsor's charter or of the Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dissolution
of the Sponsor, or the Trust; and
(iv) before the issue of any Securities, with the consent
of all of the Regular Trustees and the Sponsor; and
(b) as soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall file a certificate
of cancellation with the Secretary of State of the State of Delaware.
Section 5.3 Governing Law.
This Declaration and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
Section 5.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
Section 5.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named
or referred to, the successors and assigns of such party shall be deemed to
be included, and all covenants and agreements in this Declaration by the
Sponsor and the Trustees shall bind and inure to the benefit of their
respective successors and assigns, whether so expressed.
Section 5.6 Partial Enforceability.
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to
persons or circumstances other than those to which it is held invalid,
shall not be affected thereby.
Section 5.7 Counterparts; Facsimiles.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature
pages. Transmission by fax of an executed counterpart shall constitute due
and sufficient delivery of such counterpart. All of such counterpart
signature pages shall be read as though one, and they shall have the same
force and effect as though all of the signers had signed a single signature
page.
IN WITNESS WHEREOF, the undersigned have caused these presents
to be executed as of the day and year first above written.
/s/ William J. Romig
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Name: William J. Romig
Title: Regular Trustee
/s/ John P. Rathbone
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Name: John P. Rathbone
Title: Regular Trustee
/s/ Henry C. Wolf
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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
NORFOLK SOUTHERN
CORPORATION, as Sponsor
By: /s/ William J. Romig
-----------------------------------
Name: William J. Romig
Title: Vice President and Treasurer
Exhibit A
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. C.ss. 3810, hereby certify as follows:
(a) The name of the business trust being formed hereby is
"Norfolk Southern Capital Trust I." (the "Trust").
(b) 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
(c) This Certificate of Trust shall be effective as of the date of
filing.
Dated: March 28, 2001
-----------------------------------
Name:
Title: Regular Trustee
-----------------------------------
Name:
Title: Regular Trustee
-----------------------------------
Name:
Title: Regular Trustee
U.S. Bank Trust National Association,
as Delaware Trustee
By:
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Name:
Title: