1
AMENDED AND RESTATED VOTING TRUST AGREEMENT
THIS AMENDED AND RESTATED VOTING TRUST AGREEMENT, dated as of March 7,
1997, by and among CSX Corporation, a Virginia corporation ("Parent"), Green
Acquisition Corp., a Pennsylvania corporation and a wholly-owned subsidiary of
Parent ("Acquiror"), and Deposit Guaranty National Bank, a national banking
association (the "Trustee"),
W I T N E S S E T H:
WHEREAS, Parent, Acquiror and Conrail Inc., a Pennsylvania corporation
(the "Company"; which term shall instead refer, from and after the effectiveness
of the Merger, to the corporation resulting from the Merger), have entered into
an Agreement and Plan of Merger, dated as of October 14, 1996 (as it has been
and may be amended from time to time, the "Merger Agreement"; capitalized terms
used but not defined herein shall have the meanings set forth therein), pursuant
to which (i) Acquiror was to commence and did commence the Offer and Second
Offer (collectively, the "Tender Offer") for shares of Common Stock of the
Company (all such shares accepted for payment pursuant to the Tender Offer or
otherwise received, acquired or purchased by or on behalf of Parent or Acquiror,
including pursuant to the Option Agreement, the "Acquired Shares"), and (ii) a
subsidiary of Acquiror will merge into the Company pursuant to the Merger.
2
-2-
WHEREAS, Parent, Acquiror and the Trustee have entered into a Voting
Trust Agreement, dated as of October 15, 1996 (the "Original Voting Trust
Agreement");
WHEREAS, Parent, Acquiror and the Company entered into a First
Amendment to the Merger Agreement dated November 5, 1996, a Second Amendment
thereto dated December 18, 1996, and a Third Amendment thereto dated March 7,
1997;
WHEREAS, Parent, Acquiror and the Company have entered into a Stock
Option Agreement, dated as of October 14, 1996 (as it may be amended from time
to time, the "Option Agreement") providing Parent and Acquiror the option to
purchase 15,955,477 shares of common stock of the Company;
WHEREAS, the parties intend that, prior to the authorization and
approval of the Surface Transportation Board (the "STB"), neither Parent nor
Acquiror nor any of their affiliates shall control the Company and the Company
shall not have as a director any officer, director, nominee or representative of
the Parent, the Acquiror or any of their affiliates;
WHEREAS, Parent and Acquiror wish (and are obligated pursuant to the
Merger Agreement and the Option Agreement), simultaneously with the acceptance
for payment of Acquired Shares pursuant to the Tender Offer, the Option
Agreement, the Merger, or otherwise to deposit such Shares of Common Stock in an
independent, irrevocable voting trust, pursuant to the rules of the STB, in
order to avoid any
3
-3-
allegation or assertion that the Parent or the Acquiror is controlling or has
the power to control the Company prior to the receipt of any required STB
approval or exemption;
WHEREAS, Parent, Acquiror and the Trustee wish to amend the Original
Voting Trust Agreement to reflect certain changes made in the Merger Agreement
by the Second and Third Amendments thereto, and the Company has consented to
such amendment, and Parent, Acquiror and the Trustee wish to restate the Voting
Trust Agreement as so amended;
WHEREAS, the holder of all outstanding Trust Certificates has assented
to such amendment of the Original Voting Trust Agreement, and all requirements
for the amendment of the Original Voting Trust Agreement contained therein have
been satisfied;
WHEREAS, neither the Trustee nor any of its affiliates has any officers
or board members in common or any direct or indirect business arrangements or
dealings (as described in Paragraph 9 hereof) with the Parent or the Acquiror or
any of their affiliates; and
WHEREAS, the Trustee is willing to continue to act as voting trustee
pursuant to the terms of this Trust Agreement and the rules of the STB,
NOW THEREFORE, the parties hereto agree as follows:
1. Creation of Trust -- The Parent and the Acquiror hereby appoint
Deposit Guaranty National Bank as Trustee hereunder, and Deposit Guaranty
National Bank hereby accepts said appointment and agrees to act as Trustee under
this Trust Agreement as provided herein.
2. Trust Is Irrevocable -- This Trust Agreement and the nomination of
the Trustee during the term of the trust shall be irrevocable by the Parent and
the
4
-4-
Acquiror and their affiliates and shall terminate only in accordance with,
and to the extent of, the provisions of Paragraphs 8 and 14 hereof.
3. Deposit of Trust Stock -- The Parent and the Acquiror agree that,
prior to acceptance of Acquired Shares purchased pursuant to the Tender Offer,
the Acquiror will direct the depositary for the Tender Offer to transfer to the
Trustee any such Acquired Shares purchased pursuant to the Tender Offer. The
Parent and the Acquiror also agree that simultaneously with receipt, acquisition
or purchase of any additional shares of Common Stock by either of them, directly
or indirectly, or by any of their affiliates, including, without limitation,
upon any exercise of the option provided for in the Option Agreement, they will
transfer to the Trustee the certificate or certificates for such shares. The
Parent and the Acquiror also agree that simultaneously with the receipt by them
or by any of their affiliates of any shares of common stock or other voting
stock of the Company upon the effectiveness of the Merger, they will transfer to
the Trustee the certificate or certificates for such shares. All such
certificates shall be duly endorsed or accompanied by proper instruments duly
executed for transfer thereof to the Trustee or otherwise validly and properly
transferred, and shall be exchanged for one or more Voting Trust Certificates
substantially in the form attached hereto as Exhibit A (the "Trust
Certificates"), with the blanks therein appropriately filled in. Voting Trust
Certificates executed in the form attached to the Original Voting Trust
Agreement as Exhibit A shall continue to be valid and obligatory and shall, from
and after the execution and delivery of this instrument, be deemed in every
respect to be Trust Certificates executed and delivered under this instrument.
All shares of Common Stock all other shares of common stock
5
-5-
or other voting securities at any time delivered to the Trustee hereunder are
called the "Trust Stock." The Trustee shall present to the Company all
certificates representing Trust Stock for surrender and cancellation and for the
issuance and delivery to the Trustee of new certificates registered in the name
of the Trustee or its nominee.
4. Powers of Trustee -- The Trustee shall be present, in person or
represented by proxy, at all annual and special meetings of shareholders of the
Company so that all Trust Stock may be counted for the purposes of determining
the presence of a quorum at such meetings. Parent and Acquiror agree, and the
Trustee acknowledges, that the Trustee shall not participate in or interfere
with the management of the Company and shall take no other actions with respect
to the Company except in accordance with the terms hereof. The Trustee shall
exercise all voting rights in respect of the Trust Stock to approve and effect
the Merger, and in favor of any proposal or action necessary or desirable to
effect, or consistent with the effectuation of, the Parent and Acquiror's
acquisition of the Company, pursuant to the Merger Agreement, and without
limiting the generality of the foregoing, if there shall be with respect to the
Board of Directors of the Company an "Election Contest" as defined in the Proxy
Rules of the Securities and Exchange Commission ("SEC"), in which one slate of
nominees shall support the effectuation of the Merger and another slate oppose
it, then the Trustee shall vote in favor of the slate supporting the
effectuation of the Merger. In addition, for so long as the Merger Agreement is
in effect, the Trustee shall exercise all voting rights in respect of the Trust
Stock, to cause any other proposed merger, business combination or similar
transaction (including, without limitation, any consolidation, sale or purchase
of assets, reorganization, recapitalization, liquidation or winding up of or by
the Company) involving the Company, but not
6
-6-
involving the Parent or one of its subsidiaries or affiliates (otherwise than in
connection with a disposition pursuant to Paragraph 8), not to be effected. In
addition, the Trustee shall exercise all voting rights in respect of the Trust
Stock in favor of any proposal or action necessary or desirable to dispose of
Trust Stock in accordance with Paragraph 8 hereof. Except as provided in the
three immediately preceding sentences, the Trustee shall vote all shares of
Trust Stock with respect to all matters, including without limitation the
election or removal of directors, voted on by the shareholders of the Company
(whether at a regular or special meeting or pursuant to a unanimous written
consent) in the same proportion as all shares of Common Stock (other than Trust
Stock) are voted with respect to such matters; provided that, except as provided
in the three immediately preceding sentences, from and after the effectiveness
of the Merger, the Trustee shall vote all shares of Trust Stock in accordance
with the instructions of a majority of the persons who are currently the
directors of the Company and their nominees as successors and who shall then be
directors of the Company, except that the Trustee shall not vote the Trust Stock
in favor of taking or doing any act which violates the Merger Agreement or which
if taken or done prior to the consummation of the Merger would have been a
violation of the Merger Agreement; and except further that if there shall be no
such persons qualified to give such instructions hereunder, or if a majority of
such persons refuse or fail to give such instructions, then the Trustee shall
vote the Trust Stock in its sole discretion, having due regard for the interests
of the holders of Trust Certificates as investors in the stock of the Company,
determined without reference to such holders' interests in other railroads than
the subsidiaries of the Company. In exercising its voting rights in accordance
with this Paragraph 4, the
7
-7-
Trustee shall take such actions at all annual, special or other meetings of
stockholders of the Company or in connection with any and all consents of
shareholders in lieu of a meeting.
5. Further Provisions Concerning Voting of Trust Stock -- The Trustee
shall be entitled and it shall be its duty to exercise any and all voting rights
in respect of the Trust Stock either in person or by proxy, as herein provided
(including without limitation Paragraphs 4 and 8(b) hereof), unless otherwise
directed by the STB or a court of competent jurisdiction. Subject to Paragraph
4, the Trustee shall not exercise the voting powers of the Trust Stock in any
way so as to create any dependence or intercorporate relationship between (i)
any or all of the Parent, the Acquiror and their affiliates, on the one hand,
and (ii) the Company or its affiliates, on the other hand. The term "affiliate"
or "affiliates" wherever used in this Trust Agreement shall have the meaning
specified in Section 11323(c) of Title 49 of the United States Code, as amended.
The Trustee shall not, without the prior approval of the STB, vote the Trust
Stock to elect any officer, director, nominee or representative of the Parent,
the Acquiror or their affiliates as an officer or director of the Company or of
any affiliate of the Company. The Trustee shall be kept informed respecting the
business operations of the Company by means of the financial statements and
other public disclosure documents periodically filed by the Company and
affiliates of the Company with the SEC and the STB, and by means of information
respecting the Company contained in such statements and other documents filed by
the Parent with the SEC and the STB, copies of which shall be promptly furnished
to the Trustee by the Company or the Parent, as the case may be, and the Trustee
shall be fully protected in relying upon such information. Notwithstanding the
foregoing provisions of this Paragraph 5 or any other
8
-8-
provision of this Agreement, however, the registered holder of any Trust
Certificate may at any time with the prior written approval of the Company --
but only with the prior written approval of the STB -- instruct the Trustee in
writing to vote the Trust Stock represented by such Trust Certificate in any
manner, in which case the Trustee shall vote such shares in accordance with such
instructions.
6. Transfer of Trust Certificates -- The Trust Certificates shall be
transferable on the books of the Trustee by the registered holder upon the
surrender thereof properly assigned, in accordance with rules from time to time
established for that purpose by the Trustee. Until the consummation of the
Amended Second Offer, any transferee shall be subject to the obligations of the
transferor hereunder. Until so transferred, the Trustee may treat the registered
holder as owner for all purposes. Each transferee of a Trust Certificate issued
hereunder shall, by his acceptance thereof, assent to and become a party to this
Trust Agreement, and shall assume all attendant rights and obligations. Any such
transfer in violation of this Paragraph 6 shall be null and void.
7. Dividends and Distributions -- Pending the termination of this Trust
as hereinafter provided, the Trustee shall, immediately following the receipt of
each cash dividend or cash distribution as may be declared and paid upon the
Trust Stock, pay the same over to or as directed by the Acquiror or to or as
directed by the holder of the Trust Certificates hereunder as then appearing on
the books of the Trustee. The Trustee shall receive and hold dividends and
distributions other than cash upon the same terms and conditions as the Trust
Stock and shall issue Trust Certificates representing any new or additional
9
-9-
securities that may be paid as dividends or otherwise distributed upon the Trust
Stock to the registered holders of Trust Certificates in proportion to their
respective interests.
8. Disposition of Trust Stock; Termination of Trust -- (a) This Trust is
accepted by the Trustee subject to the right hereby reserved in the Parent at
any time to direct the sale or other disposition of the whole or any part of the
Trust Stock, but only as permitted by subparagraph (e) below, whether or not an
event described in subparagraph (b) below has occurred. The Trustee shall take
all actions reasonably requested by the Parent (including, without limitation,
exercising all voting rights in respect of Trust Stock) in favor of any proposal
or action necessary or desirable to effect, or consistent with the effectuation
of or with respect to any proposed sale or other disposition of the whole or any
part of the Trust Stock by the Acquiror or Parent that is otherwise permitted
pursuant to this Paragraph 8, including, without limitation, in connection with
the exercise by Parent of its registration rights under the Merger Agreement.
The Trustee shall be entitled to rely on a certification from the Parent, signed
by its President or one of its Vice Presidents and under its corporate seal,
that a disposition of the whole or any part of the Trust Stock is being made in
accordance with the requirements of subparagraph (e) below. In the event of a
permitted sale of Trust Stock by the Acquiror, the Trustee shall, to the extent
the consideration therefor is payable to or controllable by the Trustee,
promptly pay, or cause to be paid, upon the order of the Acquiror the net
proceeds of such sale to the registered holders of the Trust Certificates in
proportion to their respective interests. It is the intention of this Paragraph
that no violation of 49 U.S.C. Section 11323 will result from a termination of
this Trust.
10
-10-
(b) In the event the STB Approval shall have been granted, then
immediately upon the direction of the Parent and the delivery of a certified
copy of such order of the STB or other governmental authority with respect
thereof, or, in the event that Subtitle IV of Title 49 of the United States
Code, or other controlling law, is amended to allow the Acquiror, the Parent or
their affiliates to acquire control of the Company without obtaining STB or
other governmental approval, upon delivery of an opinion of independent counsel
selected by the Trustee that no order of the STB or other governmental authority
is required, and, in the event that the Amended Second Offer shall not have
previously been consummated, with the prior consent of the Company, the Trustee
shall either (x) transfer to or upon the order of the Acquiror, the Parent or
the holder or holders of Trust Certificates hereunder as then appearing on the
records of the Trustee, its right, title and interest in and to all of the Trust
Stock then held by it (or such portion as is represented by the Trust
Certificates in the case of such an order by such holders) in accordance with
the terms, conditions and agreements of this Trust Agreement and not theretofore
transferred by it as provided in subparagraph (a) hereof, or (y) if shareholder
approval has not previously been obtained for the Merger, vote the Trust Stock
in favor of the Merger, and upon any such transfer of all of the Trust Stock, or
any such merger following such STB approval or law amendment permitting control
without governmental approval, this Trust shall cease and come to an end.
(c) In the event that (i) the STB Approval shall not have been obtained
by December 31, 1998, or (ii) there shall have been an STB Denial, Parent shall
use its best efforts to sell the Trust Stock during a period of two years after
such date or STB Denial, or such extension of that period as the STB shall
approve.
11
-11-
Any such disposition shall be subject to the requirements of subparagraph (e)
below, and to any jurisdiction of the STB to oversee Parent's divestiture of
Trust Stock. At all times, the Trustee shall continue to perform its duties
under this Trust Agreement and, should Parent be unsuccessful in its efforts to
sell or distribute the Trust Stock during the period referred to, the Trustee
shall then as soon as practicable, and subject to the requirements of
subparagraph (e) below, sell the Trust Stock for cash to eligible purchasers in
such manner and for such price as the Trustee in its discretion shall deem
reasonable after consultation with Parent. (An "eligible purchaser" hereunder
shall be a person or entity that is not affiliated with Parent and which has all
necessary regulatory authority, if any, to purchase the Trust Stock.) Parent
agrees to cooperate with the Trustee in effecting such disposition and the
Trustee agrees to act in accordance with any direction made by Parent as to any
specific terms or method of disposition, to the extent not inconsistent with any
of the terms of this Trust Agreement, including subparagraph (e) below, and with
the requirements of the terms of any STB or court order. The proceeds of the
sale shall be distributed to or upon the order of Parent or, on a pro rata
basis, to the holder or holders of the Trust Certificates hereunder as then
known to the Trustee. The Trustee may, in its reasonable discretion, require the
surrender to it of the Trust Certificates hereunder before paying to the holder
his share of the proceeds. Upon disposition of all the Trust Stock pursuant to
this paragraph 8(c), this Trust shall cease and come to an end.
(d) Unless sooner terminated pursuant to any other provision herein
contained, this Trust Agreement shall terminate on December 31, 2016, and may be
extended by the parties hereto, so long as no violation of 49 U.S.C. Section
11323 will result from such termination or extension. All Trust Stock and any
other property held by the Trustee hereunder upon such termination shall be
distributed
12
-12-
to or upon the order of the Acquiror. The Trustee may, in its reasonable
discretion, require the surrender to it of the Trust Certificates hereunder
before the release or transfer of the stock interests evidenced thereby.
(e) No disposition of Trust Stock under this paragraph 8 or otherwise
hereunder shall be made except pursuant to one or more broadly distributed
public offerings and subject to all necessary regulatory approvals, if any.
Notwithstanding the foregoing, Trust Stock may be distributed as otherwise
directed by Parent (but, if prior to the earliest of (i) the consummation of the
Amended Second Offer; (ii) December 31, 1998, if STB Approval shall not have by
then been granted; or (iii) the occurrence of an STB Denial, only with the prior
written consent of the Company) subject to any order of the STB pursuant to any
of its jurisdiction, in which case the Trustee shall be entitled to rely on a
certificate of Parent (in circumstance under which the consent of the Company is
required under the preceding parenthetical expression, acknowledged by the
Company) that any person or entity to whom the Trust Stock is disposed is not an
affiliate of the Parent and has all necessary regulatory authority, if any is
necessary, to purchase such Trust Stock. The Trustee shall promptly inform the
STB of any transfer or disposition of Trust Stock pursuant to this Paragraph 8.
Upon the transfer of all of the Trust Stock pursuant to this Paragraph 8, this
Trust shall cease and come to an end.
(f) Except as expressly provided in this Paragraph 8, the Trustee shall
not dispose of, or in any way encumber, the Trust Stock, and any transfer, sale
or encumbrance in violation of the foregoing shall be null and void.
9. Independence of the Trustee -- Neither the Trustee nor any affiliate
of the Trustee may have (i) any officers, or members of their respective boards
of directors, in common with the Acquiror, the Parent, or any affiliate of
either, or
13
-13-
(ii) any direct or indirect business arrangements or dealings, financial or
otherwise, with the Acquiror, the Parent or any affiliate of either, other than
dealings pertaining to the establishment and carrying out of this voting trust.
Mere investment in the stock or securities of the Acquiror or the Parent or any
affiliate of either by the Trustee, short of obtaining a controlling interest,
will not be considered a proscribed business arrangement or dealing, but in no
event shall any such investment by the Trustee in voting securities of the
Acquiror, the Parent or their affiliates exceed five percent of their
outstanding voting securities and in no event shall the Trustee hold a
proportion of such voting securities so substantial as to permit the Trustee in
any way to control or direct the affairs of the Acquiror, the Parent or their
affiliates. Neither the Acquiror, the Parent nor their affiliates shall purchase
the stock or securities of the Trustee or any affiliate of the Trustee.
10. Compensation of the Trustee -- The Trustee shall be entitled to
receive reasonable and customary compensation for all services rendered by it as
Trustee under the terms hereof and said compensation to the Trustee, together
with all counsel fees, taxes, or other expenses reasonably incurred hereunder,
shall be promptly paid by the Acquiror or the Parent.
11. Trustee May Act Through Agents -- The Trustee may at any time or
from time to time appoint an agent or agents and may delegate to such agent or
agents the performance of any administrative duty of the Trustee.
12. Concerning the Responsibilities and Indemnification of the Trustee
-- The Trustee shall not be liable for any mistakes of fact or law or any error
of judgment, or for any act or omission, except as a result of the Trustee's
willful misconduct or gross negligence. The Trustee shall not be answerable for
the default or misconduct of any agent or attorney appointed by it in pursuance
14
-14-
hereof if such agent or attorney has been selected with reasonable care. The
duties and responsibilities of the Trustee shall be limited to those expressly
set forth in this Trust Agreement. The Trustee shall not be responsible for the
sufficiency or the accuracy of the form, execution, validity or genuineness of
the Trust Stock, or of any documents relating thereto, or for any lack of
endorsement thereon, or for any description therein, nor shall the Trustee be
responsible or liable in any respect on account of the identity, authority or
rights of the persons executing or delivering or purporting to execute or
deliver any such Trust Stock or document or endorsement or this Trust Agreement,
except for the execution and delivery of this Trust Agreement by this Trustee.
The Acquiror and the Parent agree that they will at all times protect, indemnify
and save harmless the Trustee, its directors, officers, employees and agents
from any loss, cost or expense of any kind or character whatsoever in connection
with this Trust except those, if any, growing out of the gross negligence or
willful misconduct of the Trustee, and will at all times themselves undertake,
assume full responsibility for, and pay all costs and expense of any suit or
litigation of any character, including any proceedings before the STB, with
respect to the Trust Stock of this Trust Agreement, and if the Trustee shall be
made a party thereto, the Acquiror or the Parent will pay all costs and
expenses, including reasonable counsel fees, to which the Trustee may be subject
by reason thereof; provided, however, that the Acquiror and the Parent shall not
be responsible for the cost and expense of any suit that the Trustee shall
settle without first obtaining the Parent's written consent. The Trustee may
consult with counsel and the opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken or omitted or
suffered by the Trustee hereunder in good faith and in accordance with such
opinion.
15
-15-
13. Trustee to Give Account to Holders -- To the extent requested to do
so by the Acquiror or any registered holder of a Trust Certificate, the Trustee
shall furnish to the party making such request full information with respect to
(i) all property theretofore delivered to it as Trustee, (ii) all property then
held by it as Trustee, and (iii) all actions theretofore taken by it as Trustee.
14. Resignation, Succession, Disqualification of Trustee -- The
Trustee, or any trustee hereafter appointed, may at any time resign by giving
forty-five days' written notice of resignation to the Parent and the STB. The
Parent shall at least fifteen days prior to the effective date of such notice
appoint a successor trustee which shall (i) satisfy the requirements of
Paragraph 9 hereof and (ii) be a corporation organized and doing business under
the laws of the United States or of any State thereof and authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by federal or
state authority. If no successor trustee shall have been appointed and shall
have accepted appointment at least fifteen days prior to the effective date of
such notice of resignation, the resigning Trustee may petition any competent
authority or court of competent jurisdiction for the appointment of a successor
trustee. Upon written assumption by the successor trustee of the Trustee's
powers and duties hereunder, a copy of the instrument of assumption shall be
delivered by the Trustee to the Parent and the STB and all registered holders of
Trust Certificates shall be notified of its assumption, whereupon the Trustee
shall be discharged of the powers and duties of the Trustee hereunder and the
successor trustee shall become vested with such powers and duties. In the event
of any material violation by the Trustee of the terms and conditions of this
Trust Agreement, the Trustee shall become disqualified from acting as trustee
hereunder as soon as a
16
-16-
successor trustee shall have been selected in the manner provided by this
paragraph.
15. Amendment -- Subject to the requirements of Section 1.9 of the
Merger Agreement, this Trust Agreement may from time to time be modified or
amended by agreement executed by the Trustee, the Acquiror (if executed prior to
the Merger), the Parent and all registered holders of the Trust Certificates (i)
pursuant to an order of the STB, (ii) with the prior approval of the STB, (iii)
in order to comply with any order of the STB or (iv) upon receipt of an opinion
of counsel satisfactory to the Trustee and the holders of Trust Certificates
that an order of the STB approving such modification or amendment is not
required and that the amendment is consistent with the STB's regulations
regarding voting trusts. Any modification or amendment of this Trust Agreement
effected after the Merger may be executed by agreement executed by the Trustee,
the Parent and all registered holders of the Trust Certificates, subject to
clauses (i), (ii), (iii) or (iv), as may be the case, of the preceding sentence.
16. Governing Law; Powers of the STB -- The provisions of this Trust
Agreement and the rights and obligations of the parties hereunder shall be
governed by the laws of the Commonwealth of Pennsylvania, except that to the
extent any provision hereof may be found inconsistent with subtitle IV, title
49, United States Code or regulations promulgated thereunder, such statute and
regulations shall control and such provision hereof shall be given effect only
to the extent permitted by such statute and regulations. In the event that the
STB shall, at any time hereafter by final order, find that compliance with law
requires any other or different action by the Trustee than is provided herein,
the Trustee shall act in accordance with such final order instead of the
provisions of this Trust Agreement.
17
-17-
17. Counterparts -- This Trust Agreement is executed in four
counterparts, each of which shall constitute an original, and one of which shall
be held by each of the Parent and the Acquiror and the other two shall be held
by the Trustee, one of which shall be subject to inspection by holders of Trust
Certificates on reasonable notice during business hours.
18. Filing With the STB -- A copy of this Agreement and any amendments
or modifications thereto shall be filed with the STB by the Acquiror.
19. Successors and Assigns -- This Trust Agreement shall be binding
upon the successors and assigns to the parties hereto, including without
limitation successors to the Acquiror and the Parent by merger, consolidation or
otherwise. The parties agree that the Company shall be an express third party
beneficiary of this Trust Agreement through and including the earliest of (i)
the consummation of the Amended Second Offer; (ii) December 31, 1998, if STB
Approval shall not have been granted; or (iii) the occurrence of an STB Denial,
but that thereafter the Company shall not be any such third-party beneficiary.
Except as otherwise expressly set forth herein, any consent or approval required
from the Company hereunder shall mean the prior written consent or approval by a
duly adopted resolution of the Company's board of directors, or by its duly
authorized officer or other representative, and shall be granted or withheld in
the sole discretion of such board, officer or representative.
20. Succession of Functions -- The term "STB" includes any successor
agency or governmental department that is authorized to carry out the
responsibilities now carried out by the STB with respect to the consideration of
the consistency with the public interest of rail mergers and combinations, the
regulation of voting trusts in respect of the acquisition of securities of rail
carriers
18
-18-
or companies controlling them, and the exemption of approved rail mergers and
combinations from the antitrust laws.
21. Notices -- Any notice which any party hereto may give to the other
hereunder shall be in writing and shall be given by hand delivery, or by first
class registered mail, or by overnight courier service, or by facsimile
transmission confirmed by one of the aforesaid methods, sent,
If to Purchaser or Acquiror, to:
CSX Corporation
One ▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
If to the Trustee, to:
Deposit Guaranty National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
With a required copy to:
Deposit Guaranty National Bank
c/o Commercial National Bank In Shreveport
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
And if to the holders of Trust Certificates, to them at their addresses as shown
on the records maintained by the Trustee.
22. Remedies -- Each of the parties hereto acknowledges and agrees that
in the event of any breach of this Agreement, each non-breaching party would be
irreparably and immediately harmed and could not be made whole by monetary
damages. It is accordingly agreed that the parties hereto (a) will waive,
19
-19-
in any action for specific performance, the defense of adequacy of a remedy at
law and (b) shall be entitled, in addition to any other remedy to which they may
be entitled at law or in equity, to an order compelling specific performance of
this Agreement in any action instituted in any state or federal court sitting in
Philadelphia, Pennsylvania. Each party hereto consents to personal jurisdiction
in any such action brought in any state or federal court sitting in
Philadelphia, Pennsylvania.
IN WITNESS WHEREOF, CSX Corporation and Green Acquisition Corp. have
caused this Amended and Restated Trust Agreement to be executed by their
authorized officers and their corporate seals to be affixed, attested by their
Secretaries or Assistant Secretaries, and Deposit Guaranty National Bank has
caused this Amended and Restated Trust Agreement to be executed by its
authorized officer or agent and its corporate seal to be affixed, attested to by
its Secretary or one of its Assistant Secretaries or other authorized agent, all
as of the day and year first above written.
Attest: CSX CORPORATION
By
--------------------------- ------------------------------
Secretary
Attest: GREEN ACQUISITION CORP.
By
--------------------------- ------------------------------
Secretary
Attest: DEPOSIT GUARANTY NATIONAL BANK
20
-20-
By
--------------------------- ------------------------------
21
No._______________ EXHIBIT A
____________Shares
VOTING TRUST CERTIFICATE
FOR
COMMON STOCK
of
CONRAIL INC.
INCORPORATED UNDER THE LAWS OF
THE STATE OF PENNSYLVANIA
THIS IS TO CERTIFY that _____________________ will be entitled, on the
surrender of this Certificate, to receive on the termination of the Voting
Trust Agreement hereinafter referred to, or otherwise as provided in Paragraph
8 of said Voting Trust Agreement, a certificate or certificates for __________
shares of the Common Stock, $1.00 par value, of Conrail Inc., a Pennsylvania
corporation (the "Company"). This Certificate is issued pursuant to, and the
rights of the holder hereof are subject to and limited by, the terms of an
Amended and Restated Voting Trust Agreement, dated as of March 7, 1997,
executed by CSX Corporation, a Virginia corporation, Green Acquisition Corp.,
a Pennsylvania corporation, and Deposit Guaranty National Bank, as Trustee (as
it may be amended from time to time, the "Voting Trust Agreement"), a copy of
which Voting Trust Agreement is on file in the office of said Trustee at One
Deposit ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and open to
inspection of any stockholder of the Company and the holder hereof. The Voting
Trust Agreement, unless earlier terminated (or extended) pursuant to the terms
thereof, will terminate on December 31, 2016, so long as no violation of 49
U.S.C. Section 11323 will result from such termination.
22
-2-
The holder of this Certificate shall be entitled to the benefits of
said Voting Trust Agreement, including the right to receive payment equal to the
cash dividends, if any, paid by the Company with respect to the number of shares
represented by this Certificate.
This Certificate shall be transferable only on the books of the
undersigned Trustee or any successor, to be kept by it, on surrender hereof by
the registered holder in person or by attorney duly authorized in accordance
with the provisions of said Voting Trust Agreement, and until so transferred,
the Trustee may treat the registered holder as the owner of this Voting Trust
Certificate for all purposes whatsoever, unaffected by any notice to the
contrary.
By accepting this Certificate, the holder hereof assents to all the
provisions of, and becomes a party to, said Voting Trust Agreement.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
signed by its officer duly authorized.
Dated: DEPOSIT GUARANTY
NATIONAL BANK
By
-------------------------------
Authorized Officer
23
- 3 -
[FORM OF BACK OF VOTING TRUST CERTIFICATE]
FOR VALUE RECEIVED ____________________________ hereby sells, assigns,
and transfers unto __________________________ the within Voting Trust
Certificate and all rights and interests represented thereby, and does hereby
irrevocably constitute and appoint _________________________ Attorney to
transfer said Voting Trust Certificate on the books of the within mentioned
Trustee, with full power of substitution in the premises.
______________________________
Dated:
In the Presence of:
____________________________________
