AMENDED AND RESTATED VOTING TRUST AGREEMENT
(VTA-3)
THIS AMENDED AND RESTATED VOTING TRUST AGREEMENT, dated as of
February 10, 1997, as amended and restated as of February 18, 1997, by and
among Norfolk Southern Corporation, a Virginia corporation ("Parent"),
Atlantic Acquisition Corporation, a Pennsylvania corporation and a wholly
owned subsidiary of Parent ("Acquiror"), and the First American National
Bank (the "Trustee").
W I T N E S S E T H:
WHEREAS, Atlantic Investment Company, a Delaware corporation and a
wholly owned subsidiary of Parent ("AIC") owns on the date hereof 100
shares of common stock, $1.00 par value ("Common Shares"), of Conrail Inc.,
a Pennsylvania corporation (the "Company").
WHEREAS, Acquiror has commenced a tender offer (the "Tender Offer")
to acquire up to an aggregate of 8,200,000 additional (i) Common Shares,
and (ii) shares of Series A ESOP Convertible Junior Preferred Stock, no par
value (the "ESOP Preferred Shares" and, together with the Common Shares,
the "Shares"), including, in each case, the associated Common Stock
Purchase Rights issued pursuant to the Rights Agreement, dated as of July
19, 1989, between the Company and First Chicago Trust Company of New York,
as Rights Agent at a price of $115 per Share, net to the seller in cash,
and, following consummation of the tender offer, intends to commence a
second tender offer to acquire all outstanding Shares not owned by Acquiror
at a price of $115 per Share, net to the seller in cash (the "Second Tender
Offer" and, collectively with the Tender Offer, the "Tender Offers").
WHEREAS, Shares acquired (the "Acquired Shares") pursuant to the
Tender Offer and the Second Tender Offer may be sufficient to empower the
Parent or the Acquiror to control the Company.
WHEREAS, the Acquiror wishes to deposit all Acquired Shares with
the acceptance for payment of such Acquired Shares pursuant to the Tender
Offers, or otherwise, to deposit such Shares in an independent, irrevocable
voting trust, pursuant to the rules of the Surface Transportation Board
(the "STB"), in order to avoid any 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, the Parent intends to place the common stock of the
Acquiror in such voting trust at or immediately prior to a merger or other
combination (the "Merger") of the Acquiror with the Company pursuant to an
Agreement and Plan of Merger to be entered into by and among the Parent,
the Acquiror and the Company, as it may be amended from time to time (the
"Acquisition Agreement"), in order to avoid any allegation or assertion
that the Merger would result in the Parent controlling or having the power
to control the Company prior to receipt of any required STB approval;
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 act as voting trustee pursuant
to the terms of this Amended and Restated 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
the First American National Bank as Trustee hereunder, and the Bank hereby
accepts said appointment and agrees to act as Trustee under this Amended
and Restated Trust Agreement as provided herein.
2. Trust Is Irrevocable--This Amended and Restated Trust Agreement
and the nomination of the Trustee during the term of the trust shall be
irrevocable by the Parent and the 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 any Acquired Shares purchased pursuant to each of
the Tender Offers, the Acquiror will direct the depositaries for the Tender
Offers to transfer to the Trustee any such Acquired Shares purchased
pursuant to the Tender Offers. The Parent and the Acquiror also agree that
simultaneously with receipt, acquisition or purchase of any additional
Shares by either of them, directly or indirectly, or by any of their
affiliates, 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. All Shares 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.
Parent agrees that, at or immediately prior to the Merger, it will
transfer to the Trustee all issued and outstanding shares of the common
stock of the Acquiror owned by the Parent, which certificates shall be duly
endorsed or accompanied by proper instruments duly executed for transfer
thereof to the Trustee, in exchange for one or more Voting Trust
Certificates substantially in the form attached hereto as Exhibit B (the
"Acquiror Trust Certificates"), with the blanks therein appropriately
filled. All shares of the common stock of the Acquiror at any time
delivered to the Trustee hereunder are hereinafter called the "Acquiror
Trust Stock." The Trustee shall present to the Acquiror all certificates
representing the Acquiror Trust Stock for surrender and cancellation by the
Acquiror, 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. The Trustee shall
exercise all voting rights in respect of the Trust Stock to approve and
effect the Merger (including, without limitation, by means of a
"short-form" merger pursuant to Section 1924(b)(ii) of the Pennsylvania
Business Corporation Law), 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 Acquisition
Agreement or otherwise. 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 (the "SEC"), in which one
slate of nominees shall oppose the effectuation of the Merger, the Trustee
shall vote the Trust Stock for the removal of any directors opposing the
Merger and in favor of a slate of directors which shall favor the
effectuation of the Merger and which shall agree to place all of the shares
of Consolidated Rail Corporation in a separate voting trust. In addition,
for so long as this 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 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 or in Paragraph 5 hereof, 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 accordance with its best judgment concerning the
interests of the Company. In exercising its voting rights in accordance
with this Paragraph 4, the 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
hereinafter 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 Amended and Restated 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, employee, 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.
Notwithstanding the previous sentence, the Trustee may vote the Trust Stock
to elect as directors of the Company persons (other than officers,
directors or employees of Parent or Acquiror) nominated or sponsored by
Parent or Acquiror or whose nomination was recommended or proposed by
Parent or Acquiror if such persons have agreed, by executing an undertaking
substantially in the form of Exhibit C hereto, to use their best efforts to
cause Company to place all of the shares of Consolidated Rail Corporation
into a separate voting trust as promptly as possible. 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. 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. Notwithstanding the foregoing provisions of this Paragraph 5,
however, the registered holder of any Trust Certificate may at any time
with the prior written approval of Parent--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--All 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 the purpose by the Trustee. 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 Amended and Restated Trust
Agreement, and shall assume all attendant rights and obligations.
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 upon the order of Acquiror to
the registered holders of the Trust Certificates in proportion to their
respective interests. 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 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 sell or make any other disposition of the whole or
any part of the Trust Stock, 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). 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.
(b) In the event the STB by final order shall (i) approve or exempt
the acquisition of control of the Company by the Acquiror, the Parent or
any of their affiliates or (ii) approve or exempt a merger or similar
business combination between the Company and the Acquiror, the Parent or
any of their affiliates, 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, the Trustee shall either (x) transfer upon the order of Acquiror
to the registered holders of the Trust Certificates in proportion to their
respective interests, its right, title and interest in and to all of the
Trust Stock then held by it in accordance with the terms, conditions and
agreements of this Amended and Restated Trust Agreement and not theretofore
transferred by it as provided in subparagraph (a) hereof, or (y) if
shareholder approval has not previously been obtained, vote the Trust Stock
with respect to any such merger or similar business combination between the
Company and the Acquiror, the Parent or any affiliate of either as directed
by the holder or holders of a majority in interest of the Trust
Certificates, and upon any such transfer, merger or similar business
combination this Trust shall cease and come to an end.
(c) In the event that the STB should issue an order denying, or
approving subject to conditions unacceptable to the Parent, any application
or petition by the Acquiror, the Parent or their affiliates to merge with
or otherwise exercise control over the Company or the surviving corporation
in the Merger, and such order becomes final after judicial review or
failure to appeal, Parent shall use its best efforts to sell, distribute or
otherwise to dispose of the Trust Stock or all of the assets of the Company
or the surviving corporation in the Merger, to one or more eligible
purchasers, during a period of two years after such order becomes final
after judicial review or failure to appeal, and subject 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 Amended and
Restated 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 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 Amended and Restated Trust Agreement and with the requirements of
the terms of any STB or court order. The proceeds of the sale shall be
distributed upon the order of Acquiror to the registered holders of the
Trust Certificates in proportion to their respective interests. 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 Amended and Restated 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 upon the order of
Acquiror to the registered holders of the Trust Certificates in proportion
to their respective interests. 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) The Trustee shall promptly inform the STB of any transfer or
disposition of Trust Stock pursuant to this Paragraph 8.
(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 (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 answerable for the default or misconduct
of any agent or attorney appointed by it in pursuance 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 Amended and Restated 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 Amended and Restated Trust Agreement,
except for the execution and delivery of this Amended and Restated Trust
Agreement by this Trustee. The Acquiror and the Parent agree that they will
at all times protect, indemnify and save harmless the Trustee 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 Amended and Restated 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.
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 sixty 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 Amended and Restated Trust Agreement, the
Trustee shall become disqualified from acting as trustee hereunder as soon
as a successor trustee shall have been selected in the manner provided by
this paragraph.
15. Amendment--Subject to the requirements of the Acquisition
Agreement, this Amended and Restated 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.
16. Governing Law; Powers of the STB--The provisions of this
Amended and Restated Trust Agreement and of the rights and obligations of
the parties hereunder shall be governed by the laws of the State of
Tennessee, 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 Amended and Restated Trust Agreement.
17. Counterparts--This Amended and Restated Trust Agreement may be
executed in counterparts, each of which shall constitute an original, and
one of which shall be held by each of the Parent and the Acquiror and 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 Amended and Restated 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 Amended and
Restated Trust Agreement. Except as otherwise expressly set forth herein,
any consent required from the Company hereunder shall be granted or
withheld in the Company's sole discretion.
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 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
Norfolk Southern Corporation
Three Commercial Place
Norfolk, Virginia 23510
Attention: Vice President--Law
If to the Trustee, to
First American National Bank
First American Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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, 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 Nashville, Tennessee. 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, Norfolk Southern Corporation and Atlantic
Acquisition Corporation 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 the Bank has caused this Amended and Restated Trust
Agreement to be executed by one of its Vice Presidents and its corporate
seal to be affixed, attested to by one of its Vice Presidents, all as of
the day and year first above written.
NORFOLK SOUTHERN CORPORATION
ATTEST: By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
______________________________
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________________ Title: Executive Vice President -
Assistant Corporate Secretary Finance
ATLANTIC ACQUISITION CORPORATION
ATTEST: By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
____________________________
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________________ Title: Vice President and General
Corporate Secretary Counsel
FIRST AMERICAN NATIONAL BANK
ATTEST: By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
______________________________
/s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
_________________________________ Title: Vice President
EXHIBIT A
NO. SHARES
VOTING TRUST CERTIFICATE
FOR
COMMON STOCK,
$1.00 PAR VALUE
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 Amended
and Restated Voting Trust Agreement hereinafter referred to, or otherwise
as provided in Paragraph 8 of said Amended and Restated Voting Trust
Agreement, a certificate or certificates for shares of the Common
Stock, $1.00 par value, of Conrail Inc. (the "Company"). This Certificate is
issued pursuant to, and the rights of the holder hereof are subject to and
limited by, the terms of a Amended and Restated Voting Trust Agreement,
dated as of February 10, 1997, as amended and restated as of February 18,
1997, executed by Norfolk Southern Corporation, a Virginia corporation,
Atlantic Acquisition Corporation, a Pennsylvania corporation, and First
American National Bank, as Voting Trustee, a copy of which Amended and
Restated Voting Trust Agreement is on file in the registered office of said
corporation at First American Center, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and open to inspection of any stockholder of the
Company and the holder hereof. The Amended and Restated 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.
The holder of this Certificate shall be entitled to the benefits of
said Amended and Restated 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 Voting 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 Amended and Restated Voting Trust
Agreement, and until so transferred, the Voting 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 Amended and Restated Voting
Trust Agreement.
IN WITNESS WHEREOF, the Voting Trustee has caused this Certificate
to be signed by its officer duly authorized.
Dated:
THE BANK
By Authorized Officer
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
Voting Trustee, with full power of substitution in the premises.
Dated:
In the Presence of:
EXHIBIT B
NO. SHARES
VOTING TRUST CERTIFICATE
FOR
COMMON STOCK,
$1.00 PAR VALUE
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 Amended
and Restated Voting Trust Agreement hereinafter referred to, or otherwise
as provided in Paragraph 8 of said Amended and Restated Voting Trust
Agreement, a certificate or certificates for shares of the
Common Stock, $ par value, of , 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 a Amended and Restated Voting Trust Agreement, dated as of
February 10, 1997, as amended and restated as of February 18, 1997,
executed by Norfolk Southern Corporation, a Virginia corporation, Atlantic
Acquisition Corporation, a Pennsylvania corporation, and First American
National Bank, as Voting Trustee, a copy of which Amended and Restated
Voting Trust Agreement is on file in the registered office of said
corporation at First American Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and open to inspection of any stockholder of the
Company and the holder hereof. The Amended and Restated 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.
The holder of this Certificate shall be entitled to the benefits of
said Amended and Restated 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 Voting 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 Amended and Restated Voting Trust
Agreement, and until so transferred, the Voting 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 Amended and Restated Voting
Trust Agreement.
IN WITNESS WHEREOF, the Voting Trustee has caused this Certificate
to be signed by its officer duly authorized.
Dated:
THE BANK
By Authorized Officer
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
Voting Trustee, with full power of substitution in the premises.
Dated:
In the Presence of:
EXHIBIT C
NS-SUPPORTED DIRECTORS' UNDERTAKING
UNDERTAKING
THIS UNDERTAKING, dated , 1997, by and between
Norfolk Southern Corporation, a Virginia corporation ("NS") and ,
an individual ("NS-Supported Director").
W I T N E S S E T H:
WHEREAS, Atlantic Investment Company, a Pennsylvania corporation
and a wholly owned subsidiary of NS ("AIC"), owns on the date hereof 100
shares of common stock, $1.00 par value ("Common Shares"), of Conrail Inc.,
a Pennsylvania corporation ("CRI");
WHEREAS, NS and AIC will solicit proxies in connection with the
election of certain CRI directors at a meeting of CRI shareholders
currently scheduled to be held on December 19, 1997 including any
postponement or adjournment thereof and will cause the proxies obtained to
be voted in favor of certain directors who favor the effectuation of a
merger or other combination of Atlantic Acquisition Corporation, a
Pennsylvania corporation and a wholly owned subsidiary of NS ("Atlantic"),
or another affiliate of NS, with CRI;
WHEREAS, NS wishes that all NS-Supported Directors have executed
this undertaking to promptly resign their positions in the event the
Surface Transportation Board (the "STB") issues an order denying, or
approving subject to conditions unacceptable to NS, any application or
petition by NS, Atlantic or their affiliates to merge or combine with or
exercise control over Consolidated Rail Corporation, a Pennsylvania
corporation ("CRC"), and such order becomes final after judicial review or
failure to appeal; and
WHEREAS, the undersigned NS-Supported Director is willing to act as
Director pursuant to the terms of this Undertaking.
NOW THEREFORE, the parties hereto agree as follows:
1. Representations -- NS-Supported Director hereby represents that
he/she is not an officer, director or employee of NS, Atlantic or AIC.
2. Best Efforts -- Upon election to the CRI Board of Directors,
NS-Supported Director agrees to use his/her best efforts to cause the
voting stock of CRC promptly to be placed in a voting trust.
3. No Influence or Exercise of Control -- NS-Supported Director
agrees not to attempt to influence or exercise any control over the
management or operations of CRC except upon the delivery of a certified
copy of an order of the STB that (i) approves or exempts the acquisition of
control of CRC by Atlantic, NS or any of their affiliates or (ii) approves
or exempts a merger or similar business combination between CRC and
Atlantic, NS or any of their affiliates, or, in the event that Subtitle IV
of Title 49 of the United States Code, or other controlling law, is amended
to allow Atlantic, NS or their affiliates to acquire control of the Company
without obtaining STB or other governmental approval, upon the delivery of
an opinion of independent counsel selected by NS-Supported Director that no
order of the STB or other governmental authority is required.
4. Resignation -- NS-Supported Director agrees to resign his/her
position in the event the STB issues an order denying, or approving subject
to conditions unacceptable to NS, any application or petition by NS,
Atlantic or their affiliates to merge with or exercise control over CRC,
and such order becomes final after judicial review or failure to appeal. NS
agrees to promptly notify NS-Supported Director upon the issuance of such
an STB order.
NORFOLK SOUTHERN CORPORATION
ATTEST: By: ____________________________
________________________________ Title: ________________________
NS-SUPPORTED DIRECTOR
ATTEST: By: ____________________________
________________________________ Title:_________________________
