Exhibit 1.1
Norfolk Southern Corporation
$500,000,000 3.250% Senior Notes due 2021
$100,000,000 6.000% Senior Notes due 2111
UNDERWRITING AGREEMENT
November 14, 2011
Citigroup Global Markets Inc.
Goldman, Sachs & Co.
Wells Fargo Securities, LLC
Underwriting Agreement
November 14, 2011
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Goldman, Sachs & Co.
200 West Street
New York, New York 10282
Wells Fargo Securities, LLC
301 S. College Street
Charlotte, North Carolina 28202
As Representatives of the several Underwriters
Ladies and Gentlemen:
Norfolk Southern Corporation, a Virginia corporation (the “
Company
”), proposes to issue and sell to the several underwriters named in Schedule A hereto (the “
Underwriters
”), for whom you are acting as representatives (the “
Representatives
”), $500,000,000 aggregate principal amount of the Company’s 3.250% Senior Notes due 2021 (the “
2021 Notes
”) and $100,000,000 aggregate principal amount of the Company’s 6.000% Senior Notes due 2111 (the “
2111 Notes
” and, together with the 2021 Notes, the “
Notes
”).
The 2111 Notes constitute a further issuance of, and will be consolidated and form a single series of debt securities with, the $400,000,000 aggregate principal amount of the 6.000% Senior Notes due 2111 issued by the Company on May 23, 2011 (the “
May-Issued 2111 Notes
”) and the $4,492,000 aggregate principal amount of the 6.000% Senior Notes due 2111 issued by the Company on September 14, 2011 (the “
September-Issued 2111 Notes
” and, together with the May-Issued 2111 Notes, the “
Initial 2111 Notes
”). Except for the issue date and the issue price, the 2111 Notes will have the same terms as, rank equally with and form a single series of debt securities with the Initial 2111 Notes, and will have the same CUSIP number assigned to the May-Issued 2111 Notes. The September-Issued 2111 Notes were initially issued with a different CUSIP number and are subject to restrictions on transfer imposed by applicable U.S. federal securities laws.
The May-Issued 2111 Notes were issued pursuant to an Indenture, dated as of June 1, 2009 (the “
Original Indenture
”), between the Company and U.S. Bank Trust National Association, as trustee (the “
Trustee
”), as supplemented by a Second Supplemental Indenture, dated as of May 23, 2011 (together with the Original Indenture, the “
May-Issued 2111 Notes Indenture
”), between the Company and the Trustee. The September-Issued 2111 Notes were issued pursuant to the May-Issued 2111 Notes Indenture, as amended and supplemented by a Third Supplemental Indenture, dated as of September 14, 2011, between the Company and the Trustee (the “
Third Supplemental Indenture
” and, together with the May-Issued Notes Indenture, the “
September-Issued 2111 Notes Indenture
”).
The 2111 Notes will be issued pursuant to the September-Issued 2111 Notes Indenture, as supplemented by a Fourth Supplemental Indenture to be entered into between the Company and the Trustee on or prior to the Closing Date (as defined in Section 2(b) hereof) (the “
Fourth Supplemental Indenture
,” and, together with the September-Issued 2111 Notes Indenture, the “
2111 Notes Indenture
”).
The 2021 Notes will be issued pursuant to the Original Indenture, as amended and supplemented by the Third Supplemental Indenture (as so amended, the “
Amended Original Indenture
”) and as further supplemented by the Fourth Supplemental Indenture (together with the Amended Original Indenture, the “
2021 Notes Indenture
”). References in this Agreement to the “
Indentures
” mean the 2111 Notes Indenture and the 2021 Notes Indenture collectively.
The Notes will be issued in book-entry form in the name of Cede & Co., as nominee of The Depository Trust Company (the “
Depositary
”), pursuant to a blanket Letter of Representations on file with the Depositary (the “
DTC Agreement
”), among the Company, the Trustee and the Depositary.
The Company has prepared and filed with the Securities and Exchange Commission (the “
Commission
”) a registration statement on Form S-3 (File No. 333-158240) as amended by Post-Effective Amendment No. 1 thereto (“
Amendment No. 1
”), which contains a base prospectus (the “
Base Prospectus
”), to be used in connection with the public offering and sale of debt securities, including the Notes, and other securities of the Company under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the “
Securities Act
”), and the offering thereof from time to time in accordance with Rule 415 under the Securities Act. Such registration statement, including the financial statements, exhibits and schedules thereto, in the form in which it became effective under the Securities Act, as amended by Amendment No. 1, including the exhibits thereto, in the form in which Amendment No. 1 became effective under the Securities Act, including any required information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B under the Securities Act, is called the “
Registration Statement
.” Any registration statement filed by the Company pursuant to Rule 462(b) under the Securities Act is called the “
Rule 462(b) Registration Statement
” and from and after the date and time of filing of the Rule 462(b) Registration Statement the term “Registration Statement” shall include the Rule 462(b) Registration Statement. The term “
Prospectus
” shall mean the final prospectus supplement relating to the Notes, together with the Base Prospectus, that is first filed pursuant to Rule 424(b) under the Securities Act after the date and time that this Agreement is executed (the “
Execution Time
”) by the parties hereto.
The term “
Preliminary Prospectus
” shall mean any preliminary prospectus supplement relating to the Notes, together with the Base Prospectus, that is first filed with the Commission pursuant to Rule 424(b)
under the Securities Act. Any reference herein to the Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents that are or are deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act prior to 3:30 p.m. on November 14, 2011 (the “
Initial Sale Time
”). All references in this Agreement to the Registration Statement, the Rule 462(b) Registration Statement, the Preliminary Prospectus, the Prospectus, or any amendments or supplements to any of the foregoing, shall include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“
EDGAR
”).
All references in this Agreement to financial statements and schedules and other information which is “contained,” “included” or “stated” (or other references of like import) in the Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be, prior to the Initial Sale Time; and all references in this Agreement to amendments or supplements to the Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to include the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “
Exchange Act
”), which is or is deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be, after the Initial Sale Time.
The Company hereby confirms its agreements with the Underwriters as follows:
Section 1.
Representations and Warranties
of the Company
.
The Company hereby represents, warrants and covenants to each Underwriter as of the date hereof, as of the Initial Sale Time and as of the Closing Date (in each case, a “
Representation Date
”), as follows:
a)
Compliance with Registration Requirements
. The Company meets the requirements for use of Form S-3 under the Securities Act. The Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission, and any request on the part of the Commission for additional information has been complied with. In addition, the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (the “
Trust Indenture Act
”).
At the respective times the Registration Statement became effective and at each Representation Date, the Registration Statement (i) complied and will comply in all material respects with the requirements of the Securities Act and the Trust Indenture Act, and (ii) did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. At the date of the Prospectus and at the Closing Date, neither the Prospectus nor any amendments or supplements thereto included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or any post-effective amendment or the Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with Underwriter Information (as defined in Section 8(a) hereof).
The Preliminary Prospectus and the Prospectus, at the time each was filed with the Commission, complied in all material respects with the Securities Act, and the Preliminary Prospectus and the Prospectus delivered to the Underwriters for use in connection with the
offering of the Notes will, at the time of such delivery, be identical to any electronically transmitted copies thereof filed with the Commission via EDGAR, except to the extent permitted by Regulation S-T.
b)
Disclosure Package.
The term “
Disclosure Package
” shall mean (i) the Preliminary Prospectus dated November 14, 2011, (ii) any issuer free writing prospectuses as defined in Rule 433 under the Securities Act (each, an “
Issuer Free Writing Prospectus
”) identified in Exhibit B hereto and (iii) any other free writing prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package. As of the Initial Sale Time, the Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with Underwriter Information.
c)
Incorporated Documents
. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus (i) at the time they were or hereafter are filed with the Commission, complied or will comply in all material respects with the requirements of the Exchange Act and (ii) when read together with the other information in the Disclosure Package, at the Initial Sale Time, and when read together with the other information in the Prospectus, at the date of the Prospectus and at the Closing Date, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
d)
Company is a Well-Known Seasoned Issuer
. (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Notes in reliance on the exemption of Rule 163 under the Securities Act, and (iv) as of the Execution Time, the Company was and is a “well known seasoned issuer” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, that automatically became effective not more than three years prior to the Execution Time; the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form and the Company has not otherwise ceased to be eligible to use the automatic shelf registration form.
e)
Company is not an Ineligible Issuer
. (i) At the time of filing the Registration Statement and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405 under the Securities Act), without taking account of any determination by the Commission pursuant to Rule 405 under the Securities Act that it is not necessary that the Company be considered an Ineligible Issuer.
f)
Issuer Free Writing Prospectuses
. Each Issuer Free Writing Prospectus
, as of its issue date and at all
subsequent
times through the completion of the offering of Notes under this Agreement or until any earlier date that the Company notified or notifies the Representatives as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus, the Company has promptly notified or will promptly notify the Representatives and has promptly amended or supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict.
The foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with Underwriter Information.
g)
Distribution of Offering Material By the Company.
The Company has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriters’ distribution of the Notes, any offering material in connection with the offering and sale of the Notes other than the Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus reviewed and consented to by the Representatives and included in Exhibit B hereto or the Registration Statement.
h)
No Applicable Registration or Other Similar Rights.
There are no persons with registration or other similar rights to have any equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement, except for such rights as have been duly waived.
i)
The Underwriting Agreement.
This Agreement has been duly authorized, executed and delivered by the Company.
j)
Authorization of the Indentures
. The Amended Original Indenture has been duly qualified under the Trust Indenture Act. Each of the Indentures has been duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles. Prior to the issuance of the Notes at the Closing Date, the Indentures shall have been duly authorized, executed and delivered by the Company and, upon such authorization, execution and delivery, shall constitute a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
k)
Authorization of the Notes.
The 2111 Notes and the 2021 Notes to be purchased by the Underwriters from the Company are in the form contemplated by the respective Indentures, have been duly authorized for issuance and sale pursuant to this Agreement and the
respective Indentures and, at the Closing Date, will have been duly executed by the Company and, when authenticated in the manner provided for in the respective Indentures and delivered against payment of the purchase price therefor, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles, and will be entitled to the benefits of the respective Indentures.
l)
Description of the Notes and the Indentures.
The Notes and the Indentures conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus.
m)
Accuracy of Statements in Prospectus.
The statements in the Preliminary Prospectus under the caption “Description of the Notes” and the Prospectus under the captions “Descriptions of the 2021 Notes” and “Description of the 2111 Notes” and in each of the Preliminary Prospectus and the Prospectus under the caption “Certain U.S. Federal Income Tax Consequences to Non-U.S. Holders” and in the Pricing Term Sheet, dated November 14, 2011 under the caption “Certain U.S. Federal Income Tax Consequences to Non-U.S. Holders of 2111 Notes,” in each case insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present and summarize, in all material respects, the matters referred to therein.
n)
No Material Adverse Change
. Since the respective dates as of which information is given in the Disclosure Package and the Prospectus, there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, shareholders’ equity or results of operations of the Company and its subsidiaries considered as one enterprise otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus.
o)
Independent Accountants.
KPMG LLP, who have certified the financial statements of the Company and its subsidiaries and supporting schedules incorporated by reference in the Disclosure Package and the Prospectus, are independent public accountants with respect to the Company as required by the Securities Act and the Exchange Act and are an independent registered public accounting firm with the Public Company Accounting Oversight Board.
p)
Preparation of the Financial Statements.
The financial statements together with the related notes thereto, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of and at the dates indicated and the results of their operations and cash flows for the periods specified. Such financial statements comply as to form with the accounting requirements of the Securities Act and have been prepared in conformity with generally accepted accounting principles as applied in the United States (“
GAAP
”) applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto. No other financial statements are required to be included in the Registration Statement. The selected financial data and the summary financial information included in the Preliminary Prospectus and the Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial statements included in the Registration Statement, the Preliminary Prospectus and the Prospectus.
In addition, if any pro forma financial statements of the Company and its subsidiaries and the related notes thereto are included in the Registration Statement, the Preliminary Prospectus and the Prospectus, such pro forma financial statements and related notes present fairly the information shown therein, have been prepared in accordance with the Commission’s rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
q)
Good Standing of the Company.
The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the Commonwealth of Virginia, with corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus; and the Company is duly qualified as a foreign corporation to transact business and is in good standing under the laws of each other jurisdiction in which the conduct of its business or the ownership of its property requires such qualification, except where the failure to be so qualified could not reasonably be expected to have a Material Adverse Effect (as defined in Section 1(s) hereof) or adversely affect its ability to perform its obligations with respect to, or the enforceability of, the Notes or its business or financial condition.
r)
Capitalization.
The Company has an authorized capitalization as set forth in the Disclosure Package and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable, and all of the issued shares of capital stock of Norfolk Southern Railway Company (“
NSR
”) owned by the Company have been duly and validly authorized and issued and are fully paid and non-assessable, and (except for directors’ qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims other than agreements relating to joint venture companies.
s)
Absence of Defaults and Conflicts.
The issue and sale of the Notes and the compliance by the Company with all of the provisions of the Notes, the Indentures and this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or NSR pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or NSR is a party or by which the Company or NSR is bound or to which any of the property or assets of the Company or NSR is subject, other than those conflicts, breaches or defaults that would not, individually or in the aggregate, have a material adverse effect on the financial condition, earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a “
Material Adverse Effect
”), or violate any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or NSR or any of their properties other than those violations that
would not have a Material Adverse Effect, nor will such action result in any violation of the provisions of the Restated Articles of Incorporation or Bylaws of the Company; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Notes or the consummation by the Company of the transactions contemplated hereby, by the Disclosure Package or by the Prospectus, except such as have been obtained or made by the Company and are in full force and effect under the Securities Act, applicable state securities or blue sky laws and from the Financial Industry Regulatory Authority, Inc. (“
FINRA
”). No event of default or default with notice and/or lapse of time that would constitute an event of default in respect of the Initial 2111 Notes has occurred and is continuing.
t)
Absence of Proceedings.
There are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is subject which is required to be described in the Disclosure Package and the Prospectus under the Securities Act which is not described in the Disclosure Package or the Prospectus; the legal or governmental proceedings not so described are proceedings incidental to the kind of business conducted by the Company and its subsidiaries considered as one enterprise which will not individually or in the aggregate have a Material Adverse Effect; and there is no material contract or other material document of a character which is required to be described in the Disclosure Package and the Prospectus under the Securities Act which are not described in the Disclosure Package or the Prospectus.
u)
No Conflict with OFAC Laws.
Neither the Company nor any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“
OFAC
”); and the Company will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds, to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
v)
Sarbanes-Oxley Compliance
. There is and has been no failure on the part of the Company and any of the Company’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the “
Sarbanes-Oxley Act
”), including Section 402 related to loans and Sections 302 and 906 related to certifications.
w)
Internal Controls and Procedures.
The Company and its subsidiaries maintain effective internal control over financial reporting, as such term is defined in Rule 13a-15(f) under the Exchange Act. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorizations; (B) transactions are recorded as necessary topermit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (C) access to assets is permitted only in accordance with management’s general or specific authorization; (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (E) the interactive data in eXtensible Business Reporting Language incorporated by reference in
the Registration Statement, the Preliminary Prospectus and the Prospectus is prepared in accordance with the Commission’s rules and guidelines applicable thereto.
x)
No Material Weakness in Internal Controls.
Except as disclosed in the Disclosure Package and the Prospectus or in any document incorporated by reference therein, since the end of the Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
y)
Accuracy of Exhibits
. There are no franchises, contracts or documents which are required to be described in the Registration Statement, the Disclosure Package, the Prospectus or the documents incorporated by reference therein or to be filed as exhibits to the Registration Statement which have not been so described and filed as required.
z)
USA Patriot Act Acknowledgement
. The Company acknowledges that in accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
Any certificate signed by an officer of the Company and delivered to the Representatives or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Company to each Underwriter as to the matters set forth therein.
Section 2.
Purchase, Sale and Delivery of the
Notes.
a)
The Notes
.
The Company agrees to issue and sell to the several Underwriters, severally and not jointly, all of the Notes upon the terms herein set forth. On the basis of the representations, warranties and agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Underwriters agree, severally and not jointly, to purchase from the Company the aggregate principal amount of 2021 Notes set forth opposite their names on Schedule A at a purchase price of 98.772% of the principal amount of the 2021 Notes and the aggregate principal amount of 2111 Notes set forth opposite their names on Schedule A at a purchase price of 110.815% of the principal amount of the 2111 Notes, each payable on the Closing Date.
b)
The Closing Date
.
Delivery of certificates for the Notes in global form to be purchased by the Underwriters and payment therefor shall be made at the offices of Sidley Austin
LLP
, 787 Seventh Avenue, New York, New York 10019 (or such other place as may be agreed to by the Company and the Representatives) at 9:00 a.m., New York City time, on November 17, 2011, or such other time and date as the Underwriters and the Company shall mutually agree (the time and date of such closing are called the “
Closing Date
”).
c)
Public Offering of the Notes.
The Representatives hereby advise the Company that the Underwriters intend to offer for sale to the public, as described in the Disclosure Package
and the Prospectus, their respective portions of the Notes as soon after the Execution Time as the Representatives, in their sole judgment, have determined is advisable and practicable.
d)
Payment for the Notes.
Payment for the Notes shall be made at the Closing Date by wire transfer of immediately available funds to the order of the Company.
It is understood that the Representatives have been authorized, for their own accounts and for the accounts of the several Underwriters, to accept delivery of and receipt for, and make payment of the purchase price for, the Notes that the Underwriters have agreed to purchase. The Representatives may (but shall not be obligated to) make payment for any Notes to be purchased by any Underwriter whose funds shall not have been received by the Representatives by the Closing Date for the account of such Underwriter, but any such payment shall not relieve such Underwriter from any of its obligations under this Agreement.
e)
Delivery of the Notes.
The Company shall deliver, or cause to be delivered, to the Representatives for the accounts of the several Underwriters certificates for the Notes at the Closing Date, against the irrevocable release of a wire transfer of immediately available funds for the amount of the purchase price therefor. The certificates for the Notes shall be in such denominations and registered in such names and denominations as the Representatives shall have requested at least two full business days prior to the Closing Date and shall be made available for inspection on the business day preceding the Closing Date at a location in New York City, as the Representatives may designate. Time shall be of the essence, and delivery at the time and place specified in this Agreement is a further condition to the obligations of the Underwriters.
Section 3.
Covenants
o
f the Company
.
The Company covenants and agrees with each Underwriter as follows:
a)
Compliance with Securities Regulations and Commission Requests
.
The Company, subject to Section 3(b), will comply with the requirements of Rule 430B under the Securities Act, and will promptly notify the Representatives, and confirm the notice in writing, of (i) the effectiveness during the Prospectus Delivery Period (as defined in Section 3(b) hereof) of any post-effective amendment to the Registration Statement or the filing of any supplement or amendment to the Preliminary Prospectus or the Prospectus, (ii) the receipt of any comments from the Commission during the Prospectus Delivery Period, (iii) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Preliminary Prospectus or the Prospectus or for additional information, and (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424 under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the Preliminary Prospectus and the Prospectus transmitted for filing under Rule 424 under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such document. The Company will use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
b)
Filing of Amendments
.
During such period beginning on the date of this Agreement and ending on the later of the Closing Date or such date as, in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales of the Notes by an Underwriter or dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act (the “
Prospectus Delivery Period
”), the Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b) under the Securities Act), or any amendment, supplement or revision to the Disclosure Package or the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object.
c)
Delivery of Registration Statements
.
The Company has furnished or will deliver to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also deliver to the Representatives, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters. The Registration Statement and each amendment thereto furnished to the Underwriters will be identical to any electronically transmitted copies thereof filed with the Commission via EDGAR, except to the extent permitted by Regulation S-T.
d)
Delivery of Prospectuses
.
The Company will deliver to each Underwriter, without charge, as many copies of the Preliminary Prospectus as such Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the Securities Act. The Company will furnish to each Underwriter, without charge, during the Prospectus Delivery Period, such number of copies of the Prospectus as such Underwriter may reasonably request. The Preliminary Prospectus and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to any electronically transmitted copies thereof filed with the Commission via EDGAR, except to the extent permitted by Regulation S-T.
e)
Continued Compliance with Securities Laws
. The Company will comply with the Securities Act and the Exchange Act so as to permit the completion of the distribution of the Notes as contemplated in this Agreement and in the Registration Statement, the Disclosure Package and the Prospectus. If at any time during the Prospectus Delivery Period, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Disclosure Package or the Prospectus in order that the Disclosure Package or the Prospectus, as the case may be, will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the Initial Sale Time or at the time it is delivered or conveyed to a purchaser, not misleading, or if it shall be necessary, in the opinion of either such
counsel, at any such time to amend the Registration Statement or amend or supplement the Disclosure Package or the Prospectus in order to comply with the requirements of any law, the Company will (1) notify the Representatives of any such event, development or condition and (2) promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the Disclosure Package or the Prospectus comply with such law, and the Company will furnish to the Underwriters, without charge, such number of copies of such amendment or supplement as the Underwriters may reasonably request.
f)
Blue Sky Compliance.
The Company shall cooperate with the Representatives and counsel for the Underwriters to qualify or register the Notes for sale under (or obtain exemptions from the application of) the state securities or blue sky laws of those jurisdictions designated by the Representatives, shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for the distribution of the Notes. The Company shall not be required to qualify to transact business or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified. The Company will advise the Representatives promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Notes for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its reasonable best efforts to obtain the withdrawal thereof at the earliest possible moment.
g)
Use of Proceeds.
The Company shall apply the net proceeds from the sale of the Notes sold by it in the manner described under the caption “Use of Proceeds” in the Preliminary Prospectus and the Prospectus.
h)
Depositary.
The Company will cooperate with the Underwriters and use its best efforts to permit the Notes to be eligible for clearance and settlement through the facilities of the Depositary.
i)
Periodic Reporting Obligations.
During the Prospectus Delivery Period, the Company shall file, on a timely basis, with the Commission and the New York Stock Exchange (“
NYSE
”) all reports and documents required to be filed under the Exchange Act.
j)
Agreement Not to Offer or Sell Additional Securities.
During the period commencing on the date hereof and ending on the Closing Date, the Company will not, without the prior written consent of the Representatives (which consent may be withheld at the sole discretion of the Representatives), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any debt securities of the Company substantially similar to the Notes or securities exchangeable for or convertible into debt securities substantially similar to the Notes (other than as contemplated by this Agreement with respect to the Notes).
k)
Final Term Sheet
. The Company will prepare a final term sheet containing only a description of the Notes, in a form approved by the Underwriters and substantially in the form attached as Exhibit C hereto (but including the expected ratings of the Notes), and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (such term sheet, the “
Final Term Sheet
”). Any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of this Agreement.
l)
Permitted Free Writing Prospectuses
. The Company represents that it has not made, and agrees that, unless it obtains the prior written consent of the Representatives, it will not make, any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act) required to be filed by the Company with the Commission or retained by the Company under Rule 433 under the Securities Act;
provided
that the prior written consent of the Representatives shall be deemed to have been given in respect of any Issuer Free Writing Prospectuses included in Exhibit B to this Agreement. Any such free writing prospectus consented to or deemed to be consented to by the Representatives is hereinafter referred to as a “
Permitted Free Writing Prospectus
.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. The Company consents to the use by any Underwriter of a free writing prospectus that (a) is not an “issuer free writing prospectus” as defined in Rule 433 under the Securities Act, and (b) contains only (i) information describing the preliminary terms of the Notes or their offering, (ii) information permitted by Rule 134 under the Securities Act, (iii) information that describes the final terms of the Notes or their offering and that is included in the Final Term Sheet of the Company contemplated in Section 3(k) hereof, or (iv) customary pricing terms.
m)
Registration Statement Renewal Deadline.
If immediately prior to the third anniversary (the “
Renewal Deadline
”) of the initial effective date of the Registration Statement, any of the Notes remain unsold by the Underwriters, the Company will prior to the Renewal Deadline file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Notes, in a form satisfactory to the Representatives. If the Company is no longer eligible to file an automatic shelf registration statement, the Company will prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Notes, in a form satisfactory to the Representatives, and will use its reasonable best efforts to cause such registration statement to be declared effective within 60 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the expired registration statement relating to the Notes. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be.
n)
Notice of Inability to Use Automatic Shelf Registration Statement Form
. If at any time during the Prospectus Delivery Period, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) under the Securities Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the
Representatives, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Notes, in a form satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement of post-effective amendment to be declared effective, and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the registration statement that was the subject of such notice pursuant to the Rule 401(g)(2) under the Securities Act or for which the Company has otherwise become ineligible. References herein to the Registration Statement shall include such new registration statement or post-effective amendment, as the case may be.
o)
Filing Fees
. The Company agrees to pay the required Commission filing fees relating to the Notes within the time required by and in accordance with Rules 456(b)(1) and 457(r) under the Securities Act.
p)
Compliance with Sarbanes-Oxley Act.
The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes-Oxley Act, and use its reasonable best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes-Oxley Act.
The Representatives, on behalf of the several Underwriters, may, in their sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Section 4.
Payment of Expenses
.
The Company agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations hereunder and in connection with the transactions contemplated hereby, including without limitation (i) all expenses incident to the issuance and delivery of the Notes (including all printing and engraving costs), (ii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Notes, (iii) all fees and expenses of the Company’s counsel, independent public or certified public accountants and other advisors to the Company, (iv) all costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates of experts),
each Issuer Free Writing Prospectus, the Preliminary Prospectus and the Prospectus
, and all amendments and supplements thereto, and this Agreement, the Indentures
, the DTC Agreement
and the Notes, (v) all filing fees, reasonable attorneys’ fees and expenses incurred by the Company or the Underwriters in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or any part of the Notes for offer and sale under the state securities or blue sky laws, and, if requested by the Representatives, preparing a “Blue Sky Survey” or memorandum, and any supplements thereto, advising the Underwriters of such qualifications, registrations and exemptions, (vi)
the filing fees incident to, and the reasonable fees and disbursements of counsel for the Underwriters in connection with, the review, if any, by FINRA of the terms of the sale of the Notes
,
(vii)
the fees and expenses incurred in connection with the listing of the Notes on the New York Stock Exchange, (viii)
the fees and expenses of the Trustee, including the reasonable fees and disbursements of counsel for the Trustee in connection with the Indentures and the Notes, (ix) any fees payable
in connection with the rating of the Notes with the ratings agencies, (x) all fees
and expenses (including reasonable fees and expenses of counsel) of the Company in connection with approval of the Notes by the Depositary for “book-entry” transfer
, (xi) all other fees, costs and expenses referred to in Item 14 of Part II of the Registration Statement, and (xii) all other fees, costs and expenses incurred in connection with the performance of its obligations hereunder for which provision is not otherwise made in this Section 4
.
Except as provided in this Section 4 and Sections 6, 8 and 9 hereof, the Underwriters shall pay their own expenses, including the fees and disbursements of their counsel.
Section 5.
Conditions of the Obligations of the Underwriters
.
The obligations of the several Underwriters to purchase and pay for the Notes as provided herein on the Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company set forth in Section 1 hereof as of the date hereof, as of the Initial Sale Time, and as of the Closing Date as though then made and to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions:
a)
Effectiveness of Registration Statement
. The Registration Statement shall have become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act and no proceedings for that purpose shall have been instituted or be pending or threatened by the Commission, any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel for the Underwriters and the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form. The Preliminary Prospectus and the Prospectus shall have been filed with the Commission in accordance with Rule 424(b) (or any required post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A under the Securities Act).
b)
Accountants’ Comfort Letter
.
On the date hereof, the Representatives shall have received from KPMG LLP, independent registered public accountants for the Company, a letter dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representatives with respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement, the Preliminary Prospectus and the Prospectus.
c)
Bring-down Comfort Letter
. On the Closing Date, the Representatives shall have received from KPMG LLP, independent public or certified public accountants for the Company, a letter dated such date, in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to subsection (b) of this Section 5, except that the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Closing Date.
d)
No Material Adverse Change or Ratings Agency Change
.
For the period from and after the date of this Agreement and prior to the Closing Date:
(i) in the judgment of the Representatives there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, shareholders’
equity or results of operations of the Company and its subsidiaries considered as one enterprise otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus;
(ii) there shall not have been any change or decrease specified in the letter or letters referred to in subsection (b) of this Section 5 which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Prospectus; and
(iii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization” as such term is defined in Section 3(a)(62) of the Exchange Act.
e)
Opinions of Counsel for the Company
.
On the Closing Date, the Representatives shall have received the favorable opinion of William A. Galanko, Esq., Vice President – Law of the Company, dated as of such Closing Date, the form of which is attached as Exhibit A-1, and the opinions of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Company, the forms of which are attached as Exhibit A-2.
f)
Opinion of Counsel for the Underwriters
.
On the Closing Date, the Representatives shall have received the favorable opinion of Sidley Austin LLP, counsel for the Underwriters, dated as of such Closing Date, with respect to such matters as may be reasonably requested by the Underwriters.
g)
Officers’ Certificate
.
On the Closing Date, the Representatives shall have received a written certificate executed by the Chairman of the Board or the Chief Executive Officer or an Executive Vice President of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company, dated as of such Closing Date, to the effect that:
(i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose have been instituted or threatened by the Commission;
(ii) the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form;
(iii) the representations, warranties and covenants of the Company set forth in Section 1 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such Closing Date;
(iv) the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date; and
(v) no event of default or default with notice and/or lapse of time that would be an event of default in respect of the Initial 2111 Notes has occurred and is continuing.
h)
Additional
Documents.
On or before the Closing Date, the Representatives and counsel for the Underwriters shall have received such information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Notes as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 4, 6, 8, 9 and 17 shall at all times be effective and shall survive such termination.
Section 6.
Reimbursement of Underwriters’ Expenses
.
If this Agreement is terminated by the Representatives pursuant to Section 5, 10 or 11, or if the sale to the Underwriters of the Notes on the Closing Date is not consummated because of any refusal, inability or failure on the part of the Company to perform any agreement herein or to comply with any provision hereof, the Company agrees to reimburse the Representatives and the other Underwriters (or such Underwriters as have terminated this Agreement with respect to themselves), severally, upon demand for all out-of-pocket expenses that shall have been reasonably incurred by the Representatives and the Underwriters in connection with the proposed purchase and the offering and sale of the Notes, including but not limited to fees and disbursements of counsel, printing expenses, travel expenses, postage, facsimile and telephone charges.
Section 7.
Effectiveness of this Agreement
.
This Agreement shall not become effective until the execution of this Agreement by the parties hereto.
Section 8.
Indemnification
.
(a)
Indemnification of the Underwriters
.
The Company agrees to indemnify and hold harmless each Underwriter, its directors, officers, employees and agents, and each person, if any, who controls any Underwriter within the meaning of the Securities Act and the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which such Underwriter or such director, officer, employee, agent or controlling person may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation,
or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based
(i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto)
or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and to reimburse each Underwriter and each such director, officer, employee, agent and controlling person for any and all expenses (including the reasonable fees and disbursements of counsel chosen by the Representatives) as such expenses are reasonably incurred by such Underwriter or such director, officer, employee, agent or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action;
provided, however
, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with Underwriter Information.
The indemnity agreement set forth in this Section 8(a) shall be in addition to any liabilities that the Company may otherwise have.
The term “
Underwriter Information
” shall mean written information furnished to the Company by any Underwriter through the Representatives expressly for use in the Registration Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus and/or the Prospectus (or any amendment or supplement thereto). The Company hereby acknowledges that Underwriter Information shall consist only of the statements set forth in the seven and the eighth paragraphs under the caption “Underwriting” in the Preliminary Prospectus and the sixth and the seventh paragraphs under the caption “Underwriting” in the Prospectus.
(b)
Indemnification of the Company, its Directors and Officers
.
Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, each of its directors, each of its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act, against any loss, claim, damage, liability or expense, as incurred, to which the Company or any such director, officer or controlling person may become subject, under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of such Underwriter), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto)
or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with Underwriter Information; and to reimburse the Company, or any such director, officer or controlling person for any legal and other expense reasonably incurred by the Company, or any such director, officer or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action. The indemnity agreement set forth in this Section 8(b) shall be in addition to any liabilities that each Underwriter may otherwise have.
(c)
Notifications and Other Indemnification Procedures
.
Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof, but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party for contribution or otherwise than under the indemnity agreement contained in this Section 8 or to the extent it is not prejudiced as a proximate result of such failure. In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party;
provided
,
however
,
such indemnified party shall have the right to employ its own counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified party, unless: (i) the employment of such counsel has been specifically authorized in writing by the indemnifying party; (ii) the indemnifying party has failed promptly to assume the defense and employ counsel reasonably satisfactory to the indemnified party; or (iii) the named parties to any such action (including any impleaded parties) include both such indemnified party and the indemnifying party or any affiliate of the indemnifying party, and such indemnified party shall have reasonably concluded that either (x) there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party or such affiliate of the indemnifying party or (y) a conflict may exist between such indemnified party and the indemnifying party or such affiliate of the indemnifying party (it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to a single firm of local counsel) for all such indemnified parties, which firm shall be designated in writing by the Representatives and that all such reasonable fees and expenses shall be reimbursed as they are incurred)
. Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying party’s election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 8 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence, in which case the reasonable fees and expenses of counsel shall be at the expense of the indemnifying party.
(d)
Settlements
.
The indemnifying party under this Section 8 shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by Section 8(c) hereof, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity was or could have been sought hereunder by such indemnified party, unless such settlement, compromise or consent (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
Section 9.
Contribution
.
If the indemnification provided for in Section 8 is for any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, from the offering of the Notes pursuant to this Agreement or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand, and the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Notes pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Notes pursuant to this Agreement (before deducting expenses) received by the Company, and the total underwriting discount received by the Underwriters, in each case as set forth on the front cover page of the Prospectus bear to the aggregate initial public offering price of the Notes as set forth on such cover. The relative fault of the Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or the Underwriters, on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 8(c), any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim.
The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the underwriting commissions received by such Underwriter in connection with the Notes underwritten by it and distributed to the public. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 9 are several, and not joint, in proportion to their respective underwriting commitments as set forth opposite their names in Schedule A. For purposes of this Section 9, each director, officer, employee and agent of an Underwriter and each person, if any, who controls an Underwriter within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as the Company.
Section 10.
Default of One or More of the Several Underwriters
.
If, on the Closing Date, any one or more of the several Underwriters shall fail or refuse to purchase Notes that it or they have agreed to purchase hereunder on such date, and the aggregate principal amount of Notes which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not exceed 10% of the aggregate principal amount of the Notes to be purchased on such date, the other Underwriters shall be obligated, severally, in the proportion to the aggregate principal amounts of such Notes set forth opposite their respective names on Schedule A bears to the
aggregate principal amount of such
Notes set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as may be specified by the Representatives with the consent of the non-defaulting Underwriters, to purchase such Notes which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date. If, on the Closing Date, any one of the Underwriters shall fail or refuse to purchase such Notes and the aggregate principal amount of such Notes with respect to which such default occurs exceeds 10% of the aggregate principal amount of Notes to be purchased on such date and arrangements satisfactory to the Representatives and the Company for the purchase of such Notes are not made within 48 hours after such default, this Agreement shall terminate without liability of any party to any other party except that the provisions of Sections 4, 6, 8, 9 and 17 shall at all times be effective and shall survive such termination. In any such case, either the Representatives or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days in order that the required changes, if any, to the Registration Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus or any other documents or arrangements may be effected.
As used in this Agreement, the term “Underwriter” shall be deemed to include any person substituted for a defaulting Underwriter under this Section 10. Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
Section 11.
Termination of this Agreement
.
Prior to the Closing Date, this Agreement may be terminated by the Representatives by notice given to the Company if at any time (i) trading or quotation in any of the Company’s securities shall have been suspended or limited by the Commission or the NYSE, or trading in securities generally on either the Nasdaq Stock
Market or the NYSE shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchanges by the Commission or FINRA; (ii) a general banking moratorium shall have been declared by any of federal or New York authorities; (iii) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity involving the United States, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Representatives is material and adverse and makes it impracticable or inadvisable to market the Notes in the manner and on the terms described in the Disclosure Package or the Prospectus or to enforce contracts for the sale of securities; (iv) in the judgment of the Representatives there shall have occurred any material adverse change; or (v) there shall have occurred a material disruption in commercial banking or securities settlement or clearance services. Any termination pursuant to this Section 11 shall be without liability of any party to any other party except as provided in Sections 4 and 6 hereof, and provided further that Sections 4, 6, 8, 9 and 17 shall survive such termination and remain in full force and effect.
Section 12
.
No Fiduciary Duty
. The Company acknowledges and agrees that: (i) the purchase and sale of the Notes pursuant to this Agreement, including the determination of the public offering price of the Notes and any related discounts and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in connection with each transaction contemplated hereby and the process leading to such transaction each Underwriter is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary of the Company or its affiliates, stockholders, creditors or employees or any other party; (iii) no Underwriter has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Company with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement; (iv) the several Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company and that the several Underwriters have no obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the several Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the several Underwriters with respect to the subject matter hereof. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the several Underwriters with respect to any breach or alleged breach of agency or fiduciary duty in conjunction with any of the transactions contemplated hereby or the process leading thereto.
Section 13.
Representations and Indemnities to Survive Delivery
.
The respective indemnities, agreements, representations, warranties and other statements of the Company, of its
officers and of the several Underwriters set forth in or made pursuant to this Agreement (i) will remain operative and in full force and effect, regardless of any (A) investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the officers or employees of any Underwriter, or any person controlling the Underwriter,
the Company, the officers or employees of the Company, or any person controlling the Company,
as the case may be or (B) acceptance of the Notes and payment for them hereunder and (ii) will survive delivery of and payment for the Notes sold hereunder and any termination of this Agreement.
Section 14.
Notices
.
All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and confirmed to the parties hereto as follows:
If to the Representatives:
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Facsimile:
212-816-7912
Attention: General Counsel
Goldman, Sachs & Co.
200 West Street
New York, New York 10282
Toll-Free Telephone: 1-866-471-2526
Attention: Registration Department
Wells Fargo Securities, LLC
301 S. College Street, 6th Floor
Charlotte, North Carolina 28202
Facsimile: 704-383-9165
Attention: Transaction Management
with a copy to:
Sidley Austin LLP
787 Seventh Avenue
New York, New York 10019
Facsimile: 212-839-5599
Attention: Craig E. Chapman
If to the Company:
Norfolk Southern Corporation
3 Commercial Place
Norfolk, Virginia 23510
Facsimile: 757-823-5814
Attention: William A. Galanko
with a copy to:
Skadden, Arps, Slate Meagher & Flom LLP
4 Times Square
New York, New York 10036
Facsimile: 917-777-3574
Attention: David J. Goldschmidt
Any party hereto may change the address for receipt of communications by giving written notice to the others.
Section 15.
Successors
.
This Agreement will inure to the benefit of and be binding upon the parties hereto, including any substitute Underwriters pursuant to Section 10 hereof, and to the benefit of the directors, officers, employees, agents and controlling persons referred to in Sections 8 and 9, and in each case their respective successors, and no other person will have any right or obligation hereunder. The term “successors” shall not include any purchaser of the Notes as such from any of the Underwriters merely by reason of such purchase.
Section 16.
Partial Unenforceability
.
The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other section, paragraph or provision hereof. If any section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
Section 17.
Governing Law Provisions
.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE.
Section 18.
General Provisions
.
This Agreement may be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. The section headings herein are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification provisions of Section 8 and the contribution provisions of Section 9, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, the Disclosure Package and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act.
If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms.
|
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Very truly yours,
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NORFOLK SOUTHERN CORPORATION
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By:
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/s/ Marta R. Stewart
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Name:
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Marta R. Stewart
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Title:
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Vice President and Treasurer
|
[Signature Page to the Underwriting Agreement
]
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representatives as of the date first above written.
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CITIGROUP GLOBAL MARKETS INC.
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By:
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/s/ Brian Bednarski
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Title: Brian Bednarski
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Name: Managing Director
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GOLDMAN, SACHS & CO.
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By:
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/s/ Goldman, Sachs & Co.
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(Goldman, Sachs & Co.)
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WELLS FARGO SECURITIES, LLC
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By:
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/s/ Carolyn Hurley
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Title: Director
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Name: Carolyn Hurley
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Acting as Representatives of the
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several Underwriters named in
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the attached Schedule A.
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[Signature Page to the Underwriting Agreement
]
SCHEDULE A
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Underwriters
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Aggregate Principal Amount of 2021 Notes to be Purchased
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Aggregate Principal Amount of 2111 Notes to be Purchased
|
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Citigroup Global Markets Inc.
|
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$
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125,000,000
|
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$
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25,000,000
|
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Goldman, Sachs & Co.
|
|
|
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125,000,000
|
|
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25,000,000
|
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|
Wells Fargo Securities, LLC
|
|
|
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125,000,000
|
|
|
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25,000,000
|
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|
Fifth Third Securities, Inc.
|
|
|
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41,667,000
|
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|
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8,334,000
|
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Merrill Lynch, Pierce, Fenner & Smith Incorporated
|
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41,667,000
|
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8,333,000
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|
Mitsubishi UFJ Securities (USA), Inc.
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41,666,000
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8,333,000
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Total
|
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$
|
500,000,000
|
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$
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100,000,000
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EXHIBIT A-1
Form of Opinion of William A. Galanko,
Vice President – Law of the Company
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the Commonwealth of Virginia and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which the conduct of its business or the ownership of its property requires such qualification, except where the failure to so qualify or to be in good standing would not result in a Material Adverse Effect.
(ii) The Company has all requisite corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus.
(iii) The documents incorporated by reference in the Disclosure Package and the Prospectus, as amended or supplemented, when they were filed with the Commission appeared on their face to be appropriately responsive in all material respects to the requirements of the Exchange Act and the rules and regulations thereunder, except that such counsel need express no opinion as to the financial statements, related schedules and other financial data, and such counsel need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the documents incorporated by reference in the Disclosure Package and the Prospectus, as amended or supplemented.
(iv) The execution, delivery and performance by the Company of this Underwriting Agreement, the Indentures and the Notes (collectively, the “Transaction Documents”) have been duly authorized by all requisite corporate action on the part of the Company under the laws of the Commonwealth of Virginia.
(v) This Underwriting Agreement has been duly executed and delivered by the Company; and each of the other Transaction Documents, when executed, will have been duly executed and delivered by the Company.
(vi) The issuance and sale of the Notes have been duly authorized by the Company, and, when executed, issued and delivered by the Company, authenticated in accordance with the terms of the Indentures and paid for by the Underwriters in accordance with the terms of this Underwriting Agreement, the Notes will be valid and binding obligations of the Company enforceable in accordance with their terms and entitled to the benefits of the Indentures, except (a) to the extent that enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity) and (b) that such counsel need express no opinion as to Section 6.12 of the Amended Original Indenture.
(vii) The Indentures, when executed and delivered by the Company and the Trustee (assuming the due authorization, execution and delivery thereof by the Trustee), will be a
valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except (a) to the extent that enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity) and (b) that such counsel need express no opinion as to Section 6.12 of the Amended Original Indenture.
(viii) To the best of such counsel’s knowledge: (a) there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which would be required to be described in the Disclosure Package and the Prospectus which are not so described in the Disclosure Package and the Prospectus and (b) no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(ix) Neither the execution and delivery by the Company of the Transaction Documents nor the consummation by the Company of the transactions contemplated thereby, including the issuance and sale of the Notes, conflicts or will conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or NSR pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or NSR is a party or by which the Company or NSR is bound or to which any of the property or assets of the Company or NSR is subject, other than those conflicts, breaches or defaults that would not have a Material Adverse Effect, or violate any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or NSR or any of their properties, other than those violations that would not have a Material Adverse Effect, nor will such actions result in any violation of the provisions of the Restated Articles of Incorporation or Bylaws of the Company, except that such counsel need express no opinion with respect to state securities or blue sky laws or the laws of any foreign jurisdiction or with respect to the rights to indemnity and contribution under this Underwriting Agreement.
(x) No authorization, approval, consent or order of, and no filing, qualification or registration with, any court or governmental authority is required on the part of the Company for the execution, delivery or performance by the Company of each Transaction Document, including without limitation the issuance and sale of the Notes, other than registration or qualification under state securities or blue sky laws in connection with the offer and sale of the Notes.
(xi) The statements set forth in the Disclosure Package under the caption “Description of the Notes” and in the Prospectus under the captions “Description of the 2021 Notes” and “Description of the 2111 Notes,” insofar as such statements purport to summarize certain provisions of the laws and documents referred to therein, fairly summarize such provisions in all material respects.
(xii) The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, that automatically became effective not more than
three years prior to the Execution Time; the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form and the Company has not otherwise ceased to be eligible to use the automatic shelf registration form.
(xiii) The Registration Statement, including without limitation the information required under Rule 430B under the Securities Act (the “Rule 430B Information”), the Prospectus, excluding the documents incorporated by reference therein, and each amendment or supplement to the Registration Statement and the Prospectus, excluding the documents incorporated by reference therein, as of their respective effective or issue dates (including without limitation each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) under the Securities Act), other than the financial statements and supporting schedules included therein or omitted therefrom, and the Trustee’s Statement of Eligibility on Form T-1 (the “Form T-1”), as to which such counsel need express no opinion, complied as to form in all material respects with the requirements of the Securities Act.
Nothing has come to such counsel’s attention that would lead such counsel to believe that (i) the Registration Statement or any amendment thereto, including the Rule 430B Information (except for financial statements and schedules and other financial data included or incorporated by reference therein or omitted therefrom and the Form T-1, as to which such counsel need make no statement), as of its original effective date and at each deemed effective date with respect to the Underwriter pursuant to Rule 430B(f)(2) under the Securities Act, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Disclosure Package (except for financial statements and schedules and other financial data included or incorporated by reference therein or omitted therefrom, as to which such counsel need make no statement), as of the Initial Sale Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (iii) the Prospectus or any amendment or supplement thereto (except for financial statements and schedules and other financial data included or incorporated by reference therein or omitted therefrom, to which such counsel need make no statement), as of the date of the Prospectus, as of the date of any such amended or supplemented prospectus or as of the date hereof, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
In rendering the opinion required under this Exhibit A-1, counsel for the Company need not express any opinion concerning the laws of any jurisdiction other than those of the Commonwealth of Virginia and the United States of America, provided that such counsel states that he is aware of no difference between the laws of the Commonwealth of Virginia and the laws of the State of New York which would cause him to believe that his opinion would be inapplicable if it were furnished in connection with the laws of the State of New York. In addition, in rendering the opinion required under this Exhibit A, such counsel may rely as to matters of fact, to the extent such counsel deems it proper, on certificates of responsible officials of the Company and public officials.
EXHIBIT A-2
Form of Opinions of Skadden, Arps, Slate, Meagher & Flom LLP,
Counsel for the Company
(i) Each of the Underwriting Agreement, the Indentures and the Notes (collectively, the “Transaction Documents”) has been duly authorized, executed and delivered by all requisite corporate action on the part of the Company to the extent such authorization, execution and delivery are matters governed by the laws of the State of New York.
(ii) The Indentures constitute valid and binding obligations of the Company, enforceable against the Company in accordance with its terms under the laws of the State of New York.
(iii) When duly authenticated by the Trustee and issued and delivered by the Company against payment therefor in accordance with the terms of this Underwriting Agreement and the Indentures, the Notes will constitute valid and binding obligations of the Company entitled to the benefits of the Indentures and enforceable against the Company in accordance with their terms under the laws of the State of New York.
(iv) The statements in the Preliminary Prospectus under the caption “Description of the Notes,” when taken together with the Pricing Term Sheet dated November 14, 2011, and the statements in the Prospectus under the captions “Description of the 2021 Notes” and “Description of the 2111 Notes,” in each case insofar as such statements purport to summarize certain provisions of the Indentures and the Notes, fairly summarize such provisions in all material respects.
(v) The statements in the Preliminary Prospectus and the Prospectus under the caption “Underwriting,” insofar as such statements purport to summarize certain provisions of this Underwriting Agreement, fairly summarize such provisions in all material respects.
(vi) Neither the execution and delivery by the Company of the Transaction Documents nor the consummation by the Company of the transactions contemplated thereby: (i) violates any law, rule or regulation of the State of New York or the United States of America, or (ii) requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any law, rule or regulation of the State of New York or the United States of America except for those consents, approvals, licenses and authorizations already obtained.
(vii) The Company is not and, solely after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Prospectus, will not be an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(viii) Although the discussion set forth in the Preliminary Prospectus and the Prospectus under the caption “Certain U.S. Federal Income Tax Consequences to Non-U.S. Holders” and in the Pricing Term Sheet under the caption “Certain U.S. Federal Income Tax
Consequences to Non-U.S. Holders of 2111 Notes” does not purport to discuss all possible United States federal income tax consequences of the acquisition, ownership, and disposition of the Notes to non-U.S. holders, such discussion constitutes, in all material respects, a fair and accurate summary of the United States federal income tax consequences of the acquisition, ownership, and disposition of the Notes to non-U.S. holders.
In addition, such counsel shall state that, assuming the accuracy of the representations and warranties of the Company set forth in Sections 1(d) and 1(e) of this Underwriting Agreement, the Registration Statement became effective upon filing with the Commission pursuant to Rule 462 under the Securities Act, except for Post-Effective Amendment No. 1 thereto, which was declared effective by the Commission pursuant to Rule 462 of the General Rules and Regulations under the Securities Act (the “Rules and Regulations”), and, pursuant to Section 309 of the Trust Indenture Act of 1939 (the “Trust Indenture Act”), the Indenture has been qualified under the Trust Indenture Act, and such counsel has been orally advised by the Commission that no stop order suspending the effectiveness of the Registration Statement has been issued and, to its knowledge, no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company, counsel for the Company, representatives of the independent registered public accountants of the Company and representatives of the Underwriters at which the contents of the Registration Statement, the Prospectus, the Disclosure Package and related matters were discussed. Such counsel does not pass upon, or assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Prospectus or the Disclosure Package and has made no independent check or verification thereof (except to the limited extent referred to in paragraph (iii) above). On the basis of the foregoing, (i) the Registration Statement at the time of effectiveness of the Registration Statement for purposes of Section 11 of the Securities Act and the Prospectus, as of the date of the Prospectus Supplement, appeared on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the Rules and Regulations (except that in each case such counsel need not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom or the Statement of Eligibility on Form T-1 (the “Form T-1”)) and (ii) no facts have come to such counsel’s attention that have caused it to believe that the Registration Statement, at the time of effectiveness of the Registration Statement for purposes of Section 11 of the Securities Act, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the date of the Prospectus Supplement and as of the date hereof contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that in each case such counsel need not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom, the report of management’s assessment of the effectiveness of internal controls over financial reporting or the auditors’ attestation report thereon, or the statements contained in the exhibits to the Registration Statement, including the Form T-1). In addition, on the basis of the foregoing, no facts have
come to such counsel’s attention that have caused it to believe that the Disclosure Package, as of the Initial Sale Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that such counsel need not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom, the report of management’s assessment of the effectiveness of internal controls over financial reporting or the auditors’ attestation report thereon, or the statements contained in the exhibits to the Registration Statement, including Form T-1, to the extent included or incorporated by reference therein).
EXHIBIT B
Issuer Free Writing Prospectuses
Pricing Term Sheet dated November 14, 2011
EXHIBIT C
Pricing Term Sheet
Dated as of November 14
, 2011
Norfolk Southern Corporation
$500,000,000
3.250
% Senior Notes due 2021
$100,000,000
6.000
% Senior Notes due 2111 (Reopening)
The following information supplements the Preliminary Prospectus Supplement dated November 14
, 2011 (the “Preliminary Prospectus Supplement”)
, and is filed pursuant to Rule 433, under Registration No. 333-158240.
3.250
% Senior Notes due 2021
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Issuer:
|
|
Norfolk Southern Corporation
|
|
|
|
|
|
Principal Amount:
|
|
$500,000,000
|
|
|
|
|
|
Format:
|
|
SEC Registered
|
|
|
|
|
|
Denominations:
|
|
$2,000 x $1,000
|
|
|
|
|
|
Trade Date:
|
|
November 14
, 2011
|
|
|
|
|
|
Settlement Date:
|
|
November 17
, 2011
(T+3)
|
|
|
|
|
|
Maturity Date:
|
|
December 1, 2021
|
|
|
|
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|
Benchmark Treasury:
|
|
UST 2.000% due November 15, 2021
|
|
|
|
|
|
Benchmark Treasury Price and Yield:
|
|
99-21 / 2.038%
|
|
|
|
|
|
Spread to Benchmark Treasury:
|
|
T+128 basis points
|
|
|
|
|
|
Yield to Maturity:
|
|
3.318%
|
|
|
|
|
|
Coupon:
|
|
3.250%
|
|
|
|
|
|
Public Offering Price:
|
|
99.422
%
|
|
|
|
|
|
Interest Payment Dates:
|
|
June 1 and December 1, commencing June 1, 2012.
|
|
|
|
|
|
Make-Whole Call:
|
|
Any time at the following redemption price: (i) i
f the notes are redeemed prior to the date that is three months prior to the Maturity Date, the greater of 100% or the make-whole amount at a discount rate equal to the applicable
Treasury Yield (as defined in the Preliminary Prospectus Supplement) plus 20 basis points
, and (ii) if the notes are redeemed on or after the date that is three months prior to the Maturity Date, 100%.
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|
|
|
|
|
CUSIP#/ISIN#:
|
|
655844BG2
/
US655844BG28
|
|
|
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|
|
Joint Book-Running Managers:
|
|
Citigroup Global Markets Inc.
Goldman, Sachs & Co.
Wells Fargo Securities, LLC
|
|
|
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Co-Managers:
|
|
Fifth Third Securities, Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Mitsubishi UFJ Securities (USA), Inc.
|
6.000% Senior Notes due 2111 (Reopening)
The 6.000% Senior Notes due 2111 constitute a further issuance of our outstanding 6.000% Senior Notes due 2111, a series of debt securities first issued by us on May 23, 2011. The following information, which should be read in conjunction with the Preliminary Prospectus Supplement, supplements, and to the extent inconsistent with replaces, the information set forth in the Preliminary Prospectus Supplement.
|
Issuer:
|
|
Norfolk Southern Corporation
|
|
|
|
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|
Principal Amount:
|
|
$100,000,000
|
|
|
|
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|
Reopening:
|
|
The
6.000% Senior Notes due 2111 offered hereby and by the Preliminary Prospectus Supplement constitute
a further issuance of, and will be consolidated and form a single series of debt securities with, the $400,000,000 aggregate principal amount of the 6.000% Senior Notes due 2111 issued by us on May 23, 2011 and the $4,492,000 aggregate principal amount of the 6.000% Senior Notes due 2111 issued by us on September 14, 2011 (collectively, the “2111 Notes”). The
2111 Notes
offered hereby and by the Preliminary Prospectus Supplement will have the same CUSIP number as the $400,000,000 aggregate principal amount of 2111 Notes previously issued on May 23, 2011 (the $4,492,000 aggregate principal amount of the 2111 Notes previously issued on September 14, 2011 were initially issued with a different CUSIP number and were subject to restrictions on transfer imposed by applicable U.S. federal securities laws). Following the issuance of the $100,000,000 aggregate principal amount of 2111 Notes offered hereby and by the Preliminary Prospectus Supplement, the aggregate principal amount of the 2111 Notes outstanding will be $504,492,000.
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|
|
|
|
|
Format:
|
|
SEC Registered
|
|
|
|
|
|
Denominations:
|
|
$2,000 x $1,000
|
|
|
|
|
|
Trade Date:
|
|
November 14
, 2011
|
|
|
|
|
|
Settlement Date:
|
|
November 17
, 2011
(T+3)
|
|
|
|
|
|
Maturity Date:
|
|
May 23, 2111
|
|
|
|
|
|
Yield to Maturity:
|
|
5.363
%
|
|
|
|
|
|
Coupon:
|
|
6.000%
|
|
|
|
|
|
Public Offering Price:
|
|
111.815%
, plus accrued interest from May 23, 2011
|
|
|
|
|
|
Interest Payment Dates:
|
|
May 23 and November 23, commencing November 23, 2011.
|
|
|
|
|
|
Make-Whole Call:
|
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Any time at the greater of 100% or the make-whole amount at a discount rate equal to the applicable Treasury Yield (as defined in the Preliminary Prospectus Supplement) plus 30 basis points.
The Treasury Yield will be calculated in the manner described in the Preliminary Prospectus Supplement except that Morgan Stanley & Co. LLC is the Independent Investment Banker and the Reference Treasury Dealer (each as defined in the Preliminary Prospectus Supplement).
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Change of Control:
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The information appearing in the Preliminary Prospectus
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Supplement under the caption “Description of the Notes—Change of Control Repurchase Event” will not be applicable to the 2111 Notes. The Issuer will have no obligation to repurchase the 2111 Notes upon the occurrence of a change of control or similar event.
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Certain U.S. Federal Income Tax Consequences to Non-U.S. Holders of 2111 Notes:
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See below for a description of certain U.S. federal income tax consequences to non-U.S. holders of the 2111 Notes.
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CUSIP#/ISIN#:
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655844 BD9 / US655844BD96
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Joint Book-Running Managers:
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Citigroup Global Markets Inc.
Goldman, Sachs & Co.
Wells Fargo Securities, LLC
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Co-Managers:
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Fifth Third Securities, Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Mitsubishi UFJ Securities (USA), Inc.
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CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES TO
NON-U.S. HOLDERS OF 2111 NOTES
The following is a general discussion of certain United States federal income tax consequences to a Non-U.S. Holder (as defined below) of the acquisition, ownership and disposition of the 2111 Notes. This discussion does not address specific tax consequences that may be relevant to particular persons in light of their individual circumstances (including, for example, entities treated as partnerships for United States federal income tax purposes or partners or members therein, banks or other financial institutions, broker-dealers, insurance companies, regulated investment companies, tax-exempt entities, common trust funds, certain expatriates, controlled foreign corporations, dealers in securities or currencies, and persons in special situations, such as those who hold the 2111 Notes as part of a straddle, hedge, synthetic security, conversion transaction or other integrated investment comprised of the 2111 Notes and one or more other investments). Unless otherwise stated, this discussion is limited to Non-U.S. Holders that purchase the 2111 Notes in this offering at their Public Offering Price and that hold such 2111 Notes as capital assets for United States federal income tax purposes. In addition, this discussion does not describe any tax consequences arising under United States federal gift and estate tax or other U.S. federal tax laws or under the tax laws of any state, local or foreign jurisdiction. This discussion is based upon the Internal Revenue Code of 1986, as amended (the “Code”), the Treasury Regulations (the “Treasury Regulations”) promulgated thereunder, and administrative and judicial interpretations thereof, all as of the date hereof and all of which are subject to change, possibly with retroactive effect.
Prospective purchasers of the 2111 Notes are urged to consult their tax advisors concerning the United States federal income tax consequences to them of acquiring, owning and disposing of the 2111 Notes, as well as the application of state, local and foreign income and other tax laws.
For purposes of this discussion, a Non-U.S. Holder is a beneficial owner of the 2111 Notes other than a partnership (or entity treated as a partnership for United States federal income tax purposes) that is not a U.S. person. A “U.S. person” means (i) a citizen or individual resident of the United States; (ii) a corporation (including an entity treated as a corporation for United States federal income tax purposes) created or organized in or under the laws of the United States, any state thereof or the District of Columbia; (iii) an estate, the income of which is subject to United States federal income tax regardless of the source; or (iv) a trust, if a court within the United States is able to exercise primary supervision over
the trust’s administration and one or more U.S. persons have the authority to control all its substantial decisions.
Classification of the 2111 Notes
. The 2111 Notes should be treated as debt for U.S. federal income tax purposes and the remainder of this discussion assumes such treatment is respected.
Payments of Interest.
Payments of interest on the 2111 Notes made by us or our agent to a Non-U.S. Holder generally should not be subject to United States federal withholding tax, provided that:
(1) the Non-U.S. Holder does not actually or constructively own 10 percent or more of the total combined voting power of all classes of our stock entitled to vote;
(2) the Non-U.S. Holder is not a controlled foreign corporation that is related to us, directly or indirectly, through stock ownership; and
(3) either (A) the beneficial owner of the 2111 Notes certifies to us or our agent on IRS Form W-8BEN (or successor form), under penalties of perjury, that it is not a U.S. person, provides its name and address and renews the certificate periodically as required by the Treasury Regulations, or (B) the 2111 Notes are held through certain foreign intermediaries and the beneficial owner of the 2111 Notes satisfies certain certification requirements of the applicable Treasury Regulations and, in either case, neither we nor our agent has actual knowledge or reason to know that such beneficial owner is a U.S. person. Special certification rules apply to certain Non-U.S. Holders that are entities rather than individuals.
If a Non-U.S. Holder cannot satisfy the requirements of the exemption described above, payments of interest made to such Non-U.S. Holder should be subject to a 30% withholding tax unless the beneficial owner of the 2111 Notes provides us or our agent, as the case may be, with a properly executed:
(1) IRS Form W-8BEN (or successor form) claiming an exemption from withholding or reduced rate of tax under an applicable tax treaty (a “Treaty Exemption”), or
(2) IRS Form W-8ECI (or successor form) stating that interest paid on the 2111 Notes is not subject to withholding tax because it is effectively connected with the conduct of a U.S. trade or business of the beneficial owner, each such Form to be renewed periodically as required by the Treasury Regulations.
If interest on the 2111 Notes is effectively connected with the conduct of a U.S. trade or business of the beneficial owner (and, if certain tax treaties apply, is attributable to a permanent establishment maintained by the Non-U.S. Holder within the United States), the Non-U.S. Holder, although exempt from the withholding tax described above, should generally be subject to United States federal income tax on the receipt or accrual of such interest on a net income basis in the same manner as if it were a U.S. person. In addition, if such Non-U.S. Holder is a foreign corporation, it may be subject to a branch profits tax equal to 30% (or lower applicable treaty rate) of its effectively connected earnings and profits for the taxable year, subject to adjustments. For this purpose, interest on the 2111 Notes should be included in such foreign corporation’s earnings and profits.
Disposition of the 2111 Notes.
No withholding of United States federal income tax generally should be required with respect to any gain realized by a Non-U.S. Holder upon the sale, exchange or other taxable disposition of the 2111 Notes.
In addition, a Non-U.S. Holder should not be subject to United States federal income tax on gain realized on the sale, exchange or other taxable disposition of the 2111 Notes unless (i) the Non-U.S. Holder is an individual who is present in the United States for a period or periods aggregating 183 or more days in the taxable year of the disposition and certain other conditions are met, or (ii) such gain is
effectively connected with the Non-U.S. Holder’s U.S. trade or business and, if certain tax treaties apply, is attributable to a permanent establishment maintained by the Non-U.S. Holder within the United States.
Information Reporting and Backup Withholding
In general, backup withholding and information reporting should not apply to a payment of interest on a 2111 Note to a Non-U.S. Holder, or to proceeds from the disposition of a 2111 Note by a Non-U.S. Holder, in each case, if the holder certifies under penalties of perjury that it is a Non-U.S. Holder and neither we nor our agent has actual knowledge or reason to know to the contrary. Any amounts withheld under the backup withholding rules should be refunded or credited against the Non-U.S. Holder’s United States federal income tax liability provided the required information is timely furnished to the IRS. In certain circumstances, if a 2111 Note is not held through a qualified intermediary, the amount of payments made on such 2111 Note, the name and address of the beneficial owner and the amount, if any, of tax withheld may be reported to the IRS.
The issuer has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (the “SEC”) for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and the related preliminary prospectus supplement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at
www.sec.gov
. Alternatively, the representatives of the underwriters can arrange to send you the prospectus and related preliminary prospectus supplement if you request it by calling Citigroup Global Markets Inc. at 1-877-858-5407, Goldman, Sachs & Co. at 1-866-471-2526 or Wells Fargo Securities, LLC at 1-800-326-5897.
This information does not purport to be a complete description of these securities or the offering. Please refer to the preliminary prospectus supplement for a complete description of the securities. This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
Exhibit C-3
Exhibit 4.1
EXECUTION VERSION
NORFOLK SOUTHERN CORPORATION
as Issuer
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
______________
FOURTH SUPPLEMENTAL INDENTURE
Dated as of November 17, 2011
to
INDENTURE
Dated as of June 1, 2009
______________
3.250% Senior Notes due 2021
6% Senior Notes due 2111
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
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SECTION 1.01.
Definitions.
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3
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ARTICLE II
Establishment of the 2021 Notes
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SECTION 2.01.
Designation and Establishment.
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4
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SECTION 2.02.
Form of the 2021 Notes.
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4
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SECTION 2.03.
Principal Amount of the 2021 Notes.
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5
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SECTION 2.04.
Interest Rates; Stated Maturity.
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5
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SECTION 2.05.
No Sinking Fund.
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5
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SECTION 2.06.
Global Notes and Denomination of the 2021 Notes.
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5
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SECTION 2.07.
Optional Redemption.
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5
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SECTION 2.08.
Change of Control.
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5
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ARTICLE III
Additional 2111 Notes
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SECTION 3.01.
Designation and Authorization
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7
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SECTION 3.02.
Form of the Additional 2111 Notes.
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7
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SECTION 3.03.
Denomination of the Additional 2111 Notes.
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7
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ARTICLE IV
Miscellaneous
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SECTION 4.01.
Legal Holidays.
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7
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SECTION 4.02.
Application of Fourth Supplemental Indenture.
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7
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SECTION 4.03.
Effective Date of Fourth Supplemental Indenture.
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8
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SECTION 4.04.
Counterparts.
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8
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SECTION 4.05.
Trustee Not Responsible for Recitals.
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8
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SECTION 4.06.
Governing Law.
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8
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SECTION 4.07.
U.S.A. Patriot Act.
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8
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Exhibit A
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Form of 2021 Note
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Exhibit B
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Form of Additional 2111 Note
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FOURTH SUPPLEMENTAL INDENTURE
, dated as of November
17
, 2011 (this “Fourth Supplemental Indenture”), by and between Norfolk Southern Corporation, a Virginia corporation, as issuer (the “Company”), and U.S. Bank Trust National Association, as trustee (the “Trustee”).
WHEREAS
, the Company executed and delivered the indenture, dated as of June 1, 2009, to the Trustee (the “Base Indenture,” as amended and supplemented by a third supplemental indenture, dated as of September 14, 2011 (the “Third Supplemental Indenture”) (as so amended, the “Amended Base Indenture”)), to provide for the issuance of the Company’s debt securities to be issued in one or more series;
WHEREAS
, pursuant to Sections 2.01 and 9.01 of the Base Indenture, the execution and delivery of a second supplemental indenture, dated as of May 23, 2011, between the Company and the Trustee (the “Second Supplemental Indenture” and, together with the Amended Base Indenture, as further supplemented by this Fourth Supplemental Indenture, the “Indenture”) established and authorized the issuance of the Company’s 6% Senior Notes due 2111, a new series of debt securities initially limited to an aggregate principal amount of $400,000,000 (the “2111 Series”);
WHEREAS
, pursuant to Sections 2.01 and 9.01 of the Base Indenture, the execution and delivery of the Third Supplemental Indenture authorized the issuance of an additional $4,492,000 aggregate principal amount of debt securities of the 2111 Series;
WHEREAS
, on May 23, 2011 and September 14, 2011 the Company issued $400,000,000 and $4,492,000 aggregate principal amount, respectively, of debt securities of the 2111 Series (the “Prior 2111 Notes”);
WHEREAS
, Section 2.01 of the Second Supplemental Indenture and Section 2.01 of the Third Supplemental Indenture contemplate the reopening of the 2111 Series;
WHEREAS
, the Company desires to reopen the 2111 Series and has requested the Trustee to join it in the execution and delivery of this Fourth Supplemental Indenture in connection with the issuance by the Company of an additional $100,000,000 aggregate principal amount of debt securities of the 2111 Series (the “Additional 2111 Notes” and, together with the Prior 2111 Notes, the “2111 Notes”), the form and substance of such Additional 2111 Notes and the terms, provisions and conditions thereof being identical (except that the $4,492,000 aggregate principal amount of the Prior 2111 Notes issued by the Company on September 14, 2011 was initially issued with a different CUSIP number and subject to restrictions on transfer imposed by applicable U.S. federal securities laws) to the form, substance, terms, provisions and conditions of the Prior 2111 Notes, as provided in the Amended Base Indenture, the Second Supplemental Indenture and the Third Supplemental Indenture, and the Additional 2111 Notes shall be deemed to be part of the 2111 Series;
WHEREAS
, pursuant to the terms of the Amended Base Indenture, the Company desires to provide for the establishment of a new series of debt securities under the Amended Base Indenture to be known as its “3.250% Senior Notes due 2021” (the “2021 Notes”), the form and substance and the terms, provisions and conditions thereof to be set forth as provided in the Amended Base Indenture and this Fourth Supplemental Indenture;
WHEREAS
, the execution and delivery of this Fourth Supplemental Indenture and the issuance of the Additional 2111 Notes and the 2021 Notes have been authorized by a Board Resolution and the Board of Directors has authorized the proper officers of the Company to execute any and all appropriate documents necessary or appropriate to effect such issuance;
WHEREAS
, this Fourth Supplemental Indenture is being entered into pursuant to the provisions of Section 9.01 of the Amended Base Indenture;
WHEREAS
, the Company has requested that the Trustee execute and deliver this Fourth Supplemental Indenture; and
WHEREAS
, all things necessary to make this Fourth Supplemental Indenture a valid agreement of the Company, in accordance with its terms, and to make the Additional 2111 Notes and the 2021 Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid obligations of the Company, have been performed, and the execution and delivery of this Fourth Supplemental Indenture has been duly authorized in all respects;
NOW THEREFORE
, in consideration of the premises and the purchase and acceptance of the Additional 2111 Notes and the 2021 Notes by the Holders thereof, and for the purpose of setting forth, as provided in the Amended Base Indenture, the forms and terms of the Additional 2111 Notes and the 2021 Notes, the Company covenants and agrees, with the Trustee for the benefit of the Holders of the Additional 2111 Notes and the 2021 Notes, as follows:
ARTICLE I
Definitions
SECTION 1.01.
Definitions
.Unless the context otherwise requires, capitalized terms used but not defined herein have the meaning set forth in the Amended Base Indenture. The following additional terms are hereby established for purposes of this Fourth Supplemental Indenture and shall have the meaning set forth in this Fourth Supplemental Indenture only for purposes of this Fourth Supplemental Indenture.
“
2021 Notes
” has the meaning set forth in the recitals above.
“
Additional 2111 Notes
” has the meaning set forth in the recitals above.
“
Below Investment Grade Ratings Event
” means, with respect to the 2021 Notes, on any day within the 60-day period (which period shall be extended so long as the rating of the 2021 Notes is under publicly announced consideration for a possible downgrade by any Rating Agency) after the earlier of (1) the occurrence of a Change of Control; or (2) public notice of the occurrence of a Change of Control or the intention by the Company to effect a Change of Control, the 2021 Notes are rated below investment grade by each and every Rating Agency. Notwithstanding the foregoing, a Below Investment Grade Ratings Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Ratings Event for purposes of the definition of Change of Control Repurchase Event hereunder) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Trustee in writing at the Company’s request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Ratings Event).
“
Change of Control
” means the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” or “group” (as those terms are used in Section 13(d)(3) of the Exchange Act), other than the Company or its subsidiaries, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the combined voting power of the Company’s voting stock or other voting stock into which the Company’s voting stock is reclassified, consolidated, exchanged or changed measured by voting power rather than number of shares.
“
Change of Control Repurchase Event
” means the occurrence of both a Change of Control and a Below Investment Grade Ratings Event with respect to the 2021 Notes.
“
DTC
” means The Depository Trust Company.
“
Global Note
” means a note evidencing all or a part of a series of notes, issued to the Depositary for such series in accordance with Section 2.02 of the Amended Base Indenture.
“
Interest Payment Date
” means, with respect to the payment of interest on the 2021 Notes, each June 1 and December 1 of each year and, with respect to the payment of interest on the 2111 Notes, each May 23 and November 23 of each year.
“
Investment grade
” means, with respect to Moody’s, a rating of Baa3 or better (or its equivalent under any successor rating categories of Moody’s); with respect to S&P, a rating of BBB- or better (or its equivalent under any successor rating categories of S&P); and, with respect to any additional Rating Agency or Rating Agencies selected by the Company, the equivalent investment grade credit rating.
“
Moody’s
” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.
“
Rating Agency
” means (1) each of Moody’s and S&P; and (2) if either of Moody’s or S&P ceases to rate the 2021 Notes or fails to make a rating of the 2021 Notes publicly available for reasons outside of the Company’s control, a “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the Company (as certified by a Board Resolution) as a replacement agency for Moody’s or S&P, or both of them, as the case may be.
“
S&P
” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors.
“
Voting stock
” of any specified “person” (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date means the capital stock of such person that is at the time entitled to vote generally in the election of the board of directors of such person.
The words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Fourth Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision. The rules of construction set forth in Section 1.04 of the Amended Base Indenture shall apply to this Fourth Supplemental Indenture.
ARTICLE II
Establishment of the 2021 Notes
SECTION 2.01.
Designation and Establishment
. Pursuant to the terms hereof and Section 2.01 of the Amended Base Indenture, the Company hereby establishes a new series of notes designated as the “3.250% Senior Notes due 2021.” The series of 2021 Notes may be reopened, from time to time, for issuances of additional notes of such series. Any such additional notes shall have the same ranking, interest rate, maturity date and other terms as the 2021 Notes. Any such additional 2021 Notes, together with the 2021 Notes herein provided for, shall constitute a single series of notes under the Indenture.
SECTION 2.02.
Form of the 2021 Notes
. The 2021 Notes shall be issued in the form of one or more Global Notes in substantially the form set forth in
Exhibit A
hereto.
SECTION 2.03.
Principal Amount of the 2021 Notes
. The 2021 Notes shall be initially issued in an aggregate principal amount of $500,000,000.
SECTION 2.04.
Interest Rates; Stated Maturity
. The 2021 Notes shall bear interest (computed on the basis of a 360-day year consisting of twelve 30-day months) from November 17, 2011 at the rate of 3.250% per annum payable semiannually in arrears; interest payable on each Interest Payment Date shall include interest accrued from November 17, 2011, or from the most recent Interest Payment Date to which interest has been paid or duly provided for; the Interest Payment Dates on which such interest shall be payable are June 1 and December 1, commencing on June 1, 2012; and the record date for the interest payable on any Interest Payment Date is the close of business on May 15 or November 15, as the case may be, next preceding the relevant Interest Payment Date. The 2021 Notes shall have a Stated Maturity of December 1, 2021.
SECTION 2.05.
No Sinking Fund
. No sinking fund is provided for the 2021 Notes.
SECTION 2.06.
Global Notes and Denomination of the 2021 Notes
. Upon the original issuance, the 2021 Notes shall be represented by one or more Global Notes. The Company shall issue the 2021 Notes in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof and shall deposit the Global Notes with the Trustee as custodian for DTC in New York, New York, and register the Global Notes in the name of DTC or its nominee.
SECTION 2.07.
Optional Redemption
. The 2021 Notes are subject to redemption at the option of the Company as set forth in the form of Note attached hereto as
Exhibit A
.
SECTION 2.08.
Change of Control
. (a) If a Change of Control Repurchase Event occurs with respect to the 2021 Notes, unless the Company has exercised its right to redeem the 2021 Notes pursuant to paragraph 5 of the 2021 Notes, the Company will make an offer to each Holder of the 2021 Notes to repurchase all or any part (in integral multiples of $1,000) of that Holder’s 2021 Notes at a repurchase price (the “Repurchase Price”) in cash equal to 101% of the aggregate principal amount of such 2021 Notes repurchased plus any accrued and unpaid interest on the 2021 Notes repurchased to, but not including, the Repurchase Date (defined below). Within 30 days following a Change of Control Repurchase Event or, at the Company’s option, prior to a Change of Control, but after the public announcement of a Change of Control, the Company will mail, or cause to be mailed, a notice to each Holder of the 2021 Notes, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and offering to repurchase the 2021 Notes on the payment date specified in the notice (such offer the “Repurchase Offer” and such date the “Repurchase Date”), which Repurchase Date will be a Business Day that is no earlier than 30 days and no later than 60 days from the date such notice is mailed. The notice shall, if mailed prior to the date of consummation of the Change of Control, state that the Repurchase Offer is conditioned on a Change of Control Repurchase Event occurring on or prior to the Repurchase Date.
(b) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the 2021 Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the 2021 Notes, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Repurchase Event provisions of the 2021 Notes by virtue of such conflict.
(c) On the Repurchase Date following a Change of Control Repurchase Event, the Company will, to the extent lawful:
(1) accept for payment all 2021 Notes or portions of 2021 Notes properly tendered pursuant to the Repurchase Offer;
(2) deposit with the Trustee or with such Paying Agent as the Trustee may designate an amount equal to the aggregate Repurchase Price for all 2021 Notes or portions of 2021 Notes properly tendered; and
(3) deliver, or cause to be delivered, to the Trustee the 2021 Notes properly accepted, together with an Officers’ Certificate stating the aggregate principal amount of 2021 Notes being repurchased by the Company pursuant to the Repurchase Offer and that all conditions precedent to the repurchase by the Company of 2021 Notes pursuant to the Repurchase Offer have been complied with.
(d) The Trustee will promptly mail, or cause the Paying Agent to promptly mail, to each Holder of 2021 Notes, or portions of 2021 Notes, properly tendered the Repurchase Price for such 2021 Notes or portions of 2021 Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new 2021 Note equal in principal amount to any unpurchased portion of any 2021 Notes surrendered, as applicable; provided that each new 2021 Note will be in a principal amount equal to $2,000 or an integral multiple of $1,000 in excess thereof.
(e) The Company will not be required to make a Repurchase Offer upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Company and such third party purchases all 2021 Notes or portions of 2021 Notes properly tendered and not withdrawn under its offer.
(f) The provisions of this Section 2.08 shall relate solely to the 2021 Notes. The 2111 Notes shall not be subject to repurchase in accordance with the provisions of this Section 2.08.
ARTICLE III
Additional 2111 Notes
SECTION 3.01.
Designation and Authorization
. The issuance of the Additional 2111 Notes is hereby authorized, and such Additional 2111 Notes shall be registered in the names of such Persons as shall be set forth in any written order of the Company for the authentication and delivery of Additional 2111 Notes pursuant to Section 2.03 of the Amended Base Indenture. The Additional 2111 Notes and the Prior 2111 Notes shall constitute a single series of debt securities under the Amended Base Indenture; accordingly, the authorized aggregate principal amount of outstanding notes of the 2111 Series is hereby limited to $504,492,000 (unless the 2111 Series is further “reopened” pursuant to Sections 2.01 and 9.01 of the Amended Base Indenture to authorize the issuance of additional debt securities of the 2111 Series), and the terms and provisions of the Second Supplemental Indenture and the Third Supplemental Indenture are hereby incorporated by reference into this Fourth Supplemental Indenture and shall apply equally to the Additional 2111 Notes and the Prior 2111 Notes, other than the issue date of the Additional 2111 Notes.
SECTION 3.02.
Form of the Additional 2111 Notes
. The Additional 2111 Notes shall be issued in the form of one or more Global Notes in substantially the form set forth in
Exhibit B
hereto.
SECTION 3.03.
Denomination of the Additional 2111 Notes
. The Company shall issue the Additional 2111 Notes in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof.
ARTICLE IV
Miscellaneous
SECTION 4.01.
Legal Holidays
. If any Interest Payment Date, redemption date or the Stated Maturity falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due, and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, redemption date or the Stated Maturity, as the case may be.
SECTION 4.02.
Application of Fourth Supplemental Indenture
. Except as expressly provided herein, each and every term and condition contained in this Fourth Supplemental Indenture that modifies, amends or supplements the terms and conditions of the Amended Base Indenture shall apply only to the Additional 2111 Notes and the 2021 Notes established hereby and not to any other series of notes established under the Amended Base Indenture. Except as specifically amended and supplemented by, or to the extent inconsistent with, this Fourth Supplemental Indenture, each of the Amended Base Indenture and the Second Supplemental Indenture shall remain in full force and effect and is hereby ratified and confirmed.
SECTION 4.03.
Effective Date of Fourth Supplemental Indenture
. This Fourth Supplemental Indenture shall be effective upon the execution and delivery hereof by each of the parties hereto.
SECTION 4.04.
Counterparts
. This Fourth Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Fourth Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Fourth Supplemental Indenture as to the parties hereto and may be used in lieu of the original of the Fourth Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
SECTION 4.05.
Trustee Not Responsible for Recitals
. The recitals herein contained are made by the Company and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation as to the validity or sufficiency of this Fourth Supplemental Indenture.
SECTION 4.06.
Governing Law
. This Fourth Supplemental Indenture, the Additional 2111 Notes and the 2021 Notes shall be construed in accordance with and governed by the laws of the State of New York but without giving effect to applicable principles of conflicts of law.
SECTION 4.07.
U.S.A. Patriot Act
. The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Fourth Supplemental Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
IN WITNESS WHEREOF, the parties have caused this Fourth Supplemental Indenture to be duly executed as of the date first written above.
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NORFOLK SOUTHERN CORPORATION,
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By:
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/s/ Marta R. Stewart
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Name:
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Marta R. Stewart
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Title:
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Vice President and Treasurer
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U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee
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By:
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/s/ Patrick J. Crowley
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Name:
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Patrick J. Crowley
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Title:
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Vice President
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[
Signature Page to Fourth Supplemental Indenture
]
EXHIBIT A
[FORM OF FACE OF 2021 NOTE]
[Global Notes Legend]
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF SECTION 2.02 OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY NAMED BELOW OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
[FORM OF FACE OF 2021 NOTE]
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No.______
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[Up to]
**
$_________
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3.250% Senior Note due 2021
CUSIP No. 655844 BG2
NORFOLK SOUTHERN CORPORATION, a Virginia corporation, promises to pay to Cede & Co., or registered assigns, the principal sum of
$
_______________
______________________
as set forth on the Schedule of Increases or Decreases annexed hereto on December 1, 2021.
Interest Payment Dates: June 1 and December 1, commencing June 1, 2012.
Record Dates: May 15 and November 15.
Additional provisions of this Global Note are set forth on the other side of this Global Note.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly executed.
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NORFOLK SOUTHERN CORPORATION,
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By:
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Name:
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Title:
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TRUSTEE’S CERTIFICATE OF
AUTHENTICATION
Dated:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee, certifies that this is one of
the Global Notes referred to in the Indenture.
[FORM OF REVERSE SIDE OF 2021 NOTE]
3.250% Senior Note due 2021
NORFOLK SOUTHERN CORPORATION, a Virginia corporation (such corporation, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “Company”), promises to pay interest on the principal amount of this Note at the rate per annum shown above. The Company will pay interest semiannually on June 1 and December 1 of each year, commencing June 1, 2012. Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from November 17, 2011. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The Company shall pay interest on overdue principal at the rate per annum borne by the Notes, and it shall pay interest on overdue installments of interest at the rate per annum borne by the Notes to the extent lawful.
The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the May 15 or November 15 next preceding the interest payment date even if Notes are canceled after the record date and on or before the interest payment date. Holders must surrender Notes to a Paying Agent to collect principal payments. The Company will pay principal and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. Payments in respect of the Notes represented by a Global Note (including principal and interest) will be made by wire transfer of immediately available funds to the accounts specified by the Depository. The Company will make all payments in respect of a Definitive Note (including principal and interest), by mailing a check to the registered address of each Holder thereof;
provided
,
however
, that payments on the Notes may also be made, in the case of a Holder of at least $1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
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3.
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Paying Agent and Registrar
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Initially, U.S. Bank Trust National Association, a national banking association (the “Trustee”), will act as Paying Agent and Registrar. The Company may appoint and change any Paying Agent, Registrar or co-registrar without notice. The Company or any of its domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent, Registrar or co-registrar.
This Note is one of the duly authorized series of debt securities of the Company designated as the Company’s “3.250% Senior Notes due 2021,” initially issued in an aggregate
principal amount of $500,000,000. The Company issued the Notes under a Base Indenture, dated as of June 1, 2009, as amended and supplemented by a third supplemental indenture, dated September 14, 2011, and as further supplemented by the Fourth Supplemental Indenture, dated as of November 17, 2011 (together the “Indenture”), between the Company and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S.C.
§§ 77aaa-77bbbb) as in effect on the date of the Indenture (the “TIA”). Terms defined in the Indenture and not defined in the Notes have the meanings ascribed thereto in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of those terms.
The Notes are unsubordinated, unsecured obligations of the Company. The Notes include the 2021 Notes initially issued in an aggregate principal amount of $500,000,000 and an unlimited aggregate principal amount of additional 2021 Notes that may be issued under the Indenture. The initially issued 2021 Notes and any such additional 2021 Notes will be treated as a single class of securities under the Indenture. The Indenture imposes certain limitations on the ability of the Company and its Restricted Subsidiaries to, among other things, create or incur Liens, to consolidate or merge with or into any other Person or sell, transfer, assign, lease, convey or otherwise dispose of all or substantially all of the property of the Company.
The Notes will be redeemable in whole at any time or in part from time to time, at the option of the Company, as described below.
If the Notes are redeemed prior to the date that is three months prior to the Stated Maturity, the redemption price for the Notes to be redeemed will equal the greater of (i) 100% of the principal amount of such Notes or (ii) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed (exclusive of interest accrued to the date of redemption), discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Yield plus 20 basis points for the Notes, plus accrued and unpaid interest thereon to the redemption date.
If the Notes are redeemed on or after the date that is three months prior to the Stated Maturity, the redemption price for the Notes to be redeemed will equal 100% of the principal amount of such Notes, plus accrued interest to the redemption date.
“Treasury Yield” means, with respect to any redemption date, (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15(519)” or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the Remaining Life, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue will be determined and the Treasury Yield will be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month) or (2) if such release (or
any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semi-annual equivalent yield-to-maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price of such redemption date. The Treasury Yield will be calculated on the third Business Day preceding the redemption date.
“Comparable Treasury Issue” means the United States Treasury security selected by the Independent Investment Banker as having a maturity most comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a maturity comparable to the remaining term of such Notes.
“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Trustee after consultation with the Company.
“Comparable Treasury Price” means, with respect to any redemption date, (A) the average of five Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the Independent Investment Banker obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
“Reference Treasury Dealer” means each of Citigroup Global Markets Inc., Goldman, Sachs & Co. and a Primary Treasury Dealer (as defined below) selected by Wells Fargo Securities, LLC and their respective successors;
provided
,
however
, that if any of the foregoing ceases to be a primary U.S. Government securities dealer in New York, New York (a “Primary Treasury Dealer”) or otherwise fails to provide a Reference Treasury Dealer Quotation, the Company will substitute therefor another Primary Treasury Dealer.
“Reference Treasury Dealer Quotation” means a quotation for a Comparable Treasury Issue provided by a Reference Treasury Dealer.
The Notes are not subject to any sinking fund.
Notice of redemption will be mailed by first-class mail at least 30 days but not more than 60 days before the redemption date to each Holder of Notes to be redeemed at his or her registered address. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000. If money sufficient to pay the redemption price of and accrued interest on all Notes (or portions thereof) to be redeemed on the redemption date is deposited with the Paying Agent on or before the redemption date and certain other conditions are satisfied, on and after such date interest ceases to accrue on such Notes (or such portions thereof) called for redemption.
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8.
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Repurchase of Notes at the Option of Holders upon Change of Control
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If a Change of Control Repurchase Event occurs with respect to the Notes, unless the Company has exercised its right to redeem the Notes as described above, the Company will make an offer to each Holder of the Notes to repurchase all or any part (in integral multiples of $1,000) of that Holder’s Notes at a repurchase price (the “Repurchase Price”) in cash equal to 101% of the aggregate principal amount of such Notes repurchased plus any accrued and unpaid interest on the Notes repurchased to, but not including, the Repurchase Date (as defined below). A “Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Below Investment Grade Ratings Event with respect to the Notes, each of which is defined in the Indenture. Within 30 days following a Change of Control Repurchase Event or, at the Company’s option, prior to a Change of Control, but after the public announcement of a Change of Control, the Company will mail, or cause to be mailed, a notice to each Holder of the Notes, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and offering to repurchase the Notes on the payment date specified in the notice (such offer the “Repurchase Offer” and such date the “Repurchase Date”), which Repurchase Date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed. The notice shall, if mailed prior to the date of consummation of the Change of Control, state that the Repurchase Offer is conditioned on a Change of Control Repurchase Event occurring on or prior to the Repurchase Date.
The Company will comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Notes, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Repurchase Event provisions of the Notes by virtue of such conflict.
On the Repurchase Date following a Change of Control Repurchase Event, the Company will, to the extent lawful:
(1) accept for payment all Notes or portions of Notes properly tendered pursuant to the Repurchase Offer;
(2) deposit with the Trustee or with such Paying Agent as the Trustee may designate an amount equal to the aggregate Repurchase Price for all Notes or portions of Notes properly tendered; and
(3) deliver, or cause to be delivered, to the Trustee the Notes properly accepted, together with an Officers’ Certificate stating the aggregate principal amount of Notes being repurchased by the Company pursuant to the Repurchase Offer and that all conditions precedent to the repurchase by the Company of Notes pursuant to the Repurchase Offer have been complied with.
The Trustee will promptly mail, or cause the Paying Agent to promptly mail, to each Holder of Notes, or portions of Notes, properly tendered the Repurchase Price for such Notes, or portions of Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Security equal in principal amount to any unpurchased portion of any Notes surrendered, as applicable; provided that each new Security will be in a principal amount equal to $2,000 or an integral multiple of $1,000 in excess thereof.
The Company will not be required to make a Repurchase Offer upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Company and such third party purchases all Notes or portions of Notes properly tendered and not withdrawn under its offer.
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9.
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Denominations; Transfer; Exchange
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The Notes are in registered form without coupons in minimum denominations of $2,000 and whole multiples of $1,000 in excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. Upon any transfer or exchange, the Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes required by law or permitted by the Indenture. The Registrar need not register the transfer of or exchange any Notes selected for redemption (except, in the case of a Note to be redeemed in part, the portion of the Note not to be redeemed) or to transfer or exchange any Notes for a period of 15 days prior to the mailing of a notice of redemption of Notes to be redeemed or 15 days before an Interest Payment Date.
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10.
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Persons Deemed Owners
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The registered Holder of this Note may be treated as the owner of it for all purposes.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its written request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
Subject to certain conditions, the Company at any time may terminate its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal and interest on the Notes to redemption or maturity, as the case may be.
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the Holders of not less than a majority in principal amount of the Outstanding
Notes affected, to execute supplemental indentures for the purpose of adding any provisions to the Indenture or of modifying in any manner the rights of the Holders of the Note;
provided
,
however
, that no such supplemental indenture shall (i) reduce the amount of Notes of such series whose Holders must consent to an amendment, supplement or waiver; or (ii) reduce the rate of or extend the time for payment of interest on any Notes of such series; or (iii) reduce the principal of or extend the fixed maturity of any Notes of such series; (iv) reduce the portion of the principal amount of an OID Note of such series payable upon acceleration of its maturity; or (v) make any Note of such series payable in money other than that stated in such Note. The Indenture also contains provisions permitting the Holders of not less than a majority in principal amount of the Outstanding Notes affected thereby, on behalf of all of the Holders of the Notes, to waive compliance by the Company with any provision of the Indenture or the Notes of such series affected,
provided
that such waiver shall not affect the above provisions (i) – (v).
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14.
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Defaults and Remedies
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If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding, subject to certain limitations, may declare all the Notes to be immediately due and payable. Certain events of bankruptcy or insolvency are Events of Default and shall result in the Notes being immediately due and payable upon the occurrence of such Events of Default without any further act of the Trustee or any Holder.
Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless it receives indemnity or security satisfactory to it. Subject to certain limitations, Holders of a majority in aggregate principal amount of the Notes then outstanding may direct the Trustee in its exercise of any trust or power under the Indenture. The Holders of a majority in aggregate principal amount of the Notes then outstanding, by written notice to the Company and the Trustee, may rescind any declaration of acceleration and its consequences if the rescission would not conflict with any judgment or decree, and if all existing Events of Default have been cured or waived except nonpayment of principal, premium or interest that has become due solely because of the acceleration.
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15.
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Trustee Dealings with the Company
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Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.
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16.
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No Recourse Against Others
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A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Notes or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a
Note, each Noteholder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Notes.
Subject to certain exceptions set forth in the Indenture, when a successor assumes all the obligations of its predecessor under the Notes and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.
This Note shall not be valid until an authorized signatory of the Trustee (or an authenticating agent) manually signs the certificate of authentication on the other side of this Note.
Customary abbreviations may be used in the name of a Noteholder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes and has directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture which has in it the text of this Note.
FORM OF ASSIGNMENT
For value received ________________ hereby sell(s), assign(s) and transfer(s) unto ________________ (Please insert social security or other identifying number of assignee) the within Note, and hereby irrevocably constitutes and appoints ____________________ as attorney to transfer the said Note on the books of the Company, with full power of substitution in the premises.
Dated:
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Signature(s)
Signature(s) must be guaranteed by an Eligible Guarantor Institution with membership in an approved signature guarantee program pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934.
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[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note is $______________. The following increases or decreases in this Global Note have been made:
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Date of
Exchange
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Amount of decrease in Principal Amount of this Global Note
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Amount of increase in Principal Amount of this Global Note
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Principal amount of this Global Note following such decrease or increase
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Signature of authorized signatory of Trustee or Notes Custodian
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 2.08 (Change of Control) of the Fourth Supplemental Indenture, check the box:
/ /
If you want to elect to have only part of this Note purchased by the Company pursuant to Section 2.08 of the Fourth Supplemental Indenture, state the amount:
$
Date: __________________ Your Signature: ______________________
(Sign exactly as your name appears on the other side of the Note)
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Signature Guarantee:
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Signature must be guaranteed by a participant in a recognized signature guaranty medallion program or other signature guarantor acceptable to the Trustee.
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[FORM OF FACE OF ADDITIONAL 2111 NOTE]
[Global Notes Legend]
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF SECTION 2.02 OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY NAMED BELOW OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
[Definitive Notes Legend]
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
[FORM OF FACE OF ADDITIONAL 2111 NOTE]
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No.______
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[Up to]
**
$_________
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6% Senior Note due 2111
CUSIP No. 655844 BD9
NORFOLK SOUTHERN CORPORATION, a Virginia corporation, promises to pay to Cede & Co., or registered assigns, the principal sum of
$_______________
______________________
as set forth on the Schedule of Increases or Decreases annexed hereto on May 23, 2111.
Interest Payment Dates: May 23 and November 23, commencing on November 23, 2011.
Record Dates: May 9 and November 9.
Additional provisions of this Global Note are set forth on the other side of this Global Note.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly executed.
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NORFOLK SOUTHERN CORPORATION,
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By:
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Name:
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Title:
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TRUSTEE’S CERTIFICATE OF
AUTHENTICATION
Dated:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee, certifies that this is one of
the Global Notes referred to in the Indenture.
[FORM OF REVERSE SIDE OF ADDITIONAL 2111 NOTE]
6% Senior Note due 2111
NORFOLK SOUTHERN CORPORATION, a Virginia corporation (such corporation, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “Company”), promises to pay interest on the principal amount of this Note at the rate per annum shown above. The Company will pay interest semiannually on May 23 and November 23 of each year, commencing November 23, 2011. Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from May 23, 2011. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The Company shall pay interest on overdue principal at the rate per annum borne by the Notes, and it shall pay interest on overdue installments of interest at the rate per annum borne by the Notes to the extent lawful.
The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the May 9 or November 9 next preceding the interest payment date even if Notes are canceled after the record date and on or before the interest payment date. Holders must surrender Notes to a Paying Agent to collect principal payments. The Company will pay principal and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. Payments in respect of the Notes represented by a Global Note (including principal and interest) will be made by wire transfer of immediately available funds to the accounts specified by the Depository. The Company will make all payments in respect of a Definitive Note (including principal and interest), by mailing a check to the registered address of each Holder thereof;
provided
,
however
, that payments on the Notes may also be made, in the case of a Holder of at least $1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
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3.
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Paying Agent and Registrar
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Initially, U.S. Bank Trust National Association, a national banking association (the “Trustee”), will act as Paying Agent and Registrar. The Company may appoint and change any Paying Agent, Registrar or co-registrar without notice. The Company or any of its domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent, Registrar or co-registrar.
The Company issued the Notes under a Base Indenture, dated as of June 1, 2009, as amended and supplemented by a second supplemental indenture, dated as of May 23, 2011
and a third supplemental indenture dated as of September 14, 2011, and as further supplemented by the Fourth Supplemental Indenture, dated as of November 17, 2011 (together the “Indenture”), between the Company and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S.C.
§§ 77aaa-77bbbb) as in effect on the date of the Indenture (the “TIA”). Terms defined in the Indenture and not defined in the Notes have the meanings ascribed thereto in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of those terms.
The Notes are unsubordinated, unsecured obligations of the Company. This Note is one of the 2111 Notes referred to in the Indenture. The Notes include the Prior 2111 Notes, the Additional 2111 Notes and an unlimited aggregate principal amount of additional 2111 Notes of the 2111 Series that may be issued under the Indenture. The Prior 2111 Notes and the Additional 2111 Notes are, and any such additional 2111 Notes will be, treated as a single class of debt securities under the Indenture. The Indenture imposes certain limitations on the ability of the Company and its Restricted Subsidiaries to, among other things, create or incur Liens, to consolidate or merge with or into any other Person or sell, transfer, assign, lease, convey or otherwise dispose of all or substantially all of the property of the Company.
The Notes will be redeemable as a whole at any time or in part from time to time, at the option of the Company, at a redemption price equal to the greater of (i) 100% of the principal amount of such Notes and (ii) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Yield plus 30 basis points, plus in each case accrued and unpaid interest thereon to the date of redemption.
“Treasury Yield” means, with respect to any redemption date, (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15(519)” or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the Remaining Life, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue will be determined and the Treasury Yield will be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month) or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semi-annual equivalent yield-to-maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price of such redemption date. The Treasury Yield will be calculated on the third Business Day preceding the redemption date.
“Comparable Treasury Issue” means the United States Treasury security selected by the Independent Investment Banker as having a maturity most comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a maturity comparable to the remaining term of such Notes.
“Independent Investment Banker” means Morgan Stanley & Co. LLC or, if such firm is unwilling or unable to select the Comparable Treasury Issue, an independent investment banking institution of national standing in the United States appointed by the Trustee after consultation with the Company.
“Comparable Treasury Price” means, with respect to any redemption date, (A) the average of five Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the Independent Investment Banker obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
“Reference Treasury Dealer” means Morgan Stanley & Co. LLC and its successors; provided, however, that if the foregoing ceases to be a primary U.S. Government securities dealer in New York, New York (a “Primary Treasury Dealer”) or otherwise fails to provide a Reference Treasury Dealer Quotation, the Company will substitute therefor another Primary Treasury Dealer.
“Reference Treasury Dealer Quotation” means a quotation for a Comparable Treasury Issue provided by a Reference Treasury Dealer.
The Notes are not subject to any sinking fund.
Notice of redemption will be mailed by first-class mail at least 30 days but not more than 60 days before the redemption date to each Holder of Notes to be redeemed at his or her registered address. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000. If money sufficient to pay the redemption price of and accrued interest on all Notes (or portions thereof) to be redeemed on the redemption date is deposited with the Paying Agent on or before the redemption date and certain other conditions are satisfied, on and after such date interest ceases to accrue on such Notes (or such portions thereof) called for redemption.
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8.
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Denominations; Transfer; Exchange
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The Notes are in registered form without coupons in minimum denominations of $2,000 and whole multiples of $1,000 in excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. Upon any transfer or exchange, the Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes required by law or permitted by the Indenture. The
Registrar need not register the transfer of or exchange any Notes selected for redemption (except, in the case of a Note to be redeemed in part, the portion of the Note not to be redeemed) or to transfer or exchange any Notes for a period of 15 days prior to the mailing of a notice of redemption of Notes to be redeemed or 15 days before an Interest Payment Date.
The registered Holder of this Note may be treated as the owner of it for all purposes.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its written request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
Subject to certain conditions, the Company at any time may terminate its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal and interest on the Notes to redemption or maturity, as the case may be.
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the Holders of not less than a majority in principal amount of the Outstanding Notes affected, to execute supplemental indentures for the purpose of adding any provisions to the Indenture or of modifying in any manner the rights of the Holders of the Note; provided, however, that no such supplemental indenture shall (i) reduce the amount of Notes of such series whose Holders must consent to an amendment, supplement or waiver; or (ii) reduce the rate of or extend the time for payment of interest on any Notes of such series; or (iii) reduce the principal of or extend the fixed maturity of any Notes of such series; (iv) reduce the portion of the principal amount of an OID Note of such series payable upon acceleration of its maturity; or (v) make any Note of such series payable in money other than that stated in such Note. The Indenture also contains provisions permitting the Holders of not less than a majority in principal amount of the Outstanding Notes affected thereby, on behalf of all of the Holders of the Notes, to waive compliance by the Company with any provision of the Indenture or the Notes of such series affected, provided that such waiver shall not affect the above provisions (i) – (v).
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13.
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Defaults and Remedies
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If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding, subject to certain limitations, may declare all the Notes to be immediately due and payable. Certain events of bankruptcy or insolvency are Events of Default and shall result in the Notes being immediately
due and payable upon the occurrence of such Events of Default without any further act of the Trustee or any Holder.
Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless it receives indemnity or security satisfactory to it. Subject to certain limitations, Holders of a majority in aggregate principal amount of the Notes then outstanding may direct the Trustee in its exercise of any trust or power under the Indenture. The Holders of a majority in aggregate principal amount of the Notes then outstanding, by written notice to the Company and the Trustee, may rescind any declaration of acceleration and its consequences if the rescission would not conflict with any judgment or decree, and if all existing Events of Default have been cured or waived except nonpayment of principal, premium or interest that has become due solely because of the acceleration.
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14.
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Trustee Dealings with the Company
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Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.
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15.
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No Recourse Against Others
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A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Notes or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Noteholder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Notes.
Subject to certain exceptions set forth in the Indenture, when a successor assumes all the obligations of its predecessor under the Notes and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.
This Note shall not be valid until an authorized signatory of the Trustee (or an authenticating agent) manually signs the certificate of authentication on the other side of this Note.
Customary abbreviations may be used in the name of a Noteholder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes and has directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture which has in it the text of this Note.
FORM OF ASSIGNMENT
For value received ________________ hereby sell(s), assign(s) and transfer(s) unto ________________ (Please insert social security or other identifying number of assignee) the within Note, and hereby irrevocably constitutes and appoints ____________________ as attorney to transfer the said Note on the books of the Company, with full power of substitution in the premises.
Dated:
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Signature(s)
Signature(s) must be guaranteed by an Eligible Guarantor Institution with membership in an approved signature guarantee program pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934.
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[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note is $______________. The following increases or decreases in this Global Note have been made:
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Date of
Exchange
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Amount of decrease in Principal Amount of this Global Note
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Amount of increase in Principal Amount of this Global Note
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Principal amount of this Global Note following such decrease or increase
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Signature of authorized signatory of Trustee or Notes Custodian
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