-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MdlJ7QY9Xw/2qddVb0SBBPKia9owgWt3J07vdrAkXfniC0Bb7XDsCOlU6SnNawNt oXIOG4gdTHLgfAI3NR1ROQ== 0000898822-97-000180.txt : 19970312 0000898822-97-000180.hdr.sgml : 19970312 ACCESSION NUMBER: 0000898822-97-000180 CONFORMED SUBMISSION TYPE: SC 14D1/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970311 SROS: NYSE SROS: PHLX SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CONRAIL INC CENTRAL INDEX KEY: 0000897732 STANDARD INDUSTRIAL CLASSIFICATION: RAILROADS, LINE-HAUL OPERATING [4011] IRS NUMBER: 232728514 STATE OF INCORPORATION: PA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-42777 FILM NUMBER: 97554809 BUSINESS ADDRESS: STREET 1: TWO COMMERCE SQ STREET 2: P O BOX 41417 CITY: PHILADELPHIA STATE: PA ZIP: 19101-1417 BUSINESS PHONE: 2152094434 MAIL ADDRESS: STREET 1: P.O. BOX 41429 STREET 2: 2001 MARKET STREET CITY: PHILADELPHIA STATE: PA ZIP: 19101-1429 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: CSX CORP CENTRAL INDEX KEY: 0000277948 STANDARD INDUSTRIAL CLASSIFICATION: RAILROADS, LINE-HAUL OPERATING [4011] IRS NUMBER: 621051971 STATE OF INCORPORATION: VA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A BUSINESS ADDRESS: STREET 1: ONE JAMES CNTR STREET 2: 901 E CARY ST CITY: RICHMOND STATE: VA ZIP: 23219 BUSINESS PHONE: 8047821400 SC 14D1/A 1 SCHEDULE 14D-1 AMENDMENT NO. 22 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 14D-1 TENDER OFFER STATEMENT (AMENDMENT NO. 22) PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 AND AMENDMENT NO. 32 TO SCHEDULE 13D CONRAIL INC. (NAME OF SUBJECT COMPANY) CSX CORPORATION GREEN ACQUISITION CORP. (BIDDERS) COMMON STOCK, PAR VALUE $1.00 PER SHARE (TITLE OF CLASS OF SECURITIES) 208368 10 0 (CUSIP NUMBER OF CLASS OF SECURITIES) SERIES A ESOP CONVERTIBLE JUNIOR PREFERRED STOCK, WITHOUT PAR VALUE (TITLE OF CLASS OF SECURITIES) NOT AVAILABLE (CUSIP NUMBER OF CLASS OF SECURITIES) MARK G. ARON CSX CORPORATION ONE JAMES CENTER 901 EAST CARY STREET RICHMOND, VIRGINIA 23219-4031 (804) 782-1400 (NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS) WITH A COPY TO: PAMELA S. SEYMON WACHTELL, LIPTON, ROSEN & KATZ 51 WEST 52ND STREET NEW YORK, NEW YORK 10019 TELEPHONE: (212) 403-1000 This Statement amends and supplements the Tender Of- fer Statement on Schedule 14D-1 filed with the Securities and Exchange Commission on December 6, 1996, as previously amended and supplemented, by Green Acquisition Corp., a Pennsylvania corporation and a wholly owned subsidiary of CSX Corporation, a Virginia corporation, to purchase up to an aggregate of 18,344,845 shares of (i) Common Stock, par value $1.00 per share, and (ii) Series A ESOP Convertible Junior Preferred Stock, without par value, of Conrail Inc., a Pennsylvania cor- poration, including, in each case, the associated Common Stock Purchase Rights, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated December 6, 1996, as supplemented by the Supplement thereto, dated December 19, 1996, and the related Letters of Transmittal at a purchase price of $110.00 per Share, net to the tendering shareholder in cash. Capitalized terms used and not defined herein shall have the meanings assigned such terms in the Offer to Purchase, the Supplement and the Schedule 14D-1. ITEM 10. ADDITIONAL INFORMATION. (e) On March 7, 1997, the United States Court of Appeals for the Third Circuit affirmed the November 19, 1996 and January 9, 1997 orders of the United States District Court for the Eastern District of Pennsylvania. A copy of the March 7, 1997 judgment and opinion have been filed as Exhibits (c)(14) and (c)(15), respectively, and the foregoing summary description is qualified in its entirety by reference to such exhibits. ITEM 11. MATERIAL TO BE FILED AS EXHIBITS. (c)(14) Judgment of Judges Stapleton, Scirica and Nygaard of the United States Court of Appeals for the Third Circuit, dated March 7, 1997. (c)(15) Opinion of Judges Stapleton, Scirica and Nygaard of the United States Court of Appeals for the Third Circuit, dated March 7, 1997. SIGNATURE After due inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. CSX CORPORATION By: /s/ MARK G. ARON Name: Mark G. Aron Title: Executive Vice President -- Law and Public Affairs Dated: March 11, 1997 SIGNATURE After due inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. GREEN ACQUISITION CORP. By: /s/ MARK G. ARON Name: Mark G. Aron Title: General Counsel and Secretary Dated: March 11, 1997 EXHIBIT INDEX EXHIBIT NO. *(a)(1) Offer to Purchase, dated December 6, 1996. *(a)(2) Letter of Transmittal. *(a)(3) Notice of Guaranteed Delivery. *(a)(4) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. *(a)(5) Letter to Clients for use by Brokers, Dealers, Com- mercial Banks, Trust Companies and Other Nominees. *(a)(6) Guidelines for Certification of Taxpayer Identifica- tion Number on Substitute Form W-9. *(a)(7) Tender Offer Instructions for Participants of Conrail Inc. Dividend Reinvestment Plan. *(a)(8) Text of Press Release issued by Parent and the Com- pany on December 6, 1996. *(a)(9) Form of Summary Advertisement, dated December 6, 1996. *(a)(10) Text of Press Release issued by Parent on December 5, 1996. *(a)(11) Text of Press Release issued by Parent and the Com- pany on December 10, 1996. *(a)(12) Text of Advertisement published by Parent and the Company on December 10, 1996. *(a)(13) Text of Press Release issued by Parent on December 11, 1996. *(a)(14) Text of Advertisement published by Parent and the Company on December 12, 1996. _____________________ * Previously filed. *(a)(15) Supplement to Offer to Purchase, dated December 19, 1996. *(a)(16) Revised Letter of Transmittal. *(a)(17) Revised Notice of Guaranteed Delivery. *(a)(18) Text of Press Release issued by Parent and the Com- pany on December 19, 1996. *(a)(19) Letter from Parent to shareholders of the Company, dated December 19, 1996. *(a)(20) Text of Press Release issued by Parent on December 20, 1996. *(a)(21) Text of Press Release issued by Parent and the Com- pany on January 9, 1997. *(a)(22) Text of Press Release issued by Parent and the Com- pany on January 13, 1997. *(a)(23) Text of Press Release issued by Parent and the Com- pany on January 15, 1997. *(a)(24) Text of Press Release issued by Parent on January 17, 1997. *(a)(25) Text of Press Release issued by Parent on January 22, 1997. (a)(25) Deleted. *(a)(26) Text of Letter issued by Parent and the Company dated January 22, 1997. *(a)(27) Text of Advertisement published by Parent and the Company on January 29, 1997. *(a)(28) Text of Press Release issued by Parent and the Company on January 31, 1997. *(a)(29) Text of Press Release issued by Parent on February 14, 1997. _____________________ * Previously filed. - 2 - *(a)(30) Text of Press Release issued by Parent on March 3, 1997. *(a)(31) Second Supplement to Offer to Purchase, dated March 7, 1997. *(a)(32) Revised Letter of Transmittal. *(a)(33) Revised Notice of Guaranteed Delivery. *(a)(34) Text of Press Release issued by Parent on March 7, 1997. *(a)(35) Form of Summary Advertisement, dated March 10, 1997. *(b)(1) Credit Agreement, dated November 15, 1996 (incorpo- rated by reference to Exhibit (b)(2) to Parent and Purchaser's Tender Offer Statement on Schedule 14D-1, as amended, dated October 16, 1996). *(c)(1) Agreement and Plan of Merger, dated as of October 14, 1996, by and among Parent, Purchaser and the Company (incorporated by reference to Exhibit (c)(1) to Par- ent and Purchaser's Tender Offer Statement on Sched- ule 14D-1, as amended, dated October 16, 1996). *(c)(2) Company Stock Option Agreement, dated as of October 14, 1996, between Parent and the Company (incorpo- rated by reference to Exhibit (c)(2) to Parent and Purchaser's Tender Offer Statement on Schedule 14D-1, as amended, dated October 16, 1996). *(c)(3) Parent Stock Option Agreement, dated as of October 14, 1996, between Parent and the Company (incorpo- rated by reference to Exhibit (c)(3) to Parent and Purchaser's Tender Offer Statement on Schedule 14D-1, as amended, dated October 16, 1996). *(c)(4) Voting Trust Agreement, dated as of October 15, 1996, by and among Parent, Purchaser and Deposit Guaranty National Bank (incorporated by reference to Exhibit (c)(4) to Parent and Purchaser's Tender Offer State- ment on Schedule 14D-1, as amended, dated October 16, 1996). _____________________ * Previously filed. - 3 - *(c)(5) First Amendment to Agreement and Plan of Merger, dat- ed as of November 5, 1996, by and among Parent, Pur- chaser and the Company (incorporated by reference to Exhibit (c)(7) to Parent and Purchaser's Tender Offer Statement on Schedule 14D-1, as amended, dated Octo- ber 16, 1996). *(c)(6) Second Amendment to Agreement and Plan of Merger, dated as of December 18, 1996, by and among Parent, Purchaser and the Company. *(c)(7) Form of Amended and Restated Voting Trust Agreement. (c)(8) Deleted. *(c)(9) Text of STB Decision No. 5 of STB Finance Docket No. 33220, dated January 8, 1997. *(c)(10) Unaudited Pro Forma Financial Statements reflecting the Transactions (incorporated by reference to Par- ent's registration statement on Form S-4, registra- tion number 333-19523). *(c)(11) Text of opinion of Judge Donald VanArtsdalen of the United States District Court for the Eastern District of Pennsylvania as delivered from the bench on Janu- ary 9, 1997. *(c)(12) Third Amendment to Agreement and Plan of Merger, dated as of March 7, 1997, by and among Parent, Purchaser and the Company. *(c)(13) Form of Amended and Restated Voting Trust Agreement. (c)(14) Judgment of Judges Stapleton, Scirica and Nygaard of the United States Court of Appeals for the Third Circuit, dated March 7, 1997. (c)(15) Opinion of Judges Stapleton, Scirica and Nygaard of the United States Court of Appeals for the Third Circuit, dated March 7, 1997. (d) Not applicable. (e) Not applicable. (f) Not applicable. _____________________ * Previously filed. - 4 - EX-99 2 EXHIBIT (C)(14) Exhibit (c)(14) UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Nos. 96-2025 & 96-2026 NORFOLK SOUTHERN CORPORATION, ET AL., Appellants in No. 96-2025 v. PETER D. FERRARA, ET AL., Appellants in No. 96-2026 Nos. 97-1006 & 97-1009 NORFOLK SOUTHERN CORPORATION, ET AL., Appellants in No. 97-1006 v. PETER D. FERRARA, ET AL., Appellants in No. 97-1009 Appeal from the United States District Court For the Eastern District of Pennsylvania (D.C. Civil Nos. 96-cv-07167 & 96-cv-07350) Present: Stapleton, Scirica, and Nygaard, Circuit Judges JUDGMENT These causes came on to be heard on the record from the United States District Court for the Eastern District of Pennsylvania and was submitted pursuant to Third Circuit LAR 34.1(a) on February 25, 1997. On consideration whereof, it is now here ordered and adjudged by this Court that the judgment of the said District Court dated November 19, 1996 and entered November 20, 1996 and the judgment dated January 9, 1997 and entered January 10, 1997, be, and the same are hereby affirmed. All of the above in accordance with the opinion of this Court. ATTEST: /s/ P. Douglas Sisk Clerk Dated: March 7, 1997 EX-99 3 EXHIBIT (C)(15) Exhibit (c)(15) NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________________ NOS. 96-2025 and 96-2026 _____________________ NORFOLK SOUTHERN CORP., ET AL., Appellants in No. 96-2025 v. PETER D. FERRARA, ET AL., Appellants in No. 96-2026 _____________________ _____________________ NOS. 97-1006 and 97-1009 _____________________ NORFOLK SOUTHERN CORP., ET AL., Appellants in No. 97-1006 v. PETER D. FERRARA, ET AL., Appellants in No. 97-1009 _____________________ Appeal from the United States District Court For the Eastern District of Pennsylvania (D.C. Civil Nos. 96-cv-7167, 96-cv-7350) District Judge: Honorable Donald W. Van Artsdalen _____________________ Submitted Pursuant to Third Circuit LAR 34.1(a) February 25, 1997 BEFORE: STAPLETON, SCIRICA AND NYGAARD, Circuit Judges (Opinion filed March 7, 1997) ____________________ OPINION OF THE COURT ____________________ PER CURIAM: In the appeals at Nos. 96-2025 and 96-2026, the ap- pellants appeal from an order of the district court, the pri- mary effect of which was to deny a preliminary injunction to stop a tender offer which subsequently closed on November 20, 1996. In the appeals at Nos. 97-1006 and 97-1009, the appel- lants appeal from an order of the district court, the primary effect of which was to deny a preliminary injunction to delay a stockholder vote on a charter amendment that subsequently oc- curred on January 17, 1997. As appellants in all four appeals stress, they asked the district court for other preliminary injunctive relief in addition to a preliminary restraint against the tender offer and the stockholder vote, and these appeals, as a result, are technically not moot. Nevertheless, we cannot say that the district court, at the time it entered the orders appealed from, abused its discretion in failing to grant any of this additional pendente lite relief. Appellants failed to demon- strate, for example, that they face imminent, irreparable injury that would be avoided if any of this additional relief were granted.1 Because the tender offer and stockholder vote can no longer be enjoined and because we cannot say that the district court abused its discretion in denying other relief, we will affirm the orders giving rise to these appeals. In reaching this conclusion, we are not unmindful of the fact that the conduct alleged by appellants to be wrongful may have continuing effects. If appellants, at any time before the merits of this case can be fully adjudicated, believe that they face imminent, irreparable injury from any such continuing effects, they are, of course, free to apply to the district court for pendente lite relief directed to whatever threatens such injury. The fact that such relief may become appropriate, however, does not mean that the district court erred in entering its orders of November 19, 1996, and January 9, 1997. In the event that additional applications for pen- dente lite relief are filed in the district court and ad- ditional appeals follow, those appeals will be submitted by the clerk to this panel and will be expedited and decided on the basis of the existing briefing plus any appropriate supplemen- tal submissions. ---------------------------------- 1. The fact that no stockholder meeting or other corporate action of Conrail is currently scheduled and no competing merger proposals are before the Conrail Board makes it dif- ficult for the appellants to demonstrate an immediate threat of irreparable injury. The application for a preliminary injunc- tion in the first filed cases did ask for an order enjoining enforcement of the 270 day lock-out provision and that provi- sion, now extended to 720 days, remains in the merger agreement. However, a pronouncement on the validity of that provision in the context of a request for a preliminary injunction would not, of course, finally resolve the issue of its validity, and, more importantly, the record does not indicate that such a preliminary injunction would save appellants from any immediately threatened irreparable injury or, indeed, change the status quo in any other way. To the contrary, it suggests that the Conrail Board would remain committed to the CSX proposal even if it were not bound by a contract provision. -----END PRIVACY-ENHANCED MESSAGE-----