-----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, WOTkBsiQ5htUWChJ76hvzAK289JTq3RsPgXIApKxWAaK1nDtIzAlGBx9V96yJmFz 6IW5Z7TMoaKq4viK1m4arg== 0000950157-96-000449.txt : 19961216 0000950157-96-000449.hdr.sgml : 19961216 ACCESSION NUMBER: 0000950157-96-000449 CONFORMED SUBMISSION TYPE: SC 14D9/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 19961213 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 14D9/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-42777 FILM NUMBER: 96680048 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: 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 14D9/A 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 SC 14D9/A 1 AMENDMENT NO. 10 ====================================================================== SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------------------- AMENDMENT NO. 10 to SCHEDULE 14D-9 SOLICITATION/RECOMMENDATION STATEMENT Pursuant to Section 14(d)(4) of the Securities Exchange Act of 1934 ----------------------------- CONRAIL INC. (Name of Subject Company) ----------------------------- CONRAIL INC. (Name of Person(s) Filing Statement) ----------------------------- Common Stock, par value $1.00 per share (including the associated Common Stock Purchase Rights) (Title of Class of Securities) 208368 10 0 (CUSIP Number of Class of Securities) ----------------------------- Series A ESOP Convertible Junior Preferred Stock, without par value (including the associated Common Stock Purchase Rights) (Title of Class of Securities) N/A (CUSIP Number of Class of Securities) ----------------------------- James D. McGeehan Corporate Secretary Conrail Inc. 2001 Market Street Two Commerce Square Philadelphia, Pennsylvania 19101 (215) 209-4000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of the Person(s) Filing Statement) With a copy to: Robert A. Kindler, Esq. Cravath, Swaine & Moore Worldwide Plaza 825 Eighth Avenue New York, New York 10019 (212) 474-1000 ====================================================================== INTRODUCTION Conrail Inc. ("Conrail") hereby amends and supplements its Solicitation/Recommendation Statement on Schedule 14D-9, originally filed on November 6, 1996, and amended on November 7, 1996, November 8, 1996, November 13, 1996, November 18, 1996, November 20, 1996, November 21, 1996, November 26, 1996, December 3, 1996 and December 6, 1996 (as amended, the "Norfolk Schedule 14D-9"), with respect to an offer by Atlantic Acquisition Corporation, a Pennsylvania corporation ("Atlantic") and a wholly owned subsidiary of Norfolk Southern Corporation, a Virginia corporation ("Norfolk"), to purchase all the issued and outstanding Shares of Conrail. Capitalized terms not defined herein have the meanings assigned thereto in the Norfolk Schedule 14D-9. Item 8. Additional Information to be Furnished. Item 8 of the Norfolk Schedule 14D-9 is hereby amended and supplemented by adding the following text at the end thereof: On December 9, 1996, three shareholders of Conrail (who earlier had filed a complaint individually and derivatively on behalf of Conrail making allegations substantially similar to those made in the original and amended Norfolk complaints) moved for leave to file a Second Amended Complaint against Conrail, CSX and certain other defendants. If leave is granted, the Second Amended Complaint will allege the following additional claims: (i) that the share ownership of CSX and the directors of Conrail as individuals should be aggregated for purposes of determinations under Subchapter E of Chapter 25 of the PBCL ("Subchapter E") because CSX and the individual directors of Conrail are allegedly "acting in concert" for purposes of Subchapter 25E, and accordingly the requirement in Subchapter 25E requiring persons who have 20% or more of the voting power of a Pennsylvania corporation to offer to purchase for cash the remaining shares (for "fair value") has allegedly been triggered; and (ii) that it is a breach of the fiduciary duties of the directors of Conrail to have agreed to postpone the Pennsylvania Special Meeting in the event that insufficient votes are required to assure approval of the Articles Amendment providing for Conrail to opt out of Subchapter 25E (the "Pennsylvania Shareholder Approval"). As additional relief, the shareholder plaintiffs seek a declaration that CSX and the directors of Conrail are obligated to make the "fair value" payments required by Subchapter 25E and that the Pennsylvania Special Meeting may not be postponed and that no second vote to seek the Pennsylvania Shareholder Approval may be held. On December 10, 1996, CSX and Conrail issued a press release, a copy of which is attached hereto as Exhibit (a)(15) and incorporated herein by reference. Item 9. Materials to be filed as Exhibits. Item 9 of the Norfolk Schedule 14D-9 is hereby amended and supplemented by adding the following text thereto: (a)(15) Text of press release issued by CSX and Conrail dated December 10, 1996 (incorporated by reference to Exhibit (a)(8) to the Solicitation/Recommendation Statement on Schedule 14D-9 of Conrail dated December 6, 1996, as amended, relating to the second tender offer by CSX (the "Second CSX 14D-9")). SIGNATURE After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. CONRAIL INC. By /s/ Timothy T. O'Toole ------------------------------------- Name: Timothy T. O'Toole Title: Senior Vice President--Finance Dated as of December 12, 1996 EXHIBIT INDEX Exhibit Description Page No. *(a)(1) Text of press release issued by Conrail dated October 23, 1996 (incorporated by reference to Exhibit (a)(9) to the Solicitation/Recommendation Statement on Schedule 14D-9 of Conrail Inc. dated October 16, 1996, as amended (the "CSX 14D-9"))... *(a)(2) Text of press release issued by Norfolk, dated October 23, 1996 (incorporated by reference to Exhibit (a)(8) to the CSX 14D-9)............................................ *(a)(3) Text of press release issued by Conrail and CSX dated November 6, 1996........................ *(a)(4) Letter to shareholders of Conrail dated November 6, 1996.................................. *(a)(5) Text of press release issued by Conrail, dated November 7, 1996 (incorporated by reference to Exhibit (a)(16) to the CSX 14D-9)............................................ *(a)(6) Text of press release issued by Conrail, dated November 7, 1996 (incorporated by reference to Exhibit (a)(17) to the CSX 14D-9)............................................ *(a)(7) Text of press release issued by Conrail, dated November 8, 1996 (incorporated by reference to Exhibit (a)(18) to the CSX 14D-9)............................................ *(a)(8) Text of press release issued by Conrail and CSX, dated November 13, 1996 (incorporated by reference to Exhibit (a)(19) to the CSX 14D-9)............................................ *(a)(9) Text of press release issued by Conrail and CSX dated November 19, 1996 (incorporated by reference to Exhibit (a)(20) to the CSX 140-9)............................................ *(a)(10) Text of press release issued by Conrail and CSX dated November 20, 1996 (incorporated by reference to Exhibit (a)(21) to the CSX 14D-9)............................................ Page No. *(a)(11) Text of press release issued by CSX dated November 21, 1996 (incorporated by reference to Exhibit (a)(22) to the CSX 14D-9).... *(a)(12) Text of press release issued by Conrail, dated November 25, 1996........................... *(a)(13) Text of press release issued by CSX, dated November 26, 1996 (incorporated by reference to Exhibit (a)(23) to the CSX 14D-9).... *(a)(14) Text of press release issued by Conrail and CSX dated December 5, 1996........................ (a)(15) Text of press release issued by Conrail and CSX dated December 10, 1996 (incorporated by reference to Exhibit (a)(8) to the Solicitation/Recommendation Statement on Schedule 14D-9 of Conrail dated December 6, 1996, as amended, relating to the second tender offer by CSX (the "Second CSX 14D-9"))...................................... (b) Not applicable.................................... *(c)(1) Pages 4-5 and 9-14 of Conrail's Proxy Statement dated April 3, 1996 (incorporated by reference to Exhibit (c)(7) to the CSX 14D-9)............................................ *(c)(2) Employment Agreement of Mr. David M. LeVan dated as of October 14, 1996 (incorporated by reference to Exhibit (c)(5) to the CSX 14D-9)............................................ *(c)(3) Change of Control Agreement of Mr. David M. LeVan dated as of October 14, 1996 (incorporated by reference to Exhibit (c)(6) to the CSX 14D-9).......................... *(c)(4) First Amended Complaint in Norfolk Southern et al. v. Conrail Inc., et al., No. 96-CV- 7167, filed on October 28, 1996 in the United States District Court for the Eastern District of Pennsylvania (incorporated by reference to Exhibit (c)(9) to the CSX 14D-9)........................................ Page No. *(c)(5) Second Amended Complaint in Norfolk Southern et. al. v. Conrail Inc., et al., No. 96-CV-7167, filed on November 15, 1996 in the United States District Court for the Eastern District of Pennsylvania (incorporated by reference to Exhibit (c)(12) to the CSX 14D-9). *(c)(6) 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 November 20, 1996.............................................. *(c)(7) Conrail's Definitive Proxy Statement, dated November 25, 1996................................. *(c)(8) Answer and Defenses of Conrail, CSX and the individual defendants to Second Amended Complaint, and Counterclaim of Conrail and CSX in Norfolk Southern et al. v. Conrail Inc. et al., filed on December 5, 1996, in the United States District Court for the Eastern District of Pennsylvania................... - --------------------- * Previously filed -----END PRIVACY-ENHANCED MESSAGE-----