-----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, BMV6THZv1lrfVIJnk9rzihYlRuQhv4EPdoQvXEZBr9pwhkQQ1GcZmPL03VApqZQD vfG0aZhqZAYOHmcYV1ov7w== 0000950157-97-000003.txt : 19970107 0000950157-97-000003.hdr.sgml : 19970107 ACCESSION NUMBER: 0000950157-97-000003 CONFORMED SUBMISSION TYPE: SC 14D9/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970106 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: 97501093 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. 3 ===================================================================== SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------------------- AMENDMENT NO. 3 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 Solicitatio Recommendation Statement on Schedule 14D-9, originally filed on December 6, 1996, and amended on December 12, 1996 and December 20, 1996 (as amended, the "CSX Schedule 14D-9") with respect to an offer by Green Acquisition Corp., a Pennsylvania corporation ("Purchaser") and a wholly owned subsidiary of CSX Corporation, a Virginia corporation ("CSX"), to purchase up to an aggregate of 18,344,845 Shares of Conrail. Capitalized terms not defined herein have the meanings assigned thereto in the CSX Schedule 14D-9. Item 6. Recent Transactions and Intent with Respect to Securities. Item 6(a) of the Schedule 14D-9 is hereby amended by amending and restating such item in its entirety as follows: (a) During the past 60 days, neither Conrail nor any subsidiary of Conrail has effected a transaction in the Shares. On November 20, 1996, certain officers and directors tendered Shares (including shares of Common Stock and Preferred Stock) to Purchaser in the First Offer and on November 21, 1996, Purchaser purchased a portion of such Shares equal to the announced proration factor of 23.45% at $110 per Share. Those transactions are set forth in the table below. Number of Number of Number of Common Number of Preferred Common Shares Preferred Shares Shares purchased by Shares purchased by Name and Title of tendered in Purchaser in tendered in Purchaser in Officer or Director First Offer First Offer First Offer First Offer - ------------------- ----------- ------------ ---------- ------------ David B. Lewis Director 1,200 281 -- -- John C. Marous Director 800 188 -- -- Raymond T. Schuler Director 7,921 1,858 -- -- Lucy S. Amerman Vice President Risk Management -- -- 1,836 431 Number of Number of Number of Common Number of Preferred Common Shares Preferred Shares Shares purchased by Shares purchased by Name and Title of tendered in Purchaser in tendered in Purchaser in Officer or Director First Offer First Offer First Offer First Offer - ------------------- ----------- ------------ ---------- ------------ Cynthia A. Archer Senior Vice President Intermodal 2,141 501 3,316 778 Dennis A. Arouca Vice President Labor Relations 5,107 1,197 2,375 557 Ronald J. Conway Senior Vice President Operations 253 59 2,441 572 Timothy P. Dwyer Senior Vice President Unit Trains 10,500 2,462 2,135 501 Gerald T. Gates Vice President Customer Support 2,947 691 2,065 484 Hugh J. Kiley Vice President Service Design & Planning -- -- 1,912 448 David M. LeVan Chairman, President & CEO 30,062 7,050 2,523 592 Craig R. MacQueen Vice President Corporate Communications 96 22 1,758 412 Donald W. Mattson Vice President Controller 5,126 1,202 2,380 558 Thomas J. McFadden Treasurer -- -- 1,167 274 Number of Number of Number of Common Number of Preferred Common Shares Preferred Shares Shares purchased by Shares purchased by Name and Title of tendered in Purchaser in tendered in Purchaser in Officer or Director First Offer First Offer First Offer First Offer - ------------------- ----------- ------------ ---------- ------------ John A. McKelvey Vice President Service Delivery 13,520 3,171 2,358 553 William B. Newman Vice President Government Affairs & Washington Counsel 13,440 3,853 2,483 582 Frank H. Nichols Senior Vice President Organizational Performance 4,996 1,172 2,271 533 Timothy T. O'Toole Senior Vice President Finance 4,592 1,078 2,272 533 Lester M. Passa Vice President Logistics & Corporate Strategy -- -- 1,914 449 Albert M. Polinsky Vice President Information Systems 385 90 1,875 440 John P. Sammon Senior Vice President Core Service Group 5,254 1,232 2,146 503 John M. Samuels Vice President Operating Assets 3,745 879 2,340 549 George P. Turner Senior Vice President Automotive 1,108 260 2,179 511 Number of Number of Number of Common Number of Preferred Common Shares Preferred Shares Shares purchased by Shares purchased by Name and Title of tendered in Purchaser in tendered in Purchaser in Officer or Director First Offer First Offer First Offer First Offer - ------------------- ----------- ------------ ---------- ------------ Bruce B. Wilson Senior Vice President Law 33,253 7,798 2,494 585 In addition, during the past 60 days, certain of the foregoing officers exercised stock options and shmultaneously with such exercise sold a portion of the newly issued Shares in the market. Those transactions are tabulated below. Date of Number of Stock Number of Shares Officer Transaction Options Exercised Sold/Sale Price ------- ----------- ------------------ --------------- Cynthia A. Archer 11/19/96 11,438 5,990/$95.9050 3,307/$95.8080 Dennis A. Arouca 11/19/96 15,510 11,132/$95.9050 Timothy P. Dwyer 11/19/96 30,500 21,705/$95.9050 Gerald T. Gates 11/18/96 16,875 9,375/$96.2750 5,695/$95.8180 Hugh J. Kiley 11/19/96 1,950 1,950/$95.9250 John A. McKelvey 11/19/96 5,332 5,332/$96.0000 William B. Newman 11/20/96 30,400 17,875/$95.8180 John M. Samuels 11/19/96 9,375 6,818/$95.9050 Bruce B. Wilson 11/18/96 65,716 41,302/$95.9150 On November 19, 1996, Mr. Kiley sold an additional 63.52 Shares at $95.9250 per Share. On December 27, 1996, Mr. McKelvey disposed of 40 Shares in a charitable donation. Item 8. Additional Information to be Furnished. Item 8 of the CSX Schedule 14D-9 is hereby amended and supplemented by adding the following text at the end thereof: On December 10, 1996 and December 12, 1996, Conrail and CSX published advertisements, copies of which are attached hereto as Exhibits (a)(14) and (a)(15), respectively, and are incorporated herein by reference. On December 27, 1996, Norfolk filed a Petition for Declaratory Order with the Surface Transportation Board (the "STB"), claiming that certain provisions of the Second Amendment constitute an unauthorized acquisition of control by CSX over Conrail. In such petition, Norfolk requests that the STB take expedited action to issue a declaratory order that certain provisions of the Merger Agreement are void and unenforceable. In the event that a decision cannot be reached substantially before January 17, 1997, Norfolk requests that the STB issue a temporary cease and desist order barring Conrail from holding the Pennsylvania Special Meeting on January 17, 1997 or barring CSX from requiring the trustee of the Voting Trust to vote any Shares of Conrail held in the Voting Trust in favor of opting out of Subchapter E or in favor of the Merger until the STB is able to decide. On December 30, 1996, each of Conrail and CSX filed an interim reply with the STB opposing Norfolk Southern's request for interim coercive relief. On January 2, 1997, CSX and Purchaser, through the Voting Trust, sold 85,000 shares of Common Stock (with proxies for the Pennsylvania Special Meeting) through brokerage transactions on the New York Stock Exchange. 3,500 of such shares of Common Stock were sold at $99 1/8 per share of Common Stock; 66,500 of such shares of Common Stock were sold at $99 per share of Common Stock; and 15,000 of such shares of Common Stock were sold at $98 7/8 per share of Common Stock. CSX has stated that such transactions were effected through Wasserstein Perrella Co., Inc., the dealer manager for the Offer, who will receive normal and customary brokerage commissions in connection therewith. While CSX and Conrail continue to believe that the claims of Norfolk and the shareholder plaintiffs in the pending litigation brought by such parties are without merit, such transactions were effected to moot certain contentions in such litigation that shares of Common Stock owned by CSX should be aggregated with shares of Common Stock owned by directors and certain officers of Conrail for purposes of the PBCL. Item 9. Materials to be filed as Exhibits. Item 9 of the CSX Schedule 14D-9 is hereby amended and supplemented by adding the following text thereto: (a)(14) Text of advertisement published by Conrail and CSX on December 10, 1996. (a)(15) Text of advertisement published by Conrail and CSX on December 12, 1996. 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 January 3, 1997 EXHIBIT INDEX Exhibit Description Page No. - ------- ----------- -------- *(a)(1) Offer to Purchase dated December 6, 1996 (incorporated by reference to Exhibit (a)(1) to CSX's and Purchaser's Tender Offer Statement on Schedule 14D-1 dated December 6, 1996, as amended (the "CSX 14D-1"))......................... *(a)(2) Letter of Transmittal (incorporated by reference to Exhibit (a)(2) to the CSX 14D-1)............................................. *(a)(3) Text of press release issued by CSX dated December 6, 1996 (incorporated by reference to Exhibit (a)(7) to the CSX 14D-1)................... *(a)(4) Letter to shareholders of Conrail dated December 6, 1996............................................ *(a)(5) Form of Summary Advertisement dated December 6, 1996 (incorporated by reference to Exhibit (a)(5) to the CSX 14D-1)........................... *(a)(6) Opinion of Lazard Freres & Co. LLC (incorporated by reference to Exhibit (a)(14) to the Solicitatio Recommendation Statement on Schedule 14D-9 of Conrail dated October 16, 1996, as amended, relating to the First Offer (the "First 14D-9"))........................................... *(a)(7) Opinion of Morgan Stanley & Co. Incorporated (incorporated by reference to Exhibit (a)(15) to the First 14D-9)................................... *(a)(8) Text of press release issued by Conrail and CSX dated December 10, 1996............................ *(a)(9) Opinion of Lazard Freres & Co. LLC dated December 18, 1996.................................. *(a)(10) Opinion of Morgan Stanley & Co. Incorporated dated December 18, 1996............................ *(a)(11) Supplement to the Offer to Purchase dated December 19, 1996 (incorporated by reference to Exhibit (a)(15) to the 14D-1)...................... *(a)(12) Text of press release issued by CSX and Conrail dated December 19, 1996............................ Exhibit Description Page No. - ------- ----------- -------- *(a)(13) Text of press release issued by Conrail dated December 20, 1996.................................. (a)(14) Text of advertisement published by Conrail and CSX on December 10, 1996........................... (a)(15) Text of advertisement published by Conrail and CSX on December 12, 1996........................... (b) Not applicable..................................... *(c)(1) Agreement and Plan of Merger dated as of October 14, 1996 (incorporated by reference to Exhibit (c)(1) to CSX's and Purchaser's Tender Offer Statement on Schedule 14D-1 dated October 16, 1996, as amended, relating to the First Offer (the "First CSX 14D-1"))........................... *(c)(2) First Amendment to Agreement and Plan of Merger dated as of November 5, 1996 (incorporated by reference to Exhibit (c)(7) to the First CSX 14D-1)............................................. *(c)(3) Conrail Stock Option Agreement dated as of October 14, 1996 (incorporated by reference to Exhibit (c)(2) to the First CSX 14D-1)............. *(c)(4) CSX Stock Option Agreement dated as of October 14, 1996 (incorporated by reference to Exhibit (c)(3) to the First CSX 14D-1)..................... *(c)(5) Voting Trust Agreement dated as of October 15, 1996 (incorporated by reference to Exhibit (c)(4) to the First CSX 14D-1)..................... *(c)(6) Employment Agreement of Mr. LeVan dated as of October 14, 1996 (incorporated by reference to Exhibit (c)(5) to the First 14D-9)................. *(c)(7) Change of Control Agreement of Mr. LeVan dated as of October 14, 1996 (incorporated by reference to Exhibit (c)(6) to the First 14D-9)............................................. Exhibit Description Page No. - ------- ----------- -------- *(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 (incorporated by reference to Exhibit (c)(8) to the Solicitatio Recommendation Statement on Schedule 14D-9 of Conrail dated November 6, 1996, as amended, relating to the Norfolk Offer)..................................... *(c)(9) Pages 4-5 and 9-14 of Conrail's Proxy Statement dated April 3, 1996 (incorporated by reference to Exhibit (c)(7) to the First 14D-9).............. *(c)(10) Second Amendment to Agreement and Plan of Merger dated as of December 18, 1996 (incorporated by reference to Exhibit (c)(6) to the 14D-1).......... *(c)(11) Form of Amended and Restated Voting Trust Agreement (incorporated by reference to Exhibit (c)(7) to the 14D-1)............................... - --------------------- * Previously filed EX-14 2 EXHIBIT A 14 EXHIBIT (a)(14) [Advertisement] You Can't Take Norfork Southern To Get To The Truth. Their Lines Don't Go There. They say desperate people take desperate measures. Which is why Norfolk Southern is trying to inspire fear by not being honest about the proposed Conrail-CSX merger. The fact is, the Conrail-CSX merger is about a marriage of equals, not a hostile takeover. About more competition, not less. About increasing choices for shippers, not decreasing them. About opening more markets, not closing them. Most of all, it's about more business and more job opportunities. The Conrail-CSX merger is about truth--not scare tactics, intellectual dishonesty, empty promises and analytical double-talk. The truth is: o The Conrail-CSX merger of equals is about commitment and strong roles for all the constituents of both companies, including Conrail's employees. Conrail and CSX take great pride in the positive relationships they have with their employees. o Only Conrail and CSX have committed to protecting employee interests by creating a board composed of equal number of directors from both companies; a succession plan that insures their representation among management; and to locating the corporate headquarters of the new company in Philadelphia. o The Conrail and CSX pension plans--if combined--would have more than $100 million in excess assets, based on the latest published data. o Conrail and CSX have committed to make arrangements to grant fair and reasonable railroad access to ensure NO reduction in competition. o CSX is a safe...very safe railroad. The CSX train accident rate is the lowest of all Class I railroads. And, Conrail's rate of improvement is among the best in the industry, and it has the lowest number of crossing accidents of all Class I railroads. That doesn't mean we are satisfied with our safety records; but it does mean our safety programs successfully focus not only on the well-being of our employees, but also on safely meeting the needs of our customers and the communities we serve. Here's the bottom line: The Conrail-CSX combination has the resources to spur unprecedented growth. In options for shippers. In opportunities for employees. In benefits for everyone. And those are the real facts! [Conrail logo] [CSX logo] CARRYING AMERICA INTO THE FUTURE CSX is not soliciting, and this advertisement does not constitute a solicitation of, any proxy, vote or consent as to any matter. In addition, this advertisement does not constitute an offer to sell or buy, or the solicitation of an offer to sell or buy, any securities. EX-15 3 EXHIBIT A 15 EXHIBIT (a)(15) [Advertisement] Yes, I want to be part of one of the world's leading freight companies. Yes, I want what's best for America's economy. Yes, I want to have better access to global markets. Yes, I want to do what's best for the environment. Yes, I want railroads to be more competitive with trucks. Yes, I want to have less congestion on the nation's highways. Yes, I want to have more direct and efficient railroads. Yes, I want to invest in America's future. Yes, I support the merger of Conrail and CSX. [Conrail logo] [CSX logo] CARRYING AMERICA INTO THE FUTURE CSX is not soliciting, and this advertisement does not constitute a solicitation of, any proxy, vote or consent as to any matter. In addition, this advertisement does not constitute an offer to sell or buy, or the solicitation of an offer to sell or buy, any securities. -----END PRIVACY-ENHANCED MESSAGE-----