-----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, Bq9AWmz2Dzx/eKxxfh2PDWe+9O+ZAkvAmkSJOhUY4rEeDBWSeqpyaagaIKa5HzdK gfELvnfpeWzrJa6AtWHwng== 0000950157-97-000116.txt : 19970222 0000950157-97-000116.hdr.sgml : 19970222 ACCESSION NUMBER: 0000950157-97-000116 CONFORMED SUBMISSION TYPE: SC 14D9/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970212 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: 97527181 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 December 6, 1996, and amended on December 12, 1996, December 20, 1996, January 3, 1997, January 10, 1997, January 14, 1997, January 16, 1997, January 21, 1997, January 28, 1997 and February 3, 1997 (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 8. Additional Information to be Furnished. Item 8 of the CSX Schedule 14D-9 is hereby amended and supplemented by adding the following text thereto: On February 10, 1997, Norfolk issued a press release announcing, among other things, that it has nominated a slate of five directors to the Conrail Board. Norfolk also announced in its press release that the final proration factor for the amended Norfolk Offer is approximately 12.6 percent. A copy of the press release is attached hereto as Exhibit (a)(26), is incorporated herein by reference and the foregoing summary is qualified in its entirety by reference to such Exhibit. On February 10, 1997, Conrail issued a press release in response to the Norfolk proposed director slate, announcing that the terms of the proposal are invalid under Pennsylvania law and also appear to violate Federal transportation law. A copy of the press release is attached hereto as Exhibit (a)(27), is incorporated herein by reference and the foregoing summary is qualified in its entirety by reference to such Exhibit. 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)(26) Text of press release issued by Norfolk on February 10, 1997. (a)(27) Text of press release issued by Conrail on February 10, 1997. 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/ John A. McKelvey --------------------------------- Name: John A. McKelvey Title: Senior Vice President-- Finance Dated as of February 12, 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 Solicitation 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............ *(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............... *(a)(16) Text of joint press release issued by Conrail and CSX dated January 9, 1997...... *(a)(17) Text of joint press release issued by Conrail and CSX dated January 13, 1997..... *(a)(18) Text of joint press release issued by Conrail and CSX dated January 15, 1997..... *(a)(19) Text of press release issued by Conrail dated January 19, 1997..................... *(a)(20) Text of press release issued by Conrail dated January 22, 1997 (incorporated by reference to Exhibit (a)(26) to the Norfolk 14D-9)..................................... *(a)(21) Text of press release issued by Conrail dated January 23, 1997 (incorporated by reference to Exhibit (a)(27) to the Norfolk 14D-9)..................................... *(a)(22) Text of press release issued by Conrail dated January 28, 1997 (incorporated by reference to Exhibit (a)(24) to the Norfolk 14 D-9).................................... *(a)(23) Text of joint advertisement published by Conrail and CSX on January 29, 1997........ *(a)(24) Text of press release issued by Conrail on January 31, 1997........................... *(a)(25) Text of joint press release issued by Conrail, CSX and Norfolk on January 31, 1997........................... (a)(26) Text of press release issued by Norfolk dated February 10, 1997.................... (a)(27) Text of press release issued by Conrail dated February 10, 1997 ................... *(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).................................... *(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 Solicitation 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)............... *(c)(12) 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 January 9, 1997............................ *(c)(13) Text of STB Decision No. 5 of STB Finance Docket No. 33220 dated January 8, 1997...... - --------------------- * Previously filed EX-99.(A)(26) 2 PRESS RELEASE ISSUED BY NORFOLK ON 2/10/97 Exhibit (a)(26) Norfolk South. Nominates 5 Directors to Conrail Bd FORM TYPE: PRNews ISSUER: CONRAIL INC. SYMBOL: CRR NORFOLK, Va., Feb. 10/PRNewswire/ -- Norfolk Southern Corporation announced today that it has nominated a slate of five directors to serve on the board of Conrail Inc. and said it would also seek to remove all but three current members of the Conrail board. In addition, Norfolk Southern said it proposed reducing the size of Conrail's board of directors from thirteen to eight and "declassifying" the board, which would change the current system of electing Conrail directors on a staggered basis and instead require that they all be elected annually by the shareholders. The proposals, which were delivered to Conrail today, are to be considered at the annual meeting of Conrail shareholders. Conrail has scheduled the annual meeting -- usually held in April or May -- for December 19, 1997. Atlantic Investment Company, the wholly owned Norfolk Southern subsidiary that submitted the proposals, said it is seeking to replace most of the Conrail board with directors who are committed to evaluating fairly and impartially all acquisition proposals for Conrail and to seeking the most advantageous transaction for Conrail shareholders. The nominees include: George A. Butler, retired president of CoreStates Financial Corp. in Philadelphia. Stephen P. Lamb, a partner in the Wilmington, Del., law firm of Lamb & Bouchard. Mary Patterson McPherson, the president of Bryn Mawr College in Bryn Mawr, Pa., who will join the Andrew W. Mellon Foundation in New York later in the year. Bernard C. Watson, chairman of the HMA Foundation in Philadelphia and former president and chief executive officer of the William Penn Foundation in Philadelphia. J. Roger Williams, Jr., of counsel to the Philadelphia law firm of Dilworth, Paxson, Kalish & Kauffman. Norfolk Southern said it would seek to remove all current Conrail directors except for Daniel B. Burke, David B. Lewis and John C. Marous. David R. Goode, Chairman, President and Chief Executive Officer of Norfolk Southern, said that Norfolk Southern was forced to submit the shareholder initiative today after Conrail announced that it was delaying the annual shareholders meeting. By delaying the meeting to late December, Conrail triggered a provision of its by-laws requiring shareholders to submit nominations and proposals within ten days. "We would have preferred waiting to submit these proposals, especially now that both CSX and Conrail have agreed to meet and discuss the issues facing us," Goode said. "However, Conrail's recent action to delay the shareholders' meeting as long as possible imposed a very short deadline on its own shareholders and we had to act to protect shareholder interests." Goode said that "a Norfolk Southern acquisition of Conrail is the best opportunity for achieving balanced competition." And he emphasized that "Conrail shareholders must get $115 in cash for each of their shares." Norfolk Southern also announced that on Tuesday it will commence payment for the 8.2 million shares of Conrail which were accepted for payment upon expiration of Norfolk Southern's 9.9 percent tender offer. The offer was oversubscribed with more than 90 percent of the Conrail shares held by shareholders other than CSX being tendered. The final proration factor is approximately 12.6 percent for all Conrail shares tendered. Norfolk Southern intends to promptly commence a second $115 per share all-cash tender offer for all of the remaining Conrail shares. Conrail shareholders on January 17 overwhelmingly defeated Conrail management's proposal to "opt out" of the Pennsylvania Fair Value Statute, clearly signaling their preference for Norfolk Southern's all-cash offer of $115 per share. Norfolk Southern is a Virginia-based holding company with headquarters in Norfolk, Va. It owns a major freight railroad, Norfolk Southern Railway Company, which operates about 14,400 miles of road in 20 states, primarily in the Southeast and Midwest, and the Province of Ontario, Canada. The corporation also owns North American Van Lines, Inc., and Pocahontas Land Corporation, a natural resources company. /FEDERAL FILINGS CONTACTS: (202) 393-7856 FOR EDITORIAL (800) 487-6162 FOR DOCUMENT SALES (202) 628-8990 FOR NEWSWIRE SALES & (888) FED-FILE FOR TECHNICAL SUPPORT./ (END) FEDERAL FILINGS-DOW JONES NEWS 02-10-97 16:44 02/10/97 16:44 :TICKER: CRR CSX NSC :SUBJECT: RAIL BDDR PA VA INDG MNA Copyright(c)1997 Federal Filings, Inc. - A Dow Jones Information Services Co. Received by NewsEDGE/LAN: 2/10/97 4:46PM EX-99.(A)(27) 3 PRESS RELEASE ISSUED BY CONRAIL ON 2/10/97 EXHIBIT (a)(27) [Conrail logo] FOR IMMEDIATE RELEASE CONTACTS: Conrail Inc. Craig R. MacQueen (215) 209-4594 Abernathy MacGregor Group Dan Katcher/Matthew Sherman (212) 371-5999 CONRAIL RESPONDS TO NORFOLK SOUTHERN PROPOSED DIRECTOR SLATE Philadelphia, PA (February 10, 1997) -- Conrail Inc. (NYSE: CRR) said that, by putting up a slate of five directors, Norfolk Southern has acknowledged that Conrail has a staggered board and recognizes that it would take more than one annual meeting to replace a majority of the Conrail directors. Conrail further stated that Norfolk Southern's proposals to remove incumbent directors without cause prior to the expiration of the terms to which they have been elected and to reduce immediately the size of the Conrail board are invalid under Pennsylvania law. Conrail said that Norfolk Southern's proposals to seize control also appear to violate Federal transportation law. Conrail, with corporate headquarters in Philadelphia, PA, operates an 11,000-mile rail freight network in 12 northeastern and midwestern states, the District of Columbia, and the Province of Quebec. Conrail's home page can be reached at http://www.CONRAIL.com. # # # -----END PRIVACY-ENHANCED MESSAGE-----