-----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, H6xl2Rs/gcIqHsFpKYqctY1D4kKOKDeQZFd/zP2MYvaWMNF+Rkq9CMvWvxXSW9vU W2SzrFOLy7Cb7h111/dQWA== 0000950172-97-000204.txt : 19970311 0000950172-97-000204.hdr.sgml : 19970311 ACCESSION NUMBER: 0000950172-97-000204 CONFORMED SUBMISSION TYPE: SC 14D1/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19970310 SROS: NYSE GROUP MEMBERS: ATLANTIC ACQUISITION CORPORATION GROUP MEMBERS: NORFOLK SOUTHERN CORP 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 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-42777 FILM NUMBER: 97554099 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 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: 97554100 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: NORFOLK SOUTHERN CORP CENTRAL INDEX KEY: 0000702165 STANDARD INDUSTRIAL CLASSIFICATION: RAILROADS, LINE-HAUL OPERATING [4011] IRS NUMBER: 521188014 STATE OF INCORPORATION: VA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A BUSINESS ADDRESS: STREET 1: THREE COMMERCIAL PL CITY: NORFOLK STATE: VA ZIP: 23510-2191 BUSINESS PHONE: 8046292680 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: NORFOLK SOUTHERN CORP CENTRAL INDEX KEY: 0000702165 STANDARD INDUSTRIAL CLASSIFICATION: RAILROADS, LINE-HAUL OPERATING [4011] IRS NUMBER: 521188014 STATE OF INCORPORATION: VA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A BUSINESS ADDRESS: STREET 1: THREE COMMERCIAL PL CITY: NORFOLK STATE: VA ZIP: 23510-2191 BUSINESS PHONE: 8046292680 SC 14D1/A 1 SCHEDULE 14D1 AMENDMENT NO. 6 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------------- SCHEDULE 14D-1 (Amendment No. 6) Tender Offer Statement Pursuant to Section 14(d)(1) of the Securities Exchange Act of 1934 and SCHEDULE 13D (Amendment No. 8) ----------------- Conrail Inc. (Name of Subject Company) NORFOLK SOUTHERN CORPORATION ATLANTIC ACQUISITION CORPORATION (Bidders) 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) NOT AVAILABLE (CUSIP Number of Class of Securities) -------------------------- JAMES C. BISHOP, JR. EXECUTIVE VICE PRESIDENT-LAW NORFOLK SOUTHERN CORPORATION THREE COMMERCIAL PLACE NORFOLK, VIRGINIA 23510-2191 TELEPHONE: (757) 629-2750 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Bidder) with a copy to: RANDALL H. DOUD, ESQ. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 919 THIRD AVENUE NEW YORK, NEW YORK 10022 TELEPHONE: (212) 735-3000 This Amendment amends the combined Tender Offer Statement on Schedule 14D-1 initially filed on February 12, 1997, as amended, and the Schedule 13D initially filed on February 5, 1997, as amended (the "Combined Statement"), by Norfolk Southern Corporation, a Virginia corporation ("Parent"), and its wholly owned subsidiary, Atlantic Acquisition Corporation, a Pennsylvania corporation ("Purchaser"), relating to Purchaser's offer to purchase all outstanding shares of (i) Common Stock, par value $1.00 per share (the "Common Shares"), and (ii) Series A ESOP Convertible Junior Preferred Stock, without par value (the "ESOP Preferred Shares" and, together with the Common Shares, the "Shares"), of Conrail Inc. (the "Company"), 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 February 12, 1997 (the "Offer to Purchase"), and in the related Letter of Transmittal (which, together constitute the "Second Offer"). Unless otherwise defined herein, all capitalized terms used herein shall have the respective meanings given such terms in the Offer to Purchase or the Combined Statement. ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER. Item 5 is hereby amended and supplemented by the following: On March 7, 1997, the Company announced that an amendment to the CSX Merger Agreement had been entered into pursuant to which, among other things, (i) the price per Share offered in the CSX Second Offer was increased from $110 to $115, net to the seller in cash, without interest, and the number of Shares sought pursuant to the CSX Second Offer was increased to all outstanding Shares and the expiration date of the CSX Second Offer was extended to 5:00 p.m., New York City time, on Friday, April 18, 1997 (subject to further extension to June 2, 1997 without the consent of the Company and whether or not all the conditions have then been satisfied), (ii) the consideration paid per Share in the Proposed CSX Merger for all remaining outstanding Shares following consummation of the CSX Second Offer was increased to $115 in cash and (iii) the conditions to the CSX Second Offer relating to the Pennsylvania Control Transaction Law becoming inapplicable to the Company and relating to pending governmental actions or proceedings were deleted, and a condition was added that a minimum number of Shares are tendered to the CSX Second Offer which together with the Shares already owned by CSX, represents more than a majority of the outstanding Shares on a fully diluted basis. Parent expects to negotiate a comprehensive settlement of the issues confronting the eastern railroads with CSX with a view toward effecting a joint acquisition of the Shares consistent with Parent's February 24, 1997 proposal. However, there can be no assurance that any such settlement between Parent and CSX can be reached. Therefore, Parent has hereby amended the Second Offer to run coextensively with the CSX Second Offer. ITEM 10. ADDITIONAL INFORMATION. Item 10 is hereby amended and supplemented by the following: (e) On March 7, 1997, the Third Circuit affirmed the November 19, 1996 and January 9, 1997 judgments of the District Court. (f) On February 10, 1997, Parent and Purchaser announced that they were extending the expiration date of the Second Offer to 12:00 midnight, New York City time, on Friday, April 18, 1997, unless the Second Offer is further extended. According to the Depositary for the Second Offer, as of the afternoon of March 7, 1997, approximately 1,056,000 Shares had been tendered and not withdrawn pursuant to the Second Offer. ITEM 11. MATERIAL TO BE FILED AS EXHIBITS. Item 11 is hereby amended and supplemented by the following: (a)(17) Press Release issued by Parent on March 7, 1997. (a)(18) Press Release issued by Parent on March 10, 1997. (g)(18) Judgment of Judges Stapleton, Scirica and Nygaard (dated March 7, 1997, United States Court of Appeals for the Third Circuit). (g)(19) Opinion of Judges Stapleton, Scirica and Nygaard (dated March 7, 1997, United States Court of Appeals for the Third Circuit). 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. Dated: March 10, 1997 NORFOLK SOUTHERN CORPORATION By: /s/ JAMES C. BISHOP, JR. -------------------------------------- Name: James C. Bishop, Jr. Title: Executive Vice President-Law ATLANTIC ACQUISITION CORPORATION By: /s/ JAMES C. BISHOP, JR. -------------------------------------- Name: James C. Bishop, Jr. Title: Vice President and General Counsel EXHIBIT INDEX Exhibit Number Description (a)(17) Press Release issued by Parent on March 7, 1997. (a)(18) Press Release issued by Parent on March 10, 1997. (g)(18) Judgment of Judges Stapleton, Scirica and Nygaard (dated March 7, 1997, United States Court of Appeals for the Third Circuit). (g)(19) Opinion of Judges Stapleton, Scirica and Nygaard (dated March 7, 1997, United States Court of Appeals for the Third Circuit). EX-99 2 EXHIBIT (A)(17) - PRESS RELEASE FOR IMMEDIATE RELEASE March 7, 1997 Media Contact: Robert Fort (757) 629-2710 NS PRAISES CONRAIL AGREEMENT AS 'IMPORTANT VICTORY' FOR ALL COMPANY SAYS IT WILL NOW FINALIZE PLAN FOR EASTERN RAIL- ROADS WITH CSX NORFOLK, VA -- The following statement was issued today by David R. Goode, Chairman, President and Chief Execu- tive Officer of Norfolk Southern Corporation (NYSE: NSC): "The breakthrough on the issues facing the eastern railroads represents an important victory for everyone with an interest in the future of rail transportation in America and for those who rely on it -- shippers, share- holders, railroad employees and the communities served by Conrail, Norfolk Southern and CSX. "Norfolk Southern is gratified that we will be able to fulfill our promise to deliver $115 in cash per share to Conrail shareholders. We are also pleased that the contemplated agreement with CSX will redraw the railroad map to preserve and enhance competition in the East and guarantee balanced competition between two strong compa- nies. "On February 24 Norfolk Southern proposed to CSX and Conrail a plan to restructure the eastern rail system. That plan, which all sides have not accepted, will ensure that the combined Conrail/Norfolk Southern and the com- bined Conrail/CSX systems will compete at and between most of the major ports and markets east of the Missis- sippi. "As we said in our letter, 'We believe this is a sound basis on which to build an internationally competi- tive economy in the region, and that the benefits of this compromise extend to our companies, employees and custom- ers.' "We look forward to working with the dedicated and talented Conrail employees who will be joining Norfolk Southern. They will play an invaluable role in building an even greater railroad. "Norfolk Southern will now begin talks with CSX to work out the joint purchase of Conrail shares and the other details of this historic transaction. "Perhaps as much as anything else, this demonstrates that with creativity and determination great companies can work through difficult issues and find solutions that are in the public interest. We are proud of the role we played in achieving that result." ### World Wide Web Site - http://www.nscorp.com EX-99 3 EXHIBIT (A)(18) - PRESS RELEASE FOR IMMEDIATE RELEASE March 10, 1997 Media Contact: Robert Fort (757) 629-2710 NORFOLK, VA -- Norfolk Southern Corporation (NYSE:NSC) today announced that it is extending its previously announced tender offer for shares of Conrail. Norfolk Southern expects to negotiate with CSX Corporation a comprehensive settlement of the issues confronting the eastern railroads consistent with the proposal submitted by Norfolk Southern last month. However, while negotiations are pending, Norfolk Southern intends to amend its tender offer to run coextensive with the CSX tender offer. Accordingly, the tender offer has been extended through 12:00 midnight, New York City time, on Friday, April 18, 1997. Norfolk Southern continues to offer $115 cash per share for all shares of Conrail. According to the depositary for the Norfolk Southern tender offer, approximately 1,056,000 Conrail shares had been tendered and not withdrawn pursuant to Norfolk Southern's offer as of the afternoon of March 7. ### World Wide Web Site - http://www.nscorp.com EX-99 4 EXHIBIT (G)(18) - JUDGMENT 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 5 EXHIBIT (G)(19) - OPINION 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 appellants appeal from an order of the district court, the primary 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 appellants 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 occurred 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 demonstrate, for example, that they face imminent, irreparable injury that would be avoided if any of this additional relief were granted.(1) ---------------- 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 difficult for the appellants to demonstrate an immediate threat of irreparable injury. The application for a preliminary injunction in the first filed cases did ask for an order enjoining enforcement of the 270 day lock-out provision and that provision, 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, in suggests that the Conrail Board would remain committed to the CSX proposal even if it were not bound by a contract provision. 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 order 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 pendente lite relief are filed in the district court and additional 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 supplemental submissions. -----END PRIVACY-ENHANCED MESSAGE-----