Virginia
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4011
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52-1188014
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industries
Classification Code Number)
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(I.R.S. Employer
Identification No.)
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Three Commercial Place
Norfolk, Virginia 23510-2191
(757) 629-2860
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(Address, including zip code, and telephone number, including area code, of registration’s principal executive officer)
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James A. Hixon, Esq.
Norfolk Southern Corporation
Three Commercial Place
Norfolk, Virginia 23510-2191
(757) 629-2600
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(Name, address, including zip code, and telephone number, including area code, of agent for service)
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Copies of all communications to:
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David J. Goldschmidt, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036-6522
(212) 735-3000
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Large accelerated filer þ
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Accelerated filer o
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Non-accelerated filer o (Do not check if a smaller reporting company)
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Smaller reporting company o
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Title of Each Class of Securities to Be Registered
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Amount to Be
Registered
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Proposed Maximum Offering Price per Security
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Proposed Maximum Aggregate Offering Price(1)
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Amount of Registration Fee(1)
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4.837% Notes due 2041
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$595,504,000
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100%
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$595,504,000
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$68,244.76
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6.00% Senior Notes due 2111
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$4,492,000
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100%
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$4,492,000
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$ 514.78
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(1)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(f) under the Securities Act of 1933, as amended.
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Forward-Looking Statements
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ii
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Incorporation of Certain Documents by Reference
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iii
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Where You Can Find More Information
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iii
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Summary
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1
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Risk Factors
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10
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The Exchange Offer
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13
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Use of Proceeds
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22
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Selected Historical Consolidated Financial Statements
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22
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Description of 4.837% Exchange Notes
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23
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Description of 6.00% Exchange Notes
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34
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Material U.S. Federal Income Tax Consequences
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42
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Plan of Distribution
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43
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Legal Matters
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45
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Experts
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45
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·
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our Annual Report on Form 10-K for the fiscal year ended December 31, 2011; and
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·
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any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until the exchange offer expires or is otherwise terminated.
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SUMMARY
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The following is a summary of the more detailed information contained in or incorporated by reference into this prospectus. It does not contain all of the information that may be important to you. Before participating in the exchange offer, you should read this prospectus in its entirety and the documents to which we have referred you, especially the risks of participating in the exchange offer discussed under “Risk Factors,” and the risks relating to the Company which are set forth in Part I, Item 1A, “Risk Factors” as well as Part II, Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” in our Fiscal 2011 Form 10-K, which is incorporated by reference in this prospectus. See “Incorporation of Certain Documents by Reference.” As used in this prospectus, unless otherwise indicated, “Norfolk Southern”, the “Company”, “we”, “our” and “us” are used interchangeably to refer to Norfolk Southern Corporation or to Norfolk Southern Corporation and its consolidated subsidiaries, as appropriate to the context.
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Our Company
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We are a Norfolk, Virginia based corporation that controls a major freight railroad, Norfolk Southern Railway Company (“NSR”). NSR is primarily engaged in the rail transportation of raw materials, intermediate products and finished goods primarily in the Southeast, East and Midwest and, via interchange with other rail carriers, to and from the rest of the United States. We also transport overseas freight through several Atlantic and Gulf Coast ports. We provide comprehensive logistics services and offer the most extensive intermodal network in the eastern half of the United States. Our common stock is listed on the New York Stock Exchange, or NYSE, under the symbol “NSC.”
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Our executive offices are located at Three Commercial Place, Norfolk, Virginia 23510-2191, and our telephone number is (757) 629-2600.
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Summary of the Exchange Offer
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On September 14, 2011, in connection with private exchange offers, we issued $595,504,000 aggregate principal amount of 4.837% Notes due 2041 and $4,492,000 aggregate principal amount of 6.00% Senior Notes due 2111. As part of that issuance, we entered into a registration rights agreement with the dealer managers of the private exchange offers, dated as of September 14, 2011, in which we agreed, among other things, to deliver this prospectus to you and to use all commercially reasonable efforts to complete an exchange offer for the original notes. Below is a summary of the exchange offer.
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Securities offered:
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(1) 4.837% Notes due 2041
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$595,504,000 aggregate principal amount of 4.837% Notes due 2041 that have been registered under the Securities Act (the “4.837% exchange notes”). The form and terms of the 4.837% exchange notes are identical in all material respects to those of the 4.837% original notes except that the 4.837% exchange notes are registered under the Securities Act and the transfer restrictions, registration rights and additional interest provisions applicable to the 4.837% original notes do not apply to the 4.837% exchange notes.
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(2) 6.00% Senior Notes due 2111
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$4,492,000 aggregate principal amount of 6.00% Senior Notes due 2111 that have been registered under the Securities Act (the “6.00% exchange notes”). The form and terms of the 6.00% exchange notes are identical in all material respects to those of the 6.00% original notes except that the 6.00% exchange notes are registered under the Securities Act and the transfer restrictions, registration rights and additional interest provisions applicable to the 6.00% original notes do not apply to the 6.00% exchange notes.
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Exchange offer for the 4.837% original notes
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We are offering to exchange up to $595,504,000 principal amount of our outstanding 4.837% original notes for a like principal amount of the 4.837% exchange notes. You may tender 4.837% original notes only in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. We will issue 4.837% exchange notes promptly after the expiration of the exchange offer. In order to be exchanged, a 4.837% original note must be properly tendered and accepted. All 4.837% original notes that are validly tendered and not validly withdrawn will be exchanged. As of the date of this prospectus, there is $595,504,000 aggregate principal amount of 4.837% original notes outstanding. The $595,504,000 aggregate principal amount of 4.837% original notes were issued under an indenture dated September 14, 2011.
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Exchange offer for the 6.00% original notes
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We are offering to exchange up to $4,492,000 principal amount of the outstanding 6.00% original notes for a like principal amount of the 6.00% exchange notes. You may tender 6.00% original notes only in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. We will issue 6.00% exchange notes promptly after the expiration of the exchange offer. In order to be exchanged, a 6.00% original note must be properly tendered and accepted. All 6.00% original notes that are validly tendered and not validly withdrawn will be exchanged. As of the date of this prospectus, there is $4,492,000
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aggregate principal amount of 6.00% original notes outstanding. The $4,492,000 aggregate principal amount of 6.00% original notes were issued under an indenture dated June 1, 2009, as amended and supplemented by a second supplemental indenture dated May 23, 2011 and a third supplemental indenture dated September 14, 2011. On May 23, 2011 and on November 17, 2011, we issued $400,000,000 aggregate principal amount and $100,000,000 aggregate principal amount, respectively, of 6.00% Senior Notes due 2011 that were registered under the Securities Act. If all outstanding 6.00% original notes are tendered for exchange, there will be $504,492,000 principal amount of 6.00% Senior Notes due 2011 (that have been registered under the Securities Act) outstanding after this exchange offer.
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Expiration date; Tenders
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The exchange offer will expire at 5:00 p.m., New York City time, on 2012, which is the thirtieth calendar day of the offering period, unless we extend the period of time during which the exchange offer is open. In the event of any material change in the offer, we will extend the period of time during which the exchange offer is open if necessary so that at least five business days remain in the exchange offer period following notice of the material change. By tendering your original notes, you represent that:
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·
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you are neither our “affiliate” (as defined in Rule 405 under the Securities Act) nor a broker-dealer tendering notes acquired directly from us for your own account;
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any exchange notes you receive in the exchange offer are being acquired by you in the ordinary course of business;
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at the time of commencement of the exchange offer, neither you nor, to your knowledge, anyone receiving exchange notes from you has any arrangement or understanding with any person to participate in the “distribution,” as defined in the Securities Act, of the original notes or the exchange notes in violation of the Securities Act;
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·
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you are not engaged in, and do not intend to engage in, the “distribution,” as defined in the Securities Act, of the original notes or the exchange notes; and
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if you are a broker-dealer receiving the exchange notes for your own account in exchange for the original notes that you acquired as a result of your market-making or other trading activities, you will deliver a prospectus in connection with any resale of the exchange notes that you receive. For further information regarding resales of the exchange notes by broker-dealers, see the discussion under the caption “Plan of Distribution.”
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Accrued interest on the exchange notes and original notes
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The 4.837% exchange notes will bear interest from September 14, 2011. The 6.00% exchange notes will bear interest from November 23, 2011. If your original notes are accepted for exchange, you will receive interest on the exchange notes and not on the original notes, provided that you will receive interest on the original notes and not the exchange notes if and to the extent the record date for such interest payment occurs prior to completion of the exchange offer. Any original notes not tendered will remain outstanding and continue to accrue interest according to their terms.
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Conditions to the exchange offer
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The exchange offer is subject to customary conditions. If we materially change the terms of the exchange offer, we will resolicit tenders of the original notes and extend the exchange offer period if necessary so that at least five business days remain in the exchange offer period following notice of any such material change. See “The Exchange Offer—Conditions to the Exchange Offer” for more information regarding conditions to the exchange offer.
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Procedures for tendering original notes
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A tendering holder must, on or prior to the expiration date:
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·
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transmit a properly completed and duly executed letter of transmittal, including all other documents required by the letter of transmittal, to the exchange agent at the address listed in this prospectus; or
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·
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if original notes are tendered in accordance with the book-entry procedures described in this prospectus, the tendering holder must transmit an agent’s message to the exchange agent at the address listed in this prospectus. See “The Exchange Offer—Procedures for Tendering.”
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Special procedures for beneficial holders
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If you are a beneficial holder of original notes that are registered in the name of your broker, dealer, commercial bank, trust company or other nominee, and you wish to tender in the exchange offer, you should promptly contact the person in whose name your original notes are registered and instruct that nominee to tender on your behalf. See “The Exchange Offer—Procedures for Tendering.”
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Withdrawal rights
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Tenders may be withdrawn at any time before 5:00 p.m., New York City time, on the expiration date. See “The Exchange Offer—Withdrawal Rights.”
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Acceptance of original notes and delivery of exchange notes
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Subject to the conditions stated in the section “The Exchange Offer—Conditions to the Exchange Offer” of this prospectus, we will accept for exchange any and all original notes which are properly tendered in the exchange offer and not validly withdrawn before 5:00 p.m., New York City time, on the expiration date. The exchange notes will be delivered promptly after the expiration date. See “The Exchange Offer—Terms of the Exchange Offer.”
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Material U.S. federal tax consequences
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Your exchange of original notes for exchange notes pursuant to the exchange offer will not be a taxable event for U.S. federal income tax purposes. See “Material U.S. Federal Income Tax Consequences.”
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Regulatory requirements
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Following the effectiveness of the registration statement covering the exchange offer with the SEC, no other material federal regulatory requirement must be complied with in connection with this exchange offer.
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Exchange agent
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U.S. Bank Trust National Association is serving as exchange agent in connection with the exchange offer. The address and telephone number of the exchange agent are listed under the heading “The Exchange Offer—Exchange Agent.”
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Use of proceeds; expenses
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We will not receive any proceeds from the issuance of exchange notes in the exchange offer. We have agreed to pay all expenses incidental to the exchange offer other than underwriting discounts and commissions and concessions and transfer taxes, if any, relating to the sale or disposition of any original notes by a holder of the original notes and will indemnify holders of the notes, including any broker-dealers, against certain liabilities, including liabilities under the Securities Act.
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Resales
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Based on interpretations by the staff of the SEC as detailed in a series of no-action letters issued to third parties, we believe that the exchange notes issued in the exchange offer may be offered for resale, resold or otherwise transferred by you without compliance with the registration and prospectus delivery requirements of the Securities Act as long as:
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·
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you are acquiring the exchange notes in the ordinary course of your business;
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·
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you are not participating, do not intend to participate and have no arrangement or understanding with any person to participate, in a distribution of the exchange notes; and
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you are neither an affiliate of ours nor a broker-dealer tendering notes acquired directly from us for your own account.
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If you are an affiliate of ours or are engaged in or intend to engage in or have any arrangement or understanding with any person to participate in the distribution of the exchange notes:
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·
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you cannot rely on the applicable interpretations of the staff of the SEC; and
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·
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you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale, unless the resale is made pursuant to an exemption from those requirements.
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Each broker-dealer that receives exchange notes for its own account in exchange for original notes that were acquired as a result of market-making or other trading activities must acknowledge that it will comply with the registration and prospectus delivery requirements of the Securities Act in connection with any offer to resell or other transfer of the exchange notes issued in the exchange offer. Furthermore, any broker-dealer that acquired any original notes directly from us:
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·
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may not rely on the applicable interpretation of the staff of the SEC’s position contained in Exxon Capital Holdings Corp., SEC no-action letter (April 13, 1988), Morgan, Stanley & Co. Inc., SEC no-action letter (June 5, 1991), and Shearman & Sterling, SEC no-action letter (July 2, 1993); and
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·
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must also be named as a selling note holder in connection with the registration and prospectus delivery requirements of the Securities Act relating to any resale transaction.
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As a condition to participation in the exchange offer, each holder will be required to represent that it is not our affiliate or a broker-dealer that acquired the original notes directly from us.
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Consequences of not exchanging original notes
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If you do not exchange your original notes in the exchange offer, you will continue to be subject to the restrictions on transfer described in the legend on your original notes. In general, you may offer or sell your original notes only:
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·
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if they are registered under the Securities Act and applicable state securities laws;
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if they are offered or sold under an exemption from registration under the Securities Act and applicable state securities laws; or
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if they are offered or sold in a transaction not subject to the Securities Act and applicable state securities laws.
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Although your original notes will continue to accrue interest, they will generally retain no rights under the registration rights agreement. We currently do not intend to register the original notes under the Securities Act. Under some circumstances, holders of the original notes, including holders who are not permitted to participate in the exchange offer or who may not freely sell exchange notes received in the exchange offer, may require us to file, and to cause to become
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effective, a shelf registration statement covering resales of the original notes by these holders. For more information regarding the consequences of not tendering your original notes and our obligations to file a shelf registration statement, see “The Exchange Offer—Consequences of Exchanging or Failing to Exchange the Original Notes” and “The Exchange Offer—Registration Rights Agreement.”
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Risk factors
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See Part I, Item 1A, “Risk Factors,” as well as Part II, Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” in our Fiscal 2011 Form 10-K, which is incorporated by reference in this prospectus. See “Incorporation of Certain Documents by Reference.” For a discussion of significant risk factors applicable to the exchange notes and the exchange offer, see “Risk Factors” beginning on page 9 of this prospectus for a discussion of factors you should consider carefully before deciding to participate in the exchange offer.
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Summary of the Terms of the 6.00% Exchange Notes
The following is a summary of the terms of the 6.00% exchange notes. The form and terms of the 6.00% exchange notes are identical in all material respects to those of the 6.00% original notes except that the 6.00% exchange notes are registered under the Securities Act and the transfer restrictions, registration rights and additional interest provisions applicable to the 6.00% original notes do not apply to the 6.00% exchange notes. The 6.00% exchange notes will evidence the same debt as the 6.00% original notes and will be governed by the same indenture. Certain of the terms and conditions described below are subject to important limitations and exceptions. For a more detailed description of the terms and conditions of the 6.00% exchange notes, see the section of this prospectus entitled “Description of 6.00% Exchange Notes.”
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Issuer
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Norfolk Southern Corporation.
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Securities offered
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$4,492,000 aggregate principal amount of 6.00% Senior Notes due 2111. The 6.00% exchange notes will constitute a further issuance of, and will form a single series with, the 6.00% Senior Notes due 2111 we issued on May 23, 2011 in an aggregate principal amount of $400,000,000 and the 6.00% Senior Notes due 2111 we issued on November 17, 2011 in an aggregate principal amount of $100,000,000.
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Maturity
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May 23, 2111.
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Interest
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Interest will accrue on the 6.00% exchange notes from November 23, 2011, at the rate of 6.00% per annum, and will be payable in cash semi-annually in arrears on May 23 and November 23 of each year, beginning on May 23, 2012. Interest on the notes will be computed on the basis of a 360-day year comprised of twelve 30-day months.
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Ranking
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The 6.00% exchange notes will be senior unsecured obligations of Norfolk Southern and will rank on parity with each other and with all of Norfolk Southern’s other senior unsecured indebtedness. The 6.00% exchange notes will be effectively subordinated to existing and future indebtedness and other liabilities of our subsidiaries, to the interest of existing and future holders of preferred stock of our subsidiaries and to any of our existing and future secured indebtedness.
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Optional Redemption
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We may redeem some or all of the 6.00% exchange notes, in whole or in part, at any time or from time to time, at the redemption prices set forth in the indenture, as summarized in this prospectus. See “Description of 6.00% Exchange Notes—Optional Redemption.”
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Certain covenants
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The indenture governing the 6.00% exchange notes will contain covenants that, among other things, will limit our ability to:
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create liens on the stock or debt of NSR;
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incur Funded Debt (as defined herein); and
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consolidate with or merge into, or convey, transfer or lease our properties and assets substantially as an entirety to, another person.
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transmit a properly completed and duly executed letter of transmittal, including all other documents required by the letter of transmittal, to U.S. Bank Trust National Association, as the exchange agent, at the address listed below under the heading “—Exchange Agent;” or
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if original notes are tendered in accordance with the book-entry procedures described below, the tendering holder must transmit an agent’s message to the exchange agent at the address listed below under the heading “—Exchange Agent.”
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the exchange agent must receive, on or before 5:00 p.m., New York City time, on the expiration date, certificates for the original notes, if any; or
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the exchange agent must receive a timely confirmation of book-entry transfer of the original notes into the exchange agent’s account at The Depository Trust Company, or DTC, the book-entry transfer facility.
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by a registered holder of the original notes who has not completed the box entitled “Special Issuance Instructions” or “Special Delivery Instructions” on the letter of transmittal; or
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for the account of an “eligible institution.”
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the holder is not an “affiliate” of ours (as defined in Rule 405 under the Securities Act) or a “broker-dealer” (within the meaning of the Securities Act) tendering notes acquired directly from us for its own account;
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the exchange notes are being acquired in the ordinary course of business of the person receiving the exchange notes, whether or not that person is the holder or a nominee; and
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neither the holder nor the holder’s nominee, if any, has any arrangement or understanding with any person to participate in the “distribution” (within the meaning of the Securities Act) of the exchange notes.
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certificates for the original notes, or a timely book-entry confirmation of the original notes into the exchange agent’s account at the book-entry transfer facility;
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a properly completed and duly executed letter of transmittal or a transmitted agent’s message; and
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all other required documents.
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specify the name of the person, referred to as the depositor, having tendered the original notes to be withdrawn;
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identify the original notes to be withdrawn, including the certificate number or numbers and principal amount of the original notes;
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in the case of original notes tendered by book-entry transfer, specify the number of the account at the book-entry transfer facility from which the original notes were tendered and specify the name and number of the account at the book-entry transfer facility to be credited with the withdrawn original notes and otherwise comply with the procedures of such facility;
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contain a statement that the holder is withdrawing his election to have the original notes exchanged;
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be signed by the holder in the same manner as the original signature on the letter of transmittal by which the original notes were tendered, including any required signature guarantees, or be accompanied by documents of transfer to have the trustee with respect to the original notes register the transfer of the original notes in the name of the person withdrawing the tender; and
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specify the name in which the original notes are registered, if different from that of the depositor.
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there is threatened, instituted or pending any action or proceeding before, or any injunction, order or decree issued by, any court or governmental agency or other governmental regulatory or administrative agency or commission that might materially impair our ability to proceed with the exchange offer; or
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the exchange offer or the making of any exchange by a holder of original notes would violate applicable law or any applicable interpretation of the staff of the SEC.
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will not be able to rely on the interpretation of the SEC’s staff;
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will not be able to tender its original notes in the exchange offer; and
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must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer of the notes unless such sale or transfer is made pursuant to an exemption from such requirements. See “Plan of Distribution.”
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As of or For the Year Ended December 31,
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2011
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2010
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2009
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2008
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2007
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($ in millions, except share, per share, stockholder and employee amounts)
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Results of operations:
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Railway operating revenues
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11,172 | $ | 9,516 | $ | 7,969 | $ | 10,661 | $ | 9,432 | |||||||||||
Railway operating expenses
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7,959 | 6,840 | 6,007 | 7,577 | 6,847 | |||||||||||||||
Income from railway operations
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3,213 | 2,676 | 1,962 | 3,084 | 2,585 | |||||||||||||||
Other income – net
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160 | 153 | 127 | 110 | 93 | |||||||||||||||
Interest expense on debt
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455 | 462 | 467 | 444 | 441 | |||||||||||||||
Income before income taxes
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2,918 | 2,367 | 1,622 | 2,750 | 2,237 | |||||||||||||||
Provision for income taxes
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1,002 | 871 | 588 | 1,034 | 773 | |||||||||||||||
Net income
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1,916 | $ | 1,496 | $ | 1,034 | $ | 1,716 | $ | 1,464 | |||||||||||
Per share data:
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Net income – basic
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5.52 | $ | 4.06 | $ | 2.79 | $ | 4.58 | $ | 3.73 | |||||||||||
– diluted
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5.45 | $ | 4.00 | $ | 2.76 | $ | 4.52 | $ | 3.68 | |||||||||||
Dividends
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1.66 | $ | 1.40 | $ | 1.36 | $ | 1.22 | $ | 0.96 | |||||||||||
Stockholders’ equity at end of period
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30.00 | $ | 29.85 | $ | 28.06 | $ | 26.23 | $ | 25.64 | |||||||||||
Financial position:
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Total assets
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28,538 | $ | 28,199 | $ | 27,369 | $ | 26,297 | $ | 26,144 | |||||||||||
Total long-term debt, including current maturities
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7,540 | $ | 7,025 | $ | 7,153 | $ | 6,667 | $ | 6,368 | |||||||||||
Stockholders’ equity
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9,911 | $ | 10,669 | $ | 10,353 | $ | 9,607 | $ | 9,727 | |||||||||||
Other:
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Capital expenditures
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2,160 | $ | 1,470 | $ | 1,299 | $ | 1,558 | $ | 1,341 | |||||||||||
Average number of shares outstanding (thousands)
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345,484 | 366,522 | 367,077 | 372,276 | 389,626 | |||||||||||||||
Number of stockholders at end of period
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33,381 | 35,416 | 37,486 | 35,466 | 36,955 | |||||||||||||||
Average number of employees:
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Rail
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29,933 | 28,160 | 28,173 | 30,241 | 30,336 | |||||||||||||||
Nonrail
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396 | 399 | 420 | 468 | 470 | |||||||||||||||
Total
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30,329 | 28,559 | 28,593 | 30,709 | 30,806 |
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(a)
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Liens on real or physical property of any corporation existing at the time such corporation becomes a Subsidiary;
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(b)
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Liens on real or physical property existing at the time of acquisition thereof incurred within 180 days of the time of acquisition thereof (including, without limitation, acquisition through merger or consolidation) by the Company or any Restricted Subsidiary;
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(c)
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Liens on real or physical property thereafter acquired (or constructed) by the Company or any Restricted Subsidiary and created prior to, at the time of, or within 270 days after such acquisition (including, without limitation, acquisition through merger or consolidation) (or the completion of such construction or commencement of commercial operation of such property, whichever is later) to secure or provide for the payment of all or any part of the purchase price (or the construction price) thereof;
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(d)
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Liens in favor of the Company or any Restricted Subsidiary;
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(e)
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Liens in favor of the United States of America, any State thereof or the District of Columbia, or any agency, department or other instrumentality thereof, to secure partial, progress, advance or other payments pursuant to any contract or the provisions of any statute;
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(f)
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Liens incurred or assumed in connection with the issuance of revenue bonds the interest on which is exempt from federal income taxation pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended;
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(g)
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Liens securing the performance of any contract or undertaking not directly or indirectly in connection with the borrowing of money, the obtaining of advances or credit or the securing of Funded Debt, if made and continuing in the ordinary course of business;
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(h)
|
Liens incurred (no matter when created) in connection with the Company or a Restricted Subsidiary engaging in a leveraged or single-investor lease transaction; provided, however, that the instrument creating or evidencing any borrowings secured by such Lien will provide that such borrowings are payable solely out of the income and proceeds of the property subject to such Lien and are not a general obligation of the Company or such Restricted Subsidiary;
|
|
(i)
|
Liens under workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts or deposits to secure public or statutory obligations of the Company or any Restricted Subsidiary, or deposits of cash or obligations of the United States of America to secure surety, repletion and appeal bonds to which the Company or any Restricted Subsidiary is a party or in lieu of such bonds, or pledges or deposits for similar purposes in the ordinary course of business, or Liens imposed by law, such as laborers’ or other employees’, carriers’, warehousemen’s, mechanics’, materialmen’s and vendors’ Liens and Liens arising out of judgments or awards against the Company or any Restricted Subsidiary with respect to which the Company or such Restricted Subsidiary at the time shall be prosecuting an appeal or proceedings for review and with respect to which it shall have secured a stay of execution pending such appeal or proceedings for review, or Liens for taxes not yet subject to penalties for nonpayment or the amount or validity of which is being in good faith contested by appropriate proceedings by the Company or any Restricted Subsidiary, as the case may be, or minor survey exceptions, minor encumbrances, easement or reservations of, or rights of others for, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions or Liens on the use of real properties, which Liens, exceptions, encumbrances, easements, reservations, rights and restrictions do not, in the opinion of the Company, in the aggregate materially detract from the value of said properties or materially impair their use in the operation of the business of the Company and its Restricted Subsidiaries;
|
|
(j)
|
Liens incurred to finance construction, alteration or repair of any real or physical property and improvements thereto prior to or within 270 days after completion of such construction, alteration or repair;
|
|
(k)
|
Liens incurred (no matter when created) in connection with a Securitization Transaction;
|
|
(l)
|
Liens on property (or any Receivable arising in connection with the lease thereof) acquired by the Company or a Restricted Subsidiary through repossession, foreclosure or like proceeding and existing at the time of the repossession, foreclosure, or like proceeding;
|
|
(m)
|
Liens on deposits of the Company or a Restricted Subsidiary with banks (in the aggregate, not exceeding $50 million), in accordance with customary banking practice, in connection with the providing by the Company or a Restricted Subsidiary of financial accommodations to any person in the ordinary course of business; or
|
|
(n)
|
any extension, renewal, refunding or replacement of the foregoing. The definitions set forth below apply only to the foregoing limitations on Funded Debt.
|
|
·
|
the successor corporation is organized and existing under the laws of the United States or any state thereof or the District of Columbia, and expressly assumes by a supplemental indenture the due and punctual payment of the principal of, any premium on, and any interest on all the outstanding debt securities under the 4.837% exchange notes indenture and the performance of every covenant in the 4.837% exchange notes indenture to be performed or observed by us;
|
|
·
|
immediately after giving effect to the transaction, no event of default (and no event which, after notice or lapse of time or both, would become an event of default) will have occurred and be continuing; and
|
|
·
|
we deliver to the Trustee an officer’s certificate and legal opinion confirming, among other things, the satisfaction of the above-mentioned conditions.
|
|
·
|
failure to pay any principal or premium, if any, on any outstanding 4.837% notes when due;
|
|
·
|
failure to pay any interest when due, on any outstanding 4.837% notes and the continuance of such failure for 30 days;
|
|
·
|
failure to perform any other covenant in the 4.837% exchange notes indenture, and the continuance of such failure for 90 days after there has been given a notice of default from either the Trustee or the holders of at least 25% in principal amount of the outstanding 4.837% notes;
|
|
·
|
acceleration of any indebtedness of Norfolk Southern (or any “significant subsidiary” of Norfolk Southern, as defined in the federal securities laws) in an aggregate principal amount that exceeds $100,000,000 within 10 days after there has been given a notice of default from either the Trustee or the holders of at least 25% in principal amount of the outstanding 4.837% notes; and
|
|
·
|
certain events of bankruptcy, insolvency or reorganization.
|
|
·
|
the stated maturity date or the time for interest payments;
|
|
·
|
the principal, premium, or interest payments, if any;
|
|
·
|
the place or currency of any payment;
|
|
·
|
the rights of holders to enforce payment; or
|
|
·
|
the percentage of outstanding 4.837% notes needed to modify, amend or waive certain provisions of the 4.837% exchange notes indenture (if such change is a reduction in the percentage).
|
|
·
|
a default in any payments due; and
|
|
·
|
a default on a provision of the 4.837% exchange notes indenture that can be modified or amended only with the consent of each holder of outstanding 4.837% notes.
|
|
·
|
either (i) all the 4.837% exchange notes have been delivered to the Trustee for cancellation; or (ii) we have deposited with the Trustee sufficient funds, or the equivalent thereof, to cover payments due, with respect to the 4.837% exchange notes, under the 4.837% exchange notes indenture; and
|
|
·
|
we have paid all other sums we are required to pay under the 4.837% exchange notes indenture with respect to the 4.837% exchange notes.
|
|
·
|
failure to pay any principal or premium, if any, when due;
|
|
·
|
failure to pay any interest when due, and this failure continues for 30 days and the time for payment has not been extended or deferred;
|
|
·
|
failure to perform any other covenant in the 6.00% exchange notes indenture, and the failure continues for 90 days after there has been given a notice of default from either the Trustee or holders of at least 25% in principal amount of the outstanding 6.00% notes;
|
|
·
|
acceleration of any indebtedness of Norfolk Southern (or any “significant subsidiary” of Norfolk Southern, as defined in the federal securities laws) in an aggregate principal amount that exceeds $100,000,000 within 10 days after there has been given a notice of default from either the Trustee or holders of at least 25% in principal amount of the outstanding 6.00% notes; and
|
|
·
|
certain events of bankruptcy, insolvency or reorganization.
|
|
·
|
either (i) all the 6.00% exchange notes have been delivered to the Trustee for cancellation; or (ii) Norfolk Southern deposits with the Trustee sufficient funds, or the equivalent thereof, to cover payments due, with respect to the 6.00% exchange notes, under the 6.00% exchange notes indenture; and
|
|
·
|
Norfolk Southern has paid all other sums it is required to pay under the 6.00% exchange notes indenture with respect to the 6.00% exchange notes.
|
|
·
|
the stated maturity date or the time for interest payments;
|
|
·
|
the principal, premium, or interest payments, if any;
|
|
·
|
the currency of any payment; or
|
|
·
|
the percentage of the outstanding 6.00% notes needed to modify, amend or waive certain provisions of the 6.00% exchange notes indenture (if such change is a reduction in the percentage).
|
|
·
|
a default in any payments due; and
|
|
·
|
a default on a provision of the 6.00% exchange notes indenture that can be modified or amended only with the consent of each holder of outstanding 6.00% notes.
|
|
·
|
the successor corporation is organized and existing under the laws of the United States, any state thereof or the District of Columbia and expressly assumes Norfolk Southern’s obligations under the 6.00% exchange notes indenture;
|
|
·
|
immediately after giving effect to the transaction, no event of default (and no event which, after notice or lapse of time, would become an event of default) will have occurred and be continuing; and
|
|
·
|
the successor corporation executes a supplemental indenture that expressly assumes obligations of the 6.00% exchange notes indenture, satisfies the Trustee, and provides the necessary opinions and certificates.
|
|
·
|
the SEC or any state securities authority requests an amendment or supplement to this prospectus or the related registration statement or requests additional information;
|
|
·
|
the SEC or any state securities authority issues any stop order suspending the effectiveness of the registration statement or initiates proceedings for that purpose;
|
|
·
|
we receive notification of the suspension of the qualification of the exchange notes for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose;
|
|
·
|
the suspension is required by law;
|
|
·
|
we determine that the continued effectiveness of the registration statement of which this prospectus forms a part and use of this prospectus would require disclosure of confidential information related to a material acquisition or divestiture of assets or a material corporate transaction, event or development; or
|
|
·
|
an event occurs or we discover any fact which makes any statement made in the registration statement of which this prospectus forms a part untrue in any material respect or which requires the making of any changes in such registration statement in order to make the statements therein not misleading.
|
PROSPECTUS
, 2012
|
NORFOLK SOUTHERN CORPORATION
|
|||
By
|
/s/ Charles W. Moorman
|
||
Name: Charles W. Moorman
|
|||
Title: Chairman, President and Chief Executive Officer
|
Signature
|
Title
|
|
/s/ Charles W. Moorman
|
Chairman, President and Chief Executive Officer and Director
|
|
(Charles W. Moorman)
|
(Principal Executive Officer)
|
|
/s/ James A. Squires
|
Executive Vice President Finance and Chief Financial Officer
|
|
(James A. Squires)
|
(Principal Financial Officer)
|
|
/s/ C. H. Allison, Jr.
|
Vice President and Controller
|
|
(C. H. Allison, Jr.)
|
(Principal Accounting Officer)
|
|
*
|
Director
|
|
(Gerald L. Baliles)
|
||
*
|
Director
|
|
(Thomas D. Bell, Jr.)
|
||
*
|
Director
|
|
(Erskine B. Bowles)
|
||
*
|
Director
|
|
(Robert A. Bradway)
|
||
*
|
Director
|
|
(Daniel A. Carp)
|
||
*
|
Director
|
|
(Alston D. Correll)
|
||
*
|
Director
|
|
(Karen N. Horn)
|
*
|
Director
|
|
(Burton M. Joyce)
|
||
*
|
Director
|
|
(Steven F. Leer)
|
||
*
|
Director
|
|
(Michael D. Lockhart)
|
||
*
|
Director
|
|
(J. Paul Reason)
|
||
*By:
|
/s/ James A. Squires
|
||
James A. Squires
|
|||
Attorney in Fact
|
Exhibit
Number
|
Description
|
|
3.1
|
Restated Articles of Incorporation (incorporated by reference to Exhibit 3(i) to Norfolk Southern Corporation’s Annual Report on Form 10-K filed 5, 2001).
|
|
3.2
|
Amendment to the Restated Articles of Incorporation (incorporated by reference to Exhibit 3(i) to Norfolk Southern Corporation’s Form 8-K filed on May 18, 2010).
|
|
3.3
|
Amended Bylaws (incorporated by reference to Exhibit 3(ii) to Norfolk Southern Corporation’s Form 8-K filed on January 27, 2011).
|
|
4.1
|
Indenture, dated as of June 1, 2009, between Norfolk Southern Corporation and U.S. Bank Trust National Association, as Trustee (incorporated herein by reference to Exhibit 4.1 to Norfolk Southern Corporation’s Form 8-K filed on June 1, 2009).
|
|
4.2
|
Second Supplemental Indenture, dated as of May 23, 2011, between Norfolk Southern Corporation and U.S. Bank Trust National Association, as Trustee (incorporated herein by reference to Exhibit 4.1 to Norfolk Southern Corporation’s Form 8-K filed on May 23, 2011).
|
|
4.3
|
Third Supplemental Indenture, dated as of September 14, 2011, between Norfolk Southern Corporation and U.S. Bank Trust National Association, as Trustee (incorporated herein by reference to Exhibit 4.2 to Norfolk Southern Corporation’s Form 8-K filed on September 15, 2011).
|
|
4.4
|
Fourth Supplemental Indenture, dated as of November 17, 2011, between Norfolk Southern Corporation and U.S. Bank Trust National Association, as Trustee (incorporated herein by reference to Exhibit 4.1 to Norfolk Southern Corporation’s Form 8-K filed on November 17, 2011).
|
|
4.5
|
Indenture, dated as of September 14, 2011, between Norfolk Southern Corporation and U.S. Bank Trust National Association, as Trustee (incorporated herein by reference to Exhibit 4.1 to Norfolk Southern Corporation’s Form 8-K filed on September 15, 2011).
|
|
4.6
|
Registration Rights Agreement, dated as of September 14, 2011, between Norfolk Southern Corporation and J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated (incorporated herein by reference to Exhibit 4.3 to Norfolk Southern Corporation’s Form 8-K filed on September 15, 2011).
|
|
*5.1
|
Opinion of William A. Galanko, Esq.
|
|
*5.2
|
Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
|
|
21
|
Subsidiaries of the registrant (incorporated herein by reference to Exhibit 21 to Norfolk Southern Corporation’s Form 10-K filed on February 17, 2011).
|
|
*23.1
|
Consent of KPMG LLP, independent registered public accounting firm.
|
|
23.2
|
Consent of William A. Galanko, Esq. (included in Exhibit 5.1).
|
|
23.3
|
Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.2).
|
|
*24.1
|
Power of Attorney.
|
|
Exhibit
Number
|
Description
|
|
*25.1
|
Statement of Eligibility on Form T-1 of U.S. Bank Trust National Association, as Trustee under the Indenture relating to the 4.837% exchange notes.
|
|
*25.2
|
Statement of Eligibility on Form T-1 of U.S. Bank Trust National Association, as Trustee under the Indenture relating to the 6.00% exchange notes.
|
|
*99.1
|
Form of Letter of Transmittal (4.837% Notes due 2041).
|
|
*99.2
|
Form of Letter of Transmittal (6.00% Senior Notes due 2111).
|
|
*99.3
|
Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (4.837% Notes due 2041).
|
|
*99.4
|
Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (6.00% Senior Notes due 2111).
|
|
*99.5
|
Form of Letter to Clients (4.837% Notes due 2041).
|
|
*99.6
|
Form of Letter to Clients (6.00% Senior Notes due 2111).
|
|
Re: Norfolk Southern Corporation-Registration Statement on Form S-4
|
|
1.
|
The Indentures have been duly executed and delivered by the Company, and they are valid and binding agreements of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws relating to or affecting creditors' rights generally and by general principles of equity including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law and will be entitled to the benefits of the Indentures.
|
|
2.
|
The Exchange Notes have been duly authorized, and when executed and authenticated in accordance with the terms of the applicable Indenture and delivered upon consummation of the Exchange Offer against receipt of the Original Notes surrendered in exchange therefor in accordance with the terms of the Exchange Offer, the Exchange Notes will constitute valid and binding obligations of the Company entitled to the benefits of the Indentures and enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
|
Sincerely,
|
|
/s/ William A. Galanko
|
|
William A. Galanko
|
February 17, 2012
|
Re:
|
Norfolk Southern Corporation-Registration Statement on Form S-4
|
Very truly yours,
|
|
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
|
Signatures
|
Title
|
Date
|
||
/s/ Gerald L. Baliles
|
Director
|
September 27, 2011
|
||
Gerald L. Baliles
|
||||
/s/ Thomas D. Bell, Jr.
|
Director
|
September 27, 2011
|
||
Thomas D. Bell, Jr.
|
||||
/s/ Erskine B. Bowles
|
Director
|
September 27, 2011
|
||
Erskine B. Bowles
|
||||
/s/ Robert A. Bradway
|
Director
|
September 27, 2011
|
||
Robert A. Bradway
|
||||
/s/ Daniel A. Carp
|
Director
|
September 27, 2011
|
||
Daniel A. Carp
|
||||
/s/ Alston D. Correll
|
Director
|
September 27, 2011
|
||
Alston D. Correll
|
||||
/s/ Karen N. Horn
|
Director
|
September 27, 2011
|
||
Karen N. Horn
|
||||
/s/ Burton M. Joyce
|
Director
|
September 27, 2011
|
||
Burton M. Joyce
|
||||
/s/ Steven F. Leer
|
Director
|
September 27, 2011
|
||
Steven F. Leer
|
/s/ Michael D. Lockhart
|
Director
|
September 27, 2011
|
||
Michael D. Lockhart
|
||||
/s/ J. Paul Reason
|
Director
|
September 27, 2011
|
||
J. Paul Reason
|
300 East Delaware Avenue, 8th Floor
|
|
Wilmington, Delaware
|
19809
|
(Address of principal executive offices)
|
(Zip Code)
|
Virginia
|
52-1188014
|
(State or other jurisdiction of
|
(I. R. S. Employer
|
incorporation or organization)
|
Identification No.)
|
Three Commercial Place
|
23510-2191
|
Norfolk, Virginia
|
|
(Address of principal executive offices)
|
(Zip Code)
|
Item 1.
|
GENERAL INFORMATION. Furnish the following information as to the Trustee.
|
|
a)
|
Name and address of each examining or supervising authority to which it is subject.
|
|
Comptroller of the Currency
|
||
Washington, D.C.
|
||
b)
|
Whether it is authorized to exercise corporate trust powers.
|
|
Yes
|
Item 2.
|
AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation.
|
|
None
|
||
Items 3-15
|
The Trustee is a Trustee under other Indentures under which securities issued by the obligor are outstanding. There is not and there has not been a default with respect to the securities outstanding under other such Indentures.
|
|
Item 16.
|
LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification.
|
|
Exhibit 1.
|
A copy of the Articles of Association of the Trustee now in effect, incorporated herein by reference to Exhibit 1 of Form T-1, Document 6 of Registration No. 333-84320.
|
|
Exhibit 2.
|
A copy of the certificate of authority of the Trustee to commence business, incorporated herein by reference to Exhibit 2 of Form T-1, Document 6 of Registration No. 333-84320.
|
|
Exhibit 3.
|
A copy of the certificate of authority of the Trustee to exercise corporate trust powers, incorporated herein by reference to Exhibit 3 of Form T-1, Document 6 of Registration No. 333-84320.
|
|
Exhibit 4.
|
A copy of the existing bylaws of the Trustee, as now in effect, incorporated herein by reference to Exhibit 4 of Form T-1, Document 6 of Registration No. 333-113995.
|
|
Exhibit 5.
|
Not applicable.
|
|
Exhibit 6.
|
The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, incorporated herein by reference to Exhibit 6 of Form T-1, Document 6 of Registration No. 333-84320.
|
|
Exhibit 7.
|
Report of Condition of the Trustee as of December 31, 2011, published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7.
|
|
Exhibit 8.
|
Not applicable.
|
|
Exhibit 9.
|
Not applicable.
|
U.S. BANK TRUST NATIONAL ASSOCIATION
|
|||
By:
|
/s/ Patrick J. Crowley
|
||
Name:
|
Patrick J. Crowley
|
||
Title:
|
Vice President
|
ASSETS
|
||
1. Cash and balances due from depository institutions (from Schedule RC-A):
|
||
a. Noninterest-bearing balances and currency and coin (1)______________________________
|
10,292
|
|
b. Interest-bearing balances (2)___________________________________________________
|
525,460
|
|
2. Securities:
|
||
a. Held-to-maturity securities (from Schedule RC-B, column A)_________________________
|
0
|
|
b. Available-for-sale securities (from Schedule RC-B, column D)________________________
|
0
|
|
3. Federal funds sold and securities purchased under agreements to resell:
|
||
a. Federal funds sold___________________________________________________________
|
0
|
|
b. Securities purchased under agreements to resell (3)_________________________________
|
0
|
|
4. Loans and lease financing receivables (from Schedule RC-C):
|
||
a. Loans and leases held for sale_________________________________________________
|
0
|
|
b. Loans and leases, net of unearned income_______________________________________0
|
||
c. LESS: Allowance for loan and lease losses______________________________________0
|
||
d. Loans and leases, net of unearned income and allowance (item 4.b minus 4.c)___________
|
0
|
|
5. Trading assets (from Schedule RC-D)______________________________________________
|
0
|
|
6. Premises and fixed assets (including capitalized leases)________________________________
|
297
|
|
7. Other real estate owned (from Schedule RC-M)______________________________________
|
0
|
|
8. Investments in unconsolidated subsidiaries and associated companies____________________
|
0
|
|
9. Direct and indirect investments in real estate ventures_________________________________
|
0
|
|
10. Intangible assets:
|
||
a. Goodwill___________________________________________________________________
|
16,000
|
|
b. Other intangible assets (from Schedule RC-M)____________________________________
|
2,944
|
|
11. Other assets (from Schedule RC-F)_______________________________________________
|
22,710
|
|
12. Total assets (sum of items 1 through 11)___________________________________________
|
577,703
|
|
(1) Includes cash items in process of collection and unposted debits.
|
||
(2) Includes time certificates of deposit not held for trading.
|
||
(3) Includes all securities resale agreements, regardless of maturity.
|
||
LIABILITIES
|
||
13. Deposits:
|
||
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I)_______
|
0
|
|
(1) Noninterest-bearing (1)__________________________________________________0
|
||
(2) Interest-bearing________________________________________________________0
|
||
b. Not applicable
|
||
14. Federal funds purchased and securities sold under agreements to repurchase:
|
||
a. Federal funds purchased (2)____________________________________
|
0
|
|
b. Securities sold under agreements to repurchase (3)________________________________
|
0
|
|
15. Trading liabilities (from Schedule RC-D)___________________________________________
|
0
|
|
16. Other borrowed money (includes mortgage indebtedness and obligations
|
||
under capitalized leases) (from Schedule RC-M)____________________________________
|
0
|
|
17. and 18. Not applicable
|
||
19. Subordinated notes and debentures (4)____________________________________________
|
0
|
|
20. Other liabilities (from Schedule RC-G)_____________________________________________
|
17,441
|
|
21. Total liabilities (sum of items 13 through 20)________________________________________
|
17,441
|
|
22. Not applicable
|
||
EQUITY CAPITAL
|
||
Bank Equity Captal
|
||
23. Perpetual preferred stock and related surplus_______________________________________
|
0
|
|
24. Common stock_______________________________________________________________
|
1,000
|
|
25. Surplus (excludes all surplus related to preferred stock)_______________________________
|
466,570
|
|
26. a. Retained earnings___________________________________________________________
|
92,692
|
|
b. Accumulated other comprehensive income (5)_____________________________________
|
0
|
|
c. Other equity capital components (6)_____________________________________________
|
0
|
|
27. a. Total bank equity capital (sum of items 23 through 26.c)____________________________
|
560,262
|
|
b. Noncontrolling (minority) interests in consolidated subsidiaries_______________________
|
0
|
|
28. Total equity capital (sum of items 27.a and 27.b)____________________________________
|
560,262
|
|
29. Total liabilities and equity capital (sum of items 21 and 28)____________________________
|
577,703
|
300 East Delaware Avenue, 8th Floor
|
|
Wilmington, Delaware
|
19809
|
(Address of principal executive offices)
|
(Zip Code)
|
Virginia
|
52-1188014
|
(State or other jurisdiction of
|
(I. R. S. Employer
|
incorporation or organization)
|
Identification No.)
|
Three Commercial Place
|
23510-2191
|
Norfolk, Virginia
|
|
(Address of principal executive offices)
|
(Zip Code)
|
Item 1.
|
GENERAL INFORMATION. Furnish the following information as to the Trustee.
|
|
a)
|
Name and address of each examining or supervising authority to which it is subject.
|
|
Comptroller of the Currency
|
||
Washington, D.C.
|
||
b)
|
Whether it is authorized to exercise corporate trust powers.
|
|
Yes
|
Item 2.
|
AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation.
|
|
None
|
||
Items 3-15
|
The Trustee is a Trustee under other Indentures under which securities issued by the obligor are outstanding. There is not and there has not been a default with respect to the securities outstanding under other such Indentures.
|
|
Item 16.
|
LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification.
|
|
Exhibit 1.
|
A copy of the Articles of Association of the Trustee now in effect, incorporated herein by reference to Exhibit 1 of Form T-1, Document 6 of Registration No. 333-84320.
|
|
Exhibit 2.
|
A copy of the certificate of authority of the Trustee to commence business, incorporated herein by reference to Exhibit 2 of Form T-1, Document 6 of Registration No. 333-84320.
|
|
Exhibit 3.
|
A copy of the certificate of authority of the Trustee to exercise corporate trust powers, incorporated herein by reference to Exhibit 3 of Form T-1, Document 6 of Registration No. 333-84320.
|
|
Exhibit 4.
|
A copy of the existing bylaws of the Trustee, as now in effect, incorporated herein by reference to Exhibit 4 of Form T-1, Document 6 of Registration No. 333-113995.
|
|
Exhibit 5.
|
Not applicable.
|
|
Exhibit 6.
|
The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, incorporated herein by reference to Exhibit 6 of Form T-1, Document 6 of Registration No. 333-84320.
|
|
Exhibit 7.
|
Report of Condition of the Trustee as of December 31, 2011, published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7.
|
|
Exhibit 8.
|
Not applicable.
|
|
Exhibit 9.
|
Not applicable.
|
U.S. BANK TRUST NATIONAL ASSOCIATION
|
|||
By:
|
/s/ Patrick J. Crowley
|
||
Name:
|
Patrick J. Crowley
|
||
Title:
|
Vice President
|
ASSETS
|
||
1. Cash and balances due from depository institutions (from Schedule RC-A):
|
||
a. Noninterest-bearing balances and currency and coin (1)______________________________
|
10,292
|
|
b. Interest-bearing balances (2)___________________________________________________
|
525,460
|
|
2. Securities:
|
||
a. Held-to-maturity securities (from Schedule RC-B, column A)_________________________
|
0
|
|
b. Available-for-sale securities (from Schedule RC-B, column D)________________________
|
0
|
|
3. Federal funds sold and securities purchased under agreements to resell:
|
||
a. Federal funds sold___________________________________________________________
|
0
|
|
b. Securities purchased under agreements to resell (3)_________________________________
|
0
|
|
4. Loans and lease financing receivables (from Schedule RC-C):
|
||
a. Loans and leases held for sale_________________________________________________
|
0
|
|
b. Loans and leases, net of unearned income_______________________________________0
|
||
c. LESS: Allowance for loan and lease losses______________________________________0
|
||
d. Loans and leases, net of unearned income and allowance (item 4.b minus 4.c)___________
|
0
|
|
5. Trading assets (from Schedule RC-D)______________________________________________
|
0
|
|
6. Premises and fixed assets (including capitalized leases)________________________________
|
297
|
|
7. Other real estate owned (from Schedule RC-M)______________________________________
|
0
|
|
8. Investments in unconsolidated subsidiaries and associated companies____________________
|
0
|
|
9. Direct and indirect investments in real estate ventures_________________________________
|
0
|
|
10. Intangible assets:
|
||
a. Goodwill___________________________________________________________________
|
16,000
|
|
b. Other intangible assets (from Schedule RC-M)____________________________________
|
2,944
|
|
11. Other assets (from Schedule RC-F)_______________________________________________
|
22,710
|
|
12. Total assets (sum of items 1 through 11)___________________________________________
|
577,703
|
|
(1) Includes cash items in process of collection and unposted debits.
|
||
(2) Includes time certificates of deposit not held for trading.
|
||
(3) Includes all securities resale agreements, regardless of maturity.
|
||
LIABILITIES
|
||
13. Deposits:
|
||
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I)_______
|
0
|
|
(1) Noninterest-bearing (1)__________________________________________________0
|
||
(2) Interest-bearing________________________________________________________0
|
||
b. Not applicable
|
||
14. Federal funds purchased and securities sold under agreements to repurchase:
|
||
a. Federal funds purchased (2)____________________________________
|
0
|
|
b. Securities sold under agreements to repurchase (3)________________________________
|
0
|
|
15. Trading liabilities (from Schedule RC-D)___________________________________________
|
0
|
|
16. Other borrowed money (includes mortgage indebtedness and obligations
|
||
under capitalized leases) (from Schedule RC-M)____________________________________
|
0
|
|
17. and 18. Not applicable
|
||
19. Subordinated notes and debentures (4)____________________________________________
|
0
|
|
20. Other liabilities (from Schedule RC-G)_____________________________________________
|
17,441
|
|
21. Total liabilities (sum of items 13 through 20)________________________________________
|
17,441
|
|
22. Not applicable
|
||
EQUITY CAPITAL
|
||
Bank Equity Captal
|
||
23. Perpetual preferred stock and related surplus_______________________________________
|
0
|
|
24. Common stock_______________________________________________________________
|
1,000
|
|
25. Surplus (excludes all surplus related to preferred stock)_______________________________
|
466,570
|
|
26. a. Retained earnings___________________________________________________________
|
92,692
|
|
b. Accumulated other comprehensive income (5)_____________________________________
|
0
|
|
c. Other equity capital components (6)_____________________________________________
|
0
|
|
27. a. Total bank equity capital (sum of items 23 through 26.c)____________________________
|
560,262
|
|
b. Noncontrolling (minority) interests in consolidated subsidiaries_______________________
|
0
|
|
28. Total equity capital (sum of items 27.a and 27.b)____________________________________
|
560,262
|
|
29. Total liabilities and equity capital (sum of items 21 and 28)____________________________
|
577,703
|
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2012, UNLESS EXTENDED (THE “EXPIRATION DATE”). TENDERS MAY BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE. |
By Registered or Certified Mail:
U.S. Bank Trust National Association
Corporate Trust Services
EP-MN-WS-2N
60 Livingston Avenue
St. Paul, MN 55107
Attn: Specialized Finance
|
For Information Call:
(800) 934-6802
By Facsimile Transmission
(for Eligible Institutions only):
Attn: Specialized Finance
(651) 495-8158
Confirm by Telephone:
(800) 934-6802
|
DESCRIPTION OF ORIGINAL NOTES
|
1
|
2
|
3
|
Name(s) and Address(es) of Holder(s)
(Please fill in, if blank)
|
Certificate
Number(s)*
|
Aggregate
Principal
Amount of
Original Note(s)
|
Principal
Amount
Tendered**
|
Total
|
|||
* Need not be completed if Original Notes are being tendered by book-entry transfer.
** Unless otherwise indicated in this column, a holder will be deemed to have tendered ALL of the Original Notes represented by the Original Notes indicated in column 2. See Instruction 2. Original Notes tendered hereby must be in denominations of principal amount of $2,000 and any integral multiples of $1,000 in excess thereof. See Instruction 1.
|
¨
|
CHECK HERE IF TENDERED ORIGINAL NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
|
Name of Tendering Institution:
|
Account Number:
|
Transaction Code Number:
|
¨
|
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
|
Name:
|
Address:
|
SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 3 and 4)
|
SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 3 and 4)
|
||||||||
To be completed ONLY if certificates for Original Notes not exchanged and/or Exchange Notes are to be issued in the name of and sent to someone other than the person(s) whose signature(s) appear(s) on this Letter above, or if Original Notes delivered by book-entry transfer which are not accepted for exchange are to be returned by credit to an account maintained at the Book-Entry Transfer Facility other than the account indicated above.
|
To be completed ONLY if certificates for Original Notes not exchanged and/or Exchange Notes are to be sent to someone other than the person(s) whose signature(s) appear(s) on this Letter above or to such person(s) at an address other than shown in the box entitled “Description of Original Notes” on this Letter above.
Mail Exchange Notes and/or Original Notes to:
|
||||||||
Issue Exchange Notes and/or Original Notes to:
|
|||||||||
Name(s):
|
|||||||||
Name(s):
|
(Please Type or Print)
|
||||||||
(Please Type or Print)
|
|||||||||
(Please Type or Print)
|
|||||||||
(Please Type or Print)
|
|||||||||
Address: |
|
||||||||
Address:
|
|||||||||
(Zip Code)
|
|||||||||
(Zip Code)
|
|||||||||
□
|
Credit unexchanged Original Notes delivered by book-entry transfer to the Book-Entry Transfer Facility account set forth below.
|
||||||||
Book-Entry Transfer Facility
Account Number, if applicable)
|
|||||||||
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS)
|
||||||||
Dated: ______________________, 2012
|
||||||||
X
|
, 2012
|
|||||||
X
|
, 2012
|
|||||||
(Signature(s) of Owner) | (Date) | |||||||
|
||||||||
Area Code and Telephone Number:
|
||||||||
If a holder is tendering any Original Notes, this Letter must be signed by the registered holder(s) as the name(s) appear(s) on the certificate(s) for the Original Notes or by any person(s) authorized to become registered holder(s) by endorsements and documents transmitted herewith. If signature is by a person acting in a fiduciary or representative capacity, please set forth full title. See Instruction 3.
|
||||||||
Name(s):
|
||||||||
(Please Type or Print) | ||||||||
Capacity:
|
||||||||
Address:
|
||||||||
(Including Zip Code) | ||||||||
SIGNATURE GUARANTEE
(If required by Instruction 3)
|
||||||||
Signature(s) Guaranteed by
|
||||||||
an Eligible Institution:
|
||||||||
(Authorized Signature) | ||||||||
(Title)
|
||||||||
(Name and Firm)
|
||||||||
Dated: ________________________, 2012
|
||||||||
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER TO EXCHANGE
$595,504,000 AGGREGATE PRINCIPAL AMOUNT OF
4.837% NOTES DUE 2041 (CUSIP NOS. 655844 BE7 AND U64484 AB7)
FOR
$595,504,000 AGGREGATE PRINCIPAL AMOUNT OF
4.837% NOTES DUE 2041 (CUSIP NO. 655844 BH0)
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
PURSUANT TO THE PROSPECTUS, DATED , 2012
1. Delivery of this Letter and Notes.
This Letter is to be completed by holders of Original Notes either if certificates are to be forwarded herewith or if tenders are to be made pursuant to the procedures for delivery by book-entry transfer set forth in “The Exchange Offer—Book-Entry Transfer” section of the Prospectus and an Agent’s Message is not delivered. Tenders by book-entry transfer may also be made by delivering an Agent’s Message in lieu of this Letter. The term “Agent’s Message” means a message, transmitted by the Book-Entry Transfer Facility to and received by the Exchange Agent and forming a part of a Book-Entry Confirmation, which states that the Book-Entry Transfer Facility has received an express acknowledgment from the tendering participant, which acknowledgment states that such participant has received and agrees to be bound by the Letter of Transmittal and that the Company may enforce the Letter of Transmittal against such participant. Certificates for all physically tendered Original Notes, or Book-Entry Confirmation, as the case may be, as well as a properly completed and duly executed Letter (or manually signed facsimile hereof or Agent’s Message in lieu thereof) and any other documents required by this Letter, must be received by the Exchange Agent at the address set forth herein on or prior to the Expiration Date. Original Notes tendered hereby must be in denominations of principal amount of $2,000 and any integral multiples of $1,000 in excess thereof.
The method of delivery of this Letter, the Original Notes and all other required documents is at the election and risk of the tendering holders, but the delivery will be deemed made only when actually received or confirmed by the Exchange Agent. If Original Notes are sent by mail, it is suggested that the mailing be registered mail, properly insured, with return receipt requested, made sufficiently in advance of the Expiration Date to permit delivery to the Exchange Agent prior to 5:00 p.m., New York City time, on the Expiration Date. The Company reserves the right to reject any particular Original Note not properly tendered, or any acceptance that might, in the Company’s judgment or its counsel’s judgment, be unlawful. The Company also reserves the right to waive any defects or irregularities with respect to the form or procedures applicable to the tender of any particular Original Note prior to the Expiration Date. Unless waived, any defects or irregularities in connection with tenders of Original Notes must be cured within a reasonable period of time.
See “The Exchange Offer” section of the Prospectus.
2. Partial Tenders (not applicable to holders who tender by book-entry transfer).
If less than all of the Original Notes evidenced by a submitted certificate are to be tendered, the tendering holder(s) should fill in the aggregate principal amount of Original Notes to be tendered in the box above entitled
|
“Description of Original Notes—Principal Amount Tendered.” A reissued certificate representing the balance of nontendered Original Notes will be sent to such tendering holder, unless otherwise provided in the appropriate box on this Letter, promptly after the Expiration Date. All of the Original Notes delivered to the Exchange Agent will be deemed to have been tendered unless otherwise indicated.
3. Signatures on this Letter; Bond Powers and Endorsements; Guarantee of Signatures.
If this Letter is signed by the registered holder of the Original Notes tendered hereby, the signature must correspond exactly with the name as written on the face of the certificates without any change whatsoever.
If any tendered Original Notes are owned of record by two or more joint owners, all of such owners must sign this Letter.
If any tendered Original Notes are registered in different names on several certificates, it will be necessary to complete, sign and submit as many separate copies of this Letter as there are different registrations of certificates.
When this Letter is signed by the registered holder or holders of the Original Notes specified herein and tendered hereby, no endorsements of certificates or separate bond powers are required. If, however, the Exchange Notes are to be issued, or any untendered Original Notes are to be reissued, to a person other than the registered holder, then endorsements of any certificates transmitted hereby or separate bond powers are required. Signatures on such certificate(s) must be guaranteed by an Eligible Institution.
If this Letter is signed by a person other than the registered holder or holders of any certificate(s) specified herein, such certificate(s) must be endorsed or accompanied by appropriate bond powers, in either case signed exactly as the name or names of the registered holder or holders appear(s) on the certificate(s) and signatures on such certificate(s) must be guaranteed by an Eligible Institution.
If this Letter or any certificates or bond powers are signed by a person acting in a fiduciary or representative capacity, such persons should so indicate when signing, and, unless waived by the Company, proper evidence satisfactory to the Company of their authority to so act must be submitted.
Endorsements on certificates for Original Notes or signatures on bond powers required by this Instruction 3 must be guaranteed by a firm that is a financial institution (including most banks, savings and loan associations and brokerage houses) that is a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchanges Medallion Program (each an “Eligible Institution”).
Signatures on this Letter need not be guaranteed by an Eligible Institution, provided the Original Notes are tendered: (i) by a registered holder of Original Notes (which term, for purposes of the Exchange Offer, includes any participant in the Book-Entry Transfer Facility system whose name appears on a security position listing as the holder of such Original Notes) who has not completed the box entitled “Special Issuance Instructions” or “Special Delivery Instructions” on this Letter, or (ii) for the account of an Eligible Institution.
|
4. Special Issuance and Delivery Instructions.
Tendering holders of Original Notes should indicate in the applicable box the name and address to which Exchange Notes issued pursuant to the Exchange Offer and/or substitute certificates evidencing Original Notes not exchanged are to be issued or sent, if different from the name or address of the person signing this Letter. In the case of issuance in a different name, the employer identification or social security number of the person named must also be indicated. Holders tendering Original Notes by book-entry transfer may request that Original Notes not exchanged be credited to such account maintained at the Book-Entry Transfer Facility as such holder may designate hereon. If no such instructions are given, such Original Notes not exchanged will be returned to the name and address of the person signing this Letter.
5. Transfer Taxes.
The Company will pay all transfer taxes, if any, applicable to the transfer of Original Notes to it or its order pursuant to the Exchange Offer. If, however, Exchange Notes and/or substitute Original Notes not exchanged are to be delivered to, or are to be registered or issued in the name of, any person other than the registered holder of the Original Notes tendered hereby, or if tendered Original Notes are registered in the name of any person other than the person signing this Letter, or if a transfer tax is imposed for any reason other than the transfer of Original Notes to the Company or its order pursuant to the Exchange Offer, the amount of any such transfer taxes (whether imposed on the registered holder or any other persons) will be payable by the tendering holder. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted herewith, the amount of such transfer taxes will be billed directly to such tendering holder.
Except as provided in this Instruction 5, it will not be necessary for transfer tax stamps to be affixed to the Original Notes specified in this letter.
6. Waiver of Conditions.
Because the Company may amend or modify the Exchange Offer, and such amendment or modification may be deemed to be a waiver of a condition, it has the right to waive satisfaction of conditions enumerated in the Prospectus. Accordingly, the Company has effectively retained the ability to waive the conditions to consummation of the Exchange Offer.
7. No Conditional Tenders.
No alternative, conditional, irregular or contingent tenders will be accepted. All tendering holders of Original Notes, by execution of this Letter, shall waive any right to receive notice of the acceptance of their Original Notes for exchange.
Neither the Company, the Exchange Agent nor any other person is obligated to give notice of any defect or irregularity with respect to any tender of Original Notes nor shall any of them incur any liability for failure to give any such notice.
|
8. Mutilated, Lost, Stolen or Destroyed Original Notes.
Any holder whose Original Notes have been mutilated, lost, stolen or destroyed should contact the Exchange Agent at the address indicated above for further instructions.
9. Withdrawal Rights.
Tenders of Original Notes may be withdrawn at any time prior to 5:00 p.m., New York City time, on the Expiration Date.
For a withdrawal of a tender of Original Notes to be effective, a written notice of withdrawal must be received by the Exchange Agent at the address set forth above prior to 5:00 p.m., New York City time, on the Expiration Date. Any such notice of withdrawal must (i) specify the name of the person having tendered the Original Notes to be withdrawn (the “Depositor”), (ii) identify the Original Notes to be withdrawn (including certificate number or numbers and the principal amount of such Original Notes), (iii) contain a statement that such holder is withdrawing his election to have such Original Notes exchanged, (iv) be signed by the holder in the same manner as the original signature on the Letter by which such Original Notes were tendered (including any required signature guarantees) or be accompanied by documents of transfer to have the Trustee with respect to the Original Notes register the transfer of such Original Notes in the name of the person withdrawing the tender and (v) specify the name in which such Original Notes are registered, if different from that of the Depositor. If Original Notes have been tendered pursuant to the procedure for book-entry transfer set forth in “The Exchange Offer—Book-Entry Transfer” section of the Prospectus, any notice of withdrawal must specify the name and number of the account at the Book-Entry Transfer Facility to be credited with the withdrawn Original Notes and otherwise comply with the procedures of such Book-Entry Transfer Facility. All questions as to the validity, form and eligibility (including time of receipt) of such notices will be determined by the Company, whose determination shall be final and binding on all parties. Any Original Notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the Exchange Offer, and no Exchange Notes will be issued with respect thereto unless the Original Notes so withdrawn are validly re-tendered. Any Original Notes that have been tendered for exchange but which are not exchanged for any reason will be returned to the holder thereof without cost to such holder (or, in the case of Original Notes tendered by book-entry transfer into the Exchange Agent’s account at the Book-Entry Transfer Facility pursuant to the book-entry transfer procedures set forth in “The Exchange Offer—Book-Entry Transfer” section of the Prospectus, such Original Notes will be credited to an account maintained with the Book-Entry Transfer Facility for the Original Notes) promptly after withdrawal, rejection of tender or termination of the Exchange Offer. Properly withdrawn Original Notes may be re-tendered by following the procedures described above at any time on or prior to 5:00 p.m., New York City time, on the Expiration Date.
10. Requests for Assistance or Additional Copies.
Questions relating to the procedure for tendering Original Notes, as well as requests for additional copies of the Prospectus and this Letter, and requests for other related documents may be directed to the Exchange Agent, at the address and telephone number set forth herein.
|
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2012, UNLESS EXTENDED (THE “EXPIRATION DATE”). TENDERS MAY BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE. |
By Registered or Certified Mail:
U.S. Bank Trust National Association
Corporate Trust Services
EP-MN-WS-2N
60 Livingston Avenue
St. Paul, MN 55107
Attn: Specialized Finance
|
For Information Call:
(800) 934-6802
By Facsimile Transmission
(for Eligible Institutions only):
Attn: Specialized Finance
(651) 495-8158
Confirm by Telephone:
(800) 934-6802
|
DESCRIPTION OF ORIGINAL NOTES
|
1
|
2
|
3
|
Name(s) and Address(es) of Holder(s)
(Please fill in, if blank)
|
Certificate
Number(s)*
|
Aggregate
Principal
Amount of
Original Note(s)
|
Principal
Amount
Tendered**
|
Total
|
|||
* Need not be completed if Original Notes are being tendered by book-entry transfer.
** Unless otherwise indicated in this column, a holder will be deemed to have tendered ALL of the Original Notes represented by the Original Notes indicated in column 2. See Instruction 2. Original Notes tendered hereby must be in denominations of principal amount of $2,000 and any integral multiples of $1,000 in excess thereof. See Instruction 1.
|
¨
|
CHECK HERE IF TENDERED ORIGINAL NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
|
Name of Tendering Institution:
|
Account Number:
|
Transaction Code Number:
|
¨
|
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
|
Name:
|
Address:
|
SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 3 and 4)
|
SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 3 and 4)
|
||||||||
To be completed ONLY if certificates for Original Notes not exchanged and/or Exchange Notes are to be issued in the name of and sent to someone other than the person(s) whose signature(s) appear(s) on this Letter above, or if Original Notes delivered by book-entry transfer which are not accepted for exchange are to be returned by credit to an account maintained at the Book-Entry Transfer Facility other than the account indicated above.
|
To be completed ONLY if certificates for Original Notes not exchanged and/or Exchange Notes are to be sent to someone other than the person(s) whose signature(s) appear(s) on this Letter above or to such person(s) at an address other than shown in the box entitled “Description of Original Notes” on this Letter above.
Mail Exchange Notes and/or Original Notes to:
|
||||||||
Issue Exchange Notes and/or Original Notes to:
|
|||||||||
Name(s):
|
|||||||||
Name(s):
|
(Please Type or Print)
|
||||||||
(Please Type or Print)
|
|||||||||
(Please Type or Print)
|
|||||||||
(Please Type or Print)
|
|||||||||
Address: | |||||||||
Address:
|
|||||||||
(Zip Code)
|
|||||||||
(Zip Code)
|
|||||||||
□
|
Credit unexchanged Original Notes delivered by book-entry transfer to the Book-Entry Transfer Facility account set forth below.
|
||||||||
Book-Entry Transfer Facility
Account Number, if applicable)
|
|||||||||
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS)
|
||||||||
Dated: ______________________, 2012
|
||||||||
X
|
, 2012
|
|||||||
X
|
, 2012
|
|||||||
(Signature(s) of Owner) | (Date) | |||||||
|
||||||||
Area Code and Telephone Number:
|
||||||||
If a holder is tendering any Original Notes, this Letter must be signed by the registered holder(s) as the name(s) appear(s) on the certificate(s) for the Original Notes or by any person(s) authorized to become registered holder(s) by endorsements and documents transmitted herewith. If signature is by a person acting in a fiduciary or representative capacity, please set forth full title. See Instruction 3.
|
||||||||
Name(s):
|
||||||||
(Please Type or Print) | ||||||||
Capacity:
|
||||||||
Address:
|
||||||||
(Including Zip Code) | ||||||||
SIGNATURE GUARANTEE
(If required by Instruction 3)
|
||||||||
Signature(s) Guaranteed by
|
||||||||
an Eligible Institution:
|
||||||||
(Authorized Signature) | ||||||||
(Title)
|
||||||||
(Name and Firm)
|
||||||||
Dated: ________________________, 2012
|
||||||||
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER TO EXCHANGE
$4,492,000 AGGREGATE PRINCIPAL AMOUNT OF
6.00% SENIOR NOTES DUE 2111 (CUSIP NOS. 655844 BF4 AND U65584 AC5)
FOR
$4,492,000 AGGREGATE PRINCIPAL AMOUNT OF
6.00% SENIOR NOTES DUE 2111 (CUSIP NO. 655844 BD9)
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
PURSUANT TO THE PROSPECTUS, DATED , 2012
1. Delivery of this Letter and Notes.
This Letter is to be completed by holders of Original Notes either if certificates are to be forwarded herewith or if tenders are to be made pursuant to the procedures for delivery by book-entry transfer set forth in “The Exchange Offer—Book-Entry Transfer” section of the Prospectus and an Agent’s Message is not delivered. Tenders by book-entry transfer may also be made by delivering an Agent’s Message in lieu of this Letter. The term “Agent’s Message” means a message, transmitted by the Book-Entry Transfer Facility to and received by the Exchange Agent and forming a part of a Book-Entry Confirmation, which states that the Book-Entry Transfer Facility has received an express acknowledgment from the tendering participant, which acknowledgment states that such participant has received and agrees to be bound by the Letter of Transmittal and that the Company may enforce the Letter of Transmittal against such participant. Certificates for all physically tendered Original Notes, or Book-Entry Confirmation, as the case may be, as well as a properly completed and duly executed Letter (or manually signed facsimile hereof or Agent’s Message in lieu thereof) and any other documents required by this Letter, must be received by the Exchange Agent at the address set forth herein on or prior to the Expiration Date. Original Notes tendered hereby must be in denominations of principal amount of $2,000 and any integral multiples of $1,000 in excess thereof.
The method of delivery of this Letter, the Original Notes and all other required documents is at the election and risk of the tendering holders, but the delivery will be deemed made only when actually received or confirmed by the Exchange Agent. If Original Notes are sent by mail, it is suggested that the mailing be registered mail, properly insured, with return receipt requested, made sufficiently in advance of the Expiration Date to permit delivery to the Exchange Agent prior to 5:00 p.m., New York City time, on the Expiration Date. The Company reserves the right to reject any particular Original Note not properly tendered, or any acceptance that might, in the Company’s judgment or its counsel’s judgment, be unlawful. The Company also reserves the right to waive any defects or irregularities with respect to the form or procedures applicable to the tender of any particular Original Note prior to the Expiration Date. Unless waived, any defects or irregularities in connection with tenders of Original Notes must be cured within a reasonable period of time.
See “The Exchange Offer” section of the Prospectus.
2. Partial Tenders (not applicable to holders who tender by book-entry transfer).
If less than all of the Original Notes evidenced by a submitted certificate are to be tendered, the tendering holder(s) should fill in the aggregate principal amount of Original Notes to be tendered in the box above entitled
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“Description of Original Notes—Principal Amount Tendered.” A reissued certificate representing the balance of nontendered Original Notes will be sent to such tendering holder, unless otherwise provided in the appropriate box on this Letter, promptly after the Expiration Date. All of the Original Notes delivered to the Exchange Agent will be deemed to have been tendered unless otherwise indicated.
3. Signatures on this Letter; Bond Powers and Endorsements; Guarantee of Signatures.
If this Letter is signed by the registered holder of the Original Notes tendered hereby, the signature must correspond exactly with the name as written on the face of the certificates without any change whatsoever.
If any tendered Original Notes are owned of record by two or more joint owners, all of such owners must sign this Letter.
If any tendered Original Notes are registered in different names on several certificates, it will be necessary to complete, sign and submit as many separate copies of this Letter as there are different registrations of certificates.
When this Letter is signed by the registered holder or holders of the Original Notes specified herein and tendered hereby, no endorsements of certificates or separate bond powers are required. If, however, the Exchange Notes are to be issued, or any untendered Original Notes are to be reissued, to a person other than the registered holder, then endorsements of any certificates transmitted hereby or separate bond powers are required. Signatures on such certificate(s) must be guaranteed by an Eligible Institution.
If this Letter is signed by a person other than the registered holder or holders of any certificate(s) specified herein, such certificate(s) must be endorsed or accompanied by appropriate bond powers, in either case signed exactly as the name or names of the registered holder or holders appear(s) on the certificate(s) and signatures on such certificate(s) must be guaranteed by an Eligible Institution.
If this Letter or any certificates or bond powers are signed by a person acting in a fiduciary or representative capacity, such persons should so indicate when signing, and, unless waived by the Company, proper evidence satisfactory to the Company of their authority to so act must be submitted.
Endorsements on certificates for Original Notes or signatures on bond powers required by this Instruction 3 must be guaranteed by a firm that is a financial institution (including most banks, savings and loan associations and brokerage houses) that is a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchanges Medallion Program (each an “Eligible Institution”).
Signatures on this Letter need not be guaranteed by an Eligible Institution, provided the Original Notes are tendered: (i) by a registered holder of Original Notes (which term, for purposes of the Exchange Offer, includes any participant in the Book-Entry Transfer Facility system whose name appears on a security position listing as the holder of such Original Notes) who has not completed the box entitled “Special Issuance Instructions” or “Special Delivery Instructions” on this Letter, or (ii) for the account of an Eligible Institution.
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4. Special Issuance and Delivery Instructions.
Tendering holders of Original Notes should indicate in the applicable box the name and address to which Exchange Notes issued pursuant to the Exchange Offer and/or substitute certificates evidencing Original Notes not exchanged are to be issued or sent, if different from the name or address of the person signing this Letter. In the case of issuance in a different name, the employer identification or social security number of the person named must also be indicated. Holders tendering Original Notes by book-entry transfer may request that Original Notes not exchanged be credited to such account maintained at the Book-Entry Transfer Facility as such holder may designate hereon. If no such instructions are given, such Original Notes not exchanged will be returned to the name and address of the person signing this Letter.
5. Transfer Taxes.
The Company will pay all transfer taxes, if any, applicable to the transfer of Original Notes to it or its order pursuant to the Exchange Offer. If, however, Exchange Notes and/or substitute Original Notes not exchanged are to be delivered to, or are to be registered or issued in the name of, any person other than the registered holder of the Original Notes tendered hereby, or if tendered Original Notes are registered in the name of any person other than the person signing this Letter, or if a transfer tax is imposed for any reason other than the transfer of Original Notes to the Company or its order pursuant to the Exchange Offer, the amount of any such transfer taxes (whether imposed on the registered holder or any other persons) will be payable by the tendering holder. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted herewith, the amount of such transfer taxes will be billed directly to such tendering holder.
Except as provided in this Instruction 5, it will not be necessary for transfer tax stamps to be affixed to the Original Notes specified in this letter.
6. Waiver of Conditions.
Because the Company may amend or modify the Exchange Offer, and such amendment or modification may be deemed to be a waiver of a condition, it has the right to waive satisfaction of conditions enumerated in the Prospectus. Accordingly, the Company has effectively retained the ability to waive the conditions to consummation of the Exchange Offer.
7. No Conditional Tenders.
No alternative, conditional, irregular or contingent tenders will be accepted. All tendering holders of Original Notes, by execution of this Letter, shall waive any right to receive notice of the acceptance of their Original Notes for exchange.
Neither the Company, the Exchange Agent nor any other person is obligated to give notice of any defect or irregularity with respect to any tender of Original Notes nor shall any of them incur any liability for failure to give any such notice.
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8. Mutilated, Lost, Stolen or Destroyed Original Notes.
Any holder whose Original Notes have been mutilated, lost, stolen or destroyed should contact the Exchange Agent at the address indicated above for further instructions.
9. Withdrawal Rights.
Tenders of Original Notes may be withdrawn at any time prior to 5:00 p.m., New York City time, on the Expiration Date.
For a withdrawal of a tender of Original Notes to be effective, a written notice of withdrawal must be received by the Exchange Agent at the address set forth above prior to 5:00 p.m., New York City time, on the Expiration Date. Any such notice of withdrawal must (i) specify the name of the person having tendered the Original Notes to be withdrawn (the “Depositor”), (ii) identify the Original Notes to be withdrawn (including certificate number or numbers and the principal amount of such Original Notes), (iii) contain a statement that such holder is withdrawing his election to have such Original Notes exchanged, (iv) be signed by the holder in the same manner as the original signature on the Letter by which such Original Notes were tendered (including any required signature guarantees) or be accompanied by documents of transfer to have the Trustee with respect to the Original Notes register the transfer of such Original Notes in the name of the person withdrawing the tender and (v) specify the name in which such Original Notes are registered, if different from that of the Depositor. If Original Notes have been tendered pursuant to the procedure for book-entry transfer set forth in “The Exchange Offer—Book-Entry Transfer” section of the Prospectus, any notice of withdrawal must specify the name and number of the account at the Book-Entry Transfer Facility to be credited with the withdrawn Original Notes and otherwise comply with the procedures of such Book-Entry Transfer Facility. All questions as to the validity, form and eligibility (including time of receipt) of such notices will be determined by the Company, whose determination shall be final and binding on all parties. Any Original Notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the Exchange Offer, and no Exchange Notes will be issued with respect thereto unless the Original Notes so withdrawn are validly re-tendered. Any Original Notes that have been tendered for exchange but which are not exchanged for any reason will be returned to the holder thereof without cost to such holder (or, in the case of Original Notes tendered by book-entry transfer into the Exchange Agent’s account at the Book-Entry Transfer Facility pursuant to the book-entry transfer procedures set forth in “The Exchange Offer—Book-Entry Transfer” section of the Prospectus, such Original Notes will be credited to an account maintained with the Book-Entry Transfer Facility for the Original Notes) promptly after withdrawal, rejection of tender or termination of the Exchange Offer. Properly withdrawn Original Notes may be re-tendered by following the procedures described above at any time on or prior to 5:00 p.m., New York City time, on the Expiration Date.
10. Requests for Assistance or Additional Copies.
Questions relating to the procedure for tendering Original Notes, as well as requests for additional copies of the Prospectus and this Letter, and requests for other related documents may be directed to the Exchange Agent, at the address and telephone number set forth herein.
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To:
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Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees
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Very truly yours,
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Norfolk Southern Corporation
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To:
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Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees
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Very truly yours,
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Norfolk Southern Corporation
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□
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Please tender the Original Notes held by you for my account as indicated below:
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4.837% Notes due 2041
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$
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(Aggregate Principal Amount of Original Notes)
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□
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Please do not tender any Original Notes held by you for my account.
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Dated: ________________________, 2012
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Signature(s):
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Print Name(s) here:
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Print Address(es):
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Area Code and Telephone Number(s):
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Tax Identification or Social Security Number(s):
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□
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Please tender the Original Notes held by you for my account as indicated below:
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6.00% Senior Notes due 2111
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$
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(Aggregate Principal Amount of Original Notes)
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□
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Please do not tender any Original Notes held by you for my account.
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Dated: ________________________, 2012
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Signature(s):
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Print Name(s) here:
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Print Address(es):
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Area Code and Telephone Number(s):
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Tax Identification or Social Security Number(s):
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