Form 8-K Norfolk Southern Corp

Current report, items 1.01, 2.03, and 9.01

Published: 2019-05-08 13:25:55
Submitted: 2019-05-08
Period Ending In: 2019-05-08
d734455d8k.htm 8-K


> ENT> 8-K 1 d734455d8k.htm 8-K

8-K

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 


FORM 8-K

 

 


CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported):

May 8, 2019 (May 8, 2019)

 

 


 

LOGO

NORFOLK SOUTHERN CORPORATION

(Exact name of registrant as specified in its charter)

 

 


 

Virginia   1-8339   52-1188014
(State or Other Jurisdiction
of Incorporation)
 

(Commission

File Number)

  (IRS Employer
Identification Number)

Three Commercial Place

Norfolk, Virginia

23510-2191

  757-629-2680
(Address of principal executive offices)  

(Registrant’s telephone number, including

area code)

No Change

(Former name or former address, if changed since last report)

 

 


Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Trading

Symbol(s)

 

Name of each exchange

on which registered

Norfolk Southern Corporation Common

Stock (Par Value $1.00)

  NSC   New York Stock Exchange

 

 

 



Item 1.01.

Entry into a Material Definitive Agreement.

See description under Item 2.03.

 

Item 2.03.

Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

On May 8, 2019, Norfolk Southern Corporation (the “Registrant”) completed its offering of (i) $200,000,000 aggregate principal amount of its 3.800% Senior Notes due 2028 (the “2028 Notes”), (ii) $400,000,000 aggregate principal amount of its 4.100% Senior Notes due 2049 (the “2049 Notes”) and (iii) $200,000,000 aggregate principal amount of its 5.100% Senior Notes due 2118 (the “2118 Notes” and collectively with the 2028 Notes and the 2049 Notes, the “Notes”) pursuant to an Underwriting Agreement, dated April 29, 2019 (the “Agreement”), by and among the Registrant and Citigroup Global Markets Inc. and Goldman Sachs & Co. LLC, as representatives of the several underwriters named therein. The Notes were sold pursuant to the Registrant’s Automatic Shelf Registration Statement on Form S-3 (File No. 333-222869). The Agreement was initially filed as Exhibit 1.1 to the Registrant’s Current Report on Form 8-K filed on May 1, 2019. The description of the Agreement contained herein is qualified by reference thereto.

The Notes were issued pursuant to an Indenture, dated as of February 28, 2018 (the “Base Indenture”), as supplemented by a second supplemental indenture, dated as of August 2, 2018 (the “Second Supplemental Indenture”), and as further supplemented by a third supplemental indenture, dated as of May 8, 2019 (the “Third Supplemental Indenture” and, together with the Base Indenture and the Second Supplemental Indenture, the “Indenture”), each between the Registrant and U.S. Bank National Association, as trustee. The 2028 Notes will pay interest semi-annually in arrears at a rate of 3.800% per annum, the 2049 Notes will pay interest semi-annually in arrears at a rate of 4.100% per annum and the 2118 Notes will pay interest semi-annually in arrears at a rate of 5.100% per annum. The 2028 Notes constitute a further issuance of, and will be consolidated and form a single series of debt securities with, the $400,000,000 aggregate principal amount of the Registrant’s 3.800% Senior Notes due 2028 issued on August 2, 2018, and the 2118 Notes constitute a further issuance of, and will be consolidated and form a single series of debt securities with, the $600,000,000 aggregate principal amount of the Registrant’s 5.100% Senior Notes due 2118 issued on August 2, 2018.

The Notes may be redeemed in whole at any time or in part from time to time, at the Registrant’s option, as described below.

If the Notes are redeemed prior to the date that is three months prior to the maturity date for the 2028 Notes, six months prior to the maturity date for the 2049 Notes or six months prior to the maturity date for the 2118 Notes, the redemption price for such Notes to be redeemed will be equal to the greater of (1) 100% of their principal amount or (2) the sum of the present value of the remaining scheduled payments of principal and interest on the Notes to be redeemed, to and including the date that is three months prior to the maturity date for the 2028 Notes, six months prior to the maturity date for the 2049 Notes or six months prior to the maturity date for the 2118 Notes (exclusive of interest accrued to, but not including, the date of redemption), discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at a specified rate for each series of Notes, plus accrued and unpaid interest on the principal amount being redeemed to, but not including, the redemption date.

If the Notes are redeemed on or after the date that is three months prior to the maturity date for the 2028 Notes, six months prior to the maturity date for the 2049 Notes or six months prior to the maturity date for the 2118 Notes, the redemption price for the Notes to be redeemed will equal 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, the redemption date.

 

2





Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

    SIGNATURES
    NORFOLK SOUTHERN CORPORATION
    (Registrant)
   

        /s/ Denise W. Hutson

    Name:   Denise W. Hutson
    Title:   Corporate Secretary

Date: May 8, 2019


d734455dex41.htm EX-4.1


ENT> EX-4.1 2 d734455dex41.htm EX-4.1

EX-4.1

Exhibit 4.1

EXECUTION VERSION

NORFOLK SOUTHERN CORPORATION,

as Issuer

and

U.S. BANK NATIONAL ASSOCIATION,

as Trustee

 

 

THIRD SUPPLEMENTAL INDENTURE

Dated as of May 8, 2019

to

INDENTURE

Dated as of February 28, 2018

 

 

3.800% Senior Notes due 2028

4.100% Senior Notes due 2049

5.100% Senior Notes due 2118


TABLE OF CONTENTS

ARTICLE I

Definitions

 

SECTION 1.01. Definitions

     2  
ARTICLE II

 

Establishment of the New Notes

 

SECTION 2.01. Designation and Establishment

     4  

SECTION 2.02. Form of the New Notes

     4  

SECTION 2.03. Principal Amount of the New Notes

     4  

SECTION 2.04. Interest Rate; Stated Maturity

     4  

SECTION 2.05. No Sinking Fund

     4  

SECTION 2.06. Global Notes and Denomination of the New Notes

     4  

SECTION 2.07. Optional Redemption

     5  

SECTION 2.08. Change of Control Repurchase Event

     5  
ARTICLE III

 

Establishment of Additional 2028 Notes

 

SECTION 3.01. Designation and Authorization

     6  

SECTION 3.02. Form of the Additional 2028 Notes

     6  

SECTION 3.03. Principal Amount of the Additional 2028 Notes

     6  

SECTION 3.04. Denomination of the Additional 2028 Notes

     6  
ARTICLE IV

 

Establishment of Additional 2118 Notes

 

SECTION 4.01. Designation and Authorization

     7  

SECTION 4.02. Form of the Additional 2118 Notes

     7  

SECTION 4.03. Principal Amount of the Additional 2118 Notes

     7  

SECTION 4.04. Denomination of the Additional 2118 Notes

     7  
ARTICLE V

 

Miscellaneous

 

SECTION 5.01. Application of Third Supplemental Indenture

     7  

SECTION 5.02. Effective Date of Third Supplemental Indenture

     7  

SECTION 5.03. Counterparts

     7  

SECTION 5.04. Trustee Not Responsible for Recitals

     8  

SECTION 5.05. Governing Law

     8  


THIRD SUPPLEMENTAL INDENTURE dated as of May 8, 2019 (this “Third Supplemental Indenture”), by and between Norfolk Southern Corporation, a Virginia corporation, as issuer (the “Company”), and U.S. Bank National Association, as trustee (the “Trustee”).

WHEREAS, the Company executed and delivered the indenture, dated as of February 28, 2018, to the Trustee (the “Base Indenture”, as supplemented by a Second Supplemental Indenture dated as of August 2, 2018 between the Company and the Trustee (the “Second Supplemental Indenture”) and this Third Supplemental Indenture, the “Indenture”), to provide for the issuance of the Company’s unsubordinated and unsecured debt securities to be issued in one or more series;

WHEREAS, pursuant to Sections 2.01 and 9.01 of the Base Indenture and the Second Supplemental Indenture, the Company established and authorized the issuance of the Company’s 3.800% Senior Notes due 2028, a new series of debt securities initially issued in an aggregate principal amount of $400,000,000 (the “2028 Series”), and the Company’s 5.100% Senior Notes due 2118, a new series of debt securities initially issued in an aggregate principal amount of $600,000,000 (the “2118 Series”);

WHEREAS, on August 2, 2018, the Company completed its offering of initial debt securities of the 2028 Series in the aggregate principal amount of $400,000,000 (the “Initial 2028 Notes”) and the 2118 Series in the aggregate principal amount of $600,000,000 (the “Initial 2118 Notes”);

WHEREAS, the Company desires to reopen the 2028 Series and requests the Trustee to join it in the execution and delivery of this Third Supplemental Indenture in connection with the issuance by the Company of an additional $200,000,000 aggregate principal amount of debt securities of the 2028 Series (the “Additional 2028 Notes” and, together with the Initial 2028 Notes, the “2028 Notes”), with the form, substance, terms, provisions and conditions of such Additional 2028 Notes being identical to the form, substance, terms, provisions and conditions of the Initial 2028 Notes as provided in the Base Indenture and the Second Supplemental Indenture, and the Additional 2028 Notes shall be deemed to be part of the 2028 Series;

WHEREAS, the Company desires to reopen the 2118 Series and requests the Trustee to join it in the execution and delivery of this Third Supplemental Indenture in connection with the issuance by the Company of an additional $200,000,000 aggregate principal amount of debt securities of the 2118 Series (the “Additional 2118 Notes” and, together with the Initial 2118 Notes, the “2118 Notes”), with the form, substance, terms, provisions and conditions of such Additional 2118 Notes being identical to the form, substance, terms, provisions and conditions of the Initial 2118 Notes as provided in the Base Indenture and the Second Supplemental Indenture, and the Additional 2118 Notes shall be deemed to be part of the 2118 Series;

WHEREAS, pursuant to Section 9.01 of the Base Indenture, the Company desires to provide for the establishment of a new series of Securities under the Base Indenture to be known as its “4.100% Senior Notes due 2049” (the “New Notes”), the form and substance and the terms, provisions and conditions thereof to be set forth as provided in the Base Indenture and this Third Supplemental Indenture;

 

1


WHEREAS, the execution and delivery of this Third Supplemental Indenture and the issuance of the Additional 2028 Notes, the Additional 2118 Notes and the New Notes have been authorized by a Board Resolution and the Board of Directors has authorized the proper officers of the Company to execute and deliver any and all appropriate documents necessary or appropriate to effect such issuance;

WHEREAS, the Company requests that the Trustee execute and deliver this Third Supplemental Indenture; and

WHEREAS, all things necessary to make this Third Supplemental Indenture a valid agreement of the Company and the Trustee, in accordance with its terms, and to make the Additional 2028 Notes, the Additional 2118 Notes and the New Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid obligations of the Company, have been performed, and the execution and delivery of this Third Supplemental Indenture has been duly authorized in all respects.

NOW THEREFORE, in consideration of the premises and the purchase and acceptance of the Additional 2028 Notes, the Additional 2118 Notes and the New Notes by the Holders thereof and other valuable consideration, the receipt of which is hereby acknowledged by the Company, and for the purpose of setting forth, as provided in the Base Indenture, the form, terms and conditions of the Additional 2028 Notes, the Additional 2118 Notes and the New Notes, the Company covenants and agrees with the Trustee for the benefit of the Holders of the Additional 2028 Notes, the Additional 2118 Notes and the New Notes, as follows:

ARTICLE I

Definitions

SECTION 1.01. Definitions. Unless the context otherwise requires, capitalized terms used but not defined herein or in the recitals above have the respective meanings set forth in the Base Indenture, and with respect to the Additional 2028 Notes and the Additional 2118 Notes, the Second Supplemental Indenture. The following additional terms are hereby established for purposes of this Third Supplemental Indenture and shall have the meaning set forth in this Third Supplemental Indenture only for purposes of this Third Supplemental Indenture.

Additional 2028 Notes” has the meaning set forth in the recitals above.

Additional 2118 Notes” has the meaning set forth in the recitals above.

Below Investment Grade Ratings Event” means, with respect to the New Notes, on any day within the

60-day
period (which period shall be extended so long as the rating of the New Notes is under publicly announced consideration for a possible downgrade by any Rating Agency) after the earlier of (1) the occurrence of a Change of Control; or (2) public notice of the occurrence of a Change of Control or the intention by the Company to effect a Change of Control, the New Notes are rated below investment grade by each and every Rating Agency. Notwithstanding the foregoing, a Below Investment Grade Ratings Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Ratings

 

2


Event for purposes of the definition of Change of Control Repurchase Event hereunder) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Trustee in writing at the Company’s request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Ratings Event).

Change of Control” means the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” or “group” (as those terms are used in Section 13(d)(3) of the Exchange Act), other than the Company or its subsidiaries, becomes the beneficial owner (as defined in Rules

13d-3
and
13d-5
under the Exchange Act), directly or indirectly, of more than 50% of the combined voting power of the Company’s Voting Stock or other Voting Stock into which the Company’s Voting Stock is reclassified, consolidated, exchanged or changed measured by voting power rather than number of shares.

Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Below Investment Grade Ratings Event with respect to the New Notes.

DTC” means The Depository Trust Company.

Global Note” means a Security evidencing all or a part of a series of Securities, issued to the Depositary for such series in accordance with Section 2.12 of the Base Indenture.

Initial 2028 Notes” has the meaning set forth in the recitals above.

Initial 2118 Notes” has the meaning set forth in the recitals above.

Interest Payment Date” means, with respect to the payment of interest on the New Notes, May 15 and November 15 of each year and, with respect to the payment of interest on the Additional 2028 Notes and the Additional 2118 Notes, February 1 and August 1 of each year.

Investment grade” means, with respect to Moody’s, a rating of Baa3 or better (or its equivalent under any successor rating categories of Moody’s); with respect to S&P, a rating of

BBB-
or better (or its equivalent under any successor rating categories of S&P); and, with respect to any additional Rating Agency or Rating Agencies selected by the Company, the equivalent investment grade credit rating.

Moody’s” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.

New Notes” has the meaning set forth in the recitals above.

Rating Agency” means (1) each of Moody’s and S&P; and (2) if either of Moody’s or S&P ceases to rate the New Notes or fails to make a rating of the New Notes publicly available for reasons outside of the Company’s control, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act, selected by the Company (as certified by a Board Resolution) as a replacement agency for Moody’s or S&P, or both of them, as the case may be.

 

3


S&P” means S&P Global Ratings, a division of S&P Global Inc., and its successors.

Voting Stock” of any specified “person” (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date means the capital stock of such person that is at the time entitled to vote generally in the election of the board of directors of such person.

The words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Third Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision. The rules of construction set forth in Section 1.04 of the Base Indenture shall apply to this Third Supplemental Indenture.

ARTICLE II

Establishment of the New Notes

SECTION 2.01. Designation and Establishment. Pursuant to the terms hereof and Section 2.01 of the Base Indenture, the Company hereby establishes a new series of Securities designated as the “4.100% Senior Notes due 2049.” The New Notes may be reopened, from time to time, for issuances of additional Securities of such series. Any such additional Securities shall have the same ranking, interest rate, Stated Maturity and other terms as the New Notes (other than the issue date, issue price and payment of interest accruing prior to the issue date of such additional Securities). Any such additional Securities, together with the New Notes herein provided for, shall constitute a single series of Securities under the Indenture.

SECTION 2.02. Form of the New Notes. The New Notes shall be issued in substantially the form set forth in Exhibit

A-1
hereto.

SECTION 2.03. Principal Amount of the New Notes. The New Notes shall be initially issued in an aggregate principal amount of $400,000,000.

SECTION 2.04. Interest Rate; Stated Maturity. The New Notes issued pursuant to this Third Supplemental Indenture shall bear interest (computed on the basis of a

360-day
year consisting of twelve
30-day
months) from May 8, 2019 at the rate of 4.100% per annum payable semiannually in arrears; interest payable on each Interest Payment Date shall include interest accrued from May 8, 2019, or from the most recent date to which interest has been paid or duly provided for; the Interest Payment Dates on which such interest shall be payable are May 15 and November 15, commencing on November 15, 2019; and the record date for the interest payable on any Interest Payment Date is the close of business on the May 1 or November 1, as the case may be, next preceding the relevant Interest Payment Date. The New Notes shall have a Stated Maturity of May 15, 2049.

SECTION 2.05. No Sinking Fund. No sinking fund is provided for the New Notes.

SECTION 2.06. Global Notes and Denomination of the New Notes. Upon the original issuance, the New Notes shall be represented by one or more Global Notes. The Company shall

 

4


issue the New Notes in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof and shall deposit the Global Notes with the Trustee as Custodian for DTC in New York, New York, and register the Global Notes in the name of DTC or its nominee.

SECTION 2.07. Optional Redemption. The New Notes are subject to redemption at the option of the Company as set forth in the form of New Notes attached hereto as Exhibit

A-1
.

SECTION 2.08. Change of Control Repurchase Event. (a) If a Change of Control Repurchase Event occurs with respect to the New Notes, unless the Company has exercised its right to redeem the New Notes pursuant to paragraph 5 of the New Notes, the Company will make an offer to each Holder of the New Notes to repurchase all or any part (in integral multiples of $1,000) of that Holder’s New Notes at a repurchase price (the “Repurchase Price”) in cash equal to 101% of the aggregate principal amount of the New Notes repurchased plus any accrued and unpaid interest on the New Notes repurchased to, but not including, the Repurchase Date (defined below). Within 30 days following a Change of Control Repurchase Event or, at the Company’s option, prior to a Change of Control, but after the public announcement of a Change of Control, the Company will mail, or cause to be mailed, a notice to each Holder of the New Notes, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and offering to repurchase the New Notes on the payment date specified in the notice (such offer the “Repurchase Offer” and such date the “Repurchase Date”), which Repurchase Date will be a Business Day that is no earlier than 30 days and no later than 60 days from the date such notice is mailed. The notice shall, if mailed prior to the date of consummation of the Change of Control, state that the Repurchase Offer is conditioned on a Change of Control Repurchase Event occurring on or prior to the Repurchase Date.

(b) The Company will comply with the requirements of Rule

14e-1
under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the New Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the New Notes, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Repurchase Event provisions of the New Notes by virtue of such conflict.

(c) On the Repurchase Date following a Change of Control Repurchase Event, the Company will, to the extent lawful:

(1) accept for payment all New Notes or portions of New Notes properly tendered pursuant to the Repurchase Offer;

(2) deposit with the Trustee or with such Paying Agent as the Trustee may designate an amount equal to the aggregate Repurchase Price for all New Notes or portions of New Notes properly tendered; and

(3) deliver, or cause to be delivered, to the Trustee the New Notes properly accepted, together with an Officers’ Certificate stating the aggregate

 

5


principal amount of New Notes being repurchased by the Company pursuant to the Repurchase Offer and that all conditions precedent to the repurchase by the Company of New Notes pursuant to the Repurchase Offer have been complied with.

(d) The Trustee will promptly mail, or cause the Paying Agent to promptly mail, to each Holder of New Notes, or portions of New Notes, properly tendered the Repurchase Price for the New Notes, or portions of New Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new New Note equal in principal amount to any unpurchased portion of any New Notes surrendered, as applicable; provided that each New Note will be in a principal amount equal to $2,000 or an integral multiple of $1,000 in excess thereof.

(e) The Company will not be required to make a Repurchase Offer upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Company and such third party purchases all New Notes or portions of New Notes properly tendered and not withdrawn under its offer.

ARTICLE III

Establishment of Additional 2028 Notes

SECTION 3.01. Designation and Authorization. The issuance of the Additional 2028 Notes is hereby authorized, and such Additional 2028 Notes shall be registered in the names of such Persons as shall be set forth in any written order of the Company for the authentication and delivery of Additional 2028 Notes pursuant to Section 2.02 of the Base Indenture. The Additional 2028 Notes and the Initial 2028 Notes shall constitute a single series of debt securities under the Base Indenture, and the terms and provisions of the Second Supplemental Indenture are incorporated by reference into this Third Supplemental Indenture and shall apply equally to the Additional 2028 Notes and the Initial 2028 Notes, other than the issue date of the Additional 2028 Notes.

SECTION 3.02. Form of the Additional 2028 Notes. The Additional 2028 Notes shall be issued in the form of one or more Global Notes in substantially the form set forth in Exhibit

A-2
hereto.

SECTION 3.03. Principal Amount of the Additional 2028 Notes. The Additional 2028 Notes shall be issued in an aggregate principal amount of $200,000,000.

SECTION 3.04. Denomination of the Additional 2028 Notes. The Company shall issue the Additional 2028 Notes in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof.

 

6


ARTICLE IV

Establishment of Additional 2118 Notes

SECTION 4.01. Designation and Authorization. The issuance of the Additional 2118 Notes is hereby authorized, and such Additional 2118 Notes shall be registered in the names of such Persons as shall be set forth in any written order of the Company for the authentication and delivery of Additional 2118 Notes pursuant to Section 2.02 of the Base Indenture. The Additional 2118 Notes and the Initial 2118 Notes shall constitute a single series of debt securities under the Base Indenture, and the terms and provisions of the Second Supplemental Indenture are incorporated by reference into this Third Supplemental Indenture and shall apply equally to the Additional 2118 Notes and the Initial 2118 Notes, other than the issue date of the Additional 2118 Notes.

SECTION 4.02. Form of the Additional 2118 Notes. The Additional 2118 Notes shall be issued in the form of one or more Global Notes in substantially the form set forth in Exhibit

A-3
hereto.

SECTION 4.03. Principal Amount of the Additional 2118 Notes. The Additional 2118 Notes shall be issued in an aggregate principal amount of $200,000,000.

SECTION 4.04. Denomination of the Additional 2118 Notes. The Company shall issue the Additional 2118 Notes in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof.

ARTICLE V

Miscellaneous

SECTION 5.01. Application of Third Supplemental Indenture. Except as expressly provided herein, each and every term and condition contained in this Third Supplemental Indenture that modifies, amends or supplements the terms and conditions of the Base Indenture shall apply only to the New Notes, the Additional 2028 Notes and the Additional 2118 Notes established hereby, and not to any other series of Securities established under the Base Indenture. Except as specifically amended and supplemented by, or to the extent inconsistent with, this Third Supplemental Indenture, the Base Indenture shall remain in full force and effect and is hereby ratified and confirmed.

SECTION 5.02. Effective Date of Third Supplemental Indenture. This Third Supplemental Indenture shall be effective upon the execution and delivery hereof by each of the parties hereto.

SECTION 5.03. Counterparts. This Third Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Third Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Third Supplemental Indenture as to the parties hereto and may be used in lieu of the original of the Third Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

 

7


SECTION 5.04. Trustee Not Responsible for Recitals. The recitals herein contained are made by the Company and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation as to the validity or sufficiency of this Third Supplemental Indenture.

SECTION 5.05. Governing Law. This Third Supplemental Indenture, the New Notes, the Additional 2028 Notes and the Additional 2118 Notes shall be construed in accordance with and governed by the laws of the State of New York.

[Signature Pages Follow]

 

8


IN WITNESS WHEREOF, the parties have caused this Third Supplemental Indenture to be duly executed as of the date first written above.

 

NORFOLK SOUTHERN CORPORATION
  By:  

/s/ Clyde H. Allison, Jr.

    Name:   Clyde H. Allison, Jr.
    Title:   Vice President and Treasurer

 

[Signature Page to Third Supplemental Indenture]


U.S. BANK NATIONAL ASSOCIATION, as Trustee
  By:  

/s/ Christopher J. Grell

    Name:   Christopher J. Grell
    Title:   Vice President

 

[Signature Page to Third Supplemental Indenture]


EXHIBIT

A-1

[FORM OF FACE OF INITIAL NOTE]

[Global Notes Legend]

THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY NAMED BELOW OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


[FORM OF FACE OF INITIAL NOTE]

 

No.             [Up to]**$        

4.100% Senior Note due 2049

CUSIP No. 655844CC0

NORFOLK SOUTHERN CORPORATION, a Virginia corporation, promises to pay to Cede & Co., or registered assigns, the principal sum of $         adjusted as set forth on the Schedule of Increases or Decreases annexed hereto on May 15, 2049.

Interest Payment Dates: May 15 and November 15, commencing on November 15, 2019.

Record Dates: May 1 and November 1.


Additional provisions of this Global Note are set forth on the other side of this Global Note.

IN WITNESS WHEREOF, the parties have caused this instrument to be duly executed.

 

NORFOLK SOUTHERN CORPORATION
By  

             

  Name:
  Title:

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION
Dated:
U.S. BANK NATIONAL ASSOCIATION,
  as Trustee, certifies that this is one of
the Global Notes referred to in the Indenture.
By:  

                     

  Authorized Signatory


[FORM OF REVERSE SIDE OF INITIAL GLOBAL NOTE]

4.100% Senior Note due 2049

 

1.

Interest

NORFOLK SOUTHERN CORPORATION, a Virginia corporation (such corporation, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “Company”), promises to pay interest on the principal amount of this Note at the rate per annum shown above. The Company will pay interest semiannually in arrears on May 15 and November 15 of each year, commencing November 15, 2019. Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from May 8, 2019. Interest shall be computed on the basis of a

360-day
year of twelve
30-day
months. The Company shall pay interest on overdue principal at the rate per annum borne by the Notes, and it shall pay interest on overdue installments of interest at the rate per annum borne by the Notes to the extent lawful.

 

2.

Method of Payment

The Company will pay interest on the Notes (except defaulted interest) to the Persons who are Holders at the close of business on the May 1 or November 1, as the case may be, next preceding the Interest Payment Date even if Notes are canceled after the record date and on or before the Interest Payment Date. Holders must surrender Notes to a Paying Agent to collect principal payments. The Company will pay principal and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. Payments in respect of the Notes represented by a Global Note (including principal, premium, if any, and interest) will be made by wire transfer of immediately available funds to the accounts specified by the Depository. The Company will make all payments in respect of a definitive Note (including principal, premium, if any, and interest) by mailing a check to the registered address of each Holder thereof; provided, however, that payments on the Notes may also be made, in the case of a Holder of at least $1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).

 

3.

Paying Agent and Registrar

Initially, U.S. Bank National Association, a national banking association (the “Trustee”), will act as Paying Agent and Registrar. The Company may appoint and change any Paying Agent or Registrar without notice. The Company or any of its domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent or Registrar.

 

4.

Indenture

The Company issued the Notes under a Base Indenture, dated as of February 28, 2018, as supplemented by the Third Supplemental Indenture, dated as of May 8, 2019 (together, the “Indenture”), between the Company and the Trustee. The terms of the Notes include those stated


in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date of the Indenture (the “TIA”). Terms defined in the Indenture and not defined in the Notes have the meanings ascribed thereto in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of those terms.

The Notes are unsubordinated, unsecured obligations of the Company. This Note is one of the Notes referred to in the Indenture initially issued in an aggregate principal amount of $400,000,000. The Notes include such $400,000,000 aggregate principal amount of Notes and an unlimited aggregate principal amount of additional Notes that may be issued under the Indenture. Such Notes and such additional Notes will be treated as a single series and class of Securities under the Indenture. The Indenture imposes certain limitations on the ability of the Company and its Restricted Subsidiaries to create or incur Liens, the Restricted Subsidiaries to create or incur Funded Debt and the Company to consolidate or merge with or into any other Person or sell, transfer, assign, lease, convey or otherwise dispose of all or substantially all of its assets to any Person.

 

5.

Optional Redemption

The Notes will be redeemable as a whole at any time or in part from time to time, at the option of the Company as set forth in this paragraph 5. If the Notes are redeemed prior to the date that is six months prior to the Stated Maturity of the Notes, the Redemption Price of the Notes to be redeemed will be equal to the greater of (i) 100% of the principal amount of such Notes or (ii) the sum of the present values of the remaining scheduled payments of principal and interest thereon to and including the date that is six months prior to the Stated Maturity of the Notes (exclusive of interest accrued to, but not including, the Redemption Date) discounted to the Redemption Date on a semiannual basis (assuming a

360-day
year consisting of twelve
30-day
months) at the Treasury Yield plus 20 basis points, plus in each case accrued and unpaid interest on the principal amount being redeemed to, but not including, the Redemption Date.

If the Notes are redeemed on or after the date that is six months prior to the Stated Maturity, the Redemption Price for the Notes to be redeemed will equal 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, the Redemption Date.

Treasury Yield” means, with respect to any Redemption Date, (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15(519)” or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the date that is six months prior to the Stated Maturity of the Notes, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue will be determined and the Treasury Yield will be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month) or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to

 

2


the semi-annual equivalent

yield-to-maturity
of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price of such Redemption Date. The Treasury Yield will be calculated on the third Business Day preceding the Redemption Date.

Comparable Treasury Issue” means the United States Treasury security selected by the Independent Investment Banker as having a maturity most comparable to the date that is six months prior to the Stated Maturity of the Notes, that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a maturity comparable to the remaining term of the Notes.

Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Company.

Comparable Treasury Price” means (A) the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (B) if the Independent Investment Banker obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.

Reference Treasury Dealer” means each of (i) Citigroup Global Markets Inc. and Goldman Sachs & Co. LLC; and (ii) three other primary U.S. Government securities dealers in New York, New York (“Primary Treasury Dealers”) appointed by the Company and their respective successors; provided, however, that if any of the foregoing ceases to be a Primary Treasury Dealer or otherwise fails to provide a Reference Treasury Dealer Quotation, the Company will substitute therefor another Primary Treasury Dealer.

Reference Treasury Dealer Quotation” means a quotation for a Comparable Treasury Issue provided by a Reference Treasury Dealer.

 

6.

Sinking Fund

The Notes are not subject to any sinking fund.

 

7.

Notice of Redemption

Notice of redemption will be mailed by first-class mail at least 30 days but not more than 60 days before the Redemption Date to each Holder of Notes to be redeemed at his or her registered address. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000. If the Company deposits with the Paying Agent money sufficient to pay the Redemption Price of and accrued interest on all Notes (or portions thereof) to be redeemed on the Redemption Date by 10:00 a.m. New York City time on the Redemption Date and certain other conditions are satisfied, on and after such Redemption Date interest ceases to accrue on such Notes (or such portions thereof) called for redemption.

 

8.

Denominations; Transfer; Exchange

The Notes are in registered form without coupons in minimum denominations of $2,000 and whole multiples of $1,000 in excess thereof. A Holder may transfer or exchange Notes in

 

3


accordance with the Indenture. Upon any transfer or exchange, the Company may require a Holder to cover any transfer tax or similar governmental charge payable in connection therewith. The Registrar need not register the transfer of or exchange any Notes selected for redemption (except, in the case of a Note to be redeemed in part, the portion of the Note not to be redeemed) or to issue, register the transfer of or exchange any Notes for a period of 15 Business Days prior to the mailing of a notice of redemption of Notes to be redeemed.

 

9.

Persons Deemed Owners

The Holder of this Note may be treated as the owner of it for all purposes.

 

10.

Unclaimed Money

If money for the payment of principal, premium, if any, or interest remains unclaimed for two years after such amount has become due and payable, the Trustee or Paying Agent shall pay the money back to the Company at its written request unless an applicable abandoned property law designates another Person to receive such money. After any such payment, Holders entitled to the money must look only to the Company, and not to the Trustee or Paying Agent, for payment.

 

11.

Discharge; Defeasance

Subject to certain conditions, the Company at any time may terminate certain or all of its Obligations under the Notes and the Indenture if the Company deposits with the Trustee money, U.S. Government Obligations or a combination thereof sufficient to pay and discharge each installment of principal of, premium, if any, and interest on the Notes on the dates such installments of interest or principal and premium are due. The Company may also satisfy and discharge the Indenture by delivering to the Trustee for cancellation all Notes that have theretofore been authenticated and delivered, subject to certain conditions.

 

12.

Amendment, Waiver

The Indenture contains provisions permitting the Company and the Trustee, with the consent of the Holders of not less than a majority in principal amount of the Outstanding Notes affected, to amend or supplement the Indenture; provided, however, that no such amendment or supplement shall without the consent of each Holder of Notes (i) reduce the amount of Notes whose Holders must consent to an amendment, supplement or waiver; (ii) reduce the rate of interest on any Notes; (iii) reduce the principal amount of or the premium, if any, on any Notes or change the Stated Maturity of any Notes; (iv) change the place, manner, timing or Currency of payment of principal of, premium, if any, or interest on any Notes; or (v) make any change in the amendment and waiver provisions. The Indenture also contains provisions permitting the Holders of not less than a majority in principal amount of the Outstanding Notes affected thereby, on behalf of all of the Holders of Notes, to waive compliance by the Company with any provision of the Indenture or the Notes, provided that such waiver shall not affect the above provisions (i) – (v).

 

4


13.

Defaults and Remedies

If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then Outstanding, by a notice in writing to the Company (and to the Trustee if given by Holders), may declare the unpaid principal of (premium, if any) and accrued interest on, if any, Notes to be immediately due and payable. Certain events of bankruptcy or insolvency are Events of Default.

Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless it receives indemnity or security satisfactory to it. Subject to certain limitations, Holders of a majority in aggregate principal amount of the Notes may direct the Trustee in its exercise of any trust or power under the Indenture. The Holders of a majority in aggregate principal amount of the Notes then Outstanding, by written notice to the Company and the Trustee, may rescind and annul any declaration of acceleration and its consequences if the Company has paid or deposited with the Trustee a sufficient sum under the Indenture and all existing Events of Default, except nonpayment of principal, premium, if any, or interest on the Notes that has become due solely by such declaration of acceleration, have been cured or waived.

 

14.

Trustee Dealings with the Company

Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.

 

15.

No Recourse Against Others

A director, officer, employee or stockholder of the Company or the Trustee, as such, shall not have any liability for any Obligations of the Company under the Notes or for any Obligations of the Company or the Trustee under the Indenture or for any claim based on, in respect of or by reason of such Obligations or their creation. By accepting a Note, each Holder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Notes.

 

16.

Successors

Subject to certain exceptions set forth in the Indenture, when a successor assumes all the Obligations of its predecessor under the Notes and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those Obligations.

 

17.

Authentication

This Note shall not be valid until an authorized signatory of the Trustee (or an authenticating agent) manually signs the certificate of authentication on the other side of this Note.

 

5


18.

Abbreviations

Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).

 

19.

Governing Law

THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED THEREBY AND HEREBY.

 

20.

CUSIP Numbers

Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes and has directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.

The Company will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture which has in it the text of this Note.

 

6


FORM OF ASSIGNMENT

For value received                      hereby sell(s), assign(s) and transfer(s) unto                      (Please insert social security or other identifying number of assignee) the within Note, and hereby irrevocably constitutes and appoints                      as attorney to transfer the said Note on the books of the Company, with full power of substitution in the premises.

Dated:

 

 

   

 

 

   

 

    Signature(s)
    Signature(s) must be guaranteed by an Eligible Guarantor Institution with membership in an approved signature guarantee program pursuant to Rule
17Ad-15
under the Securities Exchange Act of 1934.


[TO BE ATTACHED TO GLOBAL NOTES]

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE

The initial principal amount of this Global Note is $        . The following increases or decreases in this Global Note have been made:

 

Date of

Exchange

   Amount of decrease
in Principal Amount
of this Global Note
     Amount of increase
in Principal Amount
of this Global Note
     Principal amount of
this Global Note
following such
decrease or increase
    

Signature of authorized signatory
of Trustee or Notes

Custodian

           
           
           
           
           
           


EXHIBIT

A-2

[FORM OF FACE OF 2028 NOTE]

[Global Notes Legend]

THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY NAMED BELOW OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


[FORM OF FACE OF 2028 NOTE]

 

No.              

[Up to]**$        

3.800% Senior Note due 2028

CUSIP No. 655844BZ0

NORFOLK SOUTHERN CORPORATION, a Virginia corporation, promises to pay to Cede & Co., or registered assigns, the principal sum of $         adjusted as set forth on the Schedule of Increases or Decreases annexed hereto on August 1, 2028.

Interest Payment Dates: February 1 and August 1, commencing on August 1, 2019.

Record Dates: January 15 and July 15.


Additional provisions of this Global Note are set forth on the other side of this Global Note.

IN WITNESS WHEREOF, the parties have caused this instrument to be duly executed.

 

NORFOLK SOUTHERN CORPORATION
By  

                                          

  Name:
  Title:

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION
Dated:
U.S. BANK NATIONAL ASSOCIATION,
  as Trustee, certifies that this is one of the Global Notes referred to in the Indenture.
By:  

                                                                                                       

  Authorized Signatory


[FORM OF REVERSE SIDE OF GLOBAL 2028 NOTE]

3.800% Senior Note due 2028

 

1.

Interest

NORFOLK SOUTHERN CORPORATION, a Virginia corporation (such corporation, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “Company”), promises to pay interest on the principal amount of this Note at the rate per annum shown above. The Company will pay interest semiannually in arrears on February 1 and August 1 of each year, commencing August 1, 2019. Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from August 2, 2018. Interest shall be computed on the basis of a

360-day
year of twelve
30-day
months. The Company shall pay interest on overdue principal at the rate per annum borne by the Notes, and it shall pay interest on overdue installments of interest at the rate per annum borne by the Notes to the extent lawful.

 

2.

Method of Payment

The Company will pay interest on the Notes (except defaulted interest) to the Persons who are Holders at the close of business on the January 15 or July 15, as the case may be, next preceding the Interest Payment Date even if Notes are canceled after the record date and on or before the Interest Payment Date. Holders must surrender Notes to a Paying Agent to collect principal payments. The Company will pay principal and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. Payments in respect of the Notes represented by a Global Note (including principal, premium, if any, and interest) will be made by wire transfer of immediately available funds to the accounts specified by the Depository. The Company will make all payments in respect of a definitive Note (including principal, premium, if any, and interest) by mailing a check to the registered address of each Holder thereof; provided, however, that payments on the Notes may also be made, in the case of a Holder of at least $1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).

 

3.

Paying Agent and Registrar

Initially, U.S. Bank National Association, a national banking association (the “Trustee”), will act as Paying Agent and Registrar. The Company may appoint and change any Paying Agent or Registrar without notice. The Company or any of its domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent or Registrar.

 

4.

Indenture

The Company issued the Notes under a Base Indenture, dated as of February 28, 2018, as supplemented by the Second Supplemental Indenture, dated as of August 2, 2018, and as further supplemented by the Third Supplemental Indenture, dated as of May 8, 2019 (collectively, the


Indenture”), between the Company and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date of the Indenture (the “TIA”). Terms defined in the Indenture and not defined in the Notes have the meanings ascribed thereto in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of those terms.

The Notes are unsubordinated, unsecured obligations of the Company. This Note is one of the series of 2028 Notes referred to in the Indenture issued in an aggregate principal amount of $600,000,000. The Notes include such $600,000,000 aggregate principal amount of Notes and an unlimited aggregate principal amount of additional Notes that may be issued under the Indenture. Such Notes and such additional Notes will be treated as a single series and class of Securities under the Indenture. The Indenture imposes certain limitations on the ability of the Company and its Restricted Subsidiaries to create or incur Liens, the Restricted Subsidiaries to create or incur Funded Debt and the Company to consolidate or merge with or into any other Person or sell, transfer, assign, lease, convey or otherwise dispose of all or substantially all of its assets to any Person.

 

5.

Optional Redemption

The Notes will be redeemable as a whole at any time or in part from time to time, at the option of the Company as set forth in this paragraph 5. If the Notes are redeemed prior to the date that is three months prior to the Stated Maturity of the Notes, the Redemption Price of the Notes to be redeemed will be equal to the greater of (i) 100% of the principal amount of such Notes or (ii) the sum of the present values of the remaining scheduled payments of principal and interest thereon to and including the date that is three months prior to the Stated Maturity of the Notes (exclusive of interest accrued to, but not including, the Redemption Date) discounted to the Redemption Date on a semiannual basis (assuming a

360-day
year consisting of twelve
30-day
months) at the Treasury Yield plus 15 basis points, plus in each case accrued and unpaid interest on the principal amount being redeemed to, but not including, the Redemption Date.

If the Notes are redeemed on or after the date that is three months prior to the Stated Maturity, the Redemption Price for the Notes to be redeemed will equal 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, the Redemption Date.

Treasury Yield” means, with respect to any Redemption Date, (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15(519)” or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the date that is three months prior to the Stated Maturity of the Notes, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue will be determined and the Treasury Yield will be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month) or (2) if such release (or any successor release) is not published

 

2


during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semi-annual equivalent

yield-to-maturity
of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price of such Redemption Date. The Treasury Yield will be calculated on the third Business Day preceding the Redemption Date.

Comparable Treasury Issue” means the United States Treasury security selected by the Independent Investment Banker as having a maturity most comparable to the date that is three months prior to the Stated Maturity of the Notes, that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a maturity comparable to the remaining term of the Notes.

Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Company.

Comparable Treasury Price” means (A) the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (B) if the Independent Investment Banker obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.

Reference Treasury Dealer” means each of (i) Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. LLC, and Wells Fargo Securities, LLC; and (ii) two other primary U.S. Government securities dealers in New York, New York (“Primary Treasury Dealers”) appointed by the Company and their respective successors; provided, however, that if any of the foregoing ceases to be a Primary Treasury Dealer or otherwise fails to provide a Reference Treasury Dealer Quotation, the Company will substitute therefor another Primary Treasury Dealer.

Reference Treasury Dealer Quotation” means a quotation for a Comparable Treasury Issue provided by a Reference Treasury Dealer.

 

6.

Sinking Fund

The Notes are not subject to any sinking fund.

 

7.

Notice of Redemption

Notice of redemption will be mailed by first-class mail at least 30 days but not more than 60 days before the Redemption Date to each Holder of Notes to be redeemed at his or her registered address. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000. If the Company deposits with the Paying Agent money sufficient to pay the Redemption Price of and accrued interest on all Notes (or portions thereof) to be redeemed on the Redemption Date by 10:00 a.m. New York City time on the Redemption Date and certain other conditions are satisfied, on and after such Redemption Date interest ceases to accrue on such Notes (or such portions thereof) called for redemption.

 

3


8.

Denominations; Transfer; Exchange

The Notes are in registered form without coupons in minimum denominations of $2,000 and whole multiples of $1,000 in excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. Upon any transfer or exchange, the Company may require a Holder to cover any transfer tax or similar governmental charge payable in connection therewith. The Registrar need not register the transfer of or exchange any Notes selected for redemption (except, in the case of a Note to be redeemed in part, the portion of the Note not to be redeemed) or to issue, register the transfer of or exchange any Notes for a period of 15 Business Days prior to the mailing of a notice of redemption of Notes to be redeemed.

 

9.

Persons Deemed Owners

The Holder of this Note may be treated as the owner of it for all purposes.

 

10.

Unclaimed Money

If money for the payment of principal, premium, if any, or interest remains unclaimed for two years after such amount has become due and payable, the Trustee or Paying Agent shall pay the money back to the Company at its written request unless an applicable abandoned property law designates another Person to receive such money. After any such payment, Holders entitled to the money must look only to the Company, and not to the Trustee or Paying Agent, for payment.

 

11.

Discharge; Defeasance

Subject to certain conditions, the Company at any time may terminate certain or all of its Obligations under the Notes and the Indenture if the Company deposits with the Trustee money, U.S. Government Obligations or a combination thereof sufficient to pay and discharge each installment of principal of, premium, if any, and interest on the Notes on the dates such installments of interest or principal and premium are due. The Company may also satisfy and discharge the Indenture by delivering to the Trustee for cancellation all Notes that have theretofore been authenticated and delivered, subject to certain conditions.

 

12.

Amendment, Waiver

The Indenture contains provisions permitting the Company and the Trustee, with the consent of the Holders of not less than a majority in principal amount of the Outstanding Notes affected, to amend or supplement the Indenture; provided, however, that no such amendment or supplement shall without the consent of each Holder of Notes (i) reduce the amount of Notes whose Holders must consent to an amendment, supplement or waiver; (ii) reduce the rate of interest on any Notes; (iii) reduce the principal amount of or the premium, if any, on any Notes or change the Stated Maturity of any Notes; (iv) change the place, manner, timing or Currency of payment of principal of, premium, if any, or interest on any Notes; or (v) make any change in the amendment and waiver provisions. The Indenture also contains provisions permitting the Holders of not less than a majority in principal amount of the Outstanding Notes affected thereby, on behalf of all of the Holders of Notes, to waive compliance by the Company with any provision of the Indenture or the Notes, provided that such waiver shall not affect the above provisions (i) – (v).

 

4


13.

Defaults and Remedies

If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then Outstanding, by a notice in writing to the Company (and to the Trustee if given by Holders), may declare the unpaid principal of (premium, if any) and accrued interest on, if any, Notes to be immediately due and payable. Certain events of bankruptcy or insolvency are Events of Default.

Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless it receives indemnity or security satisfactory to it. Subject to certain limitations, Holders of a majority in aggregate principal amount of the Notes may direct the Trustee in its exercise of any trust or power under the Indenture. The Holders of a majority in aggregate principal amount of the Notes then Outstanding, by written notice to the Company and the Trustee, may rescind and annul any declaration of acceleration and its consequences if the Company has paid or deposited with the Trustee a sufficient sum under the Indenture and all existing Events of Default, except nonpayment of principal, premium, if any, or interest on the Notes that has become due solely by such declaration of acceleration, have been cured or waived.

 

14.

Trustee Dealings with the Company

Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.

 

15.

No Recourse Against Others

A director, officer, employee or stockholder of the Company or the Trustee, as such, shall not have any liability for any Obligations of the Company under the Notes or for any Obligations of the Company or the Trustee under the Indenture or for any claim based on, in respect of or by reason of such Obligations or their creation. By accepting a Note, each Holder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Notes.

 

16.

Successors

Subject to certain exceptions set forth in the Indenture, when a successor assumes all the Obligations of its predecessor under the Notes and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those Obligations.

 

5


17.

Authentication

This Note shall not be valid until an authorized signatory of the Trustee (or an authenticating agent) manually signs the certificate of authentication on the other side of this Note.

 

18.

Abbreviations

Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).

 

19.

Governing Law

THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED THEREBY AND HEREBY.

 

20.

CUSIP Numbers

Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes and has directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.

The Company will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture which has in it the text of this Note.

 

6


FORM OF ASSIGNMENT

For value received                      hereby sell(s), assign(s) and transfer(s) unto                      (Please insert social security or other identifying number of assignee) the within Note, and hereby irrevocably constitutes and appoints                      as attorney to transfer the said Note on the books of the Company, with full power of substitution in the premises.

Dated:

 

                                         

   

                                         

                                         

   

                                         

    Signature(s)
    Signature(s) must be guaranteed by an Eligible Guarantor Institution with membership in an approved signature guarantee program pursuant to Rule
17Ad-15
under the Securities Exchange Act of 1934.


[TO BE ATTACHED TO GLOBAL NOTES]

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE

The initial principal amount of this Global Note is $        . The following increases or decreases in this Global Note have been made:

 

Date of

Exchange

   Amount of decrease
in Principal Amount
of this Global Note
     Amount of increase
in Principal Amount
of this Global Note
     Principal amount of
this Global Note
following such
decrease or increase
    

Signature of authorized signatory
of Trustee or Notes Custodian

           
           
           
           
           
           


EXHIBIT

A-3

[FORM OF FACE OF 2118 NOTE]

[Global Notes Legend]

THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY NAMED BELOW OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


[FORM OF FACE OF 2118 NOTE]

 

No.             [Up to]**$        

5.100% Senior Note due 2118

CUSIP No. 655844CB2

NORFOLK SOUTHERN CORPORATION, a Virginia corporation, promises to pay to Cede & Co., or registered assigns, the principal sum of $         adjusted as set forth on the Schedule of Increases or Decreases annexed hereto on August 1, 2118.

Interest Payment Dates: February 1 and August 1, commencing on August 1, 2019.

Record Dates: January 15 and July 15.


Additional provisions of this Global Note are set forth on the other side of this Global Note.

IN WITNESS WHEREOF, the parties have caused this instrument to be duly executed.

 

NORFOLK SOUTHERN CORPORATION
By  

                     

  Name:
  Title:

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION
Dated:  
U.S. BANK NATIONAL ASSOCIATION,
  as Trustee, certifies that this is one of the Global Notes referred to in the Indenture.
By:  

 

  Authorized Signatory


[FORM OF REVERSE SIDE OF GLOBAL 2118 NOTE]

5.100% Senior Note due 2118

 

1.

Interest

NORFOLK SOUTHERN CORPORATION, a Virginia corporation (such corporation, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “Company”), promises to pay interest on the principal amount of this Note at the rate per annum shown above. The Company will pay interest semiannually in arrears on February 1 and August 1 of each year, commencing August 1, 2019. Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from August 2, 2018. Interest shall be computed on the basis of a

360-day
year of twelve
30-day
months. The Company shall pay interest on overdue principal at the rate per annum borne by the Notes, and it shall pay interest on overdue installments of interest at the rate per annum borne by the Notes to the extent lawful.

 

2.

Method of Payment

The Company will pay interest on the Notes (except defaulted interest) to the Persons who are Holders at the close of business on the January 15 or July 15, as the case may be, next preceding the Interest Payment Date even if Notes are canceled after the record date and on or before the Interest Payment Date. Holders must surrender Notes to a Paying Agent to collect principal payments. The Company will pay principal and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. Payments in respect of the Notes represented by a Global Note (including principal, premium, if any, and interest) will be made by wire transfer of immediately available funds to the accounts specified by the Depository. The Company will make all payments in respect of a definitive Note (including principal, premium, if any, and interest) by mailing a check to the registered address of each Holder thereof; provided, however, that payments on the Notes may also be made, in the case of a Holder of at least $1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).

 

3.

Paying Agent and Registrar

Initially, U.S. Bank National Association, a national banking association (the “Trustee”), will act as Paying Agent and Registrar. The Company may appoint and change any Paying Agent or Registrar without notice. The Company or any of its domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent or Registrar.

 

4.

Indenture

The Company issued the Notes under a Base Indenture, dated as of February 28, 2018, as supplemented by the Second Supplemental Indenture, dated as of August 2, 2018, and as further supplemented by the Third Supplemental Indenture, dated as of May 8, 2019 (collectively, the


Indenture”), between the Company and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date of the Indenture (the “TIA”). Terms defined in the Indenture and not defined in the Notes have the meanings ascribed thereto in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of those terms.

The Notes are unsubordinated, unsecured obligations of the Company. This Note is one of the series of 2118 Notes referred to in the Indenture issued in an aggregate principal amount of $800,000,000. The Notes include such $800,000,000 aggregate principal amount of Notes and an unlimited aggregate principal amount of additional Notes that may be issued under the Indenture. Such Notes and such additional Notes will be treated as a single series and class of Securities under the Indenture. The Indenture imposes certain limitations on the ability of the Company and its Restricted Subsidiaries to create or incur Liens, the Restricted Subsidiaries to create or incur Funded Debt and the Company to consolidate or merge with or into any other Person or sell, transfer, assign, lease, convey or otherwise dispose of all or substantially all of its assets to any Person.

 

5.

Optional Redemption

The Notes will be redeemable as a whole at any time or in part from time to time, at the option of the Company as set forth in this paragraph 5. If the Notes are redeemed prior to the date that is six months prior to the Stated Maturity of the Notes, the Redemption Price of the Notes to be redeemed will be equal to the greater of (i) 100% of the principal amount of such Notes or (ii) the sum of the present values of the remaining scheduled payments of principal and interest thereon to and including the date that is six months prior to the Stated Maturity of the Notes (exclusive of interest accrued to, but not including, the Redemption Date) discounted to the Redemption Date on a semiannual basis (assuming a

360-day
year consisting of twelve
30-day
months) at the Treasury Yield plus 30 basis points, plus in each case accrued and unpaid interest on the principal amount being redeemed to, but not including, the Redemption Date.

If the Notes are redeemed on or after the date that is six months prior to the Stated Maturity, the Redemption Price for the Notes to be redeemed will equal 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, the Redemption Date.

Treasury Yield” means, with respect to any Redemption Date, (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15(519)” or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the date that is six months prior to the Stated Maturity of the Notes, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue will be determined and the Treasury Yield will be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month) or (2) if such release (or any successor release) is not published during the

 

2


week preceding the calculation date or does not contain such yields, the rate per annum equal to the semi-annual equivalent

yield-to-maturity
of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price of such Redemption Date. The Treasury Yield will be calculated on the third Business Day preceding the Redemption Date.

Comparable Treasury Issue” means the United States Treasury security selected by the Independent Investment Banker as having a maturity most comparable to the date that is six months prior to the Stated Maturity of the Notes, that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a maturity comparable to the remaining term of the Notes.

Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Company.

Comparable Treasury Price” means (A) the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (B) if the Independent Investment Banker obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.

Reference Treasury Dealer” means each of (i) Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. LLC, and Wells Fargo Securities, LLC; and (ii) two other primary U.S. Government securities dealers in New York, New York (“Primary Treasury Dealers”) appointed by the Company and their respective successors; provided, however, that if any of the foregoing ceases to be a Primary Treasury Dealer or otherwise fails to provide a Reference Treasury Dealer Quotation, the Company will substitute therefor another Primary Treasury Dealer.

Reference Treasury Dealer Quotation” means a quotation for a Comparable Treasury Issue provided by a Reference Treasury Dealer.

 

6.

Sinking Fund

The Notes are not subject to any sinking fund.

 

7.

Notice of Redemption

Notice of redemption will be mailed by first-class mail at least 30 days but not more than 60 days before the Redemption Date to each Holder of Notes to be redeemed at his or her registered address. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000. If the Company deposits with the Paying Agent money sufficient to pay the Redemption Price of and accrued interest on all Notes (or portions thereof) to be redeemed on the Redemption Date by 10:00 a.m. New York City time on the Redemption Date and certain other conditions are satisfied, on and after such Redemption Date interest ceases to accrue on such Notes (or such portions thereof) called for redemption.

 

3


8.

Denominations; Transfer; Exchange

The Notes are in registered form without coupons in minimum denominations of $2,000 and whole multiples of $1,000 in excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. Upon any transfer or exchange, the Company may require a Holder to cover any transfer tax or similar governmental charge payable in connection therewith. The Registrar need not register the transfer of or exchange any Notes selected for redemption (except, in the case of a Note to be redeemed in part, the portion of the Note not to be redeemed) or to issue, register the transfer of or exchange any Notes for a period of 15 Business Days prior to the mailing of a notice of redemption of Notes to be redeemed.

 

9.

Persons Deemed Owners

The Holder of this Note may be treated as the owner of it for all purposes.

 

10.

Unclaimed Money

If money for the payment of principal, premium, if any, or interest remains unclaimed for two years after such amount has become due and payable, the Trustee or Paying Agent shall pay the money back to the Company at its written request unless an applicable abandoned property law designates another Person to receive such money. After any such payment, Holders entitled to the money must look only to the Company, and not to the Trustee or Paying Agent, for payment.

 

11.

Discharge; Defeasance

Subject to certain conditions, the Company at any time may terminate certain or all of its Obligations under the Notes and the Indenture if the Company deposits with the Trustee money, U.S. Government Obligations or a combination thereof sufficient to pay and discharge each installment of principal of, premium, if any, and interest on the Notes on the dates such installments of interest or principal and premium are due. The Company may also satisfy and discharge the Indenture by delivering to the Trustee for cancellation all Notes that have theretofore been authenticated and delivered, subject to certain conditions.

 

12.

Amendment, Waiver

The Indenture contains provisions permitting the Company and the Trustee, with the consent of the Holders of not less than a majority in principal amount of the Outstanding Notes affected, to amend or supplement the Indenture; provided, however, that no such amendment or supplement shall without the consent of each Holder of Notes (i) reduce the amount of Notes whose Holders must consent to an amendment, supplement or waiver; (ii) reduce the rate of interest on any Notes; (iii) reduce the principal amount of or the premium, if any, on any Notes or change the Stated Maturity of any Notes; (iv) change the place, manner, timing or Currency of payment of principal of, premium, if any, or interest on any Notes; or (v) make any change in the amendment and waiver provisions. The Indenture also contains provisions permitting the Holders of not less than a majority in principal amount of the Outstanding Notes affected thereby, on behalf of all of the Holders of Notes, to waive compliance by the Company with any provision of the Indenture or the Notes, provided that such waiver shall not affect the above provisions (i) – (v).

 

4


13.

Defaults and Remedies

If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then Outstanding, by a notice in writing to the Company (and to the Trustee if given by Holders), may declare the unpaid principal of (premium, if any) and accrued interest on, if any, Notes to be immediately due and payable. Certain events of bankruptcy or insolvency are Events of Default.

Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless it receives indemnity or security satisfactory to it. Subject to certain limitations, Holders of a majority in aggregate principal amount of the Notes may direct the Trustee in its exercise of any trust or power under the Indenture. The Holders of a majority in aggregate principal amount of the Notes then Outstanding, by written notice to the Company and the Trustee, may rescind and annul any declaration of acceleration and its consequences if the Company has paid or deposited with the Trustee a sufficient sum under the Indenture and all existing Events of Default, except nonpayment of principal, premium, if any, or interest on the Notes that has become due solely by such declaration of acceleration, have been cured or waived.

 

14.

Trustee Dealings with the Company

Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.

 

15.

No Recourse Against Others

A director, officer, employee or stockholder of the Company or the Trustee, as such, shall not have any liability for any Obligations of the Company under the Notes or for any Obligations of the Company or the Trustee under the Indenture or for any claim based on, in respect of or by reason of such Obligations or their creation. By accepting a Note, each Holder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Notes.

 

16.

Successors

Subject to certain exceptions set forth in the Indenture, when a successor assumes all the Obligations of its predecessor under the Notes and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those Obligations.

 

5


17.

Authentication

This Note shall not be valid until an authorized signatory of the Trustee (or an authenticating agent) manually signs the certificate of authentication on the other side of this Note.

 

18.

Abbreviations

Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).

 

19.

Governing Law

THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED THEREBY AND HEREBY.

 

20.

CUSIP Numbers

Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes and has directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.

The Company will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture which has in it the text of this Note.

 

6


FORM OF ASSIGNMENT

For value received                      hereby sell(s), assign(s) and transfer(s) unto                      (Please insert social security or other identifying number of assignee) the within Note, and hereby irrevocably constitutes and appoints                      as attorney to transfer the said Note on the books of the Company, with full power of substitution in the premises.

Dated:

 

 

   

 

 

   

 

    Signature(s)
    Signature(s) must be guaranteed by an Eligible Guarantor Institution with membership in an approved signature guarantee program pursuant to Rule
17Ad-15
under the Securities Exchange Act of 1934.


[TO BE ATTACHED TO GLOBAL NOTES]

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE

The initial principal amount of this Global Note is $        . The following increases or decreases in this Global Note have been made:

 

Date of

Exchange

   Amount of decrease
in Principal Amount
of this Global Note
     Amount of increase
in Principal Amount
of this Global Note
     Principal amount of
this Global Note
following such
decrease or increase
    

Signature of

authorized signatory
of Trustee or Notes

Custodian

           
           
           
           
           
           
d734455dex51.htm EX-5.1


> ENT> EX-5.1 3 d734455dex51.htm EX-5.1

EX-5.1

Exhibit 5.1

Vanessa Allen Sutherland, Esq.

Senior Vice President and

Chief Legal Officer

May 8, 2019

Norfolk Southern Corporation

Three Commercial Place

Norfolk, Virginia 23510

 

  RE:

Norfolk Southern Corporation $200,000,000 3.800% Senior Notes due 2028; $400,000,000 4.100% Senior Notes due 2049; and $200,000,000 5.100% Senior Notes due 2118

Ladies and Gentlemen:

As Executive Vice President Law and Administration and Chief Legal Officer of Norfolk Southern Corporation, a Virginia corporation (the “Company”), John M. Scheib delivered to you an opinion letter dated February 5, 2018 (the “Opinion”), in connection with the Company’s Automatic Shelf Registration Statement on Form S-3, File No. 333-222869 (the “Registration Statement”), filed with the Securities and Exchange Commission (the “Commission”) on February 5, 2018. The Registration Statement was filed for the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”), the Offered Securities (as defined in the Opinion).

As Senior Vice President and Chief Legal Officer, I am furnishing this opinion in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act with respect to the offer and sale of $200,000,000 aggregate principal amount of 3.800% Senior Notes due 2028, $400,000,000 aggregate principal amount of 4.100% Senior Notes due 2049, and $200,000,000 aggregate principal amount of 5.100% Senior Notes due 2118 (collectively, the “Notes”) to be issued under a Base Indenture, dated as of February 28, 2018 (the “Base Indenture”), as supplemented by a second supplemental indenture, dated as of August 2, 2018 and a third supplemental indenture, dated as of May 8, 2019 (together with the Base Indenture, the “Indenture”), by and between the Company and U.S. Bank National Association, as trustee (the “Trustee”).

In rendering the opinions stated below, I have, or an attorney working for me has, examined and relied upon the following: (i) the Registration Statement; (ii) the Indenture; (iii) the Prospectus dated February 5, 2018 (the “Prospectus”); and (iv) a Prospectus Supplement to the Prospectus dated April 29, 2019 (the “Prospectus Supplement”). I have, or an attorney working for me has, also examined originals or copies, certified or otherwise identified to my satisfaction, of such other documents, certificates and records as I have deemed necessary or appropriate as a basis for the opinions stated below.

In my examination, I have assumed the genuineness of all signatures, including endorsements, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as facsimile, electronic, certified or photostatic copies and the authenticity of the originals of such copies.



Norfolk Southern Corporation

May 8, 2019

Page 2

 

In making my examination of executed documents or documents to be executed, I have assumed that the parties thereto, other than the Company, had or will have the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, the execution and delivery by such parties of such documents and the validity and binding effect thereof on such parties. As to any facts material to the opinions stated below which I did not independently establish or verify, I have relied upon statements and representations of officers and other representatives of the Company and others and of public officials.

I am a member of the Bar of the Commonwealth of Virginia, and I do not express any opinion with respect to the laws of any jurisdiction other than the laws of the Commonwealth of Virginia and, to the extent that judicial or regulatory orders or decrees or consents, approvals, licenses, authorizations, validations, filings, recordings or registrations with governmental authorities are relevant, to those required under such laws (all of the foregoing being referred to as “Opined on Law”). I do not express any opinion with respect to the law of any jurisdiction other than Opined on Law or as to the effect of any such non-Opined on Law on the opinions stated below. The opinions stated below are based on laws in effect on the date hereof, which laws are subject to change with possible retroactive effect, and I disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.

Based upon the foregoing and subject to the limitations, qualifications, exceptions and assumptions stated herein, I am of the opinion that the Notes have been legally issued and constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and 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 Indenture.

I hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Current Report on Form 8-K to be filed by the Company as of the date hereof. I also hereby consent to the reference to me under the caption “Legal Matters” in the Prospectus Supplement. In giving this consent, I do not thereby admit that I am included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.

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Norfolk Southern Corporation

May 8, 2019

Page 3

 

Very truly yours,

/s/ Vanessa Allen Sutherland


d734455dex52.htm EX-5.2


> ENT> EX-5.2 4 d734455dex52.htm EX-5.2

EX-5.2

Exhibit 5.2

 

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May 8, 2019

Norfolk Southern Corporation

Three Commercial Place

Norfolk, Virginia 23510

RE:    Norfolk Southern Corporation $200,000,000 3.800% Senior Notes due 2028, $400,000,000 4.100% Senior Notes due 2049 and $200,000,000 5.100% Senior Notes due 2118

Ladies and Gentlemen:

We have acted as special counsel to Norfolk Southern Corporation, a Virginia corporation (the “Company”), in connection with the public offering of (a) $200,000,000 aggregate principal amount of the Company’s 3.800% Senior Notes due 2028 (the “2028 Notes”), (b) $400,000,000 aggregate principal amount of the Company’s 4.100% Senior Notes due 2049 (the “2049 Notes”), and (c) $200,000,000 aggregate principal amount of the Company’s 5.100% Senior Notes due 2118 (the “2118 Notes,” together with the 2028 Notes and the 2049 Notes, the “Notes”), issuable under the Base Indenture, dated as of February 28, 2018 (the “Base Indenture”), as supplemented by a second supplemental indenture, dated as of August 2, 2018 (the “Second Supplemental Indenture”), and as further supplemented by a third supplemental indenture, dated as of May 8, 2019 (the “Third Supplemental Indenture” and, together with the Base Indenture and the Second Supplemental Indenture, the “Indenture”), between the Company and U.S. Bank National Association, as trustee (the “Trustee”). On April 29, 2019, the Company entered into an Underwriting Agreement (the “Underwriting Agreement”) with Citigroup Global Markets Inc. and Goldman Sachs & Co. LLC, as representatives of the several underwriters named therein (the “Underwriters”), relating to the sale by the Company to the Underwriters of the Notes.

This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the “Securities Act”).

In rendering the opinion stated herein, we have examined and relied upon the following:

 

  (i)

the Registration Statement on Form S-3 (File No. 333-222869) of the Company

 

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Norfolk Southern Corporation

May 8, 2019

Page 2

 

  relating to the Notes and other securities of the Company filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act allowing for delayed offerings pursuant to Rule 415 of the General Rules and Regulations under the Securities Act (the “Rules and Regulations”), including information deemed to be a part of the registration statement pursuant to Rule 430B of the Rules and Regulations (such registration statement being hereinafter referred to as the “Registration Statement”);

 

  (ii)

an executed copy of the Underwriting Agreement;

 

  (iii)

the global certificates evidencing the Notes (the “Note Certificates”), in the forms delivered by the Company to the Trustee for authentication and delivery;

 

  (iv)

an executed copy of the Base Indenture;

 

  (v)

an executed copy of the Second Supplemental Indenture; and

 

  (vi)

an executed copy of the Third Supplemental Indenture.

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinion stated below.

In our examination, we have assumed the genuineness of all signatures, including endorsements, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photostatic copies, and the authenticity of the originals of such copies. In making our examination of executed documents, we have assumed that the parties thereto, including the Company, had the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and the execution and delivery by such parties of such documents, and except to the extent expressly stated in the opinion contained herein, the validity and binding effect thereof on such parties. As to any facts relevant to the opinion stated herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and others and of public officials.

 

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Norfolk Southern Corporation

May 8, 2019

Page 3

 

The opinion set forth below is subject to the following further qualifications, assumptions and limitations:

 

  (a)

the opinion stated herein is limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, preference and other similar laws affecting creditors’ rights generally, and by general principles of equity (regardless of whether enforcement is sought in equity or at law);

 

  (b)

except to the extent expressly stated in the opinion contained herein, we do not express any opinion with respect to the effect on the opinion stated herein of (i) the compliance or non-compliance of any party to the Indenture with any laws, rules or regulations applicable to such party or (ii) the legal status or legal capacity of any such party;

 

  (c)

except to the extent expressly stated in the opinion contained herein, we do not express any opinion with respect to any law, rule or regulation that is applicable to any party to the Indenture or the transactions contemplated thereby solely because such law, rule or regulation is part of a regulatory regime applicable to any such party or any of its affiliates as a result of the specific assets or business operations of such party or such affiliates;

 

  (d)

we do not express any opinion as to the enforceability of Section 6.12 of the Base Indenture;

 

  (e)

to the extent that any opinion relates to the enforceability of the choice of New York law and choice of New York forum provisions contained in the Indenture or the Note Certificates, the opinion stated herein is subject to the qualification that such enforceability may be subject to, in each case, (i) the exceptions and limitations in New York General Obligations Law sections 5-1401 and 5-1402 and (ii) principles of comity or constitutionality; and

 

  (f)

we have assumed that neither the execution and delivery by the Company of the Indenture and the Note Certificates, as applicable, nor the performance by the Company of its obligations thereunder: (i) conflicts or will conflict with the articles of incorporation or by-laws of the Company; (ii) constitutes or will constitute a violation of, or a default under, any lease, indenture, instrument or other agreement to which the Company or its property is subject; (iii) contravenes or will contravene any order or decree of any governmental authority to which the Company or its property is subject; (iv) violates or will violate any law, rule, or regulation to which the Company or its property is subject; or (v) requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any law, rule or regulation of any jurisdiction.

 

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Norfolk Southern Corporation

May 8, 2019

Page 4

 

We do not express any opinion with respect to the laws of any jurisdiction other than the laws of the State of New York and, to the extent that judicial or regulatory orders or decrees or consents, approvals, licenses, authorizations, validations, filings, recordings or registrations with governmental authorities are relevant, to those required under such laws (all of the foregoing being referred to as “Opined on Law”). We do not express any opinion with respect to the law of any jurisdiction other than Opined on Law or as to the effect of any such non-Opined on Law on the opinion herein stated. Insofar as the opinion expressed herein relates to matters governed by laws other than those set forth in the preceding sentence, we have assumed, without having made any independent investigation, that such laws do not affect the opinion set forth herein. The opinion expressed herein is based on laws in effect on the date hereof, which laws are subject to change with possible retroactive effect.

Based upon the foregoing and subject to the limitations, qualifications, exceptions and assumptions stated herein, we are of the opinion that when the Note Certificates have been duly authenticated by the Trustee and issued and delivered by the Company against payment therefor in accordance with the terms of the Underwriting Agreement and the Indenture, the Note Certificates will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their respective terms.

We hereby consent to the filing of this opinion with the Commission as Exhibit 5.2 to the Company’s Current Report on Form 8-K being filed on the date hereof, and incorporated by reference into the Registration Statement. We also hereby consent to the reference to our firm under the caption “Legal Matters” in the prospectus supplement dated April 29, 2019 and filed with the Commission. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations. This opinion is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.

 

Very truly yours,
/s/ Hinckley, Allen & Snyder LLP

 

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Additional Files
FileSequenceDescriptionTypeSize
0001193125-19-141116.txt   Complete submission text file   313178

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