As
filed with the Securities and Exchange Commission on April 20,
2010
Registration
No. 333-
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-4
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
CSX
Corporation
(as
Issuer)
(Exact
name of Registrant as specified in its charter)
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Virginia
(State
or other jurisdiction of
incorporation
or organization)
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4011
(Primary
Standard Industrial
Classification
Code Number)
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62-1051971
(I.R.S.
Employer
Identification
No.)
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500
Water Street, 15th
Floor
Jacksonville,
Florida 32202
Telephone:
(904) 359-3200
(Address,
including zip code, and telephone number,
including
area code, of Registrant’s principal executive offices)
Ellen
M. Fitzsimmons
Senior
Vice President – Law and Public Affairs,
General
Counsel and Corporate Secretary
500
Water Street, 15th
Floor
Jacksonville,
Florida 32202
Telephone:
(904) 359-3200
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
Copy
to:
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Ronald
Cami, Esq.
Cravath,
Swaine & Moore LLP
Worldwide
Plaza, 825 Eighth Avenue
New
York, New York 10019
(212)
474-1000
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Approximate date of commencement of
proposed sale of the securities to the public: As soon as practicable
after this Registration Statement becomes effective.
If the securities being registered on
this Form are being offered in connection with the formation of a holding
company and there is compliance with General Instruction G, check the following
box. ¨
If this Form is filed to register
additional securities for an offering pursuant to Rule 462(b) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. ¨
If this Form is a post-effective
amendment filed pursuant to Rule 462(d) under the Securities Act, check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. ¨
Indicate by check mark whether the
registrant is a large accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of “large
accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule
12b-2 of the Exchange Act.
Large
accelerated filer þ Accelerated
filer ¨ Non-accelerated
filer (Do not check if a smaller reporting company) ¨ Smaller
reporting company ¨
CALCULATION
OF REGISTRATION FEE
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Title
of each class of securities to be registered
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Amount
to
be
registered
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Proposed
maximum
offering
price per unit
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Proposed
maximum aggregate offering price
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Amount
of registration fee
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6.220%
Senior Notes due 2040
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$ | 660,000,000 | 100 | % | $ | 660,000,000 | $ | 47,058 | (1) | |||||||
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(1)
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Calculated
pursuant to Rule 457(f) of the Securities Act of 1933, as amended (the
“Securities Act”).
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THE
REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS
MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A
FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
The information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities
and it is not soliciting an offer to buy these securities in any state where the
offer or sale is not permitted.
SUBJECT TO COMPLETION DATED APRIL 20, 2010
PROSPECTUS
CSX
CORPORATION
(as
Issuer)
Offer
to Exchange
Up
to $660,000,000 Principal Amount of
6.220%
Senior Notes due 2040
for
a
Like Principal Amount of
6.220%
Senior Notes due 2040
which
have been registered under the Securities Act of 1933
CSX
Corporation (“CSX” or the “Issuer”) is offering to exchange registered 6.220%
Senior Notes due 2040, or the “Exchange Notes”, for its outstanding unregistered
6.220% Senior Notes due 2040, or the “Original Notes”. The Original
Notes and the Exchange Notes are sometimes referred to in this prospectus
together as the “Notes”. The terms of the Exchange Notes are
substantially identical to the terms of the Original Notes, except that the
Exchange Notes are registered under the Securities Act of 1933, as amended (the
“Securities Act”), and the transfer restrictions and registration rights and
related special interest provisions applicable to the Original Notes do not
apply to the Exchange Notes. The Original Notes may only be tendered
in an amount equal to $2,000 in principal amount or in integral multiples of
$1,000 in excess thereof. This offer is subject to certain customary
conditions and will expire at 11:59 p.m., New York City time, on
, unless
the Issuer extends it. The Exchange Notes will not trade on any
established exchange.
Each
broker-dealer that receives Exchange Notes for its own account pursuant to the
Exchange Offer must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. The letter of transmittal
states that by so acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an “underwriter” within the meaning of
the Securities Act. This prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Original Notes where
such Original Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities. CSX has agreed
that, for a period of 180 days after the Expiration Date (as defined herein), it
will make this prospectus available to any broker-dealer for use in connection
with any such resale. See “Plan of Distribution”.
Please
see “Risk Factors” beginning on page 6 for a discussion of certain factors you
should consider in connection with this Exchange Offer.
Neither
the Securities and Exchange Commission (the “SEC”) nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
The date
of this prospectus is
, .
You
should rely only on the information contained or incorporated by reference in
this prospectus. We have not authorized anyone to provide you with
different information. This prospectus is not an offer to sell or a
solicitation of an offer to buy the Notes in any jurisdiction or under any
circumstances in which the offer or sale is unlawful. You should not
assume that the information contained in this prospectus is accurate as of any
date other than the date on the front of this prospectus.
TABLE
OF CONTENTS
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Page
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Except as
otherwise indicated, this prospectus speaks as of the date of this
prospectus. Neither the delivery of the prospectus nor any sale of
any Notes shall, under any circumstances, create any implication that there have
been no changes in our affairs after the date of this prospectus.
i
We have
filed with the SEC a registration statement on Form S-4 under the Securities Act
with respect to this Exchange Offer. This prospectus does not contain
all of the information contained in the registration statement and the exhibits
to the registration statement. You should refer to the registration
statement, including the exhibits, for further information about the Exchange
Notes being offered hereby. Copies of our SEC filings, including the
exhibits to the registration statement, are available through us or from the SEC
through the SEC’s website or at its facilities described
below.
We are
subject to the information requirements of the Exchange Act, and the rules and
regulations thereunder, and accordingly, we file annual, quarterly and special
reports, proxy statements and other information with the SEC. Our SEC filings
are available to the public over the Internet at the SEC’s web site at http://www.sec.gov. You may
also read and copy any document we file at the SEC’s Public Reference Room at
100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the Public Reference Room. You may
also read and copy these documents at the offices of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
You may
request a copy of any filings referred to above, at no cost, by contacting CSX
at the following address: Ellen M. Fitzsimmons, Senior Vice President – Law and
Public Affairs, General Counsel and Corporate Secretary, CSX Corporation, 500
Water Street, 15th Floor,
Jacksonville, Florida 32202, telephone number (904) 359-3200.
To
obtain timely delivery of any copies of filings requested from us, please write
or telephone us no later
than .
We are
incorporating by reference the information that we file with the SEC, which
means that we are disclosing important information to you in those
documents. The information incorporated by reference is an important
part of this prospectus, and the information that we subsequently file with the
SEC will automatically update and supersede information in this prospectus and
in our other filings with the SEC. We incorporate by reference the
documents listed below, which we have already filed with the SEC, and any future
filings we make with the SEC under Section 13(a), 13(c), 14, or 15(d) of the
Securities Exchange Act of 1934 (the “Exchange Act”), after the date of the
initial registration statement and prior to effectiveness of the registration
statement, and prior to the termination of the offering under this
prospectus. We are not, however, incorporating by reference any
documents or portions thereof, whether specifically listed below or filed in the
future, that are not deemed “filed” with the SEC, including any information
furnished pursuant to Item 2.02 or 7.01 of Form 8-K.
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our
Annual Report on Form 10-K for the fiscal year ended December 25,
2009;
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our
Quarterly Report on Form 10-Q for the fiscal quarter ended
March 26, 2010; and
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our
Current Reports on Form 8-K filed with the Commission on February 22,
2010, March 8, 2010, March 10, 2010 and March 22,
2010.
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Any
statement contained in this prospectus, or in a document all or a portion of
which is incorporated by reference in this prospectus, will be deemed to be
modified or superseded for purposes of this prospectus to the extent that a
statement contained in this prospectus modifies or supersedes the
statement. Any such statement or document so modified or superseded
will not be deemed, except as so modified or superseded, to constitute a part of
this prospectus.
This
prospectus and the documents incorporated by reference herein contain
“forward-looking” statements, which may contain, among others, statements
regarding:
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projections
and estimates of earnings, revenues, volumes, rates, cost-savings,
expenses, or other financial items;
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ii
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expectations
as to results of operations and operational
initiatives;
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expectations
as to the effect of claims, lawsuits, environmental costs, commitments,
contingent liabilities, labor negotiations or agreements on the Company’s
financial condition, results of operations or
liquidity;
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management’s
plans, strategies and objectives for future operations, proposed new
services and other similar expressions concerning matters that are not
historical facts, and management’s expectations as to future performance
and operations and the time by which objectives will be achieved;
and
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future
economic, industry or market conditions or performance and their effect on
the Company’s financial condition, results of operations or
liquidity.
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Forward-looking
statements are typically identified by words or phrases such as “believe”,
“expect”, “anticipate”, “project”, “estimate”, “preliminary” and similar
expressions. The Company cautions against placing undue reliance on
forward-looking statements, which reflect its good faith beliefs with respect to
future events and are based on information currently available to it as of the
date the forward-looking statement is made. Forward-looking statements should
not be read as a guarantee of future performance or results and will not
necessarily be accurate indications of the timing when, or by which, such
performance or results will be achieved.
Forward-looking
statements are subject to a number of risks and uncertainties and actual
performance or results could differ materially from those anticipated by any
forward-looking statements. The Company undertakes no obligation to update or
revise any forward-looking statement. If the Company does update any
forward-looking statement, no inference should be drawn that the Company will
make additional updates with respect to that statement or any other
forward-looking statements. The following important factors, in addition to
those discussed elsewhere, may cause actual results to differ materially from
those contemplated by any forward-looking statements:
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legislative,
regulatory or legal developments involving transportation, including rail
or intermodal transportation, the environment, hazardous materials,
taxation, including the outcome of tax claims and litigation, the
potential enactment of initiatives to re-regulate the rail industry and
the ultimate outcome of shipper and rate claims subject to
adjudication;
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the
outcome of litigation and claims, including, but not limited to, those
related to fuel surcharge, environmental contamination, personal injuries
and occupational illnesses;
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material
changes in domestic or international economic, political or business
conditions, including those affecting the transportation industry such as
access to capital markets, ability to revise debt arrangements as
contemplated, customer demand, customer acceptance of price increases,
effects of adverse economic conditions affecting shippers and adverse
economic conditions in the industries and geographic areas that consume
and produce freight;
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worsening
conditions in the financial markets that may affect timely access to
capital markets, as well as the cost of
capital;
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availability
of insurance coverage at commercially reasonable rates or insufficient
insurance coverage to cover claims or
damages;
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changes
in fuel prices, surcharges for fuel and the availability of
fuel;
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iii
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the
impact of increased passenger activities in capacity-constrained areas or
regulatory changes affecting when CSX’s principal operating company, CSX
Transportation, Inc., can transport freight or service
routes;
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natural
events such as severe weather conditions, including floods, fire,
hurricanes and earthquakes, a pandemic crisis affecting the health of the
Company’s employees, its shippers or the consumers of goods, or other
unforeseen disruptions of the Company’s operations, systems, property or
equipment;
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noncompliance
with applicable laws or
regulations;
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the
inherent risks associated with safety and security, including the
availability and cost of insurance, the availability and vulnerability of
information technology, adverse economic or operational effects from
actual or threatened war or terrorist activities and any governmental
response;
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labor
costs and labor difficulties, including stoppages affecting either the
Company’s operations or the customers’ ability to deliver goods to the
Company for shipment;
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competition
from other modes of freight transportation, such as trucking, and
competition and consolidation within the transportation industry
generally;
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the
Company’s success in implementing its strategic plans and operational
objectives and improving operating
efficiency;
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changes
in operating conditions and costs or commodity concentrations;
and
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the
inherent uncertainty associated with projecting full year 2010 economic
and business conditions at an early point in the year and in the economic
recovery.
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Other
important assumptions and factors that could cause actual results to differ
materially from those in the forward-looking statements are specified elsewhere
in this prospectus, including the documents incorporated by reference, which are
accessible on the SEC’s website at www.sec.gov and the Company’s website at
www.csx.com.
The information on our website is not incorporated by reference in, and does not
form a part of, this prospectus.
iv
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This
summary highlights selected information from this prospectus and is
therefore qualified in its entirety by the more detailed information
appearing elsewhere, or incorporated by reference, in this prospectus. It
may not contain all the information that is important to you. We urge you
to read carefully this entire prospectus including the “Risk Factors”
section and the consolidated financial statements and related notes
incorporated by reference herein. As used in this prospectus, unless
otherwise indicated, “CSX”, “the Company”, “we”, “our” and “us” are used
interchangeably to refer to CSX Corporation or to CSX Corporation and its
consolidated subsidiaries, as appropriate to the context.
CSX
Corporation
CSX,
based in Jacksonville, Florida, is one of the nation’s leading
transportation companies. CSX’s rail and intermodal businesses provide
rail-based transportation services including traditional rail service and
the transport of intermodal containers and trailers.
CSX’s
principal operating company, CSX Transportation, Inc. (“CSXT”), operates a
rail network of approximately 21,000 miles and serves major population
centers in 23 states, the District of Columbia and the Canadian provinces
of Ontario and Quebec.
In
addition to CSXT, CSX’s rail business includes Total Distribution
Services, Inc. (“TDSI”), Transflo Terminal Services, Inc. (“Transflo”),
CSX Technology, Inc. (“CSX Technology”) and other subsidiaries. TDSI
serves the automotive industry with distribution centers and storage
locations, while Transflo provides logistical solutions for transferring
products from rail to trucks. CSX Technology and other subsidiaries
provide support services for CSX. CSX Intermodal Inc is a stand-alone,
integrated intermodal transportation provider linking customers to
railroads via trucks and terminals.
CSX’s
other holdings include CSX Real Property, Inc., a subsidiary responsible
for CSX’s real estate sales, leasing, acquisition and management and
development activities.
Our
principal executive offices are located at 500 Water Street, 15th Floor,
Jacksonville, Florida 32202, and our telephone number is (904) 359-3200.
Our website home page on the Internet is www.csx.com. We
make our website content available for information purposes only. It
should not be relied upon for investment purposes, nor is it incorporated
by reference into this prospectus.
1
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Summary
of the Terms of the Exchange Offer
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Background
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On
March 24, 2010, we completed private offers to exchange certain of our
outstanding debt securities for $660,000,000 aggregate principal amount of
the Original Notes. In connection with the private offers to
exchange, we entered into a registration rights agreement (the
“Registration rights Agreement”) in which we agreed, among other things,
to complete an exchange offer (the “Exchange Offer”).
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| The Exchange Offer |
We
are offering to exchange our Exchange Notes which have been registered
under the Securities Act for a like principal amount of our outstanding,
unregistered Original Notes. Original Notes may only be
tendered in an amount equal to $2,000 in principal amount or in integral
multiples of $1,000 in excess thereof. See “The Exchange
Offer—Terms of the Exchange”.
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| Resale of Exchange Notes | Based upon the position of the staff of the SEC as described in previous no-action letters, we believe that Exchange Notes issued pursuant to the Exchange Offer in exchange for Original Notes may be offered for resale, resold and otherwise transferred by you without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that you will acknowledge that: | |
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you
are acquiring the Exchange Notes in the ordinary course of your
business;
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you
have not participated in, do not intend to participate in, and have no
arrangement or understanding with any person to participate in a
distribution of the Exchange Notes; and
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you
are not our “affiliate” as defined under Rule 405 of the Securities
Act.
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We
do not intend to apply for listing of the Exchange Notes on any securities
exchange or to seek approval for quotation through an automated quotation
system. Accordingly, there can be no assurance that an active
market will develop upon completion of the Exchange Offer or, if
developed, that such market will be sustained or as to the liquidity of
any market.
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Each
broker-dealer that receives Exchange Notes for its own account in exchange
for Original Notes, where such Original Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in
connection with any resale of Exchange Notes during the 180 days after the
expiration of this Exchange Offer. See “Plan of
Distribution”.
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Consequences
If You Do Not Exchange Your Original Notes
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Original
Notes that are not tendered in the Exchange Offer or are not accepted for
exchange will continue to bear legends restricting their
transfer. You will not be able to offer or sell such Original
Notes unless:
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you
are able to rely on an exemption from the requirements of the Securities
Act; or
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the
Original Notes are registered under the Securities Act.
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After
the Exchange Offer is closed, we will no longer have an obligation to
register the Original Notes, except under limited
circumstances. To the extent that Original Notes are tendered
and accepted in the Exchange Offer, the trading market for any remaining
Original Notes will be adversely affected. See “Risk Factors—If
you fail to exchange your Original Notes, they will continue to be
restricted securities and may become less liquid”.
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Expiration
Date
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The
Exchange Offer will expire at 11:59 p.m., New York City time, on
,
unless we extend the Exchange Offer. See “The Exchange
Offer—Expiration Date; Extensions; Amendments”.
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Issuance
of Exchange Notes
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We
will issue Exchange Notes in exchange for Original Notes tendered and
accepted in the Exchange Offer promptly following the Expiration Date
(unless amended as described in this prospectus). See “The
Exchange Offer—Terms of the Exchange”.
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Certain
Conditions to the Exchange Offer
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The
Exchange Offer is subject to certain customary conditions, which we may
amend or waive. The Exchange Offer is not conditioned upon any
minimum principal amount of outstanding notes being
tendered. See “The Exchange Offer—Conditions to the Exchange
Offer”.
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Special
Procedures for Beneficial Holders
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If
you beneficially own Original Notes which are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee and you
wish to tender in the Exchange Offer, you should contact the registered
holder promptly and instruct such person to tender on your
behalf. If you wish to tender in the Exchange Offer on your own
behalf, you must, prior to completing and executing the letter of
transmittal and delivering your Original Notes, either arrange to have the
Original Notes registered in your name or obtain a properly completed bond
power from the registered holder. The transfer of registered
ownership may take a considerable amount of time. See “The
Exchange Offer—Procedures for Tendering”.
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Withdrawal
Rights
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You
may withdraw your tender of Original Notes at any time before the exchange
offer expires. See “The Exchange Offer—Withdrawal of
Tenders”.
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| Accounting Treatment | We will not recognize any gain or loss for accounting purposes upon the completion of the Exchange Offer. The payment to bondholders for the Exchange Offer will increase deferred financing costs but payments made to other third parties will be expensed as incurred in accordance with generally accepted accounting principles. See “The Exchange Offer—Accounting Treatment”. |
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U.S.
Federal Income Tax Consequences
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The
exchange pursuant to the Exchange Offer generally will not be a taxable
event for U.S. federal income tax purposes. See “Material
United States Federal Income Tax Considerations”.
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Use
of
Proceeds
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We
will not receive any proceeds from the exchange or the issuance of
Exchange Notes in connection with the Exchange Offer.
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Exchange
Agent
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The
Bank of New York Mellon Trust Company, N.A. is serving as exchange agent
in connection with the Exchange Offer.
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Summary
of the Terms of the Exchange Notes
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The following summary contains
basic information about the Notes, and is not intended to be
complete. For a more complete understanding of the Notes,
please refer to the section entitled “Description of Notes” in this
prospectus. Other than the restrictions on transfer and
registration rights and special interest provisions, the Exchange Notes
will have the same financial terms and covenants as the Original Notes,
which are as follows:
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Issuer
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CSX
Corporation, a Virginia corporation.
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Securities
Offered
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$660,000,000
aggregate principal amount of 6.220% senior notes due April 30,
2040.
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Maturity
Date
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April
30, 2040.
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Interest
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The
Notes will bear interest at the rate of 6.220% from the most recent date
to which interest on the Original Notes has been paid or, if no interest
has been paid on the Original Notes, from March 24,
2010. Interest is payable semiannually on April 30 and October
30 of each year, beginning on October 30, 2010.
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Ranking
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The
Notes will be our direct, unsecured and unsubordinated obligations and
will rank equally in right of payment with all of our other existing and
future unsecured and unsubordinated indebtedness. The Notes will be
effectively subordinated to existing and future indebtedness and other
liabilities of our subsidiaries and to any of our existing and future
secured indebtedness.
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Optional
Redemption
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We
may redeem the Notes at any time at our option, in whole or in part, at a
redemption price equal to 100% of the principal amount plus a “make-whole”
premium. See “Description of Notes—Optional
Redemption”.
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Certain
Covenants
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The
indenture governing the Notes (the “Indenture”) contains covenants
restricting our ability, with certain exceptions, to:
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incur
debt secured by liens on any principal subsidiary; and
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consolidate
with, merge into or transfer our assets substantially as an entirety to,
another person.
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See
“Description of Notes—Limitation on Liens on Stock of CSXT” and
“Description of Notes—Consolidation, Merger and Sale of
Assets”.
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Events
of
Default
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For
a discussion of events that will permit acceleration of the payment of the
principal of and accrued interest on the Notes, see “Description of
Notes—Events of Default”.
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Listing
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We
do not intend to list the Notes on any securities
exchange.
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Use
of Proceeds
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We
will not receive any proceeds from the Exchange Offer. See “Use
of Proceeds”.
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Book-Entry
Depository
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The
Depositary Trust Company (“DTC”)
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Trustee,
registrar and transfer agent
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The
Bank of New York Mellon Trust Company, N.A.
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| 4 | ||
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Governing
law
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State
of New York.
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Risk
Factors
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You
should consider carefully all of the information set forth in this
prospectus and, in particular, should evaluate the specific factors set
forth in the section entitled “Risk Factors” for an explanation of certain
risks of participating in the Exchange Offer.
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| 5 | |
You
should carefully consider the following risks relating to the Exchange Offer and
the Notes, together with the risks and uncertainties discussed under
“Forward-Looking Statements” and the other information included or incorporated
by reference in this prospectus, including the information under the heading
“Risk Factors” in our annual report on Form 10-K for the fiscal year ended
December 25, 2009 and our quarterly report on Form 10-Q for the fiscal quarter
ended March 26, 2010, before deciding whether to participate in the Exchange
Offer. Additional risks and uncertainties not currently known to the
Company, or that the Company currently does not deem material also may
materially impair the Company’s financial condition, results of operations or
liquidity.
Risks
Relating to the Exchange Offer
If
you fail to exchange your Original Notes, they will continue to be restricted
securities and may become less liquid.
Original
Notes that you do not tender or we do not accept will, following the Exchange
Offer, continue to be restricted securities, and you may not offer to sell them
except pursuant to an exemption from, or in a transaction not subject to, the
Securities Act and applicable state securities law. We will issue
Exchange Notes in exchange for the Original Notes pursuant to the Exchange Offer
only following the satisfaction of the procedures and conditions set forth in
“The Exchange Offer—Procedures for Tendering”. These procedures and
conditions include timely receipt by the Exchange Agent of such Original Notes
(or a confirmation of book-entry transfer) and of a properly completed and duly
executed letter of transmittal (or an agent’s message from DTC).
Because
we anticipate that most holders of Original Notes will elect to exchange their
Original Notes, we expect that the liquidity of the market for any Original
Notes remaining after the completion of the Exchange Offer will be substantially
limited. Any Original Notes tendered and exchanged in the Exchange
Offer will reduce the aggregate principal amount of the Original Notes
outstanding. Following the Exchange Offer, if you do not tender your
Original Notes you generally will not have any further registration rights, and
your Original Notes will continue to be subject to certain transfer
restrictions. Accordingly, the liquidity of the market for the
Original Notes could be adversely affected.
If
an active trading market does not develop for the Exchange Notes, you may be
unable to sell the Exchange Notes or to sell them at a price you deem
sufficient.
The
Exchange Notes are a new issue of securities for which there is currently no
public trading market. We do not intend to list the Exchange Notes on
any national securities exchange or automated quotation
system. Accordingly, there can be no assurances that an active market
will develop upon completion of the Exchange Offer or, if it develops, that such
market will be sustained, or as to the liquidity of any market. If an
active market does not develop or is not sustained, the market price and the
liquidity of the Exchange Notes may be adversely affected. In
addition, the liquidity of the trading market for the Exchange Notes, if it
develops, and the market price quoted for the Exchange Notes, may be adversely
affected by changes in the overall market for those securities and by changes in
our financial performance or prospects or in the prospects for companies in our
industry generally.
6
This
Exchange Offer is intended to satisfy our obligations under the Registration
Rights Agreement entered into in connection with the issuance of the Original
Notes. We will not receive any cash proceeds from the issuance of the
Exchange Notes in the Exchange Offer.
In
consideration for issuing the Exchange Notes as contemplated by this prospectus,
we will receive the Original Notes in like principal amount. The
Original Notes surrendered and exchanged for the Exchange Notes will be retired
and canceled and cannot be reissued.
7
CSX’s
consolidated ratio of earnings to fixed charges for each of the fiscal periods
indicated is as follows:
|
For
the Fiscal
Quarter Ended |
For the Fiscal Years
Ended
|
|||||||
|
Mar.
26, 2010
|
Mar.
27, 2009
|
Dec.
25, 2009
|
Dec.
26, 2008
|
Dec.
28, 2007
|
Dec.
29, 2006
|
Dec.
30, 2005
|
||
|
Ratio
of earnings to fixed charges
|
4.3x
|
3.5x
|
3.9x
|
5.1x
|
5.1x
|
5.0x
|
3.0x
|
|
For
purposes of computing the ratio of earnings to fixed charges, earnings represent
earnings from operations before income taxes plus interest expense related to
indebtedness, amortization of debt discount and the interest portion of fixed
rent expense, less undistributed earnings of affiliates accounted for using the
equity method. Fixed charges include interest on indebtedness (whether expensed
or capitalized), amortization of debt discount and the interest portion of fixed
rent expense.
8
The
following consolidated selected financial data and significant events should be
read in conjunction with “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” contained in our Annual Report on Form 10-K
for the fiscal year ended December 25, 2009, and in our Quarterly Report on Form
10-Q for the fiscal quarter ended March 26, 2010, and the consolidated financial
statements and related notes of CSX Corporation incorporated by reference
herein. The consolidated selected financial data as of December 30,
2005, December 29, 2006, December 28, 2007, December 26, 2008 and December 25,
2009 and for the fiscal years then ended were derived from the audited
consolidated financial statements and notes thereto of CSX
Corporation. The consolidated selected financial data as of March 26,
2009 and March 26, 2010 and the fiscal quarters then ended were derived from the
unaudited condensed consolidated financial statements of CSX Corporation, which
contain all normal recurring adjustments necessary, in the opinion of
management, to summarize the financial position and results of operations for
the periods presented. You should not regard the results of
operations for the fiscal quarter ended March 26, 2010, to be indicative of the
results that may be expected for the full fiscal year.
|
Fiscal Years
|
First Quarters
|
|||||||||||||||||||||||||||
|
(Dollars in Millions, Except
Per Share Amounts and Employee Data)
|
2009
|
2008
|
2007
|
2006
|
2005
|
2010
|
2009
|
|||||||||||||||||||||
|
Earnings
From Continuing Operations
|
||||||||||||||||||||||||||||
|
Operating
Revenue
|
$ | 9,041 | $ | 11,255 | $ | 10,030 | $ | 9,566 | $ | 8,618 | $ | 2,491 | $ | 2,247 | ||||||||||||||
|
Operating
Expense
|
6,756 | 8,487 | 7,770 | 7,417 | 7,062 | 1,857 | 1,725 | |||||||||||||||||||||
|
Operating
Income
|
$ | 2,285 | $ | 2,768 | $ | 2,260 | $ | 2,149 | $ | 1,556 | $ | 634 | $ | 522 | ||||||||||||||
|
Earnings
from Continuing Operations (a)
|
$ | 1,137 | $ | 1,495 | $ | 1,236 | $ | 1,318 | $ | 716 | $ | 306 | $ | 254 | ||||||||||||||
|
Earnings
Per Share: (a)
|
||||||||||||||||||||||||||||
|
From
Continuing Operations
|
$ | 2.90 | $ | 3.73 | $ | 2.88 | $ | 3.00 | $ | 1.66 | $ | 0.78 | $ | 0.65 | ||||||||||||||
|
From
Continuing Operations, Assuming Dilution
|
2.87 | 3.66 | 2.77 | 2.84 | 1.58 | 0.78 | 0.64 | |||||||||||||||||||||
|
Financial
Position
|
||||||||||||||||||||||||||||
|
Cash,
Cash Equivalents and Short-Term Investments
|
$ | 1,090 | $ | 745 | $ | 714 | $ | 900 | $ | 602 | $ | 1,050 | $ | 1,090 | ||||||||||||||
|
Total
Assets
|
27,036 | 26,288 | 25,534 | 25,129 | 24,232 | 27,193 | 27,036 | |||||||||||||||||||||
|
Long-term
Debt
|
7,895 | 7,512 | 6,470 | 5,362 | 5,093 | 7,989 | 8,008 | |||||||||||||||||||||
|
Shareholders’
Equity (b)
|
8,860 | 8,068 | 8,706 | 9,031 | 8,022 | 8,885 | 8,860 | |||||||||||||||||||||
|
Other
Data Per Common Share
|
||||||||||||||||||||||||||||
|
Dividend
Per Share
|
$ | 0.88 | $ | 0.77 | $ | 0.54 | $ | 0.33 | $ | 0.215 | $ | 0.24 | $ | 0.22 | ||||||||||||||
|
Employees—Annual
Averages
|
||||||||||||||||||||||||||||
|
Rail
|
28,572 | 31,664 | 32,477 | 32,987 | 32,033 | 27,830 | 29,610 | |||||||||||||||||||||
|
Other
|
1,516 | 2,699 | 2,966 | 3,018 | 3,076 | 1,480 | 1,565 | |||||||||||||||||||||
|
Total
|
30,088 | 34,363 | 35,443 | 36,005 | 35,109 | 29,310 | 31,175 | |||||||||||||||||||||
(a) Prior year
amounts have been reclassified to reflect discontinued
operations. For further information, see Note 14, Discontinued
Operations, to our audited consolidated financial statements as of December 25,
2009, included in Item 8 of our Annual Report on Form 10-K for the fiscal year
ended December 25, 2009.
(b) Prior year amounts have been
reclassified to reflect noncontrolling interest as a component of Shareholders’
Equity. For further information, see New Accounting Pronouncements in
Note 1, Nature of Operations and Significant Accounting Policies, to our audited
consolidated financial statements as of December 25, 2009, included in Item 8 of
our Annual Report on Form 10-K for the fiscal year ended December 25,
2009.
9
Significant
Events
|
2008
|
—Recorded
a non-cash adjustment to income of $30 million pre-tax, or $19 million
after-tax, to correct equity earnings from a non-consolidated
subsidiary.
|
|
2006
|
—Two-for-one
split of the Company’s common stock effective 2006. All periods
have been retroactively restated to reflect the stock
split.
|
|
—Recognized
gains of $168 million pre-tax, or $104 million after-tax, on insurance
recoveries from claims related to Hurricane Katrina.
|
|
|
—Recognized
an income tax benefit of $151 million primarily related to the resolution
of certain tax matters, including resolution of ordinary course federal
income tax audits for 1994 – 1998.
|
|
|
—Recognized
a $26 million after-tax non-cash gain on additional Conrail property
received.
|
|
|
2005
|
—Recognized
a charge of $192 million pre-tax, or $123 million after-tax, to repurchase
$1.0 billion of outstanding debt, for costs of the increase in current
market value above original issue value. (See Note 9, Debt and
Credit Agreements.)
|
|
—Recognized
an income tax benefit of $71 million for the Ohio legislative change to
gradually eliminate its corporate franchise
tax.
|
10
Set forth
below is a description of the specific terms of the Notes. This description does
not purport to be complete and is subject to, and is qualified in its entirety
by reference to, all the provisions of the Indenture (as defined herein).
Capitalized terms used in this Description of Notes that are not defined in this
prospectus have the meanings given to them in the Indenture. When used in this
section, the terms “CSX”, “we”, “our” and “us” refer solely to CSX Corporation
and not to our consolidated subsidiaries. Unless the context otherwise requires,
references in this “Description of Notes” include the Original Notes issued
pursuant to private offers to exchange certain outstanding debt securities that
were not subject to the Securities Act and the Exchange Notes offered hereby
which have been registered under the Securities Act.
General
The
Original Notes were and the Exchange Notes will be issued under a senior
indenture dated as of August 1, 1990 between CSX and The Bank of New York
Mellon Trust Company, N.A. (as successor to The Bank of New York Mellon,
formerly The Bank of New York, as successor to JPMorgan Chase Bank, N.A.,
formerly The Chase Manhattan Bank), as trustee (the “Trustee”), as supplemented
by the First Supplemental Indenture dated June 15, 1991, the Second Supplemental
Indenture dated May 6, 1997, the Third Supplemental Indenture dated April 22,
1998, the Fourth Supplemental Indenture dated October 30, 2001, the Fifth
Supplemental Indenture dated October 27, 2003, the Sixth Supplemental Indenture
dated September 23, 2004, the Seventh Supplemental Indenture dated April 25,
2007 and the Eighth Supplemental Indenture dated March 24, 2010 (as
supplemented, the “Indenture”).
Any
Original Notes that remain outstanding after completion of the Exchange Offer,
together with the Exchange Notes issued in the Exchange Offer, will be treated
as a single class of securities under the Indenture.
The Notes
are limited in aggregate principal amount to $660,000,000. The Notes will be
issued in fully registered form only, in denominations of $2,000 and integral
multiples of $1,000 in excess thereof, and will mature on April 30, 2040. The
Notes will be issued as a series of senior debt securities under the Indenture.
The Indenture does not limit the amount of other debt that CSX may incur. CSX
may, from time to time, without the consent of the holders of the Notes, issue
other debt securities under the Indenture in addition to the Notes. CSX may
also, from time to time, without the consent of the holders, issue additional
debt securities having the same ranking and the same interest rate, maturity and
other terms as the Notes. Any additional debt securities having those similar
terms, together with the Notes, will constitute a single series of debt
securities under the Indenture if such additional debt securities are fungible
with the Notes for U.S. federal income tax purposes.
The Notes
will bear interest from March 24, 2010, at the rate of 6.220% per annum, payable
semiannually on April 30 and October 30 of each year, commencing October 30,
2010, to the persons in whose names the Notes are registered at the close of
business on the immediately preceding April 15 and October 15, respectively,
whether or not that day is a business day.
The Notes
will be unsecured obligations of CSX and will rank pari passu with all other
unsecured and unsubordinated indebtedness of CSX.
The Notes
do not provide for any sinking fund.
The
Indenture does not contain any provisions that may afford you protection in the
event of a highly leveraged transaction or other transaction that may occur in
connection with a change of control of CSX. Additionally, the Indenture does not
restrict our ability to incur additional indebtedness or otherwise affect
changes in our capital structure.
Ranking
of the Notes; Holding Company Structure
The Notes
will be unsecured unsubordinated obligations of CSX and will rank on a parity in
right of payment with all other unsecured and unsubordinated indebtedness of
CSX.
11
The Notes
are obligations exclusively of CSX. CSX is a holding company, substantially all
of whose consolidated assets are held by our subsidiaries. Accordingly, the cash
flow of CSX and the consequent ability to service our debt, including the Notes,
are largely dependent upon the earnings of those subsidiaries.
Because
CSX is a holding company, the Notes issued by CSX will be effectively
subordinated to all existing and future indebtedness, trade payables,
guarantees, lease obligations and letter of credit obligations of CSX’s
subsidiaries. Therefore, CSX’s rights and the rights of our creditors, including
the holders of the Notes, to participate in the assets of any subsidiary upon
the latter’s liquidation or reorganization will be subject to the prior claims
of that subsidiary’s creditors, except to the extent that CSX may itself be a
creditor with recognized claims against the subsidiary, in which case the claims
of CSX would still be effectively subordinate to any security interest in, or
mortgages or other liens on, the assets of that subsidiary and would be
subordinate to any indebtedness of that subsidiary senior to that held by CSX.
Although certain debt instruments to which CSX and our subsidiaries are parties
impose limitations on the incurrence of additional indebtedness, both CSX and
our subsidiaries retain the ability to incur substantial additional indebtedness
and lease and letter of credit obligations.
Limitation
on Liens on Stock of CSXT
The
Indenture provides that neither CSX nor any of our subsidiaries may create or
permit any lien of any kind upon any stock or indebtedness, whether owned on the
date of the Indenture or acquired later, of any principal subsidiary, to secure
any obligation (other than senior debt securities) of CSX, any subsidiary or any
other person, unless all of the outstanding senior debt securities (and other
outstanding debt securities issued from time to time pursuant to the Indenture)
will be directly secured equally and ratably with that obligation. This
provision does not restrict any other property of CSX or our subsidiaries. The
Indenture defines “obligation” as indebtedness for money borrowed or
indebtedness evidenced by a bond, note, debenture or other evidence of
indebtedness; “principal subsidiary” as CSXT; and “subsidiary” as a corporation
a majority of the outstanding voting stock of which is owned, directly or
indirectly, by CSX or one or more subsidiaries, or by CSX and one or more
subsidiaries. The Indenture does not prohibit the sale by CSX or any subsidiary
of any stock or indebtedness of any subsidiary, including any principal
subsidiary.
Optional
Redemption
The Notes
will be redeemable, in whole or in part, at our option at any time. The
redemption price for the Notes to be redeemed will equal the greater of the
following amounts, plus, in each case, accrued interest to the redemption
date:
|
●
|
100%
of the principal amount of such Notes;
or
|
|
●
|
As
determined by the Independent Investment Banker (as defined below), the
sum of the present values of the remaining scheduled payments of principal
and interest on the Notes (not including any portion of any payments of
interest accrued as of the redemption date) discounted to the redemption
date on a semiannual basis at the Adjusted Treasury Rate (as defined
below) plus 25 basis points.
|
The
redemption price will be calculated assuming a 360-day year consisting of twelve
30-day months.
“Adjusted
Treasury Rate” means, with respect to any redemption date:
|
●
|
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 U.S. 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 remaining
term of the Notes, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue will be determined and the
Adjusted Treasury Rate will be interpolated or extrapolated from such
yields on a straight line basis, rounding to the nearest month);
or
|
12
|
●
|
If
that release (or any successor release) is not published during the week
preceding the calculation date or does not contain those yields, the rate
per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of the principal amount) equal to the
Comparable Treasury Price for that redemption
date.
|
The
Adjusted Treasury Rate will be calculated on the third business day preceding
the redemption date.
“Comparable
Treasury Issue” means the U.S. Treasury security selected by the Independent
Investment Banker as having a maturity comparable to the remaining term of the
Notes to be redeemed 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 comparable maturity to the remaining term of those
Notes.
“Comparable
Treasury Price” means, with respect to any redemption date, (A) the average of
five Reference Treasury Dealer Quotations for that redemption date, after
excluding the highest and lowest of those Reference Treasury Dealer Quotations,
or (B) if the Independent Investment Banker obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all of those
quotations.
“Independent
Investment Banker” means Credit Suisse Securities (USA) LLC and its successors,
or if they are unwilling or unable to serve in that capacity, an independent
investment and banking institution of national standing appointed by
us.
“Reference
Treasury Dealer” means:
|
●
|
Credit
Suisse Securities (USA) LLC and its successors; provided that, if they
cease to be a primary U.S. Government securities dealer in the U.S.
(“Primary Treasury Dealer”), we will substitute another Primary Treasury
Dealer; and
|
|
●
|
Up
to four other Primary Treasury Dealers selected by
us.
|
“Reference
Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by the Independent
Investment Banker, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Independent Investment Banker by such Reference Treasury Dealer
at 5:00 p.m. (New York City time) on the third business day preceding that
redemption date.
We will
mail notice of any redemption at least 30 days but not more than 60 days before
the redemption date to each holder of the Notes to be redeemed. If we elect to
partially redeem the Notes, the Trustee will select in a fair and appropriate
manner the Notes to be redeemed.
Unless we
default in payment of the redemption price, on and after the redemption date
interest will cease to accrue on the Notes or portions of the Notes called for
redemption.
Consolidation,
Merger and Sale of Assets
The
Indenture provides that CSX may, without the consent of the holders of any of
the outstanding debt securities of a series (including the Notes), consolidate
with, merge into or transfer our assets substantially as an entirety to any
corporation organized under the laws of any domestic or foreign jurisdiction,
provided that:
|
●
|
the
successor corporation assumes, by a supplemental indenture, CSX’s
obligations on the debt securities of each series and under the
Indenture;
|
|
●
|
after
giving effect to the transaction, no event of default, and no event which,
after notice or lapse of time, or both, would become an event of default
will have occurred and be continuing;
and
|
13
|
●
|
CSX
delivers to the Trustee an officer’s certificate and an opinion of counsel
each stating that the transaction and supplemental indenture, if any,
comply with the applicable article of the Indenture and that all
conditions precedent in the Indenture relating to the transaction have
been complied with.
|
Events
of Default
An “event
of default” with respect to the Notes is defined in the Indenture
as:
|
●
|
a
failure to pay principal of or any premium on any of the Notes when
due;
|
|
●
|
a
failure to pay any interest on any Notes when due, continued for 30
days;
|
|
●
|
a
failure to perform any other covenant of CSX in the Indenture (other than
a covenant included in the Indenture solely for the benefit of a series of
debt securities other than the Notes) continued for 90 days after written
notice as provided in the Indenture;
or
|
|
●
|
certain
events of bankruptcy, insolvency or reorganization of
CSX.
|
No event
of default with respect to any particular series of debt securities necessarily
constitutes an event of default with respect to any other series of debt
securities. The Indenture provides that the Trustee may withhold notice to the
holders of the Notes of the occurrence of a default with respect to the Notes
(except a default in payment of principal, premium, if any, interest, if any) if
the Trustee considers it in the interest of the holders to do so.
Subject
to the provisions of the Trust Indenture Act requiring the Trustee, during an
event of default under the Indenture, to act with the requisite standard of
care, and to the provisions of the Indenture relating to the duties of the
Trustee in case an event of default occurs and is continuing, the Trustee will
be under no obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the holders of Notes unless
those holders offer to the Trustee reasonable indemnity. Subject to the
provisions for the indemnification of the Trustee, the holders of a majority in
aggregate principal amount of the outstanding Notes will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Notes.
If an
event of default with respect to the Notes at the time outstanding occurs and is
continuing, either the Trustee or the holders of at least 25% in aggregate
principal amount of the Notes may declare the principal of all the outstanding
Notes to be due and payable immediately. At any time after a declaration of
acceleration with respect to the Notes has been made but before a judgment or
decree for payment of money due has been obtained by the Trustee, the holders of
a majority in aggregate principal amount of the outstanding Notes may rescind
any declaration of acceleration and its consequences, if all payments due (other
than those due as a result of acceleration) have been made and all events of
default have been cured or waived.
No holder
of any Notes will have any right to institute any proceeding with respect to the
Indenture or for any remedy under the Indenture, unless that holder has
previously given to the Trustee written notice of a continuing event of default
with respect to the Notes, the holders of at least 25% in aggregate principal
amount of the outstanding Notes have made written request, and offered
reasonable indemnity, to the Trustee to institute the proceeding as Trustee, and
the Trustee has not received from the holders of a majority in aggregate
principal amount of the outstanding Notes a direction inconsistent with that
request and has failed to institute the proceeding within 60 days. However,
these limitations do not apply to a suit instituted by a holder of outstanding
Notes for enforcement of payment of the principal of, or any premium or interest
on, such Notes on or after the respective due dates.
CSX is
required to furnish to the Trustee annually a statement as to performance or
fulfillment of covenants, agreements or conditions in the Indenture and as to
the absence of default.
14
Meetings,
Modification and Waiver
The
Indenture contains provisions permitting CSX and the Trustee, with the consent
of the holders of not less than a majority in aggregate principal amount of the
outstanding Notes issued under the Indenture and affected by a modification or
amendment (voting as one class), to modify or amend any of the provisions of the
Indenture or of the Notes or the rights of the holders of the Notes under the
Indenture, provided that no modification or amendment will, without the consent
of each holder of outstanding Notes affected by that modification or
amendment:
|
●
|
change
the stated maturity of the principal of, or any installment of principal
of or interest on, the Notes, or reduce the principal amount of or the
rate of interest on or any premium payable upon the redemption of the
Notes, or change any obligation of CSX to pay additional amounts (except
as contemplated and permitted by the Indenture), or change the coin or
currency in which the Notes or any premium or interest on the Notes is
payable, or impair the right to institute suit for the enforcement of any
payment on or after the stated maturity of the Notes (or, in the case of
redemption, on or after the redemption
date);
|
|
●
|
reduce
the percentage in principal amount of the Notes, the consent of the
holders of which is required for any modification or amendment or the
consent of whose holders is required for any waiver (of compliance with
certain provisions of the Indenture or certain defaults under the
Indenture and their consequences) or reduce the requirements for a quorum
or voting at a meeting of holders of the
Notes;
|
|
●
|
change
any obligation of CSX to maintain an office or agency in the places and
for the purposes required by the Indenture;
or
|
|
●
|
modify
any of the above provisions (except as permitted by the
Indenture).
|
The
Indenture also contains provisions permitting CSX and the Trustee, without the
consent of the holders of the Notes issued under the Indenture, to modify or
amend the Indenture in order, among other things:
|
●
|
to
add any additional events of default or add to the covenants of CSX for
the benefit of the holders of the
Notes;
|
|
●
|
to
establish the form or terms of debt securities of any
series;
|
|
●
|
to
cure any ambiguity, to correct or supplement any provision in the
Indenture which may be inconsistent with any other provision in the
Indenture, or to make any other provisions with respect to matters or
questions arising under the Indenture which will not adversely affect the
interests of the holders of the Notes in any material respect;
or
|
|
●
|
to
change or eliminate any of the provisions of the Indenture, provided that
the change or elimination will become effective only when there is no debt
security outstanding of any series issued under the Indenture created
prior to the execution of the supplemental indenture which is entitled to
the benefit of that provision.
|
The
holders of at least a majority in aggregate principal amount of the outstanding
Notes may, on behalf of the holders of all the Notes, waive, insofar as the
Notes are concerned, compliance by CSX with certain restrictive provisions of
the Indenture, including the covenant described above under “—Limitation on
Liens on Stock of CSXT”. The holders of not less than a majority in aggregate
principal amount of the outstanding Notes may, on behalf of all holders of
Notes, waive any past default under the Indenture with respect to the Notes,
except a default (a) in the payment of principal of or any premium or
interest on any of the Notes or (b) in respect of a covenant or provision of the
Indenture which cannot be modified or amended without the consent of each holder
of the Notes affected.
15
The
Indenture provides that in determining whether the holders of the requisite
principal amount of the outstanding debt securities have given any request,
demand, authorization, direction, notice, consent or waiver under the Indenture
or are present at a meeting of holders of debt securities for quorum
purposes:
|
(1)
|
the
principal amount of an original issue discount debt security that will be
deemed to be outstanding will be the amount of the principal that would be
due and payable as of the date of the determination upon acceleration of
the maturity thereof;
|
|
(2)
|
the
principal amount of a debt security denominated in a foreign currency or
currency unit will be the U.S. dollar equivalent, determined as of the
date of original issuance of that debt security, of the principal amount
of that debt security or, in the case of an original issue discount debt
security, the U.S. dollar equivalent, determined as of the date of
original issuance of that debt security, of the amount determined as
provided in (1) above; and
|
|
(3)
|
any
debt security owned by CSX or any other obligor on that debt security or
any affiliate of CSX or other obligor will be deemed not to be
outstanding.
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The
Indenture contains provisions for convening meetings of the holders of debt
securities of any or all series. A meeting may be called at any time by the
Trustee, and also, upon request, by CSX or the holders of at least 10% in
aggregate principal amount of the outstanding debt securities of that series, in
each case upon notice given in accordance with the provisions of the Indenture.
Except for any consent which must be given by the holder of each outstanding
debt security that would be affected as described above, any resolution
presented at a meeting, or adjourned meeting duly reconvened, at which a quorum
(as described below) is present may be adopted by the affirmative vote of the
holders of a majority in principal amount of the outstanding debt securities of
that series; provided, however, that, except for any consent which must be given
by the holder of each outstanding debt security that would be affected, as
described above, any resolution with respect to any consent, waiver, request,
demand, notice, authorization, direction or other action which may be given by
the holders of not less than a specified percentage in principal amount of the
outstanding debt securities of a series may be adopted at a meeting, or an
adjourned meeting duly reconvened, at which a quorum is present only by the
affirmative vote of the holders of not less than the specified percentage in
principal amount of the outstanding debt securities of that series.
Any
resolution passed or action taken at any meeting of holders of debt securities
of any series duly held in accordance with the Indenture will be binding on all
holders of debt securities of that series and the related coupons. The quorum
required for any meeting called to adopt a resolution, and at any reconvened
meeting, will be persons holding or representing a majority in principal amount
of the outstanding debt securities of a series; provided, however, that if any
action is to be taken at that meeting with respect to a consent, waiver,
request, demand, notice, authorization, direction or other action which may be
given by the holders of not less than a specified percentage in principal amount
of the outstanding debt securities of a series, the persons holding or
representing that specified percentage in principal amount of the outstanding
debt securities of the series will constitute a quorum.
Discharge,
Defeasance and Covenant Defeasance
The
Indenture will generally cease to be of further effect with respect to any
series of debt securities (including the Notes) issued under the Indenture
specified by CSX (subject to the survival of certain provisions of the
Indenture) when:
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CSX
has delivered to the Trustee for cancellation all debt securities issued
under the Indenture; or
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all
debt securities issued under the Indenture not previously delivered to the
Trustee for cancellation have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year, and CSX has deposited with the Trustee as
trust funds the entire amount sufficient to pay and discharge at stated
maturity or upon redemption the entire indebtedness on all debt securities
issued under the Indenture
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(and if,
in either case, CSX has paid or caused to be paid all other sums payable under
the Indenture with respect to the debt securities of that series by CSX and CSX
has delivered an officer’s certificate and an opinion of counsel each stating
that the requisite conditions have been complied with).
16
In
addition, CSX may elect with respect to any series of debt securities (including
the Notes) either
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(1)
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to
defease and be discharged from any and all obligations with respect to
those debt securities (except as otherwise provided in the Indenture)
(“defeasance”); or
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(2)
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to
be released from our obligations with respect to those debt securities
described above under “—Limitation
on Liens on Stock of CSXT” and certain other restrictive covenants in the
Indenture (“covenant
defeasance”).
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If we exercise our defeasance option with respect to the Notes, payment of the
Notes may not be accelerated because of an event of default. If we exercise our
covenant defeasance option with respect to the Notes, payment of the Notes may
not be accelerated because of an event of default related to the covenants noted
under clause (2) of the immediately preceding paragraph. We may exercise our
defeasance option with respect to the Notes even though we may have previously
exercised our covenant defeasance option.
If CSX
effects covenant defeasance with respect to the Notes and the Notes are declared
due and payable because of the occurrence of any event of default other than an
event of default with respect to the covenant described above under “—Limitation
on Liens on Stock of CSXT” (which covenant would no longer be applicable to the
Notes after the covenant defeasance) or with respect to any other covenant as to
which there has been covenant defeasance, the amount of monies and/or government
obligations deposited with the Trustee to effect the covenant defeasance may not
be sufficient to pay amounts due on the Notes at the time of any acceleration
resulting from the event of default. However, we would remain liable to make
payment of those amounts due at the time of acceleration.
We may
exercise our defeasance option or our covenant defeasance option with respect to
Notes, only if:
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(1)
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CSX
irrevocably deposits in trust with the Trustee cash and/or U.S. government
obligations for the payment of principal, premium, if any, and interest
with respect to the Notes to maturity or redemption, as the case may be,
and we deliver to the Trustee a certificate from a nationally recognized
firm of independent public accountants expressing their opinion that the
payments of principal and interest when due and without reinvestment on
the deposited U.S. government obligations plus any deposited money without
investment will provide cash at the times and in the amounts as will be
sufficient to pay the principal, premium, if any, and interest when due
with respect to all of the Notes to maturity or redemption, as the case
may be,
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(2)
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no
event of default with respect to the Notes has occurred and is
continuing
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on
the date of the deposit, or
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with
respect to certain bankruptcy defaults, at any time during the period
ending on the 123rd day after the date of the
deposit,
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(3)
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the
defeasance or covenant defeasance does not result in the trust arising
from that deposit to constitute, unless it is qualified as, a regulated
investment company under the Investment Company Act of 1940, as
amended,
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(4)
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the
defeasance or covenant defeasance does not result in a breach or violation
of, or constitute a default under, the Indenture or any other agreement or
instrument to which we are a party or by which we are
bound,
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(5)
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CSX
delivers to the Trustee an opinion of counsel to the effect that the
holders of the Notes will not recognize income, gain or loss for United
States federal income tax purposes as a result of the defeasance or
covenant defeasance and will be subject to United States federal income
tax on the same amounts, in the same manner and at the same times as would
have been the case if the defeasance or covenant defeasance had not
occurred, and
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17
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(6)
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CSX
delivers to the Trustee an officer’s certificate and an opinion of
counsel, each stating that all conditions precedent to the defeasance and
discharge of the Notes as contemplated by the Indenture have been complied
with.
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The
opinion of counsel, with respect to defeasance, referred to in clause (5) above,
must refer to and be based upon a ruling of the Internal Revenue Service or a
change in applicable United States federal income tax law occurring after the
date of the Indenture.
The
Trustee must hold in trust cash or U.S. government obligations deposited with it
as described above and must apply the deposited cash and the proceeds from
deposited U.S. government obligations to the payment of principal, premium, if
any, and interest with respect to the Notes.
Governing
Law
The
Indenture and the Notes will be governed by, and construed in accordance with,
the laws of the State of New York.
Concerning
the Trustee
The Bank
of New York Mellon Trust Company, N.A. (as successor to The Bank of New York
Mellon, formerly The Bank of New York, as successor to JPMorgan Chase Bank,
N.A., formerly The Chase Manhattan Bank) acts as Trustee under the Indenture.
CSX and certain of our subsidiaries may from time to time maintain lines of
credit, and have other customary banking and commercial relationships with, the
Trustee and its affiliates.
The Trust
Indenture Act of 1939 contains limitations on the rights of the Trustee, should
it become a creditor of CSX, to obtain payment of claims in certain cases or to
realize on certain property received by it in respect of those claims, as
security or otherwise. The Trustee is permitted to engage in other transactions
with CSX and our subsidiaries from time to time, provided that if the Trustee
acquires any conflicting interest it must eliminate the conflict upon the
occurrence of an event of default under the Indenture, or else
resign.
18
Purpose
of the Exchange Offer
In
connection with the issuance of the Original Notes, we entered into a
Registration Rights Agreement with the dealer managers, under which we agreed to
file and to use our reasonable best efforts to have declared effective an
exchange offer registration statement under the Securities Act and to consummate
an Exchange Offer.
We are
making the Exchange Offer in reliance on the position of the SEC as set forth in
certain no-action letters. However, we have not sought our own
no-action letter. Based upon these interpretations by the SEC, we
believe that a holder of Exchange Notes who exchanges Original Notes for
Exchange Notes in the Exchange Offer generally may offer the Exchange Notes for
resale, sell the Exchange Notes and otherwise transfer the Exchange Notes
without further registration under the Securities Act and without delivery of a
prospectus that satisfies the requirements of Section 10 of the Securities
Act. This does not apply, however, to a holder who is our “affiliate”
within the meaning of Rule 405 of the Securities Act. We also believe
that a holder may offer, sell or transfer the Exchange Notes only if the holder
acknowledges that the holder is acquiring the Exchange Notes in the ordinary
course of its business and is not participating, does not intend to participate
and has no arrangement or understanding with any person to participate in a
distribution of the Exchange Notes.
Any
holder of the Original Notes using the Exchange Offer to participate in a
distribution of Exchange Notes cannot rely on the no-action letters referred to
above. Any broker-dealer who holds Original Notes acquired for its
own account as a result of market-making activities or other trading activities
and who receives Exchange Notes in exchange for such Original Notes pursuant to
the Exchange Offer may be a statutory underwriter and must deliver a prospectus
meeting the requirements of the Securities Act in connection with any resale of
such Exchange Notes. See “Plan of Distribution”.
Each
broker-dealer that receives Exchange Notes for its own account in exchange for
Original Notes, where such Original Notes were acquired by such broker-dealer as
a result of market-making activities or other trading activities, must
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Notes. See “Plan of Distribution”.
Except as
described above, this prospectus may not be used for an offer to resell, resale
or other transfer of Exchange Notes.
The
Exchange Offer is not being made to, nor will we accept tenders for exchange
from, holders of Original Notes in any jurisdiction in which the Exchange Offer
or the acceptance of it would not be in compliance with the securities or blue
sky laws of such jurisdiction.
Terms
of the Exchange
Upon the
terms and subject to the conditions of the Exchange Offer, we will accept any
and all Original Notes validly tendered prior to 11:59 p.m., New York time, on
the Expiration Date for the Exchange Offer. Promptly after the
Expiration Date (unless extended as described in this prospectus), we will issue
an aggregate principal amount of up to $660,000,000 of Exchange Notes for a like
principal amount of outstanding Original Notes tendered and accepted in
connection with the Exchange Offer. The Exchange Notes issued in
connection with the Exchange Offer will be delivered promptly after the
Expiration Date. Holders may tender some or all of their Original
Notes in connection with the Exchange Offer, but only in principal amounts of
$2,000 or in integral multiples of $1,000 in excess thereof.
The terms
of the Exchange Notes will be identical in all material respects to the terms of
the Original Notes, except that the Exchange Notes will have been registered
under the Securities Act and will be issued free from any covenant regarding
registration, including the payment of special interest upon a failure to file
or have declared effective an exchange offer registration statement or to
complete the Exchange Offer by certain dates. The Exchange Notes will
evidence the same debt as the Original Notes and will be issued under the same
Indenture and be entitled to the same benefits under that Indenture as the
Original Notes being exchanged. As of the date of this prospectus,
$660,000,000 in aggregate principal amount of the Original Notes are
outstanding.
19
In
connection with the issuance of the Original Notes, we arranged for the Original
Notes purchased by qualified institutional buyers and those sold in reliance on
Regulation S under the Securities Act to be issued and transferable in
book-entry form through the facilities of DTC, acting as
depositary. Except as described under “Book-Entry Notes”, Exchange
Notes will be issued in the form of a global note registered in the name of DTC
or its nominee and each beneficial owner’s interest in it will be transferable
in book-entry form through DTC. See “Book-Entry Notes”.
Holders
of Original Notes do not have any appraisal or dissenters’ rights in connection
with the Exchange Offer. Original Notes that are not tendered for
exchange or are tendered but not accepted in connection with the Exchange Offer
will remain outstanding and be entitled to the benefits of the Indenture, but
certain registration and other rights under the Registration Rights Agreement
will terminate and holders of the Original Notes will generally not be entitled
to any registration rights under the Registration Rights
Agreement. See “— Consequences of Failures to Properly Tender
Original Notes in the Exchange Offer”.
We shall
be considered to have accepted validly tendered Original Notes if and when we
have given oral (to be followed by prompt written notice) or written notice to
the Exchange Agent. The Exchange Agent will act as agent for the
tendering holders for the purposes of receiving the Exchange Notes from
us.
If any
tendered Original Notes are not accepted for exchange because of an invalid
tender, the occurrence of certain other events described in this prospectus or
otherwise, we will return the Original Notes, without expense, to the tendering
holder promptly after the Expiration Date for the Exchange Offer.
Holders
who tender Original Notes will not be required to pay brokerage commissions or
fees or, subject to the instructions in the letter of transmittal, transfer
taxes on exchange of Original Notes in connection with the Exchange
Offer. We will pay all charges and expenses, other than certain
applicable taxes described below, in connection with the exchange
offer. See “—Fees and Expenses”.
Expiration
Date; Extensions; Amendments
The
Expiration Date for the exchange offer is 11:59 p.m., New York City time,
on ,
unless extended by us in our sole discretion, in which case the term “Expiration
Date” shall mean the latest date and time to which the exchange offer is
extended.
We
reserve the right, in our sole discretion:
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to
delay accepting any Original Notes, to extend the Exchange Offer or to
terminate the Exchange Offer if, in our reasonable judgment, any of the
conditions described below shall not have been satisfied, by giving oral
(to be followed by prompt written notice) or written notice of the delay,
extension or termination to the Exchange Agent;
or
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to
amend the terms of the Exchange Offer in any
manner.
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If we
amend the Exchange Offer in a manner that we consider material, we will disclose
such amendment by means of a prospectus supplement, and we will extend the
Exchange Offer for a period of five to ten business days.
If we
determine to extend, amend or terminate the Exchange Offer, we will publicly
announce this determination by making a timely release through an appropriate
news agency.
If we
delay accepting any Original Notes or terminate the Exchange Offer, we promptly
will pay the consideration offered, or return any Original Notes deposited,
pursuant to the Exchange Offer as required by Rule 14e-1(c).
Interest
on the Exchange Notes
The
Exchange Notes will bear interest at the rate of 6.220% per annum from the most
recent date to which interest on the Original Notes has been paid or, if no
interest has been paid on such Original Notes, from March 24,
2010. Interest will be payable semiannually on April 30 and
October 30 of each year, commencing on October 30, 2010.
20
Conditions
to the Exchange Offer
Notwithstanding
any other provisions of the Exchange Offer, or any extension of the Exchange
Offer, we will not be required to accept for exchange, or to exchange any
Exchange Notes for, any Original Notes and we may terminate the Exchange Offer
or, at our option, modify, extend or otherwise amend the Exchange Offer, if any
of the following conditions exist on or prior to the Expiration
Date:
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no
action or event shall have occurred or been threatened, no action shall
have been taken, and no statute, rule, regulation, judgment, order, stay,
decree or injunction shall have been issued, promulgated, enacted,
entered, enforced or deemed to be applicable to the Exchange Offer or the
exchange of Original Notes for Exchange Notes under the Exchange Offer by
or before any court or governmental regulatory or administrative agency,
authority, instrumentality or tribunal, including, without limitation,
taxing authorities, that either:
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(a) challenges
the making of the Exchange Offer or the exchange of Original Notes for Exchange
Notes under the Exchange Offer or might, directly or indirectly, be expected to
prohibit, prevent, restrict or delay consummation of, or might otherwise
adversely affect in any material manner, the Exchange Offer or the exchange of
Original Notes for Exchange Notes under the Exchange Offer; or
(b) in
our reasonable judgment, could materially adversely affect our (or our
subsidiaries’) business, condition (financial or otherwise), income, operations,
properties, assets, liabilities or prospects or materially impair the
contemplated benefits to us of the Exchange Offer or the exchange of Original
Notes for Exchange Notes under the Exchange Offer;
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nothing
has occurred or may occur that would or might, in our reasonable judgment,
be expected to prohibit, prevent, restrict or delay the Exchange Offer or
impair our ability to realize the anticipated benefits of the Exchange
Offer;
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there
shall not have occurred (a) any general suspension of or limitation on
trading in securities in the United States securities or financial
markets, whether or not mandatory, (b) any material adverse change in the
prices of the Original Notes that are the subject of the Exchange Offer,
(c) a material impairment in the general trading market for debt
securities, (d) a declaration of a banking moratorium or any suspension of
payments in respect of banks by federal or state authorities in the United
States, whether or not mandatory, (e) a commencement of a war, armed
hostilities, a terrorist act or other national or international calamity
directly or indirectly relating to the United States, (f) any limitation,
whether or not mandatory, by any governmental authority on, or other event
having a reasonable likelihood of affecting, the extension of credit by
banks or other lending institutions in the United States, (g) any material
adverse change in the securities or financial markets in the United States
generally or (h) in the case of any of the foregoing existing at the time
of the commencement of the Exchange Offer, a material acceleration or
worsening thereof; and
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the
Trustee with respect to the Indenture for the Original Notes that are the
subject of the Exchange Offer and the Exchange Notes to be issued in the
Exchange Offer shall not have been directed by any holders of Original
Notes to object in any respect to, nor take any action that could, in our
reasonable judgment, adversely affect the consummation of the Exchange
Offer or the exchange of Original Notes for Exchange Notes under the
Exchange Offer, nor shall the Trustee have taken any action that
challenges the validity or effectiveness of the procedures used by us in
making the Exchange Offer or the exchange of Original Notes for Exchange
Notes under the Exchange Offer.
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The
foregoing conditions are for our sole benefit and may be waived by us, in whole
or in part, in our absolute discretion. Any determination made by us concerning
an event, development or circumstance described or referred to above will be
conclusive and binding.
21
If any of
the foregoing conditions are not satisfied, we may, at any time on or prior to
the Expiration Date:
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terminate
the Exchange Offer and promptly return all tendered Original Notes to the
respective tendering holders;
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modify,
extend or otherwise amend the Exchange Offer and retain all tendered
Original Notes until the Expiration Date, as extended, subject, however,
to the withdrawal rights of holders;
or
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waive
the unsatisfied conditions with respect to the Exchange Offer and accept
all Original Notes tendered and not previously validly
withdrawn.
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In
addition, subject to applicable law, we may in our absolute discretion terminate
the Exchange Offer for any other reason.
Effect
of Tender
Any
tender by a holder, and our subsequent acceptance of that tender, of Original
Notes will constitute a binding agreement between that holder and us upon the
terms and subject to the conditions of the Exchange Offer described in this
prospectus and in the letter of transmittal. The participation in the Exchange
Offer by a tendering holder of Original Notes will constitute the agreement by
that holder to deliver good and marketable title to the tendered Original Notes,
free and clear of any and all liens, restrictions, charges, pledges, security
interests, encumbrances or rights of any kind of third parties.
Absence
of Dissenters’ Rights
Holders
of the Original Notes do not have any appraisal or dissenters’ rights in
connection with the Exchange Offer.
Procedures
for Tendering
If you
wish to participate in the Exchange Offer and your Original Notes are held by a
custodial entity such as a bank, broker, dealer, trust company or other nominee,
you must instruct that custodial entity to tender your Original Notes on your
behalf pursuant to the procedures of that custodial entity. Please ensure you
contact your custodial entity as soon as possible to give them sufficient time
to meet your requested deadline.
To
participate in the Exchange Offer, you must either:
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complete,
sign and date a letter of transmittal, or a facsimile thereof, in
accordance with the instructions in the letter of transmittal, including
guaranteeing the signatures to the letter of transmittal, if required, and
mail or otherwise deliver the letter of transmittal or a facsimile
thereof, together with the certificates representing your Original Notes
specified in the letter of transmittal, to the Exchange Agent at the
address listed in the letter of transmittal, for receipt on or prior to
the Expiration Date; or
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comply
with the Automated Tender Offer Program (“ATOP”) procedures for book-entry
transfer described below on or prior to the Expiration
Date.
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The
Exchange Agent and DTC have confirmed that the Exchange Offer is eligible for
ATOP with respect to book-entry notes held through DTC. The letter of
transmittal, or a facsimile thereof, with any required signature guarantees, or,
in the case of book-entry transfer, an agent’s message in lieu of the letter of
transmittal, and any other required documents, must be transmitted to and
received by the Exchange Agent on or prior to the Expiration Date at its address
set forth below under the caption “Exchange Agent”. Original Notes will not be
deemed to have been tendered until the letter of transmittal and signature
guarantees, if any, or agent’s message, is received by the Exchange Agent. We
have not provided guaranteed delivery procedures in conjunction with the
Exchange Offer or under this prospectus.
The
tender by a holder of Original Notes will constitute an agreement between us and
the holder in accordance with the terms and subject to the conditions set forth
in this prospectus and in the letter of transmittal.
22
The
method of delivery of Original Notes, the letter of transmittal and all other
required documents to the Exchange Agent is at the election and risk of the
holders. Instead of delivery by mail, we recommend that holders use an overnight
or hand delivery service, properly insured. In all cases, sufficient time should
be allowed to assure delivery to and receipt by the Exchange Agent on or prior
to the Expiration Date. Do not
send the letter of transmittal or any Original Notes to anyone other than the
Exchange Agent.
If you
are tendering your Original Notes in exchange for Exchange Notes and anticipate
delivering your letter of transmittal and other documents other than through
DTC, we urge you to contact promptly a bank, broker or other intermediary that
has the capability to hold notes custodially through DTC to arrange for receipt
of any Original Notes to be delivered pursuant to the Exchange Offer and to
obtain the information necessary to provide the required DTC participant with
account information in the letter of transmittal.
If you
are a beneficial owner which holds Original Notes through Euroclear (as defined
herein) or Clearstream (as defined herein) and wish to tender your Original
Notes, you must instruct Euroclear or Clearstream, as the case may be, to block
the account in respect of the tendered Original Notes in accordance with the
procedures established by Euroclear or Clearstream. You are encouraged to
contact Euroclear and Clearstream directly to ascertain their procedure for
tendering Original Notes.
Book-Entry
Delivery Procedures for Tendering Original Notes Held with DTC
If you
wish to tender Original Notes held on your behalf by a nominee with DTC, you
must:
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inform
your nominee of your interest in tendering your Original Notes pursuant to
the Exchange Offer; and
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instruct
your nominee to tender all Original Notes you wish to be tendered in the
Exchange Offer into the Exchange Agent’s account at DTC on or prior to the
Expiration Date.
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Any
financial institution that is a nominee in DTC, including Euroclear and
Clearstream, must tender Original Notes by effecting a book-entry transfer of
Original Notes to be tendered in the Exchange Offer into the account of the
Exchange Agent at DTC by electronically transmitting its acceptance of the
Exchange Offer through the ATOP procedures for transfer. DTC will then verify
the acceptance, execute a book-entry delivery to the Exchange Agent’s account at
DTC and send an agent’s message to the Exchange Agent. An “agent’s message” is a
message, transmitted by DTC to, and received by, the Exchange Agent and forming
part of a book-entry confirmation, which states that DTC has received an express
acknowledgement from an organization that participates in DTC (a “participant”),
tendering Original Notes that the participant has received and agrees to be
bound by the terms of the letter of transmittal and that we may enforce the
agreement against the participant. A letter of transmittal need not accompany
tenders effected through ATOP.
Proper
Execution and Delivery of the Letter of Transmittal
Signatures
on a letter of transmittal or notice of withdrawal described under “—Withdrawal
of Tenders”, as the case may be, must be guaranteed by an eligible guarantor
institution unless the Original Notes tendered pursuant to the letter of
transmittal are tendered for the account of an eligible guarantor institution.
An “eligible guarantor institution” is one of the following firms or other
entities identified in Rule 17Ad-15 under the Exchange Act (as the terms are
used in Rule 17Ad-15):
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a
bank;
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a
broker, dealer, municipal securities dealer, municipal securities broker,
government securities dealer or government securities
broker;
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a
credit union;
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a
national securities exchange, registered securities association or
clearing agency; or
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23
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a
savings institution that is a participant in a Securities Transfer
Association recognized program.
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If
signatures on a letter of transmittal or notice of withdrawal are required to be
guaranteed, that guarantee must be made by an eligible institution.
If the
letter of transmittal is signed by the holders of Original Notes tendered
thereby, the signatures must correspond with the names as written on the face of
the Original Notes without any change whatsoever. If any of the Original Notes
tendered thereby are held by two or more holders, each holder must sign the
letter of transmittal. If any of the Original Notes tendered thereby are
registered in different names on different Original Notes, it will be necessary
to complete, sign and submit as many separate letters of transmittal, and any
accompanying documents, as there are different registrations of
certificates.
If
Original Notes that are not tendered for exchange pursuant to the Exchange Offer
are to be returned to a person other than the tendering holder, certificates for
those Original Notes must be endorsed or accompanied by an appropriate
instrument of transfer, signed exactly as the name of the registered owner
appears on the certificates, with the signatures on the certificates or
instruments of transfer guaranteed by an eligible guarantor
institution.
If the
letter of transmittal is signed by a person other than the holder of any
Original Notes listed in the letter of transmittal, those Original Notes must be
properly endorsed or accompanied by a properly completed bond power, signed by
the holder exactly as the holder’s name appears on those Original Notes. If the
letter of transmittal or any Original Notes, bond powers or other instruments of
transfer are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, those persons should so indicate when signing, and,
unless waived by us, evidence satisfactory to us of their authority to so act
must be submitted with the letter of transmittal.
No
alternative, conditional, irregular or contingent tenders will be accepted. By
executing the letter of transmittal, or facsimile thereof, the tendering holders
of Original Notes waive any right to receive any notice of the acceptance for
exchange of their Original Notes. Tendering holders should indicate in the
applicable box in the letter of transmittal the name and address to which
payments and/or substitute certificates evidencing Original Notes for amounts
not tendered or not exchanged are to be issued or sent, if different from the
name and address of the person signing the letter of transmittal. If those
instructions are not given, Original Notes not tendered or exchanged will be
returned to the tendering holder.
All
questions as to the validity, form, eligibility, including time of receipt, and
acceptance and withdrawal of tendered Original Notes will be determined by us in
our absolute discretion, which determination will be final and binding. We
reserve the absolute right to reject any and all tendered Original Notes
determined by us not to be in proper form or not to be tendered properly or any
tendered Original Notes our acceptance of which would, in the opinion of our
counsel, be unlawful. We also reserve the right to waive, in our absolute
discretion, any defects, irregularities or conditions of tender as to particular
Original Notes, whether or not waived in the case of other Original Notes. Our
interpretation of the terms and conditions of the Exchange Offer, including the
terms and instructions in the letter of transmittal, will be final and binding
on all parties. Unless waived, any defects or irregularities in connection with
tenders of Original Notes must be cured within the time we determine. Although
we intend to notify holders of defects or irregularities with respect to tenders
of Original Notes, neither we, the Exchange Agent nor any other person will be
under any duty to give that notification or shall incur any liability for
failure to give that notification. Tenders of Original Notes will not be deemed
to have been made until any defects or irregularities therein have been cured or
waived.
Any
holder whose Original Notes have been mutilated, lost, stolen or destroyed will
be responsible for obtaining replacement securities or for arranging for
indemnification with the trustee of the Original Notes. Holders may contact the
Exchange Agent for assistance with these matters.
24
In
addition, we reserve the right, as set forth above under the caption
“—Conditions to the Exchange Offer”, to terminate the Exchange
Offer. By tendering, each holder represents and acknowledges to us,
among other things, that:
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it
has full power and authority to tender, sell, assign and transfer the
Original Notes it is tendering and that we will acquire good and
unencumbered title thereto, free and clear of all liens, restrictions,
charges and encumbrances and not subject to any adverse claim when the
same are accepted by us;
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the
Exchange Notes acquired in connection with the Exchange Offer are being
obtained in the ordinary course of business of the person receiving the
Exchange Notes;
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at
the time of commencement of the Exchange Offer it had no arrangement with
any person to participate in a distribution of such Exchange
Notes;
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it
is not an “affiliate” (as defined in Rule 405 under the Securities Act) of
our company; and
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if
the holder is a broker-dealer, that it is not engaged in, and does not
intend to engage in, a distribution of the Exchange Notes, and that it
will receive Exchange Notes for its own account in exchange for Original
Notes that were acquired by such broker-dealer as a result of
market-making activities or other trading activities and that it will be
required to acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. See “Plan of
Distribution”.
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Withdrawal
of Tenders
Tenders
of Original Notes in the Exchange Offer may be validly withdrawn at any time
prior to the Expiration Date.
For a
withdrawal of a tender to be effective, a written or facsimile transmission
notice of withdrawal must be received by the Exchange Agent prior to the
Expiration Date at its address set forth below under the caption “Exchange
Agent”. The withdrawal notice must:
(1) specify
the name of the tendering holder of Original Notes;
(2) bear
a description, including the series, of the Original Notes to be
withdrawn;
(3) specify,
in the case of Original Notes tendered by delivery of certificates for those
Original Notes, the certificate numbers shown on the particular certificates
evidencing those Original Notes;
(4) specify
the aggregate principal amount represented by those Original Notes;
(5) specify,
in the case of Original Notes tendered by delivery of certificates for those
Original Notes, the name of the registered holder, if different from that of the
tendering holder, or specify, in the case of Original Notes tendered by
book-entry transfer, the name and number of the account at DTC to be credited
with the withdrawn Original Notes; and
(6) be
signed by the holder of those Original Notes in the same manner as the original
signature on the letter of transmittal, including any required signature
guarantees, or be accompanied by evidence satisfactory to us that the person
withdrawing the tender has succeeded to the beneficial ownership of those
Original Notes.
The
signature on any notice of withdrawal must be guaranteed by an eligible
guarantor institution, unless the Original Notes have been tendered for the
account of an eligible guarantor institution.
Withdrawal
of tenders of Original Notes may not be rescinded, and any Original Notes
validly withdrawn will thereafter be deemed not to have been validly tendered
for purposes of the Exchange Offer. Validly withdrawn Original Notes may,
however, be re-tendered by again following one of the procedures described in
“—Procedures for Tendering” on or prior to the Expiration Date.
25
Exchange
Agent
The Bank
of New York Mellon Trust Company, N.A. has been appointed as Exchange Agent in
connection with the Exchange Offer. Questions and requests for
assistance, as well as requests for additional copies of this prospectus or of
the letter of transmittal, should be directed to the Exchange Agent at its
offices at The Bank of New York Mellon Trust Company, N.A., Corporate Trust
Operations, Reorganization Unit, 101 Barclay Street—7E, New York, New York
10286. The Exchange Agent’s telephone number is (212) 815-3738 and
facsimile number is (212) 298-1915.
Fees
and Expenses
We
will not make any payment to brokers, dealers or others soliciting acceptances
of the Exchange Offer. We will pay certain other expenses to be
incurred in connection with the Exchange Offer, including the fees and expenses
of the Exchange Agent and certain accountant and legal fees.
Holders
who tender their Original Notes for exchange will not be obligated to pay
transfer taxes. If, however:
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Exchange
Notes are to be delivered to, or issued in the name of, any person other
than the registered holder of the Original Notes
tendered;
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tendered
Original Notes are registered in the name of any person other than the
person signing the letter of transmittal;
or
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a
transfer tax is imposed for any reason other than the exchange of Original
Notes in connection with the Exchange Offer; then the amount of any such
transfer taxes (whether imposed on the registered holder or any other
persons) will be payable by the tendering holder. If
satisfactory evidence of payment of such taxes or exemption from them is
not submitted with the letter of transmittal, the amount of such transfer
taxes will be billed directly to the tendering
holder.
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Accounting Treatment
The
Exchange Notes will be recorded at the same carrying value as the Original Notes
as reflected in our accounting records on the date of the
exchange. Accordingly, we will not recognize any gain or loss for
accounting purposes upon the completion of the Exchange Offer. The
payment to bondholders for the Exchange Offer will increase deferred financing
costs but payments made to other third parties will be expensed as incurred in
accordance with generally accepted accounting principles.
Consequences of Failures to Properly Tender Original Notes in the Exchange
Offer
Issuance
of the Exchange Notes in exchange for the Original Notes under the Exchange
Offer will be made only after timely receipt by the Exchange Agent of a properly
completed and duly executed letter of transmittal (or an agent’s message from
DTC) and the certificate(s) representing such Original Notes (or confirmation of
book-entry transfer), and all other required documents. Therefore,
holders of the Original Notes desiring to tender such Original Notes in exchange
for Exchange Notes should allow sufficient time to ensure timely
delivery. We are under no duty to give notification of defects or
irregularities of tenders of Original Notes for exchange. Original
Notes that are not tendered or that are tendered but not accepted by us will,
following completion of the Exchange Offer, continue to be subject to the
existing restrictions upon transfer thereof under the Securities Act, and, upon
completion of the Exchange Offer, certain registration rights under the
Registration Rights Agreement will terminate.
In
the event the Exchange Offer is completed, we generally will not be required to
register the remaining Original Notes, subject to limited
exceptions. Remaining Original Notes will continue to be subject to
the following restrictions on transfer:
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the
remaining Original Notes may be resold only if registered pursuant to the
Securities Act, if any exemption from registration is available, or if
neither such registration nor such exemption is required by law;
and
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26
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the
remaining Original Notes will bear a legend restricting transfer in the
absence of registration or an
exemption.
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We do not
currently anticipate that we will register the remaining Original Notes under
the Securities Act. To the extent that Original Notes are tendered
and accepted in connection with the Exchange Offer, any trading market for
remaining Original Notes could be adversely affected. See “Risk
Factors—Risks Relating to the Exchange Offer—If you fail to exchange your
Original Notes, they will continue to be restricted securities and may become
less liquid”.
27
The Notes
will be represented by one or more permanent global Notes in definitive, fully
registered form without interest coupons. Each beneficial interest in a global
Note is referred to as a book-entry Note. Each global Note representing
book-entry Notes will be deposited with the trustee, as custodian for, and
registered in the name of, a nominee of The Depository Trust Company, as
depositary, located in the Borough of Manhattan, The City of New York (the
“Depositary”).
The
book-entry Notes will be represented through book-entry accounts of financial
institutions acting on behalf of beneficial owners as direct and indirect
participants in the Depositary. Investors may elect to hold interests in the
book-entry Notes through either the Depositary (in the U.S.) or Clearstream
Banking, société anonyme (“Clearstream” or “Clearstream Luxembourg”) or
Euroclear Bank S.A./N.V., as operator of the Euroclear System (“Euroclear”) (in
Europe) if they are participants of such systems, or indirectly through
organizations that are participants in such systems. Clearstream Luxembourg and
Euroclear will hold interests on behalf of their participants through customers’
securities accounts in Clearstream Luxembourg’s and Euroclear’s names on the
books of their respective depositaries, which in turn will hold such interests
in customers’ securities accounts in the depositaries’ names on the books of the
Depositary. Citibank, N.A. will act as depositary for Clearstream Luxembourg and
JPMorgan Chase Bank will act as depositary for Euroclear (in such capacities,
the “U.S. Depositaries”). The book-entry Notes will be held in denominations of
$2,000 and integral multiples of $1,000 in excess thereof. Except as set forth
below, the global Notes may be transferred, in whole and not in part, only to
another nominee of the Depositary or to a successor of the Depositary or its
nominee.
Clearstream
Luxembourg advises that it is incorporated under the laws of Luxembourg as a
professional depositary. Clearstream Luxembourg holds securities for its
participating organizations (“Clearstream Luxembourg Participants”) and
facilitates the clearance and settlement of securities transactions between
Clearstream Luxembourg Participants through electronic book-entry changes in
accounts of Clearstream Luxembourg Participants, thereby eliminating the need
for physical movement of certificates. Clearstream Luxembourg provides to
Clearstream Luxembourg Participants, among other things, services for
safekeeping, administration, clearance and settlement of internationally traded
securities and securities lending and borrowing. Clearstream Luxembourg
interfaces with domestic markets in several countries.
As a
professional depositary, Clearstream Luxembourg is subject to regulation by the
Luxembourg Monetary Institute. Clearstream Luxembourg Participants are
recognized financial institutions around the world, including underwriters,
securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations and may include the underwriters. Indirect
access to Clearstream Luxembourg is also available to others, such as banks,
brokers, dealers and trust companies that clear through or maintain a custodial
relationship with a Clearstream Luxembourg Participant either directly or
indirectly. Distributions with respect to Notes held beneficially through
Clearstream Luxembourg will be credited to cash accounts of Clearstream
Luxembourg Participants in accordance with its rules and procedures, to the
extent received by the U.S. Depositary for Clearstream Luxembourg.
Euroclear
advises that it was created in 1968 to hold securities for participants of
Euroclear (“Euroclear Participants”) and to clear and settle transactions
between Euroclear Participants through simultaneous electronic book-entry
delivery against payment, thereby eliminating the need for physical movement of
certificates and any risk from lack of simultaneous transfers of securities and
cash. Euroclear provides various other services, including securities lending
and borrowing and interfaces with domestic markets in several countries.
Euroclear is operated by Euroclear Bank S.A./N.V. (the “Euroclear Operator”),
under contract with Euroclear Clearance Systems S.C., a Belgian cooperative
corporation (the “Cooperative”). All operations are conducted by the Euroclear
Operator, and all Euroclear securities clearance accounts and Euroclear cash
accounts are accounts with the Euroclear Operator, not the Cooperative. The
Cooperative establishes policy for Euroclear on behalf of Euroclear
Participants. Euroclear Participants include banks (including central banks),
securities brokers and dealers and other professional financial intermediaries.
Indirect access to Euroclear is also available to other firms that clear through
or maintain a custodial relationship with a Euroclear Participant, either
directly or indirectly. The Euroclear Operator was launched on December 31,
2000, and replaced Morgan Guaranty Trust Company of New York as the operator of
and banker to the Euroclear system. The Euroclear Operator has capital of
approximately EUR 1 billion. Securities clearance accounts and cash accounts
with the Euroclear Operator are governed by the Terms and Conditions Governing
Use of Euroclear and the related Operating Procedures of the Euroclear System,
and applicable Belgian law (collectively, the “Terms and Conditions”). The Terms
and Conditions govern transfers of securities and cash within Euroclear,
withdrawals of securities and cash from Euroclear, and receipts of payments with
respect to securities in Euroclear. All securities in Euroclear are held on a
fungible basis, without attribution of specific certificates to specific
securities clearance accounts. The Euroclear Operator acts under the Terms and
Conditions only on behalf of Euroclear Participants, and has no record of or
relationship with persons holding through Euroclear Participants. Distributions
with respect to each series of Notes held beneficially through Euroclear will be
credited to the cash accounts of Euroclear Participants in accordance with the
Terms and Conditions, to the extent received by the U.S. Depositary for
Euroclear.
28
So long
as the Depositary, or its nominee, is the registered owner or holder of a global
Note, the Depositary or the nominee, as the case may be, will be considered the
sole owner or holder of the Notes represented by that global Note for all
purposes under the Indenture and the Notes. No beneficial owner of an interest
in a global Note will be able to transfer that interest, except in accordance
with the Depositary’s applicable procedures, in addition to those provided for
under the Indenture.
CSX has
been advised by the Depositary that upon the issuance of global Notes
representing book-entry Notes, and the deposit of those global Notes with the
Depositary, the Depositary will immediately credit, on its book-entry
registration and transfer system, the respective principal amounts of the
book-entry Notes represented by those global Notes to the accounts of
participants.
Payments
of principal of and any premium and interest on book-entry Notes will be made to
the Depositary or its nominee, as the case may be, as the registered owner of
those Notes. Those payments to the Depositary or its nominee, as the case may
be, will be made in immediately available funds at the offices of The Bank of
New York, as paying agent, in the Borough of Manhattan, The City of New York,
provided that, in the case of payments of principal and any premium, the global
Notes are presented to the paying agent in time for the paying agent to make
those payments in immediately available funds in accordance with its normal
procedures. None of CSX, the trustee or any agent of CSX or the trustee will
have any responsibility or liability for any aspect of the Depositary’s records
or any participant’s records relating to or payments made on account of
book-entry Notes or for maintaining, supervising or reviewing any of the
Depositary’s records or any participant’s records relating to book-entry
Notes.
CSX
expects that the Depositary or its nominee, upon receipt of any payment of
principal of or any premium or interest in respect of a global Note, will
immediately credit, on its book-entry registration and transfer system, accounts
of participants with payments in amounts proportionate to their respective
beneficial interests in the principal amount of the global Notes, as shown on
the records of the Depositary or its nominee.
CSX also
expects that payments by participants to owners of beneficial interests in
book-entry Notes held through those participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers registered in “street name”, and will be the
responsibility of those participants.
CSX
expects that the Depositary will take any action permitted to be taken by a
holder of Notes (including the presentation of Notes for exchange as described
below) only at the direction of one or more participants to whose account or
accounts the depositary interests in a global Note are credited and only in
respect of the portion of the aggregate principal amount of the Notes as to
which that participant or participants has or have given that direction.
However, if there is an event of default under the Notes, the Depositary will
exchange the applicable global Note for definitive Notes in registered form,
which it will distribute to its participants.
CSX
understands that the Depositary is a limited purpose trust company organized
under the laws of the State of New York, a “banking organization” within the
meaning of New York Banking Law, a member of the Federal Reserve System, a
“clearing corporation” within the meaning of the Uniform Commercial Code, and a
“Clearing Agency” registered pursuant to the provisions of Section 17A of the
Exchange Act. The Depositary was created to hold securities of its participants
and to facilitate the clearance and settlement of securities transactions among
participants through electronic book-entry changes in accounts of its
participants and certain other organizations, thereby eliminating the need for
physical movement of securities certificates. The Depositary’s participants
include securities brokers and dealers, banks, trust companies, clearing
corporations, and certain other organizations, some of whom (or their
representatives) own interests in the Depositary. Indirect access to the
Depositary’s book-entry system is also available to others, such as banks,
brokers, dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly (“indirect
participants”).
29
Although
the Depositary is expected to follow the foregoing procedures in order to
facilitate transfers of interests in a global Note among participants of the
Depositary, it is under no obligation to perform or continue to perform those
procedures and those procedures may be discontinued at any time. Neither CSX nor
the trustee will have any responsibility for the performance by the Depositary
or its respective participants or indirect participants of its respective
obligations under the rules and procedures governing their
operations.
The
global Notes representing book-entry Notes may not be transferred except as a
whole by a nominee of the Depositary to the Depositary or to another nominee of
the Depositary, or by the Depositary or the nominee to a successor of the
Depositary or a nominee of the successor.
The
global Notes representing book-entry Notes are exchangeable for definitive Notes
in registered form, of like tenor and of an equal aggregate principal amount,
only if:
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The
Depositary notifies CSX that it is unwilling or unable to continue as a
depositary for the global Note, or if at any time the Depositary ceases to
be a Clearing Agency registered under the Exchange Act, and a successor
depositary is not appointed by CSX within 90
days;
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CSX
in its sole discretion determines that the book-entry Notes will be
exchangeable for definitive Notes in registered form;
or
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Any
event has happened and is continuing which, after notice or lapse of time,
or both, would become an event of default with respect to the
Notes.
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Any
global Note representing book-entry Notes that is exchangeable pursuant to the
preceding sentence will be exchangeable in whole for definitive Notes in
registered form, of like tenor and of an equal aggregate principal amount, in
denominations of U.S. $2,000 and integral multiples of U.S. $1,000 in excess
thereof. Upon the exchange of a global Note for definitive Notes, that global
Note will be canceled by the trustee and the definitive Notes will be registered
in the names and in the authorized denominations as the Depositary, pursuant to
instructions from its participants, any indirect participants or otherwise,
instructs the trustee. The trustee will deliver those Notes to the persons in
whose names those Notes are registered and will recognize those persons as the
holders of those Notes.
Except as
provided above, owners of book-entry Notes will not be entitled to receive
physical delivery of Notes in definitive form and will not be considered the
holders of those Notes for any purpose under the Indenture, and no global Note
representing book-entry Notes will be exchangeable, except for another global
Note of like denomination and tenor to be registered in the name of the
Depositary or its nominee. Accordingly, each person owning a book-entry Note
must rely on the procedures of the Depositary and, if that person is not a
participant, on the procedures of the participant through which that person owns
its interest, to exercise any rights of a holder under that global Note or the
Indenture. The Indenture provides that the Depositary, as a holder, may appoint
agents and otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action that a holder
is entitled to give or take under the Indenture. CSX understands that under
existing industry practices, if CSX requests any action of holders or an owner
of a book-entry Note desires to give or take any action a holder is entitled to
give or take under the Indenture, the Depositary would authorize the
participants owning the relevant book-entry Notes to give or take that action,
and those participants would authorize beneficial owners owning through those
participants to give or take that action or would otherwise act upon the
instructions of beneficial owners owning through them.
Clearance
and Settlement Procedures
Transfers
between participants in the Depositary will be effected in the ordinary way in
accordance with the Depositary’s rules and will be settled in same-day funds.
Secondary market trading between Clearstream Luxembourg Participants and/or
Euroclear Participants will be effected in the ordinary way, in accordance with
the applicable rules and operating procedures of Clearstream Luxembourg and
Euroclear, and will be settled using the procedures applicable to conventional
eurobonds in immediately available funds.
30
Cross-market
transfers between persons holding directly or indirectly through participants in
the Depositary, on the one hand, and directly or indirectly through Clearstream
Luxembourg Participants or Euroclear Participants, on the other, will be
effected in the Depositary in accordance with the Depositary’s rules on behalf
of the relevant European international clearing system by its U.S. Depositary;
however, such cross-market transactions will require delivery of instructions to
the relevant European international clearing system by the counterparty in such
system, in accordance with its rules and procedures and within its established
deadlines (European time). The relevant European international clearing system
will, if the transaction meets its settlement requirements, deliver instructions
to its U.S. Depositary to take action to effect final settlement on its behalf
by delivering or receiving Notes in the Depositary, and making or receiving
payment in accordance with normal procedures for same-day funds settlement
applicable to the Depositary. Clearstream Luxembourg Participants and Euroclear
Participants may not deliver instructions directly to their respective U.S.
Depositaries.
Because
of time-zone differences, credits of book-entry Notes received in Clearstream
Luxembourg or Euroclear as a result of a transaction with a Depositary
participant will be made during subsequent securities settlement processing and
dated the business day following the Depositary settlement date. Such credits or
any transactions in such Notes settled during such processing will be reported
to the relevant Euroclear or Clearstream Luxembourg Participants on such
business day. Cash received in Clearstream Luxembourg or Euroclear as a result
of sales of Notes by or through a Clearstream Luxembourg Participant or a
Euroclear Participant to a Depositary participant will be received on the
Depositary settlement date but will be available in the relevant Clearstream
Luxembourg or Euroclear cash account only as of the business day following
settlement in the Depositary.
Although
the Depositary, Clearstream Luxembourg and Euroclear have agreed to the
foregoing procedures in order to facilitate transfers of Notes among
participants of the Depositary, Clearstream Luxembourg and Euroclear, they are
under no obligation to perform or continue to perform such procedures and such
procedures may be discontinued at any time.
31
The
following discussion is a summary of certain material U.S. federal income tax
consequences of the Exchange Offer to holders of Original Notes, but is not a
complete analysis of all potential tax effects. The summary below is
based upon the Internal Revenue Code of 1986, as amended (the “Code”),
regulations of the Treasury Department, administrative rulings and
pronouncements of the Internal Revenue Service and judicial decisions, all of
which are subject to change, possibly with retroactive effect. This
summary does not address all of the U.S. federal income tax consequences that
may be applicable to particular holders, including dealers in securities,
financial institutions, insurance companies and tax-exempt
organizations. In addition, this summary does not consider the effect
of any foreign, state, local, gift, estate or other tax laws that may be
applicable to a particular holder. This summary applies only to a
holder that holds such Original Notes as a capital asset within the meaning of
Section 1221 of the Code.
An
exchange of Original Notes for Exchange Notes pursuant to the Exchange Offer
will not be treated as a taxable exchange or other taxable event for U.S.
federal income tax purposes. Accordingly, there will be no U.S.
Federal income tax consequences to holders who exchange their Original Notes for
Exchange Notes in connection with the Exchange Offer and any such holder will
have the same adjusted tax basis and holding period in the Exchange Notes as it
had in the Original Notes immediately before the exchange.
The
foregoing discussion of certain U.S. federal income tax considerations does not
consider the facts and circumstances of any particular holder’s situation or
status. Accordingly, each holder of Original Notes considering this
Exchange Offer should consult its own tax advisor regarding the tax consequences
of the Exchange Offer to it, including those under state, foreign and other tax
laws.
Each
broker-dealer that receives Exchange Notes for its own account pursuant to the
Exchange Offer must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. This prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of Exchange Notes received in exchange for Original
Notes where such Original Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that,
for a period of 180 days after the Expiration Date, it will make this
prospectus, as amended or supplemented, available to any broker-dealer for use
in connection with any such resale.
The
Company will not receive any proceeds from any sale of Exchange Notes by
broker-dealers. Exchange Notes received by broker-dealers for their
own account pursuant to the Exchange Offer may be sold from time to time in one
or more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Notes or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any
such resale may be made directly to purchasers or to or through brokers or
dealers who may receive compensation in the form of commissions or concessions
from any such broker dealer or the purchasers of any such Exchange
Notes. Any broker-dealer that resells Exchange Notes that were
received by it for its own account pursuant to the Exchange Offer and any broker
or dealer that participates in a distribution of such Exchange Notes may be
deemed to be an “underwriter” within the meaning of the Securities Act and any
profit on any such resale of Exchange Notes and any commission or concessions
received by any such persons may be deemed to be underwriting compensation under
the Securities Act. The letter of transmittal states that, by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an “underwriter” within the
meaning of the Securities Act.
For a
period of 180 days after the Expiration Date the Company will promptly send
additional copies of this prospectus and any amendment or supplement to this
prospectus to any broker-dealer that requests such documents in the letter of
transmittal. The Company has agreed to pay all expenses incident to
the Exchange Offer (including the expenses of one counsel for the holders of the
Notes) other than commissions or concessions of any brokers or dealers and will
indemnify the holders of the Notes (including any broker-dealers) against
certain liabilities, including liabilities under the Securities
Act.
32
The
validity of the Exchange Notes will be passed upon for us by Cravath, Swaine
& Moore LLP, New York, New York.
Ernst
& Young LLP, independent registered public accounting firm, has audited our
consolidated financial statements included in our Annual Report on Form 10-K for
the fiscal year ended December 25, 2009, and the effectiveness of our internal
control over financial reporting as of December 25, 2009, as set forth in their
reports, which are incorporated by reference in this prospectus and elsewhere in
the registration statement. Our consolidated financial statements are
incorporated by reference in the registration statement in reliance on Ernst
& Young LLP’s reports, given on their authority as experts in accounting and
auditing.
33
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CSX
Corporation
Offer
to Exchange
Up
to $660,000,000 Principal Amount of
6.220%
Senior Notes due 2040
for
a
Like Principal Amount of
6.220%
Senior Notes due 2040
which
have been registered under the Securities Act of 1933
 PROSPECTUS
,
|
II-34
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
20. Indemnification of Directors and
Officers.
Article
10 of the Virginia Stock Corporation Act allows, in general, for
indemnification, in certain circumstances, by a corporation of any person
threatened with or made a party to any action, suit or proceeding by reason of
the fact that he or she is, or was, a director, officer, employee or agent of
such corporation. Indemnification is also authorized with respect to a criminal
action or proceeding where the person had no reasonable cause to believe that
his or her conduct was unlawful. Article 9 of the Virginia Stock Corporation Act
provides limitations on damages payable by officers and directors, except in
cases of willful misconduct or knowing violation of criminal law or any federal
or state securities law.
Article
VII of CSX’s Amended and Restated Articles of Incorporation provides for
mandatory indemnification of any director or officer of CSX who is, was or is
threatened to be made a party to any proceeding (including any proceeding by or
on behalf of CSX) by reason of the fact that he or she is or was a director or
officer of CSX against all liabilities and reasonable expenses incurred in the
proceeding, except such liabilities and expenses as are incurred because of such
director’s or officer’s willful misconduct or knowing violation of the criminal
law.
CSX’s
Amended and Restated Articles of Incorporation also provide that in every
instance permitted under Virginia corporate law in effect from time to time, the
liability of a director or officer of CSX to CSX or our shareholders arising out
of a single transaction, occurrence or course of conduct will be limited to one
dollar.
CSX
maintains a standard policy of officers’ and directors’ liability
insurance.
The
underwriting, distribution or similar agreements filed or to be filed as
exhibits to the registration statement will contain provisions regarding
indemnification of CSX’s officers, directors and controlling persons against
certain liabilities.
Item
21. Exhibits.
The
attached Exhibit Index is incorporated by reference.
Item
22. Undertakings.
(a) The
undersigned registrant hereby undertakes:
(1) to
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by section 10(a)(3) of the Securities Act of
1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20% change in
the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement.
II-1
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for purposes of determining liability under the Securities Act of 1933 to any
purchaser:
(i) each
prospectus filed pursuant to Rule 424(b) as part of the registration statement
relating to an offering, other than registration statements relying on Rule 430B
or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be
part of and included in the registration statement as of the date it is first
used after effectiveness. Provided, however, that no statement made
in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such
first use, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such date of first use.
(5) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of
securities:
The
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes that, for the purposes of determining
any liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration shall be deemed to
be a new registration statement relating to the securities offering therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions described in Item 20, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-2
(d) For
purposes of determining any liability under the Securities Act, the information
omitted from the form of prospectus filed as a part of this Registration
Statement in reliance on Rule 430A and contained in a form of prospectus filed
by the registrant pursuant to Rule 424(b)(l) or (4) or 497(h) under the
Securities Act shall be deemed to be a part of this registration statement as of
the time it was declared effective.
(e) For
purposes of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-3
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, CSX Corporation has duly
caused this Registration Statement on Form S-4 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Jacksonville, State of
Florida, on the 20th day
of April, 2010.
|
CSX
CORPORATION
|
|
|
By:
|
/s/
David A. Boor
|
|
David
A. Boor
|
|
|
Vice
President - Tax and Treasurer
|
|
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities indicated on the
20th day of April,
2010.
|
Signature
|
|
Title
|
|
|
/s/
Michael J. Ward*
|
|
Chairman,
President, Chief Executive Officer and Director (Principal Executive
Officer)
|
|
|
Michael
J. Ward
|
|||
|
/s/
Oscar Munoz*
|
|
Executive
Vice President and Chief Financial Officer (Principal Financial
Officer)
|
|
|
Oscar
Munoz
|
|||
|
/s/
Carolyn T. Sizemore*
|
|
Vice
President and Controller (Principal Accounting Officer)
|
|
|
Carolyn
T. Sizemore |
|||
|
/s/
Donna M. Alvarado*
|
|
Director
|
|
|
Donna
M. Alvarado |
|||
|
/s/
Alexandre Behring*
|
|
Director
|
|
|
Alexandre
Behring |
|||
|
/s/
John B. Breaux*
|
|
Director
|
|
|
John
B. Breaux |
|||
|
/s/
Steven T. Halverson*
|
|
Director
|
|
|
Steven
T. Halverson |
|||
|
/s/
Edward J. Kelly, III*
|
|
Director
|
|
|
Edward
J. Kelly, III
|
|||
|
/s/
Gilbert H. Lamphere*
|
|
Director
|
|
|
Gilbert
H. Lamphere |
|||
II-4
|
/s/
John D. McPherson*
|
|
Director
|
|
|
John
D. McPherson |
|||
|
/s/
Timothy T. O’Toole*
|
|
Director
|
|
|
Timothy
T. O’Toole |
|||
|
/s/
David M. Ratcliffe*
|
|
Director
|
|
|
David
M. Ratcliffe |
|||
|
/s/
Donald J. Shepard*
|
|
Director
|
|
|
Donald
J. Shepard |
|||
|
*By
|
/s/
Ellen M. Fitzsimmons
|
|
|
|
Ellen
M. Fitzsimmons
Attorney-in-Fact |
|||
|
|
|||
II-5
EXHIBIT
INDEX
The following exhibits are filed as
part of this Registration Statement or incorporated by reference
herein:
|
Exhibit
Number |
Description of Document
|
|
2.1
|
Distribution
Agreement, dated as of July 26, 2004, by and among CSX Corporation, CSX
Transportation, Inc., CSX Rail Holding Corporation, CSX Northeast Holding
Corporation, Norfolk Southern Corporation, Norfolk Southern Railway
Company, CRR Holdings LLC, Green Acquisition Corp., Conrail Inc.,
Consolidated Rail Corporation, New York Central Lines LLC, Pennsylvania
Lines LLC, NYC Newco, Inc. and PRR Newco, Inc. (incorporated herein by
reference to Exhibit 2.1 to the Registrant’s Current Report on Form 8-K
filed with the Commission on September 2, 2004)
|
|
3.1
|
Amended
and Restated Articles of Incorporation of the Registrant (incorporated
herein by reference to Exhibit 3.1 to the Registrant's Current Report on
Form 8-K filed with the Commission on December 14,
2004)
|
|
3.2
|
Articles
of Amendment to CSX Corporation’s Amended and Restated Articles of
Incorporation of the Registrant (incorporated herein by reference to
Exhibit 3.1 to the Registrant's Current Report on Form 8-K filed with the
Commission on July 18, 2006)
|
|
3.3
|
Bylaws
of the Registrant, amended effective as of September 24, 2008
(incorporated herein by reference to Exhibit 3.2 of the Registrant's
Current Report on Form 8-K filed with the Commission on September 25,
2008)
|
|
Instruments Defining the Rights of Security
Holders, Including Debentures:
|
|
|
4.1
|
Indenture,
dated August 1, 1990, between CSX and The Bank of New York Mellon Trust
Company, N.A. (as successor to JPMorgan Chase Bank, N.A., formerly The
Chase Manhattan Bank), as Trustee (incorporated herein by reference to
CSX’s Form SE, dated September 7, 1990, filed with the
SEC)
|
|
4.2
|
First
Supplemental Indenture, dated as of June 15, 1991, between CSX and The
Bank of New York Mellon Trust Company, N.A. (as successor to JPMorgan
Chase Bank, N.A., formerly The Chase Manhattan Bank), as Trustee
(incorporated herein by reference to Exhibit 4(c) to CSX’s Form SE, dated
May 28, 1992, filed with the SEC)
|
|
4.3
|
Second
Supplemental Indenture, dated as of May 6, 1997, between CSX and The Bank
of New York Mellon Trust Company, N.A. (as successor to JPMorgan Chase
Bank, N.A., formerly The Chase Manhattan Bank), as Trustee (incorporated
herein by reference to Exhibit 4.3 to CSX’s Registration Statement on Form
S-4 (Registration No. 333-28523) filed with the SEC on June 5,
1997)
|
|
4.4
|
Third
Supplemental Indenture, dated as of April 22, 1998, between CSX and The
Bank of New York Mellon Trust Company, N.A. (as successor to JPMorgan
Chase Bank, N.A., formerly The Chase Manhattan Bank), as Trustee
(incorporated herein by reference to Exhibit 4.2 to CSX’s Current Report
on Form 8-K (File No. 001-8022) filed with the SEC on May 12,
1998)
|
|
4.5
|
Fourth
Supplemental Indenture, dated as of October 30, 2001, between CSX and The
Bank of New York Mellon Trust Company, N.A. (as successor to JPMorgan
Chase Bank, N.A., formerly The Chase Manhattan Bank), as Trustee
(incorporated herein by reference to Exhibit 4.1 to CSX’s Quarterly Report
on Form 10-Q for the fiscal quarter ended September 28, 2001 (File No.
001-8022) filed with the SEC on November 7, 2001)
|
|
4.6
|
Fifth
Supplemental Indenture, dated as of October 27, 2003, between CSX and The
Bank of New York Mellon Trust Company, N.A. (as successor to JPMorgan
Chase Bank, N.A., formerly The Chase Manhattan Bank), as
Trustee (incorporated herein by reference to Exhibit 4.1 to CSX’s Current
Report on Form 8-K (File No. 001-8022) filed with the SEC on October 27,
2003)
|
|
4.7
|
Sixth
Supplemental Indenture, dated as of September 23, 2004, between CSX and
The Bank of New York Mellon Trust Company, N.A. (as successor to JPMorgan
Chase Bank, N.A., formerly The Chase Manhattan Bank), as Trustee
(incorporated herein by reference to Exhibit 4.1 to CSX’s Quarterly Report
on Form 10-Q for the fiscal quarter ended September 24, 2004 (File No.
001-8022) filed with the SEC on November 3, 2004)
|
|
4.8
|
Seventh
Supplemental Indenture, dated as of April 25, 2007, between CSX and The
Bank of New York Mellon Trust Company, N.A. (as successor to JPMorgan
Chase Bank, N.A., formerly The Chase Manhattan Bank), as Trustee
(incorporated herein by reference to Exhibit 4.4 to CSX's Current Report
on Form 8-K (File No. 001-8022) filed with the SEC on April 26,
2007)
|
|
4.9
|
Eighth
Supplemental Indenture, dated as of March 24, 2010, among CSX, The Bank of
New York Mellon and The Bank of New York Mellon Trust Company, N.A. (as
successor to The Bank of New York Mellon, formerly The Bank of New York,
as successor to JPMorgan Chase Bank, N.A., formerly The Chase Manhattan
Bank), as Trustee (incorporated herein by reference to Exhibit 4.1 to
CSX's Quarterly Report on Form 10-Q for the fiscal quarter ended March 26,
2010 (File No. 001-08022) filed with the SEC on April 19,
2010)
|
|
Pursuant
to Regulation S-K, Item 601(b)(4)(iii), instruments that define the rights
of holders of the Registrant’s long-term debt securities, where the
long-term debt securities authorized under each such instrument do not
exceed 10% of the Registrant’s total assets, have been omitted and will be
furnished to the Commission upon request.
|
|
II-6
|
Exhibit
Number |
Description of Document
|
|
Opinions
|
|
|
5.1*
|
Opinion
of Cravath, Swaine & Moore LLP
|
|
Material Contracts
|
|
|
10.1**
|
CSX
Stock Plan for Directors (as amended through January 1, 2004)
(incorporated herein by reference to Exhibit 10.1 to the Registrant's
Annual Report on Form 10-K filed with the Commission on March 10,
2004)
|
|
10.2**
|
CSX
Directors’ Pre-2005 Deferred Compensation Plan (as amended through January
8, 2008) (incorporated by reference to Exhibit 10.2 to the Registrant’s
Annual Report on Form 10-K filed with the Commission on February 22,
2008)
|
|
10.3**
|
CSX
Directors’ Deferred Compensation Plan effective January 1, 2005
(incorporated by reference to Exhibit 10.3 to the Registrant’s Annual
Report on Form 10-K filed with the Commission on February 22,
2008)
|
|
10.4**
|
CSX
Directors' Charitable Gift Plan, as amended (incorporated herein by
reference to Exhibit 10.4 to the Registrant's Annual Report on Form 10-K
filed with the Commission on March 4, 1994)
|
|
10.5**
|
CSX
Directors' Matching Gift Plan (as amended through December 31, 2003)
(incorporated herein by reference to Exhibit 10.5 to the Registrant's
Annual Report on Form 10-K filed with the Commission on March 10,
2004)
|
|
10.6**
|
Railroad
Retirement Benefits Agreement with M. J. Ward (incorporated herein by
reference to Exhibit 10.13 to the Registrant's Report on Form 10-K filed
with the Commission on February 26, 2003)
|
|
10.7**
|
Employment
Agreement with O. Munoz (incorporated herein by reference to Exhibit 10.1
to the Registrant's Report on Form 10-Q filed with the Commission on July
30, 2003)
|
|
10.8**
|
Form
of Employment Agreement with executive officers (incorporated herein by
reference to Exhibit 10.1 of the Registrant's Current Report on Form 8-K
filed with the Commission on January 6, 2005)
|
|
10.9**
|
Form
of Stock Option Agreement (incorporated herein by reference to Exhibit
10.17 of the Registrant's Report on Form 10-K filed with the Commission on
March 4, 2002)
|
|
10.10**
|
1987
Long-term Performance Stock Plan, as Amended and Restated effective April
25, 1996 (as amended through February 7, 2003) (incorporated herein by
reference to Exhibit 10.24 to the Registrant's Annual Report on Form 10-K
filed with the Commission on March 10, 2004)
|
|
10.11**
|
Deferred
Compensation Program for Executives of CSX Corporation and Affiliated
Companies (as amended through January 1, 1998) (incorporated herein by
reference to Exhibit 10.25 to the Registrant's Annual Report on Form 10-K
filed with the Commission on March 10, 2004)
|
|
10.12**
|
2002
Deferred Compensation Plan of CSX Corporation and Affiliated Corporations
(as amended through February 7, 2003) (incorporated herein by reference to
Exhibit 10.26 to the Registrant's Annual Report on Form 10-K filed with
the Commission on March 10, 2004)
|
|
10.13**
|
Supplementary
Savings Plan and Incentive Award Deferral Plan for Eligible Executives of
CSX Corporation and Affiliated Companies (as Amended through February 7,
2003) (incorporated herein by reference to Exhibit 10.27 to the
Registrant's Annual Report on Form 10-K filed with the Commission on March
10, 2004)
|
|
10.14**
|
Special
Retirement Plan of CSX Corporation and Affiliated Companies (as amended
through February 14, 2001) (incorporated herein by reference to Exhibit
10.23 to the Registrant's Report on Form 10-K filed with the Commission on
March 4, 2002)
|
|
10.15**
|
Supplemental
Retirement Benefit Plan of CSX Corporation and Affiliated Companies (as
amended through February 14, 2001) (incorporated herein by reference to
Exhibit 10.24 of the Registrant's Report on Form 10-K filed with the
Commission on March 4, 2002)
|
|
10.16**
|
Senior
Executive Incentive Compensation Plan (incorporated herein by reference to
Appendix B to the Registrant's Definitive Proxy Statement filed with the
Commission on March 17, 2000)
|
|
10.17**
|
CSX
Omnibus Incentive Plan (as Amended through December 12, 2007)
(incorporated by reference to Exhibit 10.17 to the Registrant’s Annual
Report on Form 10-K filed with the Commission on February 22,
2008)
|
|
10.18
|
Transaction
Agreement, dated as of June 10, 1997, by and among CSX Corporation, CSX
Transportation, Inc., Norfolk Southern Corporation, Norfolk Southern
Railway Company, Conrail Inc., Consolidated Rail Corporation and CRR
Holdings LLC, with certain schedules thereto (incorporated herein by
reference to Exhibit 10 to the Registrant’s Current Report on Form 8-K
filed with the Commission on July 8, 1997)
|
|
10.19
|
Amendment
No. 1, dated as of August 22, 1998, to the Transaction Agreement, dated as
of June 10, 1997, by and among CSX Corporation, CSX Transportation, Inc.,
Norfolk Southern Corporation, Norfolk Southern Railway Company, Conrail
Inc., Consolidated Rail Corporation and CRR Holdings LLC (incorporated
herein by reference to Exhibit 10.1 to the Registrant's Current Report on
Form 8-K filed with the Commission on June 11, 1999)
|
|
10.20
|
Amendment
No. 2, dated as of June 1, 1999, to the Transaction Agreement, dated as of
June 10, 1997, by and among CSX Corporation, CSX Transportation, Inc.,
Norfolk Southern Corporation, Norfolk Southern Railway Company, Conrail
Inc., Consolidated Rail Corporation and CRR Holdings, LLC (incorporated
herein by reference to Exhibit 10.2 to the Registrant's Current Report on
Form 8-K filed with the Commission on June 11,
1999)
|
II-7
| Exhibit
Number |
Description of Document
|
|
10.21
|
Amendment
No. 3, dated as of August 1, 2000, to the Transaction Agreement by and
among CSX Corporation, CSX Transportation, Inc., Norfolk Southern
Corporation, Norfolk Southern Railway Company, Conrail Inc., Consolidated
Rail Corporation, and CRR Holdings LLC. (incorporated herein by reference
to Exhibit 10.34 to the Registrant’s Annual Report on Form 10-K dated
March 1, 2001)
|
|
10.22
|
Amendment
No. 4, dated and effective as of June 1, 1999, and executed in April 2004,
to the Transaction Agreement, dated as of June 10, 1997, by and among CSX
Corporation, CSX Transportation, Inc., Norfolk Southern Corporation,
Norfolk Southern Railway Company, Conrail Inc., Consolidated Rail
Corporation, and CRR Holdings LLC (incorporated herein by reference to
Exhibit 99.1 to the Registrant’s Current Report on Form 8-K filed with the
Commission on August 6, 2004)
|
|
10.23
|
Amendment
No. 5, dated as of August 27, 2004, to the Transaction Agreement, dated as
of June 10, 1997, by and among CSX Corporation, CSX Transportation, Inc.,
Norfolk Southern Corporation, Norfolk Southern Railway Company, Conrail
Inc., Consolidated Rail Corporation and CRR Holdings LLC (incorporated
herein by reference to Exhibit 10.1 to the Registrant’s Current Report on
Form 8-K filed with the Commission on September 2,
2004)
|
|
10.24
|
Shared
Assets Area Operating Agreement for Detroit, dated as of June 1, 1999, by
and among Consolidated Rail Corporation, CSX Transportation, Inc. and
Norfolk Southern Railway Corporation, with exhibit thereto (incorporated
herein by reference to Exhibit 10.6 to the Registrant's Current Report on
Form 8-K filed with the Commission on June 11, 1999)
|
|
10.25
|
Shared
Assets Area Operating Agreement for North Jersey, dated as of June 1,
1999, by and among Consolidated Rail Corporation, CSX Transportation, Inc.
and Norfolk Southern Railway Company, with exhibit thereto (incorporated
herein by reference to Exhibit 10.4 to the Registrant's Current Report on
Form 8-K filed with the Commission on June 11, 1999)
|
|
10.26
|
Shared
Assets Area Operating Agreement for South Jersey/Philadelphia, dated as of
June 1, 1999, by and among Consolidated Rail Corporation, CSX
Transportation, Inc. and Norfolk Southern Railway Company, with exhibit
thereto (incorporated herein by reference to Exhibit 10.5 to the
Registrant's Current Report on Form 8-K filed with the Commission on June
11, 1999)
|
|
10.27
|
Monongahela
Usage Agreement, dated as of June 1, 1999, by and among CSX
Transportation, Inc., Norfolk Southern Railway Company, Pennsylvania Lines
LLC and New York Central Lines LLC, with exhibit thereto (incorporated
herein by reference to Exhibit 10.7 to the Registrant's Current Report on
Form 8-K filed with the Commission on June 11, 1999)
|
|
10.28
|
Tax
Allocation Agreement, dated as of August 27, 2004, by and among CSX
Corporation, Norfolk Southern Corporation, Green Acquisition Corp.,
Conrail Inc., Consolidated Rail Corporation, New York Central Lines LLC
and Pennsylvania Lines LLC (incorporated herein by reference to Exhibit
10.2 to the Registrant's Current Report on Form 8-K filed with the
Commission on September 2, 2004)
|
|
10.29**
|
Employment
Agreement with David A. Brown, dated as of January 1, 2010 (incorporated
by reference to Exhibit 10.29 to the Registrant’s Annual Report on Form
10-K filed with the Commission on February 19, 2010)
|
|
10.30**
|
Restricted
Stock Award Agreement with David A. Brown (incorporated by reference to
Exhibit 10.30 to the Registrant’s Annual Report on Form 10-K filed with
the Commission on February 19, 2010)
|
|
10.31**
|
Restricted
Stock Award Agreement with Lisa A. Mancini (incorporated by reference to
Exhibit 10.31 to the Registrant’s Annual Report on Form 10-K filed with
the Commission on February 19, 2010)
|
|
10.32
|
Revolving
Credit Agreement, dated May 4, 2006 (incorporated herein by reference to
Exhibit 99.1 to the Registrant's Current Report on Form 8-K filed with the
Commission on May 9, 2006)
|
|
10.33**
|
Long-term
Incentive Plan, dated May 6, 2008 (incorporated herein by reference to
Exhibit 10.1 to the Registrant's Current Report on Form 8-K filed with the
Commission on May 9, 2008)
|
|
10.34
|
Long-term
Incentive Plan, dated May 5, 2009 (incorporated herein by reference to
Exhibit 10.1 to the Registrant's Current Report on Form 8-K filed with the
Commission on May 11, 2009)
|
|
Other
|
|
|
12.1*
|
Computation
of Ratio of Earnings to Fixed Charges
|
|
21.1*
|
Subsidiaries
of CSX Corporation
|
|
23.1*
|
Consent
of Ernst & Young LLP
|
|
23.2*
|
Consent
of Cravath, Swaine & Moore LLP (included in Exhibit
5.1)
|
|
24.1*
|
Power
of Attorney of certain officers and directors
|
|
25.1*
|
Statement
of Eligibility of The Bank of New York Mellon Trust Company, N.A. (as
successor to The Bank of New York Mellon, formerly The Bank of New York,
as successor to JPMorgan Chase Bank, N.A., formerly The Chase Manhattan
Bank), as Trustee under the Indenture, dated August 1, 1990, between CSX
and The Bank of New York Mellon Trust Company, N.A., as amended and
supplemented, on Form T-1
|
II-8
| Exhibit
Number |
Description of Document
|
|
99.1*
|
Form
of Letter of Transmittal
|
|
99.2*
|
Form
of Letter to Clients
|
|
99.3*
|
Form
of Letter to Brokers
|
* Filed herewith.
** Management
Contract or Compensatory Plan or Arrangement.
Note:
Items not filed herewith have been submitted in previous SEC
filings.
II-9