As
filed with the Securities and Exchange Commission on February 15,
2007.
Registration
No. 333-
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
__________________
FORM
S-3
REGISTRATION
STATEMENT
Under
THE
SECURITIES ACT OF 1933
__________________
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CSX
Corporation
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Commonwealth
of Virginia
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62-1051971
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(Exact
name of registrant
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(State
or other jurisdiction
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(I.R.S.
Employer
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as
specified in charter)
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of
incorporation or organization)
|
Identification
No.)
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CSX
Capital Trust I
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Delaware
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54-2039106
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(Exact
name of registrant as
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(State
or other jurisdiction
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(I.R.S.
Employer
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specified
in certificate of trust)
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of
incorporation or organization)
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Identification
No.)
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500
Water Street, 15th
Floor
Jacksonville,
Florida 32202
(904)
359-3200
(Address,
including zip code, and telephone number, including area code, of registrants’
principal executive offices)
Ellen
M. Fitzsimmons
Senior
Vice President – Law and
Public
Affairs
and
Corporate Secretary
CSX
Corporation
500
Water Street, 15th
Floor
Jacksonville,
Florida 32202
(904)
359-3200
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service of process)
__________________
Copy
to:
Ronald
Cami, Esq.
Cravath,
Swaine & Moore LLP
825
Eighth Avenue
New
York, New York 10019
(212)
474-1048
(212)
765-0997 (facsimile)
__________________
Approximate
date of commencement of proposed sale to the public: From
time
to time after the effective date of this registration statement.
If
the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box.
¨
If
any of
the securities being registered on this Form are to be offered on a delayed
or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, as
amended (the “Securities Act”), other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box.
x
If
this
Form is filed to register additional securities for an offering pursuant to
Rule
462(b) under the Securities Act, please 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(c) 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 registration statement pursuant to General Instruction I.D or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. x
If
this
Form is a post-effective amendment to a registration statement filed pursuant
to
General Instruction I.D filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. ¨
If
delivery of the prospectus is expected to be made pursuant to Rule 434, please
check the following box. ¨
__________________
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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 (1)
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Proposed
maximum offering
price
per unit (1)
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Proposed
maximum aggregate offering price (1)
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Amount
of registration fee (2)
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Senior
and Subordinated Debt Securities (3)(4)
Trust
Preferred Securities, Related Guarantee and Agreement as to Expenses
and
Liabilities (5)
Preferred
Stock (6)
Common
Stock (6)(7)
Depositary
Shares (6)(8)
Warrants
for Debt Securities, Preferred Stock and/or Common Stock
(9)
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__________________
(Footnotes
on next page)
________________
(FOOTNOTES
CONTINUED FROM PREVIOUS PAGE)
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(1)
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An
indeterminate aggregate initial offering price or number of the securities
of each identified class is being registered as may from time to
time be
offered at indeterminate prices.
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(2)
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An
unspecified number of the securities of each identified class is
being
registered. In accordance with Rules 456(b) and 457(r), the
registrants are deferring payment of all of the registration fee,
except
for $60,696.54 that has already been paid with respect to $900,000,000
aggregate initial offering price of securities that were previously
registered pursuant to Registration Statement No. 333-113637 and were
not sold thereunder.
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(3)
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If
any debt securities are issued at an original issue discount, then
such
greater amount as may be sold for an aggregate initial offering price
of
up to the proposed maximum aggregate offering price set forth
above.
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(4)
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In
addition to any debt securities that may be issued directly under
this
registration statement, there is being registered hereunder such
indeterminate amount of debt securities as may be issued upon conversion
or exchange of other debt securities, trust preferred securities,
preferred stock or depositary shares, for which no separate consideration
will be received by CSX
Corporation.
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(5)
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No
separate consideration will be received by CSX Corporation for the
guarantee or the agreement as to expenses and
liabilities.
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(6)
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Such
indeterminate number of shares of preferred stock and common stock,
and
such indeterminate number of depositary shares, as may be issued
from time
to time at indeterminate prices. In addition to any preferred stock,
depositary shares and common stock that may be issued directly under
this
registration statement, there are being registered hereunder such
indeterminate number of shares of preferred stock and common stock,
and
such indeterminate number of depositary shares, as may be issued
upon
conversion or exchange of debt securities, trust preferred securities,
preferred stock or depositary shares, as the case may be, for which
no
separate consideration will be received by CSX
Corporation.
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(7)
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The
aggregate amount of common stock registered hereunder is limited,
solely
for purposes of any at the market offerings, to that which is permissible
under Rule 415(a)(4) of the Securities
Act.
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(8)
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Depositary
shares will represent fractional interests in shares of preferred
stock
registered hereby.
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(9)
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Warrants
to purchase debt securities, preferred stock and/or common stock
will
represent rights to purchase debt securities, preferred stock and/or
common stock, respectively, registered
hereby.
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Subject to Completion, February 15, 2007
 |
PROSPECTUS
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DEBT
SECURITIES, TRUST PREFERRED SECURITIES (AND RELATED GUARANTEE AND
AGREEMENT AS TO EXPENSES AND LIABILITIES), COMMON STOCK, PREFERRED
STOCK, DEPOSITARY SHARES AND
SECURITIES WARRANTS
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______________
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We
may sell from time to time, in one or more offerings:
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· debt
securities
· trust
preferred securities, related guarantee and agreement as to expenses
and
liabilities
· common
stock
· preferred
stock
· depositary
shares
· warrants
for debt securities, common stock and/or preferred
stock
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______________
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We
will provide specific terms of these securities in supplements
to this
prospectus. You should read this prospectus and any supplement
carefully
before you invest.
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______________
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Neither
the Securities and Exchange Commission nor any state securities
commission
has approved or disapproved these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary
is
a criminal offense.
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This
prospectus is dated February 15, 2007.
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TABLE
OF CONTENTS
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About
This Prospectus
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2
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Where
You Can Find More Information
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3
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CSX
Corporation
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4
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CSX
Capital Trust I
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4
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Ratio
of Earnings to Fixed Charges
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4
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Description
of Debt Securities
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5
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Additional
Terms of Subordinated Debt Securities
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17
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Description
of Trust Preferred Securities
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19
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Description
of the Guarantee
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28
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Relationship
Among the Trust Preferred Securities, the Guarantee and the Subordinated
Debt Securities
Held by the Trust |
31
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Accounting
Treatment
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32
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Description
of Capital Stock
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33
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Description
of Depositary Shares
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36
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Description
of Securities Warrants
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36
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Plan
of Distribution
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37
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Legal
Opinions
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39
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Experts
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39
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ABOUT
THIS PROSPECTUS
This
prospectus is part of a shelf registration statement that CSX Corporation
(“CSX”) filed with the Securities and Exchange Commission (“SEC”). Under the
shelf registration statement, CSX may sell, separately or in units, any
combination of the securities described in this prospectus in one or more
offerings. For further information about our business and the securities, you
should refer to the registration statement and its exhibits. The exhibits to
the
registration statement and the documents we incorporate by reference contain
the
full text of certain contracts and other important documents summarized in
this
prospectus. Since these summaries may not contain all the information that
you
may find important in deciding whether to purchase the securities CSX may offer,
you should review the full text of those documents. The registration statement
can be obtained from the SEC as indicated under the heading “Where You Can Find
More Information.”
This
prospectus provides you with a general description of the securities CSX may
offer. Each time CSX sells securities, we will provide a prospectus supplement
that will contain specific information about the terms of that offering. Any
material United States federal income tax considerations will also be discussed
in the applicable prospectus supplement. The prospectus supplement may also
add,
update or change information contained in this prospectus. You should read
both
this prospectus and any prospectus supplement together with additional
information described under the heading “Where You Can Find More Information.”
In this prospectus, unless otherwise indicated, the words “CSX,” “we,” “our” and
“us” refer to CSX Corporation, a Virginia corporation, and our
subsidiaries.
2
CSX
files
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
450 Fifth Street, N.W., 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.
The
SEC
allows CSX to incorporate by reference the information we file with the SEC,
which means that we can disclose important information to you by referring
you
to those documents. The information incorporated by reference is an important
part of this prospectus, and information that we file later with the SEC will
automatically update and supersede this information. CSX incorporates by
reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), until CSX sells all of the securities
covered by the shelf registration statement.
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·
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Annual
Report on Form 10-K for the fiscal year ended December 29,
2006;
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·
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Current
Report on Form 8-K filed with the SEC on January 22, 2007;
and
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·
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The
description of CSX common stock contained in our Registration Statement
on
Form 8-B (File No. 1-8022) filed with the SEC on September 25,
1980.
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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 and Corporate Secretary, CSX Corporation, 500 Water Street,
15th
Floor,
Jacksonville, Florida 32202, telephone number (904) 359-3200.
You
should rely only on the information contained or incorporated by reference
in
this prospectus and any prospectus supplement. CSX has not authorized anyone
to
provide you with different information. If anyone provides you with different
or
inconsistent information, you should not rely on it. CSX will not make an offer
to sell these securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing in this prospectus,
as well as information CSX previously filed with the SEC and incorporated by
reference in this prospectus, is accurate only as of the date on the front
cover
of this prospectus. Our business, financial condition, results of operations
and
prospects may have changed since that date.
3
CSX
CORPORATION
CSX,
based in Jacksonville, Florida, is one of the nation’s leading transportation
companies. Surface Transportation, which includes CSX’s rail and intermodal
businesses, provides 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 the
largest railroad in the eastern United States with a rail network of
approximately 21,000 miles, linking markets in 23 states, the District of
Columbia and the Canadian provinces of Ontario and Quebec. CSX Intermodal Inc,
one of the nation’s largest coast-to-coast intermodal transportation providers,
is an integrated, intermodal company linking customers to railroads via trucks
and terminals.
CSX’s
other holdings include CSX Hotels, Inc., a resort doing business as The
Greenbrier, located in White Sulphur Springs, West Virginia, and CSX Real
Property, Inc., an organization responsible for the management, sale, lease,
acquisition and development of company properties. See “Where You Can Find More
Information” above.
CSX
CAPITAL TRUST I
CSX
Capital Trust I, which is referred to in this prospectus as the “Trust,” is a
statutory trust formed under Delaware law by us, as sponsor for the Trust,
and
The Bank of New York (as successor to Chase Bank USA, National Association,
formerly Chase Manhattan Bank USA, National Association), who will serve as
trustee in the State of Delaware for the purpose of complying with the
provisions of the Delaware Statutory Trust Act. The trust agreement for the
Trust will be amended and restated substantially in the form filed as an exhibit
to the registration statement, effective when securities of the Trust are
initially issued. The amended trust agreement will be qualified as an indenture
under the Trust Indenture Act of 1939. The Trust exists for the exclusive
purposes of:
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·
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issuing
two classes of trust securities, trust preferred securities and trust
common securities, which together represent undivided beneficial
interests
in the assets of the Trust;
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investing
the gross proceeds of the trust securities in our subordinated debt
securities;
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·
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making
distributions; and
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·
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engaging
in only those other activities necessary, advisable or incidental
to the
purposes listed above.
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Subordinated
debt securities of CSX will be the sole assets of the Trust, and our payments
under those subordinated debt securities and the agreement as to expenses and
liabilities will be the sole revenue of the Trust. No separate financial
statements of the Trust are included in this prospectus. CSX considers that
those financial statements would not be material to holders of the trust
preferred securities because the Trust has no independent operations and the
purpose of the Trust is as described above. The Trust is not required to file
annual, quarterly or special reports with the SEC.
The
principal place of business of the Trust will be c/o CSX Corporation, 500 Water
Street, 15th
Floor,
Jacksonville, Florida 32202, telephone number (904) 359-3200.
CSX’s
consolidated ratio of earnings to fixed charges for each of the fiscal periods
indicated is as follows:
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For
the Fiscal Years Ended
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Dec.
29, 2006
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Dec.
30, 2005
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Dec.
31, 2004
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Dec.
26, 2003
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Dec.
27, 2002
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Ratio
of earnings to fixed charges
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5.0x
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3.0x
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2.0x
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1.3x
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2.2x
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4
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.
CSX
will
use the net proceeds from the sale of the securities for general corporate
purposes, which may include reduction or refinancing of outstanding
indebtedness, capital expenditures, working capital requirements, implementation
of work force reductions, improvements in productivity and other cost reductions
at our surface transportation units, and redemptions and repurchases of certain
outstanding securities. CSX has not specifically allocated the proceeds to
those
purposes as of the date of this prospectus. The precise amount and timing of
the
application of proceeds from the sale of securities will depend upon the funding
requirements of CSX and the availability and cost of other funds at the time
of
the sale. Allocation of the proceeds of a particular series of securities,
or
the principal reasons for the offering if no allocation has been made, will
be
described in the applicable prospectus supplement.
DESCRIPTION
OF DEBT SECURITIES
CSX
may
issue debt securities either separately, or together with, or upon the
conversion of or in exchange for, other securities. The debt securities will
be
either senior unsecured obligations or subordinated unsecured obligations of
CSX. Senior debt securities will be issued under a senior indenture dated as
of
August 1, 1990 between CSX and The
Bank of New York (as successor to JPMorgan Chase Bank, N.A., formerly The Chase
Manhattan Bank), as
trustee, as currently supplemented and amended and as further supplemented
and
amended from time to time. Subordinated debt securities will be issued under
a
subordinated indenture to be entered into between CSX and The
Bank of New York (as successor to JPMorgan Chase Bank, N.A., formerly The Chase
Manhattan Bank),
as
trustee, as further supplemented and amended from time to time. Copies of the
senior indenture and a form of the subordinated indenture have been incorporated
by reference in, or filed as exhibits to, the registration statement of which
this prospectus is a part. The senior indenture and the subordinated indenture
are sometimes referred to collectively as the “indentures.” The trustee under
the senior indenture and the trustee under the subordinated indenture are
sometimes referred to collectively as the “trustees.”
The
discussion of the material provisions of the indentures and the debt securities
set forth below and the discussion of the material terms of a particular series
of debt securities set forth in the applicable prospectus supplement are subject
to and are qualified in their entirety by reference to all of the provisions
of
the indentures, which provisions of the indentures (including defined terms)
are
incorporated in this description of debt securities by reference.
The
debt
securities may be issued from time to time in one or more series of senior
debt
securities and one or more series of subordinated debt securities. Neither
indenture limits the aggregate principal amount of debt securities that may
be
issued under it. Unless otherwise provided in the terms of a series, a series
may be reopened, without notice to or consent of any holder of outstanding
debt
securities, for issuances of additional debt securities of that series. The
terms of each series of debt securities will be established by or pursuant
to a
resolution of our Board of Directors and set forth or determined in the manner
provided in an officer’s certificate or by a supplemental indenture. The
following description of debt securities summarizes certain general terms and
provisions of the series of debt securities to which any prospectus supplement
may relate. The particular terms of each series of debt securities offered
by a
prospectus supplement or prospectus supplements will be described in the
prospectus supplement or prospectus supplements relating to that
series.
Unless
otherwise indicated, currency amounts in this prospectus and any prospectus
supplement are stated in United States dollars.
5
General
The
prospectus supplement for a particular series of debt securities will describe
the specific terms of that series, including (where applicable):
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·
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the
title of the debt securities;
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·
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any
limit on the aggregate principal amount of the debt
securities;
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·
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whether
the debt securities are to be issuable as registered debt securities
or
bearer debt securities or both, whether any of the debt securities
are to
be issuable initially in temporary global form and whether any of
the debt
securities are to be issuable in permanent global
form;
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·
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the
price or prices (expressed as a percentage of the aggregate principal
amount of the debt securities) at which the debt securities will
be
issued;
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·
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the
date or dates on which the debt securities will
mature;
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·
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the
rate or rates per annum at which the debt securities will bear interest,
if any, or the formula pursuant to which the rate or rates will be
determined, and the date or dates from which interest will
accrue;
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·
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the
interest payment dates on which interest on the debt securities will
be
payable and the regular record date for any interest payable on any
registered debt securities on any interest payment
date;
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·
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the
person to whom any interest on any registered debt securities of
the
series will be payable, if other than the person in whose name that
debt
security (or one or more predecessor debt securities) is registered
at the
close of business on the regular record date for that interest, the
manner
in which, or the person to whom, any interest on any bearer debt
security
of the series will be payable, if otherwise than upon presentation
and
surrender of the applicable coupons, and the extent to which, or the
manner in which, any interest payable on a temporary global debt
security
on an interest payment date will be paid if other than in the manner
provided in the relevant indenture and the extent to which, or the
manner
in which, any interest payable on a permanent global debt security
on an
interest payment date will be paid;
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·
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each
office or agency where, subject to the terms of the relevant indenture
as
described below under “Payment and Paying Agents,” the principal of and
any premium and interest on the debt securities will be payable and
each
office or agency where, subject to the terms of the relevant indenture
as
described below under “Form, Exchange, Registration and Transfer,” the
debt securities may be presented for registration of transfer or
exchange;
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·
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the
period or periods within which and the price or prices at which the
debt
securities may, pursuant to any optional redemption provisions, be
redeemed, in whole or in part, at our option and the other detailed
terms
and conditions of any optional redemption
provisions;
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·
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the
obligation, if any, of CSX to redeem or purchase the debt securities
pursuant to any sinking fund or analogous provisions or at the option
of
the holder of the debt securities and the period or periods within
which
and the price or prices at which the debt securities will be redeemed
or
purchased, in whole or in part, pursuant to that obligation, and
the other
detailed terms and conditions of that
obligation;
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·
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the
denominations in which any registered debt securities will be issuable,
if
other than denominations of $1,000 and any integral multiple of $1,000,
and the denomination or denominations in which bearer debt securities
will
be issuable, if other than denominations of
$5,000;
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6
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·
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the
currency or currencies, including currency units, in which payment
of
principal of and any premium and interest on the debt securities
will be
payable if other than U.S. dollars and the ability, if any, of CSX
or the
holders of the debt securities to have payments made in any currency
other
than those in which the debt securities are stated to be
payable;
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·
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whether
the amount of payments of principal of, premium, if any, and interest,
if
any, on the debt securities may be determined with reference to an
index
and the manner in which those amounts will be
determined;
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·
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the
portion of the principal amount of the debt securities that will
be
payable upon acceleration if other than the full principal
amount;
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·
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any
limitation on the application of the terms of the indenture described
below under “Discharge, Defeasance and Covenant
Defeasance;”
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·
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the
terms, if any, upon which the debt securities may be convertible
into or
exchangeable for other securities;
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·
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whether
the debt securities will be senior debt securities or subordinated
debt
securities; and
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·
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any
other terms of the debt securities not inconsistent with the provisions
of
the relevant indenture.
|
The
prospectus supplement will also describe any special provisions for the payment
of additional amounts relating to specified taxes, assessments or other
governmental charges in respect of the debt securities of that series and
whether CSX has the option to redeem the affected debt securities rather than
pay those additional amounts.
As
used
in this prospectus and any prospectus supplement relating to the offering of
any
debt securities, references to the principal of and premium, if any, and
interest, if any, on the debt securities will be deemed to include mention
of
the payment of additional amounts, if any, required by the terms of the debt
securities.
If
the
purchase price of any debt securities is payable in a currency other than U.S.
dollars or if principal of, or premium, if any, or interest, if any, on any
of
the debt securities is payable in any currency other than U.S. dollars, the
specific terms and other information with respect to those debt securities
and
that currency will be specified in the related prospectus
supplement.
Debt
securities of a series may also be issued under the relevant indenture upon
the
exercise of debt warrants issued by CSX. See “Description of Debt
Warrants.”
The
indentures do not contain any provisions that may afford the holders of debt
securities of any series protection in the event of a highly leveraged
transaction or other transaction that may occur in connection with a takeover
attempt resulting in a decline in the credit rating of the debt securities.
Those provisions, if applicable to the debt securities of any series, will
be
described in the related prospectus supplement.
Form,
Exchange, Registration and Transfer
Unless
otherwise indicated in the applicable prospectus supplement, each series of
debt
securities will be issued in registered form only, without coupons. The
indentures, however, provide that CSX may also issue debt securities in bearer
form only, or in both registered and bearer form. Bearer debt securities will
not be offered, sold, resold or delivered in connection with their original
issuance in the United States or to any United States person other than to
offices located outside the United States of certain United States financial
institutions. Purchasers of bearer debt securities will be subject to
certification procedures and may be affected by certain limitations under United
States tax laws. Those procedures and limitations will be described in the
prospectus supplement relating to the offering of the bearer debt securities.
Unless otherwise indicated in an applicable prospectus supplement or prospectus
supplements, bearer debt securities will have interest coupons attached. The
indentures also will provide that debt securities of a series may be issuable
in
temporary or permanent global form. See “Global Debt Securities.”
7
At
the
option of the holder, subject to the terms of the relevant indenture, registered
debt securities of any series will be exchangeable for other registered debt
securities of the same series of any authorized denominations and of a like
aggregate principal amount and tenor. In addition, if debt securities of any
series are issuable as both registered debt securities and bearer debt
securities, at the option of the holder, subject to the terms of the relevant
indenture, bearer debt securities (with all unmatured coupons, except as
provided below, and with all matured coupons in default) of that series will
be
exchangeable for registered debt securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor. Bearer debt
securities surrendered in exchange for registered debt securities between a
regular record date or a special record date and the relevant date for payment
of interest will be surrendered without the coupon relating to that date for
payment of interest and interest will not be payable in respect of the
registered debt security issued in exchange for that bearer debt security,
but
will be payable only to the holder of the coupon relating to that date when
due
in accordance with the terms of the indenture. Registered debt securities,
including registered debt securities received in exchange for bearer debt
securities, may not be exchanged for bearer debt securities. Each bearer debt
security and coupon will bear a legend to the following effect:
“Any
United States person who holds this obligation will be subject to limitations
under the United States income tax laws, including the limitations provided
in
Sections 165(j) and 1287(a) of the Internal Revenue Code.”
Debt
securities may be presented for exchange as provided above, and registered
debt
securities may be presented for registration of transfer (with the form of
transfer duly executed), at the office of the security registrar or at the
office of any transfer agent designated by CSX for that purpose with respect
to
any series of debt securities and referred to in an applicable prospectus
supplement, without a service charge and upon payment of any taxes and other
governmental charges as described in the relevant indenture. The transfer or
exchange will be effected upon the records of the security registrar or the
transfer agent, as the case may be, being satisfied with the documents of title
and identity of the person making the request. CSX has appointed the trustee
as
security registrar. If a prospectus supplement refers to any transfer agent
(in
addition to the security registrar) initially designated by CSX with respect
to
any series of debt securities, CSX may at any time rescind the designation
of
that transfer agent or approve a change in the location through which that
transfer agent acts, except that, if debt securities of a series are issuable
solely as registered debt securities, CSX will be required to maintain a
transfer agent in each place of payment for that series and, if debt securities
of a series are issuable as bearer debt securities, CSX will be required to
maintain (in addition to the security registrar) a transfer agent in a place
of
payment for that series located outside the United States and its possessions.
CSX may at any time designate additional transfer agents with respect to any
series of debt securities.
In
the
event of any partial redemption, CSX will not be required to
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issue,
register the transfer of or exchange any debt security during a period
beginning at the opening of business 15 days before any selection
for
redemption of debt securities of like tenor and of the series of
which
that debt security is a part, and ending at the close of business
on the
earliest date on which the relevant notice of redemption is deemed
to have
been given to all holders of debt securities of like tenor and of
the
series to be redeemed;
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register
the transfer of or exchange any registered debt security so selected
for
redemption, in whole or in part, except the unredeemed portion of
any debt
security being redeemed in part; or
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exchange
any bearer debt security so selected for redemption, except to exchange
that bearer debt security for a registered debt security of that
series
and like tenor which is immediately surrendered for
redemption.
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8
Payment
and Paying Agents
Unless
otherwise indicated in an applicable prospectus supplement, principal of and
any
premium and interest on bearer debt securities will be payable, subject to
any
applicable laws and regulations, at the offices of paying agents outside the
United States and its possessions that CSX may designate from time to time
or,
at the option of the holder, by check or by transfer to an account maintained
by
the payee with a financial institution located outside the United States and its
possessions. Unless otherwise indicated in an applicable prospectus supplement,
payment of interest on a bearer debt security on any interest payment date
will
be made only against surrender to the paying agent of the coupon relating to
that interest payment date. No payment with respect to any bearer debt security
will be made at any office or agency of CSX in the United States or its
possessions or by check mailed to any address in the United States or its
possessions or by transfer to any account maintained with a financial
institution located in the United States or its possessions. However, payments
of principal of and any premium and interest on bearer debt securities
denominated and payable in U.S. dollars will be made at the office of the paying
agent in the Borough of Manhattan, The City of New York, if (but only if)
payment of the full amount in U.S. dollars at all offices or agencies outside
the United States and its possessions is illegal or effectively precluded by
exchange controls or other similar restrictions.
Unless
otherwise indicated in an applicable prospectus supplement, principal of and
any
premium and interest on registered debt securities will be payable, subject
to
any applicable laws and regulations, at the office of the paying agent or paying
agents that CSX may designate from time to time, except that at our option
payment of any interest may be made by check mailed to the address of the person
entitled to that payment as that address appears in the security register.
Unless otherwise indicated in an applicable prospectus supplement, payment
of
interest on a registered debt security on any interest payment date will be
made
to the person in whose name that registered debt security (or predecessor debt
security) is registered at the close of business on the regular record date
for
that interest.
Unless
otherwise indicated in an applicable prospectus supplement, the corporate trust
office of the trustee in The City of New York will be designated as a paying
agent for CSX for payments with respect to debt securities of each series which
are issuable solely as registered debt securities and as a paying agent for
payments with respect to debt securities of each series (subject to the
limitations described above in the case of bearer debt securities) which are
issuable solely as bearer debt securities or as both registered debt securities
and bearer debt securities. Any paying agents outside the United States and
its
possessions and any other paying agents in the United States or its possessions
initially designated by CSX for the debt securities of each series will be
named
in the applicable prospectus supplement. CSX may at any time designate
additional paying agents or rescind the designation of any paying agent or
approve a change in the office through which any paying agent acts, except
that
if debt securities of a series are issuable solely as registered debt
securities, CSX will be required to maintain a paying agent in each place of
payment for that series and, if debt securities of a series are issuable as
bearer debt securities, CSX will be required to maintain
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a
paying agent in the Borough of Manhattan, The City of New York for
payments with respect to any registered debt securities of the series
(and
for payments with respect to bearer debt securities of the series
in the
circumstances described above, but not otherwise),
and
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a
paying agent in a place of payment located outside the United States
and
its possessions where debt securities of that series and any related
coupons may be presented and surrendered for
payment;
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provided,
however, that if the debt securities of that series are listed on a stock
exchange located outside the United States and its possessions and that stock
exchange requires CSX to do so, CSX will maintain a paying agent in a city
located outside the United States and its possessions for the debt securities
of
that series.
All
moneys paid by CSX to a paying agent for the payment of the principal of and
any
premium or interest on any debt security of any series which remain unclaimed
at
the end of two years after that principal, premium or interest has become due
and payable will be repaid to CSX and the holder of that debt security or any
related coupon will after that time look only to CSX for payment of that
principal, premium or interest.
9
Ranking
of Debt Securities; Holding Company Structure
The
senior debt securities 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. The subordinated debt securities will be
unsecured obligations of CSX and will be subordinated in right of payment to
all
existing and future senior indebtedness (as defined below) of CSX. See
“Additional Terms of Subordinated Debt Securities – Subordination.”
The
debt
securities 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 debt securities, are largely dependent upon the earnings
of
those subsidiaries.
Because
CSX is a holding company, the debt securities 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 debt
securities, 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.
Global
Debt Securities
The
debt
securities of a series may be issued in whole or in part in the form of one
or
more global securities that will be deposited with, or on behalf of, a
depositary identified in the prospectus supplement relating to that series.
Global debt securities may be issued in either registered or bearer form and
in
either temporary or permanent form. Unless and until it is exchanged in whole
or
in part for individual certificates evidencing debt securities in definitive
form, a global debt security may not be transferred except as a whole by the
depositary for that global debt security to a nominee of the depositary or
by a
nominee of the depositary to the depositary or another nominee of the depositary
or by the depositary or any nominee to a successor of the depositary or a
nominee of the successor.
The
specific terms of the depositary arrangement with respect to a series of global
debt securities and certain limitations and restrictions relating to a series
of
global bearer debt securities will be described in the prospectus supplement
relating to that series.
Redemption
and Repurchase
The
debt
securities of any series may be redeemable at our option, may be subject to
mandatory redemption pursuant to a sinking fund or otherwise, or may be subject
to repurchase by us at the option of the holders, in each case upon the terms,
at the times and at the prices set forth in the applicable prospectus
supplement.
Conversion
and Exchange
The
terms, if any, on which debt securities of any series are convertible into
or
exchangeable for our common stock, preferred stock, depositary shares or other
debt securities will be set forth in the applicable prospectus supplement.
Those
terms may include provisions for conversion or exchange, either mandatory,
at
the option of the holders or at our option.
Certain
Covenants and Agreements of CSX
The
indentures do not limit the amount of indebtedness or lease obligations that
may
be incurred by CSX and our subsidiaries. The indentures do not contain
provisions that would give holders of the debt securities the right to require
CSX to repurchase their debt securities in the event of a decline in the credit
rating of our debt securities resulting from a takeover, recapitalization or
similar restructuring, or otherwise.
10
Covenant
in the Senior Indenture–Limitation
on Liens on Stock of Our Principal Subsidiaries.
The
following covenant will be applicable to senior debt securities but not to
subordinated debt securities. The senior indenture provides that CSX may not,
nor may it permit any subsidiary to, create, assume, incur or suffer to exist
any mortgage, pledge, lien, encumbrance, charge or security interest of any
kind
upon any stock or indebtedness, whether owned on the date of the senior
indenture or acquired later, of any principal subsidiary, to secure any
obligation (other than the 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 senior
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 senior 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 indentures do not prohibit the sale by CSX or any subsidiary
of any stock or indebtedness of any subsidiary, including any principal
subsidiary.
Provision
in Both Indentures–Consolidation,
Merger and Sale of Assets.
The
following provision will be applicable to both senior debt securities and
subordinated debt securities. Each indenture provides that CSX may, without
the
consent of the holders of any of the outstanding debt securities of a series,
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:
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the
successor corporation assumes, by a supplemental indenture, CSX’s
obligations on the debt securities of each series and under the
indenture,
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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
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CSX
delivers to the relevant 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.
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Events
of Default
An
“event
of default” with respect to the debt securities of any series is defined in the
relevant indenture as:
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a
failure to pay principal of or any premium on any of the debt securities
of that series when due;
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a
failure to pay any interest on any debt security of that series when
due,
continued for 30 days;
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a
failure to deposit any sinking fund payment, when due, in respect
of any
debt security of that series;
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a
failure to perform any other covenant of CSX in the relevant indenture
(other than a covenant included in that indenture solely for the
benefit
of a series of debt securities other than that series) continued
for 90
days after written notice as provided in the
indenture;
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certain
events of bankruptcy, insolvency or reorganization of CSX;
or
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any
other event of default provided with respect to debt securities of
that
series.
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11
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. Each indenture provides that the trustee may withhold notice to
the
holders of the debt securities of any series of the occurrence of a default
with
respect to the debt securities of that series (except a default in payment
of
principal, premium, if any, interest, if any, or sinking fund payments, 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 each trustee, during
an
event of default under the relevant indenture, to act with the requisite
standard of care, and to the provisions of the relevant indenture relating
to
the duties of the trustee in case an event of default occurs and is continuing,
a 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 debt
securities of any series or any related coupons unless those holders offer
to
the trustee reasonable indemnity. Subject to the provisions for the
indemnification of the relevant trustee, the holders of a majority in aggregate
principal amount of the outstanding debt securities of any series will have
the
right to direct the time, method and place of conducting any proceeding for
any
remedy available to the relevant trustee, or exercising any trust or power
conferred on the trustee, with respect to debt securities of that
series.
If
an
event of default with respect to debt securities of any series at the time
outstanding occurs and is continuing, either the relevant trustee or the holders
of at least 25% in aggregate principal amount of the outstanding debt securities
of that series may declare the principal of all those outstanding debt
securities to be due and payable immediately. At any time after a declaration
of
acceleration with respect to debt securities of any series has been made but
before a judgment or decree for payment of money due has been obtained by the
relevant trustee, the holders of a majority in aggregate principal amount of
outstanding debt securities of that series 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 debt securities of any series or any related coupons will have any right
to institute any proceeding with respect to the relevant indenture or for any
remedy under the indenture, unless that holder has previously given to the
relevant trustee written notice of a continuing event of default with respect
to
debt securities of that series, the holders of at least 25% in aggregate
principal amount of the outstanding debt securities of that series have made
written request, and offered reasonable indemnity, to the relevant 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 debt
securities of that series 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 an outstanding debt security
of
that series for enforcement of payment of the principal of, or any premium
or
interest on, that debt security on or after the respective due dates expressed
in that debt security.
CSX
is
required to furnish to the relevant trustee annually a statement as to
performance or fulfillment of covenants, agreements or conditions in the
relevant indenture and as to the absence of default.
Meetings,
Modification and Waiver
Each
indenture contains provisions permitting CSX and the relevant trustee, with
the
consent of the holders of not less than a majority in aggregate principal amount
of the outstanding debt securities of each series issued under that indenture
and affected by a modification or amendment (voting as one class), to modify
or
amend any of the provisions of that indenture or of those debt securities or
the
rights of the holders of those debt securities under that indenture, provided
that no modification or amendment will, without the consent of each holder
of
each outstanding debt security affected by that modification or
amendment:
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change
the stated maturity of the principal of, or any installment of principal
of or interest on, any debt security, or reduce the principal amount
of or
the rate of interest on or any premium payable upon the redemption
of any
debt security, or change any obligation of CSX to pay additional
amounts
(except as contemplated and permitted by the indenture), or reduce
the
amount of the principal of an original issue discount security that
would
be due and payable upon a declaration of acceleration of the maturity
of
that security or change the coin or currency in which any debt security
or
any premium or interest on any debt security is payable, or impair
the
right to institute suit for the enforcement of any payment on or
after the
stated maturity of any debt security (or, in the case of redemption,
on or
after the redemption date),
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12
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reduce
the percentage in principal amount of the debt securities, 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 debt
securities,
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change
any obligation of CSX to maintain an office or agency in the places
and
for the purposes required by the
indenture,
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solely
in the case of the subordinated indenture, modify any of the provisions
of
the subordinated indenture relating to subordination of the subordinated
debt securities or the definition of senior indebtedness in a manner
adverse to the holders of the subordinated debt securities,
or
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modify
any of the above provisions (except as permitted by the
indenture).
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Each
indenture also contains provisions permitting CSX and the relevant trustee,
without the consent of the holders of the debt securities issued under the
indenture, to modify or amend the indenture in order, among other
things:
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to
add any additional events of default or add to the covenants of CSX
for
the benefit of the holders of all or any series of debt securities
issued
under the indenture;
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to
establish the form or terms of debt securities of any
series;
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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 any debt securities issued under the
indenture
in any material respect; or
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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.
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The
holders of at least a majority in aggregate principal amount of the outstanding
debt securities of a series may, on behalf of the holders of all the debt
securities of that series, waive, insofar as that series is concerned,
compliance by CSX with certain restrictive provisions of the indenture,
including the covenant described above under “–Certain Covenants and Agreements of
CSX–Covenant in the Senior Indenture–Limitation
on Liens on Stock of Our Principal
Subsidiaries.” The holders of not less than a majority in aggregate principal
amount of the outstanding debt securities of a series may, on behalf of all
holders of debt securities of that series and any related coupons, waive any
past default under the indenture with respect to debt securities of that series,
except a default (a) in the payment of principal of or any premium or
interest on any debt security of that series or (b) in respect of a covenant
or
provision of the indenture which cannot be modified or amended without the
consent of the holder of each outstanding debt security of the series
affected.
13
Each
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 that indenture
or are present at a meeting of holders of debt securities for quorum
purposes:
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(1)
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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,
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(2)
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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
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(3)
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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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Each
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
relevant 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 “Notices” below and the
provisions of the relevant 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 relevant 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.
Notices
Except
as
otherwise provided in the indenture, notices to holders of bearer debt
securities will be given by publication at least twice in a daily newspaper
of
general circulation in The City of New York and in any other city or cities
as
may be specified in those debt securities. Notices to holders of registered
debt
securities will be given by mail to the addresses of those holders as they
appear in the security register.
Title
Title
to
any bearer debt securities (including bearer debt securities in temporary global
form and in permanent global form) and any related coupons will pass by
delivery. CSX, the trustee and any agent of CSX or the trustee may treat the
bearer of any bearer debt security and the bearer of any coupon and the
registered owner of any registered debt security as the absolute owner (whether
or not that debt security or coupon is overdue and notwithstanding any notice
to
the contrary) for the purpose of making payment and for all other
purposes.
14
Replacement
of Debt Securities
Any
mutilated debt security or a debt security with a mutilated coupon will be
replaced by CSX at the expense of the holder upon surrender of that debt
security to the relevant trustee. Debt securities or coupons that become
destroyed, lost or stolen will be replaced by CSX at the expense of the holder
upon delivery to the relevant trustee of evidence of the destruction, loss
or
theft satisfactory to CSX and the relevant trustee; in the case of any coupon
which becomes destroyed, lost or stolen, that coupon will be replaced by
issuance of a new debt security in exchange for the debt security to which
the
coupon appertains. In the case of a destroyed, lost or stolen debt security
or
coupon, an indemnity satisfactory to the trustee and CSX may be required at
the
expense of the holder of that debt security or coupon before a replacement
debt
security will be issued.
Discharge,
Defeasance and Covenant Defeasance
Upon
the
direction of CSX, either indenture will generally cease to be of further effect
with respect to any series of debt securities issued under that indenture
specified by CSX (subject to the survival of certain provisions of that
indenture) when:
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CSX
has delivered to the relevant trustee for cancellation all debt securities
issued under that indenture or
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all
debt securities issued under that indenture not previously delivered
to
the relevant 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
relevant 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 that
indenture
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(and
if,
in either case, CSX has paid or caused to be paid all other sums payable under
the relevant 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).
In
addition, unless otherwise provided in an applicable prospectus supplement,
CSX
may elect with respect to any series of debt securities 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 relevant
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 “–Certain
Covenants and Agreements of CSX–Covenant in the Senior Indenture–Limitation
on Liens on Stock of Our Principal
Subsidiaries” (which covenant appears only in the senior indenture) and
certain other restrictive covenants in the relevant indenture and,
if
indicated in the applicable prospectus supplement, our obligations
with
respect to any other covenant applicable to the debt securities of
that
series (“covenant defeasance”).
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If
we
exercise our defeasance option with respect to any series of debt securities,
payment of those debt securities may not be accelerated because of an event
of
default. If we exercise our covenant defeasance option with respect to any
series of debt securities, payment of those debt securities 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 those debt securities even though we may
have
previously exercised our covenant defeasance option.
If
CSX
effects covenant defeasance with respect to any debt securities and those debt
securities 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 “–Certain Covenants and
Agreements of CSX–Covenant in the Senior
Indenture–Limitation on Liens on Stock of
Our Principal Subsidiaries” (which covenant appears only in the senior indenture
and which would no longer be applicable to those debt securities 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 applicable trustee to effect the covenant defeasance may
not
be sufficient to pay amounts due on those debt securities 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.
15
We
may
exercise our defeasance option or our covenant defeasance option with respect
to
any series of debt securities, 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 those debt securities to maturity or redemption,
as the
case may be, and we deliver to the relevant 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 those debt securities 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 debt securities of that series
has
occurred and is continuing
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·
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on
the date of the deposit or
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·
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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 relevant 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 debt securities 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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(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 debt securities 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 relevant 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 debt securities.
The
applicable prospectus supplement may further describe the provisions, if any,
permitting or restricting defeasance or covenant defeasance with respect to
the
debt securities of a particular series.
16
Governing
Law
The
indentures and the debt securities will be governed by, and construed in
accordance with, the laws of the State of New York.
Concerning
the Trustees
The
Trust
Indenture Act of 1939 contains limitations on the rights of a 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. Each 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 relevant indenture, or else
resign.
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
Bank of New York (as successor to JPMorgan Chase Bank, N.A., formerly The Chase
Manhattan Bank),
the
senior trustee and the subordinated trustee, and its affiliates. The
Bank of New York (as successor to JPMorgan Chase Bank, N.A., formerly The Chase
Manhattan Bank)
acts as
trustee under the senior indenture and another indenture pursuant to which
we
issued our Series A Medium-Term Notes, Series B Medium-Term Notes, Series C
Medium Term Notes, 7.45% Debentures due 2007, 6.25% Notes due 2008, 4.875%
Notes
due 2009, 6.75% Notes due 2011, 6.30% Notes due 2012, 5½% Notes due 2013, 5.30%
Notes due 2014, 7.90% Debentures due 2017, Zero Coupon Convertible Debentures
due October 30, 2021, 8.625% Debentures due 2022, 8.10% Debentures due 2022,
7.95% Debentures due 2027, 7.25% Debentures due 2027, 8.30% Debentures due
2032
and 6.00% Notes due 2036.
ADDITIONAL
TERMS OF SUBORDINATED DEBT SECURITIES
Additional
Covenants Applicable to Subordinated Debt Securities
Under
the
subordinated indenture, or under one or more supplemental indentures to the
subordinated indenture, we will:
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·
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maintain
100% ownership of the common securities of any trust to which subordinated
debt securities have been issued while those subordinated debt
securities
remain outstanding; and
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·
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pay
to any trust to which subordinated debt securities have been
issued any
taxes, duties, assessments or governmental charges of whatever
nature
(other than withholding taxes) imposed by the United States or
any other
taxing authority on that trust, so that the net amounts received
and
retained by that trust (after paying any taxes, duties, assessments
or
other governmental charges) will be not less than that trust
would have
received had no such taxes, duties, assessments or other governmental
charges been imposed.
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Option
to Extend Interest Payment Period
If
so
indicated in the prospectus supplement, we can defer interest payments by
extending the interest payment period for the number of consecutive extension
periods specified in the applicable prospectus supplement. Other details
regarding the extension period will also be specified in the applicable
prospectus supplement. No extension period may extend beyond the maturity of
the
applicable subordinated debt securities. At the end of the extension period(s),
we will pay all interest then accrued and unpaid, together with interest
compounded quarterly at the rate for the applicable subordinated debt
securities, to the extent permitted by applicable law.
17
During
any extension period, we will not make distributions related to our capital
stock, including dividends, redemptions, repurchases, liquidation payments,
or
guarantee payments. Also, we will not make any payments, redeem or repurchase
any debt securities of equal or junior rank to the subordinated debt securities
or make any guarantee payments on any such debt securities. We may, however,
make the following types of distributions:
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dividends
paid in common stock;
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·
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dividends
in connection with the implementation of a shareholder rights
plan;
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·
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payments
to a trust holding securities of the same series under
a guarantee;
or
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·
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repurchases,
redemptions or other acquisitions of shares of our
capital stock in
connection with any employment contract, benefit plan
or other similar
arrangement with or for the benefit of employees, officers,
directors or
consultants.
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Subordination
The
payment of the principal of, premium, if any, and interest, if any, on the
subordinated debt securities will be subordinated, to the extent and in the
manner set forth in the subordinated indenture, in right of payment to the
prior
payment in full of all senior indebtedness which may at any time and from time
to time be outstanding. Unless otherwise provided in the applicable prospectus
supplement with respect to an issue of subordinated debt securities, in the
event of any distribution of our assets upon any dissolution, winding up,
liquidation, reorganization or other similar proceedings of CSX:
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·
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all
senior indebtedness will first be paid in full, or that payment
will be
provided for, before any payment on account of the principal
of, or
premium, if any, or interest, if any, on the subordinated debt
securities
is made, and
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·
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if
any payment or distribution of our assets is received by
the subordinated
trustee or the holders of any of the subordinated debt securities
before
all senior indebtedness is paid in full, that payment or
distribution will
be paid over to the holders of senior indebtedness or on
their behalf for
application to the payment of all senior indebtedness remaining
unpaid
until all senior indebtedness has been paid in full or that
payment
provided for, after giving effect to any concurrent payment
or
distribution to the holders of senior
indebtedness.
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Subject
to the payment in full of all senior indebtedness upon any distribution of
our
assets, the holders of the subordinated debt securities will be subrogated
to
the rights of the holders of the senior indebtedness to the extent of payments
made to the holders of senior indebtedness out of the distributive share of
the
subordinated debt securities.
By
reason
of subordination of the subordinated debt securities, if there is any
distribution of our assets upon dissolution, winding up, liquidation,
reorganization or other similar proceedings of CSX,
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·
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holders
of senior indebtedness will be entitled to be paid in full
before payments
may be made on the subordinated debt securities and the holders
of
subordinated debt securities will be required to pay over
their share of
that distribution to the holders of senior indebtedness until
all senior
indebtedness is paid in full, and
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·
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creditors
of CSX who are neither holders of subordinated debt securities
nor holders
of senior indebtedness may recover less, ratably, than
holders of senior
indebtedness and may recover more, ratably, than the holders
of the
subordinated debt securities.
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Furthermore,
subordination may result in a reduction or elimination of payments to the
holders of subordinated debt securities. The subordinated indenture provides
that the subordination provisions in the subordinated indenture will not apply
to any money and securities held in trust pursuant to the discharge, defeasance
and covenant defeasance provisions of the subordinated indenture (see
“–Discharge, Defeasance and Covenant
Defeasance” above).
The
subordinated indenture also provides that no payment on account of the principal
of, or premium, if any, sinking funds, if any, or interest, if any, on the
subordinated debt securities will be made unless full payment of amounts then
due for the principal of, premium, if any, sinking funds, if any, and interest,
if any, on senior indebtedness has been made or duly provided for.
18
Senior
indebtedness means, with respect to any series of subordinated debt securities,
the principal, premium, interest and any other payment in respect of any of
the
following:
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(1)
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any
liability of CSX
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·
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for
borrowed money or under any reimbursement obligation relating to
a letter
of credit, or
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·
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evidenced
by a bond, note, debenture or similar instrument,
or
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·
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for
obligations to pay the deferred purchase price of property
or services,
except trade accounts payable arising in the ordinary course
of business,
or
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·
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for
the payment of money relating to a capitalized lease obligation,
or
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·
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for
the payment of money under any swap
agreement;
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(2)
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any
liability of others described in the preceding clause (1) that
CSX has
guaranteed or that is otherwise our legal liability;
and
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(3)
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any
deferral, renewal, extension or refunding of any liability
of the types
referred to in clauses (1) and (2)
above,
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unless,
in the instrument creating or evidencing any liability referred to in clause
(1)
or (2) above or any deferral, renewal, extension or refunding referred to in
clause (3) above or pursuant to which the same is outstanding, it is expressly
provided that the liability, deferral, renewal, extension or refunding is
subordinate in right of payment to all other indebtedness of CSX or is not
senior or prior in right of payment to the subordinated debt securities or
ranks
pari
passu
with or
subordinate to the subordinated debt securities in right of payment; and
provided
that
the
subordinated debt securities will not constitute senior indebtedness. Swap
agreements are defined as any financial agreement designed to manage our
exposure to fluctuations in interest rates, currency exchange rates or commodity
prices, including without limitation swap agreements, option agreements, cap
agreements, floor agreements, collar agreements and forward purchase
agreements.
Senior
indebtedness will be entitled to the benefits of the subordination provisions
in
the subordinated indenture irrespective of the amendment, modification or waiver
of any term of the senior indebtedness. We may not amend the subordinated
indenture to change the subordination of any outstanding subordinated debt
securities without the consent of each holder of senior indebtedness that the
amendment would adversely affect.
If
this
prospectus is being delivered in connection with the offering of a series of
subordinated debt securities, the accompanying prospectus supplement or the
information incorporated by reference in this prospectus will set forth the
approximate amount of senior indebtedness outstanding as of a recent date.
The
subordinated indenture does not limit the amount of senior indebtedness that
we
may issue.
DESCRIPTION
OF TRUST PREFERRED SECURITIES
The
following is a summary of the principal terms of the trust preferred securities.
The form of amended trust agreement is filed as an exhibit to the registration
statement of which this prospectus forms a part, or is incorporated by
reference. The terms of the trust preferred securities will include those stated
in the amended trust agreement and those made part of the amended trust
agreement by the Trust Indenture Act.
19
General
The
Trust
will exist until terminated as provided in its amended trust agreement. Except
under certain circumstances, CSX will be entitled to appoint, remove or replace
trustees, who will conduct the business and affairs of the Trust. The trustees
of the Trust will consist of:
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two
employees, officers or affiliates of CSX as administrative
trustees;
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·
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a
financial institution unaffiliated with CSX that will
act as property
trustee and as indenture trustee for purposes of the
Trust Indenture Act,
under the terms set forth in a prospectus supplement;
and
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·
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one
trustee with its principal place of business or
who resides in the State
of Delaware and who will act under the terms set
forth in a prospectus
supplement.
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The
amended trust agreement will authorize the administrative trustees to issue,
on
behalf of the Trust, two classes of trust securities, trust preferred securities
and trust common securities, each of which will have the terms described in
this
prospectus and in the applicable prospectus supplement. CSX will own all of
the
trust common securities. The trust common securities will rank equally in right
of payment, and payments will be made on the trust common securities,
proportionately with the trust preferred securities. However, if an event of
default occurs and is continuing under the amended trust agreement, the rights
of the holders of the trust common securities to payment of distributions and
payments upon liquidation, redemption and otherwise, will be subordinated to
the
rights of the holders of the trust preferred securities. CSX will acquire,
directly or indirectly, trust common securities in a total liquidation amount
of
approximately 3% of the total capital of the Trust.
The
proceeds from the sale of the trust preferred securities will be used by the
Trust to purchase our subordinated debt securities. These subordinated debt
securities will be held in trust by the property trustee for the benefit of
the
holders of the trust securities. CSX will guarantee the payments of
distributions and payments on redemption or liquidation with respect to the
trust preferred securities, but only to the extent the Trust has funds available
to make those payments and has not made the payments. See “Description of the
Guarantee.”
The
assets of the Trust available for distribution to the holders of trust preferred
securities will be limited to payments from us under the subordinated debt
securities held by the Trust. If we fail to make a payment on the subordinated
debt securities, the Trust will not have sufficient funds to make related
payments, including distributions, on its trust preferred
securities.
The
guarantee, when taken together with our obligations under the subordinated
debt
securities, the subordinated indenture and the amended trust agreement, will
provide a full and unconditional guarantee of amounts due on the trust preferred
securities issued by the Trust.
The
trust
preferred securities will have the terms, including distributions, redemption,
voting, liquidation rights and other preferred, deferred or other special rights
or restrictions that will be described in the amended trust agreement or made
part of the amended trust agreement by the Trust Indenture Act or the Delaware
Statutory Trust Act. The terms of the trust preferred securities will mirror
the
terms of the subordinated debt securities held by the Trust. In other words,
the
distribution rate and the distribution payment dates and other payment dates
for
the trust preferred securities will correspond to the interest rate and interest
payment dates and other payment dates on the subordinated debt securities.
Holders of trust preferred securities have no preemptive or similar
rights.
Provisions
of a Particular Series
The
Trust
may issue only one series of trust preferred securities. The applicable
prospectus supplement will set forth the principal terms of the trust preferred
securities that will be offered, including:
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the
name of the trust preferred
securities;
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·
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the
liquidation amount and number of trust preferred securities
issued;
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20
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·
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the
annual distribution rate(s) or method of determining
such rate(s), the
payment date(s) and the record dates used to determine
the holders who are
to receive distributions;
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·
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the
date from which distributions will be
cumulative;
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·
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the
optional redemption provisions, if
any, including the prices, time periods
and other terms and conditions on which
the trust preferred securities
will be purchased or redeemed, in whole
or in
part;
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·
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the
terms and conditions, if any,
upon which the subordinated debt
securities
and the related guarantee may
be distributed to holders of
those trust
preferred securities;
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·
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any
securities exchange
on which the trust
preferred securities
will be
listed;
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·
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whether
the trust preferred
securities are to
be issued in book-entry
form and
represented by one
or more global certificates,
and if so, the depositary
for those global
certificates and
the specific terms
of the depositary
arrangements; and
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·
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any
other relevant
rights, preferences,
privileges,
limitations
or
restrictions
of the trust
preferred
securities.
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The
interest rate and interest and other payment dates of each series of
subordinated debt securities issued to a trust will correspond to the rate
at
which distributions will be paid and the distribution and other payment dates
of
the trust preferred securities of that trust.
Extensions
CSX
has
the right under the subordinated indenture to defer payments of interest on
the
subordinated debt securities by extending the interest payment period from
time
to time on the subordinated debt securities. The administrative trustees will
give the holders of the trust preferred securities notice of any extension
period upon their receipt of notice from us. If distributions are deferred,
the
deferred distributions and accrued interest will be paid to holders of record
of
the trust preferred securities as they appear on the books and records of the
Trust on the record date next following the termination of such deferral period.
See “Additional Terms of Subordinated Debt Securities – Option To Extend Interest Payment
Period.”
Distributions
Distributions
on the trust preferred securities will be made on the dates payable to the
extent that the Trust has funds available for the payment of distributions
in
the property account held by the property trustee. The Trust’s funds available
for distribution to the holders of the trust securities will be limited to
payments received from us on the subordinated debt securities. CSX has
guaranteed the payment of distributions out of monies held by the Trust to
the
extent set forth under “Description of the Guarantee.”
Distributions
on the trust preferred securities will be payable to the holders named on the
securities register of the Trust at the close of business on the record dates,
which, as long as the trust preferred securities remain in book-entry only
form,
will be one business day prior to the relevant payment dates. Distributions
will
be paid through the property trustee who will hold amounts received in respect
of the subordinated debt securities in the property account for the benefit
of
the holders of the trust securities. In the event that the trust preferred
securities do not continue to remain in book- entry only form, the relevant
record dates will conform to the rules of any securities exchange on which
the
trust preferred securities are listed and, if none, the administrative trustees
will have the right to select relevant record dates, which will be more than
14
days but less than 60 days prior to the relevant payment dates. In the event
that any date on which distributions are to be made on the trust preferred
securities is not a business day, then payment of the distributions payable
on
that date will be made on the next succeeding day which is a business day and
without any interest or other payment in respect of that delay, except that,
if
that business day is in the next succeeding calendar year, the payment will
be
made on the immediately preceding business day, in each case with the same
force
and effect as if made on the record date.
21
Mandatory
Redemption of Trust Preferred Securities
The
trust
preferred securities have no stated maturity date, but will be redeemed upon
the
maturity of the subordinated debt securities or to the extent the subordinated
debt securities are redeemed prior to maturity. The subordinated debt securities
will mature on the date specified in the applicable prospectus supplement and
may be redeemed at any time, in whole but not in part, in certain circumstances
upon the occurrence of a Tax Event or an Investment Company Event as described
under “Special Event Redemption.”
Upon
the
maturity of the subordinated debt securities, the proceeds of their repayment
will simultaneously be applied to redeem all the outstanding trust securities
at
the applicable redemption price. Upon the redemption of the subordinated debt
securities, either at our option or as a result of a Tax Event or an Investment
Company Event, the proceeds from the redemption will simultaneously be applied
to redeem trust securities having a total liquidation amount equal to the total
principal amount of the subordinated debt securities so redeemed at the
redemption price; provided, that holders of trust securities will be given
not
less than 20 nor more than 60 days’ notice of the redemption. In the event that
fewer than all of the outstanding trust securities are to be redeemed, the
trust
securities will be redeemed proportionately.
Special
Event Redemption
Both
a
Tax Event and an Investment Company Event constitute Special Events for purposes
of the redemption provisions described in the two immediately preceding
paragraphs.
A
Tax
Event means that the administrative trustees have received an opinion of
independent tax counsel experienced in such matters to the effect that, as
a
result of any amendment to, change or announced proposed change in:
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·
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the
laws or regulations of the United States or any of its
political
subdivisions or taxing authorities,
or
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·
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any
official administrative pronouncement, action or judicial
decision
interpreting or applying those laws or
regulations,
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which
amendment or change becomes effective or proposed change, pronouncement, action
or decision is announced on or after the date the trust preferred securities
are
issued and sold, there is more than an insubstantial risk that:
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·
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the
Trust is or within 90 days would be subject to U.S. federal
income tax
with respect to income accrued or received on the subordinated
debt
securities,
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·
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interest
payable to the Trust on the subordinated debt securities
is not or within
90 days would not be deductible, in whole or in part,
by CSX for U.S.
federal income tax purposes, or
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·
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the
Trust is or within 90 days would be subject to
a material amount of other
taxes, duties or other governmental
charges.
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An
Investment Company Event means that the administrative trustees have received
an
opinion of a nationally recognized independent counsel to the effect that,
as a
result of an amendment to or change in the Investment Company Act or regulations
thereunder on or after the date the trust preferred securities are issued and
sold, there is more than an insubstantial risk that the Trust is or will be
considered an investment company and be required to be registered under the
Investment Company Act.
22
Redemption
Procedures
The
Trust
may not redeem fewer than all the outstanding trust securities unless all
accrued and unpaid distributions have been paid on all trust securities for
all
distribution periods terminating on or before the date of redemption. In the
event that fewer than all of the outstanding trust securities are to be
redeemed, the trust securities will be redeemed proportionately.
If
the
Trust gives a notice of redemption in respect of the trust securities (which
notice will be irrevocable), then, by 12:00 noon, New York City time, on the
redemption date, and if CSX has paid to the property trustee a sufficient amount
of cash in connection with the related redemption or maturity of the
subordinated debt securities, the property trustee will irrevocably deposit
with
the depositary funds sufficient to pay the applicable redemption price and
will
give the depositary irrevocable instructions and authority to pay the redemption
price to the holders of the trust preferred securities, and the paying agent
will pay the applicable redemption price to the holders of the trust common
securities by check. If notice of redemption has been given and funds deposited
as required, then, immediately prior to the close of business on the date of
the
deposit, distributions will cease to accrue and all rights of holders of trust
preferred securities called for redemption will cease, except the right of
the
holders of the trust preferred securities to receive the redemption price but
without interest on the redemption price. In the event that any date fixed
for
redemption of trust preferred securities is not a business day, then payment
of
the redemption price payable on that date will be made on the next succeeding
day that is a business day, without any interest or other payment in respect
of
any such delay, except that, if that business day falls in the next calendar
year, payment will be made on the immediately preceding business day. In the
event that payment of the redemption price in respect of trust preferred
securities is improperly withheld or refused and not paid either by the Trust
or
by CSX under the guarantee, distributions on the trust preferred securities
will
continue to accrue at the then applicable rate from the original redemption
date
to the date of payment, in which case the actual payment date will be considered
the date fixed for redemption for purposes of calculating the redemption
price.
Subject
to the foregoing and applicable law, including, without limitation, U.S. federal
securities laws, we or our subsidiaries may at any time, and from time to time,
purchase outstanding trust preferred securities by tender, in the open market
or
by private agreement.
Conversion
or Exchange Rights
The
terms
on which the trust preferred securities are convertible into or exchangeable
for
common stock or our other securities will be contained in the applicable
prospectus supplement. Those terms will include provisions as to whether
conversion or exchange is mandatory, at the option of the holder or at our
option, and may include provisions under which the number of shares of common
stock or our other securities to be received by the holders of trust preferred
securities would be subject to adjustment.
Distribution
of the Subordinated Debt Securities
CSX
will
have the right at any time to dissolve the Trust and, after satisfaction of
the
liabilities of creditors of the Trust as provided by applicable law, to cause
subordinated debt securities to be distributed to the holders of the trust
preferred securities in a total stated principal amount equal to the total
stated liquidation amount of the trust preferred securities then outstanding.
Prior to any such dissolution, we will obtain any required regulatory approvals.
The right to dissolve the Trust and distribute the subordinated debt securities
will be conditioned on our receipt of an opinion rendered by an independent
tax
counsel that the distribution would not result in the recognition of gain or
loss for federal income tax purposes by the holders.
Liquidation
Distribution upon Dissolution
The
amended
trust agreement will state that the Trust will be dissolved:
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upon
our bankruptcy;
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upon
the filing of a certificate of dissolution or its equivalent
with respect
to CSX;
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23
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upon
the filing of a certificate of cancellation
with respect to the Trust
after obtaining the consent of at least a majority
in liquidation amount
of the trust preferred securities, voting together
as a single
class;
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90
days after the revocation of our charter,
but only if the charter is not
reinstated during that 90-day
period;
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upon
the distribution of the related
subordinated debt securities
directly to
the holders of the trust
securities;
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upon
the redemption of all
of the trust securities;
or
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upon
entry of a
court order
for the dissolution
of CSX or the
Trust.
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In
the
event of a dissolution, after the Trust pays all amounts owed to creditors,
the
holders of the trust preferred securities will be entitled to
receive:
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cash
equal to the total liquidation amount of each trust preferred
security
specified in an accompanying prospectus supplement, plus accumulated
and
unpaid distributions to the date of payment;
or;
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subordinated
debt securities in a total principal amount equal to
the total liquidation
amount of the trust preferred
securities.
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If
the
Trust cannot pay the full amount due on its trust securities because
insufficient assets are available for payment, then the amounts payable by
the
Trust on its trust securities will be paid proportionately. However, if an
event
of default under the related amended trust agreement occurs, the total amounts
due on the trust preferred securities will be paid before any distribution
on
the trust common securities. Under certain circumstances involving the
dissolution of the Trust, subject to obtaining any required regulatory approval,
subordinated debt securities will be distributed to the holders of the trust
securities in liquidation of the Trust.
Trust
Enforcement Events
An
event
of default under the subordinated indenture relating to the subordinated debt
securities will be an event of default under the amended trust agreement (a
“Trust Enforcement Event”). See “Description of Debt
Securities – Events of
Default.”
In
addition, the voluntary or involuntary dissolution, winding up or termination
of
the Trust is also a Trust Enforcement Event, except in connection
with:
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the
distribution of the subordinated debt securities to holders
of the trust
securities of the Trust,
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the
redemption of all of the trust securities of the
Trust,
and
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mergers,
consolidations or amalgamations permitted
by the amended trust agreement
of the Trust.
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Under
the
amended trust agreement, the holder of the trust common securities will be
deemed to have waived any Trust Enforcement Event with respect to the trust
common securities until all Trust Enforcement Events with respect to the trust
preferred securities have been cured, waived or otherwise eliminated. Until
all
Trust Enforcement Events with respect to the trust preferred securities have
been so cured, waived, or otherwise eliminated, the property trustee will be
deemed to be acting solely on behalf of the holders of the trust preferred
securities and only the holders of the trust preferred securities will have
the
right to direct the property trustee with respect to certain matters under
the
amended trust agreement and the subordinated indenture. In the event that any
Trust Enforcement Event with respect to the trust preferred securities is waived
by the holders of the trust preferred securities as provided in the amended
trust agreement, under the amended trust agreement the holders of trust common
securities have agreed that the waiver also constitutes a waiver of the Trust
Enforcement Event with respect to the trust common securities for all purposes
under the amended trust agreement without any further act, vote or consent
of
the holders of trust common securities.
24
CSX
and
the administrative trustees must file annually with the property trustee a
certificate evidencing compliance with all the applicable conditions and
covenants under the amended trust agreement.
Upon
the
occurrence of a Trust Enforcement Event the property trustee, as the sole holder
of the subordinated debt securities, will have the right under the subordinated
indenture to declare the principal of, interest and premium, if any, on the
subordinated debt securities to be immediately due and payable.
If
the
property trustee fails to enforce its rights under the amended trust agreement
or the subordinated indenture to the fullest extent permitted by law and subject
to the terms of the amended trust agreement and the subordinated indenture,
any
holder of trust preferred securities may sue us, or seek other remedies, to
enforce the property trustee’s rights under the amended trust agreement or the
subordinated indenture without first instituting a legal proceeding against
the
property trustee or any other person. If a Trust Enforcement Event occurs and
is
continuing as a result of our failure to pay principal of or interest or
premium, if any, on the subordinated debt securities when payable, then a holder
of the trust preferred securities may directly sue us or seek other remedies,
to
collect its proportionate share of payments owed. See “Relationship Among the
Trust Preferred Securities, the Guarantee and the Subordinated Debt Securities
Held by the Trust.”
Removal
and Replacement of Trustees
Only
the
holders of trust common securities have the right to remove or replace the
trustees of the Trust, except that while an event of default in respect of
the
subordinated debt securities has occurred and is continuing, the holders of
a
majority of the trust preferred securities will have this right. The resignation
or removal of any trustee and the appointment of a successor trustee will be
effective only on the acceptance of appointment by the successor trustee in
accordance with the provisions of the amended trust agreement.
Mergers,
Consolidations or Amalgamations of the Trust
The
Trust
may not consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to any other corporation or other body (each, a “Merger Event”), except as
described below. The Trust may, with the consent of a majority of its
administrative trustees and without the consent of the holders of its trust
securities, consolidate, amalgamate, merge with or into, or be replaced by,
another trust, provided that:
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the
successor entity either
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assumes
all of the obligations of the Trust relating to its trust securities,
or
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substitutes
other securities for the trust securities that are substantially
similar
to the trust securities, so long as the successor securities
rank the same
as the trust securities for distributions and payments upon
liquidation,
redemption and
otherwise;
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CSX
acknowledges a trustee of the successor entity, who has
the same powers
and duties as the property trustee of the Trust, as the
holder of the
subordinated debt securities;
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the
trust preferred securities are listed, or
any successor securities will be
listed, upon notice of issuance, on the same
securities exchange or other
organization that the trust preferred securities
are then
listed;
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the
Merger Event does not cause the trust
preferred securities or successor
securities to be downgraded by any
nationally recognized rating
agency;
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25
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·
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the
Merger Event does not adversely
affect the rights, preferences
and
privileges of the holders
of the trust securities
or successor securities
in any material way, other
than with respect to any
dilution of the
holders’ interest in the new
entity;
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the
successor entity
has a purpose identical
to that of the
Trust;
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prior
to the
Merger
Event,
CSX has
received
an opinion
of counsel
from
a
nationally
recognized
law firm
stating
that
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the
Merger
Event
does
not
adversely
affect
the
rights
of
the
holders
of
the
trust
preferred
securities
or
any
successor
securities
in
any
material
way,
other
than
with
respect
to
any
dilution
of
the
holders’
interest
in
the
new
entity,
and
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following
the
Merger
Event,
neither
the
Trust
nor
the
successor
entity
will
be
required
to
register
as
an
investment
company
under
the
Investment
Company
Act;
and
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CSX
guarantees
the
obligations
of
the
successor
entity
under
the
successor
securities
in
the
same
manner
as
in
the
guarantee.
|
In
addition, unless all of the holders of the trust preferred securities and trust
common securities approve otherwise, the Trust will not consolidate, amalgamate,
merge with or into, or be replaced by any other entity or permit any other
entity to consolidate, amalgamate, merge with or into, or replace it, if, in
the
opinion of a nationally recognized tax counsel experienced in such matters,
the
transaction would cause the Trust or the successor entity to be classified
other
than as a grantor trust for U.S. federal income tax purposes.
Voting
Rights; Amendment of Trust Agreement
The
holders of trust preferred securities have no voting rights except as discussed
under “Mergers, Consolidations or Amalgamations of the Trust” and “Description
of the Guarantee – Amendments”, and as
otherwise required by law and the amended trust agreement.
The
amended trust agreement may be amended if approved by a majority of the
administrative trustees of the Trust. However, if any proposed amendment
provides for, or the administrative trustees otherwise propose to
effect,
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any
action that would adversely affect the powers,
preferences or special
rights of the trust securities, whether by
way of amendment to the amended
trust agreement or otherwise, or
|
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|
the
dissolution, winding
up or termination
of the Trust other
than under the
terms of its amended
trust
agreement,
|
then
the
holders of the trust preferred securities as a single class will be entitled
to
vote on the amendment or proposal. In that case, the amendment or proposal
will
only be effective if approved by at least a majority in liquidation amount
of
the trust preferred securities affected by the amendment or
proposal.
No
amendment may be made to an amended trust agreement if that amendment
would:
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cause
the Trust to be characterized as other than
a grantor trust for U.S.
federal income tax purposes;
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reduce
or otherwise
adversely
affect the
powers of
the property
trustee;
or
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cause
the
Trust
to
be
deemed
to
be
an
investment
company
which
is
required
to
be
registered
under
the
Investment
Company
Act.
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26
The
holders of a majority of the total liquidation amount of the trust preferred
securities have the right to:
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direct
the time, method and place of conducting any
proceeding for any remedy
available to the property trustee;
or
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direct
the exercise of any power conferred
upon the property trustee under the
amended trust agreement, including
the right to direct the property
trustee, as the holder of the subordinated
debt securities,
to:
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exercise
the remedies available under
the subordinated indenture with
respect to
the subordinated debt securities,
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waive
any event of default
under the subordinated
indenture that is waivable,
or
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cancel
an acceleration
of the principal
of the subordinated
debt
securities.
|
In
addition, before taking any of the foregoing actions, the property trustee
must
obtain an opinion of counsel stating that, as a result of that action, the
Trust
will continue to be classified as a grantor trust for U.S. federal income tax
purposes.
As
described in the form of amended trust agreement, holders of trust preferred
securities may vote on a change at a meeting or by written consent.
If
a vote
by the holders of trust preferred securities is taken or a consent is obtained,
any trust preferred securities owned by CSX or any of our affiliates will,
for
purposes of the vote or consent, be treated as if they were not outstanding,
which will have the following consequences:
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we
and any of our affiliates will not be able to
vote on or consent to
matters requiring the vote or consent of holders
of trust preferred
securities; and
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any
trust preferred securities owned by
CSX or any of our affiliates will not
be counted in determining whether the
required percentage of votes or
consents has been obtained.
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Information
Concerning the Property Trustee
The
Bank of New York (as successor to JPMorgan Chase Bank, N.A., formerly The Chase
Manhattan Bank) will
be
the property trustee. The
Bank of New York (as successor to JPMorgan Chase Bank, N.A., formerly The Chase
Manhattan Bank) will
also
be the guarantee trustee, the subordinated indenture trustee and the senior
indenture trustee. CSX and certain of our affiliates may from time to time
maintain deposit accounts and other banking relationships with The
Bank of New York (as successor to JPMorgan Chase Bank, N.A., formerly The Chase
Manhattan Bank). The Bank of New York (as successor to JPMorgan Chase Bank,
N.A., formerly The Chase Manhattan Bank)
also
serves as trustee under other indentures pursuant to which securities of CSX
are
outstanding. See “Description of Debt Securities – Concerning the Trustees.”
For
matters relating to compliance with the Trust Indenture Act, the property
trustee will have all of the duties and responsibilities of an indenture trustee
under the Trust Indenture Act. The property trustee, other than during the
occurrence and continuance of a Trust Enforcement Event, undertakes to perform
only the duties that are specifically described in the amended trust agreement
and, upon a Trust Enforcement Event, must use the same degree of care and skill
as a prudent person would exercise or use in the conduct of his or her own
affairs. Subject to this provision, the property trustee is under no obligation
to exercise any of the powers given it by the applicable amended trust agreement
at the request of any holder of trust preferred securities unless it is offered
reasonable security or indemnity against the costs, expenses and liabilities
that it might incur.
27
Information
Concerning the Delaware Trustee
The
Bank
of New York (as successor to Chase Bank USA, National Association, formerly
Chase Manhattan Bank USA, National Association) will serve as trustee of the
Trust in the State of Delaware for the purpose of complying with the provisions
of the Delaware Statutory Trust Act. The
Bank of New York (as successor to JPMorgan Chase Bank, N.A., formerly The Chase
Manhattan Bank)
will
also serve as property trustee and in the other capacities described above
under
“Information Concerning the Property Trustee.”
Information
Concerning the Administrative Trustees
The
administrative trustees are authorized and directed to conduct the affairs
of
and to operate the Trust in a way that:
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will
not cause it to be deemed to be an investment
company required to be
registered under the Investment Company
Act;
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will
cause it to be classified as a grantor
trust for U.S. federal income tax
purposes; and
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will
cause the
subordinated
debt securities
it holds
to be treated
as
indebtedness
of CSX
for U.S.
federal
income
tax
purposes.
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CSX
and
the administrative trustees are authorized to take any action, so long as it
is
not inconsistent with applicable law or the certificate of trust or amended
trust agreement, that we and the administrative trustees determine to be
necessary or desirable for those purposes.
DESCRIPTION
OF THE GUARANTEE
CSX
will
execute the guarantee from time to time for the benefit of the holders of the
trust preferred securities.
The
Bank of New York (as successor to JPMorgan Chase Bank, N.A., formerly The Chase
Manhattan Bank)
will act
as guarantee trustee under the guarantee. The guarantee trustee will hold the
guarantee for the benefit of the holders of the trust preferred
securities.
The
following description of the guarantee is only a summary. The form of guarantee
is an exhibit to the registration statement.
General
CSX
will
irrevocably and unconditionally agree under the guarantee to pay the guarantee
payments that are defined below, to the extent specified in the guarantee,
to
the holders of the trust preferred securities, to the extent that the guarantee
payments are not paid by or on behalf of the Trust. We are required to pay
the
guarantee payments to the extent specified in the guarantee regardless of any
defense, right of set-off or counterclaim that we may have or may assert against
any person.
The
following payments and distributions on the trust preferred securities of the
Trust are guarantee payments:
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any
accrued and unpaid distributions required to
be paid on the trust
preferred securities of the Trust, but only to
the extent that the Trust
has funds legally and immediately available for
those
distributions;
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the
redemption price for
any trust preferred
securities that the
Trust calls
for redemption, including
all accrued and unpaid
distributions to the
redemption date, but
only to the extent
that the Trust has
funds legally
and immediately available
for the payment;
and
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28
|
·
|
upon
a
dissolution,
winding-up
or
termination
of
the
Trust,
other
than
in
connection
with
the
distribution
of
subordinated
debt
securities
to
the
holders
of
trust
securities
of
the
Trust
or
the
redemption
of
all
the
trust
preferred
securities
of
the
Trust,
the
lesser
of:
|
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·
|
the
sum of the liquidation amount and all accrued and unpaid distributions
on
the trust preferred securities of the Trust to the payment date,
to the
extent that the Trust has funds legally and immediately available
for the
payment; and
|
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·
|
the
amount of assets of the Trust remaining available for distribution
to
holders of the trust preferred securities of the Trust in liquidation
of
the Trust.
|
We
may
satisfy our obligation to make a guarantee payment by making that payment
directly to the holders of the related trust preferred securities or by causing
the Trust to make the payment to those holders.
The
guarantee will be a full and unconditional guarantee, subject to certain
subordination provisions, of the guarantee payments with respect to the trust
preferred securities from the time of issuance of the trust preferred
securities, except that the guarantee will only apply to the payment of
distributions and other payments on the trust preferred securities when the
Trust has sufficient funds legally and immediately available to make those
distributions or other payments.
If
CSX
does not make the required payments on the subordinated debt securities that
the
property trustee holds under the Trust, the Trust will not make the related
payments on the trust preferred securities.
Subordination
Our
obligations under the guarantee will be unsecured obligations. Those obligations
will rank:
|
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subordinate
and junior in right of payment to certain other
liabilities of CSX, as
described in the prospectus
supplement;
|
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·
|
equal
in priority with subordinated debt securities
and similar guarantees that
CSX may issue or enter into in respect of
the Trust or any similar
financing vehicle sponsored by CSX;
and
|
|
·
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senior
to our preferred and common stock.
|
CSX
has
no subordinated debt securities outstanding that will rank equal in priority
with the guarantee. CSX has common stock outstanding that will rank junior
to
the guarantee.
The
guarantee will be a guarantee of payment and not of collection. This means
that
the guaranteed party may institute a legal proceeding directly against us,
as
guarantor, to enforce its rights under the guarantee without first instituting
a
legal proceeding against any other person or entity.
The
terms
of the trust preferred securities will provide that each holder of the trust
preferred securities, by accepting those trust preferred securities, agrees
to
the subordination provisions and other terms of the guarantee.
Amendments
CSX
may
amend the guarantee without the consent of any holder of the trust preferred
securities to which the guarantee relates if the amendment does not materially
and adversely affect the rights of those holders. We may otherwise amend the
guarantee with the approval of the holders of at least 50% of the outstanding
trust preferred securities to which the guarantee relates.
29
Termination
The
guarantee will terminate and be of no further effect when:
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the
redemption price of the trust preferred securities
to which the guarantee
relates is fully paid;
|
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|
CSX
distributes the related subordinated debt
securities to the holders of
those trust preferred securities;
or
|
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·
|
the
amounts payable upon liquidation of the
related Trust are fully
paid.
|
The
guarantee will remain in effect or will be reinstated if at any time any holder
of the related trust preferred securities must restore payment of any sums
paid
to that holder with respect to those trust preferred securities or under the
guarantee.
Material
Covenants
CSX
will
covenant that, so long as any trust preferred securities remain outstanding,
if
there is an event of default under the guarantee or under the subordinated
indenture for the related subordinated debt securities or during an extension
of
the interest payment period for the related subordinated debt
securities:
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we
will not declare or pay any dividends or
distributions on, or redeem,
purchase, acquire or make a liquidation payment
with respect to, any of
CSX’s capital stock; and
|
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we
will not make any payment of principal,
interest or premium, if any, on or
repay, repurchase or redeem any CSX debt
securities that rank equally with
or junior to the subordinated debt securities
issued to the Trust or make
any guarantee payments with respect to
any guarantee by CSX of the debt
securities of any subsidiary of CSX if
such guarantee ranks equally with
or junior to the subordinated debt securities
issued to the
Trust.
|
We
may,
however, make the following types of distributions:
|
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|
dividends
or distributions paid in common
stock;
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·
|
dividends
in connection with the implementation of a shareholder rights plan
or the
redemption or repurchase of any rights pursuant to such a
plan;
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|
payments
to a trust holding securities of the same series under a guarantee;
and
|
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·
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purchases
of common stock related to the issuance of common stock or rights
under
any of CSX’s benefit plans.
|
Because
we are a holding company that conducts all of our operations through our
subsidiaries, our ability to meet our obligations under the guarantee is
dependent on the earnings and cash flows of those subsidiaries and the ability
of those subsidiaries to pay dividends or to advance or repay funds to us.
The
Trust, as holder of the guarantee and the subordinated debt securities, will
generally have a junior position to claims of creditors of our subsidiaries,
including trade creditors, debtholders, secured creditors, taxing authorities,
guarantee holders and any preferred shareholders.
Events
of Default
An
event
of default will occur under the guarantee if we fail to perform any of our
payment obligations under the guarantee. The holders of a majority of the trust
preferred securities of any series may waive any such event of default and
its
consequences on behalf of all of the holders of the trust preferred securities
of that series. The guarantee trustee is entitled to enforce the guarantee
for
the benefit of the holders of the trust preferred securities of a series if
an
event of default occurs under the related guarantee. The holders of a majority
of the trust preferred securities to which the guarantee relates have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the guarantee trustee with respect to the guarantee or to direct
the exercise of any trust or power that the guarantee trustee holds under the
guarantee. Any holder of the related trust preferred securities may institute
a
legal proceeding directly against us to enforce that holder’s rights under the
guarantee without first instituting a legal proceeding against the guarantee
trustee or any other person or entity.
30
Concerning
the Guarantee Trustee
The
Bank of New York (as successor to JPMorgan Chase Bank, N.A., formerly The Chase
Manhattan Bank) will
be
the guarantee trustee. It will also serve as the property trustee, the
subordinated indenture trustee and the senior indenture trustee. We and certain
of our affiliates may from time to time maintain deposit accounts and other
banking relationships with The
Bank of New York (as successor to JPMorgan Chase Bank, N.A., formerly The Chase
Manhattan Bank)
and its
affiliates. The
Bank of New York (as successor to JPMorgan Chase Bank, N.A., formerly The Chase
Manhattan Bank) also
serves as trustee under one other indenture pursuant to which securities of
CSX
are outstanding. See “Description of Debt Securities – Concerning the Trustees.” The guarantee trustee will
perform only those duties that are specifically set forth in each guarantee
unless an event of default under the guarantee occurs and is continuing. In
case
an event of default occurs and is continuing, the guarantee trustee will
exercise the same degree of care as a prudent person would exercise or use
under
the circumstances in the conduct of his or her own affairs. Subject to those
provisions, the guarantee trustee is under no obligation to exercise any of
its
powers under any guarantee at the request of any holder of the related trust
preferred securities unless that holder offers reasonable indemnity to the
guarantee trustee against the costs, expenses and liabilities which it might
incur as a result.
Agreement
as to Expenses and Liabilities
CSX
will
enter into an agreement as to expenses and liabilities as required under the
trust agreement. The agreement as to expenses and liabilities will provide
that
we will, with certain exceptions, irrevocably and unconditionally guarantee
the
full payment of any indebtedness, expenses or liabilities of the Trust to each
person or entity to whom the Trust becomes indebted or liable. The exceptions
are the obligations of the Trust to pay to the holders of the trust common
securities or other similar interests in the Trust the amounts due to the
holders under the terms of the trust common securities or the similar
interests.
RELATIONSHIP
AMONG THE TRUST PREFERRED SECURITIES, THE GUARANTEE AND THE
SUBORDINATED
DEBT SECURITIES HELD BY THE TRUST
CSX
will
guarantee payments of distributions and redemption and liquidation payments
due
on the trust preferred securities, to the extent the Trust has funds available
for the payments, as described under “Description of the Guarantee.” No single
document executed by us in connection with the issuance of the trust preferred
securities will provide for our full, irrevocable and unconditional guarantee
of
the trust preferred securities. It is only the combined operation of our
obligations under the guarantee, the amended trust agreement and the
subordinated indenture that has the effect of providing a full, irrevocable
and
unconditional guarantee of the Trust’s obligations under the trust preferred
securities.
As
long
as we make payments of interest and other payments when due on the subordinated
debt securities held by the Trust, those payments will be sufficient to cover
the payment of distributions and redemption and liquidation payments due on
the
trust preferred securities issued by the Trust, primarily because:
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the
total principal amount of the subordinated
debt securities will be equal
to the sum of the total liquidation amount
of the trust preferred
securities;
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·
|
the
interest rate and interest and other payment
dates on the subordinated
debt securities will match the distribution
rate and distribution and
other payment dates for the trust preferred
securities;
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31
|
·
|
we
will
pay for
any and
all costs,
expenses
and liabilities
of the
Trust
except
its obligations
under
its trust
preferred
securities;
and
|
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·
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the
amended
trust
agreement
will
provide
that
the
Trust
will
not
engage
in
any
activity
that
is
not
consistent
with
the
limited
purposes
of
the
Trust.
|
If,
and
to the extent that, we do not make payments on the subordinated debt securities,
the Trust will not have funds available to make payments of distributions or
other amounts due on its trust preferred securities. In those circumstances,
you
will not be able to rely upon the guarantee for payment of these amounts.
Instead, you may directly sue us or seek other remedies to collect your
proportionate share of payments owed. If you sue us to collect payment, then
we
will assume your rights as a holder of trust preferred securities under the
amended trust agreement to the extent we make a payment to you in any such
legal
action.
ACCOUNTING
TREATMENT
The
Trust
will be treated as a subsidiary of ours for financial reporting purposes.
Accordingly, our consolidated financial statements will include the accounts
of
the Trust. The trust preferred securities, along with other trust preferred
securities that we guarantee on an equivalent basis, will be presented as a
separate line item in our consolidated balance sheets, and appropriate
disclosures about the trust preferred securities, the guarantee and the
subordinated debt securities will be included in the notes to the consolidated
financial statements. We will record distributions that the Trust pays on the
trust preferred securities as an expense in our consolidated statement of
income.
32
DESCRIPTION
OF CAPITAL STOCK
As
of the
date of this prospectus, the authorized capital stock of CSX is (i)
600,000,000 shares of common stock, par value $1.00 per share, and (ii)
25,000,000 shares of preferred stock, without par value, issuable in
series. As of January 26, 2007, 436,745,041 shares of common stock were issued
and outstanding, and no shares of preferred stock were outstanding.
The
following discussion of the material provisions of the common stock, preferred
stock, Amended and Restated Articles of Incorporation and Bylaws of CSX are
qualified in their entirety by reference to the Amended and Restated Articles
of
Incorporation and the Bylaws, copies of which have been incorporated by
reference as exhibits to the registration statement.
Common
Stock
CSX
may
issue shares of common stock, either separately, or together with, or upon
the
conversion of or in exchange for, other securities. If we offer common stock,
the specific terms of the offering, including the number of shares offered
and
the initial public offering price, will be described in the applicable
prospectus supplement.
CSX
common stock is listed on the New York Stock Exchange under the symbol “CSX.”
All outstanding shares of common stock are fully-paid and non-assessable. Any
additional shares of common stock we issue will also be fully-paid and
non-assessable. Holders of common stock are entitled to one vote per share
on
all matters voted on by shareholders, including elections of directors, and,
except as otherwise required by law or provided by the express provisions of
any
series of preferred stock, the holders of those shares exclusively possess
all
voting power of CSX. There is no cumulative voting in the election of directors,
and no holder of common stock is entitled as such, as a matter of right, to
subscribe for or purchase any shares of common stock or preferred stock. Subject
to the preferential rights of any outstanding series of preferred stock, the
holders of common stock are entitled to receive ratably dividends as may be
declared from time to time by our Board of Directors from funds legally
available for that purpose. In the event of a liquidation, dissolution or
winding up of CSX, holders of common stock are entitled to share ratably in
all
assets remaining after payment or provision for liabilities and amounts owing
in
respect of any outstanding preferred stock.
The
transfer agent for CSX common stock is The Bank of New York, located in
New York, New York.
Preferred
Stock
CSX
may
issue shares of our preferred stock, in one or more series, either separately,
or together with, or upon the conversion of or in exchange for, other
securities.
The
following description of preferred stock sets forth certain general terms and
provisions of any series of preferred stock to which any prospectus supplement
may relate. If we offer preferred stock, the terms of any particular series
of
preferred stock, including preferred stock to be represented by depositary
shares, will be described in the applicable prospectus supplement, including
(where applicable):
|
·
|
the
title of the series;
|
|
·
|
the
number of shares offered;
|
|
·
|
the
initial public offering price;
|
|
·
|
the
dividend rate or method of calculation of the dividend rate and the
dividend payment dates or periods;
|
|
·
|
the
date from which dividends will accrue and whether dividends will
be
cumulative;
|
33
|
·
|
any
right to vote with holders of shares of any other series or class
and any
right to vote as a class;
|
|
·
|
the
provisions for redemption or repurchase, if applicable, including
any
sinking fund provisions for the redemption or repurchase of
shares;
|
|
·
|
the
amount payable with respect to both the payment of dividends and
the
distribution of assets upon liquidation, dissolution or winding up
of
CSX;
|
|
·
|
any
listing on any securities exchange;
|
|
·
|
the
procedures for any auction or remarketing, if
any;
|
|
·
|
the
terms and conditions, if any, upon which the preferred stock will
be
convertible into or exchangeable for other
securities;
|
|
·
|
whether
interests will be represented by depositary shares;
and
|
|
·
|
any
other specific terms of the offered preferred
stock.
|
The
form
of articles of amendment relating to a series of offered preferred stock will
be
filed as an exhibit to or incorporated by reference in the registration
statement. The terms of the preferred stock offered under any prospectus
supplement may differ from the general terms set forth in this
prospectus.
Preferred
stock may be issued from time to time in one or more series. Subject to
limitations prescribed by Virginia law and CSX’s Amended and Restated Articles
of Incorporation, our Board of Directors, without further action by the
shareholders, is authorized to designate and issue in series preferred stock
and
to fix as to any series:
|
·
|
the
number of shares constituting that
series;
|
|
·
|
the
rate of dividend, the time of payment and, if cumulative, the dates
from
which dividends will be cumulative, and the extent of participation
rights, if any;
|
|
·
|
any
right to vote with holders of shares of any other series or class
and any
right to vote as a class, either generally or as a condition to specified
corporate action;
|
|
·
|
the
price at and the terms and conditions on which shares may be redeemed,
including any sinking fund provisions for the redemption or purchase
of
shares;
|
|
·
|
the
amount payable in the event of a liquidation;
and
|
|
·
|
whether
shares will have the privilege of conversion, and if so, the terms
and
conditions on which shares may be
converted.
|
The
issuance of preferred stock, while providing flexibility in connection with
possible acquisitions and other corporate purposes, could, among other things,
adversely affect the voting power of the holders of common stock and, under
certain circumstances, make it more difficult for a third party to gain control
of CSX or remove present management and could have the effect of delaying or
preventing a merger, tender offer or other attempted takeover of CSX. No holder
of preferred stock will be entitled, as a matter of right, to subscribe for
or
purchase any shares of preferred stock or common stock.
Preferred
stock will, when issued, be fully-paid and non-assessable. Unless otherwise
specified in the applicable prospectus supplement, any series of offered
preferred stock will rank, with respect to dividends and the distribution of
assets, senior to common stock, and on a parity with shares of any other
outstanding series of preferred stock. Therefore, any preferred stock that
may
subsequently be issued may limit the rights of the holders of our common stock
and preferred stock. In addition, under certain circumstance, preferred stock
could also restrict dividend payments to our holders of common
stock.
34
The
transfer agent and registrar for a series of preferred stock will be named
in
the applicable prospectus supplement.
Virginia
Stock Corporation Act; Anti-takeover Effects
The
Virginia Stock Corporation Act (“VSCA”) contains provisions governing
“Affiliated Transactions.” These provisions, with several exceptions discussed
below, generally require approval of certain material transactions between
a
Virginia corporation and any beneficial holder of more than 10% of any class
of
its outstanding voting shares (an “Interested Shareholder”) by a majority of
disinterested directors and by the holders of at least two-thirds of the
remaining voting shares. Affiliated Transactions subject to this approval
requirement include mergers, share exchanges, material dispositions of corporate
assets not in the ordinary course of business, any dissolution of the
corporation proposed by or on behalf of an Interested Shareholder, or any
reclassification, including reverse stock splits, recapitalization or merger
of
the corporation with its subsidiaries, which increases the percentage of voting
shares owned beneficially by an Interested Shareholder by more than
5%.
For
three years following the time that an Interested Shareholder becomes an owner
of 10% of the outstanding voting shares, a Virginia corporation cannot engage
in
an Affiliated Transaction with that Interested Shareholder without the approval
of two-thirds of the voting shares other than those shares beneficially owned
by
the Interested Shareholder, and the approval of a majority of the Disinterested
Directors. “Disinterested Director” means, with respect to a particular
Interested Shareholder, a member of our Board of Directors who was:
|
·
|
a
member on the date on which an Interested Shareholder
became an Interested
Shareholder, or
|
|
·
|
recommended
for election by, or was elected to fill a
vacancy and received the
affirmative vote of, a majority of the Disinterested
Directors then on the
Board.
|
After
the
expiration of the three-year period, the statute requires approval of Affiliated
Transactions by two-thirds of the voting shares other than those beneficially
owned by the Interested Shareholder.
The
principal exceptions to the special voting requirements apply to transactions
proposed after the three-year period has expired and require either that the
transaction be approved by a majority of CSX’s Disinterested Directors or that
the transaction satisfy the fair-price requirements of the statute. In general,
the fair-price requirement provides that in a two-step acquisition transaction,
the Interested Shareholder must pay the shareholders in the second step either
the same amount of cash or the same amount and type of consideration paid to
acquire CSX’s shares in the first step.
None
of the limitations and special voting requirements described above applies
to an
Interested Shareholder whose acquisition of shares making that person an
Interested Shareholder was approved by a majority of CSX’s Disinterested
Directors.
These
provisions are designed to deter certain types of takeovers of Virginia
corporations. The statute provides that, by affirmative vote of a majority
of
the voting shares other than shares owned by any Interested Shareholder, a
corporation can adopt an amendment to its articles of incorporation or bylaws
providing that the Affiliated Transactions provisions will not apply to the
corporation. At the 2006 annual meeting, the shareholders of CSX voted to “opt
out” of the Affiliated Transactions provisions of the VSCA and eliminate the
supermajority voting default rules. Under CSX’s amended and restated articles of
incorporation, the following actions must be approved, by the affirmative vote,
of a majority of the voting shares entitled to vote: (1) any plan of merger
or
share exchange for which the VSCA requires shareholder approval; (2) the sale
of
all or substantially all of CSX’s property for which the VSCA requires
shareholder approval; and (3) the dissolution of CSX. Majority voting for these
three types of actions will be effective on November 3, 2007, 18 months after
the amendment was approved by the shareholders.
35
Virginia
law also generally provides that shares of a Virginia corporation acquired
in a
transaction that would cause the acquiring person’s voting strength to meet or
exceed any of three thresholds (20%, 33-1/3% or 50%) have no voting rights
with
respect to those shares unless granted by a majority vote of shares not owned
by
the acquiring person or any officer or employee-director of the corporation.
This provision empowers an acquiring person to require the Virginia corporation
to hold a special meeting of shareholders to consider the matter within 50
days
of its request. This law does not apply to acquisitions of CSX
stock.
DESCRIPTION
OF DEPOSITARY SHARES
CSX
may
offer depositary shares (either separately or together with other securities)
representing fractional interests in shares of our preferred stock of any
series. In connection with the issuance of any depositary shares, CSX will
enter
into a deposit agreement with a bank or trust company, as depositary, which
will
be named in the applicable prospectus supplement. Depositary shares will be
evidenced by depositary receipts issued pursuant to the related deposit
agreement. Immediately following the issuance by CSX of the preferred stock
related to the depositary shares, we will deposit the shares of preferred stock
with the relevant preferred stock depositary and will cause the preferred stock
depositary to issue, on our behalf, the related depositary receipts. Subject
to
the terms of the deposit agreement, each owner of a depositary receipt will
be
entitled, in proportion to the fraction of a share of preferred stock
represented by the related depositary share, to all the rights, preferences
and
privileges of, and will be subject to all of the limitations and restrictions
on, the preferred stock represented by the depositary receipt (including, if
applicable, dividend, voting, conversion, exchange, redemption and liquidation
rights).
The
form
of deposit agreement, together with the form of related depositary receipt,
that
will be entered into with respect to a particular offering of depositary shares
will be filed as an exhibit to or incorporated by reference in the registration
statement.
The
applicable prospectus supplement will describe the terms of the depositary
shares and the related deposit agreement for a particular issue of depositary
shares, which terms may include the following if applicable to those depositary
shares:
|
·
|
the
terms of the series of preferred stock deposited by CSX under the
related
deposit agreement;
|
|
·
|
the
number of depositary shares and the fraction of one share of preferred
stock represented by one depositary
share;
|
|
·
|
whether
the depositary shares will be listed on any securities
exchange;
|
|
·
|
whether
the depositary shares will be sold with any other securities and,
if so,
the amount and terms of those securities;
and
|
|
·
|
any
other specific terms of the depositary shares and the related deposit
agreement.
|
DESCRIPTION
OF SECURITIES WARRANTS
CSX
may
issue, either separately or together with other securities, securities warrants
for the purchase of debt securities, preferred stock or common stock. Each
securities warrant will entitle the holder to purchase the principal amount
of
debt securities or number of shares of preferred stock or common stock, as
the
case may be, at the exercise price and in the manner specified in the prospectus
supplement relating to those securities warrants. Securities warrants may be
exercised at any time up to the date and time specified in the applicable
prospectus supplement.
Securities
warrants will be issued under one or more warrant agreements to be entered
into
between CSX and a bank or trust company, as warrant agent. The material terms
and provisions of the warrant agreement for a particular issue of securities
warrants will be set forth in the applicable prospectus supplement. The form
of
securities warrant agreement, including the form of certificates representing
the securities warrants, that will be entered into with respect to a particular
offering of securities warrants will be filed as an exhibit to or incorporated
by reference in the registration statement.
36
The
applicable prospectus supplement will describe the terms of the securities
warrants for a particular issue of securities warrants, which terms may include
the following if applicable to those securities warrants:
|
·
|
the
title and aggregate number of the securities
warrants;
|
|
·
|
the
designation, aggregate principal amount, currency, currencies or
currency
units and terms of the debt securities purchasable upon exercise
of the
securities warrants; the price, or the manner of determining the
price, at
which the debt securities may be purchased upon exercise of the securities
warrants;
|
|
·
|
the
designation, number of shares and terms of the series of preferred
stock
purchasable upon exercise of the securities warrants; the price,
or the
manner of determining the price, at which the preferred stock may
be
purchased upon exercise of the securities
warrants;
|
|
·
|
the
number of shares of common stock that may be purchased upon exercise
of
each securities warrant; the price, or the manner of determining
the
price, at which the shares may be purchased upon the exercise of
the
securities warrants;
|
|
·
|
if
other than cash, the property and manner in which the exercise price
of
the securities warrants may be paid; and any minimum number of securities
warrants that may be exercisable at any one
time;
|
|
·
|
the
time or times at which, or period or periods during which, the securities
warrants may be exercised and the expiration date of the securities
warrants;
|
|
·
|
the
terms of any right of CSX to redeem the securities
warrants;
|
|
·
|
the
terms of any right of CSX to accelerate the exercise of the securities
warrants upon the occurrence of certain
events;
|
|
·
|
whether
the securities warrants will be sold with any other securities, and
the
date, if any, on and after which the securities warrants and the
other
securities will be separately
transferable;
|
|
·
|
whether
the securities warrants will be issued in registered or bearer
form;
|
|
·
|
a
discussion of certain material Federal income tax, accounting and
other
special considerations, procedures and limitations relating to the
securities warrants; and
|
|
·
|
any
other terms of the securities
warrants.
|
PLAN
OF DISTRIBUTION
CSX
may
sell securities to one or more underwriters for public offering and sale by
them
or may sell securities to institutional investors directly or through agents
who
solicit or receive offers on our behalf or through dealers or through a
combination of any of these methods of sale. The prospectus supplement with
respect to particular securities will set forth the terms of the offering of
those securities, including the following:
|
·
|
the
name or names of any underwriters, dealers or
agents;
|
|
·
|
the
public offering or purchase price and the proceeds to CSX from that
sale;
|
|
·
|
the
expenses of the offering;
|
37
|
·
|
any
discounts and commissions to be allowed or paid to the underwriters,
dealers or agents;
|
|
·
|
all
other items constituting underwriting compensation and the discounts
and
commissions to be allowed or paid to dealers, if any;
and
|
|
·
|
the
securities exchanges, if any, on which the securities will be
listed.
|
Underwriters
may offer and sell the securities at a fixed price or prices, which may be
changed, or from time to time at market prices prevailing at the time of sale,
at prices related to prevailing market prices or at negotiated prices. We also
may offer and sell securities in exchange for one or more of our outstanding
issues of debt. We may, from time to time, authorize agents acting on a best
or
reasonable efforts basis as our agents to solicit or receive offers to purchase
the securities upon the terms and conditions as are set forth in the applicable
prospectus supplement. In connection with the sale of securities, underwriters
or agents may be deemed to have received compensation from CSX in the form
of
underwriting discounts or commissions and may also receive commissions from
purchasers of securities for whom they may act as agent. Underwriters may sell
securities to or through dealers, and dealers may receive compensation in the
form of discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agent.
Underwriters,
dealers and agents who participate in the distribution of securities and their
controlling persons may be entitled, under agreements that may be entered into
with CSX, to indemnification by us against certain liabilities, including
liabilities under the Securities Act, or to contribution with respect to
payments that the underwriters, dealers or agents and their controlling persons
may be required to make in respect of those liabilities.
If
so
indicated in the applicable prospectus supplement, we may authorize underwriters
or other persons acting as our agents to solicit offers by certain institutions
to purchase securities from us pursuant to contracts providing for payment
and
delivery on a future date. Institutions with which those contracts may be made
include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and others, but
in
all cases those institutions must be approved by us. The obligations of any
institutional purchaser under those contracts will not be subject to any
conditions except:
|
·
|
the
purchase by that institution of the securities covered by the contract
will not at the time of delivery be prohibited under the laws of
the
jurisdiction to which that institution is subject,
and
|
|
·
|
if
the securities are being sold to underwriters, we will have sold
to the
underwriters the total principal amount of the securities less the
principal amount covered by delayed delivery
contracts.
|
Each
series of offered securities other than common stock will be a new issue of
securities with no established trading market. Any underwriters to whom offered
securities are sold by CSX for public offering and sale may make a market in
such offered securities, but the underwriters will not be obligated to do so
and
may discontinue any market making at any time without notice. No assurance
can
be given as to the liquidity of the trading market for any offered
securities.
Any
underwriter may engage in stabilizing and syndicate covering transactions in
accordance with Rule 104 under the Exchange Act. Rule 104 permits stabilizing
bids to purchase the underlying security so long as the stabilizing bids do
not
exceed a specified maximum. The underwriters may over-allot offered securities,
thereby creating a short position in the underwriters’ account. Syndicate
covering transactions involve purchases of offered securities in the open market
after the distribution has been completed to cover syndicate short positions.
Stabilizing and syndicate covering transactions may cause the price of the
offered securities to be higher than it would otherwise be in the absence of
such transactions. These transactions, if commenced, may be discontinued at
any
time.
Certain
of the underwriters, dealers or agents and their affiliates may engage in
transactions with and perform services for CSX in the ordinary course of
business.
38
LEGAL
OPINIONS
Cravath,
Swaine & Moore LLP will issue an opinion concerning the validity of the
offered securities for CSX. Certain matters relating to the formation of the
Trust and the issuance of the trust preferred securities under Delaware law
and
the trust agreements will be passed upon by Richards, Layton & Finger, P.A.,
special Delaware counsel to the Trust and CSX. Any underwriter, dealer or agent
will be advised about other issues relating to any offering by its own legal
counsel.
EXPERTS
Ernst
& Young LLP, an 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 29, 2006, and management’s assessment of the
effectiveness of our internal control over financial reporting as of
December 29, 2006, as set forth in their reports, which are incorporated by
reference in this prospectus and elsewhere in the registration statement. Our
consolidated financial statements and management’s assessment 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.
39
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution*
The
following table sets forth the expenses other than underwriting discounts and
commissions (all of which will be paid by CSX) to be incurred in connection
with
the registration and sale of the securities:
|
Securities
and Exchange Commission filing fee**
|
(1)
|
|
Rating
agency fees and listing fees
|
(2)
|
|
Legal
fees, Blue Sky fees and expenses
|
(2)
|
|
Accounting
fees and expenses
|
(2)
|
|
Transfer
Agents’, Trustees’ and Depositary’s fees and expenses
|
(2)
|
|
Printing
and engraving
|
(2)
|
|
Miscellaneous
|
(2)
|
|
Total
|
(2)
|
___________________
(1)
In
accordance with Rules 456(b) and 457(r), the registrants are deferring payment
of all of the registration fee, except for $60,696.54 that has already been
paid
with respect to $900,000,000 aggregate initial offering price of securities
that
were previously registered pursuant to Registration Statement No. 333-113637
and
were not sold thereunder.
(2)
The
amount of these expenses is not presently known.
Item
15. 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.
II-1
Item
16. Exhibits
|
1.1
|
Form
of Underwriting Agreement for Debt Securities (incorporated herein
by
reference to Exhibit 1.1 to CSX’s Registration Statement on Form S-3
(Registration No. 333-113637))
|
|
1.2
|
Form
of Underwriting Agreement for the other securities registered
hereby (a)
|
|
3.1(a)
|
Amended
and Restated Articles of Incorporation of CSX (incorporated herein
by
reference to Exhibit 3.1 to CSX’s Current Report on Form 8-K (File
No. 001-08022) filed with the SEC on December 14,
2004)
|
|
3.1(b)
|
Amended
and Restated Articles of Incorporation of CSX (incorporated herein
by
reference to Exhibit 3(i) to CSX’s Current Report on Form 8-K (File
No. 001-08022) filed with the SEC on May 9,
2006)
|
|
3.1(c)
|
Amended
and Restated Articles of Incorporation of CSX (incorporated herein
by
reference to Exhibit 3.1 to CSX’s Current Report on Form 8-K (File
No. 001-08022) filed with the SEC on July 18,
2006)
|
|
3.2(a)
|
Bylaws
of CSX, as amended (incorporated herein by reference to Exhibit 3.2
to
CSX’s Quarterly Report on Form 10-Q for the fiscal quarter ended June
27,
2003 (File No. 001-8022) filed with the SEC on July 30,
2003)
|
|
3.2(b)
|
Amendment
to Bylaws of CSX (incorporated herein by reference to Exhibit 3(ii).1
to
CSX’s Quarterly Report on Form 10-Q for the fiscal quarter ended June
25,
2004 (File No. 001-8022) filed with the SEC on July 29,
2004)
|
|
3.2(c)
|
Amendment
to Bylaws of CSX (incorporated herein by reference to Exhibit 3.2
to CSX’s
Current Report on Form 8-K (File No. 001-08022) filed with the SEC
on
December 11, 2004)
|
| 3.2(d) | Amendment to Bylaws of CSX (incorporated herein by reference to Exhibit 3.2 to CSX’s Current Report on Form 8-K (File No. 001-08022) filed with the SEC on February 13, 2006) |
| 3.2(e) | Amendment to Bylaws of CSX (incorporated herein by reference to Exhibit 3.2 to CSX’s Current Report on Form 8-K (File No. 001-08022) filed with the SEC on August 29, 2006) |
|
4.3
|
Indenture,
dated August 1, 1990, between CSX and 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 CSX’s Form SE, dated
September 7, 1990, filed with the
SEC)
|
|
4.4
|
First
Supplemental Indenture, dated as of June 15, 1991, between CSX and
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(c) to CSX’s Form
SE, dated May 28, 1992, filed with the
SEC)
|
|
4.5
|
Second
Supplemental Indenture, dated as of May 6, 1997, between CSX
and
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 4.3 to CSX’s
Registration Statement on Form S-4 (Registration No. 333-28523) filed
with
the SEC on June 5, 1997)
|
|
4.6
|
Third
Supplemental Indenture, dated as of April 22, 1998, between CSX
and
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 4.2 to CSX’s Current
Report on Form 8-K (File No. 001-8022) filed with the SEC on May
12,
1998)
|
|
4.7
|
Fourth
Supplemental Indenture, dated as of October 30, 2001, between CSX
and
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 September
28,
2001 (File No. 001-8022) filed with the SEC on November 7,
2001)
|
|
4.8
|
Fifth
Supplemental Indenture, dated as of October 27, 2003, between CSX
and
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 Current
Report on Form 8-K (File No. 001-8022) filed with the SEC on October
27,
2003)
|
|
4.9
|
Sixth
Supplemental Indenture, dated as of September 23, 2004, between CSX
and
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 September
24,
2004 (File No. 001-8022) filed with the SEC on November 3,
2004)
|
II-2
|
4.10
|
Form
of Subordinated Indenture (incorporated herein by reference to Exhibit
4.9
to CSX’s Registration Statement on Form S-3 (Registration No.
333-60134))
|
|
4.11
|
Form
of Supplemental Indenture to Subordinated Indenture (incorporated
herein
by reference to Exhibit 4.10 to CSX’s Registration Statement on Form S-3
(Registration No. 333-60134))
|
|
4.12
|
Form
of Trust Preferred Securities Guarantee Agreement to be delivered
by CSX
(incorporated herein by reference to Exhibit 4.12 to CSX’s Registration
Statement on Form S-3 (Registration No.
333-103567))
|
|
4.13
|
Certificate
of Trust of CSX Capital Trust I (incorporated herein by reference
to
Exhibit 4.12 to CSX’s Registration Statement on Form S-3 (Registration No.
333-60134))
|
|
4.14
|
Trust
Agreement of CSX Capital Trust I, dated as of May 1, 2001 (incorporated
herein by reference to Exhibit 4.13 to CSX’s Registration Statement on
Form S-3 (Registration No.
333-60134))
|
|
4.15
|
Form
of Amended and Restated Trust Agreement (incorporated herein by reference
to Exhibit 4.15 to CSX’s Registration Statement on Form S-3 (Registration
No. 333-103567))
|
|
4.16
|
Form
of Trust Preferred Security (included as Exhibit A to the Form of
Amended
and Restated Trust Agreement filed as Exhibit
4.14)
|
|
4.17
|
Form
of Agreement as to Expenses and Liabilities (incorporated herein
by
reference to Exhibit 4.17 to CSX’s Registration Statement on Form S-3
(Registration No. 333-103567))
|
|
4.18
|
Form
of Articles of Amendment for Preferred Stock
(a)
|
|
4.19
|
Form
of Senior Debt Security (a)
|
|
4.20
|
Form
of Subordinated Debt Security (included as Exhibit A to the Form
of
Supplemental Indenture to Subordinated Indenture filed as Exhibit
4.10)
|
|
4.21
|
Form
of Deposit Agreement including form of Depositary Receipt
(a)
|
|
4.22
|
Form
of Debt Securities Warrant Agreement
(a)
|
|
4.23
|
Form
of Preferred Stock Warrant Agreement
(a)
|
|
4.24
|
Form
of Common Stock Warrant Agreement
(a)
|
|
4.25
|
$1,250,000,000
5-Year Revolving Credit Agreement dated May 4, 2006 (incorporated
by
reference to Exhibit 99.1 to CSX’s Current Report on Form 8-K (File No.
001-08022) filed on May 9, 2006
|
|
5.1
|
Opinion
of Cravath, Swaine & Moore LLP as to the validity of the securities
(b)
|
|
5.2
|
Opinion
of Richards, Layton & Finger, P.A. as to the validity of the
securities (a)
|
|
12.1
|
Computation
of Ratio of Earnings to Fixed Charges
(b)
|
|
23.1
|
Consent
of Ernst & Young LLP (b)
|
|
23.2
|
Consent
of Cravath, Swaine & Moore LLP contained in the opinion filed as
Exhibit 5.1 hereto (b)
|
|
23.3
|
Consent
of Richards, Layton & Finger, P.A. contained in the opinion filed as
Exhibit 5.2 hereto (a)
|
|
24.1
|
Power
of Attorney of certain officers and directors
(b)
|
|
25.1
|
Statement
of Eligibility of 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 (as successor to JPMorgan Chase Bank, N.A., formerly
The
Chase Manhattan Bank),
as amended and supplemented, on Form T-1
(b)
|
|
25.2
|
Statement
of Eligibility of The
Bank of New York (as
successor to Chase Bank USA, National Association, formerly Chase
Manhattan Bank USA, National Association) as Trustee under the Trust
Agreement of CSX Capital Trust I, dated as of May 1, 2001, on Form
T-1
(b)
|
________________________
|
(a)
|
To
be filed by amendment or as an exhibit to a Current Report on Form
8-K and
incorporated by reference in the registration
statement.
|
|
(b)
|
Filed
herewith.
|
II-3
Item
17. Undertakings
Each
of
the undersigned registrants 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;
|
|||
|
(ii)
|
to
reflect in the prospectus any acts or events arising after the
effective
date of this 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 this 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 SEC pursuant
to Rule
424(b) under the Securities Act if, in the aggregate, the changes
in
volume and price represent no more than a 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 this registration statement or any
material
change to such information in this registration statement;
|
|||
|
provided,
however,
that subparagraphs (i) and (ii) do not apply if the information
required
to be included in a post-effective amendment by those subparagraphs
is
contained in periodic reports filed by the registrant pursuant
to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that
are
incorporated by reference in this registration statement.
(2)
That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a
new
registration statement relating to the securities offered herein,
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 the purpose of determining liability under the
Securities Act to any purchaser:
|
||||
|
(i)
|
if
the registrant is relying on Rule 430B;
|
|||
|
(A)
|
each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall
be
deemed to be part of the registration statement as of the date
the filed
prospectus was deemed part of and included in the registration
statement;
and
|
|||
|
|
(B)
|
each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5),
or
(b)(7) as part of a registration statement in reliance on Rule
430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii),
or (x)
for the purpose of providing the information required by section
10(a) of
the Securities Act shall be deemed to be part of and included in
the
registration statement as of the earlier of the date such form
of
prospectus is first used after effectiveness or the date of the
first
contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of
the issuer
and any person that is at that date an underwriter, such date shall
be
deemed to be a new effective date of the registration statement
relating
to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall
be deemed
to be the initial bona
fide
offering thereof. 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 effective date, 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 effective date; or
|
||
II-4
|
(ii)
|
if
the registrant is subject to Rule 430C, each prospectus filed pursuant
to
Rule 424(b) as part of a 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 to any purchaser in the initial distribution of
the
securities, in a primary offering of securities of the 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 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 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 registrant or used or referred to by the registrant;
|
|||
|
(iii)
|
the
portion of any other free writing prospectus relating to the offering
containing material information about the registrant or its securities
provided by or on behalf of the registrant; and
|
|||
|
(iv)
|
any
other communication that is an offer in the offering made by the
registrant to the purchaser.
|
|||
Each
of
the undersigned registrants hereby undertakes that, for the purpose of
determining any liability under the Securities Act, each filing of the
registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement 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-5
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrants,
pursuant to the provisions described under Item 15 or otherwise, the registrants
have been advised that in the opinion of the Securities and Exchange Commission
such indemnification by it 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 registrants 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.
Each
of
the undersigned registrants hereby undertakes that:
(1) For
purposes of determining any liability under the Securities Act, the information
omitted from the form of prospectus filed as part of this registration statement
in reliance upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities
Act
shall be deemed to be part of this registration statement as of the time it
was
declared effective.
(2) For
the
purpose 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.
Each
of
the undersigned registrants hereby undertakes to file an application for the
purpose of determining the eligibility of the relevant trustee to act under
subsection (a) of section 310 of the Trust Indenture Act (“Act”) in accordance
with the rules and regulations prescribed by the Commission under section
305(b)2 of the Act.
II-6
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, CSX Corporation certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the
City
of Jacksonville, State of Florida, as of the 15th day of February,
2007.
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
15th
day of February, 2007.
|
Signature
|
Title
|
|
|
|
||
|
/s/
Michael J. Ward*
|
Chairman,
President, Chief Executive Officer
|
|
|
Michael
J. Ward
|
and Director (Principal Executive Officer) | |
|
/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/
Elizabeth E. Bailey*
|
Director
|
|
|
Elizabeth
E.
Bailey
|
||
|
/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/
Robert D. Kunisch*
|
Director
|
|
|
Robert
D. Kunisch
|
||
|
/s/
Southwood J. Morcott*
|
Director
|
|
|
Southwood
J.
Morcott
|
||
II-7
|
/s/
David M. Ratcliffe*
|
Director
|
|
|
David
M. Ratcliffe
|
||
|
/s/
William C. Richardson*
|
Director
|
|
|
William
C. Richardson
|
||
|
/s/
Frank S. Royal*
|
Director
|
|
|
Frank
S. Royal, M.D.
|
||
|
/s/
Donald J. Shepard*
|
Director
|
|
|
Donald
J. Shepard
|
||
|
*By
/s/ Ellen M. Fitzsimmons
|
||
|
Ellen
M. Fitzsimmons
Attorney-in-Fact
|
II-8
Pursuant
to the
requirements of the Securities Act of 1933, CSX Capital Trust I has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Jacksonville, State of Florida, as
of
the 15th day of February, 2007.
CSX
CAPITAL TRUST I,
By
CSX Corporation, as Sponsor
By
/s/
David A.
Boor
David
A.
Boor
Vice
President – Tax and
Treasurer
II-9
EXHIBIT INDEX
|
Exhibit
No.
|
Description
|
|
| 1.1 |
Form
of Underwriting Agreement for Debt Securities (incorporated herein
by
reference to Exhibit 1.1 to CSX’s Registration Statement on Form S-3
(Registration No. 333-113637))
|
|
1.2
|
Form
of Underwriting Agreement for the other securities registered
hereby (a)
|
|
3.1(a)
|
Amended
and Restated Articles of Incorporation of CSX (incorporated herein
by
reference to Exhibit 3.1 to CSX’s Current Report on Form 8-K (File
No. 001-08022) filed with the SEC on December 14,
2004)
|
|
3.1(b)
|
Amended
and Restated Articles of Incorporation of CSX (incorporated herein
by
reference to Exhibit 3(i) to CSX’s Current Report on Form 8-K (File
No. 001-08022) filed with the SEC on May 9,
2006)
|
|
3.1(c)
|
Amended
and Restated Articles of Incorporation of CSX (incorporated herein
by
reference to Exhibit 3.1 to CSX’s Current Report on Form 8-K (File
No. 001-08022) filed with the SEC on July 18,
2006)
|
|
3.2(a)
|
Bylaws
of CSX, as amended (incorporated herein by reference to Exhibit
3.2 to
CSX’s Quarterly Report on Form 10-Q for the fiscal quarter ended June
27,
2003 (File No. 001-8022) filed with the SEC on July 30,
2003)
|
|
3.2(b)
|
Amendment
to Bylaws of CSX (incorporated herein by reference to Exhibit 3(ii).1
to
CSX’s Quarterly Report on Form 10-Q for the fiscal quarter ended June
25,
2004 (File No. 001-8022) filed with the SEC on July 29,
2004)
|
|
3.2(c)
|
Amendment
to Bylaws of CSX (incorporated herein by reference to Exhibit 3.2
to CSX’s
Current Report on Form 8-K (File No. 001-08022) filed with the
SEC on
December 11, 2004)
|
| 3.29(d) |
Amendment
to Bylaws of CSX (incorporated herein by reference to Exhibit 3.2
to CSX’s
Current Report on Form 8-K (File No. 001_08022) filed with the
SEC on
February 13, 2006)
|
| 3.29(e) |
Amendment
to Bylaws of CSX (incorporated herein by reference to
Exhibit 3.2 to CSX’s Current Report on Form 8-K (File No. 001_08022) filed
with the SEC on August 29, 2006)
|
|
4.3
|
Indenture,
dated August 1, 1990, between CSX and 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 CSX’s Form SE, dated
September 7, 1990, filed with the
SEC)
|
|
4.4
|
First
Supplemental Indenture, dated as of June 15, 1991, between CSX
and
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(c) to
CSX’s Form
SE, dated May 28, 1992, filed with the
SEC)
|
|
4.5
|
Second
Supplemental Indenture, dated as of May 6, 1997, between CSX
and
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 4.3 to
CSX’s
Registration Statement on Form S-4 (Registration No. 333-28523)
filed with
the SEC on June 5, 1997)
|
|
4.6
|
Third
Supplemental Indenture, dated as of April 22, 1998, between CSX
and
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 4.2 to CSX’s Current
Report on Form 8-K (File No. 001-8022) filed with the SEC on May
12,
1998)
|
|
4.7
|
Fourth
Supplemental Indenture, dated as of October 30, 2001, between CSX
and
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 September
28,
2001 (File No. 001-8022) filed with the SEC on November 7,
2001)
|
|
4.8
|
Fifth
Supplemental Indenture, dated as of October 27, 2003, between CSX
and
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 Current
Report on Form 8-K (File No. 001-8022) filed with the SEC on October
27,
2003)
|
|
4.9
|
Sixth
Supplemental Indenture, dated as of September 23, 2004, between
CSX
and
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 September
24,
2004 (File No. 001-8022) filed with the SEC on November 3,
2004)
|
EI-1
|
4.10
|
Form
of Subordinated Indenture (incorporated herein by reference to
Exhibit 4.9
to CSX’s Registration Statement on Form S-3 (Registration No.
333-60134))
|
|
4.11
|
Form
of Supplemental Indenture to Subordinated Indenture (incorporated
herein
by reference to Exhibit 4.10 to CSX’s Registration Statement on Form S-3
(Registration No. 333-60134))
|
|
4.12
|
Form
of Trust Preferred Securities Guarantee Agreement to be delivered
by CSX
(incorporated herein by reference to Exhibit 4.12 to CSX’s Registration
Statement on Form S-3 (Registration No.
333-103567))
|
|
4.13
|
Certificate
of Trust of CSX Capital Trust I (incorporated herein by reference
to
Exhibit 4.12 to CSX’s Registration Statement on Form S-3 (Registration No.
333-60134))
|
|
4.14
|
Trust
Agreement of CSX Capital Trust I, dated as of May 1, 2001 (incorporated
herein by reference to Exhibit 4.13 to CSX’s Registration Statement on
Form S-3 (Registration No.
333-60134))
|
|
4.15
|
Form
of Amended and Restated Trust Agreement (incorporated herein by
reference
to Exhibit 4.15 to CSX’s Registration Statement on Form S-3 (Registration
No. 333-103567))
|
|
4.16
|
Form
of Trust Preferred Security (included as Exhibit A to the Form
of Amended
and Restated Trust Agreement filed as Exhibit
4.14)
|
|
4.17
|
Form
of Agreement as to Expenses and Liabilities (incorporated herein
by
reference to Exhibit 4.17 to CSX’s Registration Statement on Form S-3
(Registration No. 333-103567))
|
|
4.18
|
Form
of Articles of Amendment for Preferred Stock
(a)
|
|
4.19
|
Form
of Senior Debt Security (a)
|
|
4.20
|
Form
of Subordinated Debt Security (included as Exhibit A to the Form
of
Supplemental Indenture to Subordinated Indenture filed as Exhibit
4.10)
|
|
4.21
|
Form
of Deposit Agreement including form of Depositary Receipt
(a)
|
|
4.22
|
Form
of Debt Securities Warrant Agreement
(a)
|
|
4.23
|
Form
of Preferred Stock Warrant Agreement
(a)
|
|
4.24
|
Form
of Common Stock Warrant Agreement
(a)
|
|
4.25
|
$1,250,000,000
5-Year Revolving Credit Agreement dated May 4, 2006 (incorporated
by
reference to Exhibit 99.1 to CSX’s Current Report on Form 8-K (File No.
001-08022) filed on May 9, 2006
|
|
5.1
|
Opinion
of Cravath, Swaine & Moore LLP as to the validity of the securities
(b)
|
|
5.2
|
Opinion
of Richards, Layton & Finger, P.A. as to the validity of the
securities (a)
|
|
12.1
|
Computation
of Ratio of Earnings to Fixed Charges
(b)
|
|
23.1
|
Consent
of Ernst & Young LLP (b)
|
|
23.2
|
Consent
of Cravath, Swaine & Moore LLP contained in the opinion filed as
Exhibit 5.1 hereto (b)
|
|
23.3
|
Consent
of Richards, Layton & Finger, P.A. contained in the opinion filed as
Exhibit 5.2 hereto (a)
|
|
24.1
|
Power
of Attorney of certain officers and directors
(b)
|
|
25.1
|
Statement
of Eligibility of 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 (as successor to JPMorgan Chase Bank, N.A., formerly
The
Chase Manhattan Bank),
as amended and supplemented, on Form T-1
(b)
|
|
25.2
|
Statement
of Eligibility of The
Bank of New York (as
successor to Chase Bank USA, National Association, formerly Chase
Manhattan Bank USA, National Association) as Trustee under the
Trust
Agreement of CSX Capital Trust I, dated as of May 1, 2001, on Form
T-1
(b)
|
________________________
|
(a)
|
To
be filed by amendment or as an exhibit to a Current Report on Form
8-K and
incorporated by reference in the registration
statement.
|
|
(b)
|
Filed
herewith.
|
EI-2