Ancora Sends Important Letter to Fellow Shareholders About Our Collective Opportunity to Transform and Turn Around Norfolk Southern
Norfolk Southern touts a cherrypicked five-year shareholder return metric with start and end dates disconnected from the Board’s relevant decision points.
Ohio-based Ancora Holdings Group, LLC (collectively with its affiliates, “Ancora” or “we”), which owns a large equity stake in Norfolk Southern Corporation (NYSE: NSC) (“Norfolk Southern” or the “Company”), today updated shareholders on its campaign to elect seven unaffiliated and qualified candidates (the “Shareholder Slate”) to the Company’s 13-member Board of Directors (the “Board”) at the Annual Meeting of Shareholders (the “Annual Meeting”) on May 9, 2024. Vote on the BLUE Proxy Card to elect the entire Shareholder Slate at the Annual Meeting.
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Fellow Shareholder,
Ancora is a meaningful investor in Norfolk Southern. We’re asking you to elect seven new members to Norfolk Southern’s 13-person Board at the May 9th Annual Meeting. Given the scope of this ask, we committed at the outset of our campaign to provide you with the respect and transparency an owner deserves when considering a change to a majority of a board of directors. As our campaign enters its final weeks, we will fulfill this commitment by asking you to focus on substantive matters and ignore the fearmongering, spamming and eleventh-hour stunts that often seep into the last days of contested elections.
Rather than inundate you, we will continue to ask that you focus on one defining question when making your ultimate voting decision:
Do you want Norfolk Southern to have leadership with the experience and judgment to properly implement Precision Scheduled Railroading (“PSR”), so the Company can finally achieve the service, safety and long-term value realized by every other publicly traded Class I rail?
If the answer is “yes,” this Annual Meeting represents your best opportunity to usher in the type of change that drove lasting turnarounds at rails such as Canadian Pacific and CSX. Our position is supported by three points:
1. The Right Slate at the Right Time
The Shareholder Slate as a whole is greater than the sum of its parts. It is uniquely positioned to add value right away and build consensus in an expeditious manner. Its attributes include:
- Rail Industry and PSR Expertise – Nominees Sameh Fahmy and Gilbert Lamphere bring first-hand experience overseeing orderly PSR implementations and supporting turnarounds at Class I rails. Mr. Fahmy led a successful network redesign and subsequent transformation as EVP of PSR at Kansas City Southern from 2019 to 2021 and, prior to that, oversaw a rail transformation as a director of Rumo Logistica (RAIL3.SA) from early 2017 to early 2020. Mr. Lamphere hired industry legend Hunter Harrison, helped develop the concept of PSR and participated in value-enhancing network redesigns as a director of Canadian National, Illinois Central and CSX. Both individuals will also add decades of experience developing, reviewing and optimizing rail safety and service protocols.
- Community, Government and Safety Expertise – Nominees William Clyburn, Jr., a former Surface Transportation Board Vice Chairman, and John Kasich, a long-serving U.S. congressman and two-term governor of Ohio, bring policy insight and public safety perspectives that only come from holding the right leadership positions in government. Mr. Clyburn also has direct experience advocating for shippers and leading a derailment response effort to support communities impacted by Norfolk Southern’s 2005 crash in Graniteville, South Carolina. Mr. Kasich also possesses the important viewpoints of an Ohioan, who has spent his life addressing underperformance within large institutions, and a record of championing bipartisan legislation that put billions of investment dollars into one of the country’s largest state transportation systems. As governor, Mr. Kasich also oversaw Ohio’s successful effort to become the first state to receive approval and certification from the Federal Transit Administration for its State Safety Oversight Program.1
- Change Management and Finance Expertise – Nominee Betsy Atkins was a director during the historic change-in-control transition at Darden Restaurants, served as a director at Volvo during a period of increased technology integration within vehicles and is a current director of Atlas Air Cargo, which has operational and safety considerations similar to Norfolk Southern. Nominee Allison Landry covered Class I rails as a transportation sector equity analyst for 16 years and is now Vice Chair of XPO Logistics, which has undergone a value-enhancing transformation. Ms. Atkins and Ms. Landry also possess additive expertise in areas such as compensation program structuring, financial forecasting and performance measurement, and executive leadership transitions.
- Shipper Relations and Human Capital Management Expertise – Nominee and CEO candidate Jim Barber, who previously served as UPS’ COO and ran its transportation networks, has a unique background as one of the country’s largest rail customers with vast knowledge of shippers’ needs. Mr. Barber, who began his career as a unionized driver, rose through the ranks of UPS to simultaneously lead reportable segments with 100,000+ employees, more than $25 billion in annual revenue and approximately $3.4 billion in annual EBIT. During his tenure, he also formed lasting and valuable relationships with unions while negotiating mutually beneficial labor agreements across North America and Europe.
The current Board, which is chaired by a long-serving member with a background as a movie theater chain CEO, recently impugned its credibility by calling the aforementioned individuals “inferior director nominees” who have “little board and safety experience.”2 The Board further compromised its integrity by saying in the same shareholder communication that the “East Palestine incident was not due to bad management or inattention to safety,” despite the directors knowing the National Transportation Safety Board concluded the derailment was “100% preventable” and that the Company’s people on the ground “lacked the scientific background” to recommend what has been deemed an unnecessary toxic burn.3 This same Board is now also telling you it has selected the right CEO, the right COO (albeit the Company’s third in two-and-a-half years) and the right strategy (even though the resilience model has delivered worst-in-class results and is an outlier among Class I rails). With all of this in mind, hopefully it’s clear that the only credible path to actually reducing risk and shifting to a proven strategy is to elect ALL SEVEN members of the Shareholder Slate, so its proposed management team and plan have support from a majority of the Board.
Please know we do not use the term “risk” lightly. Contemplate the risk associated with maintaining a Board that recently cut an exceedingly costly, opaque deal with competitor Canadian Pacific Kansas City Limited (“CPKC”) to hire a new COO in the middle of a contest. In addition to agreeing to pay $25 million in cash, the Board gave up Norfolk Southern’s right of first refusal on significant intermodal volume moving to/from the Wylie Intermodal Terminal and across the Meridian Speedway, resulting in the loss of an exclusive strategic advantage for the Company and the opening up of increased competition from the growing CPKC-CSX partnership. Importantly, the Board also withdrew multi-year opposition to the CPKC-CSX alliance that is strengthening the capabilities and offerings of the Company’s Eastern competitor. Although Norfolk Southern refuses to disclose its highly irregular agreement with CPKC, we fear it agreed not to exercise its expiring purchase option on the strategically important Wylie Intermodal Terminal. The Board, of course, can prove us wrong any time it wants, given that the window is open for the purchase option to be exercised. All of these recent concessions appear to have been made purely for self-preservation purposes, especially when considering that Norfolk Southern was still filing opposition papers with the Surface Transportation Board in the fourth quarter of last year. Moreover, despite the Board’s claims this month that the concessions are inconsequential, consider the Company’s previous position:
“The Meridian-Wylie Route represents a significant component of NS’s commercial and operational offerings to intermodal customers […] Preserving NS’s ability to meet its intermodal customers’ needs with competitive rates and services over that line is a primary focus for NS.”4
If the full Shareholder Slate is elected, it plans to have the Board protect the value of the Meridian Speedway assets for shareholders. This includes, but is not limited to, proposing that management exercise Norfolk Southern’s purchase option on the Wylie Intermodal Terminal and asserting the Company’s rights over any related trackage rights. Any undisclosed arrangements or verbal understandings as they relate to the acquisition of John Orr and related concessions will be challenged and defended for shareholders.
2. The Right Management at the Right Time
The Shareholder Slate will work to appoint Mr. Barber as CEO and Jamie Boychuk, former CSX EVP of Operations, as COO. This will mark the first time in a generation that Norfolk Southern has a CEO with an operational background. Additionally, this will mark the first time in Norfolk Southern’s history that Norfolk Southern has a COO with experience leading a network redesign and related PSR implementation. You can learn more in the appendices to this letter about their applicable experience and the irrefutable data underpinning their accomplishments as transportation operators.
Those of you who have heard from Mr. Barber know that he is a no-nonsense operator who is focused on delivering greater value for all of Norfolk Southern’s stakeholders, including shareholders, customers, labor, regulators and communities. Mr. Barber knows what this will require based on his unique background as a major rail shipper and former Norfolk Southern customer during his days at UPS. He also has decades of experience negotiating lasting union agreements and maintaining the trust of regulators across the world. As you will continue to hear him say, delivering enhanced value for all stakeholders starts with providing safer and more reliable service. Improving Norfolk Southern’s worst-in-class Trip Plan Compliance, which currently stands at just 76.5% for the Merchandise vertical, is among his immediate priorities.5 The Company’s Manifest Trip Plan Compliance has dramatically lagged the Class I Average and the Surface Transportation Board’s 82% compliance target for years.6
It is important to note that Mr. Barber has publicly disclosed that he and Mr. Boychuk will seek an at-risk compensation model that is governed by tangible value creation rather than the arbitrary targets and discretionary milestones historically relied on at Norfolk Southern. In our view, the Board’s recent and reactionary tweaks to Norfolk Southern’s compensation model is far too little, far too late. Messrs. Barber and Boychuk have committed to forgoing the guaranteed cash compensation structure provided by the Board to the Company’s current CEO and COO. Their desire for the maximum amount of accountability further demonstrates that they are the right leaders to turn around Norfolk Southern.
3. The Right Plan at the Right Time
The Shareholder Slate and its recommended management team will implement a PSR-powered Scheduled Network. The PSR implementation will begin after new leadership takes steps that include conducting a listening tour, redesigning the network on paper and sharing a transformation timeline and intended output summary with all stakeholders. This methodical approach, which differs from previous PSR implementations, has been informed by Mr. Barber’s understanding of shippers’ expectations and Mr. Boychuk’s work with Messrs. Fahmy and Lamphere to assess learnings from past situations.
Under the Shareholder Slate’s plan, Norfolk Southern will spend approximately 24 months evolving from a marketing-led railroad to an operationally-led railroad by reducing assets, clearing up congestion and cutting down on excessive touch points. The outputs of this phase are expected to include improved service (reflected in a much higher Trip Plan Compliance rate), greater efficiency (reflected in a much lower Operating Ratio) and sustained safety (reflected in declines in severe derailments and the number of required reported accidents relative to total network activity). The third year of the plan will be focused on leveraging operational improvements and service enhancements to increase Norfolk Southern’s wallet share and target top-line growth, with a specific focus on the high-margin Merchandise vertical.
Despite Norfolk Southern’s recent hire of an executive who ran inherited PSR systems at Canadian National and CPKC, it is important to stress that the Board has confirmed its preferred strategy is unchanged.7 The Board wants to maintain Norfolk Southern’s existing network to run a resilience-focused model that deprioritizes scheduling principles and prioritizes having excess assets available in the event of unforeseen spikes in volume. The Board seems to maintain the unfounded belief that Norfolk Southern’s poor Trip Plan Compliance will not obstruct it from being a partner of choice if there is an unexpected freight boom. While shareholders wait, Norfolk Southern’s excess assets, bottle-necked network and unproven operating model remain structurally incompatible with true PSR.
With all of this said, you do not need to rely on our word. Please review Appendix A to see what institutional investors and respected financial analysts are saying about the Shareholder Slate and its proposed management and strategy.
In Closing
We appreciate your willingness to consider what the Shareholder Slate has to offer. To the extent you would like to review responses to the Board’s recent claims and representations, they are included in Appendix B. You can also evaluate all aspects of the Shareholder Slate’s analysis and strategy by viewing the 193-page presentation available at www.MoveNSCForward.com.
This is a once-in-a-generation opportunity for us, Norfolk Southern’s owners, to put in place the right slate of directors, the right management team and the right strategy – all at the right time. This is the best way to turn the page on a dark chapter and move Norfolk Southern forward.
Sincerely,
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Frederick D. DiSanto Chairman and Chief Executive Officer Ancora Holdings Group LLC |
James Chadwick President Ancora Alternatives LLC |
APPENDIX A – SHAREHOLDER SLATE’S SUPPORT FROM INVESTORS AND ANALYSTS
A Sampling of Support from the Financial Community
“We believe the status quo at NSC will lead to continued underperformance of the railroad. We also believe that Board refreshment and Jim Barber's and Jamie Boychuk's leadership are essential for enhancing safety and for ensuring outstanding long-term achievements for the benefit of all NSC's shareholders and other stakeholders.”
- EdgePoint Investment Group
“[W]e believe a change in management and refreshment of the board at NSC are warranted and could stimulate improved operations and thus equity performance. For these reasons, we intend to support the election of dissident nominees Betsy Atkins, James Barber, Jr., William Clyburn, Jr., Sameh Fahmy, John Kasich, Gilbert Lamphere, and Allison Landry.”
- Neuberger Berman
“Important from yesterday’s town hall was commentary that PSR implementation is going to be slower than what we saw at CSX given in our view changes to the regulatory environment and the proposed management team’s focus on the customer […] Overall, we view this plan as contrasting heavily against Norfolk’s Resilience Model and expect headcount reduction can be achieved on the back of attrition, in addition to head office cuts.”
- RBC Capital Markets note issued on April 19th
“NSC's activist campaign appears to have unanimous support from institutional investors.”
- Deutsche Bank Research note issued on April 15th
“We see value in potential management change with Jim Barber as CEO and Jamie Boychuk as COO as proposed by the activist investor Ancora, especially given the historical margin underperformance of Norfolk Southern.”
- Barclays Equity Research note issued on March 25th
APPENDIX B – SHAREHOLDER SLATE’S RESPONSES TO THE BOARD’S RECENT CONTENTIONS
The Case for Significant Change in the Boardroom
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The Board’s Contention |
The Reality |
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Norfolk Southern has delivered strong long-term returns for shareholders. |
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“Norfolk Southern's board is an agent of change, advancing shareholders' interests.” |
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“We expect to realize an operating ratio of 60% or lower in three to four years, assuming a market recovery and associated revenue growth in line with previous freight cycles.” |
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The Board has a “steadfast commitment to bringing in fresh ideas and diverse perspectives.” |
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The Shareholder Slate’s strategy has generated “concern among key constituents.” |
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The Case for Changes in Management
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The Board’s Contention |
The Reality |
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“The Board appointed Alan Shaw as CEO because the depth and breadth of his experience would best position us to leverage PSR…” |
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Jim Barber “has no experience in the railroad industry or with rail operations and is not qualified to be Norfolk Southern’s chief executive.” |
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The Board states that “PSR expert John Orr, our new COO, will accelerate the execution of our balanced strategy.” |
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The Board says Jamie Boychuk “offers more downside for Norfolk Southern than upside” and that “his track record as an operator is not inspiring.” |
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The Case for Changes in Strategy
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The Board’s Contention |
The Reality |
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Norfolk Southern’s “strategy is about being flexible, disciplined, and supported by the right resources.” |
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Norfolk Southern has done a “successful implementation of a modern version of precision scheduled railroading.” |
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The Shareholder Slate’s plan is “not supported by the mathematical reality.” |
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The Shareholder Slate’s “strategy would require thousands of job cuts, put the franchise at risk, and be detrimental to long-term shareholder value.” |
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About Ancora
Founded in 2003, Ancora Holdings Group, LLC offers integrated investment advisory, wealth management, retirement plan services and insurance solutions to individuals and institutions across the United States. The firm is a long-term supporter of union labor and has a history of working with union groups and public pension plans to deliver long-term value. Ancora’s comprehensive service offering is complemented by a dedicated team that has the breadth of expertise and operational structure of a global institution, with the responsiveness and flexibility of a boutique firm. For more information about Ancora, please visit https://ancora.net.
Advisors
Cadwalader, Wickersham & Taft LLP is serving as legal advisor, with Longacre Square Partners LLC serving as communications and strategy advisor and D.F. King & Co., Inc. serving as proxy solicitor.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
The information herein contains “forward-looking statements.” Specific forward-looking statements can be identified by the fact that they do not relate strictly to historical or current facts and include, without limitation, words such as “may,” “will,” “expects,” “intends,” “believes,” “anticipates,” “plans,” “estimates,” “projects,” “potential,” “targets,” “forecasts,” “seeks,” “could,” “should” or the negative of such terms or other variations on such terms or comparable terminology. Similarly, statements that describe our objectives, plans or goals are forward-looking. Forward-looking statements relate to future events or future performance and involve known and unknown risks, uncertainties, and other factors that may cause actual results, levels of activity, performance or achievements or those of the industry to be materially different from those expressed or implied by any forward-looking statements. Norfolk Southern Corporation, a Virginia corporation (“Norfolk Southern”), has also identified additional risks relating to its business in its public filings with the Securities and Exchange Commission (the “SEC”). Ancora Alternatives LLC (“Ancora Alternatives”), and as applicable the other participants in the proxy solicitation, have based these forward-looking statements on current expectations, assumptions, estimates, beliefs, and projections. While Ancora Alternatives and the other participants, as applicable, believe these expectations, assumptions, estimates, and projections are reasonable, such forward-looking statements are only predictions and involve known and unknown risks and uncertainties, many of which involve factors or circumstances that are beyond the participants’ control. There can be no assurance that any idea or assumption herein is, or will be proven, correct. If one or more of the risks or uncertainties materialize, or if the underlying assumptions of Ancora Alternatives or any of the other participants described herein prove to be incorrect, the actual results may vary materially from outcomes indicated by these statements. Accordingly, forward-looking statements should not be regarded as a representation by Ancora Alternatives that the future plans, estimates or expectations contemplated will ever be achieved. You should not rely upon forward-looking statements as a prediction of actual results and actual results may vary materially from what is expressed in or indicated by the forward-looking statements. Except to the extent required by applicable law, neither Ancora Alternatives nor any participant will undertake and specifically declines any obligation to disclose the results of any revisions that may be made to any projected results or forward-looking statements herein to reflect events or circumstances after the date of such projected results or statements or to reflect the occurrence of anticipated or unanticipated events.
Certain statements and information included herein have been sourced from third parties. Ancora Alternatives does not make any representations regarding the accuracy, completeness or timeliness of such third party statements or information. Except as may be expressly set forth herein, permission to cite such statements or information has neither been sought nor obtained from such third parties. Any such statements or information should not be viewed as an indication of support from such third parties for the views expressed herein.
CERTAIN INFORMATION CONCERNING THE PARTICIPANTS
The participants in the proxy solicitation are Ancora Catalyst Institutional, LP (“Ancora Catalyst Institutional”), Ancora Merlin Institutional, LP, (“Ancora Merlin Institutional”), Ancora Merlin, LP (“Ancora Merlin”), Ancora Catalyst, LP (“Ancora Catalyst”), Ancora Bellator Fund, LP (“Ancora Bellator”), Ancora Impact Fund LP Series AA (“Ancora Impact AA”) and Ancora Impact Fund LP Series BB (“Ancora Impact BB”) (each of which is a series fund within Ancora Impact Fund LP) (Ancora Catalyst Institutional, Ancora Merlin Institutional, Ancora Merlin, Ancora Catalyst, Ancora Bellator, Ancora Impact AA and Ancora Impact BB, collectively, the “Ancora Funds”), Ancora Advisors, LLC (“Ancora Advisors”), The Ancora Group LLC (“Ancora Group”), Ancora Family Wealth Advisors, LLC (“Ancora Family Wealth”), Inverness Holdings LLC (“Inverness Holdings”), Ancora Alternatives, Ancora Holdings Group, LLC (“Ancora Holdings”) and Frederick DiSanto (collectively, the “Ancora Parties”); and Betsy Atkins, James Barber, Jr., William Clyburn, Jr., Sameh Fahmy, John Kasich, Gilbert Lamphere and Allison Landry (the “Ancora Nominees” and, collectively with the Ancora Parties, the “Participants”).
Ancora Alternatives and the other Participants have filed a definitive proxy statement and accompanying BLUE proxy card (the “Definitive Proxy Statement”) with the SEC on March 26, 2024 to be used to solicit proxies for, among other matters, the election of its slate of director nominees at the 2024 annual meeting of shareholders of Norfolk Southern.
IMPORTANT INFORMATION AND WHERE TO FIND IT
ANCORA ALTERNATIVES STRONGLY ADVISES ALL SHAREHOLDERS OF NORFOLK SOUTHERN TO READ THE DEFINITIVE PROXY STATEMENT, ANY AMENDMENTS OR SUPPLEMENTS TO SUCH DEFINITIVE PROXY STATEMENT, AND OTHER PROXY MATERIALS FILED BY ANCORA ALTERNATIVES AS THEY CONTAIN IMPORTANT INFORMATION. SUCH PROXY MATERIALS ARE AVAILABLE AT NO CHARGE ON THE SEC’S WEBSITE AT WWW.SEC.GOV AND AT ANCORA ALTERNATIVE’S WEBSITE AT WWW.MOVENSCFORWARD.COM. THE DEFINITIVE PROXY STATEMENT AND ACCOMPANYING PROXY CARD WILL BE FURNISHED TO SOME OR ALL OF THE COMPANY’S SHAREHOLDERS. SHAREHOLDERS MAY ALSO DIRECT A REQUEST TO THE PARTICIPANTS’ PROXY SOLICITOR, D.F. KING & CO., INC., 48 WALL STREET, 22ND FLOOR, NEW YORK, NEW YORK 10005 (SHAREHOLDERS CAN CALL TOLL-FREE: +1 (866) 227-7300).
Information about the Participants and a description of their direct or indirect interests by security holdings or otherwise can be found in the Definitive Proxy Statement.
1 Letter from the Federal Transit Administration to the Honorable John Kasich, Governor of Ohio, on August 29, 2017.
2 Company press release entitled “Norfolk Southern presentation: We are creating a safer, more profitable railroad with long-term upside for shareholders,” dated April 18, 2024.
3 Public statements from National Transportation Safety Board Chair Jennifer L. Homendy.
4 Trains.com, “Norfolk Southern says CPKC merger threatens Meridian Speedway intermodal business,” March 2, 2022.
5 Company filings with the Surface Transportation Board (76.5% represents the year-to-date average through April 12, 2024).
6 Company and Class I railroad filings with the Surface Transportation Board.
7 Company press release entitled “Norfolk Southern presentation: We are creating a safer, more profitable railroad with long-term upside for shareholders,” dated April 18, 2024.
8 Company press release entitled “Norfolk Southern files preliminary proxy statement, recommends shareholders vote for its director nominees,” dated February 26, 2024.
9 www.OpenSecrets.org.
10 www.OpenSecrets.org.
11 Public communications from Transportation Trades Department, AFL-CIO on February, 21, 2016 and March 8, 2024.
12 Based on a review of conference and content programs, Norfolk Southern is a financial sponsor of Railway Age, which has recently run pro-Company material that includes “Norfolk Southern’s Alan Shaw and John Orr: Rail Group on Air Podcast” (April 16, 2024), "Shipper Survey Indicates ‘Significant Concern’ Over NS Takeover Attempt" (April 7, 2024) and "NS: ‘Committed to Enhancing Safety, Aligning Management With Shareholder Interests’" (March 4, 2024). Norfolk Southern, when promoting Railway Age material, has not disclosed its financial ties and its listed sponsorship of an upcoming publication event.
13 Move NSC Forward: The Case for Operationally Proficient Leaders and a PSR-Powered Scheduled Network, Slide 151 (April 15, 2024).
14 Move NSC Forward: The Case for Operationally Proficient Leaders and a PSR-Powered Scheduled Network, Slide 15 (April 15, 2024).
15 CSX 2023 10-K filing.
16 Company filings.
17 Company filings and Wolfe Research Class I Rail Service Stats Summary.
18 NSC and CSX 2023 10-K filings.
19 R-1 Data, https://www.stb.gov/reports-data/economic-data/annual-report-financial-data/.
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