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CSX CORP : Issues Letter to Shareholders Highlighting TCI Group's False Testimony in U.S. District Court and Violations of Federal Securities Law

06/12/2008 | 01:57pm US/Eastern
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JACKSONVILLE, Fla., June 12 /PRNewswire-FirstCall/ -- CSX Corporation (NYSE: CSX) today announced that it has issued a letter to CSX shareholders in connection with the ruling of the U.S. District Court for the Southern District of New York. As previously announced, the Court found that The Children's Investment Fund (TCI) and 3G Capital Partners (3G) (together, the TCI Group) violated federal securities laws in their actions with respect to CSX and provided false testimony under oath.

    The full text of the letter to shareholders is below:

    June 12, 2008

    Dear CSX Shareholder:

On June 11, a U.S. federal district court in New York issued an opinion finding that the TCI Group has engaged in a pattern of deception and misstatements to hide the truth regarding its activity in CSX stock.

Among many other findings in a 115-page opinion, the Court concluded that the TCI Group members "testified falsely in many respects" during the trial. In more than a dozen places throughout the opinion, the Court finds that specific testimony of individual TCI Group members -- including Chris Hohn, Alex Behring, Gil Lamphere and Snehal Amin -- was not credible. A copy of the full opinion is available at http://2008annualmeeting.csx.com.

CSX negotiated in good faith with the TCI Group to try to resolve this proxy contest, but we broke off those negotiations when it became apparent that Mr. Hohn and the TCI Group were seeking effective control of CSX. The TCI Group has said repeatedly that it has no plans to control CSX. It said this in sworn Congressional testimony, in signed SEC filings and, most recently, in a public investor forum three days ago. Here is what the Court concluded after reviewing the evidence:

      "Defendants have sought to control CSX for over a year.  As obstacles
      to control surfaced, they adapted their strategy for achieving control,
      making disclosures only when convenient to their strategy.  Defendants'
      latest strategy for control will be tested at the annual shareholder
      meeting.  And if this strategy is not successful, the Court perceives a
      substantial likelihood that the defendants would craft a new strategy
      for control without regard to their disclosure obligations."

Considering all the evidence presented, the Court found a "frequent lack of credibility of Hohn, Amin, and Behring." In a footnote to the opinion, the Court also adopted numerous findings of fact regarding the TCI Group's lack of credibility that do not appear in the opinion itself. Because we believe it is important for investors to have complete information regarding the deception in which the TCI Group has engaged, we have excerpted the findings of fact adopted by the Court here for your reference.

With respect to TCI founder and TCI Group nominee Christopher Hohn, the Court found:

      1. Mr. Hohn's testimony that, in a paragraph in his email to Mr. Amin of
         February 13, 2007, the first sentence refers to CSX, but the second
         sentence ("I want to also discuss our friend Alex in Brazil") refers
         to Arcelor is not credible.  Moreover, the Court found that "Hohn's
         current explanation is undermined by his deposition testimony, in
         which he claimed that he did not know that 'friend Alex of Brazil'
         referred to Alex Behring."

      2. Mr. Hohn's testimony that he never discussed with Mr. Behring whether
         TCI was going to purchase more shares of CSX is not credible.

      3. Mr. Hohn's testimony that "[w]e are very careful not to ever tip
         another investor as to whether we are going to increase our stake in
         a company or not, because that would disadvantage our investors", is
         not credible.

      4. Mr. Hohn's testimony that TCI and 3G never discussed their respective
         purchases of CSX stock is not credible.

      5. Mr. Hohn's testimony that he was not encouraging Lone Pine Capital,
         another hedge fund, to purchase CSX stock is not credible.  The Court
         also found "that Hohn did not limit his conversations with other
         hedge funds to industry-level topics. He suggested, in one way or
         another, that they buy CSX shares and alerted them to the fact that
         CSX had become a TCI target."

      6. Mr. Hohn's testimony that, while he told another hedge fund that was
         not an investor in TCI (Deccan) to buy CSX stock, he never
         recommended CSX to 3G, which is an investor in TCI, is not credible.

      7. Mr. Hohn's testimony that TCI did not solicit Austin Friars' support
         for TCI's activism campaign is not credible.

With respect to TCI Group nominee and 3G principal Alex Behring, the Court found:

      1. Mr. Behring's testimony that he did not have conversations with Chris
         Hohn of TCI in February 2007, at the time that 3G began making
         purchases of CSX stock, is not credible.

      2. Mr. Behring's testimony that 3G's purchases of CSX stock from March
         29 to April 17, 2007, had nothing to do with a meeting that he had
         with Snehal Amin of TCI on March 29, 2007, and that it was just a
         coincidence, is not credible.

      3. Mr. Behring's testimony that 3G's sales of CSX shares in August and
         September of 2007 were unrelated to TCI's doubts as to whether it
         would continue to hold its CSX shares and run a proxy fight is not
         credible.

      4. Mr. Behring's testimony that he did not know before Thanksgiving 2007
         that TCI was contacting potential nominees for the CSX board of
         directors is not credible.

      5. Mr. Behring's testimony that around October 11, he and Mr. Hohn did
         not tell each other that they had met with candidates for the CSX
         Board is not credible.

      6. Mr. Behring's testimony that, when he met with Mr. Amin on October
         17, 2007, he did not tell Mr. Amin that he had met with Mr. Lamphere
         five days earlier is not credible.

      7. Mr. Behring's testimony that Mr. Schwartz's email referring to the
         deadline for shareholder proposals at the CSX annual meeting was just
         "part of your normal due diligence on any investment we make" is not
         credible.  The Court found that the email "demonstrates [3G's]
         interest in a proxy fight right from the outset."

      8. Mr. Behring's initial testimony that 3G was "not giving serious
         consideration to an activist scenario at that point [April 3, 2007]
         yet" was not credible, and he was forced to retract it.


    With respect to TCI founding partner Snehal Amin, the Court found:

      1. Mr. Amin's testimony that, at his March 29, 2007, meeting with Mr.
         Behring, they did not discuss that TCI was about to buy shares of CSX
         when TCI's Hart-Scott-Rodino waiting period expired, and that TCI and
         3G never discussed buying or selling CSX shares, is not credible.

      2. Mr. Amin's testimony that he did not discuss the buying of CSX shares
         at his meeting with Mr. Behring on September 26, 2007, is not
         credible.

      3. Mr. Amin's testimony that he never discussed, in any of his meetings
         with Mr. Behring, the subject of buying or selling CSX stock or
         putting on swap positions is not credible.

      4. Mr. Amin's testimony that TCI was not looking to have a new CEO at
         CSX in April 2007, when Mr. Amin and Mr. Hohn talked about
         approaching Hunter Harrison, is not credible.  The Court noted that
         the incident "confirm[s] the Court's view that TCI was determined to
         force changes in CSX's policies and, if need be, to bring about a
         change in control."

      5. Mr. Amin's testimony that he did not assume that each counterparty
         would hedge with physical shares is not credible.

      6. Mr. Amin's testimony that he stated that it was unfortunate that Mr.
         Hohn sent his proposal to Mr. Kelly of CSX by email because "things
         like this are better discussed in person" is not credible.  The Court
         also referred to this testimony as "border[ing] on the absurd" and
         "patently incredible."

      7. Mr. Amin's testimony concerning a voting scenario prepared by TCI was
         misleading insofar as he did not acknowledge that the scenario
         depicted in that exhibit was one of a number of different scenarios.

      8. Mr. Amin's testimony that TCI did not put swaps in Deutsche Bank so
         that TCI could try to influence them to vote because of the influence
         of Austin Friars, a Deutsche Bank proprietary hedge fund, is not
         credible.  The Court also found that "Hohn believed that TCI could
         exploit this relationship to influence how Austin Friars, and in turn
         how Deutsche Bank, voted its CSX shares."

In light of all these findings, the Court ultimately concluded that the TCI Group engaged in a "plan or scheme to evade the reporting requirements" of federal securities laws and that there is a "substantial likelihood of future violations."

Unfortunately, the Court concluded that the law does not permit it to grant relief that would prevent the TCI Group from gaining the benefit of its illegal activity in the proxy contest. We urge you to consider carefully these violations and the pattern of deceptive conduct from the TCI Group -- including false testimony under oath -- as you evaluate whether the TCI Group nominees are fit to serve on the board of a U.S. public company.

    Sincerely,
    CSX Corporation

Forward-looking statements

This information and other statements by the company contain forward- looking statements within the meaning of the Private Securities Litigation Reform Act with respect to, among other items: projections and estimates of earnings, revenues, cost-savings, expenses, or other financial items; statements of management's plans, strategies and objectives for future operation, and management's expectations as to future performance and operations and the time by which objectives will be achieved; statements concerning proposed new products and services; and statements regarding future economic, industry or market conditions or performance. Forward-looking statements are typically identified by words or phrases such as "believe," "expect," "anticipate," "project," "estimate" and similar expressions. Forward-looking statements speak only as of the date they are made, and the company undertakes no obligation to update or revise any forward-looking statement. If the company does update any forward-looking statement, no inference should be drawn that the company will make additional updates with respect to that statement or any other forward-looking statements.

Forward-looking statements are subject to a number of risks and uncertainties, and actual performance or results could differ materially from that anticipated by these forward-looking statements. Factors that may cause actual results to differ materially from those contemplated by these forward- looking statements include, among others: (i) the company's success in implementing its financial and operational initiatives, (ii) changes in domestic or international economic or business conditions, including those affecting the rail industry (such as the impact of industry competition, conditions, performance and consolidation); (iii) legislative or regulatory changes; (iv) the inherent business risks associated with safety and security; and (v) the outcome of claims and litigation involving or affecting the company.

Other important assumptions and factors that could cause actual results to differ materially from those in the forward-looking statements are specified in the company's SEC reports, accessible on the SEC's website at www.sec.gov and the company's website at www.csx.com.

Important Information

In connection with the 2008 annual meeting of shareholders, CSX Corporation ("CSX") has filed with the SEC and is mailing to shareholders a definitive Proxy Statement dated April 25, 2008. Security holders are strongly advised to read the definitive Proxy Statement because it contains important information. Security holders may obtain a free copy of the definitive Proxy Statement and any other documents filed by CSX with the SEC at the SEC's website at www.sec.gov. The definitive Proxy Statement and these other documents may also be obtained for free from CSX by directing a request to CSX Corporation, Attn: Investor Relations, David Baggs, 500 Water Street C110, Jacksonville, FL 32202.

CSX, its directors, director nominee and certain named executive officers and employees may be deemed to be participants in the solicitation of CSX's security holders in connection with its 2008 Annual Meeting. Security holders may obtain information regarding the names, affiliations and interests of such individuals in CSX's definitive Proxy Statement and its May 15, 2008 letter to shareholders filed with the SEC as definitive additional soliciting materials.

    Contacts:
    David Baggs, Investor Relations
    904-359-4812

    Garrick Francis, Corporate Communications
    904-359-1708

    Dan Katcher / Andrew Siegel
    Joele Frank, Wilkinson Brimmer Katcher
    212-355-4449

SOURCE CSX Corporation

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