EXHIBIT 1(B)
UNDERWRITING AGREEMENT
Dated as of
______________, 199__
between
FDX CORPORATION
and
[UNDERWRITERS]
PREFERRED STOCK
TABLE OF CONTENTS
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Page
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Section 1. Representations and Warranties of the Company..............2
Section 2. Purchase and Sale..........................................6
Section 3. Covenants of the Company...................................7
Section 4. Payment of Expenses........................................9
Section 5. Conditions of Underwriters' Obligations....................9
Section 6. Indemnification...........................................12
Section 7. Contribution..............................................13
Section 8. Representations, Warranties and Agreements to Survive
Delivery..................................................13
Section 9. Termination of Agreement..................................14
Section 10. Default by One Underwriter................................14
Section 11. Notices...................................................15
Section 12. Parties...................................................15
Section 13. Governing Law.............................................15
FDX CORPORATION
Preferred Stock
UNDERWRITING AGREEMENT
____________, 199__
[UNDERWRITERS]
[ADDRESS]
Ladies and Gentlemen:
FDX Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule I hereto
________________ shares of its Preferred Stock (the "Preferred Stock") in one
or more offerings on the terms and conditions stated herein and in Schedule II
hereto (the "Offered Preferred Stock").
As used herein, unless the context otherwise requires, the term
"Underwriters" shall mean the firm or firms named as Underwriter or
Underwriters in Schedule I and the term "you" shall mean the Underwriter or
Underwriters, if no underwriting syndicate is purchasing the Offered Preferred
Stock, or the representative or representatives of the Underwriters, if an
underwriting syndicate is purchasing the Offered Preferred Stock, as indicated
in Schedule I.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
________) for the registration of certain preferred stock and other
securities, including the Offered Preferred Stock, under the Securities Act of
1933, as amended (the "1933 Act"), and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations"). Such registration statement
has been declared effective by the Commission.
The Company has, pursuant to Rule 424 under the 1933 Act, filed
with, or transmitted for filing to, or shall within the required period of time
hereafter file with or transmit for filing to, the Commission a prospectus
supplement (the "Prospectus Supplement") specifically relating to the Offered
Preferred Stock, together with a revised and restated prospectus relating to
preferred stock covered by the above-referenced registration statement.
The term "Registration Statement" refers to such registration
statement in the form in which it became effective, including the exhibits
thereto and the documents incorporated by reference therein, as amended to the
date hereof. The term "Basic Prospectus" means the above-referenced revised
and restated prospectus relating to Preferred Stock. The term "Prospectus"
means the Basic Prospectus supplemented by the Prospectus Supplement. The
term "Preliminary Prospectus" means a preliminary prospectus supplement
specifically relating to the Offered Preferred Stock together with the Basic
Prospectus. As used herein, the terms "Basic Prospectus," "Prospectus" and
"Preliminary Prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement" and "amendment" or
"amend" as used herein shall include all documents deemed to be incorporated
by reference in the Prospectus that have been filed subsequent to the date of
the Basic Prospectus by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act").
If the Company has filed an abbreviated statement to register
additional shares of Preferred Stock pursuant to Rule 462(b) under the 1933
Act, then any reference herein to the term "Registration Statement" shall
include such Rule 462(b) registration statement.
Section 1. Representations and Warranties of the Company. (a)
The Company represents and warrants to you and to each Underwriter named in
Schedule I, as of the date hereof, as follows:
(i) Due Incorporation and Qualification. The Company has
been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Delaware, has the
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus; and is duly qualified to do business and is in good
standing in each jurisdiction in which such qualification is
required, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
(ii) Subsidiaries. Each subsidiary of the Company which is a
significant subsidiary as defined in Rule 405 of Regulation C of
the 1933 Act Regulations (each a "Significant Subsidiary") has
been duly incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, except
where the failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; and all of the issued
and outstanding capital stock of each Significant Subsidiary has
been duly authorized and validly issued, is fully paid and non-
assessable and, except for directors' qualifying shares (except
as otherwise stated in the Registration Statement), is owned by
the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim
or equity.
(iii) Registration Statement and Prospectus. At the time the
Registration Statement became effective, the Registration
Statement complied, and as of the date hereof does comply, in all
material respects with the requirements of the 1933 Act and the
1933 Act Regulations and the rules and regulations of the
Commission promulgated thereunder.
The Registration Statement, at the time it became effective,
did not, and at each time thereafter at which any amendment to the
Registration Statement becomes effective, will not, contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading.
The Prospectus, as of the date hereof, does not contain an
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by
an Underwriter expressly for use in the Registration Statement or
Prospectus or to those parts of the Registration Statement which
constitute Statements of Eligibility and Qualification of Trustees
(Form T-1) under the 1939 Act.
No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(iv) Incorporated Documents. The documents incorporated by
reference in the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the
rules and regulations promulgated thereunder (the "1934 Act
Regulations"), and, when read together and with the other
information in the Prospectus, did not and will not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which
they were or are made, not misleading.
(v) Accountants. The accountants who certified the
financial statements included or incorporated by reference in the
Prospectus are independent public accountants as required by the
1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The financial statements of the
Company included or incorporated by reference in the Prospectus
and the Registration Statement present fairly the financial
position of the Company as of the dates thereof and the results
of operations, changes in common stockholders' investment and
cash flows of the Company, for the respective periods covered
thereby, all in conformity with generally accepted accounting
principles applied on a consistent basis throughout the entire
period involved; and the financial schedules included or
incorporated by reference in the Registration Statement meet the
requirements of the 1933 Act Regulations or the 1934 Act
Regulations, as applicable.
(vii) Material Changes or Material Transactions. Except as
stated in the Prospectus, subsequent to the respective dates as
of which information is given in the Registration Statement and
the Prospectus, the Company has not incurred any liabilities or
obligations, direct or contingent, or entered into any
transactions which are material to the Company, and there has not
been any material adverse change in the capital stock or short-
term debt, or any material increase in long-term debt of the
Company, or any material adverse change, or any development
involving a prospective material adverse change, in the condition
(financial or other), business, prospects, net worth or results
of operations of the Company.
(viii) No Defaults; Regulatory Approvals. Neither the Company
nor any of its subsidiaries is in violation of its charter or in
default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which it is a party or by which it or any of
them or their properties may be bound.
The execution and delivery of this Agreement and the
consummation of the transactions contemplated herein and in the
resolution of the Company's Board of Directors setting forth the
terms of the Offered Preferred Stock (the "Series Resolution")
have been duly authorized by all necessary corporate action and
executed by the Company and will not conflict with or constitute a
breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any such subsidiary is a
party or by which it or any of them may be bound or to which any
of the property or assets of the Company or any such subsidiary is
subject, which conflict, breach or default would have,
individually or in the aggregate with any other such instances, a
material adverse effect on the condition (financial or other),
business, prospects, net worth or results of operations of the
Company and its subsidiaries considered as one entity, nor will
such action result in any violation of the provisions of the
charter or by-laws of the Company or any law, administrative
regulation or administrative or court order or decree currently in
effect or in effect at the time of execution and delivery of this
Agreement and applicable to the Company or any of its subsidiaries.
No consent, approval, authorization, order or decree of any
court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by
this Agreement, except such as may be required under the 1933 Act,
the 1933 Act Regulations or state securities or Blue Sky laws and
the filing of the Series Resolution in Delaware.
(ix) Legal Proceedings; Contracts. Except for matters
described in the Prospectus (as to which the Company can express
no opinion at this time concerning the Company's liability (if
any) or the effect of any adverse determination upon the
business, condition (financial or otherwise) or operations of the
Company), there is no pending, or to the best knowledge of any
financial officer of the Company, threatened action or proceeding
before any court or administrative agency which individually (or
in the aggregate in the case of any group of related lawsuits) is
expected to have a material adverse effect on the financial
condition of the Company.
(x) Compliance with Laws. The Company's business and
operations comply in all material respects with all laws and
regulations applicable thereto and there are no known, proposed
or threatened changes in any laws or regulations which would have
a material adverse effect on the Company or the manner in which
it conducts its business. The Company possesses all valid and
effective certificates, licenses and permits required to conduct
its business as now conducted, except for instances which
individually or in the aggregate do not, or will not, have a
material adverse effect on the condition (financial or other),
business, prospects or results of operations of the Company.
(xi) Capital Stock. The authorized capital stock of the
Company and the provisions of the Series Resolution conform as to
legal matters to the descriptions thereof contained in the
Prospectus.
(xii) Validity of the Offered Preferred Stock. The Offered
Preferred Stock has been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance
of such shares will not be subject to any preemptive or similar
rights.
(xiii) Registration Rights. There are no contracts or
agreements between the Company and any person granting such
person the right to require the Company to file a registration
statement under the 1933 Act with respect to any equity
securities of the Company or to require the Company to include
such securities with the Preferred Stock registered pursuant to
the Registration Statement.
(b) Additional Certifications. Any certificate signed by any
officer of the Company and delivered to you or your counsel in connection with
an offering of the Offered Preferred Stock shall be deemed a representation and
warranty by the Company to each Underwriter participating in such offering as
to the matters covered thereby on the date of such certificate unless
subsequently amended or supplemented subsequent thereto.
Section 2. Purchase and Sale. (a) Subject to the terms and
conditions set forth herein and in Schedule II, if any, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price specified in
Exhibit A hereto, the respective numbers of shares of Offered Preferred Stock
set forth opposite the name of such Underwriter in Schedule I. It is
understood that you propose to offer the Offered Preferred Stock for sale to
the public as set forth in the Prospectus.
(b) Subject to the terms and conditions herein set forth, the
Company may grant, if so provided in Schedule II hereto, an option to the
Underwriters, severally and not jointly, to purchase additional shares of
Preferred Stock to cover over-allotments, if any (the "Option Shares"). If
Schedule II so provides, the Underwriters may purchase up to the amount of
Option Shares set forth therein at the same price per share as is applicable
to the Offered Preferred Stock. As used herein, the term "Offered Preferred
Stock" shall include Option Shares. Such option, if granted, will expire 30
days after the date of this Agreement, and may be exercised in whole or in
part from time to time only for the purpose of covering over-allotments which
may be made in connection with the offering of the Offered Preferred Stock
upon notice by you to the Company setting forth the number of Option Shares as
to which the several Underwriters are then exercising the option and the time
and date of payment and delivery for such Option Shares.
Any such time and date of delivery shall be determined by you,
but shall not be later than four business days and not be earlier that two
business days after the exercise of said option, nor in any event prior to
Closing Time, unless otherwise agreed upon by you and the Company.
If the option is exercised as to all or any portion of the
Option Shares, each Underwriter, acting severally and not jointly, will
purchase that proportion of the total number of Option Shares then being
purchased which the number of shares of Offered Preferred Stock each such
Underwriter has agreed to purchase as set forth in Schedule II bears to the
total number of shares of Offered Preferred Stock, subject to such adjustments
as you shall make to eliminate any sales or purchases of fractional shares of
Preferred Stock.
(c) Payment of the purchase price for any Offered Preferred Stock
to be purchased by the Underwriters shall be made to the Company at either the
Company's offices in Memphis, Tennessee or the office of Xxxxx Xxxx &
Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other
place as shall be agreed upon by you and the Company, at 9:00 A.M., New York
City time, on the third business day (unless postponed in accordance with the
provisions of Section 10) following the date hereof or at such other date,
time or location specified in Schedule II, or as otherwise shall be agreed
upon by you and the Company (such time and date being referred to as a
"Closing Time").
Certificates for the Offered Preferred Stock shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing at least two business days prior to the Closing
Time. Delivery of the Offered Preferred Stock shall be made to you as
specified in Schedule II against payment by you of the purchase price thereof
to the Company (or such other person as the Company may direct) by wire
transfer of immediately available funds. Such Offered Preferred Stock will be
made available for examination and packaging by you in New York, New York, on
or before the first business day prior to the Closing Time or at such other
time and place specified in Schedule II.
(d) As compensation to you for your commitments and obligations
hereunder in respect of the Offered Preferred Stock, including your
undertakings to distribute Offered Preferred Stock, the Company will pay to
you the amount set forth in Exhibit A as the underwriting discounts and
commissions. Such payment shall be made simultaneously with the payment by
you of the purchase price of the Offered Preferred Stock as specified in
Section 2(b) hereof. Payment of such compensation shall be made by wire
transfer of immediately available funds.
Section 3. Covenants of the Company. The Company covenants
with each of you, and with each Underwriter participating in the offering as
follows:
(a) Prospectus Supplement. The Company has prepared a Preliminary
Prospectus, and immediately following the execution of this Agreement, the
Company will prepare a Prospectus Supplement in connection with the offering
of the Offered Preferred Stock. The Company will promptly transmit copies of
the Prospectus Supplement to the Commission for filing pursuant to Rule 424 of
the 1933 Act Regulations.
(b) Notice of Certain Events. The Company will notify you promptly
(i) of the effectiveness of any amendment to the Registration Statement, (ii)
of the transmittal to the Commission for filing of any supplement to the
Prospectus or any document to be filed pursuant to the 1934 Act which will be
incorporated by reference in the Prospectus, (iii) of the receipt of any
comments from the Commission with respect to the Registration Statement, the
Prospectus or the Prospectus Supplement relating in any way to the offer and
sale of the Offered Preferred Stock, (iv) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose.
(c) Notice of Certain Proposed Filings. The Company will give you
notice of its intention to file or prepare any amendment to the Registration
Statement or any amendment or supplement to the Prospectus, whether by the
filing of documents pursuant to the 1934 Act, the 1933 Act or otherwise, and
will furnish you with copies of any such amendment or supplement or other
documents proposed to be filed or prepared a reasonable time in advance of
such proposed filing or preparation, as the case may be.
(d) Copies of the Registration Statement and the Prospectus. The
Company will deliver to you as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as you may reasonably
request. The Company will furnish to you as many copies of the Prospectus (as
amended or supplemented) as you shall reasonably request so long as you are
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Offered Preferred Stock.
(e) Revisions of Prospectus--Material Changes. If at any time when
the Prospectus is required by the 1933 Act to be delivered in connection with
sales of the Offered Preferred Stock any event shall occur or condition exist
as a result of which it is necessary, in the reasonable opinion of counsel for
the Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations the Company will
promptly prepare and file with the Commission such amendment or supplement,
whether by filing documents pursuant to the 1934 Act, the 1933 Act or
otherwise, as may be necessary to correct such untrue statement or omission or
to make the Registration Statement and Prospectus comply with such
requirements.
(f) Earnings Statements. The Company will make generally available
to its security holders as soon as practicable after the close of the period
covered thereby, an earnings statement (in form complying with the provisions
of Rule 158 under the 0000 Xxx) covering each twelve-month period beginning,
in each case, not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Offered Preferred Stock.
(g) Blue Sky Qualifications. The Company will endeavor, in
cooperation with you, to qualify the Offered Preferred Stock for offering and
sale under the applicable securities laws of such states and other
jurisdictions of the United States as the Underwriters may designate, and will
maintain such qualifications in effect for so long as may be required for the
distribution of the Offered Preferred Stock; provided, however, that the
Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or to subject itself to
taxation as doing business in any jurisdiction in which it is not otherwise
required to be so qualified. The Company will file such statements and
reports as may be required by the laws of each jurisdiction in which the
shares of Offered Preferred Stock have been qualified as provided above.
(h) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the 1934 Act.
Section 4. Payment of Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including:
(i) the preparation and filing of the Registration Statement
and all amendments thereto, the Preliminary Prospectus, if any,
and the Prospectus and any amendments or supplements thereto;
(ii) the filing of this Agreement;
(iii) the preparation, issuance, printing and delivery of the
Offered Preferred Stock;
(iv) the reasonable fees and disbursements of the Company's
accountants and counsel, and of the transfer agent;
(v) the qualification of the Offered Preferred Stock under
securities laws in accordance with the provisions of Section
3(g), including filing fees and the reasonable fees and
disbursements of counsel to the Underwriters in connection
therewith and in connection with the preparation of any Blue Sky
Survey and any Legal Investment Survey; and
(vi) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration
Statement and any amendments thereto, and of the Prospectus and
any amendments or supplements thereto.
If this Agreement is terminated by you in accordance with the
provisions of Section 5 or clause (i) of Section 9 hereof, the Company shall
reimburse upon demand the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters that shall have been incurred by you in connection with the
proposed purchase and sale of the Offered Preferred Stock.
Section 5. Conditions of Underwriters' Obligations. The
several obligations of the Underwriters to purchase the Offered Preferred Stock
pursuant to this Agreement will be subject at all times to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance and observance
by the Company of all covenants and agreements contained herein, or in
Schedule II hereto, on its part to be performed and observed and to the
following additional conditions precedent:
(a) Stop Order; Ratings Change; etc. At the Closing Time, (i) no
stop order suspending the effectiveness of the Registration Statement shall
have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, (ii) the rating assigned as of the date of this
Agreement by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g) under the 1933 Act
Regulations, to any debt securities of the Company shall not have been lowered
since the execution of this Agreement nor shall any such rating organization
have publicly announced that it has placed any debt securities of the Company
on what is commonly termed a "watch list" for possible downgrading, and (iii)
there shall not have come to your attention any facts that would cause you to
believe that the Prospectus, including the Prospectus Supplement, at the time
it was required to be delivered to a purchaser of the Offered Preferred Stock,
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances existing at such time, not misleading.
(b) Legal Opinions. At the Closing Time, you shall have received
the following documents:
(i) Opinion of Company Counsel. The opinion of [the
Executive Vice President, General Counsel and Secretary of the
Company or any Vice President in the Legal and Regulatory
Division of the Company,] dated as of such date, in form and
substance reasonably satisfactory to you, to the effect as set
forth in Exhibit B.
(ii) Opinion of Counsel to the Underwriters. The opinion of
__________________________________, counsel to the Underwriters,
with respect to such matters as you may reasonably request.
(c) Officer Certificate. At the Closing Time, there shall not have
been, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
condition (financial or otherwise) of the Company, or in the earnings or
business affairs of the Company; and you shall have received a certificate of
any Vice President of the Company, dated as of the Closing Time, to the effect
(i) that there has been no such material adverse change, (ii) that the other
representations and warranties of the Company contained in Section 1 are true
and correct with the same force and effect as though expressly made at and as
of the date of such certificate, except to the extent that such
representations and warranties expressly relate to an earlier date or later
date (in which case such representations and warranties are true and correct
on and as of such earlier date or will be true and correct on and as of such
later date, as the case may be), (iii) that the Company has made or caused to
be made any required filing of the Prospectus pursuant to Rule 424(b) in the
manner and within the time period required by Rule 424(b), and (iv) that the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the date of such certificate.
The officer signing and delivering this certificate may rely upon the best of
his or her knowledge as to proceedings threatened.
(d) Comfort Letter. At the Closing Time, you shall have
received a letter from Xxxxxx Xxxxxxxx LLP or their successors as the
Company's independent accountants (the "Independent Accountants"), dated as
of the Closing Time, in form and substance satisfactory to you to the
effect that:
(i) they are independent public accountants within the
meaning of the 1933 Act and the 1933 Act Regulations;
(ii) in their opinion the Company's financial statements and
schedules included or incorporated by reference in the
Registration Statement and Prospectus and covered by their
reports included or incorporated therein comply as to form in all
material respects with the applicable accounting requirements of
the 1933 Act and the 1933 Act Regulations or the 1934 Act and the
1934 Act Regulations, as the case may be;
(iii) they have conducted reviews of the unaudited interim
consolidated financial information of the Company included in the
Company's Quarterly Reports on Form 10-Q incorporated in the
Registration Statement and Prospectus in compliance with the
standards for such reviews promulgated by the American Institute
of Certified Public Accountants;
(iv) on the basis of a reading of the financial statements
and schedules of the Company included or incorporated in the
Prospectus and the Registration Statement, and the latest
available unaudited interim financial statements of the Company,
inquiries of officials of the Company responsible for financial
and accounting matters, and other specified procedures and
inquiries, nothing has come to their attention that caused them
to believe that:
(A) the unaudited financial statements of the Company
included or incorporated in the Prospectus and the
Registration Statement do not comply as to form in all
material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations or
the 1934 Act and the 1934 Act Regulations thereunder, as the
case may be, or that such unaudited financial statements are
not presented fairly in conformity with generally accepted
accounting principles;
(B) with respect to the period subsequent to the date
of the most recent financial statements incorporated in the
Registration Statement and the Prospectus, as of a specified
date not more than five business days prior to the date of
delivery of such letter, there has been any change in the
common or preferred stock or long-term debt of the Company
or, as of such date, there has been any decrease in assets
or common stockholders' investment, in each case as compared
with amounts shown in the most recent consolidated balance
sheet of the Company included or incorporated in the
Registration Statement and the Prospectus, except in each
case for changes or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; or
(C) for the period from the date of the most recent
financial statements incorporated in the Registration
Statement and the Prospectus to such specified date, there
was any decrease in operating revenues, operating income,
income before taxes or net income of the Company in each
case as compared with the comparable period of the preceding
year, except in each case for decreases which the Prospectus
discloses have occurred or may occur or which are described
in such letter; and
(D) in addition to their audit referred to in their
reports included or incorporated by reference in the
Registration Statement and the Prospectus and the reviews,
inquiries and procedures referred to in clauses (iii) and
(iv) above, such letter shall state that Xxxxxx Xxxxxxxx LLP
has performed other specified procedures, with respect to
certain numerical data and information included or
incorporated in the Registration Statement and the
Prospectus, as are requested by an Underwriter and specified
in such letter and have found such data and information to
be in agreement with the accounting records of or analyses
prepared by the Company.
(e) Other Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Offered Preferred Stock as herein
contemplated and related proceedings, or in order to evidence the accuracy and
completeness of any of the representations and warranties, or the fulfillment
of any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of Offered Preferred Stock
as herein contemplated shall be satisfactory in form and substance to you.
Section 6. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, arising out of any untrue statement of a
material fact contained in the Registration Statement (or any
amendment thereto), or the omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein not misleading or arising out of or based upon any untrue
statement of a material fact contained in the Prospectus (or any
amendment or supplement thereto) or the omission therefrom of a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of
any claim whatsoever arising out of or based upon any such untrue
statement or omission, if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, reasonably
incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever
arising out of or based upon any such untrue statement or
omission, to the extent that any such expense is not paid under
(i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter expressly
for use in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto), or made in reliance
upon the Statements of Eligibility and Qualification of Trustees (Form T-1)
under the 1939 Act filed as exhibits to the Registration Statement; and
provided, further, that the foregoing indemnity agreement, with respect to
any Preliminary Prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages
or liabilities purchased Offered Preferred Stock, or any person controlling
such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Offered
Preferred Stock to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions made in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriters through you
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for the fees and expenses of
more than one counsel (in addition to any local counsel) separate from their
own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
Section 7. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnity agreement
provided for in Section 6 is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Company and the Underwriters of each offering of Offered Preferred Stock shall
contribute to the aggregate losses, liabilities, claims, damages and expenses
of the nature contemplated by said indemnity agreement incurred by the Company
and one or more of the Underwriters in respect of such offering, as incurred,
in such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus in respect of such offering bears to the initial
public offering price appearing thereon and the Company is responsible for the
balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
For purposes of this Section, each person, if any, who controls
an Underwriter within the meaning of Section 15 of the 1933 Act shall have the
same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as the
Company.
Section 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and
shall survive each delivery of and payment for any of the Offered Preferred
Stock.
Section 9. Termination of Agreement. You may terminate this
Agreement, immediately upon notice to the Company, at any time prior to the
Closing Time if: (i) there has been, since the date hereof or since the
respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition, financial or
otherwise, or in the earnings or business affairs of the Company, (ii) there
shall have occurred any material adverse change in the financial markets in
the United States or any outbreak or escalation of hostilities or other
national or international calamity or crisis, the effect of which shall be
such as to make it, in your judgment, impracticable to market the Offered
Preferred Stock or enforce contracts for the sale of the Offered Preferred
Stock, or (iii) trading in any securities of the Company shall have been
suspended by the Commission or a national securities exchange, or if trading
generally on either the American Stock Exchange or the New York Stock Exchange
shall have been suspended, or minimum or maximum prices for trading shall have
been fixed, or maximum ranges for prices for securities shall have been
required, by either of said exchanges or by order of the Commission or any
other governmental authority, or if a banking moratorium shall have been
declared by either federal or New York authorities.
In the event of any termination of this Agreement, the covenant
set forth in Section 3(f) hereof, the provisions of Section 4 hereof, the
indemnity and contribution agreements set forth in Sections 6 and 7 hereof,
and the provisions of Sections 8 and 13 hereof shall remain in effect.
Section 10. Default by One Underwriter. If any Underwriter
shall fail at the Closing Time to purchase the Offered Preferred Stock which
it is obligated to purchase hereunder (the "Defaulted Securities"), and the
aggregate amount of Defaulted Securities is not more than one-tenth of the
aggregate amount of the Offered Preferred Stock to be purchased on such date,
the other Underwriters shall be obligated severally in the proportions that the
amount of the Offered Preferred Stock set forth opposite their respective
names in Schedule I hereto bears to the aggregate amount of Offered Preferred
Stock set forth opposite the names of all such non-defaulting underwriters to
purchase the Defaulted Securities; provided that in no event shall the amount
of Defaulted Securities that any Underwriter has agreed to purchase pursuant
to this Agreement be increased by an amount in excess of one-ninth of such
amount of Offered Preferred Stock without the written consent of such
Underwriter. If the aggregate amount of Defaulted Securities is more than
one-tenth of the aggregate amount of the Offered Preferred Stock to be
purchased on the Closing Date, and arrangements satisfactory to the
Underwriters and the Company for the purchase of such Defaulted Securities are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriters or the
Company.
No action taken pursuant to this Section shall relieve a
defaulting Underwriter from liability in respect of its default under this
Agreement.
In the event of any such default which does not result in a
termination of this Agreement, either the non-defaulting Underwriters or the
Company shall have the right to postpone the Closing Time for a period not
exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or
arrangements.
Section 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed, delivered by Federal Express service or transmitted by any facsimile
communication. Notices to the Underwriters shall be directed to
_______________________________________, with copies thereof directed to
________________________________________________. Notices to the Company
shall be directed to it at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000 (if
by Federal Express service) or X.X. Xxx 000, Xxxxxxx, Xxxxxxxxx 00000 (if by
mail), Attention: Vice President and Treasurer, with copies thereof directed
to the Legal Department of the Company at 0000 Xxxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxxx 00000 (if by Federal Express Service) or X.X. Xxx 000, Xxxxxxx,
Xxxxxxxxx 00000 (if by mail), Attention: Managing Director -- Securities and
Corporate Law.
Section 12. Parties. This Agreement shall inure to the
benefit of and be binding upon you and the Company and any Underwriter who
becomes a party hereto and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all
conditions and provisions hereof are intended to be for the sole and exclusive
benefit of the parties hereto their respective successors and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Offered Preferred Stock from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
Section 13. Governing Law. This Agreement and the rights and
obligations of the parties created hereby and thereby shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in such state. Any suit, action or
proceeding brought by the Company against an Underwriter in connection with
or arising under this Agreement shall be brought solely in the state or federal
court of appropriate jurisdiction located in the Borough of Manhattan, The
City of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement between you and the Company in accordance with its terms.
Very truly yours,
FDX CORPORATION
By:
-------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
[UNDERWRITERS]
By:
---------------------------------
Name:
Title:
Acting on behalf of themselves and the
other named Underwriters.
EXHIBIT A
FDX CORPORATION
Preferred Stock
Designation:
Purchase Price:
Number of Shares to be Purchased:
Underwriting Discounts and Commissions:
EXHIBIT B
FORM OF OPINION OF COMPANY COUNSEL
____________, ______
[UNDERWRITERS]
Re: FDX Corporation
Preferred Stock (the "Offered Preferred Stock")
Ladies and Gentlemen:
This opinion is directed to the Underwriters pursuant to
Section 5(b)(i) of the Underwriting Agreement dated ________________, ______
(the "Underwriting Agreement"), among the Company and you, with respect to the
offer and sale of the Offered Preferred Stock. All terms defined or used in
the Underwriting Agreement have the same meaning when used herein, unless
otherwise noted.
I am Vice President ________ of the Company and have acted as
such in connection with the Offered Preferred Stock and the Underwriting
Agreement. I or attorneys under my supervision have made such examination and
investigation as we have deemed necessary in order to give the following
opinion.
Based on the foregoing, it is my opinion that:
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware and has
full corporate power and authority under such laws to own its properties and to
conduct its business as described in the Prospectus; the Company is duly
qualified to do business and is in good standing in each jurisdiction in which
it owns or leases real property or in which the conduct of its business
requires such qualification, except for such instances which in the aggregate
will not have a material adverse effect on the Company;
2. Each subsidiary of the Company which is a significant
subsidiary as defined in Rule 405 of Regulation C of the 1933 Act Regulations
(each a "Significant Subsidiary") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement, and, to the best of my knowledge, is duly qualified to
do business and is in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify would not
have a material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; all of the issued and outstanding
capital stock of each Significant Subsidiary has been duly authorized and
validly issued and is fully paid and non-assessable, and all of such capital
stock, except for directors' qualifying shares, is owned by the Company,
directly or through subsidiaries, free and clear of any mortgage, pledge,
lien, encumbrance, claim or equity;
3. Except for matters described in the Prospectus (as to which I
can express no opinion at this time concerning the Company's liability (if
any) or the effect of any adverse determination upon the business, condition
(financial or otherwise) or operations of the Company), there is no pending,
or to my knowledge, threatened action or proceeding before any court or
administrative agency which individually (or in the aggregate in the case of
any group of related lawsuits) is expected to have a material adverse effect
on the financial condition of the Company;
4. The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus;
5. The Offered Preferred Stock has been duly authorized and, when
issued and delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of such shares
will not be subject to any preemptive or similar rights;
6. The Company possesses all permits, approvals, franchises and
other rights from federal aviation, aeronautical, communications,
transportation and shipping authorities which are requisite for the conduct of
its business as described in the Prospectus or for the actions contemplated by
the Underwriting Agreement and the offering contemplated by the Prospectus; and
the actions contemplated by the Underwriting Agreement and the offering
contemplated by the Prospectus, are not in violation of any federal statute or
regulation relating to aviation, aeronautics, communications, transportation or
shipping;
7. I have reviewed or caused to be reviewed by attorneys under my
supervision the Registration Statement, the Prospectus and each amendment and
supplement thereto (including the documents incorporated by reference) and
have no reason to believe that, as of their respective effective or issue
dates, or as of the Closing Time, either the Registration Statement or the
Prospectus or any such amendment or supplement (or any such documents
incorporated by reference) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading;
8. I do not know of any statute or regulation or legal or
governmental proceeding required to be described in the Prospectus which is
not described as required, nor of any contract or document of a character
required to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement which is not described and
filed as required; and the descriptions in the Registration Statement and the
Prospectus of the contracts and other documents therein described are accurate
and fairly present the information required to be shown;
9. The execution and delivery by the Company of the Underwriting
Agreement and the consummation by the Company of the transactions herein and
therein contemplated and compliance with the terms of the Underwriting
Agreement do not and will not conflict with or result in a breach of any of the
terms of the Certificate of Incorporation or By-laws of the Company, and will
not conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust, loan,
credit or note agreement, lease or other agreement or instrument material to
the Company to which the Company is a party or by which it or any or its
properties are bound, or any existing applicable law, rule, regulation,
judgment, order or decree of any government, governmental instrumentality or
court, having jurisdiction over the Company or any of its properties;
10. No authorization, approval, consent or license of any
regulatory body or authority (other than under the 1933 Act and the securities
or Blue Sky laws of the various states) is required for the valid
authorization, issuance, sale and delivery of the Offered Preferred Stock as
herein contemplated or the valid authorization, execution, delivery and
performance by the Company of the Underwriting Agreement or the consummation
by the Company of the transactions contemplated herein or therein, or, if so
required, all such authorizations, approvals, consents and licenses,
specifying the sale, have been obtained and are in full force and effect;
11. The Registration Statement has become effective under the 1933
Act and, to the best of my knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated under the
1933 Act; the Registration Statement and the Prospectus, and each amendment
or supplement thereto (except for the financial statements and schedules
included therein, as to which I express no opinion), comply as to form in all
material respects to the requirements of the 1933 Act and the 1933 Act
Regulations and, as to documents incorporated therein, to the requirements of
the 1934 Act and the 1934 Act Regulations in effect at the time such documents
were filed with the Commission; and
12. The Underwriting Agreement has been duly and validly
authorized, executed and delivered by the Company and constitutes a valid and
binding agreement of the Company, enforceable in accordance with its terms,
except as limited by bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting enforcement of creditors'
rights or by general equity principles and subject to any principles of public
policy limiting the right to enforce the indemnification and contribution
provisions contained in Sections 6 and 7 of the Underwriting Agreement.
In rendering the foregoing opinion, we have assumed that (i) all
signatures on all documents examined by us are genuine and that where any such
signature (other than a signature purporting to have been made on behalf of
the Company) purports to have been made in a corporate, governmental,
fiduciary or other capacity, the person who affixed such signature had the due
authority to do so, (ii) certain factual matters contained in certificates of
public officials are accurate, true and correct, and (iii) photostat copies of
such documents, records and certificates conform to the originals.
This opinion is intended solely for the benefit of the
Underwriters and is not to be relied on by, and no copies of it are to be
delivered to, any other person without my prior written consent, except that
Underwriters' counsel may rely upon this opinion as to all matters of
Tennessee law or Delaware corporate law in rendering its opinion of even date
herewith. I am not assuming any professional responsibility to any other
person by rendering this opinion. It is understood that this opinion speaks
as of the date given, notwithstanding any delivery as contemplated above on
any other date.
Very truly yours,
SCHEDULE I
TO
UNDERWRITING
AGREEMENT
Dated: ________, ______
FDX CORPORATION
Preferred Stock
Underwriters Number of Shares to be Purchased
------------ --------------------------------
SCHEDULE II
TO
UNDERWRITING
AGREEMENT
Dated: ________, ______
FDX CORPORATION
[Title of Preferred Stock]
To: FDX Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Re: Underwriting Agreement dated ______________, _______
Title of Offered Preferred Stock:
Current ratings:
Public offering price:
Closing date, time and location: ____________, ______, 9:00 A.M., New
York City time
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Location for checking Offered New York, New York
Preferred Stock:
Redemption provisions:
Liquidation Preference:
Listing requirement: None
Number of Option Shares, if
any, that may be purchased by
the Underwriters:
Other terms and conditions:
[UNDERWRITERS]
By:
------------------------------------
Name:
Title:
Acting on behalf of themselves and the
other named Underwriters
Accepted:
FDX CORPORATION
By:
-----------------------------
Name:
Title:
