EXHIBIT 1(A)
UNDERWRITING AGREEMENT
Dated as of
______________, 199__
between
FDX CORPORATION
and
[UNDERWRITERS]
DEBT SECURITIES
TABLE OF CONTENTS
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PAGE
SECTION 1. Representations and Warranties of the Company.....................2
SECTION 2. Purchase and Sale.................................................7
SECTION 3. Covenants of the Company..........................................8
SECTION 4. Payment of Expenses..............................................10
SECTION 5. Conditions of Underwriters' Obligations..........................11
SECTION 6. Indemnification..................................................15
SECTION 7. Contribution.....................................................16
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery.........................................................17
SECTION 9. Termination of Agreement.........................................17
SECTION 10. Default by One Underwriter.......................................18
SECTION 11. Notices..........................................................18
SECTION 12. Parties..........................................................19
SECTION 13. Governing Law....................................................19
Exhibit A Pricing Information
Exhibit B Opinion of the Company
Schedule I Underwriters' Commitments
Schedule II Terms and Conditions
FDX CORPORATION
Debt Securities
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 up to $___________
aggregate principal amount of its debt securities (the "Debt Securities") in
one or more offerings on the terms and conditions stated herein and in Schedule
II hereto (the "Offered Securities"). The Company may, at its option, direct
its wholly-owned, direct subsidiary, Federal Express Corporation, a Delaware
corporation (the "Guarantor"), to issue guarantees of the Debt Securities (the
"Guarantees").
The Debt Securities and the Guarantees, if any, will be issued under an
indenture dated as of______, 1998 (the "Indenture") between the Company, the
Guarantor and The First National Bank of Chicago, acting not in its individual
capacity, but solely as trustee (the "Trustee"). Each issue of Debt Securities
may vary as to aggregate principal amount, maturity date, currency, interest
rate or formula and timing of payments thereof, any redemption or sinking fund
requirements and any other variable terms as the Indenture contemplates and as
may be set forth in the Debt Securities issued from time to time.
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
Securities, or the representative or representatives of the Underwriters, if an
underwriting syndicate is purchasing the Offered Securities, 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 debt securities and other securities, including the
Offered
Securities, 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 and the Indenture has been qualified under the Trust Indenture Act
of 1939, as amended (the "1939 Act").
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
Securities, together with a revised and restated prospectus relating to debt
securities 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 debt securities. 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 Securities 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 registration statement to register
additional shares of Debt Securities 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.
Capitalized terms used but not otherwise defined in this Agreement shall
have the meanings specified in or pursuant to the Indenture.
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:
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(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
1939 Act 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.
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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.
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(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 Indenture and
the consummation of the transactions contemplated herein and therein 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 the Indenture 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
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Company of the transactions contemplated by this Agreement or the
Indenture, except such as may be required under the 1933 Act, the 1939
Act, the 1933 Act Regulations or state securities or Blue Sky laws, and
the Uniform Commercial Code as in effect in Delaware and Tennessee.
(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 or the ability of the Company to perform its obligations under
the Indenture.
(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) Enforceability. The Indenture has been duly authorized by the
Company, will be substantially in the form heretofore supplied to you and,
when duly executed and delivered by the Company and the other parties
thereto, will constitute a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
(xii) Validity of the Offered Securities. When executed, issued,
authenticated and delivered pursuant to the provisions of the Indenture
and sold and paid for as provided in this Agreement, each thereof Offered
Securities will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms; and the Holders of
such Offered Securities will be entitled to the benefits provided by such
Indenture.
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(xiii) Validity of the Guarantees. When executed, issued,
authenticated and delivered pursuant to the provisions of the Indenture
and sold and paid for as provided in this Agreement, each thereof
Guarantees will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms; and the Holders of
such Guarantees will be entitled to the benefits provided by such
Indenture.
The representations and warranties made by the Company as to the
enforceability of the Indenture, the Offered Securities and the Guarantees, if
any, set forth in subparagraphs (xi), (xii) and (xiii) above are 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 the enforceability of the Indenture is also limited by
applicable laws which may affect the remedies provided therein but which do not
affect the validity of such Indenture or make such remedies inadequate for the
practical realization of the benefits intended to be provided thereby.
(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 Securities 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 amount of Offered Securities set forth opposite the name of such
Underwriter in Schedule I. It is understood that you propose to offer the
Offered Securities 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 Debt Securities to cover
over-allotments, if any (the "Option Securities"). If Schedule II so provides,
the Underwriters may purchase up to the amount of Option Securities set forth
therein at the same price per share as is applicable to the Offered Securities.
As used herein, the term "Offered Securities" shall include Option Securities.
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
and distribution of the Offered Securities upon notice by you to the Company
setting
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forth the number of Option Securities as to which the several Underwriters are
then exercising the option and the time and date of payment and delivery for
such Option Securities.
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
Securities, each Underwriter, acting severally and not jointly, will purchase
that proportion of the total number of Option Securities then being purchased
which the number of Offered Securities each such Underwriter has agreed to
purchase as set forth in Schedule II bears to the total number of Offered
Securities, subject to such adjustments as you shall make to eliminate any
sales or purchases of fractional Debt Securities.
(c) Payment of the purchase price for any Offered Securities 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 ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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").
Delivery of the Offered Securities shall be made for your account 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. Unless otherwise indicated on Schedule
II, such Offered Securities shall be registered in the name of Cede & Co., as
nominee for The Depository Trust Company, and in such denominations, as you may
request in writing at least two business days prior to the Closing Time. Such
Offered Securities 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 Securities, including your undertakings to distribute
Offered Securities, the Company will pay to you an amount equal to that
percentage of the aggregate principal amount of Offered Securities purchased by
you as set forth in Exhibit A as the underwriting discounts and commissions.
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Such payment shall be made simultaneously with the payment by you of the
purchase price of the Offered Securities 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 Securities. 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
Securities, (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
9
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Offered Securities.
(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 Securities 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 ▇▇▇▇ ▇▇▇) 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 Securities.
(g) Blue Sky Qualifications. The Company will endeavor, in cooperation
with you, to qualify the Offered Securities 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
Securities; 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 Offered Securities 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.
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(i) Stand-Off Agreement. The Company will not, between the date of this
Agreement and the Closing Time, without your consent, offer or sell, or enter
into any agreement to sell, any debt securities of the Company pursuant to a
public offering of securities registered under the 1933 Act (other than the
Offered Securities which are to be sold pursuant hereto and commercial paper in
the ordinary course of business).
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 and delivery of the Offered
Securities;
(iv) the reasonable fees and disbursements of the Company's
accountants and counsel, of the Trustee and its counsel, and of any
registrar, paying agent and authenticating agent;
(v) the qualification of the Offered Securities 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;
(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, and the delivery by the Underwriters of the
Prospectus and any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Offered Securities;
(vii) the preparation and delivery to the Underwriters of copies of
the Indenture; and
(viii) any fees charged by rating agencies for the rating of the
Offered Securities.
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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 Securities.
SECTION 5. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Offered Securities 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 (including for purposes of this Section 5(a)(ii) any
rating indicated by the Company as of the date of this Agreement as the rating
orally confirmed to the Company by any such rating organization as the rating
to be assigned to the Offered Securities) 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 Securities,
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.
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(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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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
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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
14
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(v) 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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 Securities 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 Securities 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
15
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 Securities, 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 Securities 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
16
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 Securities 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 ▇▇▇▇ ▇▇▇) 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 Securities.
SECTION 9. Termination of Agreement. You may terminate this Agreement,
immediately upon notice to the Company, at any time prior to the
17
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 Securities or enforce
contracts for the sale of the Offered Securities, 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 Securities 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 Securities to be purchased on such date, the other Underwriters shall
be obligated severally in the proportions that the amount of the Offered
Securities set forth opposite their respective names in Schedule I hereto bears
to the aggregate amount of Offered Securities 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 Securities 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
Securities 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.
18
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 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ (if by Federal Express service) or ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(if by mail), Attention: Vice President and Treasurer, with copies thereof
directed to the Legal Department of the Company at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (if by Federal Express Service) or ▇.▇. ▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (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 Securities 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.
19
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
20
EXHIBIT A
FDX CORPORATION
Debt Securities
Designation:
Purchase Price:
Interest Rate:
Final Distribution Date:
Aggregate Principal Amount:
Underwriting Discounts and Commissions
A-1
EXHIBIT B
Form of Opinion of Company Counsel
------------, ------
[UNDERWRITERS]
Re: FDX Corporation
Debt Securities (the "Offered Securities")
Ladies and Gentlemen:
This opinion is directed to the Underwriters pursuant to Section 5(b)(1)
of the Underwriting Agreement dated ________________, ______ (the "Underwriting
Agreement"), among the Company and you, with respect to the offer and sale of
the Offered Securities and the Guarantees, if any. 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 Securities, the Guarantees, if any, 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
B-1
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 or the ability of the Company to perform its
obligations under the Indenture;
4. The Indenture has been duly qualified under the 1939 Act and duly and
validly authorized, executed and delivered by the Company and (assuming the
Indenture has been duly authorized, executed and delivered by the Trustee)
constitutes a valid and binding agreement of the Company, enforceable in
accordance with its terms;
5. The Offered Securities and Guarantees, if any, are in due and proper
form and have been duly and validly authorized by all necessary corporate
action and, when executed and authenticated as specified in the Indenture and
delivered against payment of the consideration therefor determined in
accordance with the Underwriting Agreement, will be valid and binding
obligations of the Company, enforceable in accordance with their terms, and
each holder of the Offered Securities and Guarantees, if any, will be entitled
to the benefits of the Indenture;
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, the Indenture and the offering
contemplated by the Prospectus, are not in violation of any federal statute or
B-2
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, the 1939 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 Securities and the Guarantees, if
any, as herein contemplated or the valid authorization, execution, delivery and
performance by the Company of the Underwriting Agreement and the Indenture or
the consummation by the Company of the transactions contemplated herein or
B-3
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.
My opinions as to the enforceability of the Indenture, the Offered
Securities, the Guarantees, if any, and Underwriting Agreement set forth in
subparagraphs (iv), (v) and (xii) above, are 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
B-4
this opinion speaks as of the date given, notwithstanding any delivery as
contemplated above on any other date.
Very truly yours,
B-5
SCHEDULE I
TO
UNDERWRITING
AGREEMENT
Dated: ________, ______
FDX CORPORATION
Debt Securities
Total Aggregate Principal
Underwriters Amount to be Purchased
------------ -------------------------
$
SCHEDULE II
TO
UNDERWRITING
AGREEMENT
Dated: ________, ______
FDX CORPORATION
[Title of Debt Securities]
To: FDX Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Underwriting Agreement dated ______________, _______
Title of Offered Securities: __ % Debt Securities due ____________,
_______________
Current ratings:
Interest rate: %
Interest payable: ____________ and ____________
commencing ___________, _____
Public offering price: 100%, plus accrued interest from
_______________, __________
Closing date, time and location: ____________, ______, 9:00 A.M., New
York City time
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Location for checking Offered New York, New York
Securities:
Listing requirement: None
II-1
Redemption or repayment
provisions:
Sinking fund requirements:
Number of Option Securities, if
any, that may be purchased by
the Underwriters:
Other terms and conditions: The Offered Securities will be issued
in fully registered, book-entry only
form through the facilities of The
Depository Trust Company, and each
issue of the Offered Securities shall
be represented by a separate global
note.
Exceptions, if any, to Section 3(i)
of the Underwriting Agreement: None
[UNDERWRITERS]
By:___________________________________
Name:
Title:
Acting on behalf of themselves and the
other named Underwriters
Accepted:
FDX CORPORATION
By:_______________________________
Name:
Title:
II-2
