EXHIBIT 99.3
, 2001
FORM OF EXCHANGE AGENT AGREEMENT
The Bank of New York
Reorganization Unit
101 Barclay Street - 7E
New York, New York 10286
Attention: Santino Ginocchietti
Ladies and Gentlemen:
FedEx Corporation, a Delaware corporation (the "Company"), proposes to make
an offer (the "Exchange Offer") to exchange up to $250,000,000 principal amount
of its 6 5/8% notes due 2004, $250,000,000 principal amount of its 6 7/8% notes
due 2006 and $250,000,000 principal amount of its 7 1/4% notes due 2011 (the
"New Notes") for a like principal amount of its respective outstanding 6 5/8%
notes due 2004, 6 7/8% notes due 2006 and 7 1/4% notes due 2011 (the "Old
Notes"). The terms and conditions of the Exchange Offer are set forth in a
Prospectus (the "Prospectus") included in the Company's registration statement
on Form S-4 (File No. 333- ), as it may be amended from time to time (the
"Registration Statement"), filed with the Securities and Exchange Commission,
and proposed to be distributed to all record holders of the Old Notes. The Old
Notes and the New Notes are collectively referred to herein as the "Notes."
Capitalized terms used herein and not defined shall have the respective meanings
ascribed to them in the Prospectus or accompanying Letter of Transmittal.
The Company hereby appoints The Bank of New York to act as exchange agent
(the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company on or about ,
2001. The Letter of Transmittal accompanying the Prospectus (or in the case of
book entry securities, either the Letter of Transmittal or the Automated Tender
Offer Program ("ATOP") system) is to be used by the holders of the Old Notes to
accept the Exchange Offer and contains instructions with respect to the delivery
of certificates for Old Notes tendered.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on ,
2001, or on such later date or time to which the Company may extend the Exchange
Offer (the "Expiration Date"). Subject to the terms and conditions set forth in
the Prospectus, the Company expressly reserves the right to extend the Exchange
Offer from time to time and may extend the Exchange Offer by giving oral
(confirmed in writing) or written notice to you before 9:00 A.M., New York City
time, on the next business day after the previously scheduled Expiration Date.
The Company expressly reserves the right, in its sole discretion, to amend
or terminate the Exchange Offer, and not to accept for exchange any Old Notes
not theretofore accepted for exchange. The Company will give oral (confirmed in
writing) or written notice of any amendment, termination or nonacceptance to you
as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in accordance
with the following instructions:
1. You will perform such duties and only such duties as are specifically
set forth in the section of the Prospectus captioned "The Exchange Offer," in
the Letter of Transmittal accompanying the Prospectus or as
specifically set forth herein; provided, however, that in no way will your
general duty to act in good faith and without gross negligence or willful
misconduct be limited by the foregoing.
2. You will establish an account with respect to the Old Notes at The
Depository Trust Company ("DTC") for purposes of the Exchange Offer within two
business days after the date of the Prospectus, and any financial institution
that is a participant in DTC's systems may, until the Expiration Date, make
book-entry delivery of the Old Notes by causing DTC to transfer such Old Notes
into your account in accordance with DTC's procedures for such transfer. In
every case, however, a Letter of Transmittal (or a manually executed facsimile
thereof) or an agent's message, properly completed and duly executed, with any
required signature guarantees and any other required documents must be
transmitted to and received by you prior to the Expiration Date or the
guaranteed delivery procedures described in the Letter of Transmittal must be
complied with.
3. You are to examine each of the Letters of Transmittal and certificates
for Old Notes (and confirmation of book-entry transfers of Old Notes into your
account at DTC) and any other documents delivered or mailed to you by or for
holders of the Old Notes, to ascertain whether: (i) the Letters of Transmittal,
certificates and any such other documents are duly executed and properly
completed in accordance with instructions set forth therein and that such
Book-Entry Confirmations are in due and proper form and contain the information
required to be set forth therein, (ii) the Old Notes have otherwise been
properly tendered, (iii) the Old Notes tendered in part are tendered in
denominations of $1,000 and integral multiples thereof, and (iv) holders have
provided their taxpayer identification number ("TIN") or required certification.
In each case where the Letter of Transmittal or any other document has been
improperly completed or executed, or where Book-Entry Confirmations are not in
due and proper form or omit certain information, or where any of the
certificates for Old Notes are not in proper form for transfer or some other
irregularity in connection with the acceptance of the Exchange Offer exists, you
will endeavor to inform the presenters of the need for fulfillment of all
requirements and to take any other action as may be necessary or advisable to
cause such irregularity to be corrected.
4. With the approval of the President, any Vice President, the Secretary or
any Assistant Secretary of the Company (such approval, if given orally, to be
confirmed in writing) or any other person designated by such an officer in
writing, you are authorized to waive any irregularities in connection with any
tender of Old Notes pursuant to the Exchange Offer.
5. At the written request of the Company or its counsel, you shall notify
tendering holders of Old Notes in the event of any extension, termination or
amendment of the Exchange Offer. In the event of any such termination, you will
return all tendered Old Notes to the persons entitled thereto, at the request
and expense of the Company.
6. Tenders of Old Notes may be made only as set forth in the Letter of
Transmittal and in the section of the Prospectus captioned "The Exchange Offer,"
and Old Notes shall be considered properly tendered to you only when tendered in
accordance with the procedures set forth therein. Notwithstanding the provisions
of this paragraph 6, Old Notes which the President, any Vice President, the
Secretary or any Assistant Secretary of the Company or any other person
designated by any such person shall approve as having been properly tendered
shall be considered to be properly tendered (such approval, if given orally,
shall be confirmed in writing). New Notes are to be issued in exchange for Old
Notes pursuant to the Exchange Offer only (i) against deposit with you prior to
the Expiration Date or, in the case of a tender in accordance with the
guaranteed delivery procedures outlined in Instruction 1 of the Letter of
Transmittal, within three New York Stock Exchange trading days after the
Expiration Date of the Exchange Offer, together with executed Letters of
Transmittal and any other documents required by the Exchange Offer or (ii) in
the event that the holder is a participant in DTC's system, by the utilization
of DTC's ATOP and receipt of any evidence required by the Exchange Offer.
7. You shall advise the Company with respect to any Old Notes received
subsequent to the Expiration Date and accept its instructions with respect to
disposition of such Old Notes.
8. You shall accept tenders:
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(a) in cases where the Old Notes are registered in two or more names
only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity
only when proper evidence of his or her authority so to act is
submitted; and
(c) from persons other than the registered holder of Old Notes
provided that customary transfer requirements, including those
regarding any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Notes when so indicated and as
permitted in the Letter of Transmittal and deliver certificates for Old Notes to
the registrar for the Old Notes (the "Security Registrar") for split-up and
return any untendered Old Notes to the holder (or such other person as may be
designated in the Letter of Transmittal) as promptly as practicable after
expiration or termination of the Exchange Offer.
9. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company will notify you (such notice, if given orally, to be
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Old Notes properly tendered and you, on behalf of the Company, will exchange
such Old Notes for New Notes and cause such Old Notes to be canceled. Delivery
of New Notes will be made on behalf of the Company by you at the rate of $1,000
principal amount of New Notes for each $1,000 principal amount of the Old Notes
tendered promptly after notice (such notice, if given orally, to be confirmed in
writing) of acceptance of said Old Notes by the Company; provided, however, that
in all cases, Old Notes tendered pursuant to the Exchange Offer will be
exchanged only after timely receipt by you of certificates for such Old Notes
(or confirmation of book-entry transfer into your account at DTC), a properly
completed and duly executed Letter of Transmittal (or facsimile thereof) with
any required signature guarantees (except as described in the section of the
Prospectus captioned "The Exchange Offer--Procedures for Tendering") and any
other required documents. Unless otherwise instructed by the Company, you shall
issue New Notes only in denominations of $1,000 or any integral multiple
thereof.
10. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and the
Letter of Transmittal, Old Notes tendered pursuant to the Exchange Offer may be
withdrawn at any time on or prior to the Expiration Date in accordance with the
terms of the Exchange Offer.
11. The Company shall not be required to accept for exchange any Old Notes
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company not to accept for exchange any Old Notes
tendered shall be given (and confirmed in writing) by the Company to you.
12. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Old Notes tendered because of an invalid tender, the
occurrence of certain other events set forth in the Prospectus or otherwise, you
shall as soon as practicable after the expiration or termination of the Exchange
Offer return the certificates for those unaccepted Old Notes (or effect
appropriate book-entry transfer), together with any related required documents
and the Letters of Transmittal relating thereto that are in your possession, to
the persons who deposited them (or effected such book-entry transfer).
13. All certificates for reissued Old Notes, unaccepted Old Notes or for
New Notes (other than those effected by book-entry transfer) shall be forwarded
by (a) first-class certified mail, return receipt requested, under a blanket
surety bond obtained by you protecting you and the Company from loss or
liability arising out of the nonreceipt or nondelivery of such certificates or
(b) by registered mail insured by you separately for the replacement value of
each of such certificates.
14. As soon as practicable after the Expiration Date, you shall arrange for
cancellation of the Old Notes submitted to you or returned by DTC in connection
with the ATOP. Such Old Notes shall be cancelled and retired by you as you are
instructed by the Company (or a representative designated by the Company) in
writing.
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15. You are not authorized to pay or offer to pay any concessions,
commissions or other solicitation fees to any broker, dealer, commercial bank,
trust company or other nominee or to engage or use any person to solicit
tenders.
16. As Exchange Agent hereunder, you:
(a) shall have no duties or obligations other than those specifically
set forth in the Prospectus, the Letter of Transmittal or herein or as
may be subsequently agreed to in writing by you and the Company;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness
of any of the certificates for the Old Notes deposited with you
pursuant to the Exchange Offer, and will not be required to and will
make no representation as to the validity, value or genuineness of the
Exchange Offer;
(c) shall not be obligated to take any legal action hereunder which
might in your reasonable judgment involve any expense or liability,
unless you shall have been furnished with reasonable indemnity;
(d) may reasonably rely upon and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter or
other document or security delivered to you and reasonably believed by
you to be genuine and to have been signed by the proper party or
parties;
(e) may reasonably act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due
execution and validity and the effectiveness of its provisions, but
also as to the truth and accuracy of any information contained
therein, which you shall in good faith believe to be genuine or to
have been signed or represented by a proper person or persons;
(f) may rely upon and shall be protected in acting upon written or
oral instructions from any officer of the Company as set forth herein;
(g) may consult with your counsel with respect to any questions
relating to your duties and responsibilities, and the written opinion
of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be
taken by you hereunder in good faith and in accordance with the
written opinion of such counsel; and
(h) shall not advise any person tendering Old Notes pursuant to the
Exchange Offer as to whether to tender or refrain from tendering all
or any portion of Old Notes or as to the market value of, or the
decline or appreciation in market value of, any Old Notes that may or
may not occur as a result of the Exchange Offer or as to the market
value of the New Notes;
provided, however, that in no way will your general duty to act in good faith
and without gross negligence or willful misconduct be limited by the foregoing.
17. You shall take such action as may from time to time be requested by the
Company or its counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Prospectus, Letter of Transmittal and the
Notice of Guaranteed Delivery (as described in the Prospectus) or such other
forms as may be approved from time to time by the Company to all persons
requesting such documents and to accept and comply with telephone requests for
information relating to the Exchange Offer, provided, that such information
shall relate only to the procedures for accepting (or withdrawing from) the
Exchange Offer. The Company will furnish you with copies of such documents at
your request.
18. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to Charles M. Buchas, Jr., Corporate Vice
President and Treasurer of the Company (telephone number (901) 818-7040,
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facsimile number (901) 818-7121) and to Andrew M. Paalborg, Staff Vice
President-Securities and Corporate Law of the Company (telephone number (901)
818-7035, facsimile number (901) 818-7103) and such other person or persons as
the Company may request, daily (and more frequently during the week immediately
preceding the Expiration Date and if otherwise requested), up to and including
the Expiration Date, as to the number and aggregate principal amount of Old
Notes which have been duly tendered pursuant to the Exchange Offer and the items
received by you pursuant to the Exchange Offer and this Agreement, separately
reporting and giving cumulative totals as to items properly received and items
improperly received. In addition, you will also inform, and cooperate in making
available to, the Company or any such other person or persons designated by the
Company upon oral request made from time to time prior to the Expiration Date of
such other information as it or he or she reasonably requests. Such cooperation
shall include, without limitation, the granting by you to the Company and such
person as the Company may request of access to those persons on your staff who
are responsible for receiving tenders, in order to ensure that immediately prior
to the Expiration Date the Company shall have received information in sufficient
detail to enable it to decide whether to extend the Exchange Offer, including
the identity of the holders of Old Notes who have not tendered such Old Notes as
of the date such request was made. You shall prepare a final list of all persons
whose tenders were accepted, the number and aggregate principal amount of Old
Notes tendered, the number and aggregate principal amount of Old Notes accepted
and the identity of any Participating Broker-Dealers and the number and
aggregate principal amount of New Notes delivered to each, and deliver said list
to the Company.
19. Letters of Transmittal, Book-Entry Confirmations and Notices of
Guaranteed Delivery received by you shall be preserved by you for a period of
time at least equal to the period of time you preserve other records pertaining
to the transfer of securities, or one year, whichever is longer, and thereafter
shall be delivered by you to the Company. You shall dispose of unused Letters of
Transmittal and other surplus materials, upon consultation with the Company, in
accordance with your customary procedures.
20. You hereby expressly waive any lien, encumbrance or right of set-off
whatsoever that you may have with respect to funds deposited with you for the
payment of transfer taxes by reasons of amounts, if any, borrowed by the
Company, or any of its subsidiaries or affiliates pursuant to any loan, credit
or other agreement with you or for compensation owed to you hereunder or under
any other agreement.
21. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on the Schedule attached hereto.
22. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus and
the Letter of Transmittal (as they may be amended from time to time), on the
other hand, shall be resolved in favor of the latter two documents, except with
respect to the duties, liabilities and indemnification of you as Exchange Agent,
which shall be controlled by this Agreement.
23. The Company covenants and agrees to indemnify and hold you harmless in
your capacity as Exchange Agent hereunder against any loss, liability, cost or
expense, including reasonable attorneys' fees and expenses arising out of or in
connection with any act, omission, delay or refusal made by you in reliance upon
any signature, endorsement, assignment, certificate, order, request, notice,
instruction or other instrument or document reasonably believed by you to be
valid, genuine and sufficient and in accepting any tender or effecting any
transfer of Old Notes reasonably believed by you in good faith to be authorized,
and in delaying or refusing in good faith to accept any tenders or effect any
transfer of Old Notes; provided, however, that anything in this Agreement to the
contrary notwithstanding, the Company shall not be liable for indemnification or
otherwise for any loss, liability, cost or expense to the extent arising out of
your gross negligence or willful misconduct. In no case shall the Company be
liable under this indemnity with respect to any claim against you unless the
Company shall be notified by you, by letter or by facsimile which is confirmed
by letter, of the written assertion of a claim against you or of any other
action commenced against you, promptly after you shall have received any such
written assertion or notice of commencement of action. The Company shall be
entitled to participate, at its own expense, in the defense of any such claim or
other action, and, if the Company so elects, the Company may assume the defense
of any pending or
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threatened action against you in respect of which indemnification may be sought
hereunder, in which case the Company shall not thereafter be responsible for the
subsequently incurred fees and disbursements of legal counsel for you under this
paragraph so long as the Company shall retain counsel reasonably satisfactory to
you to defend such suit; provided, however, that the Company shall not be
entitled to assume the defense of any such action if the named parties to such
action include both you and the Company and representation of both parties by
the same legal counsel would, in the written opinion of your counsel, be
inappropriate due to actual or potential conflicting interests between you and
the Company. You understand and agree that the Company shall not be liable under
this paragraph for the fees and expenses of more than one legal counsel for you.
24. You shall arrange to comply with all requirements under the tax laws of
the United States, including those relating to missing TINs, and shall file any
appropriate reports with the Internal Revenue Service. The Company understands
that you are required, in certain instances, to deduct thirty-one percent (31%)
with respect to interest paid on the New Notes and proceeds from the sale,
exchange, redemption or retirement of the New Notes from holders who have not
supplied their correct TINs or required certification. Such funds will be turned
over to the Internal Revenue Service in accordance with applicable regulations.
25. You shall notify the Company of the amount of any transfer taxes
payable in respect of the exchange of Old Notes and, upon receipt of a written
approval from the Company, shall deliver or cause to be delivered, in a timely
manner to each governmental authority to which any transfer taxes are payable in
respect of the exchange of Old Notes, your check in the amount of all transfer
taxes so payable, and the Company shall reimburse you for the amount of any and
all transfer taxes payable in respect of the exchange of Old Notes; provided,
however, that you shall reimburse the Company for amounts refunded to you in
respect of your payment of any such transfer taxes, at such time as such refund
is received by you.
26. THIS AGREEMENT AND YOUR APPOINTMENT AS EXCHANGE AGENT HEREUNDER SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE,
AND WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
27. This Agreement shall be binding upon and inure solely to the benefit of
each party hereto, and its successor and assigns, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement. Without limitation of the foregoing, the parties hereto expressly
agree that no holder of Old Notes or New Notes shall have any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
28. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, and all of which taken together shall
constitute one and the same agreement.
29. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
30. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged.
31. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
If to the Company, to:
FedEx Corporation
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942 South Shady Grove Road
Memphis, Tennessee 38120
Telephone: (901) 818-7040
Telecopy: (901) 818-7121
Attention: Charles M. Buchas, Jr.
Corporate Vice President and Treasurer
with a copy to:
Sarah Beshar, Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Telecopy (212) 450-4800
If to the Exchange Agent, to:
The Bank of New York
Reorganization Unit
101 Barclay Street - 7E
New York, New York 10286
Telephone: (212) 815-6331
Telecopy: (212) 815-6339
Attention: Santino Ginocchietti
32. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
paragraphs 19, 21, 23 and 25 shall survive the termination of this Agreement.
Upon any termination of this Agreement, you shall promptly deliver to the
Company any certificates for New Notes, funds or property then held by you as
Exchange Agent under this Agreement.
33. This Agreement shall be binding and effective as of the date hereof.
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Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
FEDEX CORPORATION
By:
---------------------------------------------
Name:
Title:
Accepted as of the date first above written:
THE BANK OF NEW YORK,
AS EXCHANGE AGENT
By:
-------------------------------
Name:
Title:
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FEE SCHEDULE FOR
EXCHANGE AGENT SERVICES
Covers review of the Letter of Transmittal, DTC ATOP voluntary offering
instruction ("VOI"), the Exchange Agent Agreement and other related
documentation, if any, as required by the Exchange Offer; set-up of records and
accounts; distribution of materials; all operational and administrative charges
and time in connection with the review, receipt and processing of Letters of
Transmittal/VOI, processing delivery of guarantees, legal items, withdrawals,
record keeping, and answering securityholders' inquiries pertaining to the
Exchange Offer.
Flat Fee: $_________
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