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EXHIBIT 1.1
FEDEX CORPORATION
(a Delaware corporation)
AND THE GUARANTORS NAMED HEREIN
$600,000,000 Floating Rate Notes due 2005
$500,000,000 2.65% Notes due 2007
$500,000,000 3.50% Notes due 2009
PURCHASE AGREEMENT
March 22, 2004
J.P. Morgan Securities Inc.
Banc of America Securities LLC
Banc One Capital Markets, Inc.
Citigroup Global Markets Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Utendahl Capital Group, LLC
KBC Financial Products USA Inc.
McDonald Investments Inc.
Morgan Keegan & Company, Inc.
The Royal Bank of Scotland plc
Scotia Capital (USA) Inc.
SunTrust Capital Markets, Inc.
Vining - Sparks IBG, L.P.
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
FedEx Corporation, a Delaware corporation (the "COMPANY"), and Federal Express
Corporation ("FEDEX EXPRESS"), FedEx Ground Package System, Inc., FedEx Freight
Corporation, FedEx Freight East, Inc. and Kinko's, Inc. (collectively, the
"INITIAL GUARANTORS" and, together with each subsidiary of the Company that
pursuant to the terms of the Indenture referred to below hereafter guarantees
the Company's obligations under such Indenture, the "GUARANTORS"), hereby
confirm their agreement with J.P. Morgan Securities Inc. ("JPMORGAN"), Banc of
America Securities LLC, Banc One Capital Markets, Inc., Citigroup Global Markets
Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Utendahl Capital
Group, LLC, KBC Financial
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Products USA Inc., McDonald Investments Inc., Morgan Keegan & Company, Inc., The
Royal Bank of Scotland plc, Scotia Capital (USA) Inc., SunTrust Capital Markets,
Inc. and Vining - Sparks IBG, L.P. (collectively, the "INITIAL PURCHASERS") for
whom JPMorgan is acting as representative (in such capacity, the
"REPRESENTATIVE"), with respect to the issue and sale by the Company and the
purchase, severally and not jointly, by the Initial Purchasers of the respective
principal amounts set forth in SCHEDULE A hereto, of $600,000,000 aggregate
principal amount of the Company's Floating Rate Notes due 2005 (the "FLOATING
RATE NOTES"), $500,000,000 aggregate principal amount of the Company's 2.65%
Notes due 2007 (the "2007 NOTES") and $500,000,000 aggregate principal amount of
the Company's 3.50% Notes due 2009 (the "2009 NOTES" and, together with the
Floating Rate Notes and the 2007 Notes, the "OFFERED SECURITIES"). The Offered
Securities are to be issued pursuant to an indenture (the "INDENTURE"), to be
dated as of March 25, 2004, among the Company, as issuer, the Initial
Guarantors, as guarantors, and Wachovia Bank, National Association, as trustee
(the "TRUSTEE"). The Offered Securities will be guaranteed as to principal and
interest pursuant to the Indenture by the Guarantors (each such guarantee, a
"SECURITIES GUARANTEE").
The Company understands that the Initial Purchasers propose to make an
offering of the Offered Securities on the terms and in the manner set forth
herein and agrees that the Initial Purchasers may resell, subject to the
conditions set forth herein, all or a portion of the Offered Securities to
purchasers ("SUBSEQUENT PURCHASERS") at any time after the date of this
Agreement. The Offered Securities are to be offered and sold through the Initial
Purchasers without being registered under the Securities Act of 1933, as amended
(the "1933 ACT"), in reliance upon exemptions therefrom. Pursuant to the terms
of the Offered Securities and the Indenture, investors that acquire Offered
Securities may only resell or otherwise transfer such Offered Securities if such
Offered Securities are hereafter registered under the 1933 Act or if an
exemption from the registration requirements of the 1933 Act is available
(including the exemptions afforded by Rule 144A ("RULE 144A") or Regulation S
("REGULATION S") of the rules and regulations promulgated under the 1933 Act
(the "1933 ACT REGULATIONS") by the Securities and Exchange Commission (the
"COMMISSION")).
The Company has prepared and delivered to each Initial Purchaser copies of
a preliminary offering memorandum dated March 22, 2004 (the "PRELIMINARY
OFFERING MEMORANDUM") and has prepared and will deliver to each Initial
Purchaser, on the date hereof or the next succeeding day, copies of a final
offering memorandum dated March 22, 2004 (the "FINAL OFFERING MEMORANDUM"), each
for use by such Initial Purchaser in connection with its solicitation of
purchases of, or offering of, the Offered Securities. "OFFERING MEMORANDUM"
means, with respect to any date or time referred to in this Agreement, the most
recent offering memorandum (whether the Preliminary Offering Memorandum or the
Final Offering Memorandum, or any amendment or supplement to either such
document), including exhibits thereto and any documents incorporated therein by
reference, which has been prepared and delivered by the Company to the Initial
Purchasers in connection with their solicitation of purchases of, or offering
of, the Offered Securities.
All references in this Agreement to financial statements and schedules and
other information which are "contained," "included" or "stated" in the Offering
Memorandum (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
are incorporated by reference in the
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Offering Memorandum; and all references in this Agreement to amendments or
supplements to the Offering Memorandum shall be deemed to mean and include the
filing of any document under the Securities Exchange Act of 1934, as amended
(the "1934 ACT"), which is incorporated by reference in the Offering Memorandum.
The holders of Offered Securities will be entitled to the benefits of a
Registration Rights Agreement, in substantially the form attached hereto as
EXHIBIT D with such changes as shall be agreed to by the parties hereto (the
"REGISTRATION RIGHTS AGREEMENT"), pursuant to which the Company will file a
registration statement (the "REGISTRATION STATEMENT") with the Commission
registering the Offered Securities or the Exchange Notes referred to in the
Registration Rights Agreement under the 1933 Act.
Section 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. (a) Each Initial
Guarantor, as to itself, and the Company represents and warrants to each Initial
Purchaser, as of the date hereof and as of the Closing Time (as defined below),
and agrees with each Initial Purchaser as follows:
(i) DUE INCORPORATION AND QUALIFICATION. Each of the
Company and the Initial Guarantors has been duly incorporated and
is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Offering Memorandum, 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 the corporate power and authority to own, lease
and operate its properties and to conduct its business as described
in the Offering Memorandum 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 Offering Memorandum), is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
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(iii) OFFERING MEMORANDUM. The Offering Memorandum does not,
and at the Closing Time will 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 Offering Memorandum made in
reliance upon and in conformity with information furnished to the
Company in writing by the Representative on behalf of an Initial
Purchaser expressly for use in the Offering Memorandum.
(iv) INCORPORATED DOCUMENTS. The documents incorporated by
reference in the Offering Memorandum, 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 Offering Memorandum, 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. Ernst & Young LLP are, and Arthur Andersen
LLP were, when serving as the Company's independent auditors,
independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(vi) FINANCIAL STATEMENTS. The financial statements and the
related notes thereto of the Company and FedEx Express included or
incorporated by reference in the Offering Memorandum comply in all
material respects with the applicable requirements of the 1933 Act
Regulations and the 1934 Act Regulations, as applicable, and
present fairly the consolidated financial positions of the Company
and its subsidiaries and of FedEx Express and its subsidiaries,
respectively, as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods
specified; such financial statements have been prepared in
conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods covered thereby; and the
other financial information included or incorporated by reference
in the Offering Memorandum has been derived from the accounting
records of the Company and its subsidiaries and of FedEx Express
and its subsidiaries, respectively, and presents fairly the
information shown thereby; and the financial schedules included or
incorporated by reference in the Offering Memorandum meet the
requirements of the 1933 Act Regulations or the 1934 Act
Regulations, as applicable. The Company is not required to file
historical financial statements of Kinko's, Inc. pursuant to Rule
3-05 of Regulation S-X promulgated by the Commission or to file pro
forma financial information relating to the acquisition of Kinko's,
Inc. by the Company pursuant to Rule 11-01 of Regulation S-X.
(vii) MATERIAL CHANGES OR MATERIAL TRANSACTIONS. Except as
stated in the Offering Memorandum, subsequent to the respective
dates as of which
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information is given in the Offering Memorandum, neither the
Company nor any of its subsidiaries has incurred any liabilities or
obligations, direct or contingent, or entered into any transactions
which are material to the Company and its subsidiaries considered
as one enterprise, 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 and its subsidiaries
considered as one enterprise, 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 and its subsidiaries
considered as one enterprise.
(viii) NO DEFAULTS; REGULATORY APPROVALS. None of the Company
or any of its subsidiaries is in violation of its charter (or
similar organizational documents) 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,
except, in the case of the subsidiaries of the Company which are
not Initial Guarantors, for such violations or defaults 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 and its
subsidiaries considered as one enterprise.
The execution and delivery of this Agreement, the Indenture, the
Registration Rights Agreement, the Securities Guarantees 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 each Initial Guarantor 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
enterprise or reasonably be expected to adversely affect the
enforceability of this Agreement, the Indenture, the Registration
Rights Agreement or the Securities Guarantees, nor will such action
result in any violation of the provisions of the charter or by-laws
(or similar organizational documents) of the Company or any Initial
Guarantor 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, the Indenture,
the Registration Rights Agreement or the Securities Guarantees and
applicable to the Company or any of its subsidiaries, except, in
the case of subsidiaries of the Company that are not Initial
Guarantors, such violations which individually or in the aggregate
would not have
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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 enterprise or
reasonably be expected to adversely affect the enforceability of
this Agreement, the Indenture, the Registration Rights Agreement or
the Securities Guarantees.
No consent, approval, authorization, order or decree of any court
or governmental agency or body is required for the consummation by
the Company and the Initial Guarantors of the transactions
contemplated by this Agreement, the Indenture, the Registration
Rights Agreement or the Securities Guarantees, except such as may
be required under state securities or Blue Sky laws.
(ix) LEGAL PROCEEDINGS; CONTRACTS. Except for matters
described in the Offering Memorandum, there is no pending or, to
the best knowledge of any financial officer of the Company or any
Initial Guarantor, 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
and its subsidiaries considered as one enterprise, or the ability
of the Company and the Initial Guarantors to perform their
respective obligations under this Agreement, the Indenture, the
Registration Rights Agreement or the Securities Guarantees.
(x) COMPLIANCE WITH LAWS. The business and operations of
the Company and of each of the Initial Guarantors comply in all
material respects with all laws and regulations applicable thereto
and, except as described in the Offering Memorandum, there are no
known, proposed or threatened changes in any laws or regulations
which would have a material adverse effect on the Company and its
subsidiaries considered as one enterprise or the manner in which it
conducts its business. Each of the Company and the Initial
Guarantors 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 and its subsidiaries considered as one enterprise.
(xi) ENFORCEABILITY. Each of the Indenture and the
Registration Rights Agreement has been duly authorized by the
Company and the Initial Guarantors, will be substantially in the
form heretofore supplied to you and, when duly executed and
delivered by the Company and the Initial Guarantors and the other
parties thereto, will constitute a valid and binding agreement of
the Company and the Initial Guarantors, enforceable against the
Company and the Initial Guarantors in accordance with its terms.
(xii) VALIDITY OF THE OFFERED SECURITIES AND THE SECURITIES
GUARANTEES. When the Offered Securities have been executed, issued,
authenticated and delivered pursuant to the provisions of the
Indenture and sold and paid for as provided in this Agreement, and
the Securities Guarantees have been executed,
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issued and delivered pursuant to the provisions of the Indenture,
the Offered Securities and the Securities Guarantees will
constitute valid and legally binding obligations of the Company and
the respective Initial Guarantors enforceable in accordance with
their respective terms; and the holders of such Offered Securities
and Securities Guarantees will be entitled to the benefits provided
by such Indenture.
(xiii) SIMILAR OFFERINGS. Neither the Company nor any of its
affiliates, as such term is defined in Rule 501(b) under the 1933
Act (each, an "AFFILIATE"), has, directly or indirectly, solicited
any offer to buy, sold or offered to sell or otherwise negotiated
in respect of, or will solicit any offer to buy, sell or offer to
sell or otherwise negotiate in respect of, in the United States or
to any United States citizen or resident, any security which is or
would be integrated with the sale of the Offered Securities in a
manner that would require the Offered Securities to be registered
under the 1933 Act.
(xiv) RULE 144A ELIGIBILITY. The Offered Securities are
eligible for resale pursuant to Rule 144A and will not be, at the
Closing Time, of the same class as securities listed on a national
securities exchange registered under Section 6 of the 1934 Act, or
quoted in a U.S. automated interdealer quotation system.
(xv) NO GENERAL SOLICITATION. None of the Company, its
Affiliates or any person acting on its or any of their behalf
(other than the Initial Purchasers, as to whom the Company makes no
representation) has engaged or will engage, in connection with the
offering of the Offered Securities, in any form of general
solicitation or general advertising within the meaning of Rule
502(c) under the 1933 Act.
(xvi) NO REGISTRATION REQUIRED. Subject to compliance by the
Initial Purchasers with the representations and warranties set
forth in Section 2 and the procedures set forth in Section 6
hereof, it is not necessary in connection with the offer, sale and
delivery of the Offered Securities to the Initial Purchasers and to
each Subsequent Purchaser in the manner contemplated by this
Agreement and the Offering Memorandum to register the Offered
Securities under the 1933 Act or to qualify the Indenture under the
Trust Indenture Act of 1939, as amended (the "1939 ACT").
(xvii) NO DIRECTED SELLING EFFORTS. With respect to those
Offered Securities sold in reliance on Regulation S, (A) none of
the Company, its Affiliates or any person acting on its or their
behalf (other than the Initial Purchasers, as to whom the Company
makes no representation) has engaged or will engage in any directed
selling efforts within the meaning of Regulation S and (B) each of
the Company and its Affiliates and any person acting on its or
their behalf (other than the Initial Purchasers, as to whom the
Company makes no representation) has complied and will comply with
the offering restrictions requirement of Regulation S.
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(xviii) SARBANES-OXLEY ACT OF 2002. The Company has complied in
all material respects with the currently applicable requirements of
the Sarbanes-Oxley Act of 2002.
The representations and warranties made by the Company and the Initial
Guarantors as to the enforceability of the Indenture, the Registration Rights
Agreement, the Offered Securities and the Securities Guarantees set forth in
subparagraphs (xi) and (xii) above are limited by bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
the 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 or any Initial Guarantor 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 or such Initial Guarantor to each
Initial Purchaser 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) On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Initial Purchaser, and each Initial
Purchaser agrees, severally and not jointly, to purchase from the Company, at
the purchase price specified in SCHEDULE B hereto, the amount of Offered
Securities set forth opposite the name of such Initial Purchaser in SCHEDULE A
plus any additional principal amount of Offered Securities which such Initial
Purchaser may become obligated to purchase pursuant to the provisions of Section
11 hereof. It is understood that you propose to offer the Offered Securities for
sale as set forth in the Offering Memorandum.
(b) Payment of the purchase price for, and delivery of the certificates
for, the Offered Securities to be purchased by the Initial Purchasers shall be
made at the office of Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New
York, New York 10017, or at such other place as shall be agreed upon by the
Representative and the Company, at 9:00 A.M., Eastern time, on the third
business day after the date hereof (unless postponed in accordance with the
provisions of Section 11), or such other time not later than ten business days
after such date as shall be agreed upon by the Representative and the Company
(such time and date of payment and delivery being herein called the "CLOSING
TIME").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against book-entry
delivery through the facilities of The Depository Trust Company to the
Representative for the respective accounts of the Initial Purchasers of the
Offered Securities to be purchased by them. It is understood that each Initial
Purchaser has authorized the Representative, for its account, to accept delivery
of, receipt for, and make payment of the purchase price for, the Offered
Securities which it has agreed to purchase. JPMorgan, individually and not as
representative of the Initial Purchasers, may (but shall not be obligated to)
make payment of the purchase price for the Offered Securities to be
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purchased by any Initial Purchaser whose funds have not been received by the
Closing Time, but such payment shall not relieve such Initial Purchaser from its
obligations hereunder.
(c) Each Initial Purchaser, severally and not jointly, represents and
warrants to, and agrees with, the Company that it is a "qualified institutional
buyer" within the meaning of Rule 144A under the 1933 Act (a "QUALIFIED
INSTITUTIONAL BUYER").
(d) Certificates for the Offered Securities shall be in such
denominations and registered in such names as the Initial Purchasers may request
in writing at least one full business day before the Closing Time.
Section 3. COVENANTS OF THE COMPANY AND THE INITIAL GUARANTORS. The
Company and, to the extent applicable, each of the Initial Guarantors covenants
with each Initial Purchaser participating in the offering as follows:
(a) NOTICE OF CERTAIN PROPOSED FILINGS. At any time when the Offering
Memorandum is required to be delivered pursuant to Section 6(a)(vi) hereof, the
Company will give you notice of its intention to prepare any amendment to the
Offering Memorandum, whether by the filing of documents pursuant to the 1934 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.
(b) COPIES OF THE OFFERING MEMORANDUM. The Company will deliver to you
as many copies of the Offering Memorandum and of each amendment thereto
(including documents incorporated by reference in the Offering Memorandum) as
you may reasonably request.
(c) REVISIONS OF OFFERING MEMORANDUM--MATERIAL CHANGES. If at any time
when the Offering Memorandum is required to be delivered pursuant to Section
6(a)(vi) hereof any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of counsel for the Company or the
Initial Purchasers, to further amend or supplement the Offering Memorandum in
order that the Offering Memorandum 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 Subsequent Purchaser, the Company will promptly
prepare such amendment or supplement, whether by filing documents pursuant to
the 1934 Act or otherwise, as may be necessary to correct such untrue statement
or omission.
(d) BLUE SKY QUALIFICATIONS. The Company and the Initial Guarantors
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 Initial Purchasers 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 neither the
Company nor the Initial Guarantors shall 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 and the Initial
Guarantors 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.
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(e) 1934 ACT FILINGS. The Company and FedEx Express, during the period
when the Offering Memorandum is required to be delivered pursuant to Section
6(a)(vi) hereof, will file, within the required time periods, all documents
required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the 1934 Act.
(f) 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 (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.
(a) The Company will pay all expenses incident to the performance of
its obligations under this Agreement, including:
(i) the preparation of the Offering Memorandum and all
amendments thereto and the Preliminary Offering Memorandum;
(ii) the preparation, issuance and delivery of the Offered
Securities;
(iii) 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;
(iv) the qualification of the Offered Securities under
securities laws in accordance with the provisions of Section 3(d),
including filing fees and the reasonable fees and disbursements of
counsel to the Initial Purchasers in connection therewith and in
connection with the preparation of any Blue Sky Survey and any
Legal Investment Survey;
(v) the printing and delivery to the Initial Purchasers in
quantities as may be reasonably requested of copies of the Offering
Memorandum and any amendments or supplements thereto, and the
delivery by the Initial Purchasers of the Offering Memorandum and
any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Offered Securities;
(vi) the preparation and delivery to the Initial Purchasers
of copies of the Indenture; and
(vii) any fees charged by rating agencies for the rating of
the Offered Securities.
(b) If this Agreement is terminated by the Initial Purchasers in
accordance with the provisions of Section 5 or clause (i) of Section 10 hereof,
the Company shall reimburse upon demand the Initial Purchasers for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Initial Purchasers, that shall have been incurred by them in
connection with the proposed purchase and sale of the Offered Securities.
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Section 5. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The several
obligations of the Initial Purchasers 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 and the Initial
Guarantors herein, to the accuracy of the statements of the officers of the
Company or of any of the Initial Guarantors made in any certificate furnished
pursuant to the provisions hereof, to the performance and observance by the
Company and the Initial Guarantors of their respective covenants and agreements
contained herein to be performed and observed on their respective parts and to
the following additional conditions precedent:
(a) RATINGS CHANGE; ETC. At the Closing Time, (i) 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)(i) 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 since the execution of this Agreement
that it has placed any debt securities of the Company on what is commonly
termed a "WATCH LIST" for possible downgrading, and (ii) there shall not
have come to the attention of any of the Initial Purchasers any facts that
would cause them to reasonably believe that the Offering Memorandum, at
the time it was required to be delivered to a purchaser of the Offered
Securities pursuant to Section 6(a)(vi) hereof, 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 THE EXECUTIVE VICE PRESIDENT, GENERAL
COUNSEL AND SECRETARY OF THE COMPANY. The opinion of Kenneth R.
Masterson, Executive Vice President and General Counsel of the
Company, dated as of the Closing Time, in form and substance
reasonably satisfactory to the Initial Purchasers, to the effect as
set forth in EXHIBIT A.
(ii) OPINION OF THE VICE PRESIDENT AND GENERAL COUNSEL OF
FEDEX FREIGHT EAST, INC. The opinion of Kenneth R. Reeves, Vice
President and General Counsel of FedEx Freight East, Inc., dated as
of the Closing Time, in form and substance reasonably satisfactory
to the Initial Purchasers, to the effect as set forth in EXHIBIT B.
(iii) OPINION OF DAVIS POLK & WARDWELL. The opinion of Davis
Polk & Wardwell, special counsel to the Company, dated as of the
Closing Time, in form and substance reasonably satisfactory to the
Initial Purchasers, to the effect as set forth in EXHIBIT C.
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(iv) OPINION OF SIMPSON THACHER & BARTLETT LLP. The opinion
of Simpson Thacher & Bartlett LLP, counsel to the Initial
Purchasers, dated as of the Closing Time, with respect to such
matters as the Initial Purchasers may reasonably request.
(c) OFFICERS' CERTIFICATE. At the Closing Time, there shall not
have been, since the respective dates as of which information is given in
the Offering Memorandum, any material adverse change in the condition
(financial or other), business, prospects or results of operations of the
Company and its subsidiaries considered as one enterprise; and you shall
have received a certificate of the President or any Vice President of the
Company and of each Initial Guarantor, dated as of the Closing Time, to
the effect (i) in the case of the certificate to be provided by the
President or a Vice President of the Company, that there has been no such
material adverse change, (ii) that the other representations and
warranties 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), and (iii) that the Company or such Initial Guarantor, as
the case may be, has complied with all agreements and satisfied all
conditions on their respective parts to be performed or satisfied at or
prior to the date of such certificate. The officer signing and delivering
each such certificate may rely upon the best of his or her knowledge as to
proceedings threatened.
(d) ACCOUNTANTS' COMFORT LETTER. At the time of the execution of
this Agreement, the Representative shall have received from Ernst & Young
LLP a letter dated such date, in form and substance satisfactory to the
Representative, together with signed or reproduced copies of such letter
for each of the other Initial Purchasers containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to Initial Purchasers with respect to the financial statements
and certain financial information contained in the Offering Memorandum.
(e) BRING-DOWN COMFORT LETTER. At the Closing Time, the
Representative shall have received from Ernst & Young LLP a letter, dated
as of the Closing Time, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (d) of this Section,
except that the specified date referred to shall be a date not more than
three business days prior to the Closing Time.
(f) REGISTRATION RIGHTS AGREEMENT. At the Closing Time, the
Registration Rights Agreement shall have been fully executed and delivered
by the Company.
(g) OTHER DOCUMENTS. At the Closing Time, counsel for the Initial
Purchasers 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
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the Company or the Initial Guarantors in connection with the issuance and
sale of Offered Securities as herein contemplated shall be satisfactory in
form and substance to you.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Initial Purchasers by notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party
except as provided in Section 4 hereof.
Section 6. SUBSEQUENT OFFERS AND RESALES OF THE OFFERED SECURITIES.
(a) OFFER AND SALE PROCEDURES. Each of the Initial Purchasers
and the Company hereby establish and agree to observe the following
procedures in connection with the offer and sale of the Offered
Securities:
(i) OFFERS AND SALES ONLY TO QUALIFIED INSTITUTIONAL BUYERS
OR PURSUANT TO REGULATION S. Offers and sales of the Offered
Securities shall only be made (A) to persons whom the offeror or
seller reasonably believes to be Qualified Institutional Buyers or
(B) non-U.S. persons outside the United States, as defined in
Regulation S under the 1933 Act, to whom the offeror or seller
reasonably believes offers and sales of the Offered Securities may
be made in reliance upon Regulation S under the 1933 Act. Each
Initial Purchaser severally agrees that it will not offer, sell or
deliver any of the Offered Securities in any jurisdiction outside
the United States except under circumstances that will result in
compliance with the applicable laws thereof, and that it will take
at its own expense whatever action is required to permit its
purchase and resale of the Offered Securities in such
jurisdictions.
(ii) NO GENERAL SOLICITATION. No general solicitation or
general advertising (within the meaning of Rule 502(c) under the
1933 Act) will be used in the United States in connection with the
offering or sale of the Offered Securities.
(iii) PURCHASES BY NON-BANK FIDUCIARIES. In the case of a
non-bank Subsequent Purchaser of an Offered Security acting as a
fiduciary for one or more third parties, each third party shall, in
the reasonable judgment of the applicable Initial Purchaser, be a
Qualified Institutional Buyer or a non-U.S. person outside the
United States.
(iv) SUBSEQUENT PURCHASER NOTIFICATION. Each Initial
Purchaser will take reasonable steps to inform, and cause each of
its U.S. Affiliates to take reasonable steps to inform, persons
acquiring Offered Securities from such Initial Purchaser or
Affiliate, as the case may be, in the United States that the
Offered Securities (A) have not been and will not be registered
under the 1933 Act, (B) are being sold to them without registration
under the 1933 Act in reliance on Rule 144A or in accordance with
another exemption from registration under the 1933 Act, as the case
may be, and (C) may not be offered, sold or otherwise transferred
except (1) to the Company, (2) outside the United States in
accordance
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with Regulation S, or (3) inside the United States in accordance
with (x) Rule 144A to a person whom the seller reasonably believes
is a Qualified Institutional Buyer that is purchasing such Offered
Securities for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or
transfer is being made in reliance on Rule 144A or (y) pursuant to
another available exemption from registration under the 1933 Act.
(v) RESTRICTIONS ON TRANSFER. The transfer restrictions and
the other provisions set forth in the Offering Memorandum under the
heading "Notice to Investors," including the legends required
thereby, shall apply to the Offered Securities except as otherwise
agreed by the Company and the Initial Purchasers.
(vi) DELIVERY OF OFFERING MEMORANDUM. Each Initial Purchaser
will deliver to each purchaser of the Offered Securities from such
Initial Purchaser, in connection with its original distribution of
the Offered Securities, a copy of the Offering Memorandum, as
amended and supplemented at the date of such delivery.
(b) COVENANTS OF THE COMPANY. The Company and, to the extent
applicable, each of the Initial Guarantors covenants with each Initial
Purchaser as follows:
(i) INTEGRATION. Except following the effectiveness of the
Registration Statement, the Company agrees that it will not and
will cause its Affiliates not to, directly or indirectly, solicit
any offer to buy, sell or make any offer or sale of, or otherwise
negotiate in respect of, securities of the Company of any class if,
as a result of the doctrine of "integration" referred to in Rule
502 under the 1933 Act, such offer or sale would render invalid
(for the purpose of (A) the sale of the Offered Securities by the
Company to the Initial Purchasers, (B) the resale of the Offered
Securities by the Initial Purchasers to Subsequent Purchasers or
(C) the resale of the Offered Securities by such Subsequent
Purchasers to others) the exemption from the registration
requirements of the 1933 Act provided by Section 4(2) thereof or by
Rule 144A or by Regulation S thereunder or otherwise.
(ii) RULE 144A INFORMATION. Each of the Company and the
Initial Guarantors agrees that, in order to render the Offered
Securities eligible for resale pursuant to Rule 144A under the 1933
Act, until the earlier of (A) the second anniversary of the
original issuance date of the Offered Securities and (B) the date
when no Offered Securities remain outstanding, it will make
available, upon request, to any holder of Offered Securities or
prospective purchasers of Offered Securities the information
specified in Rule 144A(d)(4), unless the Company or the Initial
Guarantors furnish information to the Commission pursuant to
Section 13 or 15(d) of the 1934 Act.
(iii) RESTRICTION ON REPURCHASES. Until the expiration of two
years after the original issuance of the Offered Securities, the
Company will not, and will cause its Affiliates not to, resell any
Offered Securities which are "restricted
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securities" (as such term is defined under Rule 144(a)(3) under the
1933 Act), whether as beneficial owner or otherwise (except as
agent acting as a securities broker on behalf of and for the
account of customers in the ordinary course of business in
unsolicited broker's transactions).
(c) RESALE PURSUANT TO RULE 903 OF REGULATION S OR RULE 144A.
Each Initial Purchaser understands that the Offered Securities have not
been and will not be registered under the 1933 Act and may not be offered
or sold within the United States or to, or for the account or benefit of,
U.S. persons except in accordance with Regulation S under the 1933 Act or
pursuant to an exemption from the registration requirements of the 1933
Act. Each Initial Purchaser severally represents and agrees, that, except
as permitted by Section 6(a) above, it has offered and sold Offered
Securities and will offer and sell Offered Securities (i) as part of their
distribution at any time and (ii) otherwise until forty days after the
later of the date upon which the offering of the Offered Securities
commences and the Closing Time, only in accordance with Rule 903 of
Regulation S, Rule 144A under the 1933 Act or another applicable exemption
from the registration requirements of the 1933 Act. Accordingly, neither
the Initial Purchasers, their Affiliates nor any persons acting on their
behalf have engaged or will engage in any directed selling efforts with
respect to Offered Securities sold hereunder pursuant to Regulation S, and
the Initial Purchasers, their Affiliates and any person acting on their
behalf have complied and will comply with the offering restriction
requirements of Regulation S. Each Initial Purchaser severally agrees
that, at or prior to confirmation of a sale of Offered Securities pursuant
to Regulation S it will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases
Offered Securities from it or through it during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been
registered under the United States Securities Act of 1933
(the "Securities Act") and may not be offered or sold
within the United States or to or for the account or
benefit of U.S. persons (i) as part of their distribution
at any time and (ii) otherwise until forty days after the
later of the date upon which the offering of the
Securities commenced and the date of closing, except in
either case in accordance with Regulation S or Rule 144A
under the Securities Act. Terms used above have the
meaning given to them by Regulation S."
Terms used in the above paragraph have the meanings given to them by
Regulation S.
(d) ADDITIONAL REPRESENTATIONS AND WARRANTIES OF INITIAL
PURCHASERS. Each Initial Purchaser severally represents, warrants and
agrees that it has not entered and will not enter into any contractual
arrangements with respect to the distribution of the Offered Securities,
except with its Affiliates or with the prior written consent of the
Company; PROVIDED, however, that the foregoing will not apply to the
engagement of brokers and dealers in the ordinary course of business.
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(e) COMPLIANCE WITH UNITED KINGDOM LAW. Each Initial Purchaser,
severally and not jointly, represents, warrants and agrees that:
(i) it has not offered or sold and prior to the date six
months after the Closing Time will not offer or sell any Offered
Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes
of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the United Kingdom Public
Offers of Securities Regulations 1995 (as amended);
(ii) it has only communicated or caused to be communicated
and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within
the meaning of Section 21 of the United Kingdom Financial Services
and Markets Act 2000 (the "FSMA")) received by it in connection
with the issue or sale of any Offered Securities in circumstances
in which Section 21(1) of the FSMA does not apply to the Company or
any Initial Guarantor; and
(iii) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in
relation to the Offered Securities in, from or otherwise involving
the United Kingdom.
(f) COMPLIANCE WITH LAW OF THE NETHERLANDS. Each Initial
Purchaser, severally and not jointly, represents, warrants and agrees that
it has not, directly or indirectly, offered or sold and will not, directly
or indirectly, offer or sell in the Netherlands any Offered Securities
other than to persons who trade or invest in securities in the conduct of
a profession or business (which include banks, stockbrokers, insurance
companies, pension funds, other institutional investors and finance
companies and treasury departments of large enterprises).
Section 7. INDEMNIFICATION. (a) The Company and the Initial Guarantors
agree to indemnify and hold harmless each Initial Purchaser, its Affiliates,
directors and officers and each person, if any, who controls any Initial
Purchaser within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained
in the Offering Memorandum (or any amendment thereto), or the
omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or
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body, commenced or threatened, or of any claim whatsoever arising
out of or based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred,
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, or any such alleged 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 or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Initial Purchaser expressly for use in the Offering Memorandum; and PROVIDED,
further, that the foregoing indemnity agreement, with respect to any Preliminary
Offering Memorandum, shall not inure to the benefit of any Initial Purchaser
from whom the person asserting any such losses, claims, damages or liabilities
purchased Offered Securities, or any Affiliate, director or officer of or any
person controlling such Initial Purchaser, if a copy of the Offering Memorandum
(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
Initial Purchaser 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 Offering Memorandum (as so amended or supplemented)
would have cured the defect giving rise to such losses, claims, damages,
expenses or liabilities.
(b) Each Initial Purchaser severally agrees to indemnify and hold
harmless the Company, each Initial Guarantor, their respective Affiliates,
directors and officers and each person, if any, who controls the Company or any
Initial Guarantor within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 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, or alleged
untrue statements or omissions, made in the Offering Memorandum in reliance upon
and in conformity with written information furnished to the Company by such
Initial Purchaser expressly for use in the Offering Memorandum (or any amendment
thereto).
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such person (the "INDEMNIFIED PERSON") shall
promptly notify the person against whom such indemnification may be sought (the
"INDEMNIFYING PERSON") in writing; PROVIDED that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 7 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
PROVIDED, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 7. If any such proceeding shall be brought or
asserted
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against an Indemnified Person and it shall have notified the Indemnifying Person
thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to
the Indemnified Person to represent the Indemnified Person and any others
entitled to indemnification pursuant to this Section 7 that the Indemnifying
Person may designate in such proceeding and shall pay the fees and expenses of
such counsel related to such proceeding, as incurred. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary; (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person; (iii) the Indemnified Person shall have reasonably concluded that there
may be legal defenses available to it that are different from or in addition to
those available to the Indemnifying Person; or (iv) the named parties in any
such proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such reasonable fees and expenses shall be reimbursed as they are incurred. Any
such separate firm for any Initial Purchaser, its Affiliates, directors and
officers and any control persons of such Initial Purchaser shall be designated
in writing by JPMorgan and any such separate firm for the Company, the Initial
Guarantors and any Affiliates, directors, officers and control persons of the
Company and the Initial Guarantors shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify each Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by this paragraph, the Indemnifying Person
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by the Indemnifying Person of such request and (ii) the Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall,
without the written consent of the Indemnified Person, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified Person
is or could have been a party and indemnification could have been sought
hereunder by such Indemnified Person, unless such settlement (x) includes an
unconditional release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (y) does not include any
statement as to or any admission of fault, culpability or a failure to act by or
on behalf of any Indemnified Person.
Section 8. CONTRIBUTION. To the extent the indemnification provided for in
subsections 7(a) and (b) above is unavailable to an Indemnified Person in
respect of any losses, claims, expenses, damages or liabilities referred to
therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages, expenses, or liabilities (i) in such proportion as is appropriate to
reflect the relative
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benefits received by the Company and the Initial Guarantors on the one hand and
the Initial Purchasers on the other from the offering of the Securities or (ii)
if the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company and the
Initial Guarantors on the one hand and the Initial Purchasers on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, expenses, or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Initial Guarantors on the one hand and the Initial Purchasers on the other shall
be deemed to be in the same respective proportions as the net proceeds (before
deducting expenses) received by the Company from the sale of the Offered
Securities and the total discounts and commissions received by the Initial
Purchasers in connection therewith, as provided in this Agreement, bear to the
aggregate initial offering price of the Offered Securities. The relative fault
of the Company and the Initial Guarantors on the one hand and the Initial
Purchasers on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or any Initial Guarantor or by the Initial Purchasers
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) 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 Initial
Purchaser within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as such Initial Purchaser,
and each officer or director of the Company or any Initial Guarantor, and each
person, if any, who controls the Company or any Initial Guarantor within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Company.
Section 9. 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 or any Initial Guarantor
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Initial Purchaser or
controlling person, or by or on behalf of the Company or any Initial Guarantor,
and shall survive each delivery of and payment for any of the Offered
Securities.
Section 10. 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 Offering Memorandum, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, (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 or
inadvisable to proceed with the offering, sale or delivery of the
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Offered Securities, (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 (iv) 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 provisions of
Section 4 hereof, the indemnity and contribution agreements set forth in
Sections 7 and 8 hereof, and the provisions of Sections 9 and 14 hereof shall
remain in effect.
Section 11. DEFAULT BY ONE OR MORE INITIAL PURCHASERS. If any Initial
Purchaser 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 Initial Purchasers shall be obligated severally in the proportions that
the amount of the Offered Securities set forth opposite their respective names
in SCHEDULE A hereto bears to the aggregate amount of Offered Securities set
forth opposite the names of all such non-defaulting Initial Purchasers to
purchase the Defaulted Securities; PROVIDED that in no event shall the amount of
Defaulted Securities that any Initial Purchaser has agreed to purchase pursuant
to this Agreement be increased by an amount in excess of one-tenth of such
amount of Offered Securities without the written consent of such Initial
Purchaser. If the aggregate amount of Defaulted Securities is more than
one-tenth of the aggregate amount of the Offered Securities to be purchased at
the Closing Time, and arrangements satisfactory to the Initial Purchasers 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 Initial Purchasers or the Company.
No action taken pursuant to this Section shall relieve a defaulting
Initial Purchaser 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 Initial Purchasers 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 Offering Memorandum or
in any other documents or arrangements.
Section 12. 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 Initial Purchasers shall be directed to J.P. Morgan Securities
Inc., 270 Park Avenue, New York, New York 10017, Attention: Investment Grade
Syndicate Desk (Fax: 212-834-6081). Notices to the Company shall be directed to
it at 942 South Shady Grove Road, Memphis, Tennessee 38120 (if by mail or
Federal Express service), Attention: Corporate Vice President and Treasurer,
Fax: 901-818-7121 with copies thereof directed to the Legal Department of the
Company at 942 South Shady Grove Road, Memphis, Tennessee 38120 (if by mail or
Federal Express Service), Attention: Staff Vice President - Securities and
Corporate Law, Fax: 901-818-7119.
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Section 13. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Company, the Initial Guarantors and any Initial Purchaser 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 7 and 8 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 Initial Purchaser shall be deemed to be a successor by reason merely of such
purchase.
Section 14. 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 or any Initial Guarantor against any Initial Purchaser or, any suit
action or proceeding brought by any Initial Purchaser against the Company or any
Initial Guarantor, 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.
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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, the Company and the Initial Guarantors in accordance with its terms.
Very truly yours,
FEDEX CORPORATION
By: /s/ Burnetta B. Williams
------------------------------------
Name: Burnetta B. Williams
Title: Staff Vice President and
Asst. Treasurer
FEDERAL EXPRESS CORPORATION
By: /s/ Cathy D. Ross
------------------------------------
Name: Cathy D. Ross
Title: SVP & Chief Financial Officer
FEDEX GROUND PACKAGE SYSTEM, INC.
By: /s/ Ronald R. Trombetta
------------------------------------
Name: Ronald R. Trombetta
Title: Senior Vice President & CFO
FEDEX FREIGHT CORPORATION
By: /s/ Douglas G. Duncan
------------------------------------
Name: Douglas G. Duncan
Title: President / CEO
FEDEX FREIGHT EAST, INC.
By: /s/ Frank L. Conner
------------------------------------
Name: Frank L. Conner
Title: Vice President - Accounting & Finance
KINKO'S, INC.
By: /s/ Mark A. Blinn
------------------------------------
Name: Mark A. Blinn
Title: Senior Vice President
and Chief Financial Officer
22
<Page>
CONFIRMED AND ACCEPTED, as of the date first
above written:
THE INITIAL PURCHASERS
By: J.P. MORGAN SECURITIES INC.
By: /s/ Stephen L. Sheiner
------------------------------------
Name: Stephen L. Scheiner
Title: Vice President
Acting on behalf of itself and the other
named Initial Purchasers
23
<Page>
EXHIBIT A
Form of Opinion of
the Executive Vice President and General Counsel of the Company
Form of Opinion of Company Counsel
March 25, 2004
J.P. Morgan Securities Inc.
Banc of America Securities LLC
Banc One Capital Markets, Inc.
Citigroup Global Markets Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Utendahl Capital Group, LLC
KBC Financial Products USA Inc.
McDonald Investments Inc.
Morgan Keegan & Company, Inc.
The Royal Bank of Scotland plc
Scotia Capital (USA) Inc.
SunTrust Capital Markets, Inc.
Vining - Sparks IBG, L.P.
Re: FedEx Corporation
Debt Securities (the "OFFERED SECURITIES")
Ladies and Gentlemen:
This opinion is directed to the Initial Purchasers pursuant to Section
5(b)(i) of the Purchase Agreement dated March 22, 2004 (the "PURCHASE
AGREEMENT"), among the Company, the Initial Guarantors and you, with respect to
the offer and sale of the Offered Securities and the Securities Guarantees. All
terms defined or used in the Purchase Agreement have the same meaning when used
herein, unless otherwise noted.
I am the Executive Vice President and General Counsel of the Company and
have acted as such in connection with the Offered Securities, the Securities
Guarantees and the Purchase 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.
I do not express any opinion as to matters governed by any law other than
the federal laws of the United States of America, the General Corporation Law of
the State of Delaware and the laws of the State of Tennessee.
A-1
<Page>
Based on the foregoing, it is my opinion that:
1. Each of the Company and the Initial Guarantors is a corporation
duly incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has full corporate power and authority
under such laws to own its properties and to conduct its business as described
in the Offering Memorandum; each of the Company and the Initial Guarantors is
duly qualified to do business and is in good standing in each jurisdiction in
which such qualification is required, except for such instances which in the
aggregate would not have a material adverse effect on the condition, financial
or otherwise, or the earnings or business affairs of the Company and its
subsidiaries considered as one enterprise;
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 Offering Memorandum,
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 or business affairs 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 Offering Memorandum, 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 and its subsidiaries considered as one
enterprise or the ability of the Company and the Initial Guarantors to perform
their respective obligations under the Purchase Agreement, the Indenture, the
Registration Rights Agreement or the Securities Guarantee;
4. The Indenture has been duly and validly authorized, executed and
delivered by the Company and the Initial Guarantors;
5. The Registration Rights Agreement has been duly and validly
authorized, executed and delivered by the Company and the Initial Guarantors;
6. The Offered Securities and Securities Guarantees have been duly and
validly authorized by all necessary corporate action of the Company and the
Initial Guarantors;
7. Each of the Company and the Initial Guarantors 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 Offering
Memorandum or for the actions contemplated by the Purchase Agreement and the
Registration Rights Agreement and the offering contemplated by the Offering
Memorandum;
A-2
<Page>
and the actions contemplated by the Purchase Agreement, the Indenture and the
Registration Rights Agreement and the offering contemplated by the Offering
Memorandum are not in violation of any federal statute or regulation relating to
aviation, aeronautics, communications, transportation or shipping;
8. I have reviewed or caused to be reviewed by attorneys under my
supervision the Offering Memorandum and each amendment and supplement thereto
(including the documents incorporated by reference) and have no reason to
believe that, as of its issue date, or as of the Closing Time, the Offering
Memorandum 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, in light of the circumstances under which they were
made, not misleading;
9. I do not know of any statute or regulation or legal or governmental
proceeding material to the business of the Company and its subsidiaries
considered as one enterprise which is not described in the Offering Memorandum,
nor of any contract or document material to the business of the Company and its
subsidiaries considered as one enterprise which is not described in the Offering
Memorandum; and the descriptions in the Offering Memorandum of the contracts and
other documents therein described are accurate and fairly present the
information shown;
10. The execution and delivery by the Company and the Initial
Guarantors of the Purchase Agreement and the consummation by the Company and the
Initial Guarantors of the transactions therein contemplated and compliance with
the terms of the Purchase 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 or of any Initial Guarantor, 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 or any Initial Guarantor
to which the Company or any Initial Guarantor is a party or by which it or any
of its properties are bound, or result in any violation of any existing
applicable law, rule, regulation, judgment, order or decree of any government,
governmental instrumentality or court, having jurisdiction over the Company or
any Initial Guarantor or any of their respective properties;
11. The Offered Securities, the Securities Guarantees, the Registration
Rights Agreement and the Indenture conform in all material respects to the
description thereof contained in the Offering Memorandum.
12. No authorization, approval, consent or license of any regulatory
body or authority (other than under 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 Securities Guarantees as contemplated
by the Purchase Agreement, the Indenture and the Offering Memorandum or the
valid authorization, execution, delivery and performance by the Company or the
Initial Guarantors of the Purchase Agreement and the Indenture or the
consummation by the Company and the Initial Guarantors of the transactions
contemplated 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;
A-3
<Page>
13. The documents incorporated by reference in the Offering Memorandum
comply as to form in all material respects with the requirements of the 1934 Act
and the 1934 Act Regulations in effect at the time such documents were filed
with the Commission;
14. The Purchase Agreement has been duly and validly authorized,
executed and delivered by the Company and the Initial Guarantors; and
15. It is not necessary in connection with the offer, sale and delivery
of the Offered Securities and the Securities Guarantees to the Initial
Purchasers and the resale of the Offered Securities and Securities Guarantees by
such Initial Purchasers to each Subsequent Purchaser in the manner contemplated
by the Purchase Agreement and the Offering Memorandum (it being understood that
no opinion is expressed as to any other offer or resale of any security) to
register the Offered Securities or the Securities Guarantees under the 1933 Act
or to qualify the Indenture under the 1939 Act.
With respect to the opinions set forth in paragraphs (4), (5), (6) and
(14) above, I have relied upon the opinion of local counsel in respect of
Initial Guarantors not incorporated in Delaware or Tennessee.
In rendering the foregoing opinion, I 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 or
any Initial Guarantor) 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 Initial Purchasers
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 Davis Polk &
Wardwell, special counsel to the Company, and Simpson Thacher & Bartlett LLP,
counsel to the Initial Purchasers, may rely upon this opinion as to all matters
of Tennessee 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,
Kenneth R. Masterson
A-4
<Page>
EXHIBIT B
Form of Opinion of
the Vice President and General Counsel of
FedEx Freight East, Inc.
March 25, 2004
J.P. Morgan Securities Inc.
Banc of America Securities LLC
Banc One Capital Markets, Inc.
Citigroup Global Markets Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Utendahl Capital Group, LLC
KBC Financial Products USA Inc.
McDonald Investments Inc.
Morgan Keegan & Company, Inc.
The Royal Bank of Scotland plc
Scotia Capital (USA) Inc.
SunTrust Capital Markets, Inc.
Vining - Sparks IBG, L.P.
Re: FedEx Corporation Debt Securities (the "OFFERED SECURITIES")
Ladies and Gentlemen:
This opinion is directed to the Initial Purchasers pursuant to
Section 5(b)(ii) of the Purchase Agreement dated March 22, 2004 (the "PURCHASE
AGREEMENT"), among FedEx Corporation (the "COMPANY"), the Initial Guarantors and
you, with respect to the offer and sale of the Offered Securities and the
Securities Guarantees. All terms defined or used in the Purchase Agreement have
the same meaning when used herein, unless otherwise noted.
I am the Vice President and General Counsel of FedEx Freight East, Inc.
("FREIGHT EAST") and have acted as such in connection with the issuance and
delivery by Freight East of its guarantee (the "FREIGHT EAST GUARANTEE") of the
Offered Securities and related documents. I or attorneys under my supervision
have made such examination and investigation as we have deemed necessary in
order to give the following opinion.
I do not express any opinion as to matters governed by any law other than
the federal laws of the United States of America and the State of Arkansas.
B-1
<Page>
Based on the foregoing, it is my opinion that:
1. Freight East is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Arkansas and has full
corporate power and authority under such laws to own its properties and to
conduct its business as described in the Offering Memorandum; Freight East is
duly qualified to do business and is in good standing in each jurisdiction in
which such qualification is required, except for such instances which in the
aggregate would not have a material adverse effect on the condition, financial
or otherwise, or the earnings or business affairs of the Company and its
subsidiaries considered as one enterprise;
2. The Indenture has been duly and validly authorized, executed and
delivered by Freight East;
3. The Registration Rights Agreement has been duly and validly
authorized, executed and delivered by Freight East;
4. The Freight East Guarantee has been duly and validly authorized by
all necessary corporate action of Freight East;
5. The execution and delivery by Freight East of the Purchase
Agreement and the consummation by Freight East of the transactions therein
contemplated and compliance with the terms of the Purchase Agreement do not and
will not conflict with or result in a breach of any of the terms of the articles
of incorporation or bylaws of Freight East; and
6. The Purchase Agreement has been duly and validly authorized,
executed and delivered by Freight East.
In rendering the foregoing opinion, I 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 Freight East)
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) copies of such documents, records and
certificates conform to the originals.
B-2
<Page>
This opinion is intended solely for the benefit of the Initial Purchasers
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 Kenneth R. Masterson,
Executive Vice President and General Counsel of the Company, Davis Polk &
Wardwell, special counsel to the Company, and Simpson Thacher & Bartlett LLP,
counsel to the Initial Purchasers, may rely upon this opinion as to all matters
of Arkansas law in rendering their opinions 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,
Kenneth R. Reeves
B-3
<Page>
EXHIBIT C
Form of Opinion of Davis Polk & Wardwell
1. The Indenture has been duly and validly authorized, executed and
delivered by the Company and the Initial Guarantors and (assuming the Indenture
has been duly authorized, executed and delivered by the Trustee) constitutes a
valid and binding agreement of the Company and the Initial Guarantors,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
2. Each of the Purchase Agreement and the Registration Rights
Agreement dated as of March 25, 2004 among the Company, the Initial Guarantors
and the Initial Purchasers (the "Registration Rights Agreement") has been duly
and validly authorized, executed and delivered by the Company and the Initial
Guarantors and (assuming the due authorization, execution and delivery by the
other parties thereto) constitutes a valid and binding agreement of the Company
and the Initial Guarantors, enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles, and except as rights to indemnification and contribution
thereunder may be limited by applicable law; and
3. The Offered Securities and the Securities Guarantees are in due and
proper form and have been duly and validly authorized by all necessary corporate
action of the Company and the Initial Guarantors and, when executed and
authenticated as specified in the Indenture and delivered against payment of the
consideration therefor determined in accordance with the Purchase Agreement,
will be valid and binding obligations of the Company and the Initial Guarantors,
enforceable in accordance with their respective terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; each holder of the Offered Securities and the Securities Guarantees
will be entitled to the benefits of the Indenture.
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 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 and the Company and the Initial Guarantors are accurate, true and
correct, and (iii) photostat copies of such documents, records and certificates
conform to the originals.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York, the federal laws of the
United States of America and the General Corporation Law of the State of
Delaware. With respect to all matters governed by the laws of the State of
Arkansas and Tennessee, we have relied on the opinions dated the date hereof of
Kenneth R. Reeves, Vice President and General Counsel of FedEx Freight East,
Inc., and Kenneth R. Masterson, Executive Vice President and General Counsel of
the Company, respectively. This opinion is being rendered at the request of the
Company solely for the benefit of the Initial Purchasers and is not to be relied
on by, and no copies of it to be delivered to, any
C-1
<Page>
other person without prior written consent of Davis Polk & Wardwell, except that
Kenneth R. Masterson, Executive Vice President and General Counsel of the
Company, may rely on this opinion as to all matters of New York law in rendering
his opinion of even date herewith, and the Trustee may rely on the opinion set
forth in paragraph 1 above, subject to all of the limitations and qualifications
set forth herein.
C-2
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EXHIBIT D
Form of Registration Rights Agreement
D-1
<Page>
SCHEDULE A
<Table>
<Caption>
Principal
Amount of
Floating Rate
Name of Initial Purchaser Notes
------------------------- -------------
J.P. Morgan Securities Inc............................................ $ 210,000,000
Banc of America Securities LLC........................................ $ 45,000,000
Banc One Capital Markets, Inc......................................... $ 45,000,000
Citigroup Global Markets Inc.......................................... $ 45,000,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated.................... $ 45,000,000
Utendahl Capital Group, LLC .......................................... $ 105,000,000
KBC Financial Products USA Inc........................................ $ 15,000,000
McDonald Investments Inc.............................................. $ 15,000,000
Morgan Keegan & Company, Inc.......................................... $ 15,000,000
The Royal Bank of Scotland plc........................................ $ 15,000,000
Scotia Capital (USA) Inc.............................................. $ 15,000,000
SunTrust Capital Markets, Inc......................................... $ 15,000,000
Vining - Sparks IBG, L.P.............................................. $ 15,000,000
Total................................................................. $ 600,000,000
==============
</Table>
Sch A-1
<Page>
<Table>
<Caption>
Principal
Amount of
Name of Initial Purchaser 2007 Notes
------------------------- ----------
J.P. Morgan Securities Inc. .......................................... $ 175,000,000
Banc of America Securities LLC........................................ $ 37,500,000
Banc One Capital Markets, Inc......................................... $ 37,500,000
Citigroup Global Markets Inc.......................................... $ 37,500,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated.................... $ 37,500,000
Utendahl Capital Group, LLC .......................................... $ 87,500,000
KBC Financial Products USA Inc........................................ $ 12,500,000
McDonald Investments Inc.............................................. $ 12,500,000
Morgan Keegan & Company, Inc.......................................... $ 12,500,000
The Royal Bank of Scotland plc........................................ $ 12,500,000
Scotia Capital (USA) Inc.............................................. $ 12,500,000
SunTrust Capital Markets, Inc......................................... $ 12,500,000
Vining - Sparks IBG, L.P.............................................. $ 12,500,000
Total................................................................. $ 500,000,000
==============
</Table>
Sch A-2
<Page>
<Table>
<Caption>
Principal
Amount of
Name of Initial Purchaser 2009 Notes
-------------------------- ----------
J.P. Morgan Securities Inc............................................ $ 175,000,000
Banc of America Securities LLC........................................ $ 37,500,000
Banc One Capital Markets, Inc......................................... $ 37,500,000
Citigroup Global Markets Inc.......................................... $ 37,500,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated.................... $ 37,500,000
Utendahl Capital Group, LLC .......................................... $ 87,500,000
KBC Financial Products USA Inc........................................ $ 12,500,000
McDonald Investments Inc.............................................. $ 12,500,000
Morgan Keegan & Company, Inc.......................................... $ 12,500,000
The Royal Bank of Scotland plc ....................................... $ 12,500,000
Scotia Capital (USA) Inc.............................................. $ 12,500,000
SunTrust Capital Markets, Inc......................................... $ 12,500,000
Vining - Sparks IBG, L.P.............................................. $ 12,500,000
Total................................................................. $ 500,000,000
==============
</Table>
Sch A-3
<Page>
SCHEDULE B
FEDEX CORPORATION
$600,000,000
Floating Rate Notes due 2005
1. The initial public offering price of the Floating Rate Notes shall
be 100.000% of the principal amount thereof, plus accrued interest, if any, from
the date of issuance.
2. The purchase price to be paid by the Initial Purchasers for the
Floating Rate Notes shall be 99.875% of the principal amount thereof.
3. The interest rate on the Floating Rate Notes shall be LIBOR plus 28
basis points (0.28%).
$500,000,000
2.65% Notes due 2007
1. The initial public offering price of the 2007 Notes shall be 99.925%
of the principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Initial Purchasers for the 2007
Notes shall be 99.475% of the principal amount thereof.
3. The interest rate on the 2007 Notes shall be 2.65% per annum.
$500,000,000
3.50% Notes due 2009
1. The initial public offering price of the 2009 Notes shall be 99.904%
of the principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Initial Purchasers for the 2009
Notes shall be 99.304% of the principal amount thereof.
3. The interest rate on the 2009 Notes shall be 3.50% per annum.
Sch B-1