Form 8-K FEDEX CORP For: Aug 05

August 5, 2019 5:19 PM

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported):  August 5, 2019

 

FedEx Corporation

(Exact Name of Registrant as Specified in Its Charter)

 

Delaware
(State or other jurisdiction of
incorporation)

 

1-15829
(Commission File Number)

 

62-1721435
(IRS Employer Identification No.)

 

942 South Shady Grove Road,
Memphis, Tennessee 38120

(Address of Principal Executive Offices, including ZIP Code)

 

(901) 818-7500

(Registrant’s telephone number, including area code)

 


 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

o         Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o         Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o         Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o         Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Trading Symbol(s)

 

Name of each exchange on which
registered

Common Stock, par value $0.10 per share

 

FDX

 

New York Stock Exchange

0.500% Notes due 2020

 

FDX 20A

 

New York Stock Exchange

0.700% Notes due 2022

 

FDX 22B

 

New York Stock Exchange

1.000% Notes due 2023

 

FDX 23A

 

New York Stock Exchange

1.625% Notes due 2027

 

FDX 27

 

New York Stock Exchange

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company o

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o

 

 

 


 

SECTION 8. OTHER EVENTS.

 

Item 8.01. Other Events.

 

On August 5, 2019, FedEx Corporation issued €500,000,000 aggregate principal amount of its 0.450% Notes due 2025 and €500,000,000 aggregate principal amount of its 1.300% Notes due 2031.

 

We are filing this Current Report on Form 8-K for the purpose of incorporating by reference the exhibits filed herewith into the Registration Statement on Form S-3 (Registration No. 333-226426) by which those notes and related guarantees were registered.

 

SECTION 9. FINANCIAL STATEMENTS AND EXHIBITS.

 

Item 9.01. Financial Statements and Exhibits.

 

(d)   Exhibits.

 

Exhibit
Number

 

Description

1.1

 

Underwriting Agreement, dated July 22, 2019, among FedEx Corporation, the Significant Guarantors named therein and BNP Paribas, Deutsche Bank AG, London Branch, J.P. Morgan Securities plc and Wells Fargo Securities International Limited, on behalf of themselves and as representatives of the several underwriters named therein.

 

 

 

4.1

 

Indenture, dated as of October 23, 2015, between FedEx Corporation, the Guarantors named therein and Wells Fargo Bank, National Association, as trustee (incorporated by reference to Exhibit 4.1 to the Registrant’s Report on Form 8-K of October 23, 2015).

 

 

 

4.2

 

Supplemental Indenture No. 10, dated as of August 5, 2019, between FedEx Corporation, the Guarantors named therein, Wells Fargo Bank, National Association, as trustee and Elavon Financial Services DAC, UK Branch, as paying agent.

 

 

 

4.3

 

Form of 0.450% Note due 2025 (included in Exhibit 4.2).

 

 

 

4.4

 

Form of 1.300% Note due 2031 (included in Exhibit 4.2).

 

 

 

5.1

 

Opinion of Davis Polk & Wardwell LLP regarding the legality of the notes and guarantees.

 

 

 

5.2

 

Opinion of Kimble H. Scott, Senior Vice President and General Counsel of FedEx Office and Print Services, Inc., regarding certain matters relating to FedEx Office and Print Services, Inc.

 

 

 

5.3

 

Opinion of Christina R. Conrad, Managing Director — Employment Law and Assistant Secretary of FedEx Freight, Inc., regarding certain matters relating to FedEx Freight, Inc.

 

 

 

23.1

 

Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1).

 

 

 

23.2

 

Consent of Kimble H. Scott (included in Exhibit 5.2).

 

 

 

23.3

 

Consent of Christina R. Conrad (included in Exhibit 5.3).

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

 

FedEx Corporation

 

 

 

Date:

August 5, 2019

 

By:

/s/ Michael C. Lenz

 

 

 

Name:

Michael C. Lenz

 

 

 

Title:

Corporate Vice President and Treasurer

 

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EXHIBIT INDEX

 

Exhibit
Number

 

Description

1.1

 

Underwriting Agreement, dated July 22, 2019, among FedEx Corporation, the Significant Guarantors named therein and BNP Paribas, Deutsche Bank AG, London Branch, J.P. Morgan Securities plc and Wells Fargo Securities International Limited, on behalf of themselves and as representatives of the several underwriters named therein.

 

 

 

4.1

 

Indenture, dated as of October 23, 2015, between FedEx Corporation, the Guarantors named therein and Wells Fargo Bank, National Association, as trustee (incorporated by reference to Exhibit 4.1 to the Registrant’s Report on Form 8-K of October 23, 2015).

 

 

 

4.2

 

Supplemental Indenture No. 10, dated as of August 5, 2019, between FedEx Corporation, the Guarantors named therein, Wells Fargo Bank, National Association, as trustee and Elavon Financial Services DAC, UK Branch, as paying agent.

 

 

 

4.3

 

Form of 0.450% Note due 2025 (included in Exhibit 4.2).

 

 

 

4.4

 

Form of 1.300% Note due 2031 (included in Exhibit 4.2).

 

 

 

5.1

 

Opinion of Davis Polk & Wardwell LLP regarding the legality of the notes and guarantees.

 

 

 

5.2

 

Opinion of Kimble H. Scott, Senior Vice President and General Counsel of FedEx Office and Print Services, Inc., regarding certain matters relating to FedEx Office and Print Services, Inc.

 

 

 

5.3

 

Opinion of Christina R. Conrad, Managing Director — Employment Law and Assistant Secretary of FedEx Freight, Inc., regarding certain matters relating to FedEx Freight, Inc.

 

 

 

23.1

 

Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1).

 

 

 

23.2

 

Consent of Kimble H. Scott (included in Exhibit 5.2).

 

 

 

23.3

 

Consent of Christina R. Conrad (included in Exhibit 5.3).

 

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Exhibit 1.1

 

Execution Version

 

FEDEX CORPORATION
(a Delaware corporation)

 

AND

 

THE GUARANTORS NAMED HEREIN

 

€500,000,000 0.450% Notes due 2025

€500,000,000 1.300% Notes due 2031

 

UNDERWRITING AGREEMENT

 

July 22, 2019

 

To the Representatives named in Schedule A hereto

of the several Underwriters named in Schedule B hereto

 

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, Inc. and FedEx Office and Print Services, Inc. (collectively, the “Significant Guarantors” and, together with each subsidiary of the Company that pursuant to the terms of the Indenture referred to below guarantees the Company’s obligations under such Indenture, the “Guarantors”), hereby confirm their agreement with BNP Paribas, Deutsche Bank AG, London Branch, J.P. Morgan Securities plc and Wells Fargo Securities International Limited (collectively, the “Bookrunners”) and the other underwriters named in Schedule B hereto (collectively, the “Underwriters”) for whom the Bookrunners are acting as representatives (in such capacity, the “Representatives”), with respect to the issue and sale by the Company and the purchase, severally and not jointly, by the Underwriters of the respective principal amounts set forth in Schedule B hereto, of €500,000,000 aggregate principal amount of the Company’s 0.450% Notes due 2025 (the “Notes due 2025”) and €500,000,000 aggregate principal amount of the Company’s 1.300% Notes due 2031 (the “Notes due 2031” and, together with the Notes due 2025, the “Securities”). The Securities will be issued pursuant to a base indenture (the “Base Indenture”), dated as of October 23, 2015, among the Company, as issuer, the Guarantors party thereto, and Wells Fargo Bank, National Association, as trustee (the “Trustee”), as supplemented by a supplemental indenture (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), to be dated as of the Closing Time (as defined below), among the Company, as issuer, the Guarantors party thereto, the Trustee, U.S. Bank National Association, as transfer agent and registrar, and Elavon Financial Services DAC, UK Branch, as paying agent (the “Paying Agent”). In connection with the issuance of the Securities, the Company will enter into an agency agreement (the “Agency Agreement”), to be dated as of the Closing Time, between the Company and the Paying Agent. The 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 Underwriters propose to make a public offering of the Securities on the terms

 


 

and in the manner set forth herein as soon as the Representatives deem advisable after this Agreement has been executed and delivered.

 

The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (File No. 333-226426), which contains a base prospectus (the “Base Prospectus”), to be used in connection with the public offering and sale of the Securities.  Such registration statement, as amended, including the financial statements, exhibits and schedules thereto, at the time of effectiveness under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the “Securities Act”), including any required information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430A or 430B under the Securities Act, is called the “Registration Statement.”  The Base Prospectus, together with the preliminary prospectus supplement dated July 22, 2019 related to the Securities and as used prior to filing the Prospectus is referred to herein as the “Preliminary Prospectus.”  The term “Prospectus” shall mean the final prospectus supplement relating to the Securities, together with the Base Prospectus, that is first filed pursuant to Rule 424(b) under the Securities Act after the date and time that this Agreement is executed and delivered by the parties hereto.  Any reference herein to the Registration Statement, the Base Prospectus, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein; any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement.  All references in this Agreement to the Registration Statement, the Preliminary Prospectus, the Prospectus, or any amendments or supplements to any of the foregoing, shall include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System.

 

Section 1.                                           Representations and Warranties of the Company.  (a) Each of the Significant Guarantors, solely with respect to matters relative to it, and the Company represents and warrants to each Underwriter, as of the date hereof and as of the Closing Time, and agrees with each Underwriter as follows:

 

(i)                                     Compliance with Registration Requirements.  The Registration Statement has become effective under the Securities Act.  No order suspending the effectiveness of the Registration Statement or any part thereof has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or, to the knowledge of the Company, threatened by the Commission; each of the Registration Statement and any amendment thereto, as of the applicable effective date or dates, complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any 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

 

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statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Time, the Prospectus will not contain any 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 the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representation and warranty with respect to (A) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (B) any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by the Representatives expressly for use in the Registration Statement and the Prospectus and any amendment or supplement thereto, it being understood and agreed that the only such information consists of the information described as such in Section 7(b) hereof.

 

(ii)                                  Due Incorporation and Qualification.  Each of the Company and the Significant 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 Disclosure Package (as defined below) and the Prospectus, and is duly qualified to do business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify or be in good standing would not, individually or in the aggregate, have a material adverse effect on the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole.

 

(iii)                               Subsidiaries.  Each subsidiary of the Company which is a significant subsidiary as defined in Rule 405 of Regulation C of the Securities Act (each, a “Significant Subsidiary”) has been duly incorporated or formed, is validly existing as a corporation or other organization and is in good standing under the laws of the jurisdiction of its incorporation or organization, has the corporate or organizational power and authority to own, lease and operate its properties and to conduct its business as described in the Disclosure Package and the Prospectus and is duly qualified to do business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify or be in good standing would not, individually or in the aggregate, have a material adverse effect on the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole; and all of the issued and outstanding capital stock or other ownership interest of each Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, except for directors’ qualifying shares or other minimum share or interest ownership as may be required by local law (except as otherwise stated in the Disclosure Package and the Prospectus), is owned by the Company, directly or indirectly through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or adverse claim of any third party.

 

(iv)                              Disclosure Package.  The term “Disclosure Package” shall mean (A) the Preliminary Prospectus, as amended or supplemented, (B) the issuer free writing prospectuses as defined in Rule 433 under the Securities Act (each, an “Issuer Free Writing

 

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Prospectus”) identified in Schedule D hereto, (C) any other free writing prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package and (D) the Final Term Sheet (as defined below), in the form filed pursuant to Rule 433 under the Securities Act, which also is identified in Schedule D hereto.  As of 6:45 p.m. (London time) on the date of this Agreement (the “Applicable Time”), the Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.  The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by the Representatives specifically for use therein, it being understood and agreed that the only such information consists of the information described as such in Section 7(b) hereof.

 

(v)                                 Issuer Free Writing Prospectuses.  Neither any Issuer Free Writing Prospectus nor the Final Term Sheet, as of its issue date and at all subsequent times through the Closing Time or until any earlier date that the Company notified or notifies the Representatives as described in the next sentence, included, includes or will include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement as of such date and times, including any document incorporated by reference therein that has not been superseded or modified.  If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Company has promptly notified or will promptly notify the Representatives and has promptly amended or supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict.  The foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Representatives specifically for use therein, it being understood and agreed that the only such information consists of the information described as such in Section 7(b) hereof.

 

(vi)                              Distribution of Offering Material By the Company and the Significant Guarantors.  Each of the Company and the Significant Guarantors has not distributed and will not distribute, prior to the later of the Closing Time and the completion of the Underwriters’ distribution of the Securities and Securities Guarantees, any offering material in connection with the offering and sale of the Securities and Securities Guarantees other than the Registration Statement, the Preliminary Prospectus, the Prospectus, the Final Term Sheet, any Issuer Free Writing Prospectus included in Schedule D hereto and any other free writing prospectus that the parties hereto expressly agreed in writing to treat as part of the Disclosure Package.

 

(vii)                           Well-Known Seasoned Issuers.  (A) At the time of filing the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of

 

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Rule 163(c) of the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 of the Securities Act and (D) at the date of the execution and delivery of this Agreement (with such date being used as the determination date for purposes of this clause (D)), each of the Company and the Significant Guarantors was and is a “well-known seasoned issuer” as defined in Rule 405 of the Securities Act.  The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 of the Securities Act, and neither the Company nor any of the Significant Guarantors has received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form or has otherwise ceased to be eligible to use the automatic shelf registration statement form.

 

(viii)                        Not Ineligible Issuers.  (A) At the earliest time after the filing of the Registration Statement relating to the Securities that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Securities Act and (B) as of the date of the execution and delivery of this Agreement (with such date being used as the determination date for purposes of this clause (B)), none of the Company and the Significant Guarantors was or is an Ineligible Issuer (as defined in Rule 405 of the Securities Act), without taking account of any determination by the Commission pursuant to Rule 405 of the Securities Act that it is not necessary that any of the Company or the Significant Guarantors be considered an Ineligible Issuer.

 

(ix)                              Company Not Investment Company.  The Company is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package will not be required to register as, an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.

 

(x)                                 Internal Controls and Procedures.  The Company maintains effective “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) in compliance with the requirements of the Exchange Act.

 

(xi)                              No Material Weakness in Internal Controls.  Except as disclosed in the Disclosure Package and the Prospectus, including any document incorporated by reference therein, since the end of the Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

 

(xii)                           Incorporated Documents.  The documents incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act, and none of such documents contained any 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 the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus during the Prospectus

 

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Delivery Period (as defined in Section 4(a) below), when such documents are so filed with the Commission, will conform in all material respects to the applicable requirements of the Exchange Act and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

(xiii)                        Accountants.  Ernst & Young LLP, who have expressed their opinion on certain consolidated financial statements of the Company and its subsidiaries, is an independent registered public accounting firm with respect to the Company and its consolidated subsidiaries as required by the Securities Act and the Exchange Act.

 

(xiv)                       Financial Statements.  The consolidated financial statements and the related notes thereto of the Company included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly, in all material respects, the consolidated financial position of the Company and its subsidiaries as of the dates indicated, and its consolidated results of operations and change in cash flows for the periods specified; such financial statements have been prepared in conformity with accounting principles generally accepted in the United States applied on a consistent basis throughout the periods involved; and the other financial information included or incorporated by reference in the Disclosure Package and the Prospectus present fairly the information shown therein and have been compiled on a basis consistent with that of the audited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus.  The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus fairly presents in all material respects the information called for by, and has been prepared in all material respects in accordance with, the Commission’s rules and guidelines applicable thereto.

 

(xv)                          No Material Adverse Changes.  Except as stated in the Disclosure Package and the Prospectus, subsequent to the date of the latest audited financial statements included or incorporated by reference in the Disclosure Package and the Prospectus, there has been no material adverse change, or any development directly involving the Company that would reasonably be expected to result in a material adverse change, in the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole.

 

(xvi)                       No Violations or Defaults.  Neither the Company nor any of the Significant Guarantors is (a) in violation of its charter or bylaws; (b) in default of any term, covenant or condition contained in any indenture, contract, mortgage, loan agreement, note, lease or other instrument or agreement to which the Company or any Significant Guarantor is a party or binding upon the Company or any Significant Guarantor or their respective properties; or (c) in violation of any applicable law or regulation or any judgment or order of any court binding upon the Company or any Significant Guarantor, except in the case of each of clauses (b) and (c) above, for any such default or violation that would not reasonably be expected to have, individually or in the aggregate, a material

 

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adverse effect on the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole.

 

The execution and delivery of this Agreement, the Indenture, the Agency Agreement and the Securities and the consummation of the transactions contemplated herein and therein by the Company, and the execution and delivery of this Agreement, the Indenture and the Securities Guarantees and the consummation of the transactions contemplated herein and therein by each of the Significant Guarantors, have been duly authorized by all necessary corporate action.  This Agreement has been duly executed by the Company and by each of the Significant Guarantors.

 

The execution and delivery of this Agreement, the Indenture, the Agency Agreement and the Securities and the consummation of the transactions contemplated herein and therein by the Company, and the execution and delivery of this Agreement, the Indenture and the Securities Guarantees and the consummation of the transactions contemplated herein and therein by each of the Significant Guarantors:

 

(1)                           will not violate the charter or bylaws of the Company or any Significant Guarantor;

 

(2)                            will not result in a breach of or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any Significant Guarantor pursuant to, any indenture, contract, mortgage or other contract or instrument to which the Company or any Significant Guarantor is a party or by which any of their respective properties is bound, except for any breach, default, lien, charge or encumbrance that would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole; or

 

(3)                            will not result in the violation of any applicable law or regulation or any order, judgment or decree of any court or governmental agency binding upon the Company or any Significant Guarantor, except any such violations that would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole.

 

No consent, approval, authorization, order, registration or qualification of or with any court or governmental or regulatory authority is required to be obtained or made by the Company or any Significant Guarantor for the consummation by the Company and each of the Significant Guarantors of the transactions contemplated by this Agreement, the Indenture, the Agency Agreement, the Securities or the Securities Guarantees, except for the registration of the Securities and Securities Guarantees under the Securities Act, the qualification of the Indenture under the Trust Indenture Act (such registration and qualification having been completed prior to the date of this Agreement), such consents, approvals, authorizations, orders, registrations and qualifications under applicable securities or Blue Sky laws of the states and other jurisdictions of the United States, such

 

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approvals or authorizations as may be required in connection with the listing of the Securities on the New York Stock Exchange (the “NYSE”) and such consents, approvals, authorizations, orders, registrations and qualifications the failure of which to obtain or make would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on (1) the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole or (2) the ability of the Company or any Significant Guarantor to perform its respective obligations under this Agreement, the Indenture, the Securities or the Securities Guarantees.

 

(xvii)                    Legal Proceedings; Contracts.  Except for matters described in the Disclosure Package and the Prospectus, there is no pending or, to the knowledge of any financial officer or the Executive Vice President and General Counsel of the Company, threatened action or proceeding against the Company or any Significant Guarantor before any court or administrative agency which individually (or in the aggregate in the case of any group of related lawsuits) is expected by the Company to have a material adverse effect on (a) the financial condition of the Company and its consolidated subsidiaries taken as a whole or (b) the ability of the Company and the Significant Guarantors to perform their respective obligations under this Agreement, the Indenture, the Securities or the Securities Guarantees.

 

(xviii)                 Licenses and Permits.  Each of the Company and the Significant 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 business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole.

 

(xix)                       Enforceability.  The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized by the Company and the Significant Guarantors, and the Base Indenture constitutes, and when the Supplemental Indenture is duly executed and delivered by the Company and the Significant Guarantors and the other parties thereto, the Indenture will constitute, a valid and binding agreement of the Company and the Significant Guarantors, enforceable against the Company and the Significant Guarantors in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors’ rights generally or by general equity principles, regardless of whether considered in a proceeding of law or in equity.

 

(xx)                          Validity of the Securities and the Securities Guarantees.  The Securities have been duly authorized by the Company and the Securities Guarantees have been duly authorized by the Significant Guarantors, and when the 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, issued and delivered pursuant to the provisions of the Indenture, the Securities and the Securities Guarantees will constitute valid and legally binding obligations of the Company and the Significant Guarantors, respectively, entitled to the benefits provided by such Indenture and enforceable against the Company and the

 

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Significant Guarantors, respectively, in accordance with their respective terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors’ rights generally or by general equity principles, regardless of whether considered in a proceeding of law or in equity.

 

(xxi)                       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.

 

(xxii)                    Cyber Security; Data Protection.  The Company has taken all commercially reasonable actions to protect and maintain the security, integrity and continuous operation of the information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications and databases used in connection with its business (and the data stored therein or processed thereby), and, except as disclosed in the Disclosure Package and the Prospectus, including any document incorporated by reference therein, there have been no breaches, violations, outages or unauthorized uses of or accesses to same, other than those which, individually or in the aggregate, did not, or are not expected to, have a material adverse effect on the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole; and the Company is in compliance with all currently applicable (and has taken all commercially reasonable actions to prepare to comply with all pending) laws and regulations and all orders, judgments or decrees of any court or governmental agency and its own posted policies and contractual obligations relating to data privacy and security, other than those which, individually or in the aggregate, did not, or are not expected to, have a material adverse effect on the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole.

 

(b)                                 Additional Certifications.  Any certificate signed by an officer of the Company or any Significant Guarantor and delivered to you or your counsel pursuant to the terms of this Agreement in connection with the offering of the Securities contemplated hereby shall be deemed a representation and warranty by the Company or such Significant Guarantor, as applicable, to each Underwriter participating in such offering as to the matters covered thereby on the date of such certificate unless amended or supplemented subsequent thereto.

 

Section 2.  Sale and Delivery to Underwriters; Closing.  (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 Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price specified in Schedule C hereto, the amount of Securities set forth opposite the name of such Underwriter in Schedule B plus any additional principal amount of Securities such Underwriter may become obligated to purchase pursuant to the provisions of Section 11 hereof.  The Company will not be obligated to deliver any of the Securities except upon payment for all the Securities to be purchased as provided herein.  It is understood that you propose to offer the Securities for sale as set forth in the Disclosure Package and the Prospectus.

 

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(b)                                 The closing of the purchase of the Securities by the Underwriters shall occur 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 Representatives and the Company, at 9:30 a.m. (London time) on the tenth 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 Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”).

 

(c)                                  Payment for the Securities shall be made by the Representatives on behalf of the Underwriters in immediately available funds to Elavon Financial Services Limited, UK Branch, as common depositary (the “Common Depositary”) for Clearstream Banking, société anonyme (“Clearstream”) and Euroclear Bank S.A./N.V. (“Euroclear”) against delivery to the Common Depositary, for the respective accounts of the Underwriters, of one or more global notes representing the Securities to be purchased by them (collectively, the “Global Notes”), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Company. The Global Notes will be made available for inspection by the Underwriters not later than 1:00 p.m. (New York City time) on the business day prior to the Closing Time. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Securities which it has agreed to purchase.  Each of BNP Paribas, Deutsche Bank AG, London Branch, J.P. Morgan Securities plc and Wells Fargo Securities International Limited, individually and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Securities to be purchased by any Underwriter whose funds have not been received by the Closing Time, but such payment shall not relieve such Underwriter from its obligations hereunder.

 

Section 3.  No Advisory or Fiduciary Responsibility.  Each of the Company and the Significant Guarantors acknowledges and agrees that: (i) the purchase and sale of the Securities and Securities Guarantees pursuant to this Agreement, including the determination of the public offering price of the Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company and the Guarantors, on the one hand, and the several Underwriters, on the other hand, and the Company and the Guarantors are capable of evaluating and understanding and understand and accept the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in connection with each transaction contemplated hereby and the process leading to such transaction, each Underwriter is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary of the Company, the Guarantors or their respective affiliates, stockholders, creditors or employees or any other party; (iii) no Underwriter has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Company or the Guarantors with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or the Guarantors on other matters) and neither the Company nor the Guarantors shall make any claim relating thereto; (iv) no Underwriter has any obligation to the Company or the Guarantors with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement; (v) the several Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company and the Guarantors and that the several Underwriters have no obligation pursuant to this Agreement to disclose any of such interests by virtue of any advisory, agency or

 

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fiduciary relationship in connection with the transactions contemplated hereby; and (vi) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company and the Guarantors have consulted their own legal, accounting, regulatory and tax advisors to the extent they deemed appropriate.

 

Section 4.  Covenants of the Company and the Significant Guarantors.  The Company and, to the extent specified below, each of the Significant Guarantors covenants with each Underwriter participating in the offering as follows:

 

(a)                                 Representatives’ Review of Proposed Amendments and Supplements.  During the period beginning on the Applicable Time and ending on the later of the Closing Time or such date, as in the opinion of counsel for the Underwriters and communicated in writing to the Company, the Prospectus is no longer required by law to be delivered in connection with sales by an Underwriter or dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Securities Act (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement, the Disclosure Package or the Prospectus (including any amendment or supplement through incorporation by reference of any report filed under the Exchange Act), the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not file or use any such proposed amendment or supplement to which the Representatives reasonably object (unless such filing or use is necessary to comply with law).

 

(b)                                 Amendments and Supplements to the Registration Statement, Prospectus and Other Securities Act Matters.  If, during the Prospectus Delivery Period, any event or development shall occur or condition exist as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Disclosure Package or the Prospectus, or to file under the Exchange Act any document to be incorporated by reference in the Disclosure Package or the Prospectus, in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if in the opinion of counsel for the Representatives it is otherwise necessary to amend or supplement the Registration Statement, the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, or to file a new registration statement containing the Prospectus, in order to comply with law, including in connection with the delivery of the Prospectus, the Company agrees to (i) notify the Representatives of any such event or condition and (ii) promptly prepare (subject to Section 4(a) and 4(d) hereof), file with the Commission (and use its reasonable best efforts to have any amendment to the Registration Statement or any new registration statement to be declared effective) and furnish at its own expense to the Underwriters and to dealers, amendments or supplements to the Registration Statement, the Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements in the Disclosure Package or the Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, not misleading or so that the Registration Statement, the Disclosure Package or the Prospectus, as amended or supplemented, will comply with law.

 

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(c)                                  Final Term Sheet.  The Company will prepare a final term sheet for the Notes due 2025 and the Notes due 2031 containing only a description of the applicable Securities, in a form approved by the Representatives, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (the “Final Term Sheet”).

 

(d)                                 Permitted Free Writing Prospectuses.  The Company represents that it has not made, and agrees that, unless it obtains the prior written consent of the Representatives, it will not make, any offer relating to the Securities that would constitute a “free writing prospectus” (as defined in Rule 405 of the Securities Act) required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act; provided, that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule D hereto.  Any such free writing prospectus consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.”  The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.  Each of the Company and the Significant Guarantors consents to the use by any Underwriter of a free writing prospectus that (a) is not an “issuer free writing prospectus” as defined in Rule 433, and (b) contains only (i) information describing the preliminary terms of the Securities or their offering, (ii) information permitted by Rule 134 under the Securities Act or (iii) information that describes the final terms of the Securities or their offering and that is included in the Final Term Sheet of the Company contemplated in Section 4(c) hereof.  The Company will furnish to each Underwriter, without charge, during the Prospectus Delivery Period, such number of copies of any Permitted Free Writing Prospectus (as amended or supplemented) as such Underwriter may reasonably request.

 

(e)                                  Notice of Inability to Use Automatic Shelf Registration Statement Form.  If at any time when the Company has been notified the Securities remain unsold by the Underwriters the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representatives, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness.  The Company will take all other reasonable action necessary or appropriate to permit the public offering and sale of the Securities and Securities Guarantees to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible.  References herein to the Registration Statement shall include such new registration statement or post-effective amendment, as the case may be.

 

(f)                                   Filing Fees.  The Company agrees to pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act.

 

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(g)                                  Blue Sky Qualifications.  The Company and the Significant Guarantors will endeavor, in cooperation with you, to qualify the Securities for offering and sale under, or obtain exemptions from, the applicable securities laws of such states and other jurisdictions of the United States as the Underwriters may reasonably request, and will maintain such qualifications in effect for so long as may be required for the distribution of the Securities; provided, that neither the Company nor the Significant Guarantors shall be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer, or to subject itself to taxation as doing business in any jurisdiction in which it is not otherwise required to be so qualified or subject to taxation.

 

(h)                                 Stand-Off Agreement.  The Company and the Significant Guarantors 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 unsecured debt securities of the Company (other than the Securities which are to be sold pursuant hereto, commercial paper issued in the ordinary course of business and unsecured U.S. dollar-denominated debt securities up to an aggregate principal amount of $1,000,000,000).

 

(i)                                     Earnings Statement.  The Company will make generally available to its securityholders as soon as practicable, but in any event not later than 16 months after the date hereof, an earnings statement covering a period of at least 12 months beginning with the first fiscal quarter of the Company occurring after the “Effective Date” (as defined in Rule 158 of the Securities Act) of the Registration Statement and otherwise satisfying Section 11(a) of the Securities Act and Rule 158 of the Securities Act.

 

(j)                                    No Stabilization.  The Company and the Significant Guarantors will not take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.

 

(k)                                 Clearance and Settlement.  The Company will cooperate with the Representatives and use its reasonable best efforts in arranging for the Securities to be eligible for clearance and settlement through Clearstream and Euroclear and to maintain such eligibility for so long as the Securities remain outstanding.

 

(l)                                     Exchange Listing.  The Company will use its reasonable best efforts to list, subject to the notice of issuance if applicable, the Securities on the NYSE.

 

Section 5.  Payment of Expenses.

 

(a)                                 The Company will pay all expenses incident to the performance of its obligations under this Agreement, including:

 

(i)                                     the preparation and filing of the Registration Statement (including financial statements and exhibits), the Preliminary Prospectus, the Prospectus, and any Issuer Free Writing Prospectuses, each as originally filed and of each amendment and supplement thereto;

 

(ii)                                  the preparation, issuance and delivery of certificates for the Securities;

 

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(iii)                               the reasonable fees and disbursements of the Company’s accountants and counsel, of the Trustee and its counsel, of the Paying Agent and its counsel, and of any registrar and authenticating agent;

 

(iv)                              the qualification of the Securities under securities laws in accordance with the provisions of Section 4(g) hereof, including filing fees and the reasonable fees and disbursements of counsel to the Underwriters in connection therewith and in connection with the preparation of any Blue Sky Survey;

 

(v)                                 the printing and delivery to the Underwriters in quantities as may be reasonably requested of copies of the Preliminary Prospectus, the Final Term Sheet and the Prospectus and any amendments or supplements thereto;

 

(vi)                              the preparation and delivery to the Underwriters of copies of this Agreement and the Indenture;

 

(vii)                           any fees charged by rating agencies for the rating of the Securities;

 

(viii)                        all expenses and application fees related to the listing of the Securities on the NYSE; and

 

(ix)                              all expenses and application fees in connection with the approval of the Securities for eligibility for clearance and settlement through Clearstream and Euroclear.

 

(b)                                 If this Agreement is terminated by the Underwriters in accordance with the provisions of Section 6 (other than the provisions of Section 6(c)(v)) or clause (i) of Section 10 hereof, the Company shall reimburse upon demand the Underwriters for all of their documented out-of-pocket expenses, including the fees and disbursements of counsel for the Underwriters, that shall have been reasonably incurred by them in connection with the proposed purchase and sale of the Securities and Securities Guarantees.

 

(c)                                  Each Underwriter agrees to pay the portion of such expenses represented by such Underwriter’s pro rata share (based on the proportion that the principal amount of Securities set forth opposite each Underwriter’s name in Schedule B bears to the aggregate principal amount of Securities set forth opposite the names of all Underwriters) of the Securities (with respect to each Underwriter, the “Pro Rata Expenses”). Notwithstanding anything contained in the International Capital Market Association Primary Market Handbook, each Underwriter hereby agrees that the Settlement Lead Manager (as defined below) may allocate the Pro Rata Expenses to the account of such Underwriter for settlement of accounts (including payment of such Underwriter’s fees by the Settlement Lead Manager) as soon as practicable but in any case no later than 90 days following the Closing Date.

 

Section 6.  Conditions of Underwriters’ Obligations.  The several obligations of the Underwriters to purchase the 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 Significant Guarantors herein as of the date hereof and as of the Closing Time, to the accuracy of the statements of the officers of the Company or of any of the Significant Guarantors made in any

 

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certificate furnished pursuant to the provisions hereof as of the Closing Time, to the performance and observance in all material respects by the Company and the Significant 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)                                 Compliance with Filing Requirements; No Stop Order.  For the period from and after the date hereof and prior to the Closing Time:

 

(i)                                     the Company shall have timely filed the Preliminary Prospectus and the Prospectus (including the information required by Rule 430B under the Securities Act) with the Commission in the manner and within the time period required by the Securities Act; or, in the case of the Prospectus, the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective;

 

(ii)                                  the Final Term Sheet, each other Issuer Free Writing Prospectus, if any, and any other material required to be filed by the Company pursuant to Rule 433 under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings under such Rule 433; and

 

(iii)                               no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall have been instituted or threatened by the Commission, and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form.

 

(b)                                 No Ratings Change.  At the Closing Time, the rating assigned as of the Applicable Time by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act, to any debt securities of the Company (including for purposes of this Section 6(b) 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 Securities) shall not have been lowered since the Applicable Time nor shall any such rating organization have publicly announced since the Applicable Time that it has placed any debt securities of the Company on what is commonly termed a “watch list” for possible downgrading.

 

(c)                                  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 Mark R. Allen, Esq., Executive Vice President, General Counsel and Secretary of the Company, dated as of the date of the Closing Time, to the effect as set forth in Exhibit A.

 

(ii)                                  Opinion of the Managing Director — Employment Law and Assistant Secretary of FedEx Freight, Inc.  The opinion of Christina R. Conrad, Managing Director — Employment Law and Assistant Secretary of FedEx Freight, Inc., dated as of the date of the Closing Time, to the effect as set forth in Exhibit B.

 

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(iii)                               Opinion of the Senior Vice President and General Counsel of FedEx Office and Print Services, Inc.  The opinion of Kimble H. Scott, Esq., Senior Vice President and General Counsel of FedEx Office and Print Services, Inc., dated as of the date of the Closing Time, to the effect as set forth in Exhibit C.

 

(iv)                              Opinion of Davis Polk & Wardwell LLP.  The opinion of Davis Polk & Wardwell LLP, special counsel to the Company, dated as of the date of the Closing Time, to the effect as set forth in Exhibit D.

 

(v)                                 Opinion of Simpson Thacher & Bartlett LLP.  The opinion of Simpson Thacher & Bartlett LLP, counsel to the Underwriters, dated as of the date of the Closing Time, with respect to such matters as the Underwriters may reasonably request.

 

(d)                                 Officers’ Certificate.  At the Closing Time, there shall not have been, since the respective dates as of which information is given in the Disclosure Package and the Prospectus, any material adverse change in the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole; and you shall have received a certificate of the President or any Vice President of the Company and of each Significant Guarantor, dated as of the date 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 of the Company or such Significant Guarantor contained in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, except to the extent that such representations and warranties expressly relate to an earlier date or later date (in which case such representations and warranties are true and correct on and as of such earlier date or will be true and correct on and as of such later date, as the case may be), (iii) that the Company or such Significant Guarantor, as the case may be, has complied in all material respects with all agreements and satisfied all conditions on their respective parts to be performed or satisfied at or prior to the Closing Time and (iv) no order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened by the Commission.  The officer signing and delivering each such certificate may rely upon the best of his or her knowledge as to the proceedings threatened.

 

(e)                                  Accountants’ Comfort Letter.  At the time of the execution of this Agreement, the Representatives shall have received from Ernst & Young LLP a letter dated such date, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated in the Registration Statement, Disclosure Package and the Prospectus.

 

(f)                                   Bring-down Comfort Letter.  At the Closing Time, the Representatives shall have received from Ernst & Young LLP a letter, dated as of the date of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to therein for the carrying out of procedures shall be a date not more than three business days prior to the Closing Time.

 

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(g)                                  Other Documents.  At the Closing Time, counsel for the Underwriters shall have been furnished with such opinions and documents (including, without limitation, evidence of good standing in relevant jurisdictions), as such counsel may reasonably require for the purpose of enabling such counsel to pass upon the issuance and sale of Securities and the Securities Guarantees 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.

 

(h)                                 Clearance and Settlement.  The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.

 

(i)                                     Agency Agreement.  The Representatives shall have received an executed copy of the Agency Agreement.

 

If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled in accordance with this Agreement, this Agreement may be terminated by the Underwriters 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 5 hereof.

 

Section 7.  Indemnification.

 

(a)                                 Indemnification of the Underwriters.  Each of the Company and the Significant Guarantors, jointly and severally, agrees to indemnify and hold harmless each Underwriter, its affiliates, its directors, officers and each person, if any, who controls any Underwriter within the meaning of the Securities Act and the Exchange Act against any loss, claim, damage, liability or reasonable expense, as incurred, to which such Underwriter or such controlling person may become subject, insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B under the Securities Act, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, the Preliminary Prospectus, each Issuer Free Writing Prospectus listed on Schedule D hereto, any other free writing prospectus that the parties hereto agree in writing to treat as part of the Disclosure Package, the Final Term Sheet or the Prospectus (or any amendment or supplement thereto) or any road show in connection with the marketing of the Securities, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and to reimburse each Underwriter, its affiliates, officers, directors and each such controlling person for any and all expenses (including the fees and disbursements of counsel chosen by the Representatives) as such expenses are reasonably incurred by such Underwriter, or its affiliates, officers, directors or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent,

 

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arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company and the Significant Guarantors by the Representatives expressly for use in the Registration Statement, the Base Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) or any road show in connection with the marketing of the Securities, it being understood and agreed that the only such information consists of the information described as such in Section 7(b) hereof.  The indemnification agreement set forth in this Section 7(a) shall be in addition to any liabilities that the Company and the Significant Guarantors may otherwise have.

 

(b)                                 Indemnification of the Company, its Directors and Officers and the Guarantors.  Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Significant Guarantors, each of their respective directors, each of their respective officers who signed the Registration Statement and each person, if any, who controls the Company or any Significant Guarantor within the meaning of the Securities Act or the Exchange Act, against any loss, claim, damage, liability or reasonable expense, as incurred, to which the Company, each Significant Guarantor or any such director, officer or controlling person may become subject, insofar as such loss, claim, damage, liability or reasonable expense (or actions in respect thereof as contemplated below) arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, 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 not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) or any road show in connection with the marketing of the Securities, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, and only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) or any road show in connection with the marketing of the Securities, in reliance upon and in conformity with written information furnished to the Company and the Significant Guarantors by the Representatives expressly for use therein it being understood and agreed that the only such information consists of the information described as such in this Section 7(b); and to reimburse the Company, each Significant Guarantor or any such director, officer or controlling person for any legal and other expense reasonably incurred by the Company, each Significant Guarantor or any such director, officer or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action.  Each of the Company and the Significant Guarantors hereby acknowledges that the only information that the Underwriters have furnished to the Company and the Significant Guarantors expressly for use in the Registration Statement, the Disclosure Package or the Prospectus (or any amendment or supplement thereto) or any road show in connection with the marketing of the Securities is as follows: the statements set forth in the third (first, second and third sentences only), fifth (sixth sentence only), sixth and seventh paragraphs under the caption “Underwriting.”  The indemnification agreement set forth in this Section 7(b) shall be in addition to any liabilities that such Underwriter may otherwise have.

 

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(c)                                  Notifications and Other Indemnification Procedures.  Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party under this Section 7, notify the indemnifying party in writing of the commencement thereof; but the failure to so notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any liability other than the indemnification obligation provided in paragraph (a) or (b) above.  In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party, and the indemnified party shall have reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties.  Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying party’s election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 7 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (other than local counsel), representing all the indemnified parties who are parties to such action), (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action, in each of which cases the reasonable fees and expenses of counsel shall be at the expense of the indemnifying party or (iii) the indemnified party and the indemnifying party shall otherwise agree.

 

(d)                                 Settlements. The indemnifying party under this Section 7 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 party agrees to indemnify the indemnified party against any loss, claim, damage, liability or reasonable expense by reason of such settlement or judgment.  Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by Section 7(c) hereof, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such

 

19


 

settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement.  No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity was or could have been sought hereunder by such indemnified party, unless such settlement, compromise or consent (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.

 

Section 8.  Contribution.  If the indemnification provided for in Section 7 hereof is for any reason unavailable to or otherwise insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party as provided in Section 7, contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Significant Guarantors, on the one hand, and the Underwriters, on the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Significant Guarantors, on the one hand, and the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations.  The relative benefits received by the Company and the Significant Guarantors, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company, and the total underwriting discount received by the Underwriters, in each case as set forth on the front cover page of the Prospectus, bear to the aggregate initial public offering price of the Securities as set forth on such cover.  The relative fault of the Company and the Significant Guarantors, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the Significant Guarantors, on the one hand, or the Underwriters, on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

 

The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 7(c) hereof, any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim.  The Company, the Significant Guarantors and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 8 were determined by pro rata allocation (even if the

 

20


 

Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 8.

 

Notwithstanding the provisions of this Section 8, no Underwriter shall be required to contribute any amount in excess of the underwriting discounts received by such Underwriter in connection with the Securities underwritten by it and distributed to the public.  No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.  The Underwriters’ obligations to contribute pursuant to this Section 8 are several, and not joint, in proportion to their respective underwriting commitments as set forth opposite their names in Schedule B hereto.  For purposes of this Section 8, each affiliate, director and officer of an Underwriter and each person, if any, who controls an Underwriter within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as such Underwriter, and each director of the Company and of each Significant Guarantor, each officer of the Company and of each Significant Guarantor who signed the Registration Statement and each person, if any, who controls the Company or any Significant Guarantor within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as the Company or such Significant Guarantor.

 

The remedies provided for in Sections 7 and 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.

 

Section 9.  Representations, Warranties, Indemnities and Agreements to Survive Delivery.  All representations, warranties, indemnities and other agreements contained in this Agreement, or contained in certificates of officers of the Company or any Significant Guarantor submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or controlling person, or by or on behalf of the Company or any Significant Guarantor, and shall survive each delivery of and payment for any of the Securities.

 

Section 10.  Termination of Agreement.  The Representatives 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 Disclosure Package and the Prospectus, any material adverse change in the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole, (ii) there shall have occurred any material adverse change in the financial markets in the United States or the European Union or any outbreak or escalation of hostilities or other national or international calamity or crisis, the effect of which would, in your judgment, materially and adversely affect the ability of the Underwriters to market the Securities on the terms and in the manner contemplated by this Agreement, (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 the NYSE 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 said exchange or by order of the Commission or any other governmental authority or (iv) if a banking moratorium shall have been declared by federal, New York or European authorities.

 

21


 

In the event of any termination of this Agreement pursuant to this Section 10, the provisions of Section 5 hereof, the indemnity and contribution agreements set forth in Sections 7 and 8 hereof and the provisions of Sections 9 and 15 hereof shall remain in effect.

 

Section 11.  Default by One or More Underwriters.  If any Underwriter shall fail at the Closing Time to purchase the 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 Securities to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the amount of the Securities set forth opposite their respective names in Schedule B hereto bears to the aggregate amount of Securities set forth opposite the names of all such non-defaulting Underwriters to purchase the Defaulted Securities; provided, that in no event shall the amount of Defaulted Securities that any Underwriter has agreed to purchase pursuant to this Agreement be increased by an amount in excess of one-tenth of such amount of Securities without the written consent of such Underwriter.  If the aggregate amount of Defaulted Securities is more than one-tenth of the aggregate amount of the Securities to be purchased at the Closing Time, and arrangements satisfactory to the Underwriters and the Company for the purchase of such Defaulted Securities are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriters or the Company.

 

No action taken pursuant to this Section shall relieve a defaulting Underwriter from liability in respect of its default under this Agreement.

 

In the event of any such default which does not result in a termination of this Agreement, either the non-defaulting Underwriters or the Company shall have the right to postpone the Closing Time for a period not exceeding seven days in order to effect any required changes in the Prospectus or in any other documents or arrangements.

 

For the avoidance of doubt, to the extent an Underwriter’s obligation to purchase Securities hereunder constitutes a BRRD Liability (as defined below) and such Underwriter does not, at the Closing Time, purchase the full amount of the Securities that it has agreed to purchase hereunder due to the exercise by the Relevant Resolution Authority (as defined below) of its powers under the relevant Bail-in Legislation as set forth in Section 18 below with respect to such BRRD Liability, such Underwriter shall be deemed, for all purposes of this Section 11, to have defaulted on its obligation to purchase such Securities that it has agreed to purchase hereunder but has not purchased, and this Section 11 shall remain in full force and effect with respect to the obligations of the other Underwriters.

 

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 FedEx Express service or transmitted by any facsimile communication.  Notices to the Underwriters shall be directed to BNP Paribas at 10 Harewood Avenue, London NW1 6AA, United Kingdom, Attention: Fixed Income Syndicate, facsimile: +44(0)20 7595 2555; Deutsche Bank AG, London Branch, Winchester House, 1 Great Winchester Street, London EC2N2DB; J.P. Morgan Securities plc, 25 Bank Street, Canary Wharf, London E14 5JP, United Kingdom, facsimile: +44(0)20 3493 0682, Attention: Head of Debt Syndicate and Head of EMEA Debt Capital Markets Group; and Wells Fargo Securities International Limited, 33 King William Street, London EC4R 9AT,

 

22


 

United Kingdom, phone: +44(0)20 3942 8530, facsimile: +44(0)207 149 8391, Attention: DCM & Syndicate.  Notices to the Company shall be directed to it at 942 South Shady Grove Road, Memphis, Tennessee 38120 (if by mail or FedEx Express service), Attention: Corporate Vice President and Treasurer, facsimile: (901) 818-7248 with copies thereof directed to the Legal Department of the Company at 942 South Shady Grove Road, Memphis, Tennessee 38120 (if by mail or FedEx Express Service), Attention: Corporate Vice President—Securities and Corporate Law, facsimile: (901) 492-7286.

 

Section 13.  Patriot Act.  In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.

 

Section 14.  Parties.  This Agreement shall inure to the benefit of and be binding upon the Company, the Significant Guarantors and any Underwriter who becomes a party hereto and their respective successors.  Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the parties hereto and their respective successors and the controlling persons and officers and directors referred to in Sections 7 and 8 hereof 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 Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.

 

Section 15.  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 Significant Guarantor against any Underwriter or, any suit action or proceeding brought by any Underwriter against the Company or any Significant 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.

 

Section 16.  Judgment Currency.  If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency other than United States dollars, the parties hereto agree, to the fullest extent permitted by law, that the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Underwriters could purchase United States dollars with such other currency in The City of New York on the business day preceding that on which final judgment is given. The obligation of the Company with respect to any sum due from it to any Underwriter or any person controlling any Underwriter shall, notwithstanding any judgment in a currency other than United States dollars, not be discharged until the first business day following receipt by such Underwriter or controlling person of such Underwriter of any sum in such other currency, and only to the extent that such Underwriter or

 

23


 

controlling person of such Underwriter may in accordance with normal banking procedures purchase United States dollars with such other currency. If the United States dollars so purchased are less than the sum originally due to such Underwriter or controlling person of such Underwriter hereunder, the Company agrees, as a separate obligation and notwithstanding any such judgment, to indemnify such Underwriter or controlling person of such Underwriter against such loss. If the United States dollars so purchased are greater than the sum originally due to such Underwriter or controlling person of such Underwriter hereunder, such Underwriter or controlling person of such Underwriter agrees to pay to the Company an amount equal to the excess of the dollars so purchased over the sum originally due to such Underwriter or controlling person of such Underwriter hereunder. Any amounts payable by the Company or any Underwriter under this Section 16 shall be paid to the applicable Underwriter(s) or the Company (as applicable) as promptly as reasonably practicable.

 

Section 17.  Agreement Among Underwriters.  The Underwriters agree as between themselves that they will be bound by and will comply with the International Capital Markets Association Agreement Among Managers Version 1/New York Law Schedule (the “Agreement Among Managers”) as amended in the manner set out below. For purposes of the Agreement Among Managers, “Managers” means the Underwriters, “Lead Manager” means the Representatives, “Settlement Lead Manager” means Deutsche Bank AG, London Branch, “Stabilizing Manager” means Deutsche Bank AG, London Branch, and “Subscription Agreement” means this Agreement. Clause 3 of the Agreement Among Managers shall be deleted in its entirety and replaced with Section 11 of this Agreement.

 

Section 18.  Contractual Recognition of Bail-In.

 

(a)                                 Each of the parties to this Agreement acknowledges, accepts, and agrees that liabilities arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority and acknowledges, accepts and agrees to be bound by:

 

(i)                                     the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of the Underwriters to each of the Company and the Significant Guarantors under this Agreement, which (without limitation) may include and result in any of the following or some combination thereof: (w) the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon; (x) the conversion of all, or a portion, of the BRRD Liability into shares, other securities or other obligations of the Underwriters or another person (and the issue to or conferral on each of the Company and the Significant Guarantors of such shares, securities or obligations); (y) the cancellation of the BRRD Liability; and/or (z) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and

 

(ii)                                  the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority.

 

(b)                                 Each of the parties to this Agreement acknowledges and accepts that this provision is exhaustive on the matters described herein to the exclusion of any other term of this Agreement

 

24


 

or any other agreements, arrangements, or understandings between the parties hereto, relating to the subject matter of this Agreement.

 

(c)                                  As used in this Section 18,

 

Bail-in Legislation” means in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time.

 

Bail-in Powers” means any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule in relation to the relevant Bail-in Legislation.

 

BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.

 

BRRD Liability” has the same meaning as in such laws, regulations, rules or requirements implementing the BRRD under the applicable Bail-in Legislation.

 

EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com/pages.aspx?p=499.

 

Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to the Underwriters.

 

Section 19.  Recognition of U.S. Special Resolution Regimes.

 

(a)                                 In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.

 

(b)                                 In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.

 

BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).

 

Covered Entity” means any of the following:

 

25


 

(i)                         a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);

 

(ii)                      a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or

 

(iii)                   a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

 

Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

 

U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

 

Section 20.  Co-Manufacturer Acknowledgement.  Solely for the purposes of the requirements of Article 9(8) of the MIFID Product Governance rules under EU Delegated Directive 2017/593 (the “Product Governance Rules”) regarding the mutual responsibilities of manufacturers under the Product Governance Rules:

 

(a)                                 each of BNP Paribas, Deutsche Bank AG, London Branch, J.P. Morgan Securities plc and Wells Fargo Securities International Limited (each a “Manufacturer” and together the “Manufacturers”) acknowledges to each other Manufacturer that it understands the responsibilities conferred upon it under the Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Securities and the related information set out in the Prospectus and announcements in connection with the Securities; and

 

(b)                                 the other Underwriters, the Company and the Guarantors note the application of the Product Governance Rules and acknowledge the target market and distribution channels identified as applying to the Securities by the Manufacturers and the related information set out in the Prospectus and announcements in connection with the Securities.

 

Section 21.  Stabilization.  The Company hereby authorizes the Stabilizing Manager to make adequate public disclosure regarding stabilization of the information required in relation to such stabilization by Regulation (EU) 596/2014. The Stabilizing Manager for its own account may, to the extent permitted by applicable laws and directives, over-allot and effect transactions with a view to supporting the market price of the Securities at a level higher than that which might otherwise prevail, but in doing so the Stabilizing Manager shall act as principal and not as agent of the Company and any loss resulting from overallotment and stabilization shall be borne, and any profit arising therefrom shall be beneficially retained, by the Stabilizing Manager. However, there is no assurance that the Stabilizing Manager (or persons acting on behalf of the Stabilizing Manager) will undertake any stabilization action. Nothing contained in this paragraph shall be construed so as to require the Company to issue in excess of the aggregate principal amount of Securities specified in Schedule B hereto. Such stabilization, if commenced, may be discontinued at any time and shall be conducted by the Stabilizing Manager in accordance with all applicable laws and directives.

 

26


 

Section 22.  Headings.  The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement.

 

Section 23.  Counterparts.  This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

 

Section 24.  Effect on Prior Agreements and Understandings.  This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company, the Guarantors and the several Underwriters, or any of them, with respect to the subject matter hereof.

 

27


 

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 Significant Guarantors in accordance with its terms.

 

 

Very truly yours,

 

 

 

 

 

FEDEX CORPORATION

 

 

 

 

 

 

By:

/s/ Michael C. Lenz

 

 

 

Name:

Michael C. Lenz

 

 

 

Title:

Corporate Vice President and Treasurer

 

[CONTINUED]

 

[Signature Page to Underwriting Agreement]

 


 

 

FEDERAL EXPRESS CORPORATION

 

 

 

 

 

 

 

 

By:

/s/ Elise L. Jordan

 

 

 

Name:

Elise L. Jordan

 

 

 

Title:

Executive Vice President and Chief Financial Officer

 

 

 

FEDEX GROUND PACKAGE SYSTEM, INC.

 

 

 

 

 

 

 

 

By:

/s/ Robert D. Henning

 

 

 

Name:

Robert D. Henning

 

 

 

Title:

Executive Vice President and Chief Financial Officer

 

 

 

FEDEX FREIGHT CORPORATION

 

 

 

 

 

 

 

 

By:

/s/ Matthew L. Rittenhour

 

 

 

Name:

Matthew L. Rittenhour

 

 

 

Title:

Senior Vice President — Finance and Chief Financial Officer

 

 

 

FEDEX FREIGHT, INC.

 

 

 

 

 

 

 

 

By:

/s/ Matthew L. Rittenhour

 

 

 

Name:

Matthew L. Rittenhour

 

 

 

Title:

Senior Vice President — Finance and Chief Financial Officer

 

 

 

FEDEX OFFICE AND PRINT SERVICES, INC.

 

 

 

 

 

 

By:

/s/ Leslie M. Benners

 

 

 

Name:

Leslie M. Benners

 

 

 

Title:

Senior Vice President and Chief Financial Officer

 

[Signature Page to Underwriting Agreement]

 


 

CONFIRMED AND ACCEPTED, as of the date first above written:

 

 

 

BNP PARIBAS

 

 

 

 

By:

/s/ Benedict Foster

 

 

Name: Benedict Foster

 

 

Title: Authorised Signatory

 

 

 

 

 

 

By:

/s/ Heike Kruger

 

 

Name: Heike Kruger

 

 

Title: Authorised Signatory

 

 

 

 

 

DEUTSCHE BANK AG, LONDON BRANCH

 

 

 

 

 

 

By:

/s/ Ritu Ketkar

 

 

Name: Ritu Ketkar

 

 

Title: Managing Director

 

 

 

 

 

 

By:

/s/ Lourdes Fischer

 

 

Name: Lourdes Fischer

 

 

Title: Managing Director

 

 

 

 

 

J.P. MORGAN SECURITIES PLC

 

 

 

 

 

 

By:

/s/ Dimis Theodom

 

 

Name: Dimis Theodom

 

 

Title: Executive Director

 

 

 

 

 

WELLS FARGO SECURITIES INTERNATIONAL LIMITED

 

 

 

 

 

 

By:

/s/ Matt Carter

 

 

Name: Matt Carter

 

 

Title: Managing Director

 

 

 

 

 

CITIGROUP GLOBAL MARKETS LIMITED

 

 

 

 

 

 

By:

/s/ Julia Bardin

 

 

Name: Julia Bardin

 

 

Title: Delegated Signatory

 

 

[Signature Page to Underwriting Agreement]

 


 

GOLDMAN SACHS & CO. LLC

 

 

 

 

 

 

By:

/s/ Raffael Fiumara

 

 

Name: Raffael Fiumara

 

 

Title: Vice President

 

 

 

 

 

HSBC BANK PLC

 

 

 

 

 

 

By:

/s/ Karl Allen

 

 

Name: Karl Allen

 

 

Title: Director

 

 

 

 

 

ING BANK N.V.

 

 

 

 

 

 

By:

/s/ Carla Wyckmans

 

 

Name: Carla Wyckmans

 

 

Title: Legal Expert

 

 

 

 

 

 

 

 

 

 

By:

/s/ Kris Devos

 

 

Name: Kris Devos

 

 

Title: Head of Syndicate

 

 

 

 

 

MERRILL LYNCH INTERNATIONAL

 

 

 

 

 

 

By:

/s/ Angus Reynolds

 

 

Name: Angus Reynolds

 

 

Title: Managing Director

 

 

 

 

 

MIZUHO INTERNATIONAL PLC

 

 

 

 

 

 

By:

/s/ Guy Reid

 

 

Name: Guy Reid

 

 

Title: Managing Director

 

 

 

 

 

MORGAN STANLEY & CO. INTERNATIONAL PLC

 

 

 

 

 

 

By:

/s/ Valentino Belgioioso

 

 

Name: Valentino Belgioioso

 

 

Title: Vice President

 

 

[Signature Page to Underwriting Agreement]

 


 

REGIONS SECURITIES LLC

 

 

 

 

 

 

By:

/s/ Neal Smith

 

 

Name: Neal Smith

 

 

Title: Managing Director

 

 

 

 

 

SCOTIABANK EUROPE PLC

 

 

 

 

 

 

By:

/s/ James Walter

 

 

Name: James Walter

 

 

Title: Regional Director, Europe Legal

 

 

 

 

 

 

By:

/s/ Allison Gloudon

 

 

Name: Allison Gloudon

 

 

Title: Director

 

 

 

 

 

SUNTRUST ROBINSON HUMPHREY, INC.

 

 

 

 

 

 

By:

/s/ Robert Nordlinger

 

 

Name: Robert Nordlinger

 

 

Title: Director

 

 

[Signature Page to Underwriting Agreement]

 


 

EXHIBIT A

 

Form of Opinion of
the Executive Vice President, General Counsel and Secretary of the Company

 

1.                          Each of the Company and each Significant Guarantor is a corporation validly existing and in good standing under the laws of the jurisdiction of its incorporation and has the corporate power and authority under such laws to own its properties and to conduct its business as described in the Disclosure Package and the Prospectus.  Each of the Company and each Significant Guarantor 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 or be in good standing would not, individually or in the aggregate, have a material adverse effect on the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole.

 

2.                          Each subsidiary of the Company that is a “significant subsidiary” as defined in Rule 405 of Regulation C of the Securities Act (each, a “Significant Subsidiary”) is a corporation or other organization validly existing and in good standing under the laws of its jurisdiction of incorporation or organization and has the corporate or organizational power and authority under the laws of its jurisdiction of incorporation or organization to own its properties and to conduct its business as described in the Disclosure Package and the Prospectus.  To my knowledge, each Significant Subsidiary 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 or be in good standing would not, individually or in the aggregate, have a material adverse effect on the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole.  All of the issued and outstanding capital stock or other ownership interest of each Significant Subsidiary has been duly authorized and validly issued and is fully paid and non-assessable, and all of such capital stock or other ownership interest, except for directors’ qualifying shares or other minimum share or interest ownership as may be required by local law (except as otherwise stated in the Disclosure Package and the Prospectus), is owned by the Company, directly or indirectly through subsidiaries, free and clear, to my knowledge, of any security interest, mortgage, pledge, lien, encumbrance or adverse claim of any third party.

 

3.                          The Underwriting Agreement has been duly authorized, executed and delivered by the Company and each of the Significant Guarantors.

 

4.                          The Indenture has been duly authorized, executed and delivered by the Company and each of the Significant Guarantors, and the Indenture has been duly qualified under the Trust Indenture Act.

 

5.                          The Agency Agreement has been duly authorized, executed and delivered by the Company.

 

6.                          The Securities have been duly authorized, executed and delivered by the Company.  The Securities Guarantees have been duly authorized, executed and delivered by each of the Significant Guarantors.

 

Exhibit A-1


 

7.                          The Securities, the Securities Guarantees and the Indenture conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus.

 

8.                          The Registration Statement and the Prospectus and the documents incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus (other than the financial statements and schedules and other financial and statistical data therein, as to which I express no opinion), when they were filed with the Commission, were appropriately responsive in all material respects to the applicable requirements of the Securities Act and the Exchange Act in effect at the time such documents were so filed.

 

9.                          The execution and delivery of the Underwriting Agreement, the Indenture, the Agency Agreement and the Securities and the consummation of the transactions contemplated thereby by the Company, and the execution and delivery of the Underwriting Agreement, the Indenture and the Securities Guarantees and the consummation of the transactions contemplated thereby by each of the Significant Guarantors, do not and will not:

 

(a)                     violate the charter or bylaws of the Company or of any Significant Guarantor as in effect on the date hereof;

 

(b)                     result in a breach of or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any Significant Guarantor pursuant to, any contract, agreement or other instrument binding upon the Company or any Significant Guarantor and filed as a material agreement by the Company as an exhibit to its Annual Report on Form 10-K for the fiscal year ended May 31, 2019, except for any breach, default, lien, charge or encumbrance that would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on (i) the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole or (ii) the ability of the Company or any Significant Guarantor to perform its respective obligations under the Underwriting Agreement, the Base Indenture, the Supplemental Indenture, the Securities or the Securities Guarantees; or

 

(c)                      result in the violation of any presently applicable and published statute or regulation in effect on the date hereof or any order, judgment or decree of any court or governmental agency that names and is specifically directed to the Company or any Significant Guarantor binding upon the Company or any Significant Guarantor as of the date hereof, except any such violations that would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on (i) the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole or (ii) the ability of the Company or any Significant Guarantor to perform its respective obligations under the Underwriting Agreement, the Base Indenture, the Supplemental Indenture, the Securities or the Securities Guarantees.

 

10.                   No consent, approval, authorization, order, registration or qualification of or with any court or governmental or regulatory authority is required to be obtained or made by the Company

 

Exhibit A-2


 

or any Significant Guarantor for the valid authorization, issuance, sale and delivery of the Securities and the Securities Guarantees as contemplated by the Underwriting Agreement, the Indenture, the Agency Agreement and the Disclosure Package or the Prospectus or for the authorization, execution and delivery by the Company and the Significant Guarantors of the Underwriting Agreement, the Agency Agreement and the Indenture and the performance of their respective obligations thereunder, or for the consummation by the Company and the Significant Guarantors of the transactions contemplated by the Underwriting Agreement, the Agency Agreement and the Indenture, except for the registration of the Securities and Securities Guarantees under the Securities Act, the qualification of the Indenture under the Trust Indenture Act, the filing of the Preliminary Prospectus, Prospectus and Final Term Sheet with the Commission pursuant to Rules 424 and 433 under the Securities Act, such consents, approvals, authorizations, orders, registrations and qualifications under applicable securities or Blue Sky laws of the states and other jurisdictions of the United States and such consents, approvals, authorizations, orders, registrations and qualifications the failure of which to obtain or make would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on (a) the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole or (b) the ability of the Company or any Significant Guarantor to perform its respective obligations under the Underwriting Agreement, the Base Indenture, the Supplemental Indenture, the Agency Agreement, the Securities or the Securities Guarantees.

 

11.                   The Registration Statement is effective under the Securities Act.  To my knowledge: (a) no order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto is in effect and no proceedings for such purpose are pending or threatened by the Commission; and (b) the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form.

 

12.                   To my knowledge, there are no contracts or other documents that are required under the Securities Act to be filed as exhibits to the Registration Statement or described in the Registration Statement or the Prospectus and that have not been so filed as exhibits to (or incorporated by reference into) the Registration Statement or described in the Registration Statement or the Prospectus.

 

13.                   The Company is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package will not be required to register as, an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.

 

I hereby confirm to you that, except for the matters described in the Disclosure Package and the Prospectus (as to all of which I express no confirmation or opinion at this time concerning the liability of the Company or any subsidiary of the Company (if any) or the effect of any adverse determination upon the Company and its consolidated subsidiaries taken as a whole), there is no pending or, to my knowledge, overtly threatened in writing, action or proceeding against the Company or any subsidiary of the Company before any court or administrative agency that individually (or in the aggregate in the case of any group of related lawsuits) is expected by the

 

Exhibit A-3


 

Company as of the date hereof to have a material adverse effect on (a) the financial condition of the Company and its consolidated subsidiaries taken as a whole or (b) the ability of the Company and the Significant Guarantors to perform their respective obligations under the Underwriting Agreement, the Base Indenture, the Supplemental Indenture, the Agency Agreement, the Securities or the Securities Guarantees.

 

In addition, I or attorneys under my supervision have participated in conferences with officers and other representatives of the Company and the Significant Guarantors, representatives of the Company’s independent registered public accounting firm and representatives of the Underwriters at which the contents of the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, and related matters were discussed and, although I am not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package or the Prospectus (other than as specified above), on the basis of the foregoing, no facts have come to my attention that have caused me to believe that: (i) the Registration Statement, at the time the Registration Statement became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; (ii) the Prospectus, as of its date or at the Closing Time contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that I express no belief as to (a) the financial statements and schedules and other financial and statistical data included or incorporated by reference in the Registration Statement, the Prospectus, the Disclosure Package or any amendments or supplements thereto or (b) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act).

 

Exhibit A-4


 

EXHIBIT B

 

Form of Opinion of

the Managing Director — Employment Law and
Assistant Secretary of FedEx Freight, Inc.

 

1.                          FedEx Freight, Inc. (“Freight Inc.”) is a corporation validly existing and in good standing under the laws of the State of Arkansas and has the corporate power and authority under such laws to own its properties and to conduct its business as described in the Disclosure Package and the Prospectus.  Freight Inc. 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 or be in good standing would not, individually or in the aggregate, have a material adverse effect on the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole.

 

2.                          Each of the Underwriting Agreement, the Indenture and the Freight Inc. Guarantee has been duly and validly authorized, executed and delivered by Freight Inc.

 

3.                          The execution and delivery by Freight Inc. of each of the Underwriting Agreement, the Indenture and the Freight Inc. Guarantee and the consummation by Freight Inc. of the transactions contemplated thereby do not, and the performance by Freight Inc. of its obligations thereunder will not, result in a violation of the articles of incorporation or bylaws of Freight Inc. as in effect on the date hereof.

 

Exhibit B-1


 

EXHIBIT C

 

Form of Opinion of

the Senior Vice President and General Counsel of

FedEx Office and Print Services, Inc.

 

1.                          FedEx Office and Print Services, Inc. (“FedEx Office”) is a corporation validly existing and in good standing under the laws of the State of Texas and has the corporate power and authority under such laws to own its properties and to conduct its business as described in the Disclosure Package and the Prospectus.  FedEx Office 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 or be in good standing would not, individually or in the aggregate, have a material adverse effect on the business, property, financial condition or results of operations of the Company and its consolidated subsidiaries taken as a whole.

 

2.                          Each of the Underwriting Agreement, the Indenture and the FedEx Office Guarantee has been duly and validly authorized, executed and delivered by FedEx Office.

 

3.                          The execution and delivery by FedEx Office of each of the Underwriting Agreement, the Indenture and the FedEx Office Guarantee and the consummation by FedEx Office of the transactions contemplated thereby do not, and the performance by FedEx Office of its obligations thereunder will not, result in a violation of the certificate of formation or bylaws of FedEx Office as in effect on the date hereof.

 

Exhibit C-1


 

EXHIBIT D

 

Form of Opinion of Davis Polk & Wardwell LLP

 

1.                                      The Indenture has been duly authorized, executed and delivered by the Company and each Guarantor organized under the laws of the State of Delaware and, assuming the Indenture has been duly authorized, executed and delivered by the Trustee and each Guarantor not organized under the laws of the State of Delaware, is a valid and binding agreement of the Company and each Guarantor, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, provided that we express no opinion as to (x) the enforceability of any waiver of rights under any stay law, (y) (i) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above or (ii) any provision of the Indenture that purports to avoid the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law by limiting the amount of any Guarantor’s obligation or (z) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Securities to the extent determined to constitute unearned interest.

 

2.                                      The Agency Agreement has been duly authorized, executed and delivered by the Company and, assuming the Agency Agreement has been duly authorized, executed and delivered by the Paying Agent, is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, provided that we express no opinion as to (x) the enforceability of any waiver of rights under any stay law, (y) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above or (z) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Securities to the extent determined to constitute unearned interest.

 

3.                                      The Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and will be entitled to the benefits of the Indenture pursuant to which such Notes are to be issued, provided that we express no opinion as to (x) the enforceability of any waiver of rights under any stay law, (y) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above or (z) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Securities to the extent determined to constitute unearned interest.

 

Exhibit D-1


 

4.                                      Assuming the due authorization of the Guarantee endorsed on each Note by the applicable Guarantor (other than any Guarantor organized under the laws of the State of Delaware), the Guarantees, when the Notes (and the Guarantees endorsed thereon) are executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, will be valid and binding obligations of the applicable Guarantor, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability; provided that we express no opinion as to (x) the enforceability of any waiver of rights under any stay law, (y) (i) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above or (ii) any provision of the Indenture or Guarantee that purports to avoid the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law by limiting the amount of the Guarantor’s obligation or (z) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Securities to the extent determined to constitute unearned interest.

 

5.                                      The statements included in the Disclosure Package and the Prospectus under the caption “Material United States Federal Income and Estate Tax Considerations,” insofar as they purport to describe provisions of U.S. federal income tax laws or legal conclusions with respect thereto, in our opinion fairly and accurately summarize the matters referred to therein in all material respects.

 

Exhibit D-2


 

SCHEDULE A

 

Representatives of the Several Underwriters

 

BNP Paribas

10 Harewood Avenue

London NW1 6AA

United Kingdom

 

Deutsche Bank AG, London Branch

Winchester House

1 Great Winchester Street

London

EC2N 2DB

 

J.P. Morgan Securities plc

25 Bank Street

Canary Wharf

London

E14 5JP

United Kingdom

 

Wells Fargo Securities International Limited

33 King William Street

London EC4R 9AT

United Kingdom

 

Schedule A-1


 

SCHEDULE B

 

Name of Underwriter

 

Principal Amount of
Notes due 2025

 

Principal Amount of
Notes due 2031

 

BNP Paribas

 

100,000,000

 

100,000,000

 

Deutsche Bank AG, London Branch

 

100,000,000

 

100,000,000

 

J.P. Morgan Securities plc

 

100,000,000

 

100,000,000

 

Wells Fargo Securities International Limited

 

100,000,000

 

100,000,000

 

Citigroup Global Markets Limited

 

10,000,000

 

10,000,000

 

Goldman Sachs & Co. LLC

 

10,000,000

 

10,000,000

 

HSBC Bank plc

 

10,000,000

 

10,000,000

 

ING Bank N.V., Belgian Branch

 

10,000,000

 

10,000,000

 

Merrill Lynch International

 

10,000,000

 

10,000,000

 

Mizuho International plc

 

10,000,000

 

10,000,000

 

Morgan Stanley & Co. International plc

 

10,000,000

 

10,000,000

 

Regions Securities LLC

 

10,000,000

 

10,000,000

 

Scotiabank Europe plc

 

10,000,000

 

10,000,000

 

SunTrust Robinson Humphrey, Inc.

 

10,000,000

 

10,000,000

 

Total

 

500,000,000

 

500,000,000

 

 

Schedule B-1


 

SCHEDULE C

 

€500,000,000 0.450% Notes due 2025

 

1.                                      The initial public offering price of the 0.450% Notes due 2025 shall be 99.876% of the principal amount thereof, plus accrued interest, if any, from the date of issuance.

 

2.                                      The purchase price to be paid by the Underwriters for the 0.450% Notes due 2025 shall be 99.476% of the principal amount thereof.

 

€500,000,000 1.300% Notes due 2031

 

1.                                      The initial public offering price of the 1.300% Notes due 2031 shall be 99.504% of the principal amount thereof, plus accrued interest, if any, from the date of issuance.

 

2.                                      The purchase price to be paid by the Underwriters for the 1.300% Notes due 2031 shall be 98.954% of the principal amount thereof.

 

Schedule C-1


 

SCHEDULE D

 

ISSUER FREE WRITING PROSPECTUSES

 

1.                                      Final term sheet, dated July 22, 2019, relating to the Notes due 2025 and the Notes due 2031, as filed pursuant to Rule 433 under the Securities Act

 

Schedule D-1


Exhibit 4.2

 

SUPPLEMENTAL INDENTURE NO. 10

Dated as of August 5, 2019

 

€500,000,000 0.450% Notes due 2025

€500,000,000 1.300% Notes due 2031

 

SUPPLEMENTAL INDENTURE NO. 10, dated as of August 5, 2019, among FedEx Corporation, a Delaware corporation (the “Company”), Federal Express Corporation, a Delaware corporation, Federal Express Europe, Inc., a Delaware corporation, Federal Express Holdings S.A., LLC, a Delaware limited liability company (formerly Federal Express Holdings S.A.), Federal Express International, Inc., a Delaware corporation, FedEx Corporate Services, Inc., a Delaware corporation (into which FedEx TechConnect, Inc., a Delaware corporation, was merged), FedEx Freight Corporation, a Delaware corporation, FedEx Freight, Inc., an Arkansas corporation, FedEx Ground Package System, Inc., a Delaware corporation, and FedEx Office and Print Services, Inc., a Texas corporation (collectively, the “Guarantors”) and Wells Fargo Bank, National Association, as trustee (the “Trustee”) and Elavon Financial Services DAC, UK Branch, as paying agent (the “Paying Agent”).

 

RECITALS

 

WHEREAS, the Company, the Guarantors and the Trustee have executed and delivered an Indenture, dated as of October 23, 2015 (as amended or supplemented to date, the “Indenture”), to provide for the issuance by the Company from time to time, and the guarantee by the Guarantors, of the Company’s senior unsecured debt securities;

 

WHEREAS, the Company, the Guarantors and the Trustee have executed and delivered Supplemental Indenture No. 1, dated as of October 23, 2015;

 

WHEREAS, the Company, the Guarantors and the Trustee have executed and delivered Supplemental Indenture No. 2, dated as of March 24, 2016;

 

WHEREAS, the Company, the Guarantors and the Trustee have executed and delivered Supplemental Indenture No. 3, dated as of April 11, 2016;

 

WHEREAS, the Company, the Guarantors and the Trustee have executed and delivered Supplemental Indenture No. 4, dated as of January 6, 2017;

 

WHEREAS, the Company, the Guarantors and the Trustee have executed and delivered Supplemental Indenture No. 5, dated as of January 31, 2018;

 

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WHEREAS, the Company, the Guarantors and the Trustee have executed and delivered Supplemental Indenture No. 6, dated as of October 17, 2018;

 

WHEREAS, the Company, the Guarantors and the Trustee have executed and delivered Supplemental Indenture No. 7, dated as of January 16, 2019;

 

WHEREAS, the Company, the Guarantors and the Trustee have executed and delivered Supplemental Indenture No. 8, dated as of January 16, 2019;

 

WHEREAS, the Company, the Guarantors and the Trustee have executed and delivered Supplemental Indenture No. 9, dated as of July 24, 2019;

 

WHEREAS, Section 9.01(b) of the Indenture permits execution of supplemental indentures without the consent of any Holders for the purpose of adding to the covenants of the Company or any Guarantor for the benefit of the Holders of less than all series of Securities so long as such supplemental indenture states that such covenant is expressly being included solely for the benefit of one or more particular series of Securities;

 

WHEREAS, Section 9.01(j) of the Indenture permits execution of supplemental indentures for the purpose of establishing the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01 of the Indenture without the consent of any Holders;

 

WHEREAS, the entry into this Supplemental Indenture No. 10 by the parties hereto is authorized by the provisions of the Indenture;

 

WHEREAS, the Redemption for Tax Reasons (as defined herein), as set forth below, is expressly being included solely for the benefit of the Company;

 

WHEREAS, the Change of Control Repurchase Event (as defined herein) covenant, as set forth below, is expressly being included solely for the benefit of the Notes (as defined herein); and

 

WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered hereunder and under the Indenture, duly issued by the Company and to make this Supplemental Indenture No. 10 a valid and legally binding agreement of the Company and the Guarantors, in accordance with the terms hereof and thereof, have been done.

 

NOW, THEREFORE, for and in consideration of the premises and the purchase of the Notes by the Holders, the Company, the Guarantors, the Trustee and the Paying Agent mutually covenant and agree, for the equal and proportionate benefit of the respective Holders from time to time of each series of Notes as follows:

 

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ARTICLE 1
RELATION TO THE INDENTURE; DEFINITIONS AND
OTHER PROVISIONS OF GENERAL APPLICATION

 

Section 1.01.  Relation to the Indenture.  This Supplemental Indenture No. 10 constitutes an integral part of the Indenture.

 

Section 1.02.  Definitions and Other Provisions of General Application.  For all purposes of this Supplemental Indenture No. 10 unless otherwise specified herein:

 

(a)                       all terms defined in this Supplemental Indenture No. 10 which are used and not otherwise defined herein shall have the meanings they are given in the Indenture;

 

(b)                       the provisions of general application stated in Section 1.01 of the Indenture shall apply to this Supplemental Indenture No. 10, except that the words “herein,” “hereof,” “hereto” and “hereunder” and other words of similar import refer to this Supplemental Indenture No. 10 as a whole and not to the Indenture or any particular Article, Section or other subdivision of the Indenture or this Supplemental Indenture No. 10;

 

(c)                                  business day” means each day which is not a Saturday, Sunday or other day on which the Trustee, Paying Agent, Transfer Agent (as defined herein) and registrar or banking institutions are not required by law or regulation to be open in the State of New York or London and, for any place of payment outside of New York City or London, in such place of payment, and on which the TARGET2 system (as defined below), or any successor thereto, does not operate;

 

(d)                                 Agency Agreement” means the agreement among the Company, Elavon Financial Services DAC, UK Branch, as the Paying Agent, U.S. Bank National Association, as the registrar and transfer agent, and the Trustee;

 

(e)                                  Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear System; and

 

(f)                                   Clearstream” means Clearstream Banking, société anonyme.

 

ARTICLE 2
THE SERIES OF NOTES

 

Section 2.01.  Title.  There shall be a series of Securities designated the 0.450% Notes due 2025 (the “2025 Notes”) and a series of Securities designated the 1.300% Notes due 2031 (the “2031 Notes” and, together with the 2025 Notes, the “Notes”).

 

3


 

Section 2.02.  Principal Amounts.  Subject to Section 2.12, the initial aggregate principal amount of the 2025 Notes that may be authenticated and delivered under this Supplemental Indenture No. 10 shall not exceed €500,000,000, and the initial aggregate principal amount of the 2031 Notes that may be authenticated and delivered under this Supplemental Indenture No. 10 shall not exceed €500,000,000 (except for Notes of each series authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07 of the Indenture and except for any Notes which pursuant to Section 3.03 of the Indenture are deemed never to have been authenticated and delivered hereunder).

 

Section 2.03.  Stated Maturity Dates.  The entire outstanding principal amount of the 2025 Notes shall be payable on August 5, 2025, and the entire outstanding principal amount of the 2031 Notes shall be payable on August 5, 2031, in each case subject to Section 2.07 and 2.08.

 

Section 2.04  Interest.

 

(a)                       2025 Notes. The 2025 Notes will bear interest at the rate of 0.450% per annum. Interest on the 2025 Notes will be payable annually in arrears on August 5 of each year, commencing on August 5, 2020, to the Persons in whose names the 2025 Notes are registered at the close of business of the preceding July 21 or, if the 2025 Notes are represented by one or more global notes, the close of business on the business day (for this purpose a day on which Clearstream and Euroclear are open for business) immediately preceding July 21. Interest on the 2025 Notes will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the 2025 Notes (or August 5, 2019, if no interest has been paid on the 2025 Notes) to, but excluding, the next scheduled interest payment date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Market Association.

 

(b)                       2031 Notes. The 2031 Notes will bear interest at the rate of 1.300% per annum. Interest on the 2031 Notes will be payable annually in arrears on August 5 of each year, commencing on August 5, 2020, to the Persons in whose names the 2031 Notes are registered at the close of business of the preceding July 21 or, if the 2031 Notes are represented by one or more global notes, the close of business on the business day (for this purpose a day on which Clearstream and Euroclear are open for business) immediately preceding July 21. Interest on the 2031 Notes will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the 2031 Notes (or August 5, 2019, if no interest has been paid on the 2031 Notes) to, but excluding, the next scheduled interest payment date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Market Association.

 

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Section 2.05.  Payments in Euro.  All payments of interest and principal, including payments made upon any redemption of the Notes, will be payable in euro. If, on or after the date of issuance of the Notes, the euro is unavailable to the Company due to the imposition of exchange controls or other circumstances beyond the Company’s control or if the euro is no longer being used by the then member states of the European Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of the Notes will be made in U.S. dollars until the euro is again available to the Company or so used. In such circumstances, the amount payable on any date in euro will be converted into U.S. dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second business day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the then most recent U.S. dollar/euro exchange rate available on or prior to the second business day prior to the relevant payment date as determined by the Company in its sole discretion. Any payment in respect of the Notes so made in U.S. dollars will not constitute an Event of Default under the Notes or the Indenture. Neither the Trustee nor the Paying Agent shall have any responsibility for any calculation or conversion in connection with the foregoing.

 

Section 2.06  Defeasance and Discharge; Covenant Defeasance.

 

(a)                       The provisions of Section 13.02 and Section 13.03 of the Indenture shall apply to each series of the Notes, subject to clause (b) below.

 

(b)                       Solely with respect to the Notes, the Government Obligations referred to in Section 13.04 of the Indenture shall include (1) securities that are direct obligations of the Federal Republic of Germany for the payment of which its full faith and credit is pledged or (2) obligations of a person controlled or supervised by and acting as an agency or instrumentality of the Federal Republic of Germany, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the Federal Republic of Germany, which, in either case under clauses (1) or (2) are not callable or redeemable at the option of the issuer thereof.

 

Section 2.07.  Optional Redemption.  The Company will have the right, at its option, to redeem either series of the Notes in whole or in part, at any time prior to the applicable Par Call Date (as defined below), on at least 10 days’, but no more than 60 days’, prior written notice mailed by the Company (or otherwise delivered in accordance with the applicable clearing system’s procedures) to the Holders of the Notes to be redeemed. Upon redemption of the Notes of any series, the Company will pay a redemption price equal to the greater of:

 

(a)                       100% of the principal amount of the Notes to be redeemed; and

 

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(b)                       the sum of the present values of the Remaining Scheduled Payments (as defined below) of principal and interest on the Notes to be redeemed that would be due if the Notes matured on the applicable Par Call Date (not including any portion of such payments of interest accrued as of the redemption date), discounted to the redemption date on an ACTUAL/ACTUAL (ICMA) day count basis, at the applicable Comparable Government Bond Rate (as defined below) plus 0.200% (20 basis points) in the case of the 2025 Notes and 0.250% (25 basis points) in the case of the 2031 Notes;

 

in each case, plus accrued and unpaid interest to the date of redemption on the principal amount of the Notes being redeemed.

 

At any time on or after the applicable Par Call Date, the Company may redeem either series of Notes, in whole or in part, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed plus accrued and unpaid interest to the date of redemption on the principal amount of the Notes being redeemed.

 

Comparable Government Bond” means, with respect to the Notes to be redeemed prior to the applicable Par Call Date, in relation to any Comparable Government Bond Rate calculation, at the discretion of an independent investment bank selected by the Company, a bond that is a direct obligation of the Federal Republic of Germany (“German government bond”), whose maturity is closest to the Par Call Date of such Notes, or if such independent investment bank in its discretion determines that such similar bond is not in issue, such other German government bond as such independent investment bank may, with the advice of three brokers of, and/or market makers in, German government bonds selected by the Company, determine to be appropriate for determining the Comparable Government Bond Rate.

 

Comparable Government Bond Rate” means the yield to maturity, expressed as a percentage (rounded to three decimal places, with 0.0005 being rounded upwards), on the third business day prior to the date fixed for redemption, of the Comparable Government Bond on the basis of the middle market price of the Comparable Government Bond prevailing at 11:00 a.m. (London time) on such business day as determined by an independent investment bank selected by the Company.

 

Par Call Date” means May 5, 2025 in the case of the 2025 Notes (the date that is three months prior to the maturity date of the 2025 Notes) and May 5, 2031 in the case of the 2031 Notes (the date that is three months prior to the maturity date of the 2031 Notes).

 

Remaining Scheduled Payments” means with respect to each Note to be redeemed, the remaining scheduled payments of the principal thereof and interest thereon that would be due after the related redemption date but for such redemption; provided, however, that, if such redemption date is not an interest

 

6


 

payment date with respect to such Note, the amount of the next succeeding scheduled interest payment thereon will be deemed to be reduced (solely for the purposes of this calculation) by the amount of interest accrued thereon to such redemption date.

 

Unless the Company defaults in payment of the redemption price, on and after the date of redemption, interest will cease to accrue on the Notes, or portions of the Notes, called for redemption.

 

If less than all of a series of Notes are to be redeemed, the Notes to be redeemed shall be selected by the Trustee by such method the Trustee deems to be fair and appropriate in accordance with the applicable clearing system’s procedures.

 

Section 2.08  Redemption for Tax Reasons.  If, as a result of any change in, or amendment to, the laws (or any regulations or rulings promulgated under the laws) of the United States (or any taxing authority in the United States), or any change in, or amendments to, an official position regarding the application or interpretation of such laws, regulations or rulings, which change or amendment is announced or becomes effective on or after the date of the issuance of the Notes, the Company becomes or, based upon a written opinion of independent counsel selected by the Company, the Company will become obligated to pay additional amounts as described in Section 3.01 hereof with respect to a series of Notes, then the Company may at any time at its option redeem, in whole, but not in part, the outstanding Notes of such series on not less than 30 nor more than 60 days prior notice, at a redemption price equal to 100% of their principal amount, together with accrued and unpaid interest on those Notes to, but not including, the date fixed for redemption (such redemptions, a “Redemption for Tax Reasons”).

 

Section 2.09  Form of Notes and Payment.

 

(a)                       The Notes shall be represented by one or more permanent global notes. The 2025 Notes shall be in the form of Exhibit A attached hereto, and the 2031 Notes shall be in the form of Exhibit B attached hereto. The Notes shall be issued in minimum denominations of €100,000 and integral multiples of €1,000 in excess thereof.

 

(b)                       Principal, premium and additional amounts, if any, and/or interest, if any, on the global notes representing the Notes shall be made to the Paying Agent which in turn, for so long as the Notes are in global form, shall make payment with respect to the Notes to Elavon Financial Services DAC, UK Branch, as common depositary for Euroclear and Clearstream, for their respective accounts.

 

(c)                        The global notes representing the Notes shall be deposited with, or on behalf of, Elavon Financial Services DAC, UK Branch, as common depositary for Euroclear and Clearstream, and registered in the name of such common depositary or its nominee for the accounts of Euroclear and Clearstream.

 

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(d)                       Elavon Financial Services DAC, UK Branch, shall initially act as the Paying Agent for the Notes in accordance with the terms of the Agency Agreement. U.S. Bank National Association shall initially act as the transfer agent for the Notes (the “Transfer Agent”) in accordance with the terms of the Agency Agreement. The Company may change the Paying Agent or the Transfer Agent without prior notice to the Holders.

 

(e)                        U.S. Bank National Association shall initially act as the Security Registrar, as such term is defined in Section 3.05 of the Indenture, for the Notes in accordance with the terms of the Agency Agreement. The Company may change the Security Registrar without prior notice to the Holders.

 

(f)                         Each of the Company and the Guarantors designates the office of the Paying Agent at 125 Old Broad Street, Fifth Floor, London EC2N 1AR as an agency where the Notes may be presented for payment, in each case as provided for in the Indenture.

 

(g)                                  Each of the Company and the Guarantors designates the officer of the Transfer Agent at U.S. Bank Wealth Management — Corp Trust Services Boston, 1 Federal Street, Boston, Massachusetts 02110 as an agency where the Notes may be presented for exchange or registration of transfer as provided for in the Indenture.

 

Section 2.10.  Sinking Fund.  The Notes shall not be subject to a sinking fund.

 

Section 2.11.  Additional Amounts.  The provisions of Section 10.06 of the Indenture shall not apply to the Notes; provided that the provisions of Section 3.01 of this Supplemental Indenture No. 10 shall apply to the Notes.

 

Section 2.12.  Amount Not Limited.  The aggregate principal amount of Notes which may be authenticated and delivered under the Indenture, as supplemented from time to time, shall not be limited, and additional Notes may be issued from time to time without any consent of Holders or of the Trustee, provided that if the additional Notes of a series are not fungible with the then-outstanding Notes of that series for U.S. federal income tax purposes, the additional Notes shall have separate CUSIP, ISIN and Common Code numbers.

 

ARTICLE 3
PAYMENT OF ADDITIONAL AMOUNTS

 

Section 3.01  Payment of Additional Amounts.

 

(a)                       The Company will, subject to the exceptions and limitations set forth below, pay as additional interest on the Notes such additional amounts as are necessary in order that the net payment by the Company of the principal of and

 

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interest on the Notes to a Holder who is not a United States person (as defined below), after withholding or deduction for any present or future tax, assessment or other governmental charge imposed by the United States or a taxing authority in the United States (including any withholding or deduction with respect to the payment of such additional amounts), will not be less than the amount provided in the Notes to be then due and payable; provided, however, that the foregoing obligation to pay additional amounts shall not apply:

 

(1)                                 to any tax, assessment or other governmental charge that is imposed by reason of the Holder (or the beneficial owner for whose benefit such Holder holds such Note), or a fiduciary, settlor, beneficiary, member or shareholder of the Holder or beneficial owner if the Holder or beneficial owner is an estate, trust, partnership, corporation or other entity, or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:

 

(a)                                             being or having been engaged in a trade or business in the United States or having or having had a permanent establishment in the United States;

 

(b)                                             having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes, the receipt of any payment thereon or the enforcement of any rights thereunder), including being or having been a citizen or resident of the United States;

 

(c)                                              being or having been a personal holding company, a passive foreign investment company or a controlled foreign corporation for United States federal income tax purposes or a corporation that has accumulated earnings to avoid United States federal income tax;

 

(d)                                             being or having been a “10-percent shareholder” of the Company as defined in Section 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision; or

 

(e)                                              being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business;

 

(2)                                 to any Holder that is not the sole beneficial owner of the Notes, or a portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficial owner with respect to the Holder, a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment of such additional amounts had the beneficiary, settlor,

 

9


 

beneficial owner or member received directly its beneficial or distributive share of the payment;

 

(3)                                 to any tax, assessment or other governmental charge that would not have been imposed but for the failure of the Holder or any other person to comply with any certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of such Holder or other person, if compliance is required by statute, by regulation of the United States or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from, or reduction in, such tax, assessment or other governmental charge;

 

(4)                                 to any tax, assessment or other governmental charge that is imposed otherwise than by withholding by the Company or a paying agent from payments on the Notes;

 

(5)                                 to any tax, assessment or other governmental charge that would not have been imposed but for a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;

 

(6)                                 to any estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;

 

(7)                                 to any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on any Note, if such payment can be made without such withholding by presenting such Note (where presentation is required) to at least one other paying agent;

 

(8)                                 to any tax, assessment or other governmental charge that would not have been imposed but for the presentation by the Holder of any Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;

 

(9)                                 to any tax, assessment or other governmental charge that is imposed or withheld solely by reason of the beneficial owner being a bank (i) purchasing the Notes in the ordinary course of its lending business or (ii) that is neither (A) buying the Notes for investment purposes only nor (B) buying the Notes for resale to a third-party that either is not a bank or holding the Notes for investment purposes only;

 

(10)                          to any tax, assessment or other governmental charge imposed under Sections 1471 through 1474 of the Code (or any amended or successor provisions), any current or future regulations or official interpretations thereof,

 

10


 

any agreement entered into pursuant to Section 1471(b) of the Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code; or

 

(11)         in the case of any combination of items (1), (2), (3), (4), (5), (6), (7), (8), (9), and (10).

 

(b) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable to the Notes. Except as specifically provided under this Section 3.01, the Company will not be required to make any payment for any tax, assessment or other governmental charge imposed by any government or a political subdivision or taxing authority of or in any government or political subdivision.

 

(c) As used under this Section 3.01 and Section 2.08 hereof, the term “United States” means the United States of America (including the states of the United States and the District of Columbia and any political subdivision thereof) and the term “United States person” means any individual who is a citizen or resident of the United States for U.S. federal income tax purposes, a corporation, partnership or other entity created or organized in or under the laws of the United States, any state of the United States or the District of Columbia (other than a partnership that is not treated as a United States person under any applicable Treasury regulations), or any estate or trust the income of which is subject to United States federal income taxation regardless of its source.

 

(d) Any reference to amounts payable in respect of the Notes herein or in the Indenture shall be deemed to include any additional amounts which may be payable under this Section 3.01.

 

ARTICLE 4
CHANGE OF CONTROL REPURCHASE EVENT

 

Section 4.01.  Intended Beneficiary; Definitions.

 

(a)        The provisions of this Article 4 shall be applicable only to, and are solely for the benefit of Holders of, the Notes and to no other Security.

 

(b)        For purposes of this Supplemental Indenture No. 10:

 

Below Investment Grade Ratings Event” means, with respect to the Notes, on any day within the 60-day period (which period shall be extended so long as the rating of the Notes is under publicly announced consideration for a possible downgrade by any Rating Agency) after the earlier of (1) the occurrence of a Change of Control, or (2) the public announcement of the occurrence of a Change of Control or the intention by the Company to effect a Change of Control,

 

11


 

the Notes are rated below Investment Grade by each and every Rating Agency. Notwithstanding the foregoing, a Below Investment Grade Ratings Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Ratings Event for purposes of the definition of Change of Control Repurchase Event hereunder) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not publicly announce or publicly confirm, or inform the Trustee in writing at the Company’s request, that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Ratings Event).

 

Change of Control” means the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” or “group” (as those terms are used in Section 13(d)(3) of the Exchange Act), other than (1) the Company, (2) any Subsidiary, (3) any employee benefit plan (or a trust forming a part thereof) maintained by the Company or any Subsidiary, or (4) any underwriter temporarily holding Voting Stock of the Company pursuant to an offering of such Voting Stock, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the combined voting power of the Company’s Voting Stock or other Voting Stock into which the Company’s Voting Stock is reclassified, consolidated, exchanged or changed measured by voting power rather than number of shares.

 

Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Below Investment Grade Ratings Event with respect to the Notes.

 

Investment Grade” means, with respect to Moody’s, a rating of Baa3 or better (or its equivalent under any successor rating categories of Moody’s); with respect to S&P, a rating of BBB- or better (or its equivalent under any successor rating categories of S&P); and, with respect to any additional Rating Agency or Rating Agencies selected by the Company, the equivalent investment grade credit rating.

 

Moody’s” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.

 

Rating Agency” means (1) each of Moody’s and S&P; and (2) if either of Moody’s or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of the Company’s control, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act, selected by the Company (as certified by a Board

 

12


 

Resolution) as a replacement agency for Moody’s or S&P, or both of them, as the case may be.

 

S&P” means S&P Global Ratings, a division of S&P Global, Inc., and its successors.

 

Voting Stock” of any specified “person” (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date means the capital stock of such person that is at the time entitled to vote generally in the election of the board of directors of such person.

 

Section 4.02.  Change of Control Repurchase Event.

 

(a)        If a Change of Control Repurchase Event with respect to a series of Notes occurs, except to the extent the Company has exercised its right to redeem the Notes of such series pursuant to the redemption terms of the Notes, the Company will make an offer to each Holder of the Notes of such series to repurchase all or any part (in minimum denominations of €100,000 and integral multiples of €1,000 in excess thereof) of that Holder’s Notes at a repurchase price (the “Repurchase Price”) in cash equal to 101% of the aggregate principal amount of such Notes repurchased plus any accrued and unpaid interest on the Notes repurchased to, but not including, the Repurchase Date (as defined below).

 

(b)        Within 30 days following a Change of Control Repurchase Event or, at the Company’s option, prior to a Change of Control, but after the public announcement of such Change of Control, the Company will mail, or cause to be mailed, or otherwise deliver in accordance with the procedures of the applicable clearing system, a notice to each Holder of the Notes of such series, with a copy to the Trustee and the Paying Agent, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and offering to repurchase the Notes on the payment date specified in the notice (such offer the “Repurchase Offer” and such date, the “Repurchase Date”), which Repurchase Date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed, pursuant to the procedures described in such notice. The notice shall, if mailed or delivered prior to the date of consummation of the Change of Control, state that the Repurchase Offer is conditioned on a Change of Control Repurchase Event occurring on or prior to the Repurchase Date.

 

(c)   The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Notes, the Company will comply with the applicable securities laws and regulations and will not be deemed to have

 

13


 

breached its obligations under the Change of Control Repurchase Event provisions of the Notes by virtue of such conflict.

 

(d)        On the Repurchase Date following a Change of Control Repurchase Event, the Company will, to the extent lawful:

 

(i)    accept for payment all Notes or portions of Notes properly tendered pursuant to the Repurchase Offer;

 

(ii)   deposit with the Paying Agent an amount equal to the aggregate Repurchase Price for all Notes or portions of Notes properly tendered;

 

(iii)  deliver, or cause to be delivered, to the Trustee the Notes properly accepted for payment by the Company, together with an Officers’ Certificate stating the aggregate principal amount of Notes being repurchased by the Company pursuant to the Repurchase Offer; and

 

(iv)  deliver, or cause to be delivered, to the Trustee, for authentication by the Trustee, any new Notes required to be issued pursuant to Section 4.02(e) below, duly executed by the Company.

 

(e)        Upon receipt by the Trustee from the Company of a notice setting forth the Repurchase Price and the Notes properly tendered and accepted for payment, the Trustee will promptly mail, or cause the Paying Agent to promptly mail, or otherwise deliver in accordance with the procedures of the applicable clearing system, to each Holder of Notes, or portions of the Notes, properly tendered and accepted for payment by the Company the Repurchase Price for the Notes or portions of the Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each such Holder a new Note, as applicable, duly executed by the Company equal in principal amount to any unrepurchased portion of the Notes surrendered, as applicable; provided that each new Note will be in a principal amount equal to €100,000 or integral multiples of €1,000 in excess thereof.

 

(f)        The Company will not be required to make a Repurchase Offer upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Company and such third party purchases all Notes or portions of Notes properly tendered and not withdrawn under its offer.

 

(g)        The Company and the Guarantors acknowledge that the Company may not have sufficient funds to repurchase all Notes or portions of Notes properly tendered upon a Change of Control Repurchase Event.

 

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ARTICLE 5
MISCELLANEOUS PROVISIONS

 

Section 5.01.  Supplemental Indenture.  The Indenture, as supplemented by this Supplemental Indenture No. 10, is in all respects hereby adopted, ratified and confirmed.

 

Section 5.02.  Effectiveness.  This Supplemental Indenture No. 10 shall take effect as of the date hereof.

 

Section 5.03.  Effect of Headings.  The Article and Section headings herein are for convenience only and shall not affect the construction hereof.

 

Section 5.04.  Separability Clause.  In case any provision in this Supplemental Indenture No. 10 shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions herein shall not in any way be affected or impaired thereby.

 

Section 5.05.  Governing Law.  This Supplemental Indenture No. 10 shall be governed by and construed in accordance with the laws of the State of New York.

 

Section 5.06.  Submission of Paying Agent to Jurisdiction in the United States.  Each of the Paying Agent, the Transfer Agent and the registrar irrevocably submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan, The City of New York, over any suit, action or proceeding arising out of or relating to this Supplemental Indenture No. 10. To the fullest extent permitted by applicable law, each of the Paying Agent, the Transfer Agent and the registrar irrevocably waives and agrees not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

 

Section 5.07  Execution by the Trustee.  The Trustee has executed this Supplemental Indenture No. 10 only upon the terms and conditions set forth in the Indenture. Without limiting the generality of the foregoing, the Trustee shall not be responsible for the correctness of the recitals contained herein, which shall be taken as statements of the Company and the Guarantors, and the Trustee makes no representation and shall have no responsibility for, or in respect of, the validity or sufficiency of this Supplemental Indenture No. 10 or the execution hereof by any Person (other than the Trustee).

 

Section 5.08  Counterparts.  This Supplemental Indenture No. 10 may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.

 

15


 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture No. 10 to be duly executed, all as of the day and year first above written.

 

 

 

FedEx Corporation,

as Issuer

Attest:

 

 

 

 

 

 

By:

/s/ C. Edward Klank III

 

By:

/s/ Michael C. Lenz

Name:

C. Edward Klank III

Name:

Michael C. Lenz

Title:

Assistant Secretary

Title:

Corporate Vice President and Treasurer

 

[Signature Page to Supplemental Indenture No. 10]

 


 

 

Federal Express Corporation,

as Guarantor

 

 

Attest:

 

 

 

 

 

 

 

 

 

By:

/s/ C. Edward Klank III

 

By:

/s/ Elise L. Jordan

Name:

C. Edward Klank III

 

Name:

Elise L. Jordan

Title:

Secretary

 

Title:

Executive Vice President and Chief Financial Officer

 

[Signature Page to Supplemental Indenture No. 10]

 


 

 

FedEx Ground Package System, Inc.,

as Guarantor

 

 

Attest:

 

 

 

 

 

 

 

 

 

By:

/s/ C. Edward Klank III

 

By:

/s/ Robert D. Henning

Name:

C. Edward Klank III

 

Name:

Robert D. Henning

Title:

Secretary

 

Title:

Executive Vice President and Chief Financial Officer

 

[Signature Page to Supplemental Indenture No. 10]

 


 

 

FedEx Freight Corporation,

as Guarantor

 

 

Attest:

 

 

 

 

 

 

 

 

By:

/s/ C. Edward Klank III

 

By:

/s/ Matthew L. Rittenhour

Name:

C. Edward Klank III

 

Name:

Matthew L. Rittenhour

Title:

Secretary

 

Title:

Senior Vice President — Finance and Chief Financial Officer

 

[Signature Page to Supplemental Indenture No. 10]

 


 

 

FedEx Freight, Inc.,

as Guarantor

 

 

Attest:

 

 

 

 

 

 

 

 

 

By:

/s/ C. Edward Klank III

 

By:

/s/ Matthew L. Rittenhour

Name:

C. Edward Klank III

 

Name:

Matthew L. Rittenhour

Title:

Assistant Secretary

 

Title:

Senior Vice President — Finance and Chief Financial Officer

 

[Signature Page to Supplemental Indenture No. 10]

 


 

 

FedEx Office and Print Services, Inc.,

as Guarantor

 

 

Attest:

 

 

 

 

 

 

 

 

 

 

 

By:

/s/ C. Edward Klank III

 

By:

/s/ Leslie M. Benners

 

 

 

 

 

Name:

C. Edward Klank III

 

Name:

Leslie M. Benners

Title:

Assistant Secretary

 

Title:

Senior Vice President and Chief Financial Officer

 

[Signature Page to Supplemental Indenture No. 10]

 


 

 

FedEx Corporate Services, Inc.,

as Guarantor

 

 

Attest:

 

 

 

 

 

 

 

 

 

 

 

By:

/s/ C. Edward Klank III

 

By:

/s/ Mark A. McGough

Name:

C. Edward Klank III

 

Name:

Mark A. McGough

Title:

Secretary

 

Title:

Senior Vice President and Chief Financial Officer

 

[Signature Page to Supplemental Indenture No. 10]

 


 

 

Federal Express Europe, Inc.,

as Guarantor

 

 

Attest:

 

 

 

 

 

 

 

 

 

By:

/s/ C. Edward Klank III

 

By:

/s/ Helena Jansson

Name:

C. Edward Klank III

 

Name:

Helena Jansson

Title:

Assistant Secretary

 

Title:

Vice President and Chief Financial Officer

 

[Signature Page to Supplemental Indenture No. 10]

 


 

 

Federal Express Holdings S.A., LLC

as Guarantor

 

 

Attest:

 

 

 

 

 

 

 

 

 

By:

/s/ C. Edward Klank III

 

By:

/s/ Juan N. Cento

 

 

 

 

 

Name:

C. Edward Klank III

 

Name:

Juan N. Cento

Title:

Assistant Secretary

 

Title:

President and Chief Executive Officer

 

[Signature Page to Supplemental Indenture No. 10]

 


 

 

Federal Express International, Inc.,

as Guarantor

 

 

Attest:

 

 

 

 

 

 

 

 

 

 

 

By:

/s/ C. Edward Klank III

 

By:

/s/ John D. Hartney

Name:

C. Edward Klank III

 

Name:

John D. Hartney

Title:

Assistant Secretary

 

Title:

Assistant Treasurer

 

[Signature Page to Supplemental Indenture No. 10]

 


 

 

Wells Fargo Bank, National Association,
as Trustee

 

 

 

 

 

 

By:

/s/ Stefan Victory

 

 

Name: Stefan Victory

 

 

Title: Vice President

 

[Signature Page to Supplemental Indenture No. 10]

 


 

 

Elavon Financial Services DAC, UK Branch, as Paying Agent

 

 

 

 

 

 

By:

/s/ Laurence Griffiths

 

 

Name: Laurence Griffiths

 

 

Title: Authorized Signatory

 

 

 

 

 

By:

/s/ Chris Hobbs

 

 

Name: Chris Hobbs

 

 

Title: Authorized Signatory

 


 

Exhibit A

 

Form of 0.450% Note

 

No. [     ]

CUSIP No. [                    ](1)

 

 

 

ISIN No. [                    ](2)

 

 

 

Common Code [                    ](3)

 

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED CIRCUMSTANCES.

 

Unless this security is presented by an authorized representative of Euroclear Bank S.A./N.V., as operator of the Euroclear System (“Euroclear”), and Clearstream Banking, société anonyme (“Clearstream” and, together with Euroclear, “Euroclear/Clearstream”) to the Issuer or its agent for registration of transfer, exchange or payment, and any security issued is registered in the name of USB Nominees (UK) Limited or in such other name as is requested by an authorized representative of Euroclear/Clearstream (and any payment is made to USB Nominees (UK) Limited or to such other entity as is requested by an authorized representative of Euroclear/Clearstream), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, USB Nominees (UK) Limited, has an interest herein.

 


(1)  Initial Note: 31428XBW5

 

(2)  Initial Note: XS2034626460

 

(3)  Initial Note: 203462646

 


 

FEDEX CORPORATION

 

0.450% Notes due 2025

 

Guaranteed as to Payment of Principal, Premium, if any, and Interest
by the Guarantors named in the Indenture Referred to Below

 

FedEx Corporation, a Delaware corporation (the “Company,” which term includes any successor Corporation under the Indenture), for value received, hereby promises to pay to USB Nominees (UK) Limited as nominee of Elavon Financial Services DAC as common depository for the accounts of Euroclear/Clearstream or registered assigns, the principal sum of €500,000,000 on August 5, 2025 (the “Stated Maturity Date”) and to pay interest thereon from August 5, 2019, or from the most recent “Interest Payment Date” to which interest has been paid or duly provided for, annually in arrears on August 5 of each year, commencing on August 5, 2020, and ending on the Stated Maturity Date or date of earlier redemption as contemplated herein, at the rate of 0.450% per annum, until the principal hereof is paid or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture dated as of October 23, 2015 among the Company, the Guarantors referred to in the Indenture and Wells Fargo Bank, National Association as Trustee (the “Trustee,” which term includes any successor trustee pursuant to the Indenture), as supplemented by Supplemental Indenture No. 10 dated as of August 5, 2019 (“Supplemental Indenture No. 10”), among the Company, the Guarantors named therein, the Trustee and Elavon Financial Services DAC, UK Branch, as paying agent (the “Paying Agent”) (as so amended and supplemented, the “Indenture”), be paid to the Person in whose name this Note is registered at the close of business on the “Regular Record Date” for such interest, which shall be the preceding July 21 or, if the Notes are represented by one or more global notes, the close of business on the business day (for this purpose a day on which Euroclear/Clearstream are open for business) immediately preceding July 21. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the registered Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice of which shall be given to Holders of Notes of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.

 

Interest payments on this Note will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on this Note (or August 5, 2019, if no interest has been paid on this Note) to, but excluding the next scheduled interest payment date. This payment convention is

 


 

referred to as ACTUAL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Market Association.

 

If the Stated Maturity Date or any redemption date of this Note falls on a day that is not a business day, the related payment of principal, premium and additional amounts, if any, and interest will be made on the next business day as if it were made on the date such payment was due, and no interest shall accrue on the amounts so payable for the period from and after such date to the next business day. If any interest payment date would otherwise be a day that is not a business day, that interest payment date will be postponed to the next date that is a business day.

 

If, on or after issuance of this Note, the single currency of participating member states of the economic and monetary union as contemplated in the Treaty on European Union (the “euro”) is unavailable to the Company due to the imposition of exchange controls or other circumstances beyond the Company’s control or if the euro is no longer being used by the then member states of the European Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of this Note will be made in U.S. dollars until the euro is again available to the Company or so used. In such circumstances, the amount payable on any date in euro will be converted into U.S. dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second business day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the then most recent U.S. dollar/euro exchange rate available on or prior to the second business day prior to the relevant payment date as determined by the Company in its sole discretion. Any payment in respect of this Note so made in U.S. dollars will not constitute an Event of Default under this Note or the Indenture.

 

Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

 

Unless the Certificate of Authentication hereon has been executed by the Trustee by manual signature, this Note shall not be entitled to any benefit pursuant to the Indenture or be valid or obligatory for any purpose.

 


 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

 

FEDEX CORPORATION

 

 

 

 

 

 

 

By:

 

 

 

Name: Michael C. Lenz

 

 

Title: Corporate Vice President and Treasurer

 

Attest:

 

 

 

 

By:

 

 

 

 

Name: C. Edward Klank III

 

 

Title: Assistant Secretary

 

 


 

Certificate of Authentication

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

 

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

 

 

 

 

 

 

 

By:

 

 

 

Authorized Signatory

 

 

 

Dated:  [                    ](4)

 

 

 


(4)  Initial Note: August 5, 2019.

 


 

[REVERSE OF SECURITY]

 

FEDEX CORPORATION

 

0.450% Notes due 2025

 

This Note is one of a duly authorized issue of notes of the Company (herein called the “Notes”), issued pursuant to the Indenture. Reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantors, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered. To the extent the terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern. This Note is one of the series designated on the face hereof, limited in initial aggregate principal amount to €500,000,000, except as contemplated in Supplemental Indenture No. 10. Capitalized terms used herein and in the Guarantee dated August 5, 2019 but not defined herein have the meanings ascribed to such terms in the Indenture.

 

The Notes of this series are not subject to any sinking fund.

 

The Company will have the right, at its option, to redeem the Notes of this series in whole or in part at any time prior to the Par Call Date (as defined below), on at least 10 days’, but no more than 60 days’, prior written notice mailed by the Company (or otherwise delivered in accordance with the applicable clearing system’s procedures) to the Holders of the Notes of this series to be redeemed. Upon redemption of such Notes, the Company will pay a redemption price equal to the greater of (i) 100% of the principal amount of the Notes of this series to be redeemed and (ii) the sum of the present values of the Remaining Scheduled Payments (as defined in Supplemental Indenture No. 10) of principal and interest on the Notes of this series to be redeemed that would be due if the Notes of this series matured on the Par Call Date (not including any portion of such payments of interest accrued as of the redemption date), discounted to the redemption date on an ACTUAL/ACTUAL (ICMA) day count basis, at the applicable Comparable Government Bond Rate (as defined in Supplemental Indenture No. 10) plus 0.200% (20 basis points), plus, in the case of either (i) or (ii), accrued and unpaid interest to the date of redemption on the principal amount of the Notes of this series being redeemed.

 

At any time on or after the Par Call Date, the Company may redeem the Notes of this series, in whole or in part, at a redemption price equal to 100% of the principal amount of the Notes of this series to be redeemed plus accrued and unpaid interest to the date of redemption on the principal amount of the Notes of this series being redeemed. As used in this Note, Par Call Date shall mean May 5, 2025 (the date that is three months prior to the Stated Maturity Date of the Notes of this series).

 


 

Unless the Company defaults in payment of the redemption price, on and after the date of redemption, interest will cease to accrue on the Notes or portions of the Notes of this series called for redemption.

 

If, as a result of any change in, or amendment to, the laws (or any regulations or rulings promulgated under the laws) of the United States (or any taxing authority in the United States), or any change in, or amendments to, an official position regarding the application or interpretation of such laws, regulations or rulings, which change or amendment is announced or becomes effective on or after the date of the issuance of the Notes of this series, the Company becomes or, based upon a written opinion of independent counsel selected by the Company, the Company will become obligated to pay additional amounts (as described in Supplemental Indenture No. 10) with respect to the Notes of this series, then the Company may at any time at its option redeem, in whole, but not in part, the outstanding Notes of this series on not less than 30 nor more than 60 days prior notice, at a redemption price equal to 100% of their principal amount, together with accrued and unpaid interest on the Notes of this series to be redeemed to, but not including, the date fixed for redemption.

 

If a Change of Control Repurchase Event (as defined in Supplemental Indenture No. 10) occurs with respect to Notes of this series, except to the extent  the Company has exercised its right to redeem the Notes of this series pursuant to the redemption terms of the Notes, the Company will make an offer, as provided in, and subject to the terms of, Supplemental Indenture No. 10, to each Holder of the Notes of this series to repurchase all or any part (in minimum denominations of €100,000 and integral multiples of €1,000 in excess thereof) of that Holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of such Notes repurchased plus any accrued and unpaid interest on such Notes repurchased to, but not including, the date of repurchase.

 

The Notes of this series are fully and unconditionally guaranteed as to the due and punctual payment of the principal, premium, if any, and interest in respect thereof by the Guarantors as evidenced by their guarantees (the “Guarantees”) set forth hereon. The Guarantees are the direct and unconditional obligations of such Guarantors and rank and will rank equally in priority of payment and in all other respects with all other unsecured and unsubordinated obligations of such Guarantors now or hereafter outstanding.

 

In case an Event of Default with respect to the Notes of this series shall occur and be continuing, the principal of the Notes of this series may be declared due and payable in the manner and with the effect provided in the Indenture.

 

The Indenture contains provisions for defeasance at any time of (i) the entire indebtedness of this Note or (ii) certain respective covenants and Events of Default with respect to this Note, in each case upon compliance with certain conditions set forth therein, which provisions apply to the Notes.

 


 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the Guarantors and the rights of the Holders of the Securities of each series to be affected pursuant to the Indenture at any time by the Company, the Guarantors and the Trustee with the consent of the Holders of a majority in principal amount of such Securities at the time Outstanding (voting as a single class). The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company and the Guarantors with certain provisions of the Indenture and certain past defaults pursuant to the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note or Notes issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.

 

No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the times, places and rate, and in the currency herein prescribed.

 

As provided in the Indenture and subject to certain limitations herein and therein set forth, the transfer of this Note is registrable in the Security Register, upon surrender of this Note for registration of transfer at the office of the Transfer Agent, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar, duly executed by, the Holder hereof or its attorney-in-fact duly authorized in writing, and thereupon one or more new Notes of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

The Notes of this series are issuable only in registered form without coupons in denominations equal to €100,000 and integral multiples of €1,000 in excess thereof. As provided in the Indenture and subject to certain limitations herein and therein set forth, Notes of this series are exchangeable for the same aggregate principal amount of Notes of this series and of like tenor and authorized denominations, as requested by the Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

 

Prior to due presentment of this Note for registration of transfer, the Company, the Guarantors, the Trustee, the Paying Agent and any agent of the Company, a Guarantor or the Trustee may treat the Person in whose name this

 


 

Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Guarantors, the Trustee, the Paying Agent nor any such agent shall be affected by notice to the contrary.

 

No recourse under or upon any obligation, covenant or agreement of the Company or any Guarantor in the Indenture or any indenture supplemental thereto or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer, director or employee, as such, past, present or future, of the Company or any Guarantor or of any successor thereto, either directly or through the Company or any Guarantor or any successor thereto, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance hereof and as part of the consideration for the issue hereof.

 

This Note shall be governed by and construed in accordance with the laws of the State of New York.

 


 

Schedule 1

 

SCHEDULE OF CHANGES IN OUTSTANDING PRINCIPAL AMOUNT

 

The following notations in respect of changes in the outstanding principal amount of this Note have been made:

 

Date

 

Initial Principal Amount

 

Change in Outstanding
Principal Amount

 

New
Balance

 

Notation Made
by

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

Exhibit B

 

Form of 1.300% Note

 

No. [                        ]

 

CUSIP No. [                        ](5)

 

 

 

 

 

ISIN No. [                        ](6)

 

 

 

 

 

Common Code [                        ](7)

 

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED CIRCUMSTANCES.

 

Unless this security is presented by an authorized representative of Euroclear Bank S.A./N.V., as operator of the Euroclear System (“Euroclear”), and Clearstream Banking, société anonyme (“Clearstream” and, together with Euroclear, “Euroclear/Clearstream”) to the Issuer or its agent for registration of transfer, exchange or payment, and any security issued is registered in the name of USB Nominees (UK) Limited or in such other name as is requested by an authorized representative of Euroclear/Clearstream (and any payment is made to USB Nominees (UK) Limited or to such other entity as is requested by an authorized representative of Euroclear/Clearstream), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, USB Nominees (UK) Limited, has an interest herein.

 


(5)  Initial Note: 31428XBX3

 

(6)  Initial Note: XS2034629134

 

(7)  Initial Note: 203462913

 


 

FEDEX CORPORATION

 

1.300% Notes due 2031

 

Guaranteed as to Payment of Principal, Premium, if any, and Interest
by the Guarantors named in the Indenture Referred to Below

 

FedEx Corporation, a Delaware corporation (the “Company,” which term includes any successor Corporation under the Indenture), for value received, hereby promises to pay to USB Nominees (UK) Limited as nominee of Elavon Financial Services DAC as common depository for the accounts of Euroclear/Clearstream or registered assigns, the principal sum of €500,000,000 on August 5, 2031 (the “Stated Maturity Date”) and to pay interest thereon from August 5, 2019, or from the most recent “Interest Payment Date” to which interest has been paid or duly provided for, annually in arrears on August 5 of each year, commencing on August 5, 2020, and ending on the Stated Maturity Date or date of earlier redemption as contemplated herein, at the rate of 1.300% per annum, until the principal hereof is paid or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture dated as of October 23, 2015 among the Company, the Guarantors referred to in the Indenture and Wells Fargo Bank, National Association as Trustee (the “Trustee,” which term includes any successor trustee pursuant to the Indenture), as supplemented by Supplemental Indenture No. 10 dated as of August 5, 2019 (“Supplemental Indenture No. 10”), among the Company, the Guarantors named therein, the Trustee and Elavon Financial Services DAC, UK Branch, as paying agent (the “Paying Agent”) (as so amended and supplemented, the “Indenture”), be paid to the Person in whose name this Note is registered at the close of business on the “Regular Record Date” for such interest, which shall be the preceding July 21 or, if the Notes are represented by one or more global notes, the close of business on the business day (for this purpose a day on which Euroclear/Clearstream are open for business) immediately preceding July 21. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the registered Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice of which shall be given to Holders of Notes of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.

 

Interest payments on this Note will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on this Note (or August 5, 2019, if no interest has been paid on this Note) to, but excluding the next scheduled interest payment date. This payment convention is

 


 

referred to as ACTUAL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Market Association.

 

If the Stated Maturity Date or any redemption date of this Note falls on a day that is not a business day, the related payment of principal, premium and additional amounts, if any, and interest will be made on the next business day as if it were made on the date such payment was due, and no interest shall accrue on the amounts so payable for the period from and after such date to the next business day. If any interest payment date would otherwise be a day that is not a business day, that interest payment date will be postponed to the next date that is a business day.

 

If, on or after issuance of this Note, the single currency of participating member states of the economic and monetary union as contemplated in the Treaty on European Union (the “euro”) is unavailable to the Company due to the imposition of exchange controls or other circumstances beyond the Company’s control or if the euro is no longer being used by the then member states of the European Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of this Note will be made in U.S. dollars until the euro is again available to the Company or so used. In such circumstances, the amount payable on any date in euro will be converted into U.S. dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second business day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the then most recent U.S. dollar/euro exchange rate available on or prior to the second business day prior to the relevant payment date as determined by the Company in its sole discretion. Any payment in respect of this Note so made in U.S. dollars will not constitute an Event of Default under this Note or the Indenture.

 

Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

 

Unless the Certificate of Authentication hereon has been executed by the Trustee by manual signature, this Note shall not be entitled to any benefit pursuant to the Indenture or be valid or obligatory for any purpose.

 


 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

 

FEDEX CORPORATION

 

 

 

 

 

By:

 

 

 

Name:

Michael C. Lenz

 

 

Title:

Corporate Vice President and Treasurer

 

Attest:

 

 

By:

 

 

 

Name:

C. Edward Klank III

 

 

Title:

Assistant Secretary

 

 


 

Certificate of Authentication

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

 

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

 

 

 

 

 

By:

 

 

 

Authorized Signatory

 

 

Dated:  [                    ](8)

 

 


(8)  Initial Note: August 5, 2019.

 


 

[REVERSE OF SECURITY]

 

FEDEX CORPORATION

 

1.300% Notes due 2031

 

This Note is one of a duly authorized issue of notes of the Company (herein called the “Notes”), issued pursuant to the Indenture. Reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantors, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered. To the extent the terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern. This Note is one of the series designated on the face hereof, limited in initial aggregate principal amount to €500,000,000, except as contemplated in Supplemental Indenture No. 10. Capitalized terms used herein and in the Guarantee dated August 5, 2019 but not defined herein have the meanings ascribed to such terms in the Indenture.

 

The Notes of this series are not subject to any sinking fund.

 

The Company will have the right, at its option, to redeem the Notes of this series in whole or in part at any time prior to the Par Call Date (as defined below), on at least 10 days’, but no more than 60 days’, prior written notice mailed by the Company (or otherwise delivered in accordance with the applicable clearing system’s procedures) to the Holders of the Notes of this series to be redeemed. Upon redemption of such Notes, the Company will pay a redemption price equal to the greater of (i) 100% of the principal amount of the Notes of this series to be redeemed and (ii) the sum of the present values of the Remaining Scheduled Payments (as defined in Supplemental Indenture No. 10) of principal and interest on the Notes of this series to be redeemed that would be due if the Notes of this series matured on the Par Call Date (not including any portion of such payments of interest accrued as of the redemption date), discounted to the redemption date on an ACTUAL/ACTUAL (ICMA) day count basis, at the applicable Comparable Government Bond Rate (as defined in Supplemental Indenture No. 10) plus 0.250% (25 basis points), plus, in the case of either (i) or (ii), accrued and unpaid interest to the date of redemption on the principal amount of the Notes of this series being redeemed.

 

At any time on or after the Par Call Date, the Company may redeem the Notes of this series, in whole or in part, at a redemption price equal to 100% of the principal amount of the Notes of this series to be redeemed plus accrued and unpaid interest to the date of redemption on the principal amount of the Notes of this series being redeemed. As used in this Note, Par Call Date shall mean May 5, 2031 (the date that is three months prior to the Stated Maturity Date of the Notes of this series).

 


 

Unless the Company defaults in payment of the redemption price, on and after the date of redemption, interest will cease to accrue on the Notes or portions of the Notes of this series called for redemption.

 

If, as a result of any change in, or amendment to, the laws (or any regulations or rulings promulgated under the laws) of the United States (or any taxing authority in the United States), or any change in, or amendments to, an official position regarding the application or interpretation of such laws, regulations or rulings, which change or amendment is announced or becomes effective on or after the date of the issuance of the Notes of this series, the Company becomes or, based upon a written opinion of independent counsel selected by the Company, the Company will become obligated to pay additional amounts (as described in Supplemental Indenture No. 10) with respect to the Notes of this series, then the Company may at any time at its option redeem, in whole, but not in part, the outstanding Notes of this series on not less than 30 nor more than 60 days prior notice, at a redemption price equal to 100% of their principal amount, together with accrued and unpaid interest on the Notes of this series to be redeemed to, but not including, the date fixed for redemption.

 

If a Change of Control Repurchase Event (as defined in Supplemental Indenture No. 10) occurs with respect to Notes of this series, except to the extent the Company has exercised its right to redeem the Notes of this series pursuant to the redemption terms of the Notes, the Company will make an offer, as provided in, and subject to the terms of, Supplemental Indenture No. 10, to each Holder of the Notes of this series to repurchase all or any part (in minimum denominations of €100,000 and integral multiples of €1,000 in excess thereof) of that Holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of such Notes repurchased plus any accrued and unpaid interest on such Notes repurchased to, but not including, the date of repurchase.

 

The Notes of this series are fully and unconditionally guaranteed as to the due and punctual payment of the principal, premium, if any, and interest in respect thereof by the Guarantors as evidenced by their guarantees (the “Guarantees”) set forth hereon. The Guarantees are the direct and unconditional obligations of such Guarantors and rank and will rank equally in priority of payment and in all other respects with all other unsecured and unsubordinated obligations of such Guarantors now or hereafter outstanding.

 

In case an Event of Default with respect to the Notes of this series shall occur and be continuing, the principal of the Notes of this series may be declared due and payable in the manner and with the effect provided in the Indenture.

 

The Indenture contains provisions for defeasance at any time of (i) the entire indebtedness of this Note or (ii) certain respective covenants and Events of Default with respect to this Note, in each case upon compliance with certain conditions set forth therein, which provisions apply to the Notes.

 


 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the Guarantors and the rights of the Holders of the Securities of each series to be affected pursuant to the Indenture at any time by the Company, the Guarantors and the Trustee with the consent of the Holders of a majority in principal amount of such Securities at the time Outstanding (voting as a single class). The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company and the Guarantors with certain provisions of the Indenture and certain past defaults pursuant to the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note or Notes issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.

 

No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the times, places and rate, and in the currency herein prescribed.

 

As provided in the Indenture and subject to certain limitations herein and therein set forth, the transfer of this Note is registrable in the Security Register, upon surrender of this Note for registration of transfer at the office of the Transfer Agent, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar, duly executed by, the Holder hereof or its attorney-in-fact duly authorized in writing, and thereupon one or more new Notes of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

The Notes of this series are issuable only in registered form without coupons in denominations equal to €100,000 and integral multiples of €1,000 in excess thereof. As provided in the Indenture and subject to certain limitations herein and therein set forth, Notes of this series are exchangeable for the same aggregate principal amount of Notes of this series and of like tenor and authorized denominations, as requested by the Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

 

Prior to due presentment of this Note for registration of transfer, the Company, the Guarantors, the Trustee, the Paying Agent and any agent of the Company, a Guarantor or the Trustee may treat the Person in whose name this

 


 

Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Guarantors, the Trustee, the Paying Agent nor any such agent shall be affected by notice to the contrary.

 

No recourse under or upon any obligation, covenant or agreement of the Company or any Guarantor in the Indenture or any indenture supplemental thereto or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer, director or employee, as such, past, present or future, of the Company or any Guarantor or of any successor thereto, either directly or through the Company or any Guarantor or any successor thereto, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance hereof and as part of the consideration for the issue hereof.

 

This Note shall be governed by and construed in accordance with the laws of the State of New York.

 


 

Schedule 1

 

SCHEDULE OF CHANGES IN OUTSTANDING PRINCIPAL AMOUNT

 

The following notations in respect of changes in the outstanding principal amount of this Note have been made:

 

Date

 

Initial Principal Amount

 

Change in Outstanding
Principal Amount

 

New
Balance

 

Notation Made
by

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


Exhibit 5.1

 

 

 

New York

Paris

 

 

Northern California

Madrid

 

 

Washington DC

Tokyo

 

 

São Paulo

Beijing

 

 

London

Hong Kong

 

 

 

 

 

 

 

 

 

 

 

Davis Polk & Wardwell LLP

212 450 4000 tel

 

 

450 Lexington Avenue

212 701 5800 fax

 

 

New York, NY 10017

 

 

 

 

August 5, 2019

 

FedEx Corporation
942 South Shady Grove Road
Memphis, Tennessee 38120

 

Ladies and Gentlemen:

 

FedEx Corporation, a Delaware corporation (the “Company”), and the guarantors listed in Schedule I hereto (the “Guarantors”) have filed with the Securities and Exchange Commission a Registration Statement on Form S-3 (File No. 333-226426) (the “Registration Statement”) and prospectus supplement dated July 22, 2019 for the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”), certain securities, including the Company’s €500,000,000 aggregate principal amount of its 0.450% Notes due 2025 (the “2025 Notes”) and €500,000,000 aggregate principal amount of its 1.300% Notes due 2031 (the “2031 Notes” and, together with the 2025 Notes, the “Notes”) and the related joint and several guarantees of the Notes (the “Guarantees,” and together with the Notes, the “Securities”).  The Notes are to be issued pursuant to the provisions of a base indenture, dated as of October 23, 2015 (the “Base Indenture”), between the Company, the guarantors party thereto (the “Guarantors”) and Wells Fargo Bank, National Association, as trustee (the “Trustee”), as amended and supplemented by supplemental indenture no. 10, dated as of August 5, 2019 (“Supplemental Indenture No. 10”), between the Company, the Guarantors, the Trustee and Elavon Financial Services DAC, UK Branch, as paying agent (the “Paying Agent”) (together with the Base Indenture, the “Indenture”), and are to be sold pursuant to the Underwriting Agreement dated July 22, 2019 (the “Underwriting Agreement”) among the Company, the guarantors named therein and the several underwriters named in Schedule B thereto (the “Underwriters”) and will be subject to the Agency Agreement among the Company, the Paying Agent, U.S. Bank National Association, as registrar and transfer agent, and the Trustee.

 

We, as your counsel, have examined originals or copies of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.

 

In rendering the opinions expressed herein, we have, without independent inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted to us as copies conform to authentic, complete originals, (iii) all documents filed as exhibits to the Registration Statement that have not been executed will conform to the forms thereof, (iv) all signatures on all documents that we reviewed are genuine,

 


 

(v) all natural persons executing documents had and have the legal capacity to do so, (vi) all statements in certificates of public officials and officers of the Company and the Guarantors that we reviewed were and are accurate and (vii) all representations made by the Company and the Guarantors as to matters of fact in the documents that we reviewed were and are accurate.

 

Based upon the foregoing, and subject to the additional assumptions and qualifications set forth below, we advise you that, in our opinion:

 

1.                                      When the Notes have been duly executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, such Notes will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and will be entitled to the benefits of the Indenture pursuant to which such Notes are to be issued, provided that we express no opinion as to (x) the enforceability of any waiver of rights under any stay law, (y) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above or (z) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Notes to the extent determined to constitute unearned interest.

 

2.                                      Assuming the due authorization of the Guarantee endorsed on each Note by the applicable Non-Delaware Guarantor (as specified on Schedule I hereto), the Guarantees, when the Notes (and the Guarantees endorsed thereon) are executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, will constitute valid and binding obligations of the applicable Guarantor, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability; provided that we express no opinion as to (x) the enforceability of any waiver of rights under any stay law, (y) (i) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above or (ii) any provision of the Indenture or the Guarantee that purports to avoid the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law by limiting the amount of the Guarantor’s obligation or (z) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Notes to the extent determined to constitute unearned interest.

 

In rendering the opinions in paragraphs (1) and (2) above, we have assumed that each of the Trustee and the Non-Delaware Guarantors has been duly incorporated and is validly existing and in good standing under the laws of the jurisdiction of its organization. In addition, we have assumed that (i) the execution, delivery and performance of the Indenture and the Securities (a) are within the corporate powers of each of the Trustee and the Non-Delaware Guarantors, (b) do not contravene, or constitute a default under, the certificate of incorporation or bylaws or other constitutive documents of each of the Trustee and the Non-Delaware Guarantors, (c) require no

 

2


 

action by or in respect of, or filing with, any governmental body, agency or official and (d) do not contravene, or constitute a default under, any public policy, any provision of applicable law or regulation or any judgment, injunction, order or decree or any agreement or other instrument binding upon such party and (ii) each of the Indenture and the Notes is a valid, binding and enforceable agreement of the Trustee.

 

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, except that we express no opinion as to any law, rule or regulation that is applicable to the Company or the Guarantors, the Documents or such transactions solely because such law, rule or regulation is part of a regulatory regime applicable to any party to any of the Documents or any of its affiliates due to the specific assets or business of such party or such affiliate.

 

We hereby consent to the filing of this opinion as an exhibit to a report on Form 8-K to be filed by the Company on the date hereof and its incorporation by reference into the Registration Statement. In addition, we further consent to the reference to our name under the caption “Legal Matters” in the prospectus supplement relating to the Securities, which is a part of the Registration Statement.  In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.

 

Very truly yours,

 

 

/s/ Davis Polk & Wardwell LLP

 

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Schedule I

 

Guarantors

 

Jurisdiction of Incorporation

Delaware Guarantors:

 

 

Federal Express Corporation

 

Delaware

Federal Express Europe, Inc.

 

Delaware

Federal Express Holdings S.A.

 

Delaware

Federal Express International, Inc.

 

Delaware

FedEx Corporate Services, Inc.

 

Delaware

FedEx Freight Corporation

 

Delaware

FedEx Ground Package System, Inc.

 

Delaware

Non-Delaware Guarantors:

 

 

FedEx Freight, Inc.

 

Arkansas

FedEx Office and Print Services, Inc.

 

Texas

 


Exhibit 5.2

 

FedEx Office and Print Services, Inc.

7900 Legacy Drive

Plano, Texas 75024

 

August 5, 2019

 

FedEx Corporation

942 South Shady Grove Road

Memphis, Tennessee 38120

 

Ladies and Gentlemen:

 

FedEx Corporation, a Delaware corporation (the “Company”), FedEx Office and Print Services, Inc., a Texas corporation (“FedEx Office”), and the other subsidiary guarantors named in the Registration Statement (defined below) have filed with the Securities and Exchange Commission (the “Commission”) a Registration Statement on Form S-3 (File No. 333-226426) (the “Registration Statement”) and a prospectus supplement dated July 22, 2019 (the “Prospectus Supplement”) for the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”), certain securities including €500,000,000 aggregate principal amount of the Company’s 0.450% Notes due 2025 (the “2025 Notes”) and €500,000,000 aggregate principal amount of the Company’s 1.300% Notes due 2031 (the “2031 Notes” and, together with the 2025 Notes, the “Notes”) and the related joint and several guarantees of the Notes (the “Guarantees”).  The Notes and the Guarantees are to be issued pursuant to the provisions of a base indenture, dated as of October 23, 2015, between the Company, the guarantors party thereto (the “Guarantors”) and Wells Fargo Bank, National Association, as trustee (the “Trustee”) (the “Base Indenture”), as supplemented by supplemental indenture no. 1, dated as of October 23, 2015, between the Company, the Guarantors and the Trustee (“Supplemental Indenture No. 1”),  as further supplemented by supplemental indenture no. 2, dated as of March 24, 2016, between the Company, the Guarantors and the Trustee (“Supplemental Indenture No. 2”), as further supplemented by supplemental indenture no. 3, dated as of April 11, 2016, between the Company, the Guarantors, the Trustee and Elavon Financial Services Limited, UK Branch, as paying agent (“Supplemental Indenture No. 3”), as further supplemented by supplemental indenture no. 4, dated as of January 6, 2017, between the Company, the Guarantors and the Trustee (“Supplemental Indenture No. 4”), as further supplemented by supplemental indenture no. 5, dated as of January 31, 2018, between the Company, the Guarantors and the Trustee (“Supplemental Indenture No. 5”), as further supplemented by supplemental indenture no. 6, dated October 17, 2018, between the Company, the Guarantors and the Trustee (“Supplemental Indenture No. 6”), as further supplemented by supplemental indenture no. 7, dated as of January 16, 2019, between the Company, the Guarantors and the Trustee (“Supplemental Indenture No. 7”), as further supplemented by supplemental indenture no. 8, dated as of January 18, 2019, between the Company, the Guarantors, the Trustee and Elavon Financial Services DAC, UK Branch, as paying agent (the “Paying Agent”) (“Supplemental Indenture No. 8”), as further supplemented by supplemental indenture no. 9, dated as of July 24, 2019, between the Company, the Guarantors and the Trustee (“Supplemental Indenture No. 9”), as further supplemented by

 


 

supplemental indenture no. 10, dated as of August 5, 2019, between the Company, the Guarantors, the Trustee and Elavon Financial Services DAC, UK Branch, as paying agent (the “Paying Agent”) (“Supplemental Indenture No. 10”) (the Base Indenture, Supplemental Indenture No. 1, Supplemental Indenture No. 2, Supplemental Indenture No. 3, Supplemental Indenture No. 4, Supplemental Indenture No. 5, Supplemental Indenture No. 6, Supplemental Indenture No. 7, Supplemental Indenture No. 8, Supplemental Indenture No. 9 and Supplemental Indenture No. 10 are collectively referred to herein as the “Indenture”), and are to be sold pursuant to the Underwriting Agreement dated July 22, 2019, among the Company, the subsidiary guarantors named therein and the several underwriters named in Schedule A thereto (the “Underwriting Agreement”) and will be subject to the Agency Agreement between the Company, the Paying Agent, U.S. Bank National Association, as registrar and transfer agent, and the Trustee.

 

I am the Senior Vice President and General Counsel of FedEx Office and have acted as counsel to FedEx Office in connection with the issuance and delivery by FedEx Office of its Guarantee of the Notes (the “FedEx Office Guarantee”).

 

In connection with the opinions expressed below, I have examined, or caused to be examined by attorneys under my supervision, originals or copies, certified or otherwise identified to my satisfaction, of the Registration Statement, the Prospectus Supplement, the Indenture, the FedEx Office Guarantee, the Underwriting Agreement, FedEx Office’s certificate of formation and bylaws, and such agreements, documents, certificates and statements of government officials and other papers as I have deemed necessary or advisable as a basis for such opinions.  In such examination, I have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity with the originals of all documents submitted to us as certified, conformed, photostatic, electronic or facsimile copies and the authenticity of the originals of such documents.  In making our examination of executed documents and documents to be executed, I have assumed (i) that the parties thereto (other than FedEx Office) had or will have the power, corporate or otherwise, and authority to enter into and perform all obligations thereunder, (ii) the due delivery by such parties of such documents and (iii) that such documents constitute or will constitute valid and binding obligations of such parties.  As to any facts material to the opinions expressed herein, which I have not independently established or verified, I have relied upon statements and representations of officers and representatives of FedEx Office.

 

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Based upon the foregoing, it is my opinion that:

 

1.                                      FedEx Office is a corporation validly existing and in good standing under the laws of the State of Texas.

 

2.                                      FedEx Office has the corporate power to (a) enter into and perform its obligations under the Indenture and (b) create, enter into and perform its obligations under the FedEx Office Guarantee.

 

3.                                      Each of the Indenture and the FedEx Office Guarantee has been duly and validly authorized, executed and delivered by FedEx Office.

 

I am qualified to practice law in the State of Texas, and the foregoing opinion is limited to the laws of the State of Texas.

 

I hereby consent to the filing of this opinion as an exhibit to a report on Form 8-K to be filed by the Company on the date hereof and its incorporation by reference into the Registration Statement.  In addition, I further consent to the reference to me under the heading “Legal Matters” in the Prospectus Supplement, which is a part of the Registration Statement.  In giving such consent, I do not admit that I am in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

 

Davis Polk & Wardwell LLP, special counsel to the Company, may rely upon this opinion in rendering its opinion of even date herewith.

 

[The remainder of this page is intentionally left blank]

 

3


 

This opinion is expressed as of the date hereof and I undertake no, and disclaim any, obligation to advise you (or any third party) of any subsequent change in or development of law or fact that might affect the matters, conclusions, statements or opinions set forth herein.

 

 

Sincerely,

 

 

 

FedEx Office and Print Services, Inc.

 

 

 

 

 

/s/ Kimble H. Scott

 

Kimble H. Scott

 

Senior Vice President and General Counsel

 

[Signature Page to Office Exhibit 5 Opinion — Scott]

 

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Exhibit 5.3

 

FedEx Freight, Inc.

2200 Forward Drive

Harrison, Arkansas 72601

 

August 5, 2019

 

FedEx Corporation

942 South Shady Grove Road

Memphis, Tennessee 38120

 

Ladies and Gentlemen:

 

FedEx Corporation, a Delaware corporation (the “Company”), FedEx Freight, Inc., an Arkansas corporation (“FedEx Freight”), and the other subsidiary guarantors named in the Registration Statement (defined below) have filed with the Securities and Exchange Commission (the “Commission”) a Registration Statement on Form S-3 (File No. 333-226426) (the “Registration Statement”) and a prospectus supplement dated July 22, 2019 (the “Prospectus Supplement”) for the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”), certain securities including €500,000,000 aggregate principal amount of the Company’s 0.450% Notes due 2025 (the “2025 Notes”) and €500,000,000 aggregate principal amount of the Company’s 1.300% Notes due 2031 (the “2031 Notes” and, together with the 2025 Notes, the “Notes”) and the related joint and several guarantees of the Notes (the “Guarantees”).  The Notes and the Guarantees are to be issued pursuant to the provisions of a base indenture, dated as of October 23, 2015, between the Company, the guarantors party thereto (the “Guarantors”) and Wells Fargo Bank, National Association, as trustee (the “Trustee”) (the “Base Indenture”), as supplemented by supplemental indenture no. 1, dated as of October 23, 2015, between the Company, the Guarantors and the Trustee (“Supplemental Indenture No. 1”),  as further supplemented by supplemental indenture no. 2, dated as of March 24, 2016, between the Company, the Guarantors and the Trustee (“Supplemental Indenture No. 2”), as further supplemented by supplemental indenture no. 3, dated as of April 11, 2016, between the Company, the Guarantors, the Trustee and Elavon Financial Services Limited, UK Branch, as paying agent (“Supplemental Indenture No. 3”), as further supplemented by supplemental indenture no. 4, dated as of January 6, 2017, between the Company, the Guarantors and the Trustee (“Supplemental Indenture No. 4”), as further supplemented by supplemental indenture no. 5, dated as of January 31, 2018, between the Company, the Guarantors and the Trustee (“Supplemental Indenture No. 5”), as further supplemented by supplemental indenture no. 6, dated October 17, 2018, between the Company, the Guarantors and the Trustee (“Supplemental Indenture No. 6”), as further supplemented by supplemental indenture no. 7, dated as of January 16, 2019, between the Company, the Guarantors and the Trustee (“Supplemental Indenture No. 7”), as further supplemented by supplemental indenture no. 8, dated as of January 18, 2019, between the Company, the Guarantors, the Trustee and Elavon Financial Services DAC, UK

 

1


 

Branch, as paying agent (the “Paying Agent”) (“Supplemental Indenture No. 8”), as further supplemented by supplemental indenture no. 9, dated as of July 24, 2019, between the Company, the Guarantors and the Trustee (“Supplemental Indenture No. 9”), as further supplemented by supplemental indenture no. 10, dated as of August 5, 2019, between the Company, the Guarantors, the Trustee and the Paying Agent (“Supplemental Indenture No. 10”) (the Base Indenture, Supplemental Indenture No. 1, Supplemental Indenture No. 2, Supplemental Indenture No. 3, Supplemental Indenture No. 4, Supplemental Indenture No. 5, Supplemental Indenture No. 6, Supplemental Indenture No. 7, Supplemental Indenture No. 8, Supplemental Indenture No. 9 and Supplemental Indenture No. 10 are collectively referred to herein as the “Indenture”), and are to be sold pursuant to the Underwriting Agreement dated July 22, 2019, among the Company, the subsidiary guarantors named therein and the several underwriters named in Schedule A thereto (the “Underwriting Agreement”) and will be subject to the Agency Agreement between the Company, the Paying Agent, U.S. Bank National Association, as registrar and transfer agent, and the Trustee.

 

I am the Managing Director — Employment Law and Assistant Secretary of FedEx Freight and have acted as counsel to FedEx Freight in connection with the issuance and delivery by FedEx Freight of its Guarantee of the Notes (the “FedEx Freight Guarantee”).

 

In connection with the opinions expressed below, I have examined, or caused to be examined by attorneys under my supervision, originals or copies, certified or otherwise identified to my satisfaction, of the Registration Statement, the Prospectus Supplement, the Indenture, the FedEx Freight Guarantee, the Underwriting Agreement, FedEx Freight’s articles of incorporation, as amended, and bylaws, as amended, and such agreements, documents, certificates and statements of government officials and other papers as I have deemed necessary or advisable as a basis for such opinions.  In such examination, I have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity with the originals of all documents submitted to us as certified, conformed, photostatic, electronic or facsimile copies and the authenticity of the originals of such documents.  In making our examination of executed documents and documents to be executed, I have assumed (i) that the parties thereto (other than FedEx Freight) had or will have the power, corporate or otherwise, and authority to enter into and perform all obligations thereunder, (ii) the due delivery by such parties of such documents and (iii) that such documents constitute or will constitute valid and binding obligations of such parties.  As to any facts material to the opinions expressed herein, which I have not independently established or verified, I have relied upon statements and representations of officers and representatives of FedEx Freight.

 

Based upon the foregoing, it is my opinion that:

 

1.                                      FedEx Freight is a corporation validly existing and in good standing under the laws of the State of Arkansas.

 

2


 

2.                                      FedEx Freight has the corporate power to (a) enter into and perform its obligations under the Indenture and (b) create, enter into and perform its obligations under the FedEx Freight Guarantee.

 

3.                                      Each of the Indenture and the FedEx Freight Guarantee has been duly and validly authorized, executed and delivered by FedEx Freight.

 

I am qualified to practice law in the State of Arkansas, and the foregoing opinion is limited to the laws of the State of Arkansas.

 

I hereby consent to the filing of this opinion as an exhibit to a report on Form 8-K to be filed by the Company on the date hereof and its incorporation by reference into the Registration Statement.  In addition, I further consent to the reference to me under the heading “Legal Matters” in the Prospectus Supplement, which is a part of the Registration Statement.  In giving such consent, I do not admit that I am in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

 

Davis Polk & Wardwell LLP, special counsel to the Company, may rely upon this opinion in rendering its opinion of even date herewith.

 

[The remainder of this page is intentionally left blank]

 

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This opinion is expressed as of the date hereof and I undertake no, and disclaim any, obligation to advise you (or any third party) of any subsequent change in or development of law or fact that might affect the matters, conclusions, statements or opinions set forth herein.

 

 

Sincerely,

 

 

 

FedEx Freight, Inc.

 

 

 

 

 

/s/ Christina R. Conrad

 

Christina R. Conrad

 

Managing Director — Employment Law

 

and Assistant Secretary

 

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