Exhibit 4.3
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement")
dated as of December 21, 2000, between Airborne Freight
Corporation, a Delaware corporation ("ABF"), and Airborne, Inc.,
a Delaware corporation ("Airborne").
PRELIMINARY STATEMENTS
A. An Agreement and Plan of Merger ("Agreement") dated November
7, 2000 by and among ABF, Airborne and AEX Merger, Inc., a
Delaware corporation ("Merger Sub"), was filed with the Secretary
of State, State of Delaware, on December 21, 2000.
B. Pursuant to the Agreement, on December 26, 2000 (the
"Effective Time"), Merger Sub will be merged into ABF, with ABF
being the surviving corporation, and as a result of the merger
(the "Merger"), each certificate for shares of common stock of
ABF, $1.00 par value ("ABF Common Stock"), outstanding at the
Effective Time shall, by virtue of the Merger and without any
action on the part of ABF, Airborne, Merger Sub or the holder
thereof, automatically be deemed to represent the same number of
shares of common stock of Airborne, $1.00 par value ("Airborne
Common Stock").
C. Pursuant to the Rights Agreement dated as of February 14,
1997 ("Rights Agreement") between ABF and The Bank of New York, a
New York banking corporation ("Rights Agent"), ABF has heretofore
issued one Right, as defined in the Rights Agreement ("ABF
Right"), with respect to each outstanding share of ABF Common
Stock. Immediately prior to the Effective Time, each ABF Right
will represent the right to purchase one two-hundredth (1/200) of
a share of Series A Participating Cumulative Preferred Stock of
ABF, without par value. The ABF Rights are evidenced by the
certificates for ABF Common Stock in the names of the holders
thereof.
D. ABF desires to assign and delegate to Airborne, and Airborne
desires to assume, all of the rights and obligations of ABF under
the Rights Agreement in order to ensure that that holders of the
ABF Rights retain rights immediately after the Effective Time
substantially equivalent to the ABF Rights such holders had under
the Rights Agreement immediately prior to the Effective Time.
NOW, THEREFORE, it is hereby agreed as follows:
1. As of the Effective Time:
(a) ABF hereby assigns and delegates to Airborne all of
ABF's rights and obligations under the Rights
Agreement. Airborne hereby accepts such assignment and
assumes all of the obligations of ABF under the Rights
Agreement.
(b) Each issued and outstanding ABF Right shall
automatically become a right ("Airborne Right") to
purchase one two-hundredth (1/200) of a share of Series
A Participating Cumulative Preferred Stock of Airborne,
without par value ("Series A Preferred Stock"), having
the powers, rights and preferences set forth in the
Certificate of Incorporation of Airborne.
2. Airborne agrees to reserve and set aside that number of
authorized but unissued shares of its Series A Preferred Stock
sufficient to permit the exercise in full of all Airborne Rights
that will be outstanding following the Effective Time.
3. After the Effective Time, the Airborne Rights will initially
be evidenced by the certificates for Airborne Common Stock
registered in the names of the holders thereof, which
certificates for Airborne Common Stock shall also be deemed to be
"Right Certificates," as defined in the Rights Agreement.
4. After the Effective Time, all references to Airborne Freight
Corporation and the "Company" in the Rights Agreement and the
exhibits thereto shall be deemed to be references to Airborne.
5. After the Effective Time, the Rights Agreement shall be
known as the "Airborne Rights Agreement."
6. Each of ABF and Airborne hereby represents and warrants
that:
(a) this Agreement has been duly authorized, executed and
delivered on its behalf; and
(b) this Agreement constitutes its legal, valid and binding
obligation, enforceable against it in accordance with
its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights
generally and general equitable principles.
7. This Agreement shall not become effective unless and until
the Effective Time shall have occurred.
8. This Agreement (i) shall inure to the benefit of the holders
of the ABF Rights and their respective successors and permitted
assigns, and (ii) shall inure to the benefit of and be binding
upon ABF and Airborne and their respective successors and
permitted assigns.
9. Nothing in this Agreement shall be deemed to create any
right in any creditor or other person or entity other than ABF,
Airborne, the Rights Agent and the holders of the ABF Rights, and
this Agreement shall not be construed in any respect to be a
contract in whole or in part for the benefit of any other third
party.
10. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no
way be affected, impaired or invalidated.
11. This Agreement shall be deemed to be a contract made under
the law of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the law of such
State applicable to contracts to be made and performed entirely
within such State.
IN WITNESS WHEREOF, ABF and Airborne have execute this
Agreement as of the date first above written.
AIRBORNE, INC. AIRBORNE FREIGHT CORPORATION
By:/s/Lanny H. Michael By:/s/Lanny H. Michael
Lanny H. Michael Lanny H. Michael
Senior Vice President Senior Vice President
