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EXHIBIT (d)(4)
September 21, 2000
FedEx Corporation
942 South Shady Grove Road
Memphis, Tennessee 38120
Ladies and Gentlemen:
In order to allow you to evaluate a possible business transaction (a
"Potential Transaction") involving American Freightways Corporation and its
subsidiaries (collectively, the "Company"), the Company may have furnished and
expects to furnish to you, following your execution and delivery to us of this
letter agreement, certain information about the finances, properties and
operations of the Company. All information about the Company furnished by us or
our Representatives (as defined below), whether furnished before or after the
date hereof, whether oral or written, and regardless of the form of
communication or the manner in which it is furnished and all analyses,
compilations, data, studies, notes, interpretations, memoranda, extracts or
other documents prepared by you or your Representatives containing or based in
whole or in part on any such furnished information ("Analyses"), is referred to
in this letter agreement as "Proprietary Information." Proprietary Information
does not include, however, information which (a) is or becomes generally
available to the public other than as a result of a disclosure by you or your
Representatives in violation of this Agreement, (b) was or becomes available to
you or your Representatives on a non-confidential basis from a person other than
us or our Representatives who is not known by you or your Representatives to be
bound by a confidentiality agreement with us or any Representative of ours or to
otherwise be under an obligation to us or any Representative of ours not to
transmit the information to you, or (c) has been independently acquired or
developed by you without violating any of your obligations under this Agreement
or applicable law. As used in this letter agreement, the term "Representative"
means, as to any person, such person's affiliates and its and their directors,
shareholders, partners, members, officers, employees, consultants, independent
contractors, agents, advisors (including, without limitation, financial
advisors, counsel and accountants) and controlling persons. As used in this
letter agreement the term "person" shall be broadly interpreted to include,
without limitation, the media, any corporation, company, partnership, other
entity or individual and includes, without limitation, any of your or our
employees, competitors, customers or suppliers.
Unless otherwise agreed to in writing by us, you agree (a) to keep all
Proprietary Information strictly confidential and not to disclose or reveal any
Proprietary Information to any person other than your Representatives who need
to receive such Proprietary Information for the sole purpose of actively and
directly participating in your evaluation of a Potential Transaction ("Permitted
Representatives") and to inform those persons of, and cause those persons to
observe, the terms of this letter agreement, (b) not to use Proprietary
Information to compete directly or indirectly with the Company or its
subsidiaries or for any other purpose other than in connection with your
evaluation of a Potential Transaction, and (c) not to issue any press release
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September 21, 2000
Page 2
or make any other public or private disclosure to any person (other than the
Permitted Representatives) of any Proprietary Information or information about a
Potential Transaction, or any terms or conditions or any other facts relating
thereto, including, without limitation, the fact that discussions are taking
place with respect thereto or the status thereof, or the fact that Proprietary
Information has been made available to you or your Representatives. You will be
responsible for any breach of the terms of this letter agreement by you or your
Representatives.
In the event that you or any of your Representatives are required by
applicable law or regulation or by legal process or NYSE rules (which
requirement shall not have been caused by the acts of you or your
Representatives) to disclose any Proprietary Information or any other
information concerning the company or a Potential Transaction, you agree that
you will and will cause your Representatives to provide us with prompt notice of
such request or requirement in order to enable us to seek an appropriate
protective order or other remedy, to take steps to resist or narrow the scope of
such requirement (and you will and will cause your Representatives to consult
and cooperate fully with us in taking any such steps), and/or to waive
compliance, in whole or in part, with the terms of this letter agreement. If
you or any of your Representatives are nonetheless, in the written opinion of
counsel a copy of which is provided to us, legally compelled to disclose any
such Proprietary Information or other information, you or your Representatives
may disclose only that portion of such Proprietary Information or other
information which such counsel advises you in such opinion is legally required
to be disclosed, provided that you give the Company prior written notice of the
information to be disclosed as far in advance of its disclosure as is
practicable. In any such event you will use your reasonable best efforts to
ensure that all Proprietary Information and other information that is so
disclosed will be accorded confidential treatment, including by cooperating
fully with the Company to obtain an appropriate protective order or other
reliable assurance that confidential treatment will be accorded to such
Proprietary Information or other information.
You also agree that for a period ending two years from the later of the
date of this letter agreement and the date that you deliver a written notice of
termination to us as described below, neither you nor any of your
Representatives will, without the prior written consent of the Board of
Directors of the Company:
(a) acquire, offer or propose to acquire, or agree to acquire,
directly or indirectly, by purchase, business combination, merger, joint
venture or otherwise, any securities or direct or indirect rights to
acquire any securities of the Company or any subsidiary thereof, or of any
successor to or person in control of the Company, or any assets of the
company or any subsidiary or division thereof or of any such successor or
controlling person;
(b) make, or in any way participate, directly or indirect, in any
"solicitation" of "proxies" to vote or become a "participant" in an
"election contest" with respect to the Company (as such terms are used in
the rules of the Securities and Exchange Commission), or seek to advise or
influence any person or entity with respect to the voting of, any voting
securities of the Company;
(c) make any public announcement with respect to, or submit a
proposal for, or offer of (with or without conditions) any business
combination, acquisition, merger or similar transaction involving the
company or any of its securities or assets;
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September 21, 2000
Page 3
(d) form, join or in any way participate in a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, or
otherwise assist, act as a financing party for or encourage any other
person, in connection with any voting securities of the Company or any of
the foregoing;
(e) disclose any intention, plan or arrangement inconsistent with any
of the foregoing; or
(f) take any initiative with respect to the Company which involves
making a public announcement or could require the Company to make a public
announcement regarding such matter or any of the foregoing.
You will promptly advise the Company of any inquiry or proposal made to you
with respect to any of the foregoing.
If you determine that you do not wish to proceed with a Potential
Transaction, you will promptly advise us of that decision in a written notice of
termination. In that case, or in the event that we, in our sole discretion, so
request at any time, you will, upon our request, promptly deliver to us all
Proprietary Information, including all Analyses and all copies thereof, in your
possession or in the possession of any Representative of yours provided,
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however, that you may destroy and certify to us the destruction of all copies of
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any Analyses which contain Proprietary Information.
You acknowledge that none of the Company or our Representatives and none of
the respective officers, directors, employees, agents or controlling persons of
the Company or such Representatives makes any express or implied representation
or warranty as to the accuracy or completeness of any Proprietary Information,
and you agree that none of such persons shall have any liability to you or any
of your Representatives relating to or arising from your or their use of any
Proprietary Information or for any errors therein or omissions therefrom. You
also agree that you are not entitled to rely on the accuracy or completeness of
any Proprietary Information and that you shall be entitled to rely solely on
such representations and warranties regarding Proprietary Information as may be
made to you in any definitive agreement relating to a Potential Transaction,
subject to the terms and conditions of such agreement.
You agree that, for a period of two years from the date of this letter
agreement, without the prior written consent of the Company, neither you nor any
of your Representatives (on your behalf) will (or will assist or encourage
others to), directly or indirectly, solicit to hire or hire (or cause or seek to
cause) to leave the employ of the Company: (a) any executive, managerial or
sales employee of the Company; or (b) any other employee of the Company with
whom you have had contact or who (or whose performance) became known to you in
connection with the process contemplated by this letter agreement; provided,
however, that the foregoing provisions will not prevent you from hiring any such
person (i) who contacts you on his or her own initiative without any direct or
indirect solicitation by or encouragement from or on behalf of you or your
Representatives, (ii) as a result of placing general advertisements in trade
journals, newspapers or similar publications which are not directed at the
Company or its employees, or (iii) as a result of the efforts of executive
recruiters who contact such persons on their own initiative without any
encouragement or direction from or on behalf of you or your Representatives
relating to the Company or its employees.
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September 21, 2000
Page 4
You agree that until a definitive agreement regarding a Potential
Transaction has been executed by you and us (and then only to the extent
specifically set forth therein), no contract or agreement providing for a
Potential Transaction shall be deemed to exist between you and us, and neither
we nor any of our Representatives on the one hand, nor you nor any of your
Representatives, on the other hand, are under any legal obligation or have any
liability to the other of any nature whatsoever with respect to a Potential
Transaction by virtue of this letter agreement or otherwise, except for the
matters specifically agreed to herein. You also acknowledge and agree that (a)
we and our Representatives may conduct the process that may or may not result in
a Potential Transaction in such manner as we, in our sole discretion, may
determine (including, without limitation, negotiating and entering into a
definitive agreement regarding a Potential Transaction or any other transaction
with any third party or terminating our consideration of any Potential
Transaction or other transaction at any time without notice to you) and (b) we
reserve the right to change (in our sole discretion, at any time and without
notice to you) the procedures relating to our and your consideration of a
Potential Transaction (including, without limitation, rejecting any proposals or
offers from you, terminating all further discussions with you and requesting
that you return all Proprietary Information to us pursuant to this letter
agreement).
Without prejudice to the rights and remedies otherwise available to us, you
agree we shall be entitled to equitable relief by way of injunction or otherwise
without the posting of any bond or other security if you or any of your
Representatives breach or threaten to breach any of the provisions of this
letter agreement. Such remedies shall not be deemed to be the exclusive
remedies for a breach of this letter agreement and shall be in addition to all
other remedies available at law or equity to the Company. In the event of
litigation relating to this letter agreement, if a court of competent
jurisdiction determines that you or any of your Representatives have breached
any provision of this letter agreement, then you shall be liable and pay to the
Company all legal fees and other expenses incurred by it in connection with such
litigation, including any appeal therefrom.
You hereby acknowledge that you are aware, and that you will advise your
Representatives, that the United States securities laws prohibit any person who
has material, non-public information concerning the matters which are the
subject of this letter agreement from purchasing or selling securities of a
company which may be a party to a transaction of the type contemplated by this
letter agreement or from communicating such information to any other person
under circumstances in which it is reasonably foreseeable that such person is
likely to purchase or sell such securities.
It is further understood and agreed that no failure or delay by us in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any right, power or privilege
hereunder. If any provision or portion of this letter agreement is determined
by a court of competent jurisdiction to be invalid or unenforceable, in whole or
in part, for any reason, the remaining provisions of this letter shall be
unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by applicable law and there shall be substituted for the
unenforceable provision or portion a substitute provision or portion which shall
as nearly as possible achieve the intent of the unenforceable provision or
portion.
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September 21, 2000
Page 5
This letter agreement shall be governed by and construed in accordance with
the laws of the State of Arkansas without giving effect to the conflicts of laws
principles thereof.
You agree that except as contemplated below, neither you nor your
Representatives will initiate or maintain contact with any Representatives,
suppliers, clients or customers of the Company regarding its business,
operations, prospects, finances or any other matter pertaining to the Company in
connection with or relating to a Potential Transaction. In addition, you agree
that all (a) contacts or communications by you or your Representatives with the
Company regarding the Proprietary Information or a Potential Transaction, (b)
requests for additional Proprietary Information, (c) requests for facility tours
or management meetings and (d) discussions or questions regarding procedures
shall be made through Donaldson, Lufkin & Jenrette, Inc. or the Chairman, Chief
Executive Officer, Corporate Vice President, or Chief Financial Officer of the
Company.
You hereby represent and warrant to the Company that this letter agreement
has been duly authorized, executed and delivered by an authorized officer or
representative of you and is enforceable in accordance with its terms against
you, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles.
Any assignment of this letter agreement by you without our prior written
consent shall be void. The Company reserves the right to assign its rights,
powers and privileges under this letter agreement (including, without
limitation, the right to enforce the terms of this letter agreement) to any
person with whom it consummates a Potential Transaction.
This letter agreement contains the entire agreement between you and us
concerning confidentiality of the Proprietary Information, and no modification
of this letter agreement or waiver of the terms and conditions hereof shall be
binding upon you or us, unless approved in writing by each of you and us.
The obligations under this letter agreement are conditional upon the
simultaneous execution of that corresponding letter agreement from you to us
wherein, among other things, we agree to maintain the confidentiality of certain
of your Proprietary Information.
Please confirm your agreement with the foregoing by signing and returning
to the undersigned the duplicate copy of this letter enclosed herewith,
whereupon this letter agreement shall become a binding agreement between you and
the Company with respect to the matters set forth herein.
American Freightways Corporation
By: /s/ F. S. Garrison
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Its: Chairman
Accepted and Agreed as of the date
first written above
FedEx Corporation
By: /s/ Alan B. Graf, Jr.
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Name: Alan B. Graf, Jr.
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Title: Executive Vice President/
Chief Financial Officer
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