{"id":40762,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/confidentiality-agreement-fedex-corp-and-american-freightways.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"confidentiality-agreement-fedex-corp-and-american-freightways","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/confidentiality-agreement-fedex-corp-and-american-freightways.html","title":{"rendered":"Confidentiality Agreement &#8211; FedEx Corp. and American Freightways Corp."},"content":{"rendered":"<pre>\n\n                               FedEx Corporation\n                          942 South Shady Grove Road\n                           Memphis, Tennessee 38120\n\n\n                              September 21, 2000\n\n\n\nAmerican Freightways Corporation\n2200 Forward Drive\nHarrison, AR  72601\n\n\nLadies and Gentlemen:\n\n     In order to allow you to evaluate a possible business transaction (a\n\"Potential Transaction\") involving FedEx Corporation and its subsidiaries\n(collectively, the \"Company\"), the Company may have furnished and expects to\nfurnish to you, following your execution and delivery to us of this letter\nagreement, certain information about the finances, properties and operations of\nthe Company.  All information about the Company furnished by us or our\nRepresentatives (as defined below), whether furnished before or after the date\nhereof, whether oral or written, and regardless of the form of communication or\nthe manner in which it is furnished and all analyses, compilations, data,\nstudies, notes, interpretations, memoranda, extracts or other documents prepared\nby you or your Representatives containing or based in whole or in part on any\nsuch furnished information (\"Analyses\"), is referred to in this letter agreement\nas \"Proprietary Information.\"  Proprietary Information does not include,\nhowever, information which (a) is or becomes generally available to the public\nother than as a result of a disclosure by you or your Representatives in\nviolation of this Agreement, (b) was or becomes available to you or your\nRepresentatives on a non-confidential basis from a person other than us or our\nRepresentatives who is not known by you or your Representatives to be bound by a\nconfidentiality agreement with us or any Representative of ours or to otherwise\nbe under an obligation to us or any Representative of ours not to transmit the\ninformation to you, or (c) has been independently acquired or developed by you\nwithout violating any of your obligations under this Agreement or applicable\nlaw.  As used in this letter agreement, the term \"Representative\" means, as to\nany person, such person's affiliates and its and their directors, shareholders,\npartners, members, officers, employees, consultants, independent contractors,\nagents, advisors (including, without limitation, financial advisors, counsel and\naccountants) and controlling persons.  As used in this letter agreement the term\n\"person\" shall be broadly interpreted to include, without limitation, the media,\nany corporation, company, partnership, other entity or individual and includes,\nwithout limitation, any of your or our employees, competitors, customers or\nsuppliers.\n\n     Unless otherwise agreed to in writing by us, you agree (a) to keep all\nProprietary Information strictly confidential and not to disclose or reveal any\nProprietary Information to any \n\n \nSeptember 21, 2000\nPage 2\n\n\nperson other than your Representatives who need to receive such Proprietary\nInformation for the sole purpose of actively and directly participating in your\nevaluation of a Potential Transaction (\"Permitted Representatives\") and to\ninform those persons of, and cause those persons to observe, the terms of this\nletter agreement, (b) not to use Proprietary Information to compete directly or\nindirectly with the Company or its subsidiaries or for any other purpose other\nthan in connection with your evaluation of a Potential Transaction, and (c) not\nto issue any press release or make any other public or private disclosure to any\nperson (other than the Permitted Representatives) of any Proprietary Information\nor information about a Potential Transaction, or any terms or conditions or any\nother facts relating thereto, including, without limitation, the fact that\ndiscussions are taking place with respect thereto or the status thereof, or the\nfact that Proprietary Information has been made available to you or your\nRepresentatives. You will be responsible for any breach of the terms of this\nletter agreement by you or your Representatives.\n\n     In the event that you or your Representatives are required by applicable\nlaw or regulation or by legal process or NASDAQ rules (which requirement shall\nnot have been caused by the acts of you or your Representatives) to disclose any\nProprietary Information or any other information concerning the Company or a\nPotential Transaction, you agree that you will and will cause your\nRepresentatives to provide us with prompt notice of such request or requirement\nin order to enable us to seek an appropriate protective order or other remedy,\nto take steps to resist or narrow the scope of such requirement (and you will\nand will cause your Representatives to consult and cooperate fully with us in\ntaking any such steps), and\/or to waive compliance in whole or in part, with the\nterms of this letter agreement.  If you or any of your Representatives are\nnonetheless, in the written opinion of counsel a copy of which is provided to\nus, legally compelled to disclose any such Proprietary Information or other\ninformation, you or your Representatives may disclose only that portion of such\nProprietary Information or other information which such counsel advises you in\nsuch opinion is legally required to be disclosed, provided that you give the\nCompany prior written notice of the information to be disclosed as far in\nadvance of its disclosure as is practicable.  In any such event you will use\nyour reasonable best efforts to ensure that all Proprietary Information and\nother information that is so disclosed will be accorded confidential treatment,\nincluding by cooperating fully with the Company to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be\naccorded to such Proprietary Information or other information.\n\n     You also agree that for a period ending two years from the later of the\ndate of this letter agreement and the date that you deliver a written notice of\ntermination to us as described below, neither you nor any of your\nRepresentatives will, without the prior written consent of the Board of\nDirectors of the Company:\n\n     (a) acquire, offer or propose to acquire, or agree to acquire, directly or\n     indirectly, by purchase, business combination, merger, joint venture or\n     otherwise, any securities or direct or indirect rights to acquire any\n     securities of the Company or any subsidiary thereof, or of any successor to\n     or person in control of the Company, or any assets of the company or any\n     subsidiary or division thereof or of any such successor or controlling\n     person;\n\n \nSeptember 21, 2000\nPage 3\n\n\n         (b) make, or in any way participate, directly or indirectly, in any\n     \"solicitation\" of \"proxies\" to vote or become a \"participant\" in an\n     \"election contest\" with respect to the Company (as such terms are used in\n     the rules of the Securities and Exchange Commission), or seek to advise or\n     influence any person or entity with respect to the voting of, any voting\n     securities of the Company;\n\n         (c) make any public announcement with respect to, or submit a proposal\n     for, or offer of (with or without conditions) any business combination,\n     acquisition, merger or similar transaction involving the company or any of\n     its securities or assets;\n\n         (d) form, join or in any way participate in a \"group\" as defined in\n     Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, or\n     otherwise assist, act as a financing party for or encourage any other\n     person, in connection with any voting securities of the Company or any of\n     the foregoing;\n\n         (e) disclose any intention, plan or arrangement inconsistent with any\n     of the foregoing; or\n\n         (f) take any initiative with respect to the Company which involves\n     making a public announcement or could require the Company to make a public\n     announcement regarding such matter or any of the foregoing.\n\n     You will promptly advise the Company of any inquiry or proposal made to you\nwith respect to any of the foregoing.\n\n     If you determine that you do not wish to proceed with a Potential\nTransaction, you will promptly advise us of that decision in a written notice of\ntermination.  In that case, or in the event that we, in our sole discretion, so\nrequest at any time, you will, upon our request, promptly deliver to us all\nProprietary Information, including all Analyses and all copies thereof, in your\npossession or in the possession of any Representative of yours provided,\n                                                               -------- \nhowever, that you may destroy and certify to us the destruction of all copies of\n-------                                                                         \nany Analyses which contain Proprietary Information.\n\n     You acknowledge that none of the Company or our Representatives and none of\nthe respective officers, directors, employees, agents or controlling persons of\nthe Company or such Representatives makes any express or implied representation\nor warranty as to the accuracy or completeness of any Proprietary Information,\nand you agree that none of such persons shall have any liability to you or any\nof your Representatives relating to or arising from your or their use of any\nProprietary Information or for any errors therein or omissions therefrom.  You\nalso agree that you are not entitled to rely on the accuracy or completeness of\nany Proprietary Information and that you shall be entitled to rely solely on\nsuch representations and warranties regarding Proprietary Information as may be\nmade to you in any definitive agreement relating to a Potential Transaction,\nsubject to the terms and conditions of such agreement.\n\n \nSeptember 21, 2000\nPage 4\n\n\n     You agree that, for a period of two years from the date of this letter\nagreement, without the prior written consent of the Company, neither you nor any\nof your Representatives (on your behalf) will (or will assist or encourage\nothers to), directly or indirectly, solicit to hire or hire (or cause or seek to\ncause) to leave the employ of the Company:  (a) any executive, managerial or\nsales employee of the Company; or (b) any other employee of the Company with\nwhom you have had contact or who (or whose performance) became known to you in\nconnection with the process contemplated by this letter agreement; provided,\nhowever, that the foregoing provisions will not prevent you from hiring any such\nperson (i) who contacts you on his or her own initiative without any direct or\nindirect solicitation by or encouragement from or on behalf of you or your\nRepresentatives, (ii) as a result of placing general advertisements in trade\njournals, newspapers or similar publications which are not directed at the\nCompany or its employees, or (iii) as a result of the efforts of executive\nrecruiters who contact such persons on their own initiative without any\nencouragement or direction from or on behalf of you or your Representatives\nrelating to the Company or its employees.\n\n     You agree that until a definitive agreement regarding a Potential\nTransaction has been executed by you and us (and then only to the extent\nspecifically set forth therein), no contract or agreement providing for a\nPotential Transaction shall be deemed to exist between you and us, and neither\nwe nor any of our Representatives on the one hand, nor you nor any of your\nRepresentatives, on the other hand, are under any legal obligation or have any\nliability to the other of any nature whatsoever with respect to a Potential\nTransaction by virtue of this letter agreement or otherwise, except for the\nmatters specifically agreed to herein.  You also acknowledge and agree that (a)\nwe and our Representatives may conduct the process that may or may not result in\na Potential Transaction in such manner as we, in our sole discretion, may\ndetermine (including, without limitation, negotiating and entering into a\ndefinitive agreement regarding a Potential Transaction or any other transaction\nwith any third party or terminating our consideration of any Potential\nTransaction or other transaction at any time without notice to you) and (b) we\nreserve the right to change (in our sole discretion, at any time and without\nnotice to you) the procedures relating to our and your consideration of a\nPotential Transaction (including, without limitation, rejecting any proposals or\noffers from you, terminating all further discussions with you and requesting\nthat you return all Proprietary Information to us pursuant to this letter\nagreement).\n\n     Without prejudice to the rights and remedies otherwise available to us, you\nagree we shall be entitled to equitable relief by way of injunction or otherwise\nwithout the posting of any bond or other security if you or any of your\nRepresentatives breach or threaten to breach any of the provisions of this\nletter agreement.  Such remedies shall not be deemed to be the exclusive\nremedies for a breach of this letter agreement and shall be in addition to all\nother remedies available at law or equity to the Company.  In the event of\nlitigation relating to this letter agreement, if a court of competent\njurisdiction determines that you or any of your Representatives have breached\nany provision of this letter agreement, then you shall be liable and pay to the\nCompany all legal fees and other expenses incurred by it in connection with such\nlitigation, including any appeal therefrom.\n\n \nSeptember 21, 2000\nPage 5\n\n     You hereby acknowledge that you are aware, and that you will advise your\nRepresentatives, that the United States securities laws prohibit any person who\nhas material, non-public information concerning the matters which are the\nsubject of this letter agreement from purchasing or selling securities of a\ncompany which may be a party to a transaction of the type contemplated by this\nletter agreement or from communicating such information to any other person\nunder circumstances in which it is reasonably foreseeable that such person is\nlikely to purchase or sell such securities.\n\n     It is further understood and agreed that no failure or delay by us in\nexercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or\nfurther exercise thereof or the exercise of any right, power or privilege\nhereunder.  If any provision or portion of this letter agreement is determined\nby a court of competent jurisdiction to be invalid or unenforceable, in whole or\nin part, for any reason, the remaining provisions of this letter shall be\nunaffected thereby and shall remain in full force and effect to the fullest\nextent permitted by applicable law and there shall be substituted for the\nunenforceable provision or portion a substitute provision or portion which shall\nas nearly as possible achieve the intent of the unenforceable provision or\nportion.\n\n     This letter agreement shall be governed by and construed in accordance with\nthe laws of the State of Tennessee without giving effect to the conflicts of\nlaws principles thereof.\n\n     You agree that except as contemplated below, neither you nor your\nRepresentatives will initiate or maintain contact with any Representatives,\nsuppliers, clients or customers of the Company regarding its business,\noperations, prospects, finances or any other matter pertaining to the Company in\nconnection with or relating to a Potential Transaction.  In addition, you agree\nthat all (a) contacts or communications by you or your Representatives with the\nCompany regarding the Proprietary Information or a Potential Transaction, (b)\nrequests for additional Proprietary Information, (c) requests for facility tours\nor management meetings and (d) discussions or questions regarding procedures\nshall be made through Merrill Lynch, Pierce, Fenner &amp; Smith, Inc. or the\nChairman and Chief Executive Officer, General Counsel, or Chief Financial\nOfficer of the Company.\n\n     You hereby represent and warrant to the Company that this letter agreement\nhas been duly authorized, executed and delivered by an authorized officer or\nrepresentative of you and is enforceable in accordance with its terms against\nyou, except as may be limited by bankruptcy, insolvency, reorganization,\nmoratorium or other similar laws relating to or affecting creditors' rights\ngenerally or by general equitable principles.\n\n     Any assignment of this letter agreement by you without our prior written\nconsent shall be void.\n\n     This letter agreement contains the entire agreement between you and us\nconcerning confidentiality of the Proprietary Information, and no modification\nof this letter agreement or \n\n \nSeptember 21, 2000\nPage 6\n\n\nwaiver of the terms and conditions hereof shall be binding upon you or us,\nunless approved in writing by each of you and us.\n\n     The obligations under this letter agreement are conditional upon the\nsimultaneous execution of that corresponding letter agreement from you to us\nwherein, among other things, we agree to maintain the confidentiality of certain\nof your Proprietary Information.\n\n     Please confirm your agreement with the foregoing by signing and returning\nto the undersigned the duplicate copy of this letter enclosed herewith,\nwhereupon this letter agreement shall become a binding agreement between you and\nthe Company with respect to the matters set forth herein.\n\n\n                         FedEx Corporation\n\n\n                            \n                         By: \/s\/ Alan B. Graf, Jr.\n                            ------------------------------------------------ \n                            Alan B. Graf, Jr.\n                            Executive Vice President\/Chief Financial Officer\n\n\n\nAccepted and agreed as of the date\nfirst written above\n\nAmerican Freightways Corporation\n\n  \nBy:   \/s\/ F. S. Garrison\n      ----------------------\nName: F. S. Garrison\n      ----------------------\nTitle: Chairman\n      ----------------------\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7517],"corporate_contracts_industries":[9523],"corporate_contracts_types":[9553,9558],"class_list":["post-40762","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-fedex-corp","corporate_contracts_industries-transportation__courier","corporate_contracts_types-corporate","corporate_contracts_types-corporate__nondisclose"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40762","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40762"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40762"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40762"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40762"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}