Exhibit 1
VOTING AGREEMENT
AGREEMENT, dated as of October 5, 1997 between (i) Federal
Express Corporation, a Delaware corporation ("Buyer"), (ii) G. Xxxxx
Xxxxx and Xxxxx Xxxxx Xxxxxx (each, with respect to the Free Shares (as
defined below), a "Shareholder", and a "Shareholder Party" and with respect
to the Trust Shares (as defined below), a "Beneficiary"), and (iii) G.
Xxxxx Xxxxx and Xxxxxxx X. Xxxxxxxxx (each a "Trustee", and together, the
"Trustees", in each case together with any successors in their capacity as
trustees under the Trust Agreement (as defined below)). Capitalized terms
used but not separately defined herein shall have the meanings assigned to
such terms in the Merger Agreement (as defined below).
WHEREAS, the Beneficiaries and the Trustees, among others, are
parties to an Amended and Restated Voting Trust Agreement effective as of
November 1, 1992 (the "Trust Agreement");
WHEREAS, the Beneficiaries beneficially own, and the
Shareholder Parties are record and beneficial owners of, shares of common
stock, without par value, of the Company (the "Shares") and certain of such
Shares are subject to the Trust Agreement;
WHEREAS, in order to induce Buyer to enter into an Agreement
and Plan of Merger, dated as of the date hereof (the "Merger Agreement"),
among Buyer, Caliber System, Inc., an Ohio corporation (the "Company"),
Fast Holding Inc., a Delaware corporation, Fast Merger Sub Inc., a Delaware
corporation, and Tires Merger Sub, Inc., a Delaware corporation, Buyer has
requested the Beneficiaries, Shareholder and the Trustees, and the
Beneficiaries, Shareholder and the Trustees have agreed, to enter into this
Agreement with respect to the Shares;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
Voting Agreement
Section 1.1. Voting Agreement. (a) Each Beneficiary hereby
agrees to instruct the Trustees in accordance with the Trust Agreement, and
each Trustee hereby agrees, to the extent so instructed in accordance with the
Trust Agreement, to vote any Trust Shares held by them at the time of any vote
to approve and adopt the Merger Agreement (attached as Appendix A hereto), the
Tires Sub Merger and the transactions contemplated by the Merger Agreement and
any actions related thereto at any meeting of the stockholders of the Company,
and at any adjournment thereof, at which such Merger Agreement and other
related agreements (or any amended version thereof), or such other actions,
are submitted for the consideration and vote of the stockholders of the
Company (the "Meeting") in favor of the approval and adoption of the Merger
Agreement, the Tires Sub Merger and the transactions contemplated by the
Merger Agreement (collectively, the "Proposal").
(b) Each Shareholder Party hereby agrees to vote such person's
Free Shares held by them at the time of the Meeting in favor of the
Proposal at the Meeting. Section 1.2. Revocation of Proxy. Each
Shareholder Party and Trustee hereby revokes any and all previous proxies
granted with respect to the Shares; provided, however, that nothing
contained herein shall in any way affect the validity of the Trust
Agreement.
Section 1.2. Revocation of Proxy . Each Shareholder Party
and Trustee hereby revokes any and all previous proxies granted with
respect to the Shares; provided, however, that nothing contained herein
shall in any way affect the validity of the Trust Agreement.
ARTICLE 2
Representations and Warranties of Shareholder Parties
Each Shareholder Party represents and warrants, severally and
not jointly, to Buyer that:
Section 2.1. Authorization. Such Shareholder Party has the
legal capacity to execute, deliver and perform this Agreement. This Agreement
constitutes a valid and binding Agreement of such Shareholder Party. If a
Shareholder Party is married and the Shares set forth on Annex A or Annex B
hereto opposite such Shareholder Party's name constitute community property
under applicable laws, this Agreement has been duly authorized, executed and
delivered by, and constitutes the valid and binding agreement of, such
Shareholder Party's spouse. If this Agreement is being executed in a
representative or fiduciary capacity, the Person signing this Agreement has
full power and authority to enter into and perform this Agreement.
Section 2.2. Non-Contravention. The execution, delivery and
performance by such Shareholder Party of this Agreement and the consummation
of the transactions contemplated hereby do not and will not (i) result in any
breach or violation of or be in conflict with or constitute a default under
any term of any agreement, law, rule, regulation, judgment, injunction, order,
decree or arrangement to which such Shareholder Party is a party or by which
such Shareholder Party is bound or (ii) require any consent or other action by
any Person under, constitute a default under, or give rise to any right of
termination, cancellation or acceleration or to a loss of any benefit to which
such Shareholder Party is entitled under any provision of any agreement or
other instrument binding on such Shareholder Party.
Section 2.3. Ownership of Shares. (a) The Shareholder Party
is the record (except for certain Shares held through revocable trusts) and
beneficial owner of the number of Shares set forth opposite the name of such
Shareholder Party on Annex A hereto (the "Free Shares"), free and clear of any
Lien and any other limitation or restriction. The Shareholder Party has sole
voting power, sole power of disposition, sole power of conversion, sole power
to demand appraisal rights and sole power to agree to all of the matters set
forth in this Agreement, in each case with respect to all of the Free Shares
with no limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement and subject, in the
case of Shares which constitute community property under applicable law, to
the rights and powers of such Shareholder Party's spouse under applicable
community property laws. None of the Free Shares is subject to any voting
trust or other agreement or arrangement with respect to the voting of such
Shares.
(b) Each Beneficiary is the beneficial holder of the number of
Shares set forth opposite the name of such Beneficiary on Annex B hereto (the
"Trust Shares"), free and clear of any Lien and any other limitation or
restriction other than as set forth in the Trust Agreement. Each Beneficiary
has sole power to issue instructions with respect to the matters set forth in
Section 1 hereof, sole power of disposition, sole power of conversion, sole
power to demand appraisal rights and sole power to agree to all of the matters
set forth in this Agreement, in each case with respect to all of the Trust
Shares with no limitations, qualifications or restrictions on such rights,
subject to applicable securities laws and the terms of this Agreement and the
Trust Agreement.
Section 2.4. Total Shares. Except for the Free Shares and the
Trust Shares, such Shareholder Party does not own any (i) shares of capital
stock or voting securities of the Company, (ii) securities of the Company
convertible into or exchangeable for shares of capital stock or voting
securities of the Company or (iii) other than any stock option relating to
such Shareholder Party's service as a director of the Company, options or
other rights to acquire from the Company any capital stock, voting securities
or securities convertible into or exchangeable for capital stock or voting
securities of the Company.
Section 2.5. Finder's Fees. No investment banker, broker,
finder or other intermediary is entitled to a fee or commission from Buyer or
the Company in respect of this Agreement based upon any arrangement or
agreement made by or on behalf of such Shareholder Party.
ARTICLE 3
Representations and Warranties of Trustees
Each Trustee represents and warrants, severally and not
jointly, to Buyer that:
Section 3.1. Authorization. The execution, delivery and
performance by such Trustee of this Agreement and the consummation of the
transactions contemplated hereby are within the powers of such Trustee and
have been duly authorized by all necessary action on the part of the Trustee.
This Agreement constitutes a valid and binding agreement of the Trustee.
Section 3.2. Non-contravention. The execution, delivery and
performance by Trustee of this Agreement and the consummation of the
transactions contemplated hereby do not and will not (i) violate any
applicable law, rule, regulation, judgment, injunction, order or decree,
(ii) require any consent or other action by any Person under, constitute a
default under, or give rise to any right of termination, cancellation or
acceleration or to a loss of any material benefit to which such Trustee or
any Beneficiary is entitled under any provision of any agreement or other
instrument binding on such Trustee or any Beneficiary or (iii) conflict
with or result in a breach of the Trust Agreement.
ARTICLE 4
Representations and Warranties of Buyer
Buyer represents and warrants to the Beneficiaries and the Trustees:
Section 4.1. Corporate Authorization. The execution, delivery
and performance by Buyer of this Agreement and the consummation by Buyer of
the transactions contemplated hereby are within the corporate powers of Buyer
and have been duly authorized by all necessary corporate action. This
Agreement constitutes a valid and binding agreement of Buyer.
ARTICLE 5
Miscellaneous
Section 5.1. Further Assurances. Buyer, the Shareholder
Parties and the Trustees will execute and deliver, or cause to be executed and
delivered, all further documents and instruments and use their reasonable best
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations, to consummate and make effective the transactions contemplated by
this Agreement.
Section 5.2. Amendments; Termination. Any provision of this
Agreement may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed, in the case of an amendment, by each
party to this Agreement or in the case of a waiver, by the party against
whom the waiver is to be effective. This Agreement shall terminate upon
the termination of the Merger Agreement in accordance with its terms.
Section 5.3. Expenses. Any cost and expense incurred in
connection with this Agreement shall be paid by the party incurring such cost
or expense.
Section 5.4. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided that no party may
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of the other parties hereto, except that
Buyer may transfer or assign its rights and obligations to any Affiliate of
Buyer.
Section 5.5. Governing Law. This Agreement shall be construed
in accordance with and governed by the laws of the State of Delaware.
Section 5.6. Counterparts; Effectiveness. 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 5.7. Severability. If any term, provision or covenant
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 and covenants of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
Section 5.8. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this
Agreement is not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the terms hereof in
addition to any other remedy to which they are entitled at law or in equity.
Section 5.9. Voting Trust Agreement. If any term,
provision or covenant of this Agreement is inconsistent with any provision
of the Trust Agreement, the terms of the Trust Agreement shall prevail.
Section 5.10. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including telecopy
or similar writing) and shall be given,
if to any of the Shareholder Parties or the Trustees, to such
Person at the address indicated on the signature pages hereof, in each
case,
with a copy to:
Cravath, Swaine & Xxxxx
Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx
if to the Buyer, to:
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
or to such other address or telecopy number such party may hereafter specify
for the purpose by notice to the other parties hereto. Each such notice,
request or other communication shall be effective (a) if given by telecopy,
when such telecopy is transmitted to the telecopy number specified in this
Section and the appropriate telecopy confirmation is received, (b) if by
overnight delivery service with proof of delivery, the next business day or
(c) if given by any other means, when delivered at the address specified in
this Section.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
FEDERAL EXPRESS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President,
General Counsel and Secretary
G. XXXXX XXXXX, as Shareholder and Trustee
By: /s/ G. Xxxxx Xxxxx
-------------------------------------
Name: G. Xxxxx Xxxxx
Address: c/o Xxxx X. Xxxxx, Xx.
Caliber System, Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
XXXXXXX X. XXXXXXXXX, as Trustee
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Address: c/o Xxxx X. Xxxxx, Xx.
Caliber System, Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
XXXXX XXXXX XXXXXX
By: /s/ Xxxxx Xxxxx Warner
-------------------------------------
Name: Xxxxx Xxxxx Xxxxxx
Address: c/o Xxxx X. Xxxxx, Xx.
Caliber System, Inc
0000 Xxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
Annex A
Free Shares
Shareholder No. of Shares Owned
----------- -------------------
G. Xxxxx Xxxxx 34,237
Xxxxx Xxxxx Xxxxxx 697,466
Annex B
Trust Shares
Beneficiary No. of Shares Owned
----------- -------------------
G. Xxxxx Xxxxx 2,000,000
Xxxxx Xxxxx Xxxxxx 2,601,239
