Irrevocable Proxy and Voting Agreement (30K)
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{DOCUMENT}
{TYPE}EX-99.(D)(2)
{SEQUENCE}10
{FILENAME}0010.txt
{DESCRIPTION}IRREVOCABLE PROXY AND VOTING AGREEMENT
{TEXT}
{PAGE}
EXHIBIT (d)(2)
CONFORMED COPY
IRREVOCABLE PROXY AND VOTING AGREEMENT
AGREEMENT dated as of November 12, 2000 among FEDEX CORPORATION, a
Delaware corporation ("Buyer"), and each other Person set forth on the signature
pages hereof (each a "Shareholder" and collectively the "Shareholders").
Capitalized terms used but not separately defined herein shall have the meanings
assigned to such terms in the Merger Agreement (as defined below).
WHEREAS, in order to induce Buyer and Merger Subsidiary to enter into
an Agreement and Plan of Merger dated as of the date hereof (as amended, the
"Merger Agreement") with American Freightways Corporation, an Arkansas
corporation (the "Company"), Buyer, which is also a shareholder of the
Company, has requested the Shareholders, and each Shareholder has agreed, to
enter into this Agreement with respect to all shares of common stock, par value
$0.01 per share, of the Company that such Shareholder beneficially owns and may
hereafter acquire (collectively, the "Shares");
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
GRANT OF PROXY; VOTING AGREEMENT
SECTION 1.01. Voting Agreement. (a) Each Shareholder hereby irrevocably
and unconditionally agrees to vote all Shares that such Shareholder is entitled
to vote, at the time of any vote to approve and adopt the Merger Agreement, the
Merger and all agreements related to the Merger and any actions related thereto
at any meeting of the shareholders 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 shareholders of the Company, in favor of the
approval and adoption of the Merger Agreement, the Merger and the transactions
contemplated by the Merger Agreement.
(b) Each Shareholder hereby agrees that it will not vote any Shares that
such Shareholder is entitled to vote in favor of the approval of any (i)
Acquisition Proposal, (ii) reorganization, recapitalization, liquidation or
winding up of the Company or any other extraordinary transaction involving the
Company, (iii) corporate action the consummation of which would frustrate the
purposes, or prevent or delay the consummation, of the transactions contemplated
by the
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Merger Agreement or (iv) other matter relating to, or in connection with, any of
the foregoing matters.
SECTION 1.02. Irrevocable Proxy. Each Shareholder hereby revokes any and
all previous proxies granted with respect to the Shares beneficially owned by
such Shareholder. By entering into this Agreement, each Shareholder hereby
grants a proxy appointing Buyer as such Shareholder's attorney-in-fact and
proxy, with full power of substitution, for and in such Shareholder's name, to
vote, express, consent or dissent, or otherwise to utilize such voting power
solely for the purposes contemplated by Section 1.01 above as Buyer or its proxy
or substitute shall, in Buyer's sole discretion, deem proper with respect to the
Shares beneficially owned by such Shareholder. THE PROXY GRANTED BY EACH
SHAREHOLDER PURSUANT TO THIS ARTICLE 1 IS IRREVOCABLE AND THE APPOINTMENT IS
COUPLED WITH AN INTEREST, HAVING BEEN GRANTED IN CONSIDERATION OF BUYER ENTERING
INTO THIS AGREEMENT AND THE MERGER AGREEMENT, AND INCURRING CERTAIN RELATED FEES
AND EXPENSES. The proxy granted by each Shareholder shall be revoked upon
termination of this Agreement in accordance with its terms.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF EACH SHAREHOLDER
Each Shareholder, severally and not jointly, represents and warrants to
Buyer that:
SECTION 2.01. Authorization, Enforceability. If such Shareholder is not
a natural Person, the execution, delivery and performance by such Shareholder of
this Agreement and the consummation by such Shareholder of the transactions
contemplated hereby are within the powers of such Shareholder. This Agreement
constitutes a valid and binding Agreement of such Shareholder. If such
Shareholder is executing this Agreement in a representative or fiduciary
capacity, the Person signing this Agreement has full power and authority to
enter into and perform this Agreement. If such Shareholder is a natural Person,
the Shares beneficially owned by such Shareholder do not constitute marital
property under the laws of the State of Arkansas or any other applicable laws,
or if such Shares constitute marital property, the consent of such Shareholder's
spouse is not required for the execution and delivery of this Agreement or the
performance by such Shareholder of the obligations of the Shareholder hereunder.
SECTION 2.02. Non-Contravention. The execution, delivery and performance
by such Shareholder of this Agreement and the consummation of the
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transactions contemplated hereby do not and will not (i) violate any applicable
law, rule, regulation, judgment, injunction, order or decree to which
Shareholder is a party or by which such Shareholder is bound, (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 is entitled under any provision of any
agreement or other instrument binding on such Shareholder or (iii) result in the
imposition of any Lien on any asset of such Shareholder.
SECTION 2.03. Ownership of Shares. Such Shareholder is the record and
beneficial owner of the Shares listed on the signature pages hereof opposite
such Shareholder's name, free and clear of any Liens and any other limitations
or restrictions (including any restriction on the right to vote or otherwise
dispose of such Shares). None of the Shares held by such Shareholder are subject
to any voting trust, irrevocable proxy or other agreement or arrangement with
respect to the voting of such Shares (other than this Agreement).
SECTION 2.04. Total Shares. Except for the Shares set forth on the
signature page hereto opposite such Shareholder's name or except for options
issued pursuant to the Company Plans or Director Plans, such Shareholder does
not beneficially 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) 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 2.05. 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.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to each Shareholder that:
SECTION 3.01. 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.
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