As submitted confidentially to the
Securities and Exchange Commission on January 28, 1998
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------------
FDX CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 4513 62-1721435
(State or Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification No.)
--------------------------------
2005 Corporate Avenue
Memphis, Tennessee 38132
(Address of Principal Executive Offices, including Zip Code)
--------------------------------
FDX Corporation Adjustment Program
(Full Title of the Plan)
KENNETH R. MASTERSON
Executive Vice President, General Counsel and Secretary
FDX Corporation
2005 Corporate Avenue
Memphis, Tennessee 38132
(901) 369-3600
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
--------------------------------
Approximate date of commencement of proposed sale to employees: From time
to time after the effective date of this Registration Statement and the
effective time ("Merger Date") of the merger (the "Merger") of Caliber System,
Inc. ("Caliber") into a wholly-owned subsidiary of the Registrant, as described
in the Agreement and Plan of Merger among Federal Express Corporation, Caliber
System, Inc., Fast Holding Inc., Fast Merger Sub Inc. and Tires Merger Sub Inc.,
dated as of October 5, 1997.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================
Proposed Maximum Proposed Maximum
Title of Each Class Amount to be Offering Price Aggregate Offering Amount of
of Securities to be Registered Registered(1) Per Share(2) Price(3) Registration Fee
- ------------------------------ ------------- ------------ -------- ----------------
<S> <C> <C> <C> <C>
Common Stock, par value $.10
per share ................. 699,680 $64.38 $32,150,425.19 $9,484.38
========================================================================================================
</TABLE>
- -------------------
(1) Represents the number of shares of common stock, par value $.10 per
share, of the Registrant ("FDX Common Stock") to be issued following the
Merger in connection with the satisfaction of awards and the exercise of
stock options (collectively, the "Awards") previously granted under
certain compensation and benefit plans of Caliber. This Registration
Statement also covers an indeterminate number of additional shares which
may be offered and issued to prevent dilution resulting from stock
splits, stock dividends or similar transactions.
(2) Calculated pursuant to Rule 457(h) and 457(c). Represents the average of
the high and low sales price per share reported on the NYSE consolidated
reporting system for January 26, 1998.
(3) Calculated pursuant to Rule 457(h) and Rule 457(c). Represents (i)
$7,608, 481.25 which is the aggregate offering price with respect to
118,190 shares issuable in respect of performance share awards, based on
a per share price of $64.38, the average of the high and low sales prices
on NYSE on January 26, 1998, plus (ii) $24,541,943.94 which is the
aggregate exercise price with respect to 581,490 shares issuable in
respect of option awards.
================================================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Registrant and by Federal Express
Corporation (as predecessor registrant) with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") are
incorporated herein by reference and made a part hereof.
(a) The Federal Express Corporation Annual Report on Form 10-K for the
fiscal year ended May 31, 1997;
(b) All other reports filed by the Federal Express Corporation
pursuant to Section 13(a) or 15(d) of the Exchange Act since the
end of the fiscal year covered by the Annual Report referred to in
(a) above;
(c) The description of the securities contained in the Registrant's
Current Report on Form 8-K pursuant to the Exchange Act, filed
with the Commission contemporaneously herewith.
All documents filed by the Registrant pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of common stock registered hereunder has been
passed on for the Registrant by Kenneth R. Masterson, Executive Vice President,
General Counsel and Secretary of the Registrant. At January 27, 1998, Mr.
Masterson owned 42,500 shares of the Registrant's common stock and held options
to purchase 140,600 shares of such common stock. Of the options granted, 67,550
were vested at such date.
The consolidated financial statements and schedules of Federal Express
Corporation included or incorporated by reference in Federal Express
Corporation's Annual Report on Form 10-K for the year ended May 31, 1997 and
incorporated by reference herein, have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports with respect
thereto, and are incorporated by reference herein in reliance upon the authority
of said firm as experts in giving said reports.
With respect to the unaudited interim financial information for the
quarters ended August 31, 1997 and November 30, 1997, included in Federal
Express Corporation's Quarterly Reports on Form 10-Q for such periods, which are
incorporated by reference in this Registration Statement, Arthur Andersen LLP
has applied limited procedures in accordance with professional standards for a
review of such information. However, their separate reports thereon state that
they did not audit and they do not express an opinion on that interim financial
information. Accordingly, the degree of reliance on their reports on that
information should be restricted in light of the limited nature of the review
procedures applied. In addition, the accountants are not subject to the
liability provisions of Section 11 of the Securities Act of 1933 (the
"Securities Act") for their reports on the unaudited interim financial
information because those reports are not "reports" or a "part" of this
Registration Statement, prepared or certified by the accountants within the
meaning of Sections 7 and 11 of the Securities Act.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
(a) Reference is made to Section 145 of the Delaware General
Corporation Law ("DGCL") as to indemnification by the Registrant of officers and
directors.
(b) Section 13 of Article III of the by-laws of the Registrant
provides for indemnification of directors as follows:
Section 13. The corporation shall indemnify to the full extent
authorized or permitted by the General Corporation Law of the
State of Delaware any person made, or threatened to be made, a
party to any threatened, pending or completed action, suit or
proceeding (whether civil, criminal, administrative or
investigative) by reason of the fact that he, his testator or
intestate is or was a director of the corporation or serves as a
director, officer, employee or agent of any other enterprise at
the request of the corporation.
Section 18 of Article V of the by-laws of the Registrant provides for
indemnification of officers as follows:
Section 18. The corporation shall indemnify to the full extent
authorized or permitted by the General Corporation Law of the
State of Delaware any person made, or threatened to be made, a
party to any threatened, pending or completed action, suit or
proceeding (whether civil, criminal, administrative or
investigative) by reason of the fact that he, his testator or
intestate is or was an officer or Managing Director of the
corporation or serves or served as a director, officer, employee
or agent of any other enterprise at the request of the
corporation.
(c) The Registrant has also entered into an indemnification agreement
with each of its directors based on the sections of the DGCL that recognize the
validity of additional indemnity rights granted by agreement. The
indemnification agreement alters or clarifies the statutory indemnity with
respect to the Registrant's directors in the following respects: (i) indemnity
is explicitly provided for settlements, fines and judgments in derivative
actions to the maximum extent permitted by Delaware law, (ii) prompt payment of
expenses is provided in advance of indemnification, provided the director
undertakes to repay such amount if it is finally determined the director is not
entitled to be indemnified and (iii) indemnification for all matters involving a
director as a party by reason of the person being a director unless the person
violates the law or the person's conduct is finally adjudged to have been
knowingly fraudulent, deliberately dishonest or willful misconduct. Therefore, a
director who has entered into the indemnification agreement will be entitled to
indemnification automatically according to its terms without prior independent
review of such director's conduct and approval of the indemnification payment by
either disinterested directors, independent counsel or the stockholders.
Certain of the provisions of the indemnification agreement have not been
tested in court and remain subject to public policy considerations with respect
to their enforceability. The Registrant has been advised that indemnification of
a judgment or amounts paid in settlement in a derivative suit may be contrary to
public policy in the State of Delaware. Because substantial uncertainty exists
as to the validity of such payments, the Registrant will not make an
indemnification payment for fines, judgments or amounts paid in settlement in a
derivative suit without first obtaining an opinion of independent counsel that
such payment is permitted under Delaware law.
(d) The Registrant has purchased insurance designed to protect the
Registrant and its directors and officers against losses arising from certain
claims, including claims under the Securities Act.
ITEM 8. EXHIBITS
Exhibit
Number Description of Exhibits
------- -------------------------
4.1 Certain provisions of Registrant's Restated
Certificate of Incorporation, as amended, relating
to the Common Stock and defining the rights of
security holders. (Filed as Exhibit 3.1 to
Registrant's Registration Statement on Form S-4 and
incorporated herein by reference).
5.1 Opinion of Kenneth R. Masterson, Executive Vice
President, General Counsel and Secretary of
Registrant regarding legality.
15.1 Letter of Arthur Andersen LLP, independent public
accountants.
23.1 Consent of Kenneth R. Masterson (included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP, independent public
accountants.
24.1 Powers of Attorney (included as part of signature pages).
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
(Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than
a 20% change in the maximum, aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement.);
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section 13(a) or
15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in this Registration Statement shall be deemed to
be a new registration statement relating to the securities offered therein and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions referred to in Item 6 of this
Registration Statement, or otherwise, the Registrant has been advised that in
the opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that is has reasonable grounds to believe that it meets all
of the requirements for filing on Forms S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Memphis, State of Tennessee, on January 27,
1998.
FDX CORPORATION
(Registrant)
By: /s/ James S. Hudson
---------------------------
James S. Hudson
Vice President and Controller
(Principal Accounting Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below, constitutes and appoints James S. Hudson and Kenneth R.
Masterson, and each of them, our true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, to do any and all acts and
things and execute, in the name of the undersigned, any and all instruments
which said attorneys-in-fact and agents may deem necessary or advisable in order
to enable FDX Corporation to comply with the Securities Act of 1933 and any
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the filing with the Securities and Exchange Commission of the
registration statement on Form S-8 under the Securities Act of 1933, including
specifically but without limitation, power and authority to sign the name of the
undersigned to such registration statement, and any amendments to such
registration statement (including post-effective amendments), and to file the
same with all exhibits thereto and other documents in connection therewith, with
the Securities and Exchange Commission, to sign any and all applications,
registration statements, notices or other documents necessary or advisable to
comply with applicable state securities laws, and to file the same, together
with other documents in connection therewith with the appropriate state
securities authorities, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and to perform each and every act
and thing requisite or necessary to be done in and about the premises, as fully
and to all intents and purposes as the undersigned might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, and
any of them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated:
Signature Capacity Date
--------- -------- ----
/s/ Frederick W. Smith Chairman of the Board, President, 1/27/98
---------------------- Chief Executive Officer ---------
Frederick W. Smith (Principal Executive Officer)
and Director
/s/ Alan B. Graf, Jr. Executive Vice President and 1/27/98
---------------------- Chief FinancialOfficer ---------
Alan B. Graf, Jr. (Principal Financial Officer)
/s/ James S. Hudson Vice President and Controller 1/27/98
---------------------- (Principal Accounting Officer) ---------
James S. Hudson
/s/ Robert H. Allen Director 1/27/98
---------------------- ---------
Robert H. Allen
/s/ Robert L. Cox Director 1/27/98
---------------------- ---------
Robert L. Cox
Director
----------------------
Ralph D. DeNunzio
/s/ Judith L. Estrin Director 1/27/98
---------------------- ---------
Judith L. Estrin
/s/ Philip Greer Director 1/27/98
---------------------- ---------
Philip Greer
/s/ J. R. Hyde, III Director 1/27/98
---------------------- ---------
J. R. Hyde, III
Director
----------------------
Charles T. Manatt
/s/ George J. Mitchell Director 1/21/98
---------------------- ---------
George J. Mitchell
Director
----------------------
Jackson W. Smart, Jr.
/s/ Joshua I. Smith Director 1/27/98
---------------------- ---------
Joshua I. Smith
Director
----------------------
Paul S. Walsh
/s/ Peter S. Willmott Director 1/27/98
---------------------- ---------
Peter S. Willmott
Exhibit 5.1
January 27, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: FDX Corporation
Dear Sirs:
I am an executive vice president, secretary and the general counsel
of FDX Corporation, a Delaware corporation ("FDX"). This opinion is issued in
connection with the registration on Registration Statement Form S-8 of the
shares (the "Shares") of common stock, par value $0.10 per share, of FDX
Corporation, which will be issued under the FDX adjustment program to the
holders of awards ("Awards") under certain benefit plans of Caliber System, Inc.
("Caliber") pursuant to the Agreement and Plan of Merger dated as of October 5,
1997, (the "Merger Agreement") among Federal Express Corporation, FDX, Caliber,
Tires Merger Sub Inc. and Fast Merger Sub Inc.
I have examined originals or copies, certified or otherwise
identified to my satisfaction, of such documents, corporate records,
certificates and other instruments, and have conducted such other investigations
of fact and law, as I have deemed necessary or advisable for the purpose of
rendering this opinion.
Based upon the foregoing, I am of the opinion that the Shares to be
issued under each Award have been duly authorized and, when issued in accordance
with the terms and conditions of the Merger Agreement and the relevant documents
relating to each such Award, will be validly issued, fully paid and
non-assessable.
I hereby consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement referred to above.
I am a member of the Bar of the State of Tennessee and the foregoing
opinion is limited to the laws of the State of Tennessee, the federal laws of
the United States of America and the General Corporation Law of the State of
Delaware.
This opinion is rendered solely to you in connection with the
Registration Statement referred to above. This opinion may not be relied upon by
you for any other purpose or relied upon by or furnished to any other person
without our prior written consent.
Very truly yours,
Kenneth R. Masterson
Executive Vice President, General
Counsel and Secretary
Exhibit 15.1
[ARTHUR ANDERSEN LETTERHEAD]
January 22, 1998
Federal Express Corporation:
We are aware that Federal Express Corporation has incorporated by reference in
this Form S-8 Registration Statement its form 10-Qs for the quarters ended
August 31, 1997 and November 30, 1997, which include our reports dated October
6, 1997 and January 12, 1998, respectively, covering the unaudited interim
financial information contained therein. Pursuant to Regulation C of the
Securities Act of 1933, those reports are not considered a part of the
registration statement prepared or certified by our firm or reports prepared or
certified by our firm within the meaning of Sections 7 and 11 of the Act.
Very truly Yours,
Arthur Andersen LLP
Exhibit 23.2
Consent of Independent Public Accountants
As independent public accounts, we hereby consent to the incorporation by
reference in this S-8 Registration Statement of FDX Corporation of our reports
dated June 30, 1997 included (or incorporated by reference) in Federal Express
Corporation's Form 10-K for the year ended May 31, 1997, and to all references
to our Firm included in this registration statement.
Arthur Andersen LLP
Memphis, Tennessee
January 22, 1998.
