As filed with the Securities and Exchange Commission on January 22, 1999
Registration No. 333-
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UNITED STATES
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 62-1721435
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
6075 Poplar Avenue, Memphis, Tennessee 38119
(Address of Principal Executive Offices) (Zip Code)
FDX Corporation 1997 Stock Incentive Plan (as amended)
(Full Title of the Plan)
------------------------------
KENNETH R. MASTERSON
Executive Vice President, General Counsel and Secretary
FDX Corporation
6075 Poplar Avenue
Memphis, Tennessee 38119
(901) 369-3600
(Name, Address, and Telephone Number,
including area code, of Agent for Service)
------------------------------
<TABLE>
<CPTION>
CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Proposed Proposed Amount of
Title Of Securities Amount To Be Maximum Offering Maximum Aggregate Registration
To Be Registered Registered Price Per Share(1) Offering Price(1) Fee
- -------------------------------------------------------------------------------------------------------------
Common Stock,
par value $0.10
per share 3,000,000 shares $77.91 $233,730,000 $64,977
=============================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) based upon the average ($77.91) of the high
($78.50) and low ($77.3125) sales prices for the Registrant's Common Stock as
reported on the New York Stock Exchange on January 21, 1999.
================================================================================
</TABLE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in "Item 1. Plan
Information" and "Item 2. Registrant Information and Employee Plan Annual
Information" of Form S-8 will be sent or given to participants of the FDX
Corporation 1997 Stock Incentive Plan, as amended, as specified by Rule
428(b)(1) under the Securities Act of 1933, as amended (the "Securities Act").
Such documents are not required to be and are not filed with the Securities and
Exchange Commission either as part of this Registration Statement or as a
prospectus or prospectus supplement pursuant to Rule 424 under the Securities
Act and the Note to Part I of Form S-8. These documents and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Part II of Form S-8, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents of FDX Corporation (the "Company")
previously filed with the Securities and Exchange Commission (the "Commission")
are hereby incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended May 31, 1998 (Commission File No. 333-39483);
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended August 31, 1998 (Commission File No. 333-39483);
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ended November 30, 1998 (Commission File No. 333-39483); and
(d) The description of the Company's common stock, par value $0.10
per share, contained in Amendment No. 1 to the Company's Registration Statement
on Form S-4 (Registration No. 333-39483) filed with the Commission on December
4, 1997.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities offered hereby 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.
Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such earlier statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The legality of the shares of common stock registered hereunder has
been passed upon by George W. Hearn, the Company's Corporate Vice President and
Corporate Counsel. As of December 31, 1998, Mr. Hearn owned 6,000 shares of the
Company's common stock and held options to purchase 37,750 shares of such
common stock. Of the options granted, 10,750 were vested at such date.
Item 6. Indemnification of Directors and Officers.
Section 102(b)(7) of the Delaware General Corporation Law (the
"DGCL") permits a corporation to include in its certificate of incorporation a
provision eliminating or limiting the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision may not eliminate or limit the
liability of a director for any breach of the director's duty of loyalty to the
corporation or its stockholders, for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, for the
unlawful payment of dividends, or for any transaction from which the director
derived an improper personal benefit.
ARTICLE THIRTEENTH of the Company's Amended and Restated Certificate
of Incorporation (the "Charter") provides that no director shall be personally
liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director, provided that ARTICLE THIRTEENTH does not
eliminate or limit the liability of a director of the Company (i) for any
breach of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL
(relating to the unlawful payment of dividends) or any amendment or successor
provision thereto, or (iv) for any transaction from which the director derived
an improper personal benefit. ARTICLE THIRTEENTH of the Company's Charter does
not eliminate or limit the liability of a director for any act or omission
occurring prior to the date when ARTICLE THIRTEENTH became effective (December
3, 1997). Neither the amendment nor repeal of ARTICLE THIRTEENTH of the
Company's Charter, nor the adoption of any provision of the Charter
inconsistent with ARTICLE THIRTEENTH, will eliminate or reduce the effect of
ARTICLE THIRTEENTH with respect to any matter occurring, or any cause of
action, suit or claim that, but for ARTICLE THIRTEENTH, would accrue or arise
prior to such amendment, repeal or adoption of an inconsistent provision.
Section 145 of the DGCL permits a corporation to indemnify any of
its directors, officers, employees or agents who was or is a party, or is
threatened to be made a party, to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation), by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation (or another enterprise if serving at the request of the
corporation), against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reason to believe that his or her conduct was
unlawful. In any threatened, pending or completed action or suit by or in the
right of the corporation, a corporation is permitted to indemnify any director,
officer, employee or agent against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good faith and in
a manner that he or she reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification may be made if
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the court in which the action or suit was brought shall
determine upon application that, despite such adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnification for such expenses which the court shall deem
proper.
Article III, Section 13 (relating to indemnification of directors)
and Article V, Section 18 (relating to indemnification of officers and managing
directors) of the Company's Amended and Restated By-laws provide that the
Company shall indemnify to the full extent authorized or permitted by the DGCL
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 such person or his
or her testator or intestate is or was a director, officer or managing director
of the Company or serves or served as a director, officer, employee or agent of
any other enterprise at the Company's request.
The Company also has purchased insurance designed to protect the
Company and its directors and officers against losses arising from certain
claims, including claims under the Securities Act of 1933, as amended (the
"Securities Act").
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Amended and Restated Certificate of Incorporation of the
Company (filed as Exhibit 3.1 to Amendment No. 1 to the
Company's Registration Statement on Form S-4 (Registration No.
333-39483), filed with the Commission on December 4, 1997, and
incorporated herein by reference).
4.2 Amended and Restated By-laws of the Company (filed as Exhibit
3.2 to Amendment No. 1 to the Company's Registration Statement
on Form S-4 (Registration No. 333-39483), filed with the
Commission on December 4, 1997, and incorporated herein by
reference).
*4.3 FDX Corporation 1997 Stock Incentive Plan, as amended.
*4.4 FDX Corporation 1997 Stock Incentive Plan Stock Option
Agreement.
*5.1 Opinion of George W. Hearn, Corporate Vice President and
Corporate Counsel of the Company, regarding the legality of
the securities being registered.
*15.1 Letter of Arthur Andersen LLP regarding unaudited interim
financial information.
*23.1 Consent of Arthur Andersen LLP.
*23.2 Consent of Ernst & Young LLP.
23.3 Consent of George W. Hearn (included in Exhibit 5.1).
24.1 Power of Attorney (set forth on the signature page).
- -----------------
* Filed herewith.
Item 9. Undertakings.
(a) The undersigned Company hereby undertakes:
(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; and
(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) above do not apply
if the Registration Statement is on Form S-3 or Form S-8, 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
Company 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 that 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) The Company hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Company'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 the
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 Company pursuant to the foregoing provisions, or otherwise, the Company
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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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 Company 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, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form 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, this 22nd day of January, 1999.
FDX CORPORATION
(Registrant)
By: /s/ James S. Hudson
---------------------------------------
Name: James S. Hudson
Title: Corporate Vice President - Strategic Financial
Planning and Control
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Alan B. Graf, Jr. and James S.
Hudson, and each of them, his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) and supplements to this
Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, and hereby grants to such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or any of them, or their or his substitute
or 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 by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
- --------- -------- ----
<S> <C> <C>
/s/ FREDERICK W. SMITH Chairman of the Board, President January 22, 1999
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Frederick W. Smith and Chief Executive Officer and
Director (Principal Executive Officer)
/s/ ALAN B. GRAF, JR. Executive Vice President and January 22, 1999
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Alan B. Graf, Jr. Chief Financial Officer
(Principal Financial Officer)
/s/ JAMES S. HUDSON Corporate Vice President - January 22, 1999
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James S. Hudson Strategic Financial Planning
and Control
(Principal Accounting Officer)
/s/ ROBERT H. ALLEN Director January 22, 1999
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Robert H. Allen
/s/ ROBERT L. COX Director January 22, 1999
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Robert L. Cox
/s/ RALPH D. DENUNZIO Director January 22, 1999
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Ralph D. DeNunzio
/s/ JUDITH L. ESTRIN Director January 22, 1999
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Judith L. Estrin
/s/ PHILIP GREER Director January 22, 1999
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Philip Greer
/s/ J.R. HYDE, III Director January 22, 1999
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J.R. Hyde, III
/s/ CHARLES T. MANATT Director January 22, 1999
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Charles T. Manatt
/s/ GEORGE J. MITCHELL Director January 22, 1999
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George J. Mitchell
/s/ JACKSON W. SMART, JR. Director January 22, 1999
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Jackson W. Smart, Jr.
Director
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Joshua I. Smith
/s/ PAUL S. WALSH Director January 22, 1999
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Paul S. Walsh
/s/ PETER S. WILLMOTT Director January 22, 1999
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Peter S. Willmott
</TABLE>
EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
4.1 Amended and Restated Certificate of Incorporation of the Company
(filed as Exhibit 3.1 to Amendment No. 1 to the Company's
Registration Statement on Form S-4 (Registration No. 333-39483),
filed with the Commission on December 4, 1997, and incorporated
herein by reference).
4.2 Amended and Restated By-laws of the Company (filed as Exhibit 3.2 to
Amendment No. 1 to the Company's Registration Statement on Form S-4
(Registration No. 333-39483), filed with the Commission on December
4, 1997, and incorporated herein by reference).
*4.3 FDX Corporation 1997 Stock Incentive Plan, as amended.
*4.4 FDX Corporation 1997 Stock Incentive Plan Stock Option Agreement.
*5.1 Opinion of George W. Hearn, Corporate Vice President and Corporate
Counsel of the Company, regarding the legality of the securities
being registered.
*15.1 Letter of Arthur Andersen LLP regarding unaudited interim financial
information.
*23.1 Consent of Arthur Andersen LLP.
*23.2 Consent of Ernst & Young LLP.
23.3 Consent of George W. Hearn (included in Exhibit 5.1).
24.1 Power of Attorney (set forth on the signature page).
- -----------------
* Filed herewith.
Exhibit 4.3
FDX CORPORATION
1997 STOCK INCENTIVE PLAN
(As Amended)
1. Purpose of Plan
The purpose of the FDX Corporation 1997 Stock Incentive Plan (the "Plan")
is to aid FDX Corporation (the "Corporation") and its subsidiaries in securing
and retaining key employees and directors of outstanding ability and to provide
additional motivation to such employees and directors to exert their best
efforts on behalf of the Corporation and its subsidiaries. The Corporation
expects that it will benefit from the added interest which such employees and
directors will have in the welfare of the Corporation as a result of their
ownership or increased ownership of the Corporation's Common Stock.
2. Stock Subject to the Plan
The total number of shares of Common Stock of the Corporation that may be
optioned under the Plan is 3,000,000 shares, which may consist, in whole or in
part, of unissued shares or treasury shares. Any shares optioned hereunder that
are canceled or cease to be subject to the option may again be optioned under
the Plan.
3. Administration
The Plan shall be administered by those members, not less than two, of
the Compensation Committee of the Board of Directors, each of whom is an
"outside director" within the meaning of Section 162(m) of the Internal Revenue
Code of 1986, as amended (the "Code"), and a "non-employee director" as defined
in Rule 16b-3 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended (the "Committee"). Members of the Committee
shall be eligible for participation in the automatic grant of options to
directors hereunder.
The Committee shall have the sole authority to grant options under the
Plan and, consistent with the Plan, to determine the provisions of the options
to be granted, to interpret the Plan and the options granted under the Plan, to
adopt, amend and rescind rules and regulations for the administration of the
Plan and generally to administer the Plan and to make all determinations in
connection therewith which may be necessary or advisable, and all such actions
of the Committee shall be binding upon all participants. Committee decisions
and selections shall be made by a majority of its members present at the
meeting at which a quorum is present, and shall be final. Any decision or
selection reduced to writing and signed by all of the members of the Committee
shall be as fully effective as if it had been made at a meeting duly held.
4. Eligibility
Unless otherwise determined by the Committee, key employees, including
officers, of the Corporation and its subsidiaries (but excluding members of the
Committee except as provided in paragraph 7) who are from time to time
responsible for the management, growth and protection of the business of the
Corporation and its subsidiaries are eligible to be granted options under the
Plan. The employees who shall receive options under the Plan shall be selected
from time to time by the Committee in its sole discretion, from among those
eligible, and the Committee shall determine, in its sole discretion, the number
of shares to be covered by the option or options granted to each such employee
selected, subject to the maximum number of stock options which may be granted
to an optionee under the Plan.
5. Limit on Awards
Unless otherwise determined by the Committee, no option may be granted
under the Plan after October 5, 2007, but options theretofore granted may
extend beyond that date. No optionee shall receive options for more than
400,000 shares of the Corporation's Common Stock during any fiscal year under
the Plan.
6. Terms and Conditions of Stock Options
All options granted under this Plan shall be subject to all the
applicable provisions of the Plan, including the following terms and
conditions, and to such other terms and conditions not inconsistent therewith
as the Committee shall determine.
(a) Option Price. The option price per share for options
granted to employees shall be determined by the Committee, but shall
not be less than 100% of the fair market value at the time the option
is granted. The fair market value shall, for all purposes of the Plan,
be the mean between the high and low prices at which shares of such
stock are traded on the New York Stock Exchange on the day on which
the option is granted. In the event that the method for determining
the fair market value of the shares provided for in this paragraph (a)
shall not be practicable, then the fair market value per share shall
be determined by such other reasonable method as the Committee shall,
in its discretion, select and apply at the time of grant of the option
concerned.
(b) Time of Exercise of Option. Unless otherwise determined
by the Committee, each option shall be exercisable during and over
such period ending not later than ten years from the date it was
granted, as may be determined by the Committee and stated in the
option.
Unless otherwise determined by the Committee, no option shall be
exercisable during the year ending on the first anniversary date of
the granting of the option, except as provided in paragraphs 6(d) and
14 of the Plan.
(c) Payment. Each option may be exercised by giving written
notice to the Corporation specifying the number of shares to be
purchased and accompanied by payment in full (including applicable
taxes, if any) in cash therefor. No option shall be exercised for less
than the lesser of 50 shares or the full number of shares for which
the option is then exercisable. No optionee shall have any rights to
dividends or other rights of a stockholder with respect to shares
subject to his or her option until he or she has given written notice
of exercise of his or her option, paid in full for such shares and, if
requested, given the representation described in paragraph 11 of the
Plan.
(d) Rights After Termination of Employment. Unless otherwise
determined by the Committee, if an optionee's employment by the
Corporation or a subsidiary or if a director's directorship terminates
by reason of such person's retirement, the optionee's option may
thereafter be exercised to the extent to which it was exercisable at
the time of retirement but may not be exercised after the expiration
of the period of twenty-four months from the date of such termination
of employment or directorship or of the stated period of the option,
whichever period is the shorter; provided, however, that if the
optionee dies within twenty-four months after such termination of
employment or directorship, any unexercised option, to the extent to
which it was exercisable at the time of the optionee's death, may
thereafter be exercised by the legal representative of the estate or
by the legatee of the option under the last will for a period of
twelve months from the date of the optionee's death or the expiration
of the stated period of the option, whichever period is the shorter.
Unless otherwise determined by the Committee, if an optionee's
employment by the Corporation or a subsidiary or if a director's
directorship terminates by reason of permanent disability, the
optionee's option may thereafter be exercised in full (except that no
option may be exercised less than six months from the date of grant)
but may not be exercised after the expiration of the period of
twenty-four months from the date of such termination of employment or
directorship or of the stated period of the option, whichever period
is the shorter; provided, however, that if the optionee dies within a
period of twenty-four months after such termination of employment or
directorship, any unexercised option, to the extent to which it was
exercisable at the time of the optionee's death, may thereafter be
exercised by the legal representative of the estate or by the legatee
of the option under a last will for a period of twelve months from the
date of the optionee's death or the expiration of the stated period of
the option, whichever period is the shorter.
Unless otherwise determined by the Committee, if an optionee's
employment by the Corporation or a subsidiary or if a director's
directorship terminates by reason of the optionee's death, the
optionee's option may thereafter be immediately exercised in full by
the legal representative of the estate or by the legatee of the option
under a last will, and for a period of twelve months from the date of
the optionee's death or the expiration of the stated period of the
option, whichever period is the shorter.
Unless otherwise determined by the Committee, if an optionee's
employment or if a director's directorship terminates for any reason
other than death, retirement or permanent disability, the optionee's
option shall thereupon terminate.
7. Automatic Grant of Options to Directors
Notwithstanding any other provision of the Plan, the grant of options
hereunder to directors who are not also employees of the Corporation shall be
subject to the following terms and conditions:
(a) Immediately following each of the five consecutive Annual
Meetings of the Stockholders of the Corporation beginning with the
1998 Annual Meeting, each director of the Corporation who is then
incumbent and is not also an employee of the Corporation shall be
granted a non-incentive stock option to purchase 2,000 shares, for the
fiscal year 1998 Annual Meeting, and 4,000 shares, for the fiscal year
1999, 2000, 2001 and 2002 Annual Meetings, of the Common Stock of the
Corporation.
(b) If a person who is not also an employee of the Corporation
is elected or appointed a director other than at an Annual Meeting,
such person shall thereupon be granted a non-incentive stock option to
purchase 4,000 shares, if elected or appointed after the 1998 Annual
Meeting but before the 1999, 2000, 2001 or 2002 Annual Meetings, of
the Common Stock of the Corporation.
(c) Each option granted to directors under this paragraph 7
shall be exercisable at an exercise price equal to 100% of the fair
market value of the price of the Common Stock on the date of the
grant, as determined in accordance with the second sentence of
paragraph 6(a) hereof.
(d) Each option granted to directors under this paragraph 7
shall be exercisable on and after the first anniversary of the date of
grant.
(e) Unless otherwise provided in the Plan, all provisions with
respect to the terms of non-incentive stock options hereunder shall be
applicable to stock options granted to directors.
(f) The automatic grants described in this paragraph 7 shall
constitute the only grants under the Plan permitted to be made to
directors who are not also employees of the Corporation.
8. Transferability Restriction
Unless otherwise determined by the Committee, the option by its terms
shall be personal and shall not be transferable by the optionee otherwise than
by will or by the laws of descent and distribution. During the lifetime of an
optionee, the option shall be exercisable only by the optionee, or by a duly
appointed legal representative, unless otherwise determined by the Committee.
9. Designation of Certain Options as Incentive Stock Options
Options or portions of options granted to employees hereunder may, in the
discretion of the Committee, be designated as "incentive stock options" within
the meaning of Section 422 of the Code. In addition to the terms and conditions
contained in paragraph 6 hereof, options designated as incentive stock options
shall also be subject to the condition that the aggregate fair market value
(determined at the time the options are granted) of the Corporation's Common
Stock with respect to which incentive stock options are exercisable for the
first time by any individual employee during any calendar year (under this Plan
and all other similar plans of the Corporation and its subsidiaries) shall not
exceed $100,000.
10. Loans to Optionees
The Corporation may make interest-free demand loans to holders of options
which are not designated or qualified hereunder or by the Code as "incentive
stock options" for the purpose of exercising such options or for the purpose of
enabling optionees to pay any tax liability associated with the exercise of any
such option. Such loans shall be fully secured by shares of Common Stock of the
Corporation and shall in any event be repayable upon the termination of the
optionee's employment or directorship with the Corporation for any reason. The
Committee shall establish written procedures concerning the application for and
making of such loans.
11. Investment Representation
Upon any distribution of shares of Common Stock of the Corporation
pursuant to any provision of this Plan, the distributee may be required to
represent in writing that he or she is acquiring such shares for his or her own
account for investment and not with a view to, or for sale in connection with,
the distribution of any part thereof. The certificates for such shares may
include any legend which the Corporation deems appropriate to reflect any
restrictions on transfers.
12. Transfer, Leave of Absence, Etc.
For the purpose of the Plan: (a) a transfer of an employee from the
Corporation to a subsidiary, or vice versa, or from one subsidiary to another,
and (b) a leave of absence, duly authorized in writing by the Corporation,
shall not be deemed a termination of employment.
13. Rights of Employees and Others
(a) No person shall have any rights or claims under the Plan except in
accordance with the provisions of the Plan.
(b) Nothing contained in the Plan shall be deemed to give any employee
the right to be retained in the service of the Corporation or its
subsidiaries.
14. Changes in Capital or Control
If the outstanding Common Stock of the Corporation subject to the Plan
shall at any time be changed or exchanged by declaration of a stock dividend,
stock split, combination of shares, recapitalization, merger, consolidation or
other corporate reorganization, the number and kind of shares subject to this
Plan and the option prices shall be approximately and equitably adjusted so as
to maintain the option price thereof. Notwithstanding any other provision of
the Plan, upon the occurrence of a Change in Control, as hereinafter defined,
each holder of an unexpired option under the Plan shall have the right to
exercise such option in whole or in part without regard to the date that such
option would be first exercisable, and such right shall continue, with respect
to any such holder whose employment with the Corporation or subsidiary or whose
directorship on the Board of Directors terminates following a Change in
Control, for a period ending on the earlier of the date of expiration of such
option or the date which is twelve months after such termination of employment
or directorship.
For purposes of the Plan, a "Change in Control" of the Corporation shall
be deemed to have occurred if:
(a) any person, as such term is used in Sections 13(d)(3) and
14(d)(2) of the Securities Exchange Act of 1934, as amended, becomes a
beneficial owner (within the meaning of Rule 13d-3 under such Act) of
20% or more of the Corporation's outstanding Common Stock;
(b) there occurs within any period of two consecutive years
any change in the directors of the Corporation such that the members
of the Corporation's Board of Directors prior to such change do not
constitute a majority of the directors after giving effect to all
changes during such two-year period unless the election, or the
nomination for election by the Corporation's stockholders, of each new
director was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of
the period; or
(c) the Corporation is merged, consolidated or reorganized
into or with, or sells all or substantially all of its assets to,
another corporation or other entity, and immediately after such
transaction less than 80% of the voting power of the then-outstanding
securities of such corporation or other entity immediately after such
transaction is held in the aggregate by holders of the Corporation's
Common Stock immediately before such transaction.
In addition, if the Corporation enters into an agreement or series of
agreements or the Board of Directors of the Corporation adopts a resolution
which results in the occurrence of any of the foregoing events, and the
employment or directorship of a holder of an option under the Plan is
terminated after the entering into of such agreement or series of agreements or
the adoption of such resolution, then, upon the occurrence of any of the events
described above, a Change in Control shall be deemed to have retroactively
occurred on the date of entering into of the earliest of such agreements or the
adoption of such resolution.
15. Use of Proceeds
Proceeds from the sale of shares pursuant to options granted under this
Plan shall constitute general funds of the Corporation.
16. Amendments
The Board of Directors may discontinue the Plan and the Committee may
amend the Plan from time to time, but no amendment, alteration or
discontinuation shall be made which, without the approval of the stockholders,
would:
(a) Except as provided in paragraph 14 of the Plan, increase
the total number of shares reserved for the purposes of the Plan;
(b) Decrease the option price of an option to less than 100%
of the fair market value on the date of the granting of the option;
(c) Increase the maximum number of options which may be
granted to an optionee under the Plan; or
(d) Amend or modify paragraph 7 of the Plan.
Neither shall any amendment, alteration or discontinuation impair the
rights of any holder of an option theretofore granted without the optionee's
consent; provided, however, that if the Committee after consulting with
management of the Corporation determines that application of an accounting
standard in compliance with any statement issued by the Financial Accounting
Standards Board concerning the treatment of employee stock options would have a
significant adverse effect on the Corporation's financial statements because of
the fact that options granted before the issuance of such statement are then
outstanding, then the Committee in its absolute discretion may cancel and
revoke all outstanding options to which such adverse effect is attributed and
the holders of such options shall have no further rights in respect thereof.
Such cancellation and revocation shall be effective upon written notice by the
Committee to the holders of such options.
17. Repricing Restriction
Options granted under this Plan shall not be repriced by the Corporation
for any reason.
18. Effective Date of Plan
This Plan shall be effective upon its approval by the Corporation's Board
of Directors and stockholders.
19. Compliance with Section 16(b)
The Plan is intended to comply with all applicable conditions of Rule
16b-3 of the General Rules and Regulations under the Securities Exchange Act of
1934, as amended. All transactions involving the Corporation's directors and
executive officers are subject to such conditions, regardless of whether the
conditions are expressly set forth in the Plan. Any provision of the Plan that
is contrary to a condition of Rule 16b-3 shall not apply to directors and
executive officers of the Corporation.
Exhibit 4.4
STOCK OPTION AGREEMENT
PURSUANT TO
FDX CORPORATION
1997 STOCK INCENTIVE PLAN, AS AMENDED
A STOCK OPTION for a total of __________ shares of Common Stock, par
value $.10 per share, of FDX Corporation, a Delaware corporation (the
"Company"), is hereby granted to _______________ (the "Optionee"), at the price
determined as provided herein, and in all respects subject to the terms,
definitions and provisions of the Company's 1997 Stock Incentive Plan, as
Amended, (the "Plan"), which is incorporated herein by reference.
1. Option Price. The option price is $____________ for each share, being
one hundred percent (100%) of the fair market value, as determined by the
Committee, of the Common Stock on the date of grant of this Option.
2. Exercise of Option. This Option shall be exercisable in accordance
with provisions of Section 6 of the Plan as follows:
(i) Schedule of Rights to Exercise. Twenty percent (20%) after
one year from the date of grant; forty percent (40%) after two years; sixty
percent (60%) after three years; eighty percent (80%) after four years; and one
hundred percent (100%) after five years.
(ii) Method of Exercise. This Option shall be exercisable by a
written notice which shall:
(a) state the election to exercise the Option, the number
of shares in respect of which it is being exercised, the person in whose
name the stock certificate or certificates for such shares of Common
Stock is to be registered and the address and Social Security Number of
such person (or if more than one, the names, addresses and Social
Security Numbers of such persons);
(b) contain such representations and agreements as to the
holder's investment intent with respect to such shares of Common Stock
as may be satisfactory to the Company's counsel;
(c) be signed by the person or persons entitled to exercise
the Option and, if the Option is being exercised by any person or
persons other than the Optionee, be accompanied by proof, satisfactory
to counsel for the Company, of the right of such person or persons to
exercise the Option; and
(d) be in writing and delivered in person or by first class
or interdepartmental mail to the President of the Company or his
designee.
Payment of the purchase price of any shares with respect to
which the Option is being exercised shall be by certified check, bank cashier's
check or wire transfer.
(iii) Restrictions on Exercise. This Option may not be exercised
if the issuance of the shares upon such exercise would constitute a violation
of any applicable federal or state securities or other law or regulation. As a
condition to the exercise of this Option, the Company may require the person
exercising this Option to make any representation and warranty to the Company
as may be required by any applicable law or regulation.
3. Designation of Certain Option Shares as Incentive Stock Options. The
maximum number of option shares granted hereunder are (as permitted by Section
7 of the Plan) hereby designated incentive stock options, as that term is
defined in Section 422(b) of the Internal Revenue Code (the "ISO Shares").
Pursuant to the exercise schedule as provided in Section 2(i) of this
Agreement, the number of ISO Shares and non-qualified option shares ("NQO
Shares") exercisable on and after the anniversaries described in such Section
2(i) shall be as set forth in the table below; provided, however, that if
pursuant to any provision of the Plan or amendment to this Agreement any of the
option shares hereby granted become exercisable sooner than as provided in
Section 2(i) hereof, then the number of option shares that may be ISO Shares
with respect to any calendar year during which they are first exercisable
shall, notwithstanding the table below, be limited to the quotient obtained by
dividing $100,000 by the option price set forth in Section 1 hereof.
Anniversary of ISO NQO
Grant Date Shares Shares
-------------- ------ ------
(i) Notice to Company of Disposition of ISO Shares. Optionee
agrees that, in the event the Optionee disposes of any of the ISO Shares within
one year after the date of exercise of the option to purchase same, the
Optionee will promptly notify the Company of such disposition. Such notice
shall be in writing and shall specify (i) the number of ISO Shares so disposed
of, (ii) the price paid for such shares by the Optionee upon the exercise of
the option, and (iii) the price or other consideration received for such
shares. All certificates for Common Stock issued upon the exercise of an option
to purchase ISO Shares shall bear such legend or other distinctive impression,
as determined by the Committee, as will notify the transfer agent of such stock
to advise the Company of the disposition of ISO Shares within one year after
the issuance thereof.
4. Transferability of Option. This Option may not be transferred in any
manner otherwise than by will or the laws of descent or distribution and may be
exercised during the lifetime of the Optionee only by the Optionee. The terms
of this Option shall be binding upon the heirs, personal representatives and
successors of the Optionee.
5. Term of Option. This Option may not be exercised more than ten (10)
years from the date of grant of this Option, as set forth below, and may be
exercised during such term only in accordance with the Plan and the terms of
this Option.
6. Optionee Acknowledgment. Optionee acknowledges receipt of a copy of
the Plan, which is annexed hereto, and represents that such Optionee is
familiar with the terms and provisions thereof, and hereby accepts this Option
subject to all the terms and provisions thereof. Optionee hereby agrees to
accept as binding, conclusive and final all decisions or interpretations of the
Committee upon any questions arising under the Plan or this Option.
Date of Grant: _______________.
FDX CORPORATION
By:
-------------------------------
CHAIRMAN, PRESIDENT AND
CHIEF EXECUTIVE OFFICER
-------------------------------
OPTIONEE
Exhibit 5.1
[Letterhead of George W. Hearn]
January 22, 1999
FDX Corporation
6075 Poplar Avenue
Memphis, Tennessee 38119
Ladies and Gentlemen:
I am the Corporate Vice President and Corporate Counsel of FDX
Corporation, a Delaware corporation (the "Company"), and have participated in
the preparation of the Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission in
connection with the registration under the Securities Act of 1933, as amended,
of the offer and sale of an aggregate 3,000,000 shares of the Company's common
stock, par value $0.10 per share (the "Shares"), that may be issued from time
to time under the FDX Corporation 1997 Stock Incentive Plan, as amended (the
"Plan").
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 which
are being registered pursuant to the Registration Statement have been duly
authorized by the Company, and when issued in the manner contemplated by the
Registration Statement and in accordance with the terms of the Plan, the Shares
will be validly issued, fully paid and nonassessable.
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.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to me under "Item 5. Interests of
Named Experts and Counsel" of the Registration Statement.
Very truly yours,
/s/ George W. Hearn
George W. Hearn
Corporate Vice President and
Corporate Counsel
FDX Corporation
Exhibit 15.1
[ARTHUR ANDERSEN LLP LETTERHEAD]
January 19, 1999
FDX Corporation
6075 Poplar Avenue
Memphis, Tennessee 38119
Ladies and Gentlemen:
We are aware that FDX Corporation will be incorporating by reference in this
Form S-8 Registration Statement its Form 10-Qs for the quarters ended August 31,
1998 and November 30, 1998, which include our reports dated September 23, 1998
and December 16, 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 this 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,
/s/ Arthur Anderson LLP
Arthur Andersen LLP
Exhibit 23.1
[ARTHUR ANDERSEN LLP LETTERHEAD]
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 Registration Statement of FDX Corporation of our
reports dated July 8, 1998 included (or incorporated by reference) in FDX
Corporation's Form 10-K for the year ended May 31, 1998, and to all references
to our firm included in this registration statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Memphis, Tennessee
January 19, 1999
Exhibit 23.2
Consent of Independent Public Accountants
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 333-00000) pertaining to the FDX Corporation 1997 Stock Incentive
Plan (As Amended) of our report dated January 23, 1997 (except for Note K as
to which the date is March 27, 1997) with respect to the consolidated
financial statements of Caliber System, Inc. as of December 31, 1996 and for
the two years in the period then ended included in FDX Corporation's Annual
Report (Form 10K) for the year ended May 31, 1998.
Ernst & Young LLP
Akron, Ohio
January 19, 1999
