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Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
of
FDX CORPORATION
FDX Corporation, a corporation organized and existing under the laws
of the State of Delaware (the "Corporation"), hereby certifies that the
Corporation was originally incorporated under the name "Fast Holding Inc." on
October 2, 1997, and that its original Certificate of Incorporation was filed
with the Secretary of State of the State of Delaware on the same date. The
Corporation further certifies that this Amended and Restated Certificate of
Incorporation amends, integrates and restates the provisions previously filed
with the Secretary of State of the State of Delaware.
ARTICLE FIRST: The name of the corporation is
FDX CORPORATION.
ARTICLE SECOND: The address of its registered office in the State of
Delaware is Corporation Service Company, 1013 Centre Road, City of
Wilmington, County of New Castle, Delaware 19805. The name of its registered
agent at such address is Corporation Service Company.
ARTICLE THIRD: The nature of the business or purposes to be
conducted or promoted is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
ARTICLE FOURTH: The total number of shares of all classes of stock
which the Corporation shall have authority to issue is 404,000,000 shares
consisting of 4,000,000 shares of Series Preferred Stock, no par value
(herein called the "Series Preferred Stock"), and 400,000,000 shares of
Common Stock, par value $0.10 per share (herein called the "Common Stock").
The following is a statement of the powers, preferences and rights,
and the qualifications, limitations or restrictions thereof, in respect of
each class of stock of the Corporation:
I. SERIES PREFERRED STOCK
1. CONDITIONS OF ISSUANCE. Series Preferred Stock may be issued from
time to time and in such amounts and for such consideration as may be
determined by the Board of Directors of the Corporation. The designation and
relative rights and preferences of each series, except to the extent such
designations and relative rights and preferences may be required by Delaware
law or this Amended and Restated Certificate of Incorporation, shall be such
as are fixed by the Board of Directors and stated in a resolution or
resolutions adopted by the Board of Directors authorizing such series (herein
called the "Series Resolution"). A Series Resolution authorizing any series
shall fix:
A. The designation of the series, which may be by
distinguishing number, letter or title;
B. The number of shares of such series;
C. The divided rate or rates of such shares, the date at
which dividends, if declared, shall be payable, and whether or not such
dividends are to be cumulative, in which case such Series Resolution
shall state the date or dates from which dividends shall be cumulative;
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D. The amounts payable on shares of such series in the event
of voluntary or involuntary liquidation, dissolution or winding up;
E. The redemption rights and price or prices, if any, for
the shares of such series;
F. The terms and amount of any sinking fund or analogous
fund providing for the purchase or redemption of the shares of such
series, if any;
G. The voting rights, if any, granted to the holders of the
shares of such series in addition to those required by Delaware law or
this Amended and Restated Certificate of Incorporation;
H. Whether the shares of such series shall be convertible
into shares of the Corporation's Common Stock or any other class of the
Corporation's capital stock, and if convertible, the conversion price
or prices, any adjustment thereof and any other terms and conditions
upon which such conversion shall be made;
I. Any other rights, preferences, restrictions or conditions
relative to the shares of such series astray be permitted by Delaware
law or this Amended and Restated Certificate of Incorporation.
2. RESTRICTIONS. In no event, so long as any Series Preferred Stock
shall remain outstanding, shall any dividend whatsoever be declared or paid
upon, nor shall any distribution be made upon, Common Stock, other than a
dividend or distribution payable in shares of such Common Stock, nor (without
the written consent of such number of the holders of the outstanding Series
Preferred Stock as shall have been specified in the Series Resolution
authorizing the issuance of such outstanding Series Preferred Stock) shall
any shares of Common Stock be purchased or redeemed by the Corporation, nor
shall any moneys be paid to or made available for a sinking fund for the
purchase or redemption of any Common Stock, unless in each instance full
dividends on all outstanding shares of the Series Preferred Stock for all
past dividend periods shall have been paid and the full dividend on all
outstanding shares of the Series Preferred Stock for the current dividend
period shall have been paid or declared and sufficient funds for the payment
thereof set apart and any arrears in the mandatory redemption of the Series
Preferred Stock shall have been made good.
3. PRIORITY. Series Preferred Stock, with respect to both dividends
and distribution of assets on liquidation, dissolution or winding up, shall
rank prior to the Common Stock.
4. VOTING RIGHTS. Holders of Series Preferred Stock shall have no
right to vote for the election of Directors of the Corporation or on any
other matter unless a vote of such class is required by Delaware law, this
Amended and Restated Certificate of Incorporation or a Series Resolution.
5. FILING OF AMENDMENTS. The Board of Directors shall adopt
amendments to this Amended and Restated Certificate of Incorporation fixing,
with respect to each series of Series Preferred Stock, the matters described
in paragraph 1 of this Subdivision I.
II. COMMON STOCK
All shares of Common Stock shall be identical and shall entitle the
holders thereof to the same rights and privileges.
1. DIVIDENDS. When and as dividends are declared upon the Common
Stock, whether payable in cash, in property or in shares of stock of the
Corporation, the holders of Common Stock shall be entitled to share equally,
share for share, in such dividends.
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2. VOTING RIGHTS. The holders of Common Stock shall have the sole
right to vote for the election of Directors of the Corporation or on any
other matter unless required by Delaware law, this Amended and Restated
Certificate of Incorporation or a Series Resolution. The holders of Common
Stock shall be entitled to one vote for each share held.
III. OTHER PROVISIONS
1. No holder of any of the shares of any class or series of stock or
of options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
pre-emptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be issued
by reason of any increase of the authorized capital stock of the Corporation
of any class or series, or bonds, certificates of indebtedness, debentures or
other securities convertible into or exchangeable for stock of the
Corporation of any class or series, or carrying any right to purchase stock
of any class or series, but any such unissued stock, additional authorized
issue of shares of any class or series of stock or securities convertible
into or exchangeable for stock, or carrying any right to purchase stock, may
be issued and disposed of pursuant to resolution of the Board of Directors to
such persons, firms, corporations or associations, whether such holders or
others, and upon such terms as may be deemed advisable by the Board of
Directors in the exercise of its sole discretion.
2. Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such terms and
for such consideration as shall be fixed by the Board of Directors.
ARTICLE FIFTH: Certain Business Combinations
1. HIGHER VOTE FOR CERTAIN BUSINESS COMBINATIONS. In addition to any
affirmative vote of holders of a class or series of capital stock of the
Corporation required by law or this Amended and Restated Certificate of
Incorporation, and except as otherwise expressly provided in paragraph 2 of
this ARTICLE FIFTH, a Business Combination (as hereinafter defined) with or
upon a proposal by a Related Person (as hereinafter defined) shall require
the affirmative vote of the holders of at least 80% of the voting power of
the then outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of Directors (the "Voting Stock"). Such
affirmative vote shall be required notwithstanding the fact that no vote may
be required or that a lesser percentage may be specified, by law or in any
agreement with any national securities exchange or otherwise.
2. WHEN HIGHER VOTE IS NOT REQUIRED. The provisions of paragraph 1
of this ARTICLE FIFTH shall not be applicable to a particular Business
Combination and such Business Combination shall require only such affirmative
vote as is required by law and other provisions of this Amended and Restated
Certificate of Incorporation, if all of the conditions specified in either of
the following paragraphs (A) or (B) are met:
(A) Approval by Directors. The Business Combination has been
approved by a majority of the Continuing Directors (as hereinafter
defined).
(B) Price and Procedure Conditions. All of the following
conditions shall have been met:
(1) The aggregate amount of the cash and the Fair
Market Value (as hereinafter defined) as of the date of the
consummation of the Business Combination of consideration
other than cash to be received per share by holders of Common
Stock in such Business Combination shall be at least equal to
the higher of the following:
(i) (if applicable) the highest per share
price (including any brokerage commissions, transfer
taxes and soliciting dealer's fees) paid by the
Related Person for any shares of Common Stock
acquired by it (a) within the two-year period
immediately prior to the first public announcement of
the proposal of the Business Combination (the
"Announcement Date") or (b) in the transaction in
which it became a Related Person, whichever is
higher; or
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(ii) the Fair Market Value per share of
Common Stock on the Announcement Date or on the date
on which the Related Person became a Related Person
(such latter date is referred to in this ARTICLE
FIFTH as the "Determination Date"), whichever is
higher; or
(2) The aggregate amount of the cash and the Fair
Market Value as of the date of the consummation of the
Business Combination of consideration other than cash to be
received per share by holders of Shares of any other class or
series of outstanding Voting Stock shall be at least equal to
the highest of the following (it being intended that the
requirements of this-paragraph 2(B)(2) shall be required to be
met with respect to every class of outstanding Voting Stock
whether or not the Related Person has previously acquired any
shares of a particular class of Voting Stock):
(i) (if applicable) the highest per share
price (including any broker commissions, transfer
taxes and soliciting dealers' fees), paid by the
Related Person for any shares of such class or series
of Voting Stock acquired by it (a) within the
two-year period immediately prior to the Announcement
Date or (b) in the transaction in which it became a
Related Person, whichever is higher;
(ii) (if applicable) the highest
preferential amount per share to which the holders of
shares of such class or series of Voting Stock are
entitled in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation; and
(iii) the Fair Market Value per share of such
class or series of Voting Stock on the Announcement
Date or on the Determination Date, whichever is
higher.
(3) The consideration to be received by holders of a
particular class or series of outstanding Voting Stock
(including Common Stock) shall be in cash or in the same form
as the Related Person has previously paid for shares of such
class of Voting Stock. If the Related Person has paid for
shares of any class or series of Voting Stock with varying
forms of consideration, the form of consideration given for
such class or series of Voting Stock in the Business
Combination shall be either cash or the form used to acquire
the largest number of shares of such class or series of Voting
Stock previously acquired by it.
(4) No Extraordinary Event (as hereinafter defined)
shall have occurred after the Related Person became a Related
Person and prior to the consummation of the Business
Combination.
(5) A proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (or any
subsequent provisions replacing such Act, rules or
regulations) is mailed to public stockholders of the
Corporation at least 30 days prior to the consummation of such
Business Combination (whether or not such proxy or information
statement is required pursuant to such Act or subsequent
provisions).
3. CERTAIN DEFINITIONS. For purposes of this ARTICLE FIFTH:
(A) A "person" shall mean any individual, firm, corporation
or other entity.
(B) The term "Business Combination" shall mean any of the
following transactions, when entered into by the Corporation or a
subsidiary of the Corporation with, or upon a proposal by, a Related
Person or any other corporation (whether or not itself a Related Person
which is, or after such transaction would be, an Affiliate (as
hereinafter defined) of a Related Person:
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(1) the merger or consolidation of the
Corporation or any subsidiary of the Corporation; or
(2) the sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one or a series of
transactions) of any assets of the Corporation or any
subsidiary of the Corporation having an aggregate Fair Market
Value of $5,000,000 or more;
(3) the issuance or transfer by the Corporation or
any subsidiary of the Corporation (in one or a series of
transactions) of securities of the Corporation or that
subsidiary having an aggregate Fair Market Value of $5,000,000
or more; or
(4) the adoption of a plan or proposal for the
liquidation or dissolution of the Corporation; or
(5) the reclassification of securities (including a
reverse stock split), recapitalization, consolidation or any
other transaction (whether or not involving a Related Person)
which has the direct or indirect effect of increasing the
voting power, whether or not then exercisable, of a Related
Person in any class or series of capital stock of the
Corporation or any subsidiary of the Corporation; or
(6) any agreement, contract or other arrangement
providing directly or indirectly for the foregoing.
(C) The term "Related Person" shall mean any person (other
than the Corporation, a subsidiary of the Corporation or any profit
sharing, employee stock ownership or other employee benefit plan of the
Corporation or a subsidiary of the Corporation or any trustee of or
fiduciary with respect to any such plan acting in such capacity) which:
(1) is the beneficial owner, directly or indirectly,
of more than 10% of the voting power of the outstanding Voting
Stock, or
(2) is an Affiliate of the Corporation and at any
time within the two-year period immediately prior to the date
in question was the beneficial owner, directly or indirectly,
of 10% or more of the voting power of the then outstanding
Voting Stock; or
(3) is an assignee of or has otherwise succeeded to
any shares of Voting Stock which were at any time within the
two-year period immediately prior to the date in question
beneficially owned by any Related Person, if such assignment
or succession shall have occurred in the course of a
transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(D) A person shall be a "beneficial owner" of any Voting
Stock:
(1) which such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially owns,
directly or indirectly; or
(2) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such right is
exercisable immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (ii) the right to vote
pursuant to any agreement, arrangement or understanding; or
(3) which are beneficially owned, directly or
indirectly by any other person with which such person or any
of its Affiliates or Associates has any agreement, arrangement
or understanding for the purpose of acquiring, holding, voting
or disposing of any shares of Voting Stock.
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For the purposes of determining whether a person is a Related
Person pursuant to subparagraph (C) of this paragraph 3, the number of
shares of Voting Stock deemed to be outstanding shall include shares
deemed owned through application of subparagraph (D) of this paragraph
3 but shall not include any other shares of Voting Stock which may be
issuable pursuant to any agreement, arrangement or understanding, or
upon exercise of conversion rights, warrants or options, or otherwise.
(E) The term "Continuing Director" shall mean any member of
the Board of Directors who is not affiliated with a Related Person and
who was a member of the Board of Directors immediately prior to the
time that the Related Person became a Related Person, and any successor
to a Continuing Director who is not affiliated with the Related Person
and is recommended to succeed a Continuing Director by a majority of
Continuing Directors who are then members of the Board of Directors.
(F) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 under the Securities
Exchange Act of 1934, as in effect on August 1, 1984.
(G) The term "Extraordinary Event" shall mean, as to any
Business Combination and Related Person, any of the following events
that is not approved by a majority of the Continuing Directors:
(1) any failure to declare and pay at the regular
date therefor any full quarterly dividend (whether or not
cumulative) on outstanding Preferred or Preference Stock; or
(2) any reduction in the annual rate of dividends
paid on the Common Stock (except as necessary to reflect any
subdivision of the Common Stock); or
(3) any failure to increase the annual rate of
dividends paid on the Common Stock as necessary to reflect any
reclassification, (including any reverse stock split),
recapitalization, reorganization or any similar transaction
that has the effect of reducing the number of outstanding
shares of the Common Stock; or
(4) any Related Person shall become the beneficial
owner of any additional shares of Voting Stock except as part
of the transaction which resulted in such Related Person
becoming a Related Person; or
(5) the receipt by the Related Person, after such
Person has become a Related Person, of a direct or indirect
benefit (except proportionately as a shareholder) from any
loans, advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantages provided
by the Corporation or any subsidiary of the Corporation,
whether in anticipation of or in connection with the Business
Combination or otherwise.
(H) "Fair Market Value" means: (i) in the case of stock, the
highest closing sale price during the 30-day period immediately
preceding the date in question of a share of such stock on the
Composite Tape for New York Stock Exchange-Listed Stocks, or, if such
stock is not quoted on the Composite Tape, on the New York Stock
Exchange, or, if such stock is not listed on such Exchange, on the
principal United States securities exchange registered under the
Securities Exchange Act of 1934 on which such stock is listed, or, if
such stock is not listed on any such exchange, the highest closing bid
quotation with respect to a share of such stock during the 30-day
period preceding the date in question on the National Association of
Securities Dealers, Inc. Automated Quotations System or any system then
in use, or if no such quotations are available, the fair market value
on the date in question of a share of such stock as determined by the
Board of Directors in good faith; and (ii) in the case of property
other than cash or stock, the fair market value of such property on the
date in question as determined by the Board of Directors in good faith.
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(I) In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than cash to be
received" as used in subparagraphs B(1) and (2) of paragraph 2 of this
ARTICLE FIFTH shall include the shares of Common Stock and/or the
shares of any other class of outstanding Voting Stock retained by the
holders of such shares.
4. POWERS OF THE BOARD OF DIRECTORS. A majority of all Continuing
Directors shall have the power to make all determinations with respect to this
ARTICLE FIFTH, on the basis of information known to them after reasonable
inquiry, including, without limitation, the transactions that are Business
Combinations, the persons who are Related Persons, the number of shares of
Voting Stock owned by any person, the time at which a Related Person becomes a
Related Person and the Fair Market Value of any assets, securities or other
property, and any such determinations of such Directors shall be conclusive and
binding.
5. NO EFFECT ON FIDUCIARY OBLIGATIONS OF RELATED PERSONS. Nothing
contained in this ARTICLE FIFTH shall be construed to relieve any Related Person
from any fiduciary obligation imposed by law.
6. AMENDMENT OR REPEAL. The affirmative vote of the holders of not less
than 80% of the total voting power of the Voting Stock of the Corporation,
voting together as a single class, shall be required in order to amend, repeal
or adopt any provision inconsistent with this ARTICLE FIFTH.
ARTICLE SIXTH: In addition to any affirmative vote of holders of a
class or series of capital stock of the Corporation required by law or this
Amended and Restated Certificate of Incorporation, unless the Business
Combination (as defined in ARTICLE FIFTH of this Amended and Restated
Certificate of Incorporation) has been approved by a majority of the Continuing
Directors (as defined in ARTICLE FIFTH of this Amended and Restated Certificate
of Incorporation), a Business Combination with or upon a proposal by a Related
Person (as defined in ARTICLE FIFTH of this Amended and Restated Certificate of
Incorporation) shall require the affirmative vote of the holders of not less
than a majority of the Voting Stock (as defined in ARTICLE FIFTH of this Amended
and Restated Certificate of Incorporation) beneficially owned by stockholders
other than such Related Person. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required or that a lesser
percentage may be specified by law or in any agreement with any national
securities exchange or otherwise.
The affirmative vote of the holders, other than the Related Person
proposing the amendment, repeal or adoption of any provision inconsistent with
this ARTICLE SIXTH, of not less than a majority of the Voting Stock of the
Corporation, voting together as a single class, shall be required in order to
amend, repeal or adopt any provision inconsistent with this ARTICLE SIXTH.
ARTICLE SEVENTH: The corporation is to have perpetual existence.
ARTICLE EIGHTH: In furtherance and not in limitation of the
powers conferred by statute, the Board of Directors is expressly authorized:
The Board of Directors shall have power to make, alter, amend and
repeal the By-laws (except so far as the By-laws adopted by the stockholders
shall otherwise provide). Any By-laws made by the Directors under the powers
conferred hereby may be altered, amended or repealed by the Directors or by
the stockholders. Notwithstanding the foregoing and anything contained in
this Amended and Restated Certificate of Incorporation to the contrary,
Sections 5 and 11 of Article II of the By-laws shall not be altered, amended
or repealed and no provision inconsistent therewith shall be adopted without
the affirmative vote of the holders of at least 80% of the voting power of
all the shares of the Corporation entitled to vote generally in the election
of Directors, voting together as a single class. Notwithstanding anything
contained in this Amended and Restated Certificate of Incorporation to the
contrary, the affirmative vote of the holders of at least 80% of the voting
power of all shares of the Corporation entitled to vote generally in the
election of Directors, voting together as a single class, shall be required
to alter, amend, adopt any provision inconsistent with or repeal this ARTICLE
EIGHTH.
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To authorize and cause to be executed mortgages and liens upon the
real and personal property of the Corporation.
To set apart out of any of the funds of the Corporation available
for dividends a reserve or reserves for any proper purpose and to abolish any
such reserve in the manner in which it was created.
By a majority of the whole Board, to designate one or more
committees, each committee to consist of one or more of the Directors of the
Corporation. The Board may designate one or more Directors as alternate
members of any committee, who may replace any absent or disqualified member
at any meeting of the committee. The By-laws may provide that in the absence
or disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board of Directors, or in the By-laws of the Corporation,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation,
and may authorize the seal of the Corporation to be affixed to all papers
which may require it; but no such committee shall have the power or authority
in reference to amending the Amended and Restated Certificate of
Incorporation, adopting an agreement of merger or consolidation, recommending
to the stockholders the sale, lease or exchange of all or substantially all
of the Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending
the By-laws of the Corporation; and, unless the resolution or By-laws
expressly so provide, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock.
When and as authorized by the stockholders in accordance with
statute, to sell, lease or exchange all or substantially all of the property
and assets of the Corporation, including its good will and its corporate
franchises, upon such terms and conditions and for such consideration, which
may consist in whole or in part of money or property including shares of
stock in, and/or other securities of, any other corporation or corporations,
as its Board of Directors shall deem expedient and for the best interests of
the Corporation.
ARTICLE NINTH: Whenever a compromise or arrangement is proposed
between this Corporation and its creditors or any class of them and/or
between this Corporation and its stockholders or any class of them, any court
of equitable jurisdiction within the State of Delaware may, on the
application in a summary way of this Corporation or of any creditor or
stockholder thereof, or on the application of any receiver or receivers
appointed for this Corporation under the provisions of Section 291 of Title 8
of the Delaware Code or on the application of trustees in dissolution or of
any receiver or receivers appointed for this Corporation under the provisions
of Section 279 of Title 8 of the Delaware Code order a meeting of the
creditors or class of creditors and/or of the stockholders/or class
stockholders of this Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors and/or of the
stockholders or class of stockholders of this Corporation, as the case may
be, agree to any compromise or arrangement and to any reorganization of this
Corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors and/or on all the stockholders or class of
stockholders of this Corporation, as the case may be, and also on this
Corporation.
ARTICLE TENTH: Meetings of stockholders may be held within or
without the State of Delaware, as the By-laws may provide. The books of the
Corporation may be kept (subject to any provision contained in the statutes)
outside the State of Delaware at such place or places as may be designated
from time to time by the Board of Directors or in the By-laws of the
Corporation. Elections of Directors need not be by written ballot unless the
By-laws of the Corporation shall so provide.
ARTICLE ELEVENTH: The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this Amended and Restated
Certificate of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are granted
subject to this reservation.
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ARTICLE TWELFTH: Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual or
special meeting of such holders and may not be effected by any consent in
writing by such holders. Except as otherwise required by law and subject to
the rights of the holders of any class or series of stock having a preference
over the Common Stock as to dividends or upon liquidation, special meetings
of stockholders of the Corporation may be called only by the Board of
Directors pursuant to a resolution approved by a majority of the entire Board
of Directors. Notwithstanding anything contained in this Amended and Restated
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 80% of the voting power of all shares of the Corporation
entitled to vote generally in the election of Directors, voting together as a
single class, shall be required to alter, amend, adopt any provision
inconsistent with or repeal this ARTICLE TWELFTH.
ARTICLE THIRTEENTH: No Director shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director, provided that this ARTICLE THIRTEENTH shall not eliminate
or limit the liability of a Director (i) for any breach of the Director's
duty of loyalty to the Corporation 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 Title 8 of the Delaware
Code or any amendment or successor provision thereto, or (iv) for any
transaction from which the Director derived an improper personal benefit.
This ARTICLE THIRTEENTH shall not eliminate or limit the liability of a
Director for any act or omission occurring prior to the date when this
ARTICLE THIRTEENTH becomes effective. Neither the amendment nor repeal of
this ARTICLE THIRTEENTH, nor the adoption of any provision of the Amended and
Restated Certificate of Incorporation inconsistent with this ARTICLE
THIRTEENTH shall eliminate or reduce the effect of this ARTICLE THIRTEENTH
with respect to any matter occurring, or any cause of action, suit or claim
that, but for this ARTICLE THIRTEENTH, would accrue or arise prior to such
amendment, repeal or adoption of an inconsistent provision.
* * * *
This Amended and Restated Certificate of Incorporation was duly
adopted in accordance with the provisions of Section 242 and 245 of the
General Corporation Law of the State of Delaware.
The Board of Directors of the Corporation approved the Corporation's
Amended and Restated Certificate of Incorporation as set forth herein
pursuant to a Consent in Lieu of Meeting of the Board of Directors effective
as of December 2, 1997.
Federal Express Corporation, the holder of all of the outstanding
stock of the Corporation, acting by written consent pursuant to Section
228(a) of the General Corporation Law of the State of Delaware, approved the
Amended and Restated Certificate of Incorporation as set forth herein as of
December 2, 1997.
FDX CORPORATION
By: /s/ GEORGE W. HEARN
-------------------------
George Hearn
President
ATTEST:
/s/ SCOTT E. HANSEN
-------------------------------
Scott E. Hansen
Vice President and Secretary
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CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
FDX CORPORATION
FDX Corporation, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of the
Corporation, resolutions were duly adopted setting forth a proposed amendment
to the Amended and Restated Certificate of Incorporation of the Corporation
and declaring said amendment to be advisable. The resolutions setting forth
the proposed amendment are as follows:
RESOLVED, that an amendment to the Corporation's Amended and Restated
Certificate of Incorporation doubling the number of authorized shares
of common stock is hereby declared to be advisable and that the
officers of the Corporation are hereby directed to submit such
amendment to the stockholders of the Corporation for approval at their
next annual meeting.
FURTHER RESOLVED, that the Amended and Restated Certificate of
Incorporation of the Corporation be amended by changing the first
sentence of Article Fourth thereof so that, as amended, said first
sentence of Article Fourth shall be and read in its entirety as
follows:
ARTICLE FOURTH: The total number of shares of all classes of
stock which the Corporation shall have authority to issue is
804,000,000 shares consisting of 4,000,000 shares of Series
Preferred Stock, no par value (herein called the "Series
Preferred Stock"), and 800,000,000 shares of Common Stock, par
value $0.10 per share (herein called the "Common Stock").
SECOND: That thereafter, at the annual meeting of stockholders of
the Corporation, duly called and held upon notice in accordance with Section
222 of the General Corporation Law of the State of Delaware, the necessary
number of shares as required by statute were voted in favor of the amendment.
THIRD: That the aforesaid amendment was duly adopted in
accordance with the applicable provisions of Section 242 of the General
Corporation Law of the State of Delaware.
<PAGE>
IN WITNESS WHEREOF, FDX Corporation has caused this Certificate of
Amendment to be signed by George W. Hearn, its Corporate Vice President and
Corporate Counsel, this 6th day of October, 1999.
FDX CORPORATION
By: /s/ GEORGE W. HEARN
--------------------------------
George W. Hearn
Corporate Vice President and
Corporate Counsel
2
<PAGE>
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING CEK COMPANY, INC.
INTO FDX CORPORATION
(PURSUANT TO SECTION 253 OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE)
FDX Corporation, a Delaware corporation (the "Corporation"), does hereby
certify:
FIRST: That the Corporation is incorporated pursuant to the General
Corporation Law of the State of Delaware.
SECOND: That the Corporation owns all of the outstanding shares of
each class of the capital stock of CEK Company, Inc., a Delaware corporation.
THIRD: That the Corporation, by the resolutions of its Board of
Directors attached as EXHIBIT A hereto, duly adopted on the 17th day of
January, 2000, determined to merge with and into itself CEK Company, Inc.
on the conditions set forth in such resolutions.
IN WITNESS WHEREOF, said FDX Corporation has caused this certificate to
be signed by Alan B. Graf, Jr., its authorized officer, this 17th day of
January, 2000.
FDX CORPORATION
By: /s/ ALAN B. GRAF, JR.
---------------------
Alan B. Graf, Jr.
EXECUTIVE VICE PRESIDENT
AND CHIEF FINANCIAL OFFICER
<PAGE>
EXHIBIT A
RESOLVED, that the Corporation merge with and into itself its
wholly-owned subsidiary, CEK Company, Inc., and assume all of said
subsidiary's liabilities and obligations.
FURTHER RESOLVED, that the Corporation change its corporate name by
changing Article First of the Amended and Restated Certificate of
Incorporation of the Corporation, as amended to date, to read as follows:
ARTICLE FIRST: The name of the corporation is:
FedEx Corporation.
FURTHER RESOLVED, that any Vice President of the Corporation be and he
or she hereby is, jointly and severally, authorized and directed to make,
execute and acknowledge a Certificate of Ownership and Merger setting
forth a copy of the resolutions to merge said CEK Company, Inc. with and
into the Corporation and to change the name of the Corporation and to
assume said subsidiary's liabilities and obligations and the date of
adoption thereof and to file the same in the office of the Secretary of
State of Delaware and a certified copy thereof in the Office of the
Recorder of Deeds of New Castle County.
FURTHER RESOLVED, that any officer of the Corporation, acting singly
and without necessity of joinder of any other person, is hereby
authorized, empowered and directed for, in the name and on behalf of the
Corporation to execute any and all documents, instruments and agreements,
including any amendments and modifications thereto, and do and perform
any and all acts and deeds (including, without limitation, the payment of
any fees) that are required to be done, observed, performed or discharged
by the Corporation in accordance with the respective terms and provisions
of the foregoing resolutions, or that any officer, in his or her sole
discretion with the advice and consent of counsel, deems necessary,
appropriate or advisable to effect the merger of CEK Company, Inc. with
and into the Corporation and to change the name of the Corporation to
FedEx Corporation, his or her taking any action being conclusive evidence
that he or she did so deem the same to be necessary, appropriate or
advisable.
FURTHER RESOLVED, that any and all actions taken in good faith by any
officer, director, employee or agent of the Corporation prior to the date
hereof on behalf of the Corporation and in furtherance of the
transactions contemplated by the foregoing resolutions are in all
respects ratified, confirmed and approved by the Corporation as its own
acts and deeds, and shall be conclusively deemed to be such corporate
acts and deeds for all purposes.
<PAGE>
CERTIFICATE OF CORRECTION
FILED TO CORRECT A CERTAIN ERROR IN THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
FEDEX CORPORATION (formerly known as FDX CORPORATION)
FILED IN THE OFFICE OF
THE SECRETARY OF STATE OF DELAWARE
ON DECEMBER 3, 1997
FedEx Corporation, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
1. The name of the corporation is FedEx Corporation (formerly FDX
Corporation).
2. That an Amended and Restated Certificate of Incorporation of FDX
Corporation was filed by the Secretary of State of Delaware on December 3,
1997, and that said Certificate requires correction as permitted by Section
103 of the General Corporation Law of the State of Delaware.
3. The inaccuracy or defect of said Certificate to be corrected is as
follows:
A misspelled word is included in Subsection I, under Paragraph 1 of Section
I of Article FOURTH. In its correct form, said Subsection I of the Amended
and Restated Certificate of Incorporation should read in its entirety as
follows:
"I. Any other rights, preferences, restrictions or conditions
relative to the shares of such series as may be permitted by
Delaware law or this Amended and Restated Certificate of
Incorporation."
IN WITNESS WHEREOF, said FedEx Corporation has caused this Certificate
to be signed by George W. Hearn its Corporate Vice President and Corporate
Counsel, this 13th day of April, 2000.
FEDEX CORPORATION
By: /s/ GEORGE W. HEARN
------------------------------
George W. Hearn
Corporate Vice President
and Corporate Counsel
<PAGE>
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING CALIBER SYSTEM, INC.
INTO FEDEX CORPORATION
(PURSUANT TO SECTION 253 OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE)
FedEx Corporation, a Delaware corporation (the "Corporation"), does
hereby certify:
FIRST: That the Corporation is incorporated pursuant to the General
Corporation Law of the State of Delaware.
SECOND: That the Corporation owns all of the outstanding shares of
each class of the capital stock of Caliber System, Inc., an Ohio corporation.
THIRD: That the Corporation, by the resolutions of its Board of
Directors attached as EXHIBIT A hereto, duly adopted on March 20, 2000,
determined to merge with and into itself Caliber System, Inc. on the
conditions set forth in such resolutions.
IN WITNESS WHEREOF, said FedEx Corporation has caused this certificate
to be signed by George W. Hearn, its authorized officer, this 27th day of
April, 2000.
FEDEX CORPORATION
By: /s/ GEORGE W. HEARN
--------------------
George W. Hearn
CORPORATE VICE PRESIDENT
AND CORPORATE COUNSEL
<PAGE>
EXHIBIT A
RESOLVED, that the Corporation merge with and into itself its
wholly-owned subsidiary, Caliber System, Inc. ("Caliber"), and assume all
of Caliber's liabilities and obligations (including, without limitation,
the 7.80% Notes due August 1, 2006 (the "Notes")).
FURTHER RESOLVED, that the Vice Presidents of the Corporation be, and
each of them hereby is, authorized, empowered and directed for and in the
name and on behalf of the Corporation to make, execute and acknowledge a
Certificate of Ownership and Merger setting forth a copy of the
resolutions to merge Caliber with and into the Corporation and to assume
Caliber's liabilities and obligations and the date of adoption thereof
and to file the same in the office of the Secretary of State of Delaware
and a certified copy thereof in the Office of the Recorder of Deeds of
New Castle County.
FURTHER RESOLVED, that the Vice Presidents of the Corporation be, and
each of them hereby is, authorized, empowered and directed for and in the
name and on behalf of the Corporation to negotiate, execute and deliver
an Agreement of Merger providing for the merger of Caliber with and into
the Corporation, with such terms, conditions and provisions as may be
acceptable to such officer with the advice and consent of counsel as
conclusively evidenced by his or her execution thereof, and any
amendments, modifications and supplements thereto, and to also execute
and file a Certificate of Merger with the Ohio Secretary of State.
FURTHER RESOLVED, that the Vice Presidents of the Corporation be, and
each of them hereby is, authorized, empowered and directed for and in the
name and on behalf of the Corporation to execute any and all documents,
certificates and agreements (including, without limitation, a First
Supplemental Indenture evidencing the Corporation's assumption of the
Notes), including any amendments, modifications and supplements thereto,
and do and perform any and all acts and deeds that are required to be
done, observed, performed or discharged by the Corporation in connection
with the merger of Caliber with and into the Corporation (including,
without limitation, the payment of any fees), or that such officer, in
his or her sole discretion with the advice and consent of counsel, deems
necessary, appropriate or advisable in connection therewith, his or her
taking any action being conclusive evidence that he or she did so deem
the same to be necessary, appropriate or advisable.
FURTHER RESOLVED, that any and all actions taken in good faith by any
officer, director, employee or agent of the Corporation prior to the date
hereof on behalf of the Corporation and in furtherance of the
transactions contemplated by the foregoing resolutions are in all
respects ratified, confirmed and approved by the Corporation as its own
acts and deeds, and shall be conclusively deemed to be such corporate
acts and deeds for all purposes.
