-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Lt2hzIM2cscwhO9Dn/MYOFrZiLtF0ybmWqrjDJ6xgV475d7noJlN+DfML6v5fX86 okMrnBtFAoixma5PjCHgVA== 0000950103-98-000065.txt : 19980129 0000950103-98-000065.hdr.sgml : 19980129 ACCESSION NUMBER: 0000950103-98-000065 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980128 EFFECTIVENESS DATE: 19980128 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: FDX CORP CENTRAL INDEX KEY: 0001048911 STANDARD INDUSTRIAL CLASSIFICATION: AIR COURIER SERVICES [4513] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-45037 FILM NUMBER: 98515016 BUSINESS ADDRESS: STREET 1: C/O FDX CORPORATION STREET 2: 2005 CORPORATE AVENUE CITY: MEMPHIS STATE: TN ZIP: 38132 BUSINESS PHONE: 9013955029 MAIL ADDRESS: STREET 1: C/O FDX CORPORATION STREET 2: 2005 CORPORATE AVE CITY: MEMPHIS STATE: TN ZIP: 38132 S-8 1 As submitted confidentially to the Securities and Exchange Commission on January 28, 1998 Registration No. 333-_____ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------------------- FDX CORPORATION (Exact name of Registrant as specified in its charter) Delaware 4513 62-1721435 (State or Jurisdiction of (Primary Standard Industrial (I.R.S. Employer Incorporation or Organization) Classification Code Number) Identification No.) -------------------------------- 2005 Corporate Avenue Memphis, Tennessee 38132 (Address of Principal Executive Offices, including Zip Code) -------------------------------- FDX Corporation Adjustment Program (Full Title of the Plan) KENNETH R. MASTERSON Executive Vice President, General Counsel and Secretary FDX Corporation 2005 Corporate Avenue Memphis, Tennessee 38132 (901) 369-3600 (Name, address, including zip code, and telephone number, including area code, of agent for service) -------------------------------- Approximate date of commencement of proposed sale to employees: From time to time after the effective date of this Registration Statement and the effective time ("Merger Date") of the merger (the "Merger") of Caliber System, Inc. ("Caliber") into a wholly-owned subsidiary of the Registrant, as described in the Agreement and Plan of Merger among Federal Express Corporation, Caliber System, Inc., Fast Holding Inc., Fast Merger Sub Inc. and Tires Merger Sub Inc., dated as of October 5, 1997. CALCULATION OF REGISTRATION FEE
======================================================================================================= Proposed Maximum Proposed Maximum Title of Each Class Amount to be Offering Price Aggregate Offering Amount of of Securities to be Registered Registered(1) Per Share(2) Price(3) Registration Fee - ------------------------------ ------------- ------------ -------- ---------------- Common Stock, par value $.10 per share ................. 699,680 $64.38 $32,150,425.19 $9,484.38 ========================================================================================================
- ------------------- (1) Represents the number of shares of common stock, par value $.10 per share, of the Registrant ("FDX Common Stock") to be issued following the Merger in connection with the satisfaction of awards and the exercise of stock options (collectively, the "Awards") previously granted under certain compensation and benefit plans of Caliber. This Registration Statement also covers an indeterminate number of additional shares which may be offered and issued to prevent dilution resulting from stock splits, stock dividends or similar transactions. (2) Calculated pursuant to Rule 457(h) and 457(c). Represents the average of the high and low sales price per share reported on the NYSE consolidated reporting system for January 26, 1998. (3) Calculated pursuant to Rule 457(h) and Rule 457(c). Represents (i) $7,608, 481.25 which is the aggregate offering price with respect to 118,190 shares issuable in respect of performance share awards, based on a per share price of $64.38, the average of the high and low sales prices on NYSE on January 26, 1998, plus (ii) $24,541,943.94 which is the aggregate exercise price with respect to 581,490 shares issuable in respect of option awards. ================================================================================ PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed by the Registrant and by Federal Express Corporation (as predecessor registrant) with the Securities and Exchange Commission (the "Commission") in accordance with the provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act") are incorporated herein by reference and made a part hereof. (a) The Federal Express Corporation Annual Report on Form 10-K for the fiscal year ended May 31, 1997; (b) All other reports filed by the Federal Express Corporation pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Annual Report referred to in (a) above; (c) The description of the securities contained in the Registrant's Current Report on Form 8-K pursuant to the Exchange Act, filed with the Commission contemporaneously herewith. All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL The validity of the shares of common stock registered hereunder has been passed on for the Registrant by Kenneth R. Masterson, Executive Vice President, General Counsel and Secretary of the Registrant. At January 27, 1998, Mr. Masterson owned 42,500 shares of the Registrant's common stock and held options to purchase 140,600 shares of such common stock. Of the options granted, 67,550 were vested at such date. The consolidated financial statements and schedules of Federal Express Corporation included or incorporated by reference in Federal Express Corporation's Annual Report on Form 10-K for the year ended May 31, 1997 and incorporated by reference herein, have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their reports with respect thereto, and are incorporated by reference herein in reliance upon the authority of said firm as experts in giving said reports. With respect to the unaudited interim financial information for the quarters ended August 31, 1997 and November 30, 1997, included in Federal Express Corporation's Quarterly Reports on Form 10-Q for such periods, which are incorporated by reference in this Registration Statement, Arthur Andersen LLP has applied limited procedures in accordance with professional standards for a review of such information. However, their separate reports thereon state that they did not audit and they do not express an opinion on that interim financial information. Accordingly, the degree of reliance on their reports on that information should be restricted in light of the limited nature of the review procedures applied. In addition, the accountants are not subject to the liability provisions of Section 11 of the Securities Act of 1933 (the "Securities Act") for their reports on the unaudited interim financial information because those reports are not "reports" or a "part" of this Registration Statement, prepared or certified by the accountants within the meaning of Sections 7 and 11 of the Securities Act. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS (a) Reference is made to Section 145 of the Delaware General Corporation Law ("DGCL") as to indemnification by the Registrant of officers and directors. (b) Section 13 of Article III of the by-laws of the Registrant provides for indemnification of directors as follows: Section 13. The corporation shall indemnify to the full extent authorized or permitted by the General Corporation Law of the State of Delaware any person made, or threatened to be made, a party to any threatened, pending or completed action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he, his testator or intestate is or was a director of the corporation or serves as a director, officer, employee or agent of any other enterprise at the request of the corporation. Section 18 of Article V of the by-laws of the Registrant provides for indemnification of officers as follows: Section 18. The corporation shall indemnify to the full extent authorized or permitted by the General Corporation Law of the State of Delaware any person made, or threatened to be made, a party to any threatened, pending or completed action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he, his testator or intestate is or was an officer or Managing Director of the corporation or serves or served as a director, officer, employee or agent of any other enterprise at the request of the corporation. (c) The Registrant has also entered into an indemnification agreement with each of its directors based on the sections of the DGCL that recognize the validity of additional indemnity rights granted by agreement. The indemnification agreement alters or clarifies the statutory indemnity with respect to the Registrant's directors in the following respects: (i) indemnity is explicitly provided for settlements, fines and judgments in derivative actions to the maximum extent permitted by Delaware law, (ii) prompt payment of expenses is provided in advance of indemnification, provided the director undertakes to repay such amount if it is finally determined the director is not entitled to be indemnified and (iii) indemnification for all matters involving a director as a party by reason of the person being a director unless the person violates the law or the person's conduct is finally adjudged to have been knowingly fraudulent, deliberately dishonest or willful misconduct. Therefore, a director who has entered into the indemnification agreement will be entitled to indemnification automatically according to its terms without prior independent review of such director's conduct and approval of the indemnification payment by either disinterested directors, independent counsel or the stockholders. Certain of the provisions of the indemnification agreement have not been tested in court and remain subject to public policy considerations with respect to their enforceability. The Registrant has been advised that indemnification of a judgment or amounts paid in settlement in a derivative suit may be contrary to public policy in the State of Delaware. Because substantial uncertainty exists as to the validity of such payments, the Registrant will not make an indemnification payment for fines, judgments or amounts paid in settlement in a derivative suit without first obtaining an opinion of independent counsel that such payment is permitted under Delaware law. (d) The Registrant has purchased insurance designed to protect the Registrant and its directors and officers against losses arising from certain claims, including claims under the Securities Act. ITEM 8. EXHIBITS Exhibit Number Description of Exhibits ------- ------------------------- 4.1 Certain provisions of Registrant's Restated Certificate of Incorporation, as amended, relating to the Common Stock and defining the rights of security holders. (Filed as Exhibit 3.1 to Registrant's Registration Statement on Form S-4 and incorporated herein by reference). 5.1 Opinion of Kenneth R. Masterson, Executive Vice President, General Counsel and Secretary of Registrant regarding legality. 15.1 Letter of Arthur Andersen LLP, independent public accountants. 23.1 Consent of Kenneth R. Masterson (included in Exhibit 5.1). 23.2 Consent of Arthur Andersen LLP, independent public accountants. 24.1 Powers of Attorney (included as part of signature pages). ITEM 9. UNDERTAKINGS The undersigned Registrant hereby undertakes: (a) (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. (Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum, aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement.); (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at the time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) That, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions referred to in Item 6 of this Registration Statement, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that is has reasonable grounds to believe that it meets all of the requirements for filing on Forms S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Memphis, State of Tennessee, on January 27, 1998. FDX CORPORATION (Registrant) By: /s/ James S. Hudson --------------------------- James S. Hudson Vice President and Controller (Principal Accounting Officer) POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below, constitutes and appoints James S. Hudson and Kenneth R. Masterson, and each of them, our true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, to do any and all acts and things and execute, in the name of the undersigned, any and all instruments which said attorneys-in-fact and agents may deem necessary or advisable in order to enable FDX Corporation to comply with the Securities Act of 1933 and any requirements of the Securities and Exchange Commission in respect thereof, in connection with the filing with the Securities and Exchange Commission of the registration statement on Form S-8 under the Securities Act of 1933, including specifically but without limitation, power and authority to sign the name of the undersigned to such registration statement, and any amendments to such registration statement (including post-effective amendments), and to file the same with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with applicable state securities laws, and to file the same, together with other documents in connection therewith with the appropriate state securities authorities, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and to perform each and every act and thing requisite or necessary to be done in and about the premises, as fully and to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, and any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated: Signature Capacity Date --------- -------- ---- /s/ Frederick W. Smith Chairman of the Board, President, 1/27/98 ---------------------- Chief Executive Officer --------- Frederick W. Smith (Principal Executive Officer) and Director /s/ Alan B. Graf, Jr. Executive Vice President and 1/27/98 ---------------------- Chief FinancialOfficer --------- Alan B. Graf, Jr. (Principal Financial Officer) /s/ James S. Hudson Vice President and Controller 1/27/98 ---------------------- (Principal Accounting Officer) --------- James S. Hudson /s/ Robert H. Allen Director 1/27/98 ---------------------- --------- Robert H. Allen /s/ Robert L. Cox Director 1/27/98 ---------------------- --------- Robert L. Cox Director ---------------------- Ralph D. DeNunzio /s/ Judith L. Estrin Director 1/27/98 ---------------------- --------- Judith L. Estrin /s/ Philip Greer Director 1/27/98 ---------------------- --------- Philip Greer /s/ J. R. Hyde, III Director 1/27/98 ---------------------- --------- J. R. Hyde, III Director ---------------------- Charles T. Manatt /s/ George J. Mitchell Director 1/21/98 ---------------------- --------- George J. Mitchell Director ---------------------- Jackson W. Smart, Jr. /s/ Joshua I. Smith Director 1/27/98 ---------------------- --------- Joshua I. Smith Director ---------------------- Paul S. Walsh /s/ Peter S. Willmott Director 1/27/98 ---------------------- --------- Peter S. Willmott EX-5.1 2 Exhibit 5.1 January 27, 1998 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 Re: FDX Corporation Dear Sirs: I am an executive vice president, secretary and the general counsel of FDX Corporation, a Delaware corporation ("FDX"). This opinion is issued in connection with the registration on Registration Statement Form S-8 of the shares (the "Shares") of common stock, par value $0.10 per share, of FDX Corporation, which will be issued under the FDX adjustment program to the holders of awards ("Awards") under certain benefit plans of Caliber System, Inc. ("Caliber") pursuant to the Agreement and Plan of Merger dated as of October 5, 1997, (the "Merger Agreement") among Federal Express Corporation, FDX, Caliber, Tires Merger Sub Inc. and Fast Merger Sub Inc. I have examined originals or copies, certified or otherwise identified to my satisfaction, of such documents, corporate records, certificates and other instruments, and have conducted such other investigations of fact and law, as I have deemed necessary or advisable for the purpose of rendering this opinion. Based upon the foregoing, I am of the opinion that the Shares to be issued under each Award have been duly authorized and, when issued in accordance with the terms and conditions of the Merger Agreement and the relevant documents relating to each such Award, will be validly issued, fully paid and non-assessable. I hereby consent to the use of this opinion as Exhibit 5.1 to the Registration Statement referred to above. I am a member of the Bar of the State of Tennessee and the foregoing opinion is limited to the laws of the State of Tennessee, the federal laws of the United States of America and the General Corporation Law of the State of Delaware. This opinion is rendered solely to you in connection with the Registration Statement referred to above. This opinion may not be relied upon by you for any other purpose or relied upon by or furnished to any other person without our prior written consent. Very truly yours, Kenneth R. Masterson Executive Vice President, General Counsel and Secretary EX-15.1 3 Exhibit 15.1 [ARTHUR ANDERSEN LETTERHEAD] January 22, 1998 Federal Express Corporation: We are aware that Federal Express Corporation has incorporated by reference in this Form S-8 Registration Statement its form 10-Qs for the quarters ended August 31, 1997 and November 30, 1997, which include our reports dated October 6, 1997 and January 12, 1998, respectively, covering the unaudited interim financial information contained therein. Pursuant to Regulation C of the Securities Act of 1933, those reports are not considered a part of the registration statement prepared or certified by our firm or reports prepared or certified by our firm within the meaning of Sections 7 and 11 of the Act. Very truly Yours, Arthur Andersen LLP EX-23.2 4 Exhibit 23.2 Consent of Independent Public Accountants As independent public accounts, we hereby consent to the incorporation by reference in this S-8 Registration Statement of FDX Corporation of our reports dated June 30, 1997 included (or incorporated by reference) in Federal Express Corporation's Form 10-K for the year ended May 31, 1997, and to all references to our Firm included in this registration statement. Arthur Andersen LLP Memphis, Tennessee January 22, 1998. -----END PRIVACY-ENHANCED MESSAGE-----