-----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, BI/wbxqPsnMkV5CUiTkRWqup3NWn0hsbfXu2ub7cA0+l5Adz3jWOqP+hfFpi6nPi vRugbUcGfOe5prhC+5CWAA== 0000950103-99-000037.txt : 19990125 0000950103-99-000037.hdr.sgml : 19990125 ACCESSION NUMBER: 0000950103-99-000037 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19990122 EFFECTIVENESS DATE: 19990122 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FDX CORP CENTRAL INDEX KEY: 0001048911 STANDARD INDUSTRIAL CLASSIFICATION: AIR COURIER SERVICES [4513] IRS NUMBER: 621721435 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-71065 FILM NUMBER: 99511632 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 filed with the Securities and Exchange Commission on January 22, 1999 Registration No. 333- ================================================================================ 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) ------------------------------ CALCULATION OF REGISTRATION FEE ============================================================================================================= 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. ================================================================================
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.
Signature Capacity Date - --------- -------- ---- /s/ FREDERICK W. SMITH Chairman of the Board, President January 22, 1999 - --------------------------- Frederick W. Smith and Chief Executive Officer and Director (Principal Executive Officer) /s/ ALAN B. GRAF, JR. Executive Vice President and January 22, 1999 - --------------------------- Alan B. Graf, Jr. Chief Financial Officer (Principal Financial Officer) /s/ JAMES S. HUDSON Corporate Vice President - January 22, 1999 - --------------------------- James S. Hudson Strategic Financial Planning and Control (Principal Accounting Officer) /s/ ROBERT H. ALLEN Director January 22, 1999 - --------------------------- Robert H. Allen /s/ ROBERT L. COX Director January 22, 1999 - --------------------------- Robert L. Cox /s/ RALPH D. DENUNZIO Director January 22, 1999 - --------------------------- Ralph D. DeNunzio /s/ JUDITH L. ESTRIN Director January 22, 1999 - --------------------------- Judith L. Estrin /s/ PHILIP GREER Director January 22, 1999 - --------------------------- Philip Greer /s/ J.R. HYDE, III Director January 22, 1999 - --------------------------- J.R. Hyde, III /s/ CHARLES T. MANATT Director January 22, 1999 - --------------------------- Charles T. Manatt /s/ GEORGE J. MITCHELL Director January 22, 1999 - --------------------------- George J. Mitchell /s/ JACKSON W. SMART, JR. Director January 22, 1999 - --------------------------- Jackson W. Smart, Jr. Director - --------------------------- Joshua I. Smith /s/ PAUL S. WALSH Director January 22, 1999 - --------------------------- Paul S. Walsh /s/ PETER S. WILLMOTT Director January 22, 1999 - --------------------------- Peter S. Willmott
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. EX-4.3 2 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. EX-4.4 3 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 EX-5.1 4 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 EX-15.1 5 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 EX-23.1 6 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 EX-23.2 7 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 -----END PRIVACY-ENHANCED MESSAGE-----