As filed with the Securities and Exchange Commission on October 16, 2002
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FedEx Corporation
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of incorporation or organization) |
62-1721435
(I.R.S. Employer Identification No.) |
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942 South Shady Grove Road, Memphis, Tennessee (Address of Principal Executive Offices) |
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38120 (Zip Code) |
FedEx Corporation 2002 Stock Incentive Plan
(Full title of the plan)
Kenneth R. Masterson
Executive Vice President, General Counsel and Secretary
FedEx Corporation
942 South Shady Grove Road
Memphis, Tennessee 38120
(901) 818-7500
(Name, address and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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| Title of Securities to be Registered | Amount to be Registered | Proposed Maximum Offering Price Per Share(1) | Proposed Maximum Aggregate Offering Price(1) | Amount of Registration Fee(2) | ||||
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| Common Stock, par value $0.10 per share | 4,400,000 shares | $48.05 | $211,420,000 | $19,450.64 | ||||
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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 FedEx Corporation 2002 Stock Incentive Plan, as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the "Securities Act"). In accordance with the Note to Part I of Form S-8, such documents are not required to be, and are not, filed with the Securities and Exchange Commission (the "Commission") either as part of this registration statement or as a prospectus or prospectus supplement pursuant to Rule 424 under the Securities Act. 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.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by FedEx Corporation (the "Company") with 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, 2002, as amended by the Form 10-K/A (Amendment No. 1) filed on July 22, 2002;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended August 31, 2002;
(c) The Company's Current Reports on Form 8-K filed on June 25, 2002 and July 31, 2002; and
(d) The description of the Company's common stock contained in the Company's registration statement on Form 8-A dated April 14, 2000, including any amendment or report filed for the purpose of updating such description.
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 will be passed upon by Kenneth R. Masterson, the Company's Executive Vice President, General Counsel and Secretary. As of October 11, 2002, Mr. Masterson owned 85,035 shares of the Company's common stock and held options to purchase 515,250 shares of the Company's common stock. Of the options held by Mr. Masterson, 393,062 were exercisable as of October 11, 2002.
Item 6. Indemnification of Directors and Officers.
Section 102(b)(7) of the Delaware General Corporation Law (the "Delaware Law") 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.
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Article Thirteenth of the Company's Amended and Restated Certificate of Incorporation, as amended (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 Delaware Law (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 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 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 Delaware Law 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 Delaware Law 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
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4.1 |
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Amended and Restated Certificate of Incorporation, as amended, of the Company (filed as Exhibit 3.1 to the Company's Annual Report on Form 10-K for the fiscal year ended May 31, 2000, and incorporated herein by reference). |
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4.2 |
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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). |
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*4.3 |
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FedEx Corporation 2002 Stock Incentive Plan. |
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*4.4 |
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Form of FedEx Corporation 2002 Stock Incentive Plan Stock Option Agreement. |
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*5.1 |
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Opinion of Kenneth R. Masterson, Executive Vice President, General Counsel and Secretary of the Company, regarding the legality of the securities being registered. |
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*15.1 |
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Letter of Ernst & Young LLP regarding unaudited interim financial information. |
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*23.1 |
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Consent of Ernst & Young LLP. |
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*23.2 |
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Notice regarding consent of Arthur Andersen LLP. |
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*23.3 |
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Consent of Kenneth R. Masterson (included in the opinion filed as Exhibit 5.1). |
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*24.1 |
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Power of Attorney (set forth on the signature page to this registration statement). |
(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; 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 clauses (i) and (ii) do not apply if information required to be included in a post-effective amendment by those clauses is contained in periodic reports filed with or furnished to the Commission by the Company pursuant to Section 13 or Section 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; and
(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 undersigned 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 Section 15(d) of the Exchange Act that is incorporated by reference in the registration statement shall
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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.
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Pursuant to the requirements of the Securities Act of 1933, 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, on October 16, 2002.
| FEDEX CORPORATION | |||
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By: |
/s/ JAMES S. HUDSON James S. Hudson Corporate Vice President— Strategic Financial Planning and Control |
Power of Attorney: Each person whose signature appears below hereby constitutes and appoints Kenneth R. Masterson, 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) to this registration statement, and to file the same, with any and 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 in and about the premises, 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, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Capacity
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Date
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/s/ FREDERICK W. SMITH Frederick W. Smith |
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Chairman of the Board, President and Chief Executive Officer and Director (Principal Executive Officer) |
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October 16, 2002 |
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/s/ ALAN B. GRAF, JR. Alan B. Graf, Jr. |
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Executive Vice President and Chief Financial Officer (Principal Financial Officer) |
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October 16, 2002 |
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/s/ JAMES S. HUDSON James S. Hudson |
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Corporate Vice President—Strategic Financial Planning and Control (Principal Accounting Officer) |
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October 16, 2002 |
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/s/ JAMES L. BARKSDALE James L. Barksdale |
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Director |
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October 16, 2002 |
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/s/ RALPH D. DENUNZIO Ralph D. DeNunzio |
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Director |
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October 16, 2002 |
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Signature
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Capacity
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Date
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/s/ JUDITH L. ESTRIN Judith L. Estrin |
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Director |
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October 16, 2002 |
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/s/ F.S. GARRISON F.S. Garrison |
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Director |
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October 16, 2002 |
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/s/ PHILIP GREER Philip Greer |
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Director |
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October 16, 2002 |
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/s/ J.R. HYDE, III J.R. Hyde, III |
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Director |
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October 16, 2002 |
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/s/ SHIRLEY ANN JACKSON Shirley Ann Jackson |
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Director |
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October 16, 2002 |
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/s/ GEORGE J. MITCHELL George J. Mitchell |
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Director |
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October 16, 2002 |
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/s/ JOSHUA I. SMITH Joshua I. Smith |
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Director |
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October 16, 2002 |
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/s/ PAUL S. WALSH Paul S. Walsh |
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Director |
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October 16, 2002 |
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/s/ PETER S. WILLMOTT Peter S. Willmott |
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Director |
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October 16, 2002 |
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Exhibit
Number |
Description
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4.1 |
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Amended and Restated Certificate of Incorporation, as amended, of the Company (filed as Exhibit 3.1 to the Company's Annual Report on Form 10-K for the fiscal year ended May 31, 2000, and incorporated herein by reference). |
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4.2 |
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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). |
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*4.3 |
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FedEx Corporation 2002 Stock Incentive Plan. |
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*4.4 |
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Form of FedEx Corporation 2002 Stock Incentive Plan Stock Option Agreement. |
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*5.1 |
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Opinion of Kenneth R. Masterson, Executive Vice President, General Counsel and Secretary of the Company, regarding the legality of the securities being registered. |
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*15.1 |
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Letter of Ernst & Young LLP regarding unaudited interim financial information. |
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*23.1 |
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Consent of Ernst & Young LLP. |
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*23.2 |
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Notice regarding consent of Arthur Andersen LLP. |
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*23.3 |
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Consent of Kenneth R. Masterson (included in the opinion filed as Exhibit 5.1). |
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*24.1 |
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Power of Attorney (set forth on the signature page to this registration statement). |
FEDEX CORPORATION
2002 STOCK INCENTIVE PLAN
1. Purpose of Plan
The purpose of the FedEx Corporation 2002 Stock Incentive Plan (the "Plan") is to aid FedEx 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 4,400,000 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 the Compensation Committee of the Board of Directors (the "Committee"), which shall be comprised of at least two members each of whom is both 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. Members of the Committee shall be eligible for participation in any 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, (a) key employees, including officers, of the Corporation and its subsidiaries who are from time to time responsible for the management, growth and protection of the business of the Corporation and its subsidiaries and (b) non-employee directors 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. Non-employee directors shall receive options under the Plan as provided in paragraph 7.
5. Limit on Awards
Unless otherwise determined by the Committee, no option may be granted under the Plan after May 31, 2012, but options theretofore granted may extend beyond that date.
No optionee shall receive options for more than 800,000 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 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 13 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 10 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 directorship terminates by reason of such person's retirement at or after the age of 55, the optionee's option will continue to vest in accordance with its terms and may be exercised until the expiration of the stated period of the option; provided, however , that if the optionee dies 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 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
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twenty-four months after such termination of employment or directorship, any unexercised option 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 directorship terminates by reason of the optionee's death, the optionee's option may thereafter be exercised in full 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 or if a director's directorship terminates for any reason other than death, retirement at or after the age of 55 or permanent disability, the optionee's option shall thereupon terminate.
7. Grant of Options to Directors
The grant of options hereunder to directors who are not also employees of the Corporation or one of its subsidiaries shall be subject to the following terms and conditions:
(a) Immediately following each Annual Meeting of the Stockholders of the Corporation beginning with the 2003 Annual Meeting, each director of the Corporation who is then incumbent and is not also an employee of the Corporation or one of its subsidiaries shall be granted a non-incentive stock option to purchase such number of shares of the Common Stock of the Corporation as shall be determined by the Committee.
(b) If a person who is not also an employee of the Corporation or one of its subsidiaries is first elected or appointed a director after the 2002 Annual Meeting, other than at an Annual Meeting, such person shall thereupon be granted a non-incentive stock option to purchase such number of shares of the Common Stock of the Corporation as shall be determined by the Committee.
(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 granted to employees hereunder shall be applicable to stock options granted to non-employee directors.
(f) The 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 or one of its subsidiaries.
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.
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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. 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.
11. 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.
12. 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 or director the right to be retained in the service of the Corporation or its subsidiaries.
13. 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;
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(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.
14. Use of Proceeds
Proceeds from the sale of shares pursuant to options granted under this Plan shall constitute general funds of the Corporation.
15. 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 13 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; or
(c) Increase the maximum number of options which may be granted to an optionee under 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 subject to new accounting rules, 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.
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16. Repricing Restriction
Options granted under this Plan shall not be repriced by the Corporation (including, without limitation, by canceling an outstanding option and replacing such option with a new option with a lower exercise price) for any reason.
17. Effective Date of Plan
This Plan shall be effective upon its approval by the Corporation's Board of Directors and stockholders.
18. 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, executive officers and other persons subject to Section 16 of said Act 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, executive officers and other Section 16 persons of the Corporation.
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STOCK OPTION AGREEMENT
PURSUANT TO
FEDEX CORPORATION
2002 STOCK INCENTIVE PLAN
A STOCK OPTION for a total of shares of Common Stock, par value $.10 per share, of FedEx 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 2002 Stock Incentive Plan (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 the provisions of Section 6 of the Plan as follows:
(i) Schedule of Rights to Exercise. Twenty-five percent (25%) after one year from the date of grant; fifty percent (50%) after two years; seventy-five percent (75%) after three years; and one hundred percent (100%) after four 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 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 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.
(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 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 further acknowledges that the Company will not make any loans for the purpose of exercising this Option or paying any tax liability associated with the exercise of this Option. 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: .
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By: |
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CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER |
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OPTIONEE |
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[LETTERHEAD OF KENNETH R. MASTERSON]
October 16, 2002
FedEx
Corporation
942 South Shady Grove Road
Memphis, Tennessee 38120
Ladies and Gentlemen:
I am the Executive Vice President, General Counsel and Secretary of FedEx Corporation, a Delaware corporation ("FedEx"), 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 4,400,000 shares of FedEx's common stock, par value $0.10 per share (the "Shares"), that may be issued to holders of options granted under the FedEx Corporation 2002 Stock Incentive Plan (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 FedEx, and when issued in the manner contemplated by the Registration Statement and in accordance with the terms of the Plan and the relevant stock option agreements, 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" in the Registration Statement.
| Very truly yours, | |
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/s/ KENNETH R. MASTERSON |
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Kenneth R. Masterson Executive Vice President, General Counsel and Secretary |
The
Board of Directors and Stockholders
FedEx Corporation
We are aware of the incorporation by reference in the Registration Statement (Form S-8) pertaining to the FedEx Corporation 2002 Stock Incentive Plan of FedEx Corporation and in the related Prospectus, of our report dated September 27, 2002, relating to the unaudited condensed consolidated interim financial statements of FedEx Corporation that are included in its Form 10-Q for the quarter ended August 31, 2002.
| /s/ Ernst & Young LLP |
Memphis,
Tennessee
October 10, 2002
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the FedEx Corporation 2002 Stock Incentive Plan of FedEx Corporation of our reports dated June 24, 2002, with respect to the consolidated financial statements and schedule of FedEx Corporation included in its Annual Report (Form 10-K) for the year ended May 31, 2002, filed with the Securities and Exchange Commission.
| /s/ Ernst & Young LLP |
Memphis,
Tennessee
October 10, 2002
Notice Regarding Consent of Arthur Andersen LLP
Section 11(a) of the Securities Act of 1933, as amended (the "Securities Act"), provides that if part of a registration statement at the time it becomes effective contains an untrue statement of a material fact, or omits a material fact required to be stated therein or necessary to make the statements therein not misleading, any person acquiring a security pursuant to such registration statement (unless it is proved that at the time of such acquisition such person knew of such untruth or omission) may assert a claim against, among others, an accountant who has consented to be named as having certified any part of the registration statement or as having prepared any report for use in connection with the registration statement.
FedEx Corporation ("FedEx") dismissed Arthur Andersen LLP ("Andersen") as its independent auditors, effective April 12, 2002. For additional information, see FedEx's Current Report on Form 8-K dated March 11, 2002 (as amended by the Form 8-K/A filed on April 12, 2002). After reasonable efforts, FedEx has been unable to obtain Andersen's written consent to the incorporation by reference into this registration statement of Andersen's audit report with respect to FedEx's consolidated financial statements as of May 31, 2001 and for the two years in the period then ended.
Under these circumstances, Rule 437a under the Securities Act permits FedEx to file this registration statement, which incorporates by reference Andersen's audit report referred to above, without a written consent from Andersen. The absence of such consent may limit recovery by investors on certain claims. In particular, and without limitation, investors may not be able to assert claims against Andersen under Section 11(a) of the Securities Act for any untrue statement of a material fact contained in the financial statements audited by Andersen or for any omission of a material fact required to be stated therein. Accordingly, you would be unable to assert a claim against Andersen under Section 11(a) of the Securities Act because it has not consented to the incorporation by reference of its previously issued report in this registration statement.