Exhibit 3.1
THIRD RESTATED CERTIFICATE OF INCORPORATION OF
FEDERAL EXPRESS CORPORATION
(Incorporated June 24, 1971)
FEDERAL EXPRESS CORPORATION, a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows:
FIRST: that at a meeting of the Board of Directors of the Corporation,
resolutions were duly adopted setting forth the Third Restated Certificate of
Incorporation of the Corporation which declared (i) that such Restatement only
restated and integrated and did not further amend the provisions of the
Corporation's Certificate of Incorporation, as theretofore amended and
supplemented, (ii) that there was no discrepancy between the provisions of the
Certificate of Incorporation, as theretofore amended and supplemented, and the
Restatement, and (iii) that approval of the Restatement by the stockholders of
the Corporation was not required. The resolutions setting forth the adopted
Restatement are as follows:
RESOLVED, that in accordance with Section 245 of the General
Corporation Law of the State of Delaware, there is hereby adopted
a Third Restatement of the Corporation's Certificate of
Incorporation which (i) restates and integrates and does not
further amend the provisions of the Corporation's Certificate of
Incorporation, as heretofore amended and supplemented,
(ii) contains no discrepancies as compared to the provisions of
the Certificate of Incorporation, as heretofore amended and
supplemented, and (iii) need not, and will not, be submitted to
the stockholders of the Corporation for their approval.
FURTHER RESOLVED, that the Certificate of Incorporation is
accordingly restated in its entirety to read as follows:
ARTICLE FIRST: The name of the corporation is FEDERAL EXPRESS
CORPORATION.
ARTICLE SECOND: The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle 19801. The name of its registered agent at
such address is The Corporation Trust Company.
ARTICLE THIRD: The nature of the business or purposes to be conducted
or promoted is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware.
ARTICLE FOURTH: The total number of shares of all classes of stock
which the Corporation shall have authority to issue is 2,000 shares consisting
of 1,000 shares of Series Preferred Stock, no par value (herein called the
"Series Preferred Stock"), and 1,000 shares of Common Stock, par value $0.10 per
share (herein called the "Common Stock").
The following is a statement of the powers, preferences and rights, and
the qualifications, limitations or restrictions thereof, in respect of each
class of stock of the Corporation:
I. SERIES PREFERRED STOCK
1. CONDITIONS OF ISSUANCE. Series Preferred Stock may be issued from
time to time and in such amounts and for such consideration as may be
determined by the Board of Directors of the Corporation. The designation and
relative rights and preferences of each series, except to the extent such
designations and relative rights and preferences may be required by Delaware
law or this Certificate of Incorporation, shall be such as are fixed by the
Board of Directors and stated in a resolution or resolutions adopted by the
Board of Directors authorizing such series (herein called the "Series
Resolution"). A Series Resolution authorizing any series shall fix:
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A. The designation of the series, which may be by
distinguishing number, letter or title;
B. The number of shares of such series;
C. The dividend rate or rates of such shares, the date
at which dividends, if declared, shall be payable, and
whether or not such dividends are to be cumulative, in
which case such Series Resolution shall state the date or
dates from which dividends shall be cumulative;
D. The amounts payable on shares of such series in the
event of voluntary or involuntary liquidation, dissolution
or winding up;
E. The redemption rights and price or prices, if any,
for the shares of such series;
F. The terms and amount of any sinking fund or
analogous fund providing for the purchase or redemption of
the shares of such series, if any;
G. The voting rights, if any, granted to the holders of
the shares of such series in addition to those required by
Delaware law or this Certificate of Incorporation;
H. Whether the shares of such series shall be
convertible into shares of the Corporation's Common Stock
or any other class of the Corporation's capital stock, and
if convertible, the conversion price or prices, any
adjustment thereof and any other terms and conditions upon
which such conversion shall be made;
I. Any other rights, preferences, restrictions or
conditions relative to the shares of such series as may be
permitted by Delaware law or this Certificate of
Incorporation.
2. RESTRICTIONS. In no event, so long as any Series Preferred
Stock shall remain outstanding, shall any dividend whatsoever be declared or
paid upon, nor shall any distribution be made upon, Common Stock, other than a
dividend or distribution payable in shares of such Common Stock, nor (without
the written consent of such number of the holders of the outstanding Series
Preferred Stock as shall have been specified in the Series Resolution
authorizing the issuance of such outstanding Series Preferred Stock) shall any
shares of Common Stock be purchased or redeemed by the Corporation, nor shall
any moneys be paid to or made available for a sinking fund for the purchase or
redemption of any Common Stock, unless in each instance full dividends on all
outstanding shares of the Series Preferred Stock for all past dividend periods
shall have been paid and the full dividend on all outstanding shares of the
Series Preferred Stock for the current dividend period shall have been paid or
declared and sufficient funds for the payment thereof set apart and any arrears
in the mandatory redemption of the Series Preferred Stock shall have been made
good.
3. PRIORITY. Series Preferred Stock, with respect to both
dividends and distribution of assets on liquidation, dissolution or winding
up, shall rank prior to the Common Stock.
4. VOTING RIGHTS. Holders of Series Preferred Stock shall have
no right to vote for the election of Directors of the Corporation or on any
other matter unless a vote of such class is required by Delaware law, this
Certificate of Incorporation or a Series Resolution.
5. FILING OF AMENDMENTS. The Board of Directors shall adopt
amendments to this Certificate of Incorporation fixing, with respect to each
series of Series Preferred Stock, the matters described in paragraph 1 of this
Subdivision I.
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II. COMMON STOCK
All shares of Common Stock shall be identical and shall entitle the
holders thereof to the same rights and privileges.
1. DIVIDENDS. When and as dividends are declared upon the Common
Stock, whether payable in cash, in property or in shares of stock of the
Corporation, the holders of Common Stock shall be entitled to share equally,
share for share, in such dividends.
2. VOTING RIGHTS. The holders of Common Stock shall have the sole
right to vote for the election of Directors of the Corporation or on any other
matter unless required by Delaware law, this Certificate of Incorporation or a
Series Resolution. The holders of Common Stock shall be entitled to one vote
for each share held.
III. OTHER PROVISIONS
1. No holder of any of the shares of any class or series of stock or
of options, warrants or other rights to purchase shares of any class or series
of stock or of other securities of the Corporation shall have any preemptive
right to purchase or subscribe for any unissued stock of any class or series or
any additional shares of any class or series to be issued by reason of any
increase of the authorized capital stock of the Corporation of any class or
series, or bonds, certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any class or
series, or carrying any right to purchase stock of any class or series, but any
such unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock, or
carrying any right to purchase stock, may be issued and disposed of pursuant to
resolution of the Board of Directors to such persons, firms, corporations or
associations, whether such holders or others, and upon such terms as may be
deemed advisable by the Board of Directors in the exercise of its sole
discretion.
2. Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
ARTICLE FIFTH: Certain Business Combinations
1. HIGHER VOTE FOR CERTAIN BUSINESS COMBINATIONS. In addition to any
affirmative vote of holders of a class or series of capital stock of the
Corporation required by law or this Certificate of Incorporation, and except as
otherwise expressly provided in paragraph 2 of this ARTICLE FIFTH, a Business
Combination (as hereinafter defined) with or upon a proposal by a Related
Person (as hereinafter defined) shall require the affirmative vote of the
holders of at least 80% of the voting power of the then outstanding shares
of capital stock of the Corporation entitled to vote generally in the election
of Directors (the "Voting Stock"). Such affirmative vote shall be required
notwithstanding the fact that no vote may be required or that a lesser
percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
2. WHEN HIGHER VOTE IS NOT REQUIRED. The provisions of paragraph 1
of this ARTICLE FIFTH shall not be applicable to a particular Business
Combination and such Business Combination shall require only such affirmative
vote as is required by law and other provisions of this Certificate of
Incorporation, if all of the conditions specified in either of the following
paragraphs (A) or (B) are met:
(A) APPROVAL BY DIRECTORS. The Business Combination has been
approved by a majority of the Continuing Directors (as hereinafter
defined).
(B) PRICE AND PROCEDURE CONDITIONS. All of the following
conditions shall have been met:
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(1) The aggregate amount of the cash and the Fair Market
Value (as hereinafter defined) as of the date of the
consummation of the Business Combination of consideration
other than cash to be received per share by holders of
Common Stock in such Business Combination shall be at least
equal to the higher of the following:
(i) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes
and soliciting dealer's fees) paid by the Related
Person for any shares of Common Stock acquired by it
(a) within the two-year period immediately prior to
the first public announcement of the proposal of the
Business Combination (the "Announcement Date") or
(b) in the transaction in which it became a Related
Person, whichever is higher; or
(ii) the Fair Market Value per share of Common
Stock on the Announcement Date or on the date on
which the Related Person became a Related Person
(such latter date is referred to in this ARTICLE
FIFTH as the "Determination Date"), whichever is
higher.
(2) The aggregate amount of the cash and the Fair Market
Value as of the date of the consummation of the Business
Combination of consideration other than cash to be received
per share by holders of shares of any other class or series
of outstanding Voting Stock shall be at least equal to the
highest of the following (it being intended that the
requirements of this paragraph 2(B)(2) shall be required to
be met with respect to every class of outstanding Voting
Stock, whether or not the Related Person has previously
acquired any shares of a particular class of Voting Stock):
(i) (if applicable) the highest per share price
(including any broker commissions, transfer taxes
and soliciting dealers' fees) paid by the Related
Person for any shares of such class or series of
Voting Stock acquired by it (a) within the two-year
period immediately prior to the Announcement Date or
(b) in the transaction in which it became a Related
Person, whichever is higher;
(ii) (if applicable) the highest preferential
amount per share to which the holders of shares of
such class or series of Voting Stock are entitled in
the event of any voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation; and
(iii) the Fair Market Value per share of such class
or series of Voting Stock on the Announcement Date
or on the Determination Date, whichever is higher.
(3) The consideration to be received by holders
of a particular class or series of outstanding
Voting Stock (including Common Stock) shall be in
cash or in the same form as the Related Person has
previously paid for shares of such class of Voting
Stock. If the Related Person has paid for shares of
any class or series of Voting Stock with varying
forms of consideration, the form of consideration
given for such class or series of Voting Stock in
the Business Combination shall be either cash or the
form used to acquire the largest number of shares of
such class or series of Voting Stock previously
acquired by it.
(4) No Extraordinary Event (as hereinafter
defined) shall have occurred after the Related
Person became a Related Person and prior to the
consummation of the Business Combination.
(5) A proxy or information statement describing
the proposed Business Combination and complying with
the requirements of the Securities Exchange Act of
1934, as amended, and the rules and regulations
thereunder (or any subsequent provisions replacing
such Act, rules or
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regulations) is mailed to public
stockholders of the Corporation at least 30 days
prior to the consummation of such Business
Combination (whether or not such proxy or
information statement is required pursuant to such
Act or subsequent provisions).
3. CERTAIN DEFINITIONS. For purposes of this ARTICLE FIFTH:
(A) A "person" shall mean any individual, firm,
corporation or other entity.
(B) The term "Business Combination" shall mean any of
the following transactions, when entered into by the
Corporation or a subsidiary of the Corporation with, or
upon a proposal by, a Related Person or any other
corporation (whether or not itself a Related Person which
is, or after such transaction would be, an Affiliate (as
hereinafter defined) of a Related Person:
(1) the merger or consolidation of the Corporation
or any subsidiary of the Corporation; or
(2) the sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one or a series of
transactions) of any assets of the Corporation or
any subsidiary of the Corporation having an
aggregate Fair Market Value of $5,000,000 or more;
(3) the issuance or transfer by the Corporation
or any subsidiary of the Corporation (in one or a
series of transactions) of securities of the
Corporation or that subsidiary having an aggregate
Fair Market Value of $5,000,000 or more; or
(4) the adoption of a plan or proposal for the
liquidation or dissolution of the Corporation; or
(5) the reclassification of securities (including
a reverse stock split), recapitalization,
consolidation or any other transaction (whether or
not involving a Related Person) which has the direct
or indirect effect of increasing the voting power,
whether or not then exercisable, of a Related Person
in any class or series of capital stock of the
Corporation or any subsidiary of the Corporation; or
(6) any agreement, contract or other arrangement
providing directly or indirectly for the foregoing.
(C) The term "Related Person" shall mean any person
(other than the Corporation, a subsidiary of the
Corporation or any profit sharing, employee stock ownership
or other employee benefit plan of the Corporation or a
subsidiary of the Corporation or any trustee of or
fiduciary with respect to any such plan acting in such
capacity) which:
(1) is the beneficial owner, directly or indirectly,
of more than 10% of the voting power of the outstanding
Voting Stock; or
(2) is an Affiliate of the Corporation and at any
time within the two-year period immediately prior to
the date in question was the beneficial owner,
directly or indirectly, of 10% or more of the voting
power of the then outstanding Voting Stock; or
(3) is an assignee of or has otherwise succeeded
to any shares of Voting Stock which were at any time
within the two-year period immediately prior to the
date in question beneficially owned by any Related
Person, if such assignment or succession shall have
occurred in the course of a transaction or series of
transactions not involving a public offering within
the meaning of the Securities Act of 1933.
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(D) A person shall be a "beneficial owner" of any Voting
Stock:
(1) which such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially
owns, directly or indirectly; or
(2) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether
such right is exercisable immediately or only after
the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or
options, or otherwise, or (ii) the right to vote
pursuant to any agreement, arrangement or
understanding; or
(3) which are beneficially owned, directly or
indirectly by any other person with which such
person or any of its Affiliates or Associates has
any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing
of any shares of Voting Stock.
For the purposes of determining whether a person is a
Related Person pursuant to subparagraph (C) of this
paragraph 3, the number of shares of Voting Stock deemed to
be outstanding shall include shares deemed owned through
application of subparagraph (D) of this paragraph 3 but
shall not include any other shares of Voting Stock which
may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
(E) The term "Continuing Director" shall mean any member
of the Board of Directors who is not affiliated with a
Related Person and who was a member of the Board of
Directors immediately prior to the time that the Related
Person became a Related Person, and any successor to a
Continuing Director who is not affiliated with the Related
Person and is recommended to succeed a Continuing Director
by a majority of Continuing Directors who are then members
of the Board of Directors.
(F) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2
under the Securities Exchange Act of 1934, as in effect on
August 1, 1984.
(G) The term "Extraordinary Event" shall mean, as to any
Business Combination and Related Person, any of the
following events that is not approved by a majority of the
Continuing Directors:
(1) any failure to declare and pay at the regular
date therefor any full quarterly dividend (whether
or not cumulative) on outstanding Preferred or
Preference Stock; or
(2) any reduction in the annual rate of dividends
paid on the Common Stock (except as necessary to
reflect any subdivision of the Common Stock); or
(3) any failure to increase the annual rate of
dividends paid on the Common Stock as necessary to
reflect any reclassification, (including any reverse
stock split), recapitalization, reorganization or
any similar transaction that has the effect of
reducing the number of outstanding shares of the
Common Stock; or
(4) any Related Person shall become the
beneficial owner of any additional shares of Voting
Stock except as part of the transaction which
resulted in such Related Person becoming a Related
Person; or
(5) the receipt by the Related Person, after such
Person has become a Related Person, of a direct or
indirect benefit (except proportionately as a
shareholder) from any loans, advances, guarantees,
pledges or other financial assistance or any tax
credits or other tax advantages
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provided by the Corporation or any subsidiary of the
Corporation, whether in anticipation of or in connection
with the Business Combination or otherwise.
(H) "Fair Market Value" means: (i) in the case of
stock, the highest closing sale price during the 30-day
period immediately preceding the date in question of a
share of such stock on the Composite Tape for New York
Stock Exchange-Listed Stocks, or, if such stock is not
quoted on the Composite Tape, on the New York Stock
Exchange, or, if such stock is not listed on such Exchange,
on the principal United States securities exchange
registered under the Securities Exchange Act of 1934 on
which such stock is listed, or, if such stock is not listed
on any such exchange, the highest closing bid quotation
with respect to a share of such stock during the 30-day
period preceding the date in question on the National
Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use, or if no such
quotations are available, the fair market value on the date
in question of a share of such stock as determined by the
Board of Directors in good faith; and (ii) in the case of
property other than cash or stock, the fair market value of
such property on the date in question as determined by the
Board of Directors in good faith.
(I) In the event of any Business Combination in which
the Corporation survives, the phrase "consideration other
than cash to be received" as used in subparagraphs B(1) and
(2) of paragraph 2 of this ARTICLE FIFTH shall include the
shares of Common Stock and/or the shares of any other class
of outstanding Voting Stock retained by the holders of such
shares.
4. POWERS OF THE BOARD OF DIRECTORS. A majority of all Continuing
Directors shall have the power to make all determinations with respect to this
ARTICLE FIFTH, on the basis of information known to them after reasonable
inquiry, including, without limitation, the transactions that are Business
Combinations, the persons who are Related Persons, the number of shares of
Voting Stock owned by any person, the time at which a Related Person becomes a
Related Person and the Fair Market Value of any assets, securities or other
property, and any such determinations of such Directors shall be conclusive and
binding.
5. NO EFFECT ON FIDUCIARY OBLIGATIONS OF RELATED PERSONS. Nothing
contained in this ARTICLE FIFTH shall be construed to relieve any Related Person
from any fiduciary obligation imposed by law.
6. AMENDMENT OR REPEAL. The affirmative vote of the holders of not
less than 80% of the total voting power of the Voting Stock of the Corporation,
voting together as a single class, shall be required in order to amend, repeal
or adopt any provision inconsistent with this ARTICLE FIFTH.
ARTICLE SIXTH: In addition to any affirmative vote of holders of a
class or series of capital stock of the Corporation required by law or this
Certificate of Incorporation, unless the Business Combination (as defined in
ARTICLE FIFTH of this Certificate of Incorporation) has been approved by a
majority of the Continuing Directors (as defined in ARTICLE FIFTH of this
Certificate of Incorporation), a Business Combination with or upon a proposal by
a Related Person (as defined in ARTICLE FIFTH of this Certificate of
Incorporation) shall require the affirmative vote of the holders of not less
than a majority of the Voting Stock (as defined in ARTICLE FIFTH of this
Certificate of Incorporation) beneficially owned by stockholders other than such
Related Person. Such affirmative vote shall be required notwithstanding the
fact that no vote may be required or that a lesser percentage may be specified
by law or in any agreement with any national securities exchange or otherwise.
The affirmative vote of the holders, other than the Related Person
proposing the amendment, repeal or adoption of any provision inconsistent with
this ARTICLE SIXTH, of not less than a majority of the Voting Stock of the
Corporation, voting together as a single class, shall be required in order to
amend, repeal or adopt any provision inconsistent with this ARTICLE SIXTH.
ARTICLE SEVENTH: The corporation is to have perpetual existence.
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ARTICLE EIGHTH: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized:
The Board of Directors shall have power to make, alter, amend and repeal
the By-laws (except so far as the By-laws adopted by the stockholders shall
otherwise provide). Any By-laws made by the Directors under the powers
conferred hereby may be altered, amended or repealed by the Directors or by the
stockholders. Notwithstanding the foregoing and anything contained in this
Certificate of Incorporation to the contrary, Sections 5 and 11 of Article II of
the By-laws shall not be altered, amended or repealed and no provision
inconsistent therewith shall be adopted without the affirmative vote of the
holders of at least 80% of the voting power of all the shares of the Corporation
entitled to vote generally in the election of Directors, voting together as a
single class. Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
80% of the voting power of all shares of the Corporation entitled to vote
generally in the election of Directors, voting together as a single class, shall
be required to alter, amend, adopt any provision inconsistent with or repeal
this ARTICLE EIGHTH.
To authorize and cause to be executed mortgages and liens upon the real
and personal property of the Corporation.
To set apart out of any of the funds of the Corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
By a majority of the whole Board, to designate one or more committees,
each committee to consist of one or more of the Directors of the Corporation.
The Board may designate one or more Directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. The By-laws may provide that in the absence or disqualification
of a member of a committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
or in the By-laws of the Corporation, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending the
By-laws of the Corporation; and, unless the resolution or By-laws expressly so
provide, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock.
When and as authorized by the stockholders in accordance with statute, to
sell, lease or exchange all or substantially all of the property and assets of
the Corporation, including its good will and its corporate franchises, upon such
terms and conditions and for such consideration, which may consist in whole or
in part of money or property including shares of stock in, and/or other
securities of, any other corporation or corporations, as its Board of Directors
shall deem expedient and for the best interests of the Corporation.
ARTICLE NINTH: Whenever a compromise or arrangement is proposed
between this Corporation and its creditors or any class of them and/or between
this Corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the application in a
summary way of this Corporation or of any creditor or stockholder thereof, or on
the application of any receiver or receivers appointed for this Corporation
under the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as
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the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors and/or on all the
stockholders or class of stockholders of this Corporation, as the case may be,
and also on this Corporation.
ARTICLE TENTH: Meetings of stockholders may be held within or
without the State of Delaware, as the By-laws may provide. The books of the
Corporation may be kept (subject to any provision contained in the statutes)
outside the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the By-laws of the Corporation.
Elections of Directors need not be by written ballot unless the By-laws of the
Corporation shall so provide.
ARTICLE ELEVENTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
ARTICLE TWELFTH: Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual or
special meeting of such holders and may not be effected by any consent in
writing by such holders. Except as otherwise required by law and subject to the
rights of the holders of any class or series of stock having a preference over
the Common Stock as to dividends or upon liquidation, special meetings of
stockholders of the Corporation may be called only by the Board of Directors
pursuant to a resolution approved by a majority of the entire Board of
Directors. Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
80% of the voting power of all shares of the Corporation entitled to vote
generally in the election of Directors, voting together as a single class, shall
be required to alter, amend, adopt any provision inconsistent with or repeal
this ARTICLE TWELFTH.
ARTICLE THIRTEENTH: No Director shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director, provided that this ARTICLE THIRTEENTH shall not eliminate or
limit the liability of a Director (i) for any breach of the Director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of Title 8 of the Delaware Code or any amendment or
successor provision thereto, or (iv) for any transaction from which the Director
derived an improper personal benefit. This ARTICLE THIRTEENTH shall not
eliminate or limit the liability of a Director for any act or omission occurring
prior to the date when this ARTICLE THIRTEENTH becomes effective. Neither the
amendment nor repeal of this ARTICLE THIRTEENTH, nor the adoption of any
provision of the Restated Certificate of Incorporation inconsistent with this
ARTICLE THIRTEENTH shall eliminate or reduce the effect of this ARTICLE
THIRTEENTH with respect to any matter occurring, or any cause of action, suit or
claim that, but for this ARTICLE THIRTEENTH, would accrue or arise prior to such
amendment, repeal or adoption of an inconsistent provision.
ARTICLE FOURTEENTH: Any act or transaction by or involving the
Corporation that requires for its adoption under Chapter 251 of the General
Corporation Law of the State of Delaware or this Certificate of Incorporation
the approval of the stockholders of the Corporation shall, pursuant to Section
251(g) of the General Corporation Law of the State of Delaware, require, in
addition, the approval of the stockholders of FDX Corporation (or any successor
by merger), by the same vote as is required by Chapter 251 of the General
Corporation Law of the State of Delaware and/or by this Certificate of
Incorporation.
SECOND: that the Third Restated Certificate of Incorporation
effected by this Certificate was duly authorized at a meeting of the Board of
Directors of the Corporation in accordance with the provisions of Section 245 of
the General Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, FEDERAL EXPRESS CORPORATION has caused its corporate
seal to be hereunto affixed and this certificate to be signed by George W.
Hearn, Secretary.
FEDERAL EXPRESS CORPORATION
BY:/s/GEORGE W. HEARN
------------------------
(Corporate Seal) George W. Hearn
Secretary
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