Exhibit 2.2
AMENDMENT
AMENDMENT NO. 1 dated as of January 21, 1998 (this "Amendment") to the
Agreement and Plan of Merger dated as of October 5, 1997 (the "Agreement") among
Federal Express Corporation ("Buyer"), Caliber System, Inc. (the "Company"), FDX
Corporation (formerly known as Fast Holding Inc.) ("Parent"), Fast Merger Sub
Inc. and Tires Merger Sub Inc.
W I T N E S S E T H
WHEREAS, pursuant to Section 10.03 of the Agreement, the Agreement may
be amended by the Company, Buyer and Parent; and
WHEREAS, the parties desire to amend the Agreement in the manner set
forth below;
NOW, THEREFORE, the parties hereto agree as follows:
1. Section 1.05 of the Agreement is hereby amended and restated to read
in its entirety as follows:
"SECTION 1.05. The Merger Date. As soon as practicable (but in
no event more than two business days) after the satisfaction or, to the
extent permitted hereunder or under applicable law, waiver of all
conditions to each of the Mergers, (a) the Company shall file the
certificate of merger required to effect the Tires Sub Merger (the
"Company Certificate of Merger") with the Ohio Secretary of State and
make all other filings or recordings required by the Ohio Law in
connection with the Tires Sub Merger, (b) Buyer shall file a copy of
this Agreement with the Delaware Secretary of State and make all other
filings or recordings required by the Delaware Law in connection with
the Buyer Sub Merger, and (c) the Mergers shall become effective as of
5 p.m., Eastern Standard Time on the date on which the filings
contemplated by clauses (a) and (b) hereof shall be made, it being
understood that the Buyer Sub Merger shall become effective immediately
prior to the Tires Sub Merger in accordance with the terms of such
Company Certificate of Merger and this Agreement (such time and date
are referred to as the "Merger Date"). Notwithstanding the first
sentence of this Section 1.05, the Merger Date shall occur no earlier
than ten days after the date on which the shareholders of the Company
shall have approved the Tires Sub Merger and, in any event, no earlier
than January 2, 1998."
2. Section 2.01(b) of the Agreement is hereby amended and restated to
read in its entirety as follows:
"(b) The certificate of incorporation of Buyer in effect
immediately prior to the Merger Date shall be amended in the Buyer Sub
Merger as of the Merger Date as set forth in Annex A hereto, and as so
amended, shall be the certificate of incorporation of the Buyer
Surviving Corporation. The bylaws of Buyer in effect immediately prior
to the Merger Date shall be the bylaws of the Buyer Surviving
Corporation. The Buyer Surviving Corporation shall succeed to all of
the rights, privileges, powers and franchises, of a public as well as
of a private nature, of Buyer and Buyer Merger Sub, all of the
properties and assets of and all of the debts of Buyer and Buyer Merger
Sub, choses in action and other interests due or belonging to Buyer and
Buyer for, all of the debts, liabilities and duties of Buyer and Buyer
Merger Sub with the effect set forth in the Delaware Law."
3. This Amendment shall be construed in accordance with and governed by
the laws of the State of Delaware (without regard to principles of conflicts of
law).
4. Unless otherwise specifically defined herein, each term used herein
which is defined in the Agreement shall have the meaning assigned to such term
in the Agreement as amended by this Amendment. Each reference to "this
Agreement" and each other similar reference contained in the Agreement shall
from and after the date hereof refer to the Agreement as amended by this
Amendment.
5. This Amendment may be executed in any number of counterparts, each
of which shall constitute a single instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
FEDERAL EXPRESS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President, General
Counsel and Secretary
FDX CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
FAST MERGER SUB INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
TIRES MERGER SUB INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
CALIBER SYSTEM, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman, President and Chief
Executive Officer
ANNEX A
AMENDMENT TO THE
CERTIFICATE OF INCORPORATION OF
FEDERAL EXPRESS CORPORATION
* * * * *
As of the Merger Date, the Certificate of Incorporation of Federal
Express Corporation shall be amended as follows:
1. The first paragraph of ARTICLE FOURTH is hereby amended and restated
to read in its entirety as follows:
"ARTICLE FOURTH: The total number of shares of all classes of
stock which the Corporation shall have the 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")."
2. A new ARTICLE FOURTEENTH is hereby added to read in its entirety:
"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."
Except as provided above, the Certificate of Incorporation of Federal
Express Corporation shall remain in full force and effect.
