AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 18, 2002.
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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UNITED PARCEL SERVICE, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 58-2480149
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.)
organization)
55 GLENLAKE PARKWAY, N.E.
ATLANTA, GEORGIA 30328
(404) 828-6000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
---------------------
JOSEPH R. MODEROW, ESQ.
UNITED PARCEL SERVICE, INC.
55 GLENLAKE PARKWAY, N.E.
ATLANTA, GEORGIA 30328
(404) 828-6000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------------
WITH COPIES TO:
BRUCE N. HAWTHORNE, ESQ. STEVEN R. FINLEY, ESQ.
JEFFREY M. STEIN, ESQ. GIBSON, DUNN & CRUTCHER LLP
KING & SPALDING 200 PARK AVENUE
191 PEACHTREE STREET NEW YORK, NEW YORK 10166
ATLANTA, GEORGIA 30301 212-351-4000
404-572-4600
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the registration statement number of the earlier effective registration
statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT(2) OFFERING PRICE(2) FEE
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Class B Common Stock,
$.01 par value per share........ 30,000,000 Shares $60.33 $1,809,900,000 $166,511
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(1) Including any securities issuable upon stock splits and similar transactions
pursuant to Rule 416 under the Securities Act.
(2) Estimated solely for the purpose of determining the registration fee and
calculated in accordance with Rule 457 under the Securities Act based on the
average of the high and low reported sales price per share of the
registrant's Class B common stock on April 15, 2002 as reported on the New
York Stock Exchange.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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Subject to completion, April 18, 2002
PROSPECTUS
United Parcel Service, Inc.
(UPS LOGO)
30,000,000 Shares
Class B Common Stock
By this prospectus, the selling shareowners identified in this prospectus
may from time to time offer an aggregate of up to 30,000,000 shares of our Class
B common stock to the public. We and the selling shareowners will provide the
specific terms of any offering of our Class B common stock in supplements to
this prospectus. You should read this prospectus and each applicable supplement
carefully before you invest.
Our Class B common stock is listed on the New York Stock Exchange under
the symbol "UPS".
We and the selling shareowners anticipate that any shares of our Class B
common stock offered by this prospectus and any prospectus supplement will be
offered exclusively or primarily to index funds whose portfolios are primarily
based on a particular stock index, such as the Standard & Poor's Corporation 500
Composite Index, assuming our Class B common stock is included in any such
index. We cannot assure you when, if ever, our Class B common stock will be
included in any such index. If our Class B common stock is included in any such
index, these index funds may be required to acquire and hold shares of our Class
B common stock.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
This prospectus may not be used to sell any shares of our Class B common
stock unless it is accompanied by a prospectus supplement.
The date of this prospectus is , 2002.
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TABLE OF CONTENTS
---------------------------------
Page
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ABOUT THIS PROSPECTUS....................................... 1
WHERE YOU CAN FIND MORE INFORMATION......................... 1
UNITED PARCEL SERVICE, INC. ................................ 3
USE OF PROCEEDS............................................. 3
DESCRIPTION OF COMMON STOCK................................. 4
SELLING SHAREOWNERS......................................... 6
PLAN OF DISTRIBUTION........................................ 7
VALIDITY OF OFFERED SECURITIES.............................. 9
EXPERTS..................................................... 9
---------------------------------
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR
ANY PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY UPS, ANY
SELLING SHAREOWNER OR ANY UNDERWRITER OR AGENT. THIS PROSPECTUS AND ANY
PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF
ANY OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY AND THEREBY IN ANY
JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH
JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT NOR ANY SALE MADE HEREUNDER AND THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION HEREIN OR THEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO THEIR RESPECTIVE DATES.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the SEC using a "shelf" registration process. Under this shelf registration
process, the selling shareowners identified in this prospectus may sell an
aggregate of up to 30,000,000 shares of our Class B common stock.
This prospectus provides you with a general description of the Class B
common stock that the selling shareowners may sell. Each time either selling
shareowner sells shares of our Class B common stock, we and the selling
shareowners will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement also may
add, update or change information contained in this prospectus. You should read
both this prospectus and the prospectus supplement together with additional
information described under the caption "Where You Can Find More Information."
The selling shareowners may only use this prospectus to sell Class B common
stock if it is accompanied by a prospectus supplement.
Unless indicated in the applicable prospectus supplement, neither we, any
selling shareowner nor any underwriter have taken any action that would permit
any selling shareowner to publicly sell our Class B common stock in any
jurisdiction outside the United States. If you are an investor outside the
United States, you should inform yourself about and comply with any restrictions
as to the offering of the shares and the distribution of this prospectus.
Unless the context requires otherwise, references to "UPS," "we," "us,"
and "our" mean United Parcel Service, Inc. and its subsidiaries.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy materials that we have filed
with the SEC, including the registration statement of which this prospectus is a
part, at the SEC reference room located at 450 Fifth Street, N.W., Room 1024,
Washington, DC 20549. Please telephone the SEC at 1-800-SEC-0330
(1-800-732-0330) for further information on the public reference room. The SEC
also maintains an Internet site at http://www.sec.gov that contains reports,
proxy statements and other information regarding issuers that file
electronically with the SEC. You may find our reports, proxy statements and
other information at the SEC website. In addition, you can obtain reports and
proxy statements and other information about us at the offices of the New York
Stock Exchange, 20 Broad Street, New York, New York 10005.
The SEC allows to us to "incorporate by reference" into this document the
information that we file with the SEC. This means that we can disclose important
information by referring you to those documents. The information incorporated by
reference is an important part of this prospectus and the accompanying
prospectus supplement, and information that we subsequently file with the SEC
will automatically update and supersede information in this prospectus and in
our other filings with the SEC.
We incorporate by reference the documents listed below, which we have already
filed with the SEC, and any future filings we make with the SEC under Sections
13(a), 14 or 15(d) of the Securities Exchange Act of 1934 until we sell all of
the securities offered by this prospectus:
- our annual report on Form 10-K for the year ended December 31,
2001; and
- the description of our common stock set forth in the registration
statement on Form 8-A filed on November 4, 1999 with the SEC
pursuant to Section 12 of the Exchange Act, including any
amendment or report filed with the SEC for the purpose of
updating this description.
We will provide, without charge, to each person to whom a copy of this
prospectus is delivered, upon written or oral request, a copy of any and all of
the documents incorporated by reference in this prospectus, other than the
exhibits to such documents, unless such exhibits are specifically incorporated
by reference into the documents that this prospectus incorporates. Requests for
copies of these documents should be directed to:
United Parcel Service, Inc.
55 Glenlake Parkway, N.E.
Atlanta, Georgia 30328
Attn: Corporate Secretary
Telephone: (404) 828-6000
This prospectus is part of the registration statement we have filed with
the SEC relating to the Class B common stock described in this prospectus. You
may obtain from the SEC a copy of the registration statement and exhibits that
we filed with the SEC when we registered the securities. The registration
statement may contain additional information that may be important to you.
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR THE APPLICABLE PROSPECTUS SUPPLEMENT. WE HAVE
NOT AUTHORIZED ANYONE ELSE TO PROVIDE YOU WITH ADDITIONAL OR DIFFERENT
INFORMATION. WE ARE ONLY OFFERING THESE SECURITIES IN STATES WHERE THE OFFER IS
PERMITTED. YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR THE
APPLICABLE PROSPECTUS SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATES
ON THE FRONT OF THOSE DOCUMENTS.
2
UNITED PARCEL SERVICE, INC.
We are the world's largest express carrier, the world's largest package
delivery company and a leading global provider of specialized transportation and
logistics services. We were founded in 1907 as a private messenger and delivery
service in the Seattle, Washington area. Over the past 95 years, we have
expanded from a small regional parcel delivery service into a global company. We
deliver packages each business day for 1.8 million shipping customers to six
million consignees. In 2001, we delivered an average of more than 13.5 million
pieces per day worldwide. Total revenue in 2001 was over $30 billion. We focus
on the movement of goods, information and funds, and we seek to position
ourselves as the world's premier enabler of global commerce.
Our primary business is the time-definite delivery of packages and
documents throughout the United States and in over 200 other countries and
territories. We have established a vast global transportation infrastructure and
developed a comprehensive portfolio of guaranteed delivery services, and we
support these services with advanced technology. We provide logistics services,
including integrated supply chain management, for major companies worldwide. We
are the industry leader in the delivery of goods purchased over the Internet.
The address and telephone number of our principal executive offices are
55 Glenlake Parkway, N.E., Atlanta, Georgia 30328, (404) 828-6000.
USE OF PROCEEDS
We will not receive any proceeds from the sale of any shares of Class B
common stock by any selling shareowner.
3
DESCRIPTION OF COMMON STOCK
The following section summarizes the material terms of our common stock.
Our restated certificate of incorporation and bylaws have been filed as exhibits
to the registration statement and you should read our restated certificate of
incorporation and bylaws for provisions that may be important to you. You can
obtain copies of our restated certificate of incorporation and bylaws by
following the directions under the caption "Where You Can Find More
Information."
GENERAL
We are authorized to issue a total of 10,200,000,000 shares of common
stock, of which:
- 1,533,333,333 are shares of Class A-1 common stock, par value $.01
per share,
- 1,533,333,333 are shares of Class A-2 common stock, par value $.01
per share,
- 1,533,333,334 are shares of Class A-3 common stock, par value $.01
per share, and
- 5,600,000,000 are shares of Class B common stock, par value $.01 per
share.
Generally, all shares of our common stock have the same relative rights,
preferences and limitations, except as follows:
- shares of Class A-1 common stock, Class A-2 common stock and Class
A-3 common stock have 10 votes per share, and shares of Class B
common stock have 1 vote per share;
- shares of Class A-1 common stock, Class A-2 common stock and Class
A-3 common stock may be reclassified as a single class of common
stock; and
- shares of Class A-1 common stock, Class A-2 common stock and Class
A-3 common stock may be converted at any time by the holder into an
equal number of shares of Class B common stock and, if transferred
to certain transferees, are automatically converted into shares of
Class B common stock immediately upon transfer.
Our Class B common stock is listed and traded on the New York Stock
Exchange under the symbol "UPS." There is no public market for our Class A
common stock.
Dividends may be paid on our common stock out of funds legally available
for dividends, when and if declared by our board of directors, provided that, in
the case of a distribution of our common stock, each class of common stock
receives a distribution of only shares of the same class of common stock. For
example, only shares of Class B common stock may be distributed with respect to
Class B common stock.
Holders of our common stock are entitled to share ratably in any
dividends and in any assets available for distribution on liquidation,
dissolution or winding-up, subject, if any
4
of our preferred stock is then outstanding, to any preferential rights of such
preferred stock. Our common stock is not redeemable, has no subscription rights
and does not entitle the holder to any preemptive rights.
Mellon Investor Services LLC is the transfer agent and registrar for our
common stock.
ANTI-TAKEOVER EFFECTS OF OUR CERTIFICATE AND BY-LAW PROVISIONS
Our restated certificate of incorporation and bylaws contain provisions
that may be deemed to have an anti-takeover effect and may delay, defer or
prevent a tender offer or takeover attempt that a shareowner might consider in
its best interest. These provisions include:
- Restrictions on the voting power of any person or group who owns
more than 25% of our total voting power (such persons will be
entitled to only 1/100(th) of a vote for each vote in excess of 25%
of our voting power);
- No shareowner action by written consent;
- No shareowner ability to call a special meeting;
- No cumulative voting;
- Our ability to issue preferred stock without any action on the part
of the shareowners;
- Advance notice provisions that specify how and when a shareowner may
bring business before an annual meeting;
- Indemnification of officers and directors and limitations on their
liability; and
- Supermajority provisions -- an 80% vote of our shareowners is
required to amend the provisions of our restated certificate
relating to:
- The prohibition on shareowner action by written consent;
- The calling of a special meeting of shareowners; and
- The restrictions on the voting power of a shareowner that holds
more than 25% of our voting power.
These provisions are designed to discourage coercive takeover practices
and inadequate takeover bids. These provisions are also designed to encourage
persons seeking to acquire control of us to first negotiate with our board of
directors. We believe that this increased protection gives us the potential
ability to negotiate with the proponent of an unfriendly or unsolicited proposal
to acquire or restructure us, and that the benefits of this increased protection
outweigh the disadvantages of discouraging those proposals, because negotiation
of those proposals could improve their terms.
5
DELAWARE BUSINESS COMBINATION STATUTE
We are subject to Section 203 of the Delaware General Corporation Law, an
anti-takeover law. Section 203 imposes restrictions which, under certain
circumstances, may make it more difficult for an "interested stockholder", as
defined in Section 203, to effect various business combinations with the
corporation for a three year period from the time such person becomes an
interested stockholder. Under Section 203, a corporation's bylaws or certificate
of incorporation may exclude a corporation from the restrictions imposed by
Section 203. Neither our bylaws nor our certificate of incorporation contains
such a provision.
SELLING SHAREOWNERS
Selling shareowners may from time to time offer for sale an aggregate of
up to 30,000,000 shares of our Class B common stock.
The table below lists
- the number of shares of our Class A and Class B common stock
beneficially owned by each selling shareowner as of March 31, 2002;
- the percentage of our Class A and Class B common stock that their
beneficial ownership represents as of March 31, 2002;
- the number of shares they may offer under this prospectus;
- the number of shares of Class A and Class B common stock they would
own assuming:
- they would have sold all of the shares they may offer under this
prospectus,
- they would not sell any shares to an "affiliate," as such term
is defined under the federal securities laws, and
- they do not acquire additional shares of our common stock before
they sell all the shares they may offer under this prospectus;
and
- the percentage of our Class A and Class B common stock that the
number of shares they would own represents, assuming they would have
sold all the shares they may offer under this prospectus.
6
BENEFICIAL OWNERSHIP OF COMMON STOCK
PRIOR TO OFFERING AFTER OFFERING
----------------------------------- -----------------------------------
NUMBER OF SHARES NUMBER OF SHARES
BENEFICIALLY OWNED PERCENT OF NUMBER OF CLASS B BENEFICIALLY OWNED PERCENT OF
--------------------- OUTSTANDING SHARES OFFERED --------------------- OUTSTANDING
SELLING SHAREOWNERS CLASS A CLASS B SHARES(1) HEREBY CLASS A CLASS B SHARES(1)
------------------- ----------- ------- ----------- ----------------- ----------- ------- -----------
Annie E. Casey
Foundation............. 34,459,637 91,512 3.1% 15,000,000 19,551,149 -- 1.8%
UPS Retirement Plan...... 21,412,940 25,000 1.9% 15,000,000 6,437,940 -- 0.6%
---------------------------------
(1) Based on an aggregate of 1,115,203,687 shares of Class A and Class B
common stock issued and outstanding as of March 31, 2002.
The prospectus supplement for any offering of Class B common stock by
selling shareowners will include the following information about the selling
shareowners:
- the names of the selling shareowners participating in the offering;
- the nature of any position, office or other material relationship
between any of the selling shareowners and us, our affiliates or
predecessors during the last three years;
- the number of shares offered by selling shareowners under the
prospectus supplement; and
- the number of shares of Class A and Class B common stock owned by
the selling shareowners before and after the offering, and if one
percent or more, the percentage of Class A and Class B common stock
owned by selling shareowners after the offering.
PLAN OF DISTRIBUTION
The selling shareowners may offer and sell the Class B common stock
described in this prospectus in transactions effected through the New York Stock
Exchange or in private transactions that are not effected through the New York
Stock Exchange and, in either case:
- through one or more underwriters or dealers;
- through a block trade in which the broker or dealer engaged to
handle the block trade will attempt to sell the shares as agent, but
may position and resell a portion of the block as principal to
facilitate the transaction;
- directly to one or more purchasers (through a specific bidding or
auction process or otherwise);
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- in at-the-market offerings, within the meaning of Rule 415(a)(4)
under the Securities Act; or
- through a combination of any of these methods of sale.
The distribution of the Class B common stock described in this prospectus
may be effected:
- at a fixed price or prices, which may be changed;
- at market prices prevailing at the time of sale;
- at prices relating to the prevailing market prices; or
- at negotiated prices.
We and the selling shareowners anticipate that any shares of our Class B
common stock offered by this prospectus and any prospectus supplement will be
offered exclusively or primarily to index funds whose portfolios are primarily
based on a particular stock index, such as the Standard & Poor's Corporation 500
Composite Index, assuming our Class B common stock is to be included in any such
index. We cannot assure you when, if ever, our Class B common stock will be
included in any such index. If our Class B common stock is included in any such
index, these index funds may be required to acquire and hold shares of our Class
B common stock.
If any selling shareowner offers and sells shares of our Class B common
stock through an underwriter or underwriters, we and the selling shareowners
will execute an underwriting agreement with the underwriter or underwriters. The
names of the specific managing underwriter or underwriters, as well as any other
underwriters, and the terms of the transactions, including compensation of the
underwriters and dealers, which may be in the form of discounts, concessions or
commissions, if any, will be described in the applicable prospectus supplement,
which will be used by the underwriters to make resales of the securities.
If any selling shareowner offers and sells Class B common stock through a
dealer, the selling shareowners or an underwriter will sell the Class B common
stock to the dealer, as principal. The dealer may then resell the Class B common
stock to the public at varying prices to be determined by the dealer at the time
of resale. The name of the dealer and terms of the transactions will be set
forth in the applicable prospectus supplement.
We and the selling shareowners may enter into agreements with
underwriters and dealers under which we and the selling shareowners may agree to
indemnify the underwriters and dealers against certain liabilities, including
liabilities under the Securities Act, or to contribute to payments they may be
required to make with respect to these liabilities. The terms and conditions of
this indemnification or contribution will be described in the applicable
prospectus supplement. Some of the underwriters or dealers or their affiliates
may be customers of, engage in transactions with or perform services for us or
the selling shareowners in the ordinary course of business.
8
VALIDITY OF OFFERED SECURITIES
The validity of the shares of Class B common stock offered by this
prospectus will be passed upon for UPS by King & Spalding, Atlanta, Georgia.
Certain legal matters in connection with the securities will be passed upon for
the underwriters by Gibson, Dunn & Crutcher LLP, New York, New York.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference from our Annual Report on Form 10-K for the year ended December 31,
2001 have been audited by Deloitte & Touche LLP, independent auditors, as stated
in their report (which report expresses an unqualified opinion and includes an
explanatory paragraph relating to UPS's change in its method of accounting for
derivative financial instruments and hedging activities to conform with
Statement of Financial Accounting Standards No. 133, as amended), which is
incorporated herein by reference, and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
9
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
Securities and Exchange Commission registration fee......... $166,511
--------
Printing and engraving fee.................................. 50,000
--------
Accounting fees and expense................................. 25,000
--------
Legal fees and expenses..................................... 50,000
--------
Blue Sky fees and expenses.................................. 5,000
--------
Miscellaneous............................................... 28,489
--------
Total....................................................... $325,000
--------
---------------
* All expenses other than the registration fee are estimates.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law generally provides
that all directors and officers (as well as other employees and individuals) may
be indemnified against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement in connection with certain specified actions,
suits or proceedings, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation -- a "derivative
action"), if they acted in good faith and in a manner they 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 reasonable cause to believe
their conduct was unlawful. A similar standard of care is applicable in the case
of derivative actions, except that indemnification extends only to expenses
(including attorneys' fees) incurred in connection with defense or settlement of
an action, and the Delaware General Corporation Law requires court approval
before there can be any indemnification where the person seeking indemnification
has been found liable to the corporation. Section 145 of the Delaware General
Corporation Law also provides that the rights conferred thereby are not
exclusive of any other right to which any person may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or otherwise,
and permits a corporation to advance expenses to or on behalf of a person
entitled to be indemnified upon receipt of an undertaking to repay the amounts
advanced if it is determined that the person is not entitled to be indemnified.
UPS's Restated Certificate of Incorporation, as amended, does not provide
for indemnification of UPS's directors and officers, but UPS's Bylaws provide
that UPS must indemnify its directors and officers to the fullest extent
authorized by the Delaware General Corporation Law, subject to very limited
exceptions.
II-1
ITEM 16. EXHIBITS
The following exhibits are filed as part of this registration statement:
EXHIBIT NO. DESCRIPTION
----------- -----------
1.1* Form of Underwriting Agreement
3.1* Form of United Parcel Service, Inc.'s Restated
Certificate of Incorporation (incorporated by reference
to Exhibit 3.1 of Amendment No. 3 to United Parcel
Service, Inc.'s registration statement on Form S-4 (No.
333-83349), filed on September 21, 1999).
3.2* Form of United Parcel Service, Inc.'s Bylaws
(incorporated by reference to Exhibit 3.2 of Amendment
No. 1 to United Parcel Service, Inc.'s registration
statement on Form S-4 (No. 333-83349), filed on
September 1, 1999).
4.1* Form of Class B Common Stock Certificate (incorporated
by reference to Exhibit 4.2 of Amendment No. 1 to United
Parcel Service, Inc.'s Registration Statement on Form
S-4 (No. 333-83349), filed on September 1, 1999)
5.1 Opinion of King & Spalding
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of King & Spalding (included in Exhibit 5.1)
24.1 Power of Attorney (included on the signature page
hereto)
---------------------------------
* Such exhibits, or supplements to such exhibits, may be filed by
amendment or incorporated by reference in the registration statement.
ITEM 17. UNDERTAKINGS.
(a) The registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in the volume of securities offered (if the total dollar value of
II-2
securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement;
and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by UPS pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of UPS'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 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 UPS pursuant to the provisions described under Item 15 above or otherwise,
UPS 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 UPS of expenses incurred or paid by a
director, officer or controlling person of UPS 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, UPS 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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(d) UPS hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by UPS pursuant to Rule 424(b)(1) or (4) or Rule
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of prospectus
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.
(e) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Securities and Exchange
Commission under Section 305(b)(2) of the Securities Act.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the undersigned
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on this 18th day of April,
2002.
UNITED PARCEL SERVICE, INC.
/s/ MICHAEL L. ESKEW
-----------------------------------------
Michael L. Eskew
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints D. SCOTT DAVIS and JOSEPH R. MODEROW, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his 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 all
exhibits thereto and other documents in connection therewith, including any and
all post-effective amendments, and any related Rule 462(b) registration
statement and any amendment thereto, with the Securities and Exchange
Commission, granting unto said 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 might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or either 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, this registration
statement has been signed by the following persons in the capacities indicated
as of April 18, 2002:
Signature Title
--------- -----
---------------------------------------------
William H. Brown, III Director
/s/ D. SCOTT DAVIS
---------------------------------------------
D. Scott Davis Senior Vice President, Chief Financial
Officer and Treasurer (Principal Financial
and Accounting Officer)
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Signature Title
--------- -----
/s/ CALVIN DARDEN
---------------------------------------------
Calvin Darden Senior Vice President and Director
/s/ MICHAEL L. ESKEW
---------------------------------------------
Michael L. Eskew Chairman of the Board and Chief Executive
Officer (Principal Executive Officer)
/s/ JAMES P. KELLY
---------------------------------------------
James P. Kelly Director
---------------------------------------------
Ann M. Livermore Director
---------------------------------------------
Gary E. MacDougal Director
/s/ JOSEPH R. MODEROW
---------------------------------------------
Joseph R. Moderow Senior Vice President, Secretary and
Director
---------------------------------------------
Kent C. Nelson Director
---------------------------------------------
Victor A. Pelson Director
/s/ LEA N. SOUPATA
---------------------------------------------
Lea N. Soupata Senior Vice President and Director
/s/ ROBERT M. TEETER
---------------------------------------------
Robert M. Teeter Director
---------------------------------------------
John W. Thompson Director
/s/ THOMAS H. WEIDEMEYER
---------------------------------------------
Thomas H. Weidemeyer Senior Vice President, Chief Operating
Officer and Director
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