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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE TO
Tender Offer Statement under Section 14(d)(1) or 13(e)(1) of the Securities
Exchange Act of 1934
(Amendment No. 2)
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UNITED PARCEL SERVICE, INC.
(Name of Subject Company (issuer))
UNITED PARCEL SERVICE, INC.
(Name of Filing Person (offeror))
CLASS A-1 COMMON STOCK, $0.01 PAR VALUE PER SHARE
(Title of Class of Securities)
911312304
(CUSIP Number of Class of Securities)
JOSEPH R. MODEROW, ESQ.
SENIOR VICE PRESIDENT AND SECRETARY
UNITED PARCEL SERVICE, INC.
55 GLENLAKE PARKWAY, NE
ATLANTA, GEORGIA 30328
(404) 828-6000
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of the Person(s) Filing Statement)
COPIES TO:
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<CAPTION>
<S> <C> <C>
JOHN F. OLSON, ESQ. JEFFREY L. SCHULTE JEFFREY SMALL, ESQ.
GIBSON, DUNN & CRUTCHER LLP MORRIS, MANNING & MARTIN L.L.P. DAVIS POLK & WARDWELL
1050 CONNECTICUT AVE., N.W. 3343 PEACHTREE ROAD, N.E., SUITE 1600 450 LEXINGTON AVE.
WASHINGTON, D.C. 20036 ATLANTA, GA 30326 NEW YORK, NEW YORK 10017
(202) 955-8500 (404) 233-7000 (212) 450-4000
</TABLE>
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CALCULATION OF FILING FEE
===============================================================================
TRANSACTION VALUATION* AMOUNT OF FILING FEE*
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$6,053,596,620.00 $1,210,719.32
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* Amount previously paid.
* Determined pursuant to Rule 0-11(b)(1) of the Securities Exchange Act of
1934, assuming that 100,893,277 shares of class A-1 common stock are
purchased for $60.00 per share.
[x] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the form
or schedule and the date of its filing.
Amount Previously Paid: $1,210,719.32 Filing Party: United Parcel Service, Inc.
Form or Registration No.: Schedule TO: File No. 005-57699
Date Filed: February 4, 2000
[ ] Check box if the filing relates solely to preliminary communications made
before the commencement of a tender offer.
Check the appropriate boxes to designate any transactions to which this
statement relates:
[ ] third party tender offer [ ] going-private transaction
subject to Rule 14d-1 subject to Rule 13e-3
[X] issuer tender offer [ ] amendment to Schedule 13D
subject to Rule 13e-4 under Rule 13d-2
Check the following box if the filing is a final amendment reporting the
results of the tender offer. [ ]
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This amendment no. 2 to issuer tender offer statement on Schedule TO
relates to an offer by United Parcel Service, Inc., a Delaware corporation, to
purchase, upon the terms and subject to the conditions contained in the offer to
purchase, dated February 4, 2000 and the accompanying letters of transmittal
(which together constitute the "offer" and are filed as Exhibit (a)(1) to this
Schedule TO) up to 100,893,277 shares of United Parcel Service, Inc.'s class A-1
common stock, par value $0.01 per share, at a price of $60.00 per share, net to
the seller in cash.
ITEM 1. SUMMARY TERM SHEET
Item 1 is hereby amended and supplemented as follows:
In the offer to purchase, the Company indicated that management
encourages class A shareowners to participate in the offer, but no shareowner is
required to tender any shares. The following language is hereby added to the
"QUESTIONS AND ANSWERS" and "INTRODUCTION" sections of the offer to purchase
immediately following the language discussed in the previous sentence:
"Decisions concerning tendering should only be made based on your
particular financial considerations and following consultation with a
tax advisor regarding the tax treatment of tendering shares. Management
encourages participation in the offer to clarify to you that tendering
shares in the offer should be viewed as a one-time opportunity to sell
shares which is not inconsistent with our culture which discourages our
employees from selling their shares."
ITEM 4. TERMS OF THE TRANSACTION
Item 4 is hereby amended and supplemented as follows:
The following language is hereby deleted from the first paragraph under
"THE OFFER -- Conditions of the Offer" contained in the offer to purchase:
"there shall have occurred or be likely to occur any event that, in our
judgment, would or might prohibit, prevent, restrict or delay
consummation of the offer or otherwise result in the consummation of
the offer not being, or not being reasonably likely to be, in the best
interests of us and our subsidiaries as a whole;."
The final paragraph under "THE OFFER -- Conditions of the Offer"
contained in the offer to purchase is hereby deleted in its entirety and
replaced with the following language:
"The conditions to the offer are for our benefit. We may assert them in
our discretion regardless of the circumstances giving rise to them
prior to the time we accept shares for payment. We may waive them, in
whole or in part, at any time and from time to time prior to the time
we accept shares for payment, in our discretion, whether or not we
waive any other condition to the offer. Our failure at any time to
exercise any of these rights will not be deemed a waiver of any such
rights. The waiver of any of these rights with respect to particular
facts and circumstances will not be deemed a waiver with respect to any
other facts and circumstances. Any determination we make concerning the
events described in this Section 5 will be final and binding upon all
persons."
ITEM 11. ADDITIONAL INFORMATION
Item 11 is hereby amended and supplemented as follows:
(a)(2) The Quebec Securities Commission informed the Company that it
would be exempt from complying with issuer bid legislation in Quebec, Canada on
the condition that the shareowners receive a summary of the terms of the Offer
prepared in the French language. The full text of this summary translated into
English is set forth in Exhibit (a)(5)(iii) and is incorporated herein by
reference.
On February 21, 2000 the Belgian Commission Bancaire et
Financiere informed the Company that it had reviewed and approved
supplemental offering materials to be provided to Belgian shareowners
in accordance with Belgian law. This material consists of a Belgian
addendum to the offer to purchase. The full text of the Belgian
Addendum is set forth in Exhibit (a)(5)(iv) and is incorporated
herein by reference.
AMENDMENTS RELATING TO FORWARD-LOOKING STATEMENTS
In the offer to purchase and exhibit (a)(5)(i), the press release
issued by the Company on February 4, 2000, we inappropriately referred to
Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934.
The offer to purchase is hereby amended and supplemented as follows:
The language in the offer to purchase under
"INTRODUCTION -- FORWARD-LOOKING INFORMATION" is hereby deleted in its entirety.
Exhibit (a)(5)(i) is hereby amended and supplemented as follows:
The final paragraph of this exhibit is hereby deleted.
ITEM 12. EXHIBITS.
Item 12 hereby is amended and restated as follows:
(a)(1) -- Offer to Purchase, dated February 4, 2000, and Forms of
Letters of Transmittal and instructions.
(a)(2) -- Letter to Shareowners from James P. Kelly, Chairman of
the Board and Chief Executive Officer of UPS, dated
February 4, 2000.
(a)(5)(i) -- Press release issued by UPS on February 4, 2000.
(a)(5)(ii) -- Summary Advertisement published in the
Wall Street Journal on February 4, 2000.
*(a)(5)(iii)-- English language translation of French language summary
of Offer to Purchase for Shareowners in Quebec, Canada,
dated February 22, 2000.
*(a)(5)(iv) -- Belgian Addendum to US Offer to Purchase, dated
February 22, 2000.
(b) -- None.
(d) -- None.
(g)(i) -- UPS Internal Communication Materials.
(g)(ii) -- Presentation Materials.
(g)(iii) -- UPS Internal Communication Materials,
dated February 8, 2000.
(h) -- None.
* Filed herewith.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
To the best of my knowledge and belief, I certify that the attached exhibit
(a)(5)(iii) is a fair and accurate translation.
UNITED PARCEL SERVICE, INC.
By: /s/ Joseph R. Moderow
-------------------------------
Joseph R. Moderow
Senior Vice President and
Secretary
Dated: February 22, 2000
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EXHIBIT (a)(5)(iii)
[UPS LOGO] UNITED PARCEL SERVICE, INC.
OFFER TO PURCHASE FOR CASH
UP TO 100,893,277 SHARES OF ITS CLASS A-1 COMMON STOCK
AT
$60 PER SHARE
--------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY, MARCH 3, 2000
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United Parcel Service, Inc., a Delaware corporation, is offering to purchase up
to 100,893,277 shares of its class A-1 common stock, par value $0,01 per share,
at a price of $60 per share, in cash. Our offer is subject to the terms and
conditions set forth in this offer to purchase and in the related letters of
transmittal.
We are offering to purchase a total of approximately 27% of the total
outstanding shares of class A-1 common stock. You may tender up to 27% of the
class A-1 shares you hold in each separate account. You may hold class A-1
shares in one or more of the following four possible account types: a regular
account (formerly a First Union Trust Account), a certificate/receipt account
(an account that includes at least one former "Brown Share"), an individual
retirement account or a UPS Savings Advantage account.
Each letter of transmittal you received in color-coded to the different account
types. TAN refers to regular accounts. YELLOW refers to certificate/receipt
accounts. PINK refers to individual retirement accounts. BLUE refers to UPS
Savings Advantage accounts. In the offer, we will purchase no more than 27% of
any shareowner's class A-1 shares in each separate account.
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THE OFFER IS NOT CONDITIONED UPON ANY MINIMUM OF SHARES BEING TENDERED.
THE OFFER IS, HOWEVER, SUBJECT TO OTHER CONDITIONS. SEE SECTION 5 OF THE OFFER
AND CIRCULAR OF FEBRUARY 4,
2000 UNDER THE HEADING "CONDITIONS OF THE OFFER."
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The class A-1 common stock is not listed on any stock exchange or quoted on any
organized over-the-counter market. Our class B stock is listed on the New York
Stock Exchange under the symbol "UPS". On February 3, 2000, the last full
trading day before we announced the offer, the reported closing prices of our
class B common stock on the NYSE was $57 7/16 per share.
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To tender your class A-1 common shares, please complete the letter of
transmittal of appropriate color (depending on the type of account in which your
shares are held), in accordance with the directives therein contained, and remit
the same to First Union, at the latest on 12:00 midnight, New York City time, on
Friday, March 3, 2000, as follows:
UPS NEXT DAY AIR OR HAND DELIVERY MAIL
FIRST UNION NATIONAL BANK FIRST UNION NATIONAL BANK
Shareholder Services Shareholder Services
PA 4883 PA 4883
1345 Chestnut Street P.O. Box 7558
24(th) floor Philadelphia, PA 19101-7558
Philadelphia, PA 19107
Toll free
(877) 413-2211
From Canada, direct
(215) 985-8569
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EXHIBIT (a)(5)(iv)
UNITED PARCEL SERVICE, INC.
OFFER TO PURCHASE SHARES FOR CASH
UP TO 100,893,277 SHARES OF CLASS A-1 COMMON STOCK
AT
$60 PER SHARE
BELGIAN ADDENDUM TO THE US OFFER DOCUMENTS
This Belgian Addendum should be read in connection with the US Offer Documents
of February 4, 2000.
This Belgian Addendum is intended for Belgian shareowners to whom the Offer to
Purchase for Cash is extended in compliance with Belgian law relating to public
offerings.
WARNING
The information contained in this Belgian Addendum does not constitute a tender
offer to shareowners residing in any jurisdiction where the public communication
of the tender offer would be unlawful or require government approval. In any
jurisdictions outside the U.S. or Belgium where it is considered appropriate by
UPS to file or obtain governmental or other approval in order to be able to
proceed with the tender offer in such jurisdictions, the offer will be extended
after such filing or governmental or other approval has been obtained.
1. APPROVAL BY THE BANKING AND FINANCE COMMISSION
This Belgian Addendum to the US Offer Documents was approved by the
Belgian Commission bancaire et financiere on 21st February 2000 in
accordance with Paragraph 1 of Article 29ter of Royal Decree N(degree)
185 of 9 July 1935 on banking control and legal rules governing the
issuance of stocks, shares and securities, and with Article 17 of the
Royal Decree of 8 November 1989 on take-overs and changes in corporate
control ("the Royal Decree on Tender Offers").
Such approval does not imply any opinion on the timeliness or merits of
the Offer, nor on the value of the Offer or the financial position of
the parties making it.
The Banking and Finance Commission furthermore on 21st February 2000
noted that the US Offering Documents had been filed with the Securities
and Exchange Commission and accepted without formal approval or
recognition that such document be used for purposes of the extension of
the Offer to Purchase for Cash to Belgian shareholders.
2. EXEMPTIONS FROM THE OBLIGATIONS RESULTING FROM THE ROYAL DECREE OF 8
NOVEMBER 1989
In approving this Belgian Addendum to the US Offering Documents and
permitting the use of the US Offering Documents as part of the
extension of the Offer to Purchase for Cash to Belgian shareholders,
the Banking and Finance Commission has in accordance with 15, ss.3 of
the Law of 2nd March 1989 with respect to the publication of important
participations in companies listed on a stock exchange and with respect
to the regulation of public tender offers, granted various exemptions
from the obligations resting upon the Offeror further to the Royal
Decree of 8 November 1989.
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3. TERMS AND CONDITIONS OF THE EXTENSION OF THE OFFER TO BELGIUM
Belgian shareowners wishing to accept the offer must complete and
return the relevant Letter of Transmittal contained in the information
package that was forwarded to them in accordance with the instructions
contained therein.
Any Belgian shareholder who has any question with respect to the type
of Letter of Transmittal to be used in his particular situation is
invited to contact First Union Bank (215) 985-8569 international direct
for further assistance.
The proceeds of the purchase will be paid by check denominated in US
Dollars which will be forwarded to the address listed on the Letter of
Transmittal. Such check shall be in a form that permits its remittance
for payment to a Belgian bank. Any costs incurred by a Belgian
shareowner in cashing such check are to be borne by himself.
4. TAX STATUS
Under the current state of legislation in force at the time the Belgian
Addendum to the US Offering Documents is issued, the following Belgian
tax treatment applies to this extension of the Offer in Belgium.
Capital gains realised by Belgian residents who are natural persons on
repurchase of shares by a foreign company are in principle not
considered to be taxable income further to article 21, 2(degree) of the
Belgian Income Tax Code.
The foregoing would not apply to the extent that such capital gains
could be construed to be income resulting from a professional activity.
This could be the case if it were to be established that the shares or
the former UPS shares that were tendered as part of the Exchange Offer
that took place at the end of 1999 and under which former UPS shares
were exchanged against the current shares, were originally purchased
under an employee share option or share purchase award scheme that
did/does not benefit from any of the beneficial tax regimes that have
been and/or are currently provided for under Belgian law or if it were
to be established that such shares are repurchased prior to the
mandatory holding periods as provided for under such tax regimes having
expired.
Nevertheless, the attention of Belgian shareowners is drawn to the fact
that this information is only a summary of the applicable tax
regulations and that they should consider their individual situation
with their usual tax advisor.
The attention of the Belgian shareowners is more in particular drawn to
the risk referred to at page 12 of the US Offering Documents with
respect to the treatment of the offer as a dividend distribution for
purposes of US tax laws which could equally influence the position
under Belgian tax laws. Neither the Offeror nor First Union Bank shall
proceed with withholding US taxes on payments made to Belgian
residents.
