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As filed with the Securities and Exchange Commission on March 15, 2000
Registration No. 333-08369
333-08369-01
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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UNITED PARCEL SERVICE, INC.
As Successor Registrant to
UNITED PARCEL SERVICE OF AMERICA, INC.
(Exact name of Registrant as Specified in Its Charter)
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Delaware 58-2480149
(State of incorporation) (I.R.S. Employer Identification No.)
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55 Glenlake Parkway, N.E., Atlanta, Georgia 30328, (404) 828-6000
(Address and Telephone Number of Registrant's Principal Executive Offices)
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JOSEPH R. MODEROW, ESQ.
United Parcel Service, Inc.
55 Glenlake Parkway, N.E.
Atlanta, Georgia 30328
(404) 828-6000
(Name, Address and Telephone Number of Agent for Service)
Copies to:
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HARRISON D. MAAS, ESQ. JOSEPH MCLAUGHLIN, ESQ.
DANIEL O. KENNEDY, ESQ. ANDREW FOWLER, ESQ.
Hunton & Williams Brown & Wood LLP
Bank of America Plaza, Suite 4100 One World Trade Center
600 Peachtree Street, N.E. New York, New York 10048
Atlanta, Georgia 30308 (212) 839-5300
(404) 888-4000
</TABLE>
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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 Securities Act 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. [X]
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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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EXPLANATORY NOTE
This Post-Effective Amendment No. 1 is being filed pursuant to Rule 414
under the Securities Act of 1933 by United Parcel Service, Inc., a Delaware
corporation ("UPS"), which is the successor to United Parcel Service of
America, Inc., a Delaware corporation ("UPS of America") following a statutory
merger effective November 15, 1999 for the purpose of changing UPS of America's
organizational structure. UPS undertook this corporate reorganization in
connection with its initial public offering of class B common stock in November
1999. The initial public offering and the merger resulted in UPS of America
becoming a direct wholly owned subsidiary of UPS. The merger was approved by
the shareowners of UPS of America at a meeting for which proxies were solicited
pursuant to Section 14(a) of the Securities Exchange Act of 1934.
In accordance with Rule 414 under the Securities Act, as parent of UPS of
America, UPS hereby expressly adopts this registration statement as its own for
all purposes of the Securities Act and the Exchange Act.
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PROSPECTUS
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UNITED PARCEL SERVICE, INC.
$2,000,000,000
DEBT SECURITIES
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This prospectus relates to the issuance of senior unsecured debt securities
by United Parcel Service, Inc. pursuant to our debt shelf registration
statement. Under this shelf registration statement, we may issue debt
securities from time to time as described in this prospectus.
Issuance of debt securities:
.. may be offered from time to time;
.. may be denominated in U.S. dollars or other currencies or currency units;
.. prices and terms will be determined at the time of sale; and
.. the total aggregate principal amount (or, in the case of debt securities
issued at a discount, the initial offering price) will not exceed US
$2,000,000,000 (or the equivalent in foreign currencies or currency units).
Forms that debt securities may take:
.. registered form; or
.. global form.
This prospectus is accompanied by a prospectus supplement that includes
additional information regarding an issuance of our debt securities. Sales of
our debt securities may not be consummated without both this prospectus and a
prospectus supplement.
The prospectus supplement relating to any issuance of debt securities will
describe the terms of the securities being issued, typically including the
following:
.. aggregate principal amount of the . any listing on a national
series of debt securities securities exchange
.. denominations . initial public offering price
.. maturity . names of any underwriters or
agents
.. interest rate . terms of any underwriting
arrangements
.. time of interest payments
.. any terms for redemption . amounts to be purchased by
underwriters or agents
.. any terms for sinking fund . commissions or discounts of or to
payments underwriters or agents
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these debt securities or determined
if this prospectus is truthful or complete. Any representation to the contrary
is a criminal offense.
The date of this prospectus is March , 2000.
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No dealer, salesman 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 us 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.
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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 following SEC reference rooms:
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450 Fifth Street, N.W. 7 World Trade Center 500 West Madison Street
Room 1024 Suite 1300 Suite 1400
Washington, DC 20549 New York, New York 10048 Chicago, Illinois 60661
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Please telephone the SEC at 1-800-SEC-0330 for further information on the
public reference rooms. 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 this SEC website.
In addition, you can obtain our 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 us to "incorporate by reference" into this document the
information that we file with it. 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 in documents that we file after the date
of this prospectus and before the termination of the offering will
automatically update information in this prospectus and the accompanying
prospectus supplement. We succeeded to UPS of America following a statutory
merger that became effective on November 15, 1999.
We incorporate by reference into this prospectus:
. our current report on Form 8-K filed with the SEC on February 23, 2000;
and
. any future filings we make with the SEC under Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, until we sell all of
the securities offered by this prospectus supplement and the
accompanying prospectus.
We also incorporate by reference into this prospectus and adopt as our own
the following:
. UPS of America's annual report on Form 10-K for the year ended December
31, 1998; and
. UPS of America's quarterly reports on Form 10-Q for the fiscal quarters
ended March 31, 1999, June 30, 1999 and September 30, 1999.
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
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the documents that this prospectus incorporates. Requests for copies of such
documents should be directed to United Parcel Service, Inc., 55 Glenlake
Parkway, N.E., Atlanta, Georgia, 30328, attn: Corporate Secretary, telephone
number (404) 828-6000.
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Unless otherwise indicated, currency amounts in this prospectus and any
prospectus supplement are stated in United States dollars ("$," "dollars,"
"U.S. dollars," or "U.S. $1").
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THE COMPANY
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 deliver packages each business day for 1.7 million
shipping customers to six million consignees. In 1999, we delivered an average
of more than 12.92 million pieces per day worldwide, generating revenues of
over $27 billion.
Our primary business is the delivery of packages and documents throughout
the United States and in over 200 other countries and territories. In addition,
we provide logistics services, including comprehensive management of supply
chains, for major companies worldwide. We are the industry leader in the
delivery of goods purchased over the Internet. We seek to position ourselves as
an indispensable branded component of e-commerce and to focus on the movement
of goods, information and funds.
We consummated an initial public offering of our class B common stock in
November 1999. Immediately before the consummation of the initial public
offering, we consummated a merger whereby UPS of America became our direct
wholly owned subsidiary. The issuance of these debt securities is being made
utilizing a shelf registration statement originally filed with the Securities
and Exchange Commission by UPS of America. We have assumed and adopted that
registration statement and will be the issuer of any debt securities offered
pursuant to the shelf registration statement. Our class B common stock is
listed on the New York Stock Exchange.
When used in this prospectus, unless the context requires otherwise, the
terms "United Parcel Service, Inc.", "UPS", "we", "us", and "our" refer to
United Parcel Service, Inc., a Delaware corporation, and "United Parcel Service
of America, Inc." and "UPS of America" refers to United Parcel Service of
America, Inc., a Delaware corporation and direct wholly owned direct subsidiary
of United Parcel Service, Inc.
The address and telephone number of our principal executive offices are 55
Glenlake Parkway, N.E., Atlanta, Georgia 30328, (404) 828-6000.
RATIO OF EARNINGS TO FIXED CHARGES
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<CAPTION>
Nine Months
Ended
Year Ended December 31, September 30,
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1994 1995 1996 1997 1998 1998 1999
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Ratio of Earnings to
Fixed Charges (1)....................... 9.1 7.6 8.2 4.9 8.9 8.7 4.7
</TABLE>
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(1) For purposes of calculating the ratio of earnings to fixed charges,
earnings is defined as income before income taxes and fixed charges
(excluding capitalized interest). Fixed charges include interest (whether
capitalized or expensed), amortization of debt expense and any discount or
premium relating to any indebtedness (whether capitalized or expensed) and
the portion of rent expense considered to represent interest.
USE OF PROCEEDS
Unless otherwise stated in a prospectus supplement, the net proceeds from
the sale of the debt securities offered under this prospectus and a related
prospectus supplement will be used for general corporate purposes, including
UPS's working capital needs, the funding of investments in, or extensions of
credit to, our operating subsidiaries, possible acquisitions and investments in
joint ventures and the possible reduction of outstanding indebtedness. Pending
any of these uses, we may temporarily invest the net proceeds in investment
grade securities.
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DESCRIPTION OF DEBT SECURITIES
The debt securities are to be issued under an indenture dated as of January
26, 1999, between UPS of America and Citibank, N.A., which acts as trustee,
which indenture we assumed pursuant to a supplemental indenture. In this
prospectus "indenture" will refer to the indenture and the supplemental
indenture. A copy of the indenture is filed as an exhibit to the registration
statement of which this prospectus is a part. The indenture and its associated
documents contain the full legal text of the matters described in this section.
The indenture and the debt securities are governed by New York law. A copy of
the indenture may be obtained from us as described under "Where You Can Find
More Information" on page 2.
This section summarizes the material terms of the debt securities that may
be issued under this debt program. Because this section is a summary, it does
not describe every aspect of the debt securities. This summary is subject to
and qualified in its entirety by reference to all the provisions of the
indenture, including definitions of terms used in the indenture. In this
summary, we describe the meaning for only the more important terms. We also
include references in parentheses to sections of the indenture. Whenever we
refer to particular sections or defined terms of the indenture in this
prospectus or in a prospectus supplement, the sections or defined terms are
incorporated by reference in this prospectus or in the prospectus supplement.
You must look to the indenture for the most complete description of what we
describe in summary form in this prospectus.
This summary also is subject to and qualified by reference to the
description of the particular terms of the debt securities described in the
prospectus supplement. The prospectus supplement relating to each series of
debt securities will be attached to the front of this prospectus. There also
may be a further prospectus supplement, know as a pricing supplement, which
contains the precise terms of debt securities you are offered.
The term "Securities," as used under this caption, refers to all Securities
issued under the indenture, including the debt securities.
General
The indenture provides that Securities in separate series may be issued from
time to time, without limitation as to aggregate principal amount. We may
specify a maximum aggregate principal amount for the Securities of any series.
(Section 3.01) The Securities are to have terms and provisions that are not
inconsistent with the indenture, including terms as to maturity, principal and
interest as we may determine. The Securities will be unsecured obligations and
will rank on a parity with all of our other unsecured and unsubordinated
indebtedness. The provisions of the indenture described below provide us with
the ability, in addition to the ability to issue Securities with terms
different from those of Securities previously issued, to "reopen" a previous
issue of a series of Securities and issue additional Securities of that series.
The applicable prospectus supplement will set forth the price or prices at
which the Securities to be offered will be issued and will describe the
following terms, as applicable, of the Securities:
(a) the title of the Securities of the series;
(b) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under the indenture;
(c) the person or entity to whom any interest on the Securities of the
series will be payable;
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(d) the date or dates on which the principal, premium, if any, or other
form or type of consideration to be paid upon maturity on any Securities of
the series will be payable;
(e) the rate or rates at which any Securities of the series will bear
interest, if any, or any method by which the rate or rates will be
determined, the date or dates from which any interest will accrue, the
interest payment dates on which any interest will be payable and the record
date for any interest payable on any interest payment date;
(f) the place or places where the principal, premium, if any, interest
or other form or type of consideration to be paid upon maturity on any
Securities of the series will be payable;
(g) the period or periods within which, the price or prices at which and
the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at our option and, if other than by a
resolution by our Board of Directors or its Executive Committee, the manner
in which any election by us to redeem the Securities will be evidenced;
(h) our obligation, if any, to redeem or purchase any Securities of the
series pursuant to any sinking fund or analogous provisions or at the
option of the Holder of the Securities, and the period or periods within
which, the price or prices at which and the terms and conditions upon which
any Securities of the series will be redeemed or purchased, in whole or in
part, pursuant to any obligation and any provisions for the remarketing of
any Securities;
(i) if other than denominations of $1,000 and any integral multiple of
$1,000, the denominations in which any Securities of the series will be
issuable;
(j) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index,
formula or other method, the manner in which these amounts will be
determined;
(k) if other than the currency of the United States of America, the
currency, currencies or composite currencies in which the principal of or
any premium or interest on any Securities of the series will be payable and
the manner of determining the equivalent in the currency of the United
States of America for any purpose;
(l) if the principal of or any premium or interest on any Securities of
the series is to be payable, at our election or the election of the Holder
of the Securities, in one or more currencies or composite currencies other
than that or those in which Securities are stated to be payable, the
currency, currencies or composite currencies in which the principal of or
interest on Securities as to which an election is made will be payable, the
periods within which and the terms and conditions upon which an election is
to be made and the amount so payable, or the manner in which the amount
will be determined;
(m) if other than the entire principal amount of any Securities, the
portion of the principal amount of the Securities of the series that will
be payable upon declaration of acceleration of the maturity of the
Securities;
(n) if the principal amount payable at the stated maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the stated maturity, the amount that will be deemed to be
the principal amount of the Securities as of any such date for any purpose
under the Securities or under this prospectus, including the principal
amount of the Securities that will be due and payable upon any maturity
other than the stated maturity or that will be deemed to be outstanding as
of any date prior to the stated maturity;
(o) if applicable, that the Securities of the series, in whole or any
specified part, will be defeasible and that some of our covenants will be
defeasible and, if other than by a resolution of our Board of Directors or
Executive Committee, the manner in which any election by us to defease any
Securities or covenants will be evidenced;
(p) if applicable, that any Securities of the series will be issuable in
whole or in part in the form of one or more global securities and, in that
case, the respective depositories for the global securities, the form of
any legend or legends that will be borne by any global security and any
circumstances in which
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any global security may be exchanged in whole or in part for Securities
registered, and any transfer of a global security in whole or in part may
be registered, in the name or names of persons or entities other than a
depository for a global security;
(q) whether, and the terms and conditions relating to when, we may
satisfy some of our obligations with respect to the Securities with regard
to payment upon maturity, or any redemption or required repurchase or in
connection with any exchange provisions by delivering to the holders
principal, premium, if any, interest or other form or type of consideration
to be paid upon maturity on any Securities;
(r) any addition to or change in the events of default that apply to any
Securities of the series and any change in the right of the trustee or the
requisite holders of the Securities to declare the principal amount due and
payable;
(s) any addition to or change in the covenants that apply to Securities
of the series;
(t) the terms and conditions pursuant to which the Securities may be
converted into or exchanged for other of our debt securities;
(u) terms with respect to book-entry procedures; and
(v) any other terms of the Securities of the series, which terms will
not otherwise be inconsistent with the indenture and as authorized and
approved by us.
Securities, including original issue discount securities, may be sold at a
substantial discount below their principal amount. We may describe special
United States federal income tax considerations, if any, applicable to
Securities sold at an original issue discount in the applicable prospectus
supplement. In addition, we may describe special United States federal income
tax or other considerations, if any, applicable to any Securities that are
denominated in a currency or currency unit other than United States dollars in
the applicable prospectus supplement.
Form, Exchange and Transfer
The Securities of each series will be issuable only in registered form,
without coupons and, unless we specify otherwise in the applicable prospectus
supplement, only in denominations of $1,000 and integral multiples of $1,000.
(Section 3.02)
At the option of the Holder, subject to the terms of the indenture and the
limitations applicable to Global Securities, Securities of each series will be
exchangeable for other Securities of the same series of any authorized
denomination and of a like tenor and aggregate principal amount. (Section 3.05)
Subject to the terms of the indenture and the limitations applicable to
Global Securities, Securities may be presented for exchange as provided above
or for registration of transfer (duly endorsed or with the form of transfer
endorsed thereon duly executed) at the office of the Security Registrar or at
the office of any transfer agent we designate for such purpose. No service
charge will be made for any registration of transfer or exchange of Securities,
but we may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. Transfer or exchange will
be effected by the Security Registrar or the transfer agent, as the case may
be, being satisfied with the documents of title and identity of the person
making the request. We have appointed the trustee as Security Registrar.
(Section 3.05) We may at any time designate additional transfer agents or
rescind the designation of any transfer agent or approve a change in the office
through which any transfer agent acts, except that we will be required to
maintain a transfer agent in each Place of Payment for the Securities of each
series. (Section 10.02)
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, we will not be required to:
. issue, register the transfer of or exchange any Security of that series
(or of that series and specified tenor, as the case may be) during a
period beginning at the opening of business 15 days before the
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day of mailing of a notice of redemption of any Security that may be
selected for redemption and ending at the close of business on the day
of such mailing or
. register the transfer of or exchange any Security so selected for
redemption, in whole or in part, except the unredeemed portion of any
Security being redeemed in part. (Section 3.05)
Global Securities
Some or all of the Securities of any series may be represented, in whole or
in part, by one or more Global Securities that have an aggregate principal
amount equal to that of the Securities represented thereby. Each Global
Security will be registered in the name of The Depository Trust Company, New
York, New York or its nominee identified in the applicable prospectus
supplement, will be deposited with DTC or its nominee or a custodian and will
bear a legend regarding the restrictions on exchanges and registration of
transfer thereof referred to below and any other matters as may be provided for
pursuant to the indenture. Unless otherwise described in the prospectus
supplement relating to each series, the Securities of each series offered, sold
or delivered in the United States will be issued in the form of one or more
fully registered global notes that will be deposited with, or on behalf of, DTC
and registered in the name of the DTC nominee.
DTC has advised us as follows:
. it is a limited-purpose trust company which was created to hold
securities for its participating organizations and to facilitate the
clearance and settlement of securities transactions between
DTC participants in securities through electronic book-entry changes in
accounts of DTC participants;
. DTC participants include securities brokers and dealers (including the
underwriters for the Securities), banks and trust companies, clearing
corporations and certain other organizations;
. access to DTC's system is also available to others such as banks,
brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a participant, either directly or indirectly
("indirect participants"); and
. persons who are not DTC participants may beneficially own securities
held by DTC only through DTC participants or indirect participants.
Unless otherwise provided in the applicable prospectus supplement, payments
of principal, any premium or interest on or related to the Securities of each
series registered in the name of DTC's nominee will be made by the trustee to
DTC's nominee as the registered owner of the Global Security. Under the terms
of the indenture, UPS and the trustee will treat the persons in whose names the
Securities of each series are registered as the owners of the Securities for
the purpose of receiving payment of principal, any premium or interest on the
Securities and for all other purposes. Therefore, neither we, the trustee nor
the Paying Agent has any direct responsibility or liability for the payment of
the principal, any premium or interest on the Securities to owners of
beneficial interests in a Global Security. DTC has advised us and the trustee
that its present practice is, upon receipt of any payment of principal, any
premium, or interest, to immediately credit the accounts of the
DTC participants with the payment in amounts proportionate to their respective
holdings in principal amount of beneficial interests in such Global Security as
shown on DTC's records.
Notwithstanding any provision of the indenture or any Security described in
this prospectus, no Global Security may be exchanged in whole or in part for
Securities registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than DTC or any nominee of
DTC unless:
. DTC has notified us that it is unwilling or unable to continue as
depositary for a Global Security or has ceased to be qualified to act as
depositary as required by the indenture;
. there shall have occurred and be continuing an Event of Default with
respect to the Securities represented by a Global Security; or
. there shall exist circumstances, if any, in addition to or in lieu of
those described above as may be described in the applicable prospectus
supplement.
All securities issued in exchange for a Global Security or any portion of a
Global Security will be registered in the names as DTC may direct. (Sections
2.04 and 3.05)
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As long as DTC, or its nominee, is the registered Holder of a Global
Security, DTC or its nominee, as the case may be, will be considered the sole
owner and Holder of the Global Security and the Securities represented thereby
for all purposes under the Securities and the indenture. Except in the limited
circumstances referred to above, owners of beneficial interests in a Global
Security will not be entitled to have such Global Security or any Securities
represented thereby registered in their names, will not receive or be entitled
to receive physical delivery of certificated Securities in exchange therefor
and will not be considered to be the owners or Holders of such Global Security
or any Securities represented thereby for any purpose under the Securities or
the indenture. All payments and deliveries of principal of and any premium,
Maturity Consideration and interest on a Global Security will be made to DTC or
its nominee, as the case may be, as the Holder thereof. The laws of some
jurisdictions require that certain purchasers of securities take physical
delivery of such securities in definitive form. These laws may impair the
ability to transfer beneficial interests in a Global Security.
Ownership of beneficial interests in a Global Security will be limited to
DTC participants and to persons that may hold beneficial interests through
DTC participants. In connection with the issuance of any Global Security, DTC
will credit, on its book entry registration and transfer system, the respective
principal amounts of Securities represented by the Global Security to the
accounts of its DTC participants. Ownership of beneficial interests in a Global
Security will be shown only on, and the transfer of those ownership interests
will be effected only through, records maintained by DTC, with respect to
DTC participants' interests, or any DTC participant, with respect to interests
of persons held by DTC participants on their behalf. Payments, transfers,
exchanges and other matters relating to beneficial interests in a Global
Security may be subject to various policies and procedures adopted by DTC from
time to time. None of us, the trustee or any agent of us or the trustee will
have any responsibility or liability for any aspect of DTC's or any
DTC participant's records relating to, or for payments made on account of,
beneficial interests in a Global Security, or for maintaining, supervising or
reviewing any records relating to such beneficial interests.
Secondary trading in notes and debentures of corporate issuers is generally
settled in clearinghouse or next-day funds. In contrast, beneficial interests
in a Global Security will trade in DTC's same-day funds settlement system, in
which secondary market trading activity in those beneficial interests would be
required by DTC to settle in immediately available funds. There is no assurance
as to the effect, if any, that settlement in immediately available funds would
have on trading activity in such beneficial interests. Also, settlement for
purchases of beneficial interests in a Global Security upon the original
issuance thereof may be required to be made in immediately available funds.
Payment and Paying Agents
Unless otherwise indicated in the applicable prospectus supplement, payment
of interest on a Security on any Interest Payment Date will be made to the
Person in whose name the Security, or one or more Predecessor Securities, is
registered at the close of business on the Regular Record Date for payment of
interest. (Section 3.07)
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Unless otherwise indicated in the applicable prospectus supplement,
principal of and any premium, Maturity Consideration and interest on the
Securities of a particular series (other than a Global Security) will be
payable or deliverable at the office of the Paying Agent or Paying Agents as we
may designate for that purpose from time to time, except that at our option
payment of any interest may be made by check mailed to the address of the
Person entitled to the payment as that address appears in the Security
Register. Unless otherwise indicated in the applicable prospectus supplement,
the corporate trust office of the trustee in The City of New York will be
designated as our sole Paying Agent for payments and deliveries with respect to
Securities of each series. Any other Paying Agents initially designated for the
Securities of a particular series will be named in the applicable prospectus
supplement. We may at any time designate additional Paying Agents or rescind
the designation of any Paying Agent or approve a change in the office through
which any Paying Agent acts, except that we will be required to maintain a
Paying Agent in each Place of Payment for the Securities of a particular
series. (Section 10.02)
All consideration paid or delivered to a Paying Agent for the payment or
delivery of the principal of or any premium, Maturity Consideration or interest
on any Security that remain unclaimed at the end of two years after such
principal, premium, Maturity Consideration or interest has become due and
payable or deliverable will be repaid to us, and the Holder of the Security
thereafter, as an unsecured general creditor, may look only to us for payment
or delivery thereof. (Section 10.03)
Covenants
Limitation on Secured Indebtedness
We will not create, assume, incur or guarantee, and will not permit any
Restricted Subsidiary to create, assume, incur or guarantee, any Secured
Indebtedness without making provision whereby all the Securities shall be
secured equally and ratably with, or prior to, any Secured Indebtedness,
together with, if we shall so determine, any other Indebtedness of us or any
Restricted Subsidiary then existing or thereafter created that is not
subordinate to the Securities, so long as the Secured Indebtedness shall be
outstanding unless the Secured Indebtedness, when added to:
. the aggregate amount of all Secured Indebtedness then outstanding (not
including in this computation Secured Indebtedness if the Securities are
secured equally and ratably with (or prior to) any Secured Indebtedness
and further not including in this computation any Secured Indebtedness
that is concurrently being retired) and
. the aggregate amount of all Attributable Debt then outstanding pursuant
to Sale and Leaseback Transactions entered into by us after January 26,
1999, or entered into by a Restricted Subsidiary after January 26, 1999
or, if later, the date on which it became a Restricted Subsidiary (not
including in this computation any Attributable Debt that is concurrently
being retired)
would not exceed 10% of Consolidated Net Tangible Assets. (Section 10.06)
Limitation on Sale and Lease Back Transactions
We will not, and will not permit any Restricted Subsidiary to, enter into
any Sale and Leaseback Transaction unless the sum of:
. the Attributable Debt to be outstanding pursuant to any Sale and
Leaseback Transaction;
. all Attributable Debt then outstanding pursuant to all other Sale and
Leaseback Transactions entered into by us after January 26, 1999, or
entered into by a Restricted Subsidiary after January 26, 1999 or, if
later, the date on which it became a Restricted Subsidiary; and
. the aggregate of all Secured Indebtedness then outstanding (not
including in this computation Secured Indebtedness if the Securities are
secured equally and ratably with (or prior to) such Secured
Indebtedness)
would not exceed 10% of Consolidated Net Tangible Assets, or
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an amount equal to the greater of:
. the net proceeds to us or the Restricted Subsidiary of the sale of the
Principal Property sold and leased back pursuant to any Sale and
Leaseback Transaction; and
. the amount of Attributable Debt to be outstanding pursuant to any Sale
and Leaseback Transaction
is applied to the retirement of Funded Debt of us or any Restricted
Subsidiaries (other than Funded Debt that is subordinate to the Securities or
is owing to us or any Restricted Subsidiaries) within 180 days after the
consummation of any Sale and Leaseback Transaction. (Section 10.07)
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge with or into any other Person or
convey, transfer or lease all or substantially all of our properties and assets
substantially as an entirety to any Person unless:
(a) either we are the continuing corporation or the Person, if other
than us, formed by any consolidation or into which we are merged or the
Person that acquires by conveyance, transfer, or lease, the properties and
assets of us substantially as an entirety shall be a corporation,
partnership or trust, shall be organized and validly existing under the
laws of the United States of America, any State thereof or the District of
Columbia and shall expressly assume, in form satisfactory to the trustee,
the due and punctual payment or delivery of the Maturity Consideration and
interest on all the Securities and the performance of every covenant in the
indenture on the part of us to be performed or observed;
(b) immediately after giving effect to such transaction, and treating
any Indebtedness that becomes an obligation of us or any Subsidiary in
connection with or as a result of such transaction as having been incurred
at the time of such transaction, no Event of Default, and no event that,
after notice or lapse of time or both, would become an Event of Default,
shall have occurred and be continuing; and
(c) we or such Person has delivered to the trustee an Officer's
Certificate and an opinion of counsel, as to which opinion, counsel may
rely on the Officer's Certificate as to factual matters, each stating that
such consolidation, merger, conveyance, transfer or lease comply with the
foregoing and that all conditions precedent provided for in the indenture
or relating to the transaction have been complied with.
Upon any consolidation or merger or any conveyance, transfer or lease of the
properties and assets of us substantially as an entirety, the successor Person
formed by a consolidation, or into which we are merged or the successor Person
to which any conveyance, transfer or lease is made, shall succeed to, and be
substituted for, and may exercise every right and power of us under the
Securities and the indenture with the same effect as if that successor had been
named as us therein; and thereafter, except in the case of a lease, we shall be
discharged from all obligations and covenants under the indenture and the
Securities. (Sections 8.01 and 8.02)
Definitions
"Attributable Debt" means, as of the date of its determination, the present
value (discounted semiannually at an interest rate of 7.0% per annum) of the
obligation of a lessee for rental payments pursuant to any Sale and Leaseback
Transaction (reduced by the amount of the rental obligations of any sublessee
of all or part of the same property) during the remaining term of such Sale and
Leaseback Transaction (including any period for which the lease relating
thereto has been extended), such rental payments not to include amounts payable
by the lessee for maintenance and repairs, insurance, taxes, assessments and
similar charges and for contingent rents (such as those based on sales). In the
case of any Sale and Leaseback Transaction in which the lease is terminable by
the lessee upon the payment of a penalty, the rental payments shall be
considered for purposes of this definition to be the lesser of:
(1) the rental payments to be paid under such Sale and Leaseback
Transaction until the first date (after the date of such determination)
upon which it may be so terminated plus the then applicable penalty upon
such termination and
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(2) the rental payments required to be paid during the remaining term
of any Sale and Leaseback Transaction (assuming such termination provision
is not exercised).
"Board of Directors" means either our board of directors or a committee of
that board duly authorized to act for it in respect of the indenture.
"Board Resolution" means a copy of a resolution certified by our Secretary
or an Assistant Secretary to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of the certification.
"Capitalized Lease Obligation" means any obligation to pay rent or other
amounts under a lease of (or other agreement conveying the right to use) real
or personal property that is required to be classified and accounted for as a
capital lease obligation under generally accepted accounting principles, and,
for the purposes of the indenture, the amount of such obligation at any date
shall be the capitalized amount thereof at the applicable date, determined in
accordance with such principles.
"Consolidated Net Tangible Assets" means at any date, the total assets
appearing on the most recently prepared consolidated balance sheet of us and
the Subsidiaries as of the end of our fiscal quarter, prepared in accordance
with generally accepted accounting principles, less all current liabilities as
shown on the balance sheet and Intangible Assets.
"Funded Debt" means any indebtedness maturing by its terms more than one
year from its date of issue, including any indebtedness renewable or extendable
at the option of the obligor to a date later than one year from its original
date of issue.
"Indebtedness" means
(a) any liability of any Person:
(1) for borrowed money, or under any reimbursement obligation relating
to a letter of credit; or
(2) evidenced by a bond, note, debenture or similar instrument,
including a purchase money obligation, given in connection with the
acquisition of any businesses, properties or assets of any kind or with
services incurred in connection with capital expenditures, other than a
trade payable or a current liability arising in the ordinary course of
business; or
(3) for the payment of money relating to a Capitalized Lease
Obligation; or
(4) for Interest Rate Protection Obligations;
(b) any liability of others described in the preceding clause (a) that the
Person has guaranteed or that is otherwise its legal liability; and
(c) any amendment, supplement, modification, deferral, renewal, extension
or refunding of any liability of the types referred to in clauses (a) and (b)
above.
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"Intangible Assets" means at any date the value (net of any applicable
reserves), as shown on or reflected in our most recently prepared consolidated
balance sheet, prepared in accordance with generally accepted accounting
principles, of:
(1) all trade names, trademarks, licenses, patents, copyrights and
goodwill;
(2) organizational and development costs;
(3) deferred charges (other than prepaid items such as insurance,
taxes, interest, commissions, rents and similar items and tangible assets
being amortized); and
(4) unamortized debt discount and expense, less unamortized premium.
"Interest Rate Protection Obligations" of any Person means the obligations
of that Person pursuant to any arrangement with any other Person whereby,
directly or indirectly, that Person is entitled to receive from time to time
periodic payments calculated by applying a fixed rate of interest on a stated
notional amount in exchange for periodic payments made by such Person
calculated by applying a floating rate of interest on the same notional
amount.
"Liens" means any mortgage, lien, pledge, security interest, charge or
encumbrance.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof or any other entity.
"Principal Property" means any land, land improvements, buildings and
associated factory, distribution, laboratory and office equipment (excluding
any products marketed by us or any Subsidiary) constituting a distribution
facility, operating facility, manufacturing facility, development facility,
warehouse facility, service facility or office facility (including any portion
thereof), which facility
(a) is owned by or leased to us or any Restricted Subsidiary,
(b) is located within the United States and
(c) has an acquisition cost plus capitalized improvements in excess of
0.50% of Consolidated Net Tangible Assets as of the date of that
determination, other than:
(1) any facility, or portion thereof, which has been financed by
obligations issued by or on behalf of a State, a Territory or a possession
of the United States, or any political subdivision of any of the foregoing,
or the District of Columbia, the interest on which is excludable from gross
income of the holders thereof (other than a "substantial user" of the
related facility or a "related Person" as those terms are used in Section
103 of the Internal Revenue Code pursuant to the provisions of Section 103
of the Internal Revenue Code (or any similar provision hereafter enacted)
as in effect at the time of issuance of the obligations;
(2) any facility that the Board of Directors may by Board Resolution
declare is not of material importance to us and the Restricted Subsidiaries
taken as a whole; and
(3) any facility, or portion thereof, owned or leased jointly or in
common with one or more Persons other than us and any Subsidiary and in
which the interest of us and all Subsidiaries does not exceed 50%.
"Restricted Securities" means any shares of the capital stock or
Indebtedness of any Restricted Subsidiary.
"Restricted Subsidiary" means (a) any Subsidiary:
(1) which has substantially all its property within the United States
of America;
(2) which owns or is a lessee of any Principal Property; and
(3) in which the investment of us and all other Subsidiaries exceeds
0.50% of Consolidated Net Tangible Assets as of the date of the
determination; provided, however, that the term "Restricted Subsidiary"
shall not include:
(A) any Subsidiary (x) primarily engaged in the business of
purchasing, holding, collecting, servicing or otherwise dealing in and
with installment sales contracts, leases, trust receipts, mortgages,
commercial paper or other financing instruments, and any collateral or
agreements relating
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thereto, including in the business, individually or through
partnerships, of financing, whether through long- or short-term
borrowings, pledges, discounts or otherwise, the sales, leasing or other
operations of us and the Subsidiaries or any of them, or (y) engaged in
the business of financing the assets and operations of third parties,
and (z) in any case, not, except as incidental to such financing
business, engaged in owning, leasing or operating any property which,
but for this proviso, would qualify as Principal Property; or
(B) any Subsidiary acquired or organized after January 26, 1999, for
the purpose of acquiring the stock or business or assets of any Person
other than us or any Restricted Subsidiary, whether by merger,
consolidation, acquisition of stock or assets or similar transaction
analogous in purpose or effect, so long as such Subsidiary does not
acquire by merger, consolidation, acquisition of stock or assets or
similar transaction analogous in purpose or effect all or any
substantial part of the business or assets of us or any Restricted
Subsidiary; and
(b) any other Subsidiary that is hereafter designated by the Board of
Directors as a Restricted Subsidiary.
"Sale and Leaseback Transaction" means any arrangement with any Person
providing for the leasing by UPS or any Restricted Subsidiary of any Principal
Property (whether the Principal Property is now owned or hereafter acquired)
that has been or is to be sold or transferred by us or a Restricted Subsidiary
to any Person, other than
(a) temporary leases for a term, including renewals at the option of
the lessee, of not more than three years;
(b) leases between us and a Restricted Subsidiary or between Restricted
Subsidiaries; and
(c) leases of Principal Property executed by the time of, or within 180
days after the latest of, the acquisition, the completion of construction
or improvement (including any improvements on property that will result in
the property becoming Principal Property), or the commencement of
commercial operation of the Principal Property.
"Secured Indebtedness" means Indebtedness of us or a Restricted Subsidiary
that is secured by any Lien upon any Principal Property or Restricted
Securities, and Indebtedness of us or a Restricted Subsidiary in respect of any
conditional sale or other title retention agreement covering Principal Property
or Restricted Securities; but "Secured Indebtedness" shall not include any of
the following:
(1) Indebtedness of us and the Restricted Subsidiaries outstanding on
January 26, 1999, secured by then-existing Liens upon, or incurred in
connection with conditional sales agreements or other title retention
agreements with respect to Principal Property or Restricted Securities;
(2) Indebtedness that is secured by:
(A) purchase money Liens upon Principal Property acquired after
January 26, 1999 or
(B) Liens placed on Principal Property after January 26, 1999, during
construction or improvement thereof (including any improvements on
property which will result in the property becoming Principal Property)
or placed thereon within 180 days after the later of acquisition,
completion of construction or improvement or the commencement of
commercial operation of the Principal Property or improvement, or placed
on Restricted Securities acquired after January 26, 1999, or
(C) conditional sale agreements or other title retention agreements
with respect to any Principal Property or Restricted Securities acquired
after January 26, 1999, if (in each case referred to in this
subparagraph (2)) (x) the related Lien or agreement secures all or any
part of the Indebtedness incurred for the purpose of financing all or
any part of the purchase price or cost of construction of the Principal
Property or improvement or Restricted Securities and (y) the related
Lien or agreement does not extend to any Principal Property or
Restricted Securities other than the Principal Property so acquired or
the Principal Property, or portion thereof, on which the property so
constructed or any improvement is located; provided, however, that the
amount by which the aggregate principal amount
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of Indebtedness secured by any Lien or agreement exceeds the cost to us
or the Restricted Subsidiary of the related acquisition, construction
or improvement will be considered to be "Secured Indebtedness;"
(3) Indebtedness that is secured by Liens on Principal Property or
Restricted Securities, which Liens exist at the time of acquisition (by any
manner whatsoever) of the Principal Property or Restricted Securities by
UPS or a Restricted Subsidiary;
(4) Indebtedness of Restricted Subsidiaries owing to us or any other
Restricted Subsidiary and Indebtedness of us owing to any Restricted
Subsidiary;
(5) In the case of any corporation that becomes (by any manner
whatsoever) a Restricted Subsidiary after January 26, 1999, Indebtedness
that is secured by Liens upon, or conditional sale agreements or other
title retention agreements with respect to, its property that constitutes
Principal Property or Restricted Securities, which Liens exist at the time
the related corporation becomes a Restricted Subsidiary;
(6) Guarantees by us of Secured Indebtedness and Attributable Debt of
any Restricted Subsidiaries and guarantees by a Restricted Subsidiary of
Secured Indebtedness and Attributable Debt of us and any other Restricted
Subsidiaries;
(7) Indebtedness arising from any Sale and Leaseback Transaction;
(8) Indebtedness secured by Liens on property of us or a Restricted
Subsidiary in favor of the United States of America, any State, Territory
or possession thereof, or the District of Columbia, or any department,
agency or instrumentality or political subdivision of the United States of
America or any State, Territory or possession thereof, or the District of
Columbia, or in favor of any other country or any political subdivision
thereof, if the related Indebtedness was incurred for the purpose of
financing all or any part of the purchase price or the cost of construction
of the property subject to the Lien; provided, however, that the amount by
which the aggregate principal amount of Indebtedness secured by any Lien
exceeds the cost to UPS or the Restricted Subsidiary of the related
acquisition or construction will be considered to be "Secured
Indebtedness";
(9) Indebtedness secured by Liens on aircraft, airframes or aircraft
engines, aeronautic equipment or computers and electronic data processing
equipment; and
(10) The replacement, extension or renewal, or successive replacements,
extensions or renewals, of any Indebtedness, in whole or in part, excluded
from the definition of "Secured Indebtedness" by subparagraphs (1) through
(9) above; provided, however, that no Lien securing, or conditional sale or
title retention agreement with respect to, the Indebtedness will extend to
or cover any Principal Property or any Restricted Securities, other than
the property that secured the Indebtedness so replaced, extended or
renewed, plus improvements on or to any such Principal Property, provided
further, however, that to the extent that replacement, extension or renewal
increases the principal amount of Indebtedness secured by the Lien or is in
a principal amount in excess of the principal amount of Indebtedness
excluded from the definition of "Secured Indebtedness" by subparagraphs (1)
through (9) above, the amount of the increase or excess will be considered
to be "Secured Indebtedness."
In no event shall the foregoing provisions be interpreted to mean or their
operation to cause the same Indebtedness to be included more than once in the
calculation of "Secured Indebtedness" as that term is used in the indenture.
"Subsidiary" means any corporation of which, at the time of determination,
we and/or one or more Subsidiaries owns or controls directly or indirectly more
than 50% of the shares of voting stock.
"Wholly owned," when used with reference to a Subsidiary, means a Subsidiary
of which all of the outstanding capital stock is owned by us or by one or more
wholly owned Subsidiaries.
"Voting Stock," when used with reference to a Subsidiary, means stock of the
class or classes having general voting power under ordinary circumstances to
elect at least a majority of the board of directors,
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managers or trustees of the Subsidiary provided that, for the purposes of the
indenture, stock that carries only the right to vote conditionally on the
happening of an event shall not be considered voting stock whether or not such
event shall have happened.
Events of Default
The indenture defines an Event of Default with respect to any series of
Securities as being any one of the following events:
(a) default in the payment of any interest on the Securities of that
series when due, and the continuance of that default for a period of 30
days;
(b) default in the delivery or payment of the Maturity Consideration on
the Securities of that series at the date on which the principal becomes
due and payable as provided in the Security or in the indenture, whether at
the Stated Maturity or by declaration of acceleration, call for redemption
or otherwise;
(c) default in the deposit of any sinking fund payment, when and as due
on the Securities of that series;
(d) default in the performance or breach of any of our covenants or
warranties under the indenture (other than a covenant or warranty a default
in performance or breach of which is specifically dealt with in the
indenture) and the continuance of the default or breach for a period of 60
days after written notice as provided in the indenture; or
(e) certain events involving our bankruptcy, insolvency or
reorganization. (Section 5.01)
The indenture provides that if an Event of Default specified therein shall
occur and be continuing with respect to the Securities of any series, other
than an Event of Default involving bankruptcy, insolvency or reorganization,
either the trustee or the Holders of 25% in principal amount, or if the
Securities are not payable at Maturity for a fixed principal amount, 25% of the
aggregate issue price, of the Outstanding Securities of that series, each
series acting as a separate class, may declare the principal of the Securities
of that series, or an other amount or property, as may be provided for in the
Securities of that series, to be due and payable. If an Event of Default
described in clause (e) above with respect to the Securities of any series at
the time outstanding shall occur, the principal amount of all the Securities of
that series, or such other amount or property, as may be provided for in the
Securities of that series, (or, in the case of any Original Issue Discount
Security, such specified amount) will automatically, and without any action by
the trustee or any Holder, become immediately due and payable. (Section 5.02).
The Holders of not less than a majority in aggregate principal amount of the
Securities of a series may, on behalf of all Holders of Securities of the
series, waive any past default under the indenture with respect to the
Securities of the series, except a default in the delivery or payment of the
Maturity Consideration or interest on any Security of the series, and default
in respect of a covenant or provision of the indenture that cannot be modified
or amended without the consent of the Holder of each Outstanding Security of
the affected series. (Section 5.13)
Subject to the provisions of the indenture relating to the duties of the
trustee in case an Event of Default shall occur and be continuing, the trustee
will be under no obligation to exercise any of its rights or powers under the
indenture at the request or discretion of any of the Holders, unless the
Holders shall have offered to the trustee reasonable indemnity. (Section 6.03)
Subject to such provisions for the indemnification of the trustee, the Holders
of a majority in aggregate principal amount of the Outstanding Securities of
any series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the trustee, or
exercising any trust or power conferred on the trustee, with respect to the
Securities of that series. (Section 5.12)
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No Holder of a Security of any series will have any right to institute any
proceeding with respect to the indenture, or for the appointment of a receiver
or a trustee, or for any other remedy under the indenture, unless
(1) the Holder has previously given to the trustee written notice of a
continuing Event of Default with respect to the Securities of that series,
(2) the Holders of at least 25% in aggregate principal amount, or if
the Securities are not payable at Maturity for a fixed principal amount,
the aggregate issue price of the Outstanding Securities of that series,
have made written request to the trustee to institute a proceeding as
trustee,
(3) the Holder or Holders have offered to the trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request, and
(4) the trustee has failed to institute such proceeding, and has not
received from the Holders of a majority in aggregate principal amount or,
if the Securities are not payable at Maturity for a fixed principal amount,
the aggregate issue price of the Outstanding Securities of that series, a
direction inconsistent with the request, within 60 days after the notice,
request and offer. (Section 5.07) However, these limitations do not apply
to a suit instituted by a Holder of a Security for the enforcement of
delivery or payment of the Maturity Consideration relating to, or interest
on, the Security on or after the applicable due date specified in the
Security. (Section 5.08)
We will be required to furnish to the trustee annually a statement by
certain of our officers as to whether or not we, to our knowledge, are in
default in the performance or observance of any of the terms, provisions and
conditions of the indenture and, if so, specifying all known defaults. (Section
10.04)
Defeasance and Covenant Defeasance
If and to the extent indicated in the applicable prospectus supplement, we
may elect, at our option at any time, to have the provisions of Section 13.02
of the indenture, relating to defeasance and discharge of indebtedness, or
Section 13.03 of the indenture, relating to defeasance of certain restrictive
covenants in the indenture, applied to the Securities of any series, or to any
specified part of a series. (Section 13.01)
Defeasance and Discharge
The indenture provides that, upon our exercise of our option to have Section
13.02 of the indenture apply to any Securities, UPS will be deemed to have been
discharged from all obligations with respect to the Securities (except for
certain obligations to exchange or register the transfer of Securities, to
replace stolen, lost or mutilated Securities, to maintain paying agencies and
to hold moneys for payment in trust) upon the deposit in trust for the benefit
of the Holders of the Securities of money or U.S. Government Obligations, or
both, which, through the payment of principal and interest in respect thereof
in accordance with their terms, will provide money in an amount sufficient to
pay the principal of and any premium and interest on the Securities on the
respective Stated Maturities in accordance with the terms of the indenture and
the Securities. Defeasance or discharge may occur only if, among other things,
we have delivered to the trustee an Opinion of Counsel to the effect that, we
have received from, or there has been published by, the United States Internal
Revenue Service a ruling, or there has been a change in tax law, in any case to
the effect that Holders of the Securities will not recognize gain or loss for
federal income tax purposes as a result of the deposit, defeasance and
discharge and will be subject to federal income tax on the same amount, in the
same manner and at the same times as would have been the case if the deposit,
defeasance and discharge were not to occur. (Sections 13.02 and 13.04)
Defeasance of Covenants
The indenture provides that, upon our exercise of our option to have Section
13.03 of the indenture apply to any Securities, we may omit to comply with
certain restrictive covenants, including those described under "Covenants," any
that may be described in the applicable prospectus supplement, and the
occurrence of certain Events of Default, which are described above in clause
(d) (with respect to restrictive covenants) and
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under "Events of Default" and any that may be described in the applicable
prospectus supplement, will be deemed not to be or result in an Event of
Default, in each case with respect to the Securities. In order to exercise its
option, we will be required to deposit, in trust for the benefit of the Holders
of the Securities, money or U.S. Government Obligations, or both, which,
through the payment of principal and interest in respect thereof in accordance
with their terms, will provide money in an amount sufficient to pay the
principal of and any premium and interest on the Securities on the respective
Stated Maturities in accordance with the terms of the indenture and the
Securities. We will also be required, among other things, to deliver to the
trustee an Opinion of Counsel to the effect that Holders of the Securities will
not recognize gain or loss for federal income tax purposes as a result of
deposit and defeasance of certain obligations and will be subject to federal
income tax on the same amount, in the same manner and at the same times as
would have been the case if the deposit and defeasance were not to occur. In
the event we exercised this option with respect to any Securities and the
Securities were declared due and payable because of the occurrence of any Event
of Default, the amount of money and U.S. Government Obligations so deposited in
trust would be sufficient to pay amounts due on the Securities at the time of
their respective Stated Maturities but may not be sufficient to pay amounts due
on the Securities upon any acceleration resulting from the Event of Default. In
that case, we would remain liable for the payments. (Sections 13.03 and 13.04)
Modification of the Indenture
The indenture provides that we and the trustee may, without the consent of
any Holders of Securities, enter into supplemental indentures for the purposes,
among other things, of adding to our covenants, adding additional Events of
Default, establishing the form or terms of Securities or curing ambiguities or
inconsistencies in the indenture or making other provisions, provided that any
action to cure ambiguities or inconsistencies shall not adversely affect the
interests of the Holders of any Outstanding series of Securities in any
material respect. (Section 9.01)
Modifications and amendments of the indenture may be made by us and the
trustee with the consent of the Holders of a majority in aggregate principal
amount or, if the Securities are not payable at Maturity for a fixed principal
amount, the aggregate issue price, of the Outstanding Securities of each series
affected thereby, except that no modification or amendment may, without the
consent of the Holder of each Outstanding Security affected thereby,
(a) change the Stated Maturity of the Maturity Consideration or any
installment of Maturity Consideration or interest on, any Security,
(b) reduce the principal amount of or reduce the amount or change the
type of Maturity Consideration or reduce the rate of interest on, or any
premium payable upon the redemption of, or the amount of Maturity
Consideration of an Original Issue Discount Security or any other Security
that would be due and deliverable or payable upon a declaration of
acceleration of the Maturity thereof upon the occurrence of an Event of
Default, of any Security,
(c) change the Place of Payment where, or the coin or currency in which,
any Maturity Consideration or interest on any Security are deliverable or
payable,
(d) impair the right to institute suit for the enforcement of any
payment on or with respect to any Security,
(e) reduce the percentage in principal amount or aggregate issue price,
as the case may be, of Securities of any series, the consent of whose
Holders is required for modification or amendment of the indenture or for
waiver of compliance with certain provisions of the indenture or for waiver
of certain defaults, or
18
<PAGE>
(f) modify the requirements contained in the indenture for consent to or
approval of certain matters except to increase any percentage for a consent
or approval or to provide that certain other provisions cannot be modified
or waived without the consent of the Holder of each Security affected
thereby. (Section 9.02)
A supplemental indenture that changes or eliminates any covenant or other
provision of the indenture which has been expressly included solely for the
benefit of one or more particular series of Securities, or that modifies the
rights of the holders of Securities of the series with respect to the covenant
or other provision, shall be deemed not to affect the rights under the
indenture of the Holders of Securities of any other series. (Section 9.02)
The Holders of a majority in aggregate principal amount of the Outstanding
Securities of a series may, on behalf of the Holders of all the Securities of
the series, waive compliance by us with certain restrictive provisions of the
indenture. (Section 10.08)
Notices
Notices to Holders of Securities will be given by mail to the addresses of
the Holders as they may appear in the Security Register. (Section 1.06)
Title
We the trustee and any agent of us or the trustee may treat the Person in
whose name a Security is registered as the absolute owner of a Security for the
purpose of making payment and for all other purposes. (Section 3.08)
Governing Law
The indenture and the Securities will be governed by, and construed in
accordance with, the law of the State of New York. (Section 1.12)
Regarding the Trustee
Citibank, N.A. is the trustee under the indenture. We have other customary
banking relationships with Citibank, N.A. in the ordinary course of business.
PLAN OF DISTRIBUTION
We may sell debt securities to one or more underwriters for public offering
and sale by them or may sell debt securities to investors directly or through
agents. Any underwriter or agent involved in the offer and sale of the debt
securities (the "offered debt securities") will be named in an applicable
prospectus supplement.
Underwriters may offer and sell the offered debt securities at a fixed price
or prices that may be changed, or from time to time at market prices prevailing
at the time of sale, at prices related to prevailing market prices or at
negotiated prices. We also may offer and sell the offered debt securities in
exchange for one or more of our outstanding issues of debt securities. We also
may, from time to time, authorize underwriters acting as our agents to offer
and sell the offered debt securities upon the terms and conditions as shall be
set forth in any prospectus supplement. In connection with the sale of offered
debt securities, underwriters may be deemed to have received compensation from
us in the form of underwriting discounts or commissions and may also receive
commissions from purchasers of offered debt securities for whom they may act as
agent. Underwriters may sell offered debt securities to or through dealers, and
dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions, which may be changed from
time to time, from the purchasers for whom they may act as agent.
19
<PAGE>
Any underwriting compensation paid by us to underwriters or agents in
connection with the offering of offered debt securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in an applicable prospectus supplement. Underwriters,
dealers and agents participating in the distribution of the offered debt
securities may be deemed to be underwriters, and any discounts and commissions
received by them and any profit realized by them on resale of the offered debt
securities may be deemed to be underwriting discounts and commissions, under
the Securities Act. Underwriters, dealers and agents may be entitled, under
agreements with us, to indemnification against and contribution toward certain
civil liabilities, including liabilities under the Securities Act, and to
reimbursement by us for certain expenses.
If so indicated in an applicable prospectus supplement, we will authorize
dealers acting as our agents to solicit offers by certain institutions to
purchase offered debt securities from us at the public offering price set
forth in the prospectus supplement pursuant to delayed delivery contracts
providing for payment and delivery on the date or dates stated in the
prospectus supplement. Each contract will be for an amount not less than, and
the aggregate principal amount of offered debt securities sold pursuant to
contracts shall be not less nor more than, the respective amounts stated in
the prospectus supplement. Institutions with whom contracts, when authorized,
may be made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions and other
institutions, but will in all cases be subject to our approval. Contracts will
not be subject to any conditions except
(1) the purchase by an institution of the offered debt securities
covered by its contracts shall not at the time of delivery be prohibited
under the laws of any jurisdiction in the United States to which the
institution is subject, and
(2) if the offered debt securities are being sold to underwriters, we
shall have sold to the underwriters the total principal amount of the
offered debt securities less the principal amount thereof covered by
contracts.
Agents and underwriters will have no responsibility in respect of the
delivery or performance of contracts.
All offered debt securities will be a new issue of securities with no
established trading market. Any underwriters to whom offered debt securities
are sold by us for public offering and sale may make a market in such offered
debt securities, but the underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of or the trading markets for any offered debt
securities.
Any underwriter may engage in over-allotment, stabilizing transactions,
short covering transactions and penalty bids in accordance with Regulation M
under the Exchange Act. Over-allotment involves sales in excess of the
offering size, which creates a short position. Stabilizing transactions permit
bids to purchase the underlying security so long as the stabilizing bids do
not exceed a specified maximum. Short covering transactions involve purchases
of the offered debt securities in the open market after the distribution is
completed to cover short positions. Penalty bids permit the underwriters to
reclaim a selling concession from a dealer when the offered debt securities
originally sold by the dealer are purchased in a covering transaction to cover
short positions. Those activities may cause the price of the offered debt
securities to be higher than it would otherwise be. If commenced, the
underwriters may discontinue those activities at any time.
Certain of the underwriters or agents and their associates may be customers
of, engage in transactions with and perform services for us in the ordinary
course of business.
20
<PAGE>
VALIDITY OF OFFERED DEBT SECURITIES
The validity of the debt securities will be passed upon for UPS by Hunton &
Williams, New York, New York. Certain legal matters in connection with the debt
securities will be passed upon for the underwriters by Brown & Wood LLP, New
York, New York.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference from United Parcel Service of America, Inc.'s Annual Report on Form
10-K for the year ended December 31, 1998 have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their report, 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.
21
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee................ $576,048
Printing and engraving fee......................................... 75,000
Accounting fees and expense........................................ 50,000
Legal fees and expenses............................................ 100,000
Rating agencies' fees.............................................. 60,000
Blue Sky fees and expenses......................................... 10,000
Trustee's fees and expenses........................................ 25,000
Miscellaneous...................................................... 28,952
--------
Total.......................................................... $925,000
========
</TABLE>
Except for the SEC registration fee, all expenses in this table are
estimated.
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law ("DGCL") generally
provides that all directors and officers (as well as other employees and
individuals) may be indemnified against expenses (including attorney's fees)
judgments, fines and amounts paid in settlement actually and reasonably
incurred 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) actually and reasonably incurred in connection with defense or settlement
of an action and the DGCL 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 DGCL also provides that the rights
conferred thereby are not exclusive of any other right which any person may be
entitled to under any bylaw, agreement, vote of shareowners or disinterested
directors or otherwise, and permits a corporation to advance expenses to or on
behalf of a person 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 bylaws provide that each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding by reason of the fact that he is or was a director or officer of UPS
(or is or was serving at the request of UPS as director, officer, employee or
agent of another entity), shall be indemnified and held harmless by UPS to the
fullest extent authorized by the DGCL, as in effect (or to the extent that
indemnification is broadened, as it may be amended), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith. Except with
respect to actions initiated by an officer or director against UPS to recover
the amount of an unpaid claim, UPS is required to indemnify an officer or
director in connection with an action, suit or proceeding initiated by such
person only if the action, suit or proceeding was authorized by the board of
directors of UPS. The bylaws further provide that an officer or director may
(thirty days after a written claim has been received by UPS) bring suit against
UPS to recover an unpaid claim and, if such suit is successful, the expense of
bringing such suit. While it is a defense to such suit that the claimant has
not met the applicable standards of conduct which make indemnification
permissible under the DGCL, neither the failure of the board of directors to
have made a determination that indemnification is proper, nor an actual
determination that the claimant has not met the applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. The bylaws also provide that the
rights conferred thereby are contract rights, that they are not exclusive of
any other rights which an officer or director may have or hereafter acquire
under any statute, any other provision of the certificate of incorporation,
bylaw, agreement, vote of
II-1
<PAGE>
shareowners or disinterested directors or otherwise, and that they include the
right to be paid by UPS the expenses incurred in defending any specified
action, suit or proceeding in advance of its final disposition provided that,
if the DGCL so requires, such payment shall only be made upon delivery to UPS
by the officer or director of an undertaking to repay all amounts so advanced
if it shall ultimately be determined that such director or officer is not
entitled to be indemnified under the bylaws or otherwise.
Item 16. Exhibits
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<C> <S>
1(a) --Form of Underwriting Agreement
1(b)* --Form of Amendment to the Underwriting Agreement
4.1 --Form of Indenture
4.2* --Form of Supplemental Indenture
5.1* --Opinion of Hunton & Williams
12.1* --Calculation of Ratio of Earnings to Fixed Charges
23.3* --Consent of Deloitte & Touche LLP
23.4* --Consent of Hunton & Williams (included in Exhibit 5.1)
24.1* --Power of Attorney (included on the first signature page hereto)
25.1 --Statement of Eligibility of Trustee on Form T-1
</TABLE>
- - --------
* Filed herewith
Item 17. Undertakings.
(a) UPS 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
securities offered would not exceed that which was registered)
and any deviation from the low or high and 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 the Company 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.
II-2
<PAGE>
(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) UPS 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.
(h) 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.
(i) 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Atlanta, Georgia on this 15th day of
March, 2000.
UNITED PARCEL SERVICE, INC.
By: /s/ James P. Kelly
___________________________________
James P. Kelly
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints ROBERT J. CLANIN 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 of 1933, this Post-
Effective Amendment has been signed below by the following persons in the
capacities indicated as of the 15th day of March, 2000.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ William H. Brown, III Director
_____________________________________________
William H. Brown, III
/s/ Robert J. Clanin Senior Vice President, Chief Financial
_____________________________________________ Officer, Treasurer and Director
Robert J. Clanin (Principal Financial and Accounting
Officer)
/s/ Michael L. Eskew Executive Vice President and Director
_____________________________________________
Michael L. Eskew
/s/ James P. Kelly Chairman of the Board, Chief Executive
_____________________________________________ Officer and Director (Principal
James P. Kelly Executive Officer)
/s/ Ann M. Livermore Director
_____________________________________________
Ann M. Livermore
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Gary E. MacDougal Director
_____________________________________________
Gary E. MacDougal
/s/ Joseph R. Moderow Senior Vice President, Secretary and
_____________________________________________ Director
Joseph R. Moderow
/s/ Kent C. Nelson Director
_____________________________________________
Kent C. Nelson
/s/ Victor A. Pelson Director
_____________________________________________
Victor A. Pelson
/s/ John W. Rogers Director
_____________________________________________
John W. Rogers
/s/ Charles L. Schaffer Senior Vice President, Chief Operating
_____________________________________________ Officer and Director
Charles L. Schaffer
/s/ Lea N. Soupata Senior Vice President and Director
_____________________________________________
Lea N. Soupata
/s/ Robert M. Teeter Director
_____________________________________________
Robert M. Teeter
/s/ Thomas H. Weidemeyer Senior Vice President and Director
_____________________________________________
Thomas H. Weidemeyer
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
1(a) --Form of Underwriting Agreement
1(b)* --Form of Amendment to the Underwriting Agreement
4.1 --Form of Indenture
4.2* --Form of Supplemental Indenture
5.1* --Opinion of Hunton & Williams
12.1* --Calculation of Ratio of Earnings to Fixed Charges
23.3* --Consent of Deloitte & Touche LLP
23.4* --Consent of Hunton & Williams (included in Exhibit 5.1)
24.1* --Power of Attorney (included on the first signature page hereto)
25.1 --Statement of Eligibility of Trustee on Form T-1
</TABLE>
- - --------
* Filed herewith
<PAGE>
EXHIBIT 1
FORM OF
AMENDMENT NO. 1
TO
UNDERWRITING AGREEMENT
This Amendment No. 1 to that certain form of Underwriting Agreement (the
"Underwriting Agreement") of United Parcel Service of America, Inc. ("UPS of
America") in connection with its shelf registration of debt securities ("Shelf")
is entered into this ___ day of March, 2000. This Amendment is hereby
incorporated into and made a part of the Underwriting Agreement.
WHEREAS, UPS of America filed a Registration Statement on Form S-3 with the
Securities and Exchange Commission (the "SEC") on July 18, 1996 (Registration
No. 333-08369), which was amended by the pre-effective amendment No. 1 filed on
January 26, 1999 (together, the "Registration Statement");
WHEREAS, UPS of America became a wholly owned subsidiary of UPS on November
15, 1999;
WHEREAS, pursuant to Rule 414, under the Securities Act of 1933 (the
"Act"), UPS and UPS of America have filed a post-effective amendment to the
Registration Statement whereby UPS expressly adopted the Registration Statement
as its own registration statement for all purposes of the Act and the Securities
Exchange Act of 1934;
WHEREAS, UPS has also executed and delivered to the Trustee a First
Supplemental Indenture dated as of March , 2000, by which UPS succeeded to, and
was substituted for, UPS of America as the "Company" under and for all purposes
of the Indenture;
WHEREAS, in connection with the adoption of the Registration Statement, UPS
desires to expressly adopt and assume, in all respects, the Underwriting
Agreement included as Exhibit 1 to the Registration Statement.
In consideration of the mutual benefits and agreements as set forth herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Amendment hereby agree as follows:
1. Assumption of Underwriting Agreement by UPS. The form of Underwriting
-------------------------------------------
Agreement included as Exhibit 1 to the Registration Statement is therefore
amended to substitute UPS for UPS of America as the "Company" under and for all
purposes of the Underwriting Agreement.
2. Ratification and Confirmation. Except as specifically modified in this
-----------------------------
Amendment, all other terms and conditions set forth in the Underwriting
Agreement shall remain in full force and effect without change, and the
Underwriting Agreement, as modified by this Amendment, is hereby ratified and
affirmed by the parties.
[Signatures on Following Page]
1
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Amendment to be signed in
their corporate names by their respective authorized officers as of the date
first written above.
United Parcel Service, Inc.
By: __________________________________
Name: ________________________________
Title: _______________________________
United Parcel Service of America, Inc.
By: __________________________________
Name: ________________________________
Title: _______________________________
2
<PAGE>
- - --------------------------------------------------------------------------------
Exhibit 4.2
FORM OF
UNITED PARCEL SERVICE OF AMERICA, INC.,
UNITED PARCEL SERVICE, INC.
and
CITIBANK, N.A.
as Trustee
___________________________________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of March __, 2000
Amending the
INDENTURE
Dated as of January 26, 1999
___________________________________________
SENIOR DEBT SECURITIES
- - --------------------------------------------------------------------------------
<PAGE>
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of March __, 2000 (herein
called the "Supplement"), is by and among United Parcel Service of America,
Inc., a Delaware corporation (the "Issuer"), United Parcel Service, Inc., a
Delaware corporation ("UPS"), and Citibank, N.A. a national banking association,
as Trustee (the "Trustee").
RECITALS
--------
WHEREAS, the Issuer and the Trustee executed and delivered the Indenture,
dated as of January 26, 1999 (the "Indenture"), providing for the issuance
thereunder by the Issuer and the authentication and delivery by the Trustee, of
the Issuer's unsecured Senior Debt Securities in one or more series;
WHEREAS, in connection with the initial public offering by UPS in 1999, UPS
and the Issuer completed a corporate reorganization whereby Issuer became a
wholly owned direct subsidiary of UPS (the "Merger");
WHEREAS, UPS has adopted and assumed the Form S-3 Registration Statement
filed by Issuer with the Securities and Exchange Commission (the "SEC") on July
18, 1996 (Registration No. 333-08369) and amended by pre-effective amendment No.
1 filed on January 26, 1999 and post-effective amendment No. 1 filed on March
___, 2000, the result of which was to cause UPS to become the registrant under
such Registration Statement and the registered debt shelf program (the "Shelf
Program") established therein;
WHEREAS, UPS has assumed, where necessary, the documents and other
agreements relating to the Shelf Program;
WHEREAS, pursuant to the provisions of Section 9.01 of the Indenture, UPS
desires by this Supplement to adopt and assume the covenants of the Issuer
contained in the Indenture;
WHEREAS, Section 9.01 of the Indenture provides for the execution and
delivery by the Issuer and, subject to the provisions of Section 9.03 of the
Indenture, by the Trustee, of one or more supplemental indentures, without the
consent of the Holders of the Securities, for the purposes specified therein;
and
WHEREAS, all things necessary to make this Supplement, when executed and
delivered by the Trustee, the valid agreement of the Issuer and UPS in
accordance with its terms have been done.
NOW THEREFORE, for and in consideration of mutual benefits and agreements
between the parties hereto, UPS, the Issuer and the Trustee mutually covenant
and agree for the benefit of the Holders as follows:
<PAGE>
1. Definitions. Except as otherwise expressly provided herein, all
-----------
capitalized words and terms used herein shall have the respective meanings
ascribed thereto in Article One of the Indenture.
2. Successor Substitution. UPS hereby acknowledges and agrees that it has
----------------------
succeeded the Issuer as the Issuer under the Indenture, and does hereby assume
and agree to perform, from and after the effective date of the Supplement, all
of the covenants and obligations of the Issuer under the Indenture and does
otherwise agree to be bound by and subject to the terms and provisions of the
Indenture in each and every respect as if it had been initially named as the
Issuer therein. Without in any way limiting the generality of the foregoing, UPS
hereby agrees to be liable for the due and punctual payment of principal of (and
premium, if any) and interest on all of the Securities issued under the
Indenture after the date of this Supplement and to perform all the Issuer's
covenants and obligations under the Indenture.
3. Representations of UPS. UPS hereby represents and warrants to the
----------------------
Trustee that as of the date hereof;
(a) UPS is a corporation validly existing and in good standing under the
laws of the State of Delaware; and
(b) no Default or Event of Default will result or has resulted from the
execution and delivery of this Supplement.
4. Effectiveness. This Supplement shall take effect on the date hereof,
-------------
in accordance with the provisions of Article Nine of the Indenture. Subject to
the foregoing, the provisions of this Supplement shall be deemed to be, and
shall be construed as part of, the Indenture to the same extent as if set forth
fully therein. All references to the Indenture in the Indenture or in any other
agreement, document or instrument delivered in connection therewith or pursuant
thereto shall be deemed to refer to the Indenture as amended by this Supplement.
5. Construction with Indentures. All of the covenants, agreements and
----------------------------
provisions of this Supplement shall be deemed to be and construed as part of the
Indenture and vice versa to the same extent as if fully set forth verbatim
therein and herein, and shall be fully enforceable in the manner provided in the
Indenture. Except as provided in this Supplement, the Indenture shall remain in
full force and effect and the terms and conditions thereof are hereby confirmed.
6. Conflict with Trust Indenture Act. If any provision hereof limits,
---------------------------------
qualifies or conflicts with a provision of the Trust Indenture Act that is
required under such Act to be part of and govern the Indenture or this
Supplement, the latter provision shall control. If any provision hereof
modifies or excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the latter provision shall be deemed to apply to this
Supplement as so modified or to be excluded, as the case may be.
7. General. (a) the Section headings herein are for convenience only and
-------
shall not affect the construction hereof; (b) in case any provision in this
Supplement shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in
2
<PAGE>
any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law; (c)
nothing in this Supplement or the Indenture or in the Securities, express or
implied, shall give to any Person other than the parties hereto and thereto and
their successors hereunder and thereunder and the Holders of Securities, any
benefit or any legal or equitable right, remedy or claim under this Supplement
or the Indenture. Neither this Supplement nor the Indenture may be used to
interpret another indenture, loan agreement or debt agreement of the Issuer, UPS
or any of their respective Subsidiaries. No such other indenture or loan or debt
agreement may be utilized to interpret this Supplement or the Indenture; (d)
this Supplement shall be governed by and construed in accordance with the laws
of the State of New York, and (e) all parties may sign any number of copies or
counterparts of this Supplement. Each signed copy or counterpart shall be an
original, but all of them together shall represent the same agreement.
[Signatures on Following Page]
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to be
duly executed, all as of the day and year first above written.
UNITED PARCEL SERVICE OF AMERICA, INC.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
UNITED PARCEL SERVICE, INC.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
CITIBANK, N.A.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
<PAGE>
EXHIBIT 5.1
[Hunton & Williams Letterhead]
March 15, 2000
United Parcel Service, Inc.
55 Glenlake Parkway, NE
Atlanta, GA 30328
United Parcel Service, Inc.
Ladies and Gentlemen:
We have acted as counsel to United Parcel Service, Inc., a Delaware
corporation (the "Company") in connection with the preparation of Post-Effective
Amendment No. 1 (the "Amendment") to the Registration Statement on Form S-3
(Registration No. 333-08369) (as amended, the "Registration Statement"), filed
by the Company with the Securities and Exchange Commission under the Securities
Act of 1933, as amended (the "Act"), with respect to the adoption of the
Registration Statement by the Company pursuant to Rule 414 under the Act, as
successor issuer of United Parcel Service of America, Inc., a Delaware
corporation ("UPS of America"). Capitalized terms not otherwise defined herein
shall have the meaning ascribed thereto in the Indenture (as defined herein).
In connection with the foregoing, we have examined the following documents:
(i) the Registration Statement;
(ii) the Indenture, dated January 26, 1999 (the "Indenture"), by and
between UPS of America as issuer and Citibank, N.A., a national banking
association, as trustee (the "Trustee"), as supplemented by the
Supplemental Indenture (the "Supplemental Indenture") to be entered into by
and among the Company, the Trustee and UPS of America;
(iii) the form of Underwriting Agreement, as amended by Amendment
No. 1 to the Underwriting Agreement;
(iv) the Certificate of Incorporation and Bylaws of the Company, and
resolutions of the Executive Committee of the Company's Board of Directors;
and
(v) the originals (or copies identified to our satisfaction) of such
documents and records of the Company, together with certificates of public
officials and officers of the Company, and such other documents,
certificates, records and papers as we have deemed necessary for purposes
of the opinions set forth in this letter.
<PAGE>
United Parcel Service, Inc.
March 15, 2000
Page 2
For purposes of the opinions expressed below, we have assumed (i) the
authenticity of all documents submitted to us as originals, (ii) the conformity
to originals of all documents submitted to us as certified or photostatic copies
and the authenticity of the originals, and (iii) the genuineness of all
signatures (other than the signatures of current officers or directors of the
Company) not witnessed by us.
We are members of the Bar of the State of New York, and we do not express
an opinion on any laws other than those of such state. We do not purport to
cover herein and do not express an opinion with respect to the application of
the securities laws of the various states to issuance of the Debt Securities.
Based upon the foregoing and such other information and documents as we
have considered necessary for the purposes hereof, we are of the opinion that:
1. The Company has been duly incorporated and is a validly existing
corporation under the laws of the State of Delaware.
2. The Indenture and Supplemental Indenture each has been duly authorized
and assuming due authorization, execution and delivery thereof by the Company
and the Trustee, each will constitute a valid and legally binding instrument of
the Company enforceable against the Company in accordance with its terms. The
Debt Securities have been duly authorized and, when the final terms thereof have
been duly approved by all necessary corporate action and when duly executed by
the Company and authenticated by the Trustee in accordance with the Indenture
and Supplemental Indenture and delivered to and paid for by the purchasers
thereof, will be legally issued and valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture and Supplemental Indenture.
The opinions set forth above are subject to the qualifications that (i)
enforcement of the Company's obligations under the Indenture, Supplemental
Indenture and Debt Securities may be subject to (a) the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting creditors' rights
generally, and (b) general equity principles and any implied covenant of good
faith and fair dealing (whether considered in a proceeding in law or in equity),
and (ii) the remedy of specific performance and injunctive and other relief may
be subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
<PAGE>
United Parcel Service, Inc.
March 15, 2000
Page 3
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Amendment. We also consent to the reference to our firm under the heading
"Validity of Offered Debt Securities" in the Amendment.
Very truly yours,
/s/ Hunton & Williams
----------------------
Hunton & Williams
<PAGE>
EXHIBIT 12.1
United Parcel Service
---------------------
Statement Setting Forth the Computation of
------------------------------------------
the Ratio of Earnings to Fixed Charges
--------------------------------------
(Dollars in millions)
-------------------
<TABLE>
<CAPTION>
Nine Months
Ended
Year Ended December 31, September 30,
--------------------------------------------- --------------------
1994 1995 1996 1997 1998 1998 1999
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings available for fixed charges:
Income before income taxes and
cumulative effect of a change in
accounting principle $1,575 $1,708 $1,910 $1,553 $2,902 $2,106 $ 987
Fixed charges 188 251 259 385 366 272 263
Less capitalized interest (45) (49) (53) (43) (27) (21) (15)
--------------------------------------------- --------------------
Total $1,718 $1,910 $2,116 $1,895 $3,241 $2,357 $1,235
============================================= ====================
Fixed charges:
Interest expense $ 29 $ 77 $ 95 $ 252 $ 227 $ 169 $ 170
Capitalized interest 45 49 53 43 27 21 15
Interest component of rentals
charged to income 114 125 111 90 112 82 78
--------------------------------------------- --------------------
Total $ 188 $ 251 $ 259 $ 385 $ 366 $ 272 $ 263
============================================= ====================
Ratio of earnings to fixed charges 9.1 7.6 8.2 4.9 8.9 8.7 4.7
============================================= ====================
</TABLE>
<PAGE>
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective Amendment
No. 1 to Registration Statement No. 333-08369 of United Parcel Service, Inc. on
Form S-3 of our report dated February 8, 1999, appearing in the Annual Report on
Form 10-K of United Parcel Service of America, Inc. for the year ended December
31, 1998, and to the reference to us under the heading "Experts" in the
Prospectus, which is part of such Registration Statement.
/s/ Deloitte & Touche LLP
- - -------------------------
Deloitte & Touche LLP
Atlanta, Georgia
March 14, 2000
