AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 19, 2002
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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UNITED PARCEL SERVICE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 58-2480149
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
55 GLENLAKE PARKWAY, N.E. 30328
ATLANTA, GEORGIA (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
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FIRST INTERNATIONAL BANCORP, INC. 401(K) PLAN
(FULL TITLE OF THE PLAN)
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JOSEPH R. MODEROW
UNITED PARCEL SERVICE, INC.
55 GLENLAKE PARKWAY, N.E.
ATLANTA, GEORGIA 30328
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(404) 828-6000
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES TO:
JEFFREY M. STEIN, ESQ.
KING & SPALDING
191 PEACHTREE STREET
ATLANTA, GEORGIA 30303
(404) 572-4600
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CALCULATION OF REGISTRATION FEE
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Title Of Each Amount To Be Proposed Maximum Proposed Maximum Amount Of
Class Of Securities To Be Registered (1) Offering Price Per Aggregate Registration
Registered Share (2) Offering Price Fee
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Class B Common Stock, $.01 par
value per share (3)............... 20,000 $ 62.07 $ 1,241,400 $ 115
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(1) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, the
number of shares being registered shall include an indeterminate number
of additional shares of United Parcel Service, Inc.'s class B common
stock
that may become issuable as a result of any stock splits, stock
dividends, or other similar transactions in accordance with the
anti-dilution provisions of the plans listed above.
(2) Estimated pursuant to Rule 457(h) of the Securities Act of 1933, as
amended, solely for the purpose of calculating the registration fee, on
the basis of the average of the high and low selling prices per share
of United Parcel Service, Inc.'s common stock on June 14, 2002, as
reported on the New York Stock Exchange.
(3) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended, this registration statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the employee
benefit plan described herein.
2
INTRODUCTORY STATEMENT
On August 7, 2001, United Parcel Service, Inc., a Delaware corporation
("UPS"), completed its acquisition of First International Bancorp, Inc., a
Delaware corporation ("FIB"), contemplated by the Agreement and Plan of Merger
dated January 15, 2001 (the "Merger Agreement"), by and among UPS, Stag Merger
Company, Inc., a wholly owned subsidiary of UPS, and FIB. Upon consummation of
the acquisition, FIB became our wholly owned subsidiary.
As calculated in accordance with the Merger Agreement, upon
consummation of the merger, each share of FIB common stock, par value $.10 per
share, held by the First International Bancorp, Inc. 401(k) Plan was converted
into 0.1320 shares of UPS's class B common stock, par value $.01 per share, of
which 0.0173 shares have been deposited with First Union National Bank, as
escrow agent, in accordance with the Merger Agreement and pursuant to an Escrow
and Indemnity Agreement dated August 7, 2001. Each share of UPS class B common
stock held by the First International Bancorp, Inc. 401(k) Plan continues to be
subject to the same terms and conditions as were in effect immediately prior to
the acquisition.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I will be
sent or given to employees and/or directors of FIB as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended. In accordance with the
instructions of Part I of Form S-8, such documents will not be filed with the
SEC either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424 of the Securities Act. These
documents and the documents incorporated by reference pursuant to Item 3 of Part
II of this Registration Statement, taken together, constitute the prospectus as
required by Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the SEC are incorporated herein by
reference:
- UPS's Annual Report on Form 10-K for the year ended December
31, 2001;
- UPS's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2002;
- the First International Bancorp, Inc. 401(k) Plan's Annual
Report on Form 11-K for the year ended December 31, 2000; and
3
- the description of UPS's class B common stock, $.01 par value
per share, set forth in the registration statement on Form 8-A
filed on November 4, 1999 with the SEC pursuant to Section 12
of the Exchange Act, including any amendment or report filed
with the SEC for the purpose of updating this description.
In addition, any and all documents filed by UPS pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, subsequent to the date of this
Registration Statement and prior to the termination of the offering of the
shares of common stock offered hereby shall, to the extent required by law, be
deemed to be incorporated by reference into this Registration Statement and to
be a part hereof.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is deemed to
be incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. 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 attorneys' 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
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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
such 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. UPS's 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
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.
UPS's certificate of incorporation provides that a director of UPS
shall not be personally liable to UPS or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to UPS or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of the law, (iii) under Section 174 of the DGCL or (iv) for
any transaction from which the director derived an improper personal benefit.
Any repeal or modification of this provision shall be prospective only, and
shall not adversely affect any elimination or limitation of the personal
liability of a director of UPS existing at the time of such repeal or
modification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
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ITEM 8. EXHIBITS.
See Exhibit Index.
Undertaking Regarding Status of Favorable Determination Letter Covering
the Plan.
FIB received a favorable determination letter from the IRS concerning
the qualification of the First International Bancorp, Inc. 401(k) Plan. UPS will
submit the plan, as amended and restated, to the IRS in a timely manner with a
request for a favorable determination that the plan continues to qualify.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
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.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from the registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to 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.
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(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the SEC 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 the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant 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,
the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
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(d) SIGNATURES
Pursuant to the requirements of the Securities Act, the undersigned
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on this the 19 day of
June, 2002.
UNITED PARCEL SERVICE, INC.
/s/ Michael L. Eskew
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Michael L. Eskew
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints D. SCOTT DAVIS and JOSEPH R. MODEROW, and
each of them, as his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto and other documents in connection therewith, including
any and all post-effective amendments, and any related Rule 462(b) registration
statement and any amendment thereto, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or either of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
as of June 19, 2002:
Signature Title
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/s/ William H. Brown, III Director
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William H. Brown, III
/s/ D. Scott Davis Senior Vice President, Chief Financial Officer
-------------------------------- and Treasurer
D. Scott Davis (Principal Financial and Accounting Officer)
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/s/ Calvin Darden Senior Vice President and Director
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Calvin Darden
/s/ Michael L. Eskew Chairman of the Board, Chief Executive Officer
-------------------------------- and Director
Michael L. Eskew (Principal Executive Officer)
Director
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James P. Kelly
Director
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Ann M. Livermore
Director
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Gary E. MacDougal
/s/ Joseph R. Moderow Senior Vice President, Secretary and Director
--------------------------------
Joseph R. Moderow
Director
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Victor A. Pelson
/s/ Lea N. Soupata Senior Vice President and Director
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Lea N. Soupata
/s/ Robert M. Teeter Director
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Robert M. Teeter
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Director
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John W. Thompson
/s/ Thomas H. Weidemeyer Senior Vice President, Chief Operating
-------------------------------- Officer and Director
Thomas H. Weidemeyer
Pursuant to the requirements of the Securities Act, the First
International Bancorp, Inc. 401(k) Plan has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Hartford, State of Connecticut, on this the 19th day
of June, 2002.
FIRST INTERNATIONAL BANCORP, INC.
401(k) PLAN
By: FIRST INTERNATIONAL
BANCORP, INC.,
PLAN ADMINISTRATOR
By:/s/ Joseph R. Moderow
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Name: Joseph R. Moderow
Title: Secretary
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EXHIBIT INDEX
Exhibit
Number Exhibit Description
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3.1 Form of United Parcel Service, Inc.'s Restated Certificate of
Incorporation (incorporated by reference to Exhibit 3.1 of
Amendment No. 3 to United Parcel Service, Inc.'s Registration
Statement on Form S-4 (No. 333-83349), filed on September 21,
1999).
3.2 Form of the United Parcel Service, Inc.'s Bylaws (incorporated by
reference to Exhibit 3.2 of Amendment No. 1 to the United Parcel
Service, Inc.'s Registration Statement on Form S-4 (No.
333-83349), filed on September 1, 1999).
4.1 First International Bancorp, Inc. 401(k) Plan (incorporated by
reference to Exhibit 10.6 to First International Bancorp, Inc.'s
Annual Report on Form 10-K for the year ended December 31, 1999,
filed on March 30, 2000).
5.1 Opinion of King & Spalding as to the legality of the securities
being registered.
5.2 Undertaking Regarding Status of Favorable Determination Letter
Covering the Plan. FIB received a favorable determination letter
from the IRS concerning the qualification of the First
International Bancorp, Inc. 401(k) Plan. UPS will submit the plan,
as amended and restated, to the IRS in a timely manner with a
request for a favorable determination that the plan continues to
qualify.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of King & Spalding (included in Exhibit 5.1).
24 Power of Attorney (included on the signature pages of the
Registration Statement).