EXHIBIT 1.1
109,400,000 Shares
UNITED PARCEL SERVICE, INC.
CLASS B COMMON STOCK, $.01 PAR VALUE
UNDERWRITING AGREEMENT
November __, 1999
November __, 1999
Morgan Stanley & Co. Incorporated
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Credit Suisse First Boston Corporation
Salomon Smith Barney Inc.
Warburg Dillon Read LLC
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Morgan Stanley & Co. International Limited
Goldman Sachs International
Merrill Lynch International
Credit Suisse First Boston (Europe) Limited
Salomon Brothers International Limited
UBS AG, acting through its division Warburg
Dillon Read
c/o Morgan Stanley & Co. International Limited
25 Cabot Square
Canary Wharf
London E14 4QA
England
Dear Sirs and Mesdames:
United Parcel Service, Inc., a Delaware corporation (the "Company") and
currently a direct, wholly-owned subsidiary of United Parcel Service of America,
Inc., a Delaware corporation ("Old UPS"), proposes to issue and sell to the
several Underwriters (as defined below) 109,400,000 shares (the "Firm Shares")
of its Class B Common Stock, $.01 par value ("Class B Common Stock").
It is understood that, subject to the conditions hereinafter stated,
87,520,000 Firm Shares (the "U.S. Firm Shares") will be sold to the several U.S.
Underwriters named in Schedule I hereto (the "U.S. Underwriters") in connection
with the offering and sale of such U.S. Firm Shares in the United States and
Canada to United States and Canadian Persons (as such terms are
defined in the Agreement Between U.S. and International Underwriters of even
date herewith), and 21,880,000 Firm Shares (the "International Shares") will be
sold to the several International Underwriters named in Schedule II hereto (the
"International Underwriters") in connection with the offering and sale of such
International Shares outside the United States and Canada to persons other than
United States and Canadian Persons. Morgan Stanley & Co. Incorporated, Goldman,
Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Credit Suisse
First Boston Corporation, Salomon Smith Barney Inc. and Warburg Dillon Read LLC
shall act as representatives (the "U.S. Representatives") of the several U.S.
Underwriters, and Morgan Stanley & Co. International Limited, Goldman Sachs
International, Merrill Lynch International, Credit Suisse First Boston (Europe)
Limited, Salomon Brothers International Limited and UBS AG, acting through its
division Warburg Dillon Read, shall act as representatives (the "International
Representatives") of the several International Underwriters. The U.S.
Underwriters and the International Underwriters are hereinafter collectively
referred to as the "Underwriters".
The Company also proposes to issue and sell to the several U.S.
Underwriters not more than an additional 10,940,000 shares of its Class B Common
Stock (the "Additional Shares") if and to the extent that the U.S.
Representatives shall have determined to exercise, on behalf of the U.S.
Underwriters, the right to purchase such shares of common stock granted to the
U.S. Underwriters in Section 2 hereof. The Firm Shares and the Additional Shares
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are hereinafter collectively referred to as the "Shares." The shares of Class B
Common Stock, Class A-1 Common Stock, $.01 par value, Class A-2 Common Stock,
$.01 par value and Class A-3 Common Stock, $.01 par value to be outstanding
after giving effect to the sales contemplated hereby are hereinafter referred to
as the "Common Stock."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (File No. 333-83347) relating to the
Shares. The registration statement contains two prospectuses to be used in
connection with the offering and sale of the Shares: the U.S. prospectus, to be
used in connection with the offering and sale of Shares in the United States and
Canada to United States and Canadian Persons, and the international prospectus,
to be used in connection with the offering and sale of Shares outside the United
States and Canada to persons other than United States and Canadian Persons. The
international prospectus is identical to the U.S. prospectus except for the
outside front cover page. The registration statement as amended at the time it
becomes effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "Securities Act"), is hereinafter
referred to as the "Registration Statement"; the U.S. prospectus and the
international prospectus in
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the respective forms first used to confirm sales of Shares are hereinafter
collectively referred to as the "Prospectus." If the Company has filed an
abbreviated registration statement to register additional shares of Common Stock
pursuant to Rule 462(b) under the Securities Act (the "Rule 462 Registration
Statement"), then any reference herein to the term "Registration Statement"
shall be deemed to include such Rule 462 Registration Statement.
1. Representations and Warranties. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) The Registration Statement, when it became effective, did
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iii) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations
and warranties set forth in this paragraph do not apply to statements or
omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on Old UPS and the Company and their respective subsidiaries, taken
as a whole (the "UPS Enterprise").
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(d) Old UPS and each subsidiary of the Company or Old UPS that is a
"significant subsidiary" as defined in Rule 1-02(w) of Regulation S-X under
the Securities Act (the "Significant Subsidiaries"), including without
limitation United Parcel Service, Inc., a New York corporation ("UPS-New
York"), United Parcel Service, Inc., an Ohio corporation ("UPS-Ohio"),
United Parcel Service Co., a Delaware corporation ("UPSCo") and UPS
Worldwide Forwarding, Inc., a Delaware corporation ("WWF"), has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the UPS Enterprise; all of the issued
shares of capital stock of each Significant Subsidiary, and the issued
shares of capital stock of the Company as of the date of this Agreement,
have been duly and validly authorized and issued, are fully paid and non-
assessable and are owned directly or indirectly by the Company or Old UPS,
as applicable, free and clear of all liens, encumbrances, equitable claims
or other adverse claims ("Adverse Claims").
(e) On the Closing Date (as defined below) and immediately prior to
the sale of the Firm Shares to the Underwriters in accordance with Section
4 hereof: (i) UPS Merger Subsidiary, Inc., a Delaware corporation and
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currently a direct wholly-owned subsidiary of the Company ("Merger Sub"),
will have been merged with and into Old UPS, substantially as contemplated
by the Registration Statement, the Prospectus and the Company's
registration statement on Form S-4 (File No. 333-83349) and the proxy
statement/prospectus included therein, as mailed to shareholders of Old UPS
on or about September 23, 1999, with Old UPS being the surviving entity in
the merger (in such form, the "Merger"); and (ii) all of the issued shares
of capital stock of Old UPS will have been duly and validly authorized and
issued, will be fully paid and non-assessable and will be owned directly by
the Company, free and clear of all Adverse Claims.
(f) This Agreement has been duly authorized, executed and delivered
by the Company; and the letter agreement dated the date hereof between Old
UPS and the Underwriters (the "Interim Side Letter") has been duly
authorized, executed and delivered by Old UPS.
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(g) The authorized capital stock of the Company as of the Closing
Date will conform as to legal matters to the description thereof contained
in the Prospectus.
(h) Upon consummation of the Merger and prior to the sale of the
Shares to the Underwriters pursuant to Section 2 hereof: (i) the Company
will not have any shares of capital stock outstanding other than the shares
issued in the Merger; and (ii) all of the shares of Common Stock issued in
the Merger have been duly authorized and will have been validly issued,
fully paid and non-assessable.
(i) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares will
not be subject to any preemptive or similar rights.
(j) The execution and delivery by, as the case may be, each of the
Company and Old UPS of, and the performance by each of the Company and Old
UPS of their respective obligations under, this Agreement and the Interim
Side Letter will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or Old UPS or any
agreement or other instrument binding upon the Company, Old UPS or any
Significant Subsidiary that is material to the UPS Enterprise, or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company, Old UPS or any Significant Subsidiary, and
no consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
or Old UPS of their respective obligations under this Agreement and the
Interim Side Letter, except such as have been obtained under the federal
securities laws or as may be required by the securities or Blue Sky laws of
the various states or any applicable law, rule or regulation of any foreign
jurisdiction in connection with the offer and sale of the Shares.
(k) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the UPS Enterprise, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the date
of this Agreement), except as disclosed therein.
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(l) There are no legal or governmental proceedings pending or
threatened to which Old UPS, the Company or any Significant Subsidiary is a
party or to which any of the properties of Old UPS, the Company or any
Significant Subsidiary is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
(m) The preliminary prospectus dated October 20, 1999 filed as part
of the Registration Statement complied when so filed in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder.
(n) Neither the Company nor Old UPS is, and, after giving effect to
the offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, neither the Company nor Old UPS
will be, required to register as an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(o) Except as set forth in the Prospectus, each of Old UPS, the
Company and the Significant Subsidiaries (i) are in compliance with any and
all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on the UPS Enterprise.
(p) Except as set forth in the Prospectus, there are no costs or
liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities and
any potential liabilities to third parties) which would, singly or in the
aggregate, have a material adverse effect on the UPS Enterprise.
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(q) There are no contracts, agreements or understandings between the
Company or Old UPS and any person granting such person the right to require
the Company or Old UPS to file a registration statement under the
Securities Act with respect to any securities of the Company or Old UPS or
to require the Company or Old UPS to include such securities with the
Shares registered pursuant to the Registration Statement.
(r) Each of the Company and Old UPS has reviewed its operations and
that of its subsidiaries to evaluate the extent to which the business or
operations of the Company or Old UPS or any of their respective
subsidiaries will be affected by the Year 2000 Problem (that is, any
significant risk that computer hardware or software applications used by
the Company or Old UPS or any of their respective subsidiaries will not, in
the case of dates or time periods occurring after December 31, 1999,
function at least as effectively as in the case of dates or time periods
occurring prior to January 1, 2000); as a result of such review, (i) each
of the Company and Old UPS has no reason to believe, and does not believe,
that (A) there are any issues related to its preparedness to address the
Year 2000 Problem that are of a character required to be described or
referred to in the Registration Statement or Prospectus which have not been
accurately described in the Registration Statement or Prospectus or (B) the
Year 2000 Problem will have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business or operations of the
UPS Enterprise, or result in any material loss or interference with the
business or operations of the UPS Enterprise; and (ii) each of the Company
and Old UPS reasonably believes, after due inquiry, that the suppliers,
vendors, customers or other material third parties used or served by the
Company, Old UPS or such subsidiaries are addressing or will address the
Year 2000 Problem in a timely manner, except to the extent that a failure
to address the Year 2000 Problem by any supplier, vendor, customer or
material third party would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business or
operations of the UPS Enterprise.
(s) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) neither the
Company nor Old UPS nor any of their respective subsidiaries has incurred
any material liability or obligation, direct or contingent, nor entered
into any material transaction not in the ordinary course of business; (ii)
neither the Company nor Old UPS has purchased any of its outstanding
capital stock, nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock other than ordinary
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and customary dividends; and (iii) there has not been any material change
in the capital stock, short-term debt or long-term debt of either the
Company and its consolidated subsidiaries or Old UPS and its consolidated
subsidiaries, except in each case as described in or contemplated by the
Prospectus (exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement).
(t) The Company, Old UPS and their respective subsidiaries have good
and marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them which is material
to the business of the UPS Enterprise, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such property
and do not interfere with the use made and proposed to be made of such
property by the Company, Old UPS and their respective subsidiaries; and any
real property and buildings held under lease by the Company, Old UPS and
their respective subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and
buildings by the Company, Old UPS and their respective subsidiaries, in
each case except as described in or contemplated by the Prospectus.
(u) Except as set forth in the Prospectus, no material labor dispute
with the employees of the Company, Old UPS or any of their respective
subsidiaries exists or, to the knowledge of the Company or Old UPS, is
imminent.
(v) The Company, Old UPS and their respective subsidiaries possess
all certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
businesses in all material respects as described in the Prospectus, and
neither the Company, Old UPS nor any such subsidiary has received any
notice of proceedings relating to the revocation or modification of any
such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a material adverse change in the condition, financial or
otherwise, or in the earnings, business or operations of the UPS
Enterprise, except as described in or contemplated by the Prospectus.
(w) The Company, Old UPS and each of their respective subsidiaries
maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in
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accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences.
2. Agreements to Sell and Purchase. Upon the basis of the representations
and warranties herein contained, but subject to the conditions hereinafter
stated, the Company hereby agrees to sell to the several Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from the Company the
respective numbers of Firm Shares set forth in Schedules I and II hereto
opposite its name at U.S.$_____ a share ("Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the U.S. Underwriters the Additional Shares, and the U.S. Underwriters shall
have the right to purchase, from time to time, severally and not jointly, up to
10,940,000 Additional Shares at the Purchase Price. If the U.S. Representatives,
on behalf of the U.S. Underwriters, elect to exercise such option, the U.S.
Representatives shall so notify the Company in writing not later than 30 days
after the date of this Agreement, which notice shall specify the number of
Additional Shares to be purchased by the U.S. Underwriters and the date on which
such shares are to be purchased. Such date may be the same as the Closing Date
(as defined below) but not earlier than the Closing Date nor later than ten
business days after the date of such notice. Additional Shares may be purchased
as provided in Section 4 hereof solely for the purpose of covering over-
allotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each U.S. Underwriter agrees, severally
and not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the U.S. Representatives may
determine) that bears the same proportion to the total number of Additional
Shares to be purchased as the number of U.S. Firm Shares set forth in Schedule I
hereto opposite the name of such U.S. Underwriter bears to the total number of
U.S. Firm Shares.
The Company hereby agrees that, without the prior written consent of Morgan
Stanley & Co. Incorporated on behalf of the Underwriters, it will not, during
the period ending 180 days after the date of the Prospectus, (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase, lend
or otherwise transfer or dispose of, directly or indirectly, any shares of Class
B
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Common Stock or any securities convertible into or exercisable or exchangeable
for Class B Common Stock or (ii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of the Class B Common Stock, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of Class B Common Stock or
such other securities, in cash or otherwise. The foregoing sentence shall not
apply to (A) the Shares to be sold hereunder, (B) the shares of Common Stock
issuable in the Merger, (C) the issuance by the Company of shares of Common
Stock pursuant to the Company's Incentive Compensation Plan or (D) shares of
Common Stock issued as consideration for any acquisition (including, without
limitation, by way of merger or consolidation) by the Company or any of its
subsidiaries.
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public initially at
U.S.$_____ a share (the "Public Offering Price") and to certain dealers selected
by you at a price that represents a concession not in excess of U.S.$____ a
share under the Public Offering Price, and that any Underwriter may allow, and
such dealers may reallow, a concession, not in excess of U.S.$____ a share, to
any Underwriter or to certain other dealers.
4. Payment and Delivery. Payment for the Firm Shares shall be made to the
Company in Federal or other funds immediately available in New York City against
delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on November __, 1999, or at such
other time on the same or such other date, not later than November __, 1999, as
shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "Closing Date."
Payment for any Additional Shares shall be made to the Company in Federal
or other funds immediately available in New York City against delivery of such
Additional Shares for the respective accounts of the several Underwriters at
10:00 a.m., New York City time, on the date specified in the notice described in
Section 2 or at such other time on the same or on such other date, in any event
not later than December __, 1999, as shall be designated in writing by the U.S.
Representatives. The time and date of such payment are hereinafter referred to
as the "Option Closing Date."
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
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shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations of the
Company to sell the Shares to the Underwriters and the several obligations of
the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than 4:00 P.M. (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the following
further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded
any of the Company's or Old UPS's securities by any "nationally
recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the UPS Enterprise, from that set forth in the Prospectus (exclusive
of any amendments or supplements thereto subsequent to the date of
this Agreement), except as disclosed therein, that, in your judgment,
is material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate of the Company and Old UPS, dated the Closing Date and signed
by an executive officer of the Company and Old UPS, to the effect (i) set
forth in Section 5(a)(i) above, (ii) that no stop order suspending the
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effectiveness of the Registration Statement is in effect, and no
proceedings
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for such purpose are pending before, or to the best of such officer's
knowledge, threatened by, the Commission, (iii) that the representations
and warranties of the Company contained in this Agreement are true and
correct as of the Closing Date and (iv) that the Company and Old UPS have
complied with all of the agreements and satisfied all of the conditions on
their respective parts to be performed or satisfied hereunder and under the
Interim Side Letter on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Gibson, Dunn & Crutcher LLP, outside counsel for Old UPS and the
Company, dated the Closing Date, to the effect that:
(i) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus;
(ii) Merger Sub has been merged with and into Old UPS in
the Merger, with Old UPS being the surviving entity in the merger;
(iii) the authorized capital stock of the Company conforms
as to legal matters in all material respects to the description
thereof contained in the Prospectus;
(iv) except for the shares issued in the Merger, the
Company does not have any shares of capital stock outstanding; all of
the shares of Common Stock issued in the Merger have been duly
authorized and validly issued, and are fully paid and non-assessable;
(v) the Shares have been duly authorized and, when issued
and delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of
such Shares will not be subject to any preemptive or, to the knowledge
of such counsel, similar rights;
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(vi) this Agreement has been duly authorized, executed and
delivered by the Company; and the Interim Side Letter has been duly
authorized, executed and delivered by Old UPS;
(vii) the execution and delivery by, as the case may be,
each of the Company and Old UPS of, and the performance by each of the
Company and Old UPS of their respective obligations under, this
Agreement and the Interim Side Letter will not contravene any
provision of applicable law or the certificate of incorporation or
by-laws of the Company or Old UPS or, to the best of such counsel's
knowledge, any agreement or other instrument binding upon the Company,
Old UPS or any Significant Subsidiary that is material to the UPS
Enterprise, or, to the best of such counsel's knowledge, any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Company, Old UPS or any Significant Subsidiary,
and no consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the performance
by either the Company or Old UPS of their respective obligations under
this Agreement and the Interim Side Letter, except such as have been
obtained under the federal securities laws or as may be required by
the securities or Blue Sky laws of the various states or any
applicable law, rule or regulation of any foreign jurisdiction in
connection with the offer and sale of the Shares;
(viii) the statements (A) in the Prospectus under the
captions "Business--Government Regulation," "Business--Litigation,"
"Management and Stock Ownership Information--Incentive Compensation
Plan," "Management and Stock Ownership Information--Retirement Plans,"
"The Merger and the Tender Offer," "Description of Capital Stock,
Certificate of Incorporation and Bylaws" (but not with respect to the
final paragraph of the subsection entitled "--Dividends; Subdivision
and Combinations"), "Relationships with Overseas Partners Ltd.,"
"Shares Eligible for Future Sale," "Material Federal Income Tax
Consequences to Non-United States Shareowners" and "Underwriters" and
(B) in the Registration Statement in Items 14 and 15, in each case
insofar as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents
and proceedings and fairly summarize the matters referred to therein;
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(ix) neither the Company nor Old UPS is, and, after giving
effect to the offering and sale of the Shares and the application of
the proceeds thereof as described in the Prospectus, neither the
Company nor Old UPS will be, required to register as an "investment
company" as such term is defined in the Investment Company Act of
1940, as amended; and
(x) such counsel has no reason to believe that (A) the
Registration Statement and Prospectus (except for the financial
statements and financial schedules and other financial and statistical
data included therein, as to which such counsel need not express any
belief) do not comply as to form in all material respects with the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder or (B) (x) the Registration
Statement and the prospectus included therein (except for the
financial statements and financial schedules and other financial and
statistical data included therein, as to which such counsel need not
express any belief) at the time the Registration Statement became
effective contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; or (y) the Prospectus
(except as stated) as of its date and as of the date hereof contained
or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(d) The Underwriters shall have received on the Closing Date an
opinion of Joseph R. Moderow, Senior Vice President, Secretary and Legal &
Public Affairs Group Manager for Old UPS and the Company, dated the Closing
Date, to the effect that:
(i) the Company is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the UPS Enterprise;
(ii) each of Old UPS and each Significant Subsidiary,
including without limitation UPS-New York, UPS-Ohio, UPSCo and WWF,
has been duly incorporated, is validly existing as a corporation in
good standing under the laws of the jurisdiction of
14
its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the UPS
Enterprise;
(iii) all of the issued shares of capital stock of Old UPS
and each Significant Subsidiary have been duly and validly authorized
and issued, are fully paid and non-assessable and are owned directly
or indirectly by the Company, free and clear of all Adverse Claims;
(iv) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which Old
UPS, the Company or any Significant Subsidiary is a party, or to which
any of the properties of Old UPS, the Company or any Significant
Subsidiary is subject, that are required to be described in the
Registration Statement or the Prospectus and are not so described or
of any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required;
(v) such counsel has no reason to believe that (A) the
Registration Statement and Prospectus (except for the financial
statements and financial schedules and other financial and statistical
data included therein, as to which such counsel need not express any
belief) do not comply as to form in all material respects with the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder or (B) (x) the Registration
Statement and the prospectus included therein (except for the
financial statements and financial schedules and other financial and
statistical data included therein, as to which such counsel need not
express any belief) at the time the Registration Statement became
effective contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; or (y) the Prospectus
(except as stated) as of its date and as of the date hereof contained
or contains an untrue statement of a material fact or omitted or omits
to state a material
15
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(e) The Underwriters shall have received on the Closing Date an
opinion of Davis Polk & Wardwell, counsel for the Underwriters, dated the
Closing Date, covering the matters referred to in Sections 5(c)(v),
-------
5(c)(vii), 5(c)(viii) (but only as to the statements in the Prospectus
--------- ----------
under "Description of Capital Stock, Certificate of Incorporation and
Bylaws" and "Underwriters") and 5(c)(x) above.
-------
With respect to Sections 5(c)(x) and 5(d)(v) above, Gibson, Dunn &
------- -------
Crutcher LLP, Joseph R. Moderow and Davis Polk & Wardwell may state that
their opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and any amendments
or supplements thereto and review and discussion of the contents thereof,
but are without independent check or verification, except as specified.
The opinions of Gibson, Dunn & Crutcher LLP and Joseph R. Moderow
described in Sections 5(c) and 5(d) above shall be rendered to the
---- ----
Underwriters at the request of the Company and shall so state therein.
(f) The Underwriters shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the Underwriters,
from Deloitte & Touche LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement
and the Prospectus; provided that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(g) Merger Sub shall have been merged with and into Old UPS in the
Merger.
(h) The Company and Old UPS shall have obtained all consents,
authorizations or approvals under any agreement, contract or other
instrument binding upon Old UPS requiring a consent, authorization or
approval as a result of the Merger, except such consents, authorizations or
approvals the failure to obtain which would not, singly or in the
aggregate, have a material adverse effect on the UPS Enterprise.
16
(i) The several obligations of the U.S. Underwriters to purchase
Additional Shares hereunder are subject to the delivery to the U.S.
Representatives on the Option Closing Date of such documents as they may
reasonably request with respect to the good standing of the Company and its
subsidiaries, the due authorization and issuance of the Additional Shares
and other matters related to the issuance of the Additional Shares.
6. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, 13 signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day next
succeeding the date of this Agreement and during the period mentioned in
Section 6(c) below, as many copies of the Prospectus and any supplements
----
and amendments thereto or to the Registration Statement as you may
reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if
during such period, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with applicable
law, forthwith to prepare, file with the Commission and furnish, at its own
expense, to the Underwriters and to the dealers (whose names and addresses
you will furnish to the Company) to which Shares may have been sold by you
on behalf of the Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus so that
17
the statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(e) To make generally available to the Company's security holders and
to you as soon as practicable an earning statement covering the twelve-
month period ending December 31, 2000 that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) To take all necessary action to effect the Merger on the Closing
Date and prior to the sale of the Shares to the Underwriters pursuant to
Section 2 hereof.
(g) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be paid
all expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel and the Company's accountants in connection with the
registration and delivery of the Shares under the Securities Act and all
other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing
costs associated therewith, and the mailing and delivering of copies
thereof to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and delivery
of the Shares by the Company to the Underwriters, including any transfer or
other taxes payable thereon, (iii) the cost of printing or producing any
Blue Sky or Legal Investment memorandum in connection with the offer and
sale of the Shares under state securities laws and all expenses in
connection with the qualification of the Shares for offer and sale under
state securities laws as provided in Section 6(d) hereof, including filing
----
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with
the Blue Sky or Legal Investment memorandum, (iv) all filing fees and the
reasonable fees and disbursements of counsel to the Underwriters incurred
in connection with the review and qualification of the offering of the
Shares by the National Association of Securities
18
Dealers, Inc., (v) all fees and expenses in connection with the preparation
and filing of the registration statement on Form 8-A relating to the Common
Stock and all costs and expenses incident to listing the Shares on the New
York Stock Exchange, (vi) the cost of printing certificates representing
the Shares, (vii) the costs and charges of any transfer agent, registrar or
depositary, (viii) all expenses in connection with any offer and sale of
the Shares outside of the United States, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection with offers and sales outside of the United States and (ix) all
other costs and expenses incident to the performance of the obligations of
the Company hereunder for which provision is not otherwise made in this
Section. It is understood, however, that except as provided in this
Section, Section 7 entitled "Indemnity and Contribution", and the last
-
paragraph of Section 9 below, the Underwriters will pay all of their costs
-
and expenses, including fees and disbursements of their counsel, stock
transfer taxes payable on resale of any of the Shares by them and any
advertising expenses connected with any offers they may make and, in
addition, the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the
marketing of the offering of the Shares, including, without limitation,
expenses associated with the production of road show slides and graphics,
fees and expenses of any consultants engaged in connection with the road
show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any
such consultants, and the cost of any aircraft chartered in connection with
the road show.
7. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company or Old UPS in
writing by such Underwriter through you expressly for use therein.
19
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, the Company's officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company and
Old UPS to such Underwriter, but only with reference to information relating to
such Underwriter furnished to the Company or Old UPS in writing by such
Underwriter through you expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 7(a) or 7(b), such person (the "indemnified party")
---- ----
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Morgan Stanley & Co. Incorporated, in the case of
parties indemnified pursuant to Section 7(a), and by the Company, in the case of
----
parties indemnified pursuant to Section 7(b). The indemnifying party shall not
----
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have
20
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or 7(b)
---- ----
is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause 7(d)(i) above is not permitted by
-------
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 7(d)(i) above but also the relative
-------
fault of the Company on the one hand and of the Underwriters on the other hand
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Shares shall be deemed to be in the same respective proportions as the net
proceeds from the offering of the Shares (before deducting expenses) received by
the Company and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the Shares. The
relative fault of the Company or Old UPS on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company, or by the Underwriters, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the respective number of Shares they
-
have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by pro rata
-
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 7(d). The amount paid or payable
----
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by
21
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, no
-
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 7 are not exclusive and shall not limit any rights or remedies which may
-
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 7
and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Shares.
8. Termination. This Agreement shall be subject to termination by notice
given by you to the Company, if (a) after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, the New York Stock
Exchange or the National Association of Securities Dealers, Inc., (ii) trading
of any securities of the Company shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses 8(a)(i) through 8(a)(iv), such event, singly or
------- --------
together with any other such event, makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus.
9. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase Shares that it
has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
22
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I or Schedule II bears to the
aggregate number of Firm Shares set forth opposite the names of all such non-
defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no event shall the
number of Shares that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 9 by an amount in excess of one-
-
ninth of such number of Shares without the written consent of such Underwriter.
If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased, and arrangements satisfactory to you and the Company for
the purchase of such Firm Shares are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Additional Shares or (ii)
purchase not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
23
10. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
24
12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
UNITED PARCEL SERVICE, INC.
By:____________________________
Name:
Title:
Accepted as of the date hereof
MORGAN STANLEY & CO.
INCORPORATED
GOLDMAN, SACHS & CO.
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
CREDIT SUISSE FIRST BOSTON
CORPORATION
SALOMON SMITH BARNEY INC.
WARBURG DILLON READ LLC
Acting severally on behalf of themselves and the
several U.S. Underwriters named in Schedule I
hereto.
By: Morgan Stanley & Co. Incorporated
By:_________________________
Name:
Title:
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
GOLDMAN SACHS INTERNATIONAL
MERRILL LYNCH INTERNATIONAL
CREDIT SUISSE FIRST BOSTON (EUROPE)
LIMITED
SALOMON BROTHERS INTERNATIONAL
LIMITED
UBS AG, ACTING THROUGH ITS DIVISION
WARBURG DILLON READ
Acting severally on behalf of themselves and the
several International Underwriters named in
Schedule II hereto.
By: Morgan Stanley & Co. International Limited
By:____________________
Name:
Title:
SCHEDULE I
U.S. UNDERWRITERS
Number of Firm Shares
Underwriter To Be Purchased
- -------------------------------------------------- ------------------------
Morgan Stanley & Co. Incorporated.................
Goldman, Sachs & Co...............................
Merrill Lynch, Pierce, Fenner & Smith
Incorporated...................................
Credit Suisse First Boston Corporation............
Salomon Smith Barney Inc..........................
Warburg Dillon Read LLC ..........................
..........................
----------
Total U.S. Firm Shares......................... 87,520,000
==========
SCHEDULE II
INTERNATIONAL UNDERWRITERS
Number of Firm Shares
Underwriter To Be Purchased
- -------------------------------------------------- ------------------------
Morgan Stanley & Co. International Limited........
Goldman Sachs International.......................
Merrill Lynch International.......................
Credit Suisse First Boston (Europe) Limited.......
Salomon Brothers International Limited............
UBS AG, acting through its division Warburg
Dillon Read......................................
......................................
----------
Total International Firm Shares.................. 21,880,000
==========