EXHIBIT 10.10(8)
AMENDMENT NO. 8
TO THE
UPS QUALIFIED STOCK OWNERSHIP PLAN
AND TRUST AGREEMENT
WHEREAS, United Parcel Service of America, Inc. and certain of its
affiliated companies ("UPS") established the UPS Qualified Stock Ownership Plan
and Trust ("Plan") effective as of January 1, 1998, to provide their eligible
employes with a matching contribution invested in the common stock of UPS ("UPS
Stock") and to permit eligible employees to transfer amounts from the UPS
Savings Plan to the Plan for the purpose of investing in UPS Stock; and
WHEREAS, UPS wishes to appoint Boston Safe Deposit and Trust Company
("Boston Safe" or "Trustee") as trustee and Boston Safe is willing to accept
such appointment;
WHEREAS, it is desired to amend the Plan to clarify and supplement the
Trustee's rights, duties and responsibilities as set forth in the UPS Qualified
Stock Ownership Plan and Trust Agreement, as amended, (the "Agreement").
NOW, THEREFORE, pursuant to the authority vested in the Board by
Section 12.1 of the Plan, the Agreement is hereby amended as follows:
1. Pursuant to Section 9.15 of the Plan UPS hereby appoints Boston Safe
Deposit and Trust Company as trustee of the trust established by the
Plan and Boston Safe hereby accepts its appointment as trustee,
acknowledges that it assumes the duties established by the Plan and
agrees to be bound by the terms contained in the Plan effective March
1, 2003.
2. Section 9.5 is hereby deleted and replaced as follows:
"Section 9.5 INVESTMENT OF TRUST FUND. The Committee or an Investment
Manager appointed by the Committee shall have sole and exclusive
responsibility, authority and discretion to manage, control, invest and
reinvest the assets of the Trust Fund. The Trustee shall not have any
investment responsibility under the Agreement."
3. Section 9.6 is hereby deleted and replaced as follows:
"Section 9.6 Investment in UPS Stock. The purpose of this Plan is to
invest primarily in UPS Stock. Accordingly, the Trustee is directed to
invest 100% of the Trust Fund in qualifying employer securities, namely
Class A shares of UPS Stock except as otherwise may be directed by the
Committee or an Investment Manager appointed by the Committee. The
Trustee may purchase UPS Stock from any source, provided that the
Trustee will pay no more than Fair Market Value for any share. The
Trustee may purchase either outstanding shares, newly issued shares, or
treasury shares. To the extent that the Trustee needs to obtain cash,
the Trustee may sell UPS Stock to the Employer for no less than Fair
Market Value. The Committee shall direct the Trustee as to its
responsibilities to suspend purchases of UPS Stock when such suspension
is necessary to comply with any applicable law or applicable stock
exchange rule or regulation in which event purchases will be made or
resumed when the Committee reasonably concludes that purchases are
permitted under applicable law. The recordkeeper selected by the
Committee will account for the cost or other basis of all UPS Stock
held in the Trust Fund in accordance with section 1.402(a)-1(b)(2)(ii)
of the income tax regulations under the Code.
4. Section 9.7 is hereby deleted and replaced as follows:
"Section 9.7 OTHER INVESTMENTS. The Committee or the Investment
Manager appointed by the Committee shall have sole and exclusive
responsibility, authority and discretion to manage, control, invest and
reinvest the Trust Fund in assets other than UPS Stock in its
discretion. The Employer agrees that at no time will the assets of the
Plan be invested in real estate or foreign securities."
5. Section 9.8(a) is hereby deleted and replaced as follows:
"(a) As directed by the Committee or an Investment Manager, to sell,
exchange, or otherwise dispose of any property at any time held or
acquired by the Trust Fund, at public or private sale, for cash or on
terms, without advertisement, including the right to lease for any
term."
6. Section 9.8(1) is hereby deleted and replaced as follows:
"(1) to use reasonable efforts to assist the Employer in meeting any
tax obligations of the Plan to the extent requested by the Employer.
The Employer shall provide the Trustee with any information needed for
the Trustee to meet any such obligations and direct the Trustee to pay
any amounts due. The Trustee shall have no responsibility or liability
with respect to any tax obligations, now or hereafter imposed on the
Employer or the Plan by any taxing authorities, except as provided by
applicable law. The Employer shall prepare and file Form 990, based on
information in part supplied by the Trustee, as required by law;"
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7. Section 9.12 is hereby amended by inserting the following under "UPS
Shares" and before Section 9.12(a)(1):
"(a) UPS SHARES. The Employer has engaged a third party recordkeeper,
which has the responsibility to maintain Participant records, including
the names, addresses and number of shares of Participants and
Beneficiaries holding UPS Stock. The recordkeeper's duties with regard
to proxies is to provide the Trustee with a list which includes the
name, address and number of shares held for each Participant and
Beneficiary as of the applicable date. The Trustee has the
responsibility to furnish Participants and Beneficiaries with the
information set forth in Section 9.12(a)(3) of the Agreement, to
reconcile the number of shares that are voted or tendered by
Participants and Beneficiaries and to vote or tender the remaining
shares pursuant to Sections 9.12(a)(1) and 9.12(a)(2)."
8. Section 9.12(b) is amended by deleting the first two sentences and
replacing them with the following:
"With respect to Securities held in the Trust Fund other than UPS
Stock, the Trustee will be obligated to vote, tender or exercise other
similar rights in accordance with the direction of the Committee or an
Investment Manager, and the Trustee will be precluded from exercising
such rights except in accordance with such directions."
9. Section 9.14 is hereby amended by deleting the second sentence and
inserting the following:
"In preparing such report the Trustee will be entitled to rely
completely on the Fair Market Value of UPS Stock as determined by the
Board or an independent appraiser each acting as a named fiduciary for
such valuation purposes."
10. Section 9.16 is hereby amended by adding at the end the following:
"The Trustee shall not be responsible for (i) the title, validity or
genuineness of any property or evidence of title thereto received by it
or delivered by it pursuant to the Agreement, (ii) losses or damages
suffered by the Trust Fund as a result of the insolvency of any
custodian, subtrustee or subcustodian, except to the extent that the
Trustee is an affiliate of such entity or was negligent in its
selection or continued retention of such entity, (iii) any diminution
of value of any securities or other property held by the Trustee (or
its subcustodians) absent the Trustee's breach of the Agreement, or
(iv) indirect, consequential or special damages with respect to its
role as Trustee. The Trustee shall be protected in relying upon the
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directions of the Employer, the Committee, any Investment Manager, or
any other Named Fiduciary and their designees."
11. A new Section 9.17 is hereby created and added after Section 9.16 as
follows:
"Section 9.17 INDEMNIFICATION OF THE TRUSTEE. The Employer agrees to
indemnify and hold harmless the Trustee from all claims, liabilities,
losses, damages and expenses, including reasonable attorneys' fees and
expenses, incurred by the Trustee in connection with the Agreement,
except as a result of the Trustee's (or its affiliates' and agents')
error, negligence, breach of the Agreement, or willful misconduct."
12. A new Section 9.18 is hereby created and added at the end of Article
IX as follows:
"Section 9.18. FORCE MAJEURE. Except as provided otherwise by ERISA
and notwithstanding anything in the Agreement to the contrary, the
Trustee shall not be responsible or liable for its failure to perform
under the Agreement or for any losses to the Trust Fund resulting from
any event beyond the reasonable control of the Trustee, its agents, or
subcustodians, including but not limited to nationalization, strikes,
expropriation, devaluation, seizure, or similar action by any
governmental authority of currency restrictions, exchange controls,
levies or other charges affecting the Trust Fund's property; or the
breakdown or malfunction of any utilities or telecommunications
systems; or any order or regulation of any banking or securities
industry including changes in market rules and market conditions
affecting the execution or settlement of transactions; or acts of war,
terrorism, insurrection or revolution, or acts of God; or any other
similar event."
13. Article X is hereby amended to add the following paragraph at the end
thereof:
"If the Trustee advances cash or securities for any purpose or is
assessed taxes, interest, charges, expenses, assessments, or other
liabilities in connection with the performance of its duties under the
Agreement, except such as may arise from its own negligent action,
negligent failure to act or willful misconduct, any property at any
time held in the Trust Fund shall be security therefor and the Trustee
shall be entitled to collect from the Trust Fund sufficient cash for
reimbursement, and if such cash is insufficient, dispose of the assets
of the Trust Fund to the extent necessary to obtain reimbursement. To
the extent that the Trustee advances funds to the Plan for
disbursements or to effect the settlement of purchase transactions, the
Trustee shall be entitled to collect from the Trust Fund an amount
equal to
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what would have been earned on the sums advanced (an amount
approximating the "federal funds" interest rate)."
14. The Employer and the Trustee hereby each represent and warrant to the
other that it has full authority to enter into this Amendment upon the
terms and conditions hereof and that the individual executing this
Amendment on its behalf has the requisite authority to bind the
Employer or Trustee to this Amendment.
15. Capitalized terms not specifically defined herein shall have the same
meaning ascribed to them under the Agreement.
16. Except as specifically amended hereby, the Agreement shall remain in
full force and effect in accordance with its terms.
IN WITNESS WHEREOF, the undersigned certify that United Parcel Service
of America, Inc. based upon action by its Board of Directors dated the 13th day
of February, 2003, has caused this Amendment No. 8 to be adopted.
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UNITED PARCEL SERVICE ATTEST:
OF AMERICA, INC.
/s/ Michael L. Eskew /s/ Joseph R. Moderow
- --------------------------- --------------------------
Michael L. Eskew Joseph R. Moderow
Chairman Secretary
BOSTON SAFE DEPOSIT AND ATTEST:
TRUST COMPANY
By: /s/ Melissa A. Kennedy By: /s/ Terrence S. King
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Name: Melissa A. Kennedy Terrence S. King
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Title: Vice President
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Date: February 25, 2003
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