EX-10.10 4 ups-12312018xexhibit1010.htm EXHIBIT 10.10 - UPS PROTECTIVE COVENANT AGREEMENT
Exhibit 10.10
UPS PROTECTIVE COVENANT AGREEMENT
I, Scott Price, am voluntarily entering into this Protective Covenant Agreement ("Agreement") w i th United Parcel Service, Inc. ("UPS" or "the Company") on the date set forth below (the "Effective Date").

1. | ACKNOWLEDGMENTS:

(a)Key Employee : I acknowledge and agree that, by reason of my highly specialized skillset and the Company's investment of time, training, money, trust, and exposure to Confidential Informat i on, I am intimately involved in the p l anning and direction of the Company's global business operations.
(b) Consideration:
(i)Employment: I acknowledge and agree that my execution of, and compl i ance w i th, this Agreement are material factors i n the Company's decision to hire me and to provide me with access to Confidential Information that i s not provided to other employees of the Company, which const i tutes good and valuable consideration for the covenants set forth in this Agreement.
(ii)Restricted Stock Units: It is understood and agreed that, on the Effective Date, I will receive a special, one-time grant of Restricted Stock Units ("RSUs") valued at $4,000,000 pu rs uant to (and subject to the terms of) the UPS 2015 Omnibus Incentive Compensation Plan and a Restr i cted Stock Unit Award Agreement ("Award Agreement''), which such Award Agreement w i ll include a vesting schedule and various other terms and conditions, and pursuant to which the number of Restricted Stock Units awarded will be calculated by dividing the $4,000,000 value of the grant by the closing price of UPS s tock on the grant date. I will be required to acknowledge acceptance of the Award Agreement and the terms and conditions thereof in order to receive the award of the RSUs.

(iii) | Separation Pay. In further consideration for my obligations under this

Agreement, the Company shall pay me Separation Pay under the following term s and conditions:
(y) In the event that my employment is terminated by the Company without Cause during the first two (2) years after the Effective Date, the Company shall pay me Separation Pay.
(z) In the event that my employment is terminated by the Company without Cause after I have been emp l oyed for two (2) years after the Effective Date, the Company shall on l y be r equired to pay me Separation Pay i n the event that the Company e l ects, at its sole discretion, to require that I be bound by the post-termination Covenant Not to Compete described in Paragraph 6 be l ow. If the Company elects not to require that I be bound by the post-termination Covenant Not to Compete described in Paragraph 6 below, I understand that I will not be paid Separation Pay pursuant to this Paragraph l(b)(iii)(z).
(c) Potentia l Unfair Competit i on: I ac k nowledge and agree that, as a result of my receipt of Conf i dential Information, my ro l e at UPS, and my re l ationships with UPS customers and/or employees, I would have an unfair competitive advantage if I were v i olate this Agreement.
(d) No Und u e Hardship: I acknowledge and agree that, in the event that my employment with the Company terminates fo r any r eason, I possess mar k etab l e skills a n d abilities that will enable me to find suitable emp l oyment withou t violating the covenants set forth i n th i s Agreement.
(e) Voluntary Execution: I acknowledge and affirm that I am executing this Agreement voluntarily, that I have read this Agreement carefully, that I have had a fu ll and r easonable opportunity to consider this Agreement (including an opportunity to consult with legal counsel), and that I have not been pressured or i n any way c oe rced, threatened or intimidated into signing this Agreement.

2. DEFINITIONS.
(a)"Cause" means a termination of my employment by the Company due to one or more of the following: the commission of any felony or commission of a misdemeanor i nvolving theft or moral turpitude; and/or commission of any act or omission that constitutes neglect or misconduct with respect to my employment duties that results in economic harm to the Company; and/or v i olation of any of the Company's substance abuse, compliance or any other policies that may be applicable to me and that may be in effect at the time of the occurrence; and/or a breach of any material provision of this Agreement any other agreements or understanding in effect at the time of the breach, between me and the Company.
(b)"Company" means United Parcel Service, Inc., a Delaware Corporation with its principal place of business in Atlanta, Georgia, and all of its Affiliates (as defined in O.C.G.A . § 13-8-51(1)).
(c)"Confidential Information" means all information regarding the Company, its activities, businesses or customers which I learned as a result of my employment, that is valuable to the Company and that is not generally disclosed by practice or authority to persons not employed or otherwise engaged by the Company, but that does not rise to the level of a Trade Secret. "Confidential Information" shall include, but is not limited to, financial plans and data; legal affairs; management planning information; bus i ness plans; acquisition plans; operational methods and technology; market studies; marketing plans or strategies; product development techniques or plans; customer lists; details of customer contracts; current and anticipated customer requirements and specifications; customer pricing and profitability data; past, current and planned research and development; employee-related information and new personnel acquisition plans. "Confidential Information" shall not include information that is or becomes generally available to the public by the act of one who has the right to disclose such information without violating any right or privilege of the Company. However, although certain information may be generally known in the relevant industry, the fact that the Company uses such information may not be so known and in such instance the information would compromise Confidential Information. This definition shall not limit any definition of "confidential information" or any equivalent term under applicable state or federal law.
(d) "Protected Customers" means customers or actively sought potential customers (i) who I dealt with on behalf of the Company; (ii) whose dealings with the Company are or were coordinated or supervised by me; or (iii) about whom I obtained Confidential I nformation as a result of my employment with the Company.
(e) "Protected Employee" means an employee of the Company who i s emp l oyed by the Company at the time of any solicitation or attempted solicitation by me.
(f) "Restricted Competitors" means the companies and/or organizations listed on Attachment A to this Agreement, and incorporated herein by reference.
(g) "Restricted Period" means during my employment with UPS and for a period of two (2) years after my employment ends for any reason.
(h) "Separation Pay" for purposes of this Agreement means (i) an amount equal to two (2) years of my base salary in effect at the time of my termination of employment, to be paid in accordance with the Company's normal payroll practices, less all applicable federal, state and local taxes and other required withholdings; and (ii) my continued vesting in the special, one-time grant of RSUs described in Paragraph 1(b)(ii) above. I understand and agree, however, that the Company shall only be required to continue to pay me the base salary portion of my Separation Pay until the earlier of (A) twenty-four (24) months following the termination of my employment, (B) I accept a position (whether as an employee or otherwise) with another ent i ty, sub j ect to all applicable tax withholdings, or (C) I become qualif i ed for disab ili ty payments. I further unde r stand that I will not be eligible to continue to accrue add i tional benefits and/or additional vesting rights while rece i ving Separat i on Pay outside of those provided by the plan documents governing such benef i ts.
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(i) "Trade Secret" means all of the Company's i nformation that I learned about a s a re s ult of my employment, without regard to form, including, but not limited to, technica l or nontechnica l data, a formula, a pattern, a comp i lat i on, a program, a dev i ce, a method, a technique, a drawing, a process, financial data, financia l plans, product plans, distr i but i on lists or a list of actual or potential customers, advert i sers o r suppliers, that (i) der i ves economic value, actual or potent i a l, from not being genera l ly known to the public or to other persons who c an obtain economic value from its d i s cl osure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain i ts secrecy. Th i s def i n i t i on s hall not li mit any definition o f "trade secrets" or any equivalent term under applicable law.
3. DISCLOSURE AND USE OF CONFIDENT I AL INFORMAT I ON AND TRADE SECRETS.
I agree that I wi ll not, directly or indirectly, revea l, divulge, or disclose any Confidential I nformation or Trade Secrets to any Person not e x pressly author i zed by the Company to receive such information. I further agree that I will not, d i rectly or i ndirectly, u se or make use of any Confidential Informat i on or Trade Secrets i n connect i on with any business activity ot h er than bus i ness activity that I am pur s u i ng on beha l f of the Company. I ac k nowledge and agree that this Agreement i s not i ntended to, and does not, alter either the Company's rights or my obligations under any state or federal statutory or common law regard i ng trade sec r ets and unfair t r ade pract i ces. I also understand that noth i ng contained i n this Agreement limits my abil i ty to communicate with any federal, state or local governmental agency o r comm i ssion ("Government Agencies") or otherwise part i cipate i n any i nvest i gation o r proceed i ng that may be conducted by any Government Agencies i n connection with any charge or complaint, whether filed by me, o n my behalf, or by any other i ndividua l. I addit i onally understand and agree that if I make a confidential d i sclosure o f a Company Trade Secret (as defined in 1 8 U.S.C. §1839) to a government official o r an attorney for the sole purpose of report i ng o r investigating a suspected violat i on of law, or i n a court fi li ng under sea l, I sha ll not be held l iable unde r this Agr e ement or unde r any federal or state trade secret l aw for such a disclosure.
4. NON-SOLICITATION OF PROTECTED EMPLOYEE S.
During the Restricted Period, I will not, w i thout the prior written consent o f the Company, directly or i nd i rect l y, so l icit or induce or attempt to solicit or induce any Protected Employee to terminate his/her employment relationsh i p with the Company or to enter into employment with me or any other person or e n tity.
5. NON-SOLICITAT I ON OF PROTECTED CUSTOMERS.
During the Restricted Period, I will not, without the prior written conse n t of the Company, directly o r i nd i rectly, s olicit, d i vert, ta k e away or attempt to sol i cit, divert or take away a Protected Customer for purposes of provid i ng products and services that are competitive with t hose prov i ded by the Company.
6. COVENANT NOT TO C OMPETE.
During the Restricted Period, I w i ll not, w i thout the pr i or wr i tten consent of the Company, (a) work for a Restr i cted Compet i tor; (b) provide advice or consult i ng services to a Restricted Compet i tor; or (c) otherwise prov i de servi c es to a Restricted Compet i tor that are s i m i lar to those services that I prov i ded to the Company and that a r e c ompetit i ve w i th the transportation, delivery or logist i cs serv i ces prov i ded by the Company during my employment. I understand and agree that this non-compete prov i s i on i s limited to the geographi c area where the Company did business dur i ng my employment.
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7. ENFORCEMENT OF PROTECTIVE COVENANTS.
I acknowledge and agree that the covenants in Paragraphs 3-6 ("Protective Covenants") are necessary to protect the Company's legitimate business interests. In the event that I breach, or threaten to breach, the Protective Covenants, I agree that the Company shall have the right and remedy to: (a) enjo i n me, prelim i narily and permanently (without the necessity of posting bond), from vio l ating or threatening to violate the Protective Covenants because any breach or threatened breach of the Protective Covenants would cause i rreparable injury to the Company and that money damages would not prov i de an adequate remedy; (b) require me to account for and pay over to the Company all compensation, profits, monies, or other benefits derived or received by me as the result of any breach of the Protective Covenants; and (c) require me to pay the reasonable attorneys' fees and costs incurred by the Company in enforcing the Protective Covenants.
8. SEVERABILITY / REFORMATION.
I acknowledge and agree that the Protective Covenants are reasonable in time, scope and all other respects and that they will be cons i dered and construed as separate and independent covenants. Should any part or prov i s i on of any of the Protective Covenants be held invalid, void or unenforceable in any court of competent jur i sdiction, I understand and agree that such invalidity, voidness or unenforceabil i ty does not invalidate, void or otherwise render unenforceable any other part or provision of this Agreement. I further agree that, in the event any court of competent jurisdiction finds any of the Protective Covenants to be invalid or unenforceable (in whole or in part), the invalid or unreasonable term must be modif i ed or redefined, or a new enforceable term provided, so that the Protective Covenants are enforceable to the fullest extent permitted by law.
9. TOLLING DURING LITIGATION.
I understand and agree that if I violate any of the Protective Covenants, the period of restriction applicable to each obligation violated will not run during any litigation over such violation, provided that such litigation was initiated during the period of the restriction.
10. RETURN OF MATERIALS.
Immediate l y following the term i nation of my employment for any reason or upon request from the Company at any other time, I agree to return all materials, documents, and/or i nformat i on in my possession or control relat i ng to the Company without reta i ning any copies in either electronic or hard copy form. I also agree that following my termination for any reason, or upon request from the Company, I will return all materials, documents, and/or information that I received or created in connection with my wor k as a Key Employee, i ncluding but not limited to Confidential Information and Trade Secrets. Such documents, materials and information shall include, without limitation, documents, mater i als, equ i pment, k eys, credit cards, financial informat i on, correspondence, computer equipment and data, and other documents and things be l onging to the Company, i nclud i ng but not limited to Confidentia l Information and Trade Secrets.
11. AMENDMENT / ASSIGNMENT.
I understand and agree that this Agreement cannot be amended or modif i ed unless such amendment or modificat i on i s made i n writing and signed by me and a duly author i zed representative of the Company. I recognize that th i s Agreement i s for personal services to be performed by me and, as a result, may not be assigned by me to any other Person. I further understand that the Company may ass i gn this Agreement as requ i red by the needs of the business.
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12. GOVERNING LAW AND JURISDICTION.
I agree that, w i thout regard to conflict of laws princip l es, the laws of the state of Georgia govern this Agreement in all respects. I further agree that the federal or state courts of Georgia have exclusive j urisdict i on over any dispute r elating to this Agreement and I specifically consent to personal jur i sdiction in such courts, even if I no longer reside in Georg i a at the time of any dispute arising out of or invo l ving this Agreement.
13. WAIVER.
I acknowledge that any waiver by the Company of any breach of this Agreement by me sha ll not be effective un l ess confirmed i n writing, and that no s uch waiver shall operate or be construed as a wa i ver of the same breach or another breach on a subsequent occasion.
14. AT-WILL EMPLOYMENT.
I understand that this Agreement doe s not create a contract of employment and that my employment relation s hip with the Company rema i ns at-will.
15. DISCLOSURE OF AGREEMENT.
In the event that I leave the Company for any reason, I agree to d i sclose the existence and terms of this Agreement to any prospect i ve employer, partner, c o-venturer, investor or lender prior to entering into an employment, partnership or other business relat i onship w i th such prospective employer, partner, co-venturer, i nvestor or lender.
16. ENTIRE AGREEMENT.
Th i s Agreement shall be construed as a whole according to i ts fair mean i ng. It shall not be construed str i ct l y for or against me or the Company. There have been no offers or inducements regarding the making of thi s Agreement except as set out here i n. This Agreement and the Award Agreement referenced above const i tute the entire agreement and u n derstanding between me and the Company relating to the sub j ects described in this Agreement.
E x ecuted th is 26 of November, 2017.
/S/ SCOTT A PRICE
Scott Price
E x ecuted th i s __day of November, 2 017.
______________________________
UNITED PARCEL SERVICE, IN C.
By: ___________________
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