================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
MERRILL CORPORATION
(Name of Issuer)
Common Stock
$0.01 PAR VALUE
(Title of Class of Securities)
------------------------
59017510
(CUSIP Number)
George R. Bason, Jr.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Tel. No.: 212 450 4340
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
July 14, 1999
(Date of Event which Requires Filing of
this Statement)
------------------------
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this statement because of Rule 13d-1(b)(3) or (4), check the
following: [ ]
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<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 1 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Viking Merger Sub, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
MN
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 2,287,678
WITH
9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,287,678 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.1% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 1 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 2 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Merchant Banking Partners II, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,287,678
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,287,678 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.1% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 2 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 3 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Merchant Banking Partners II-A, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,287,678
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,287,678 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.1% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 3 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 4 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Millennium Partners - A, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,287,678
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,287,678 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.1% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 4 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 5 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Millennium Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,287,678
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,287,678 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.1% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 5 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 6 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ EAB Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,287,678
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,287,678 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.1% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 6 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 7 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Offshore Partners II, C.V.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Netherlands Antilles
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,287,678
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,287,678 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.1% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 7 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 8 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Merchant Banking II, LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,287,678
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,287,678 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.1% - See Item 5
14 TYPE OF REPORTING PERSON*
OO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 8 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 9 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Merchant Banking II, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,287,678
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,287,678 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.1% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 9 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 10 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Diversified Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,287,678
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,287,678 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.1% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 10 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 11 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Diversified Partners-A, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,287,678
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,287,678 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.1% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 11 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 12 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Diversified Associates LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,287,678
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,287,678 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.1% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 12 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 13 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Diversified Partners, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,287,678
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,287,678 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.1% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 13 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 14 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ First ESC, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,287,678
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,287,678 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.1% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 14 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 15 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ ESC II, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,287,678
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,287,678 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.1% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 15 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 19 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ LBO Plans Management Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,287,678
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,287,678 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.1% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 16 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 17 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJMB Funding II, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,287,678
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,287,678 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.1% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 17 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 18 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Capital Investors, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,287,678
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,287,678 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.1% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 18 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 19 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Donaldson Lufkin & Jenrette, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,287,678
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,287,678 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.1% - See Item 5
14 TYPE OF REPORTING PERSON*
HC, CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 19 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 20 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Equitable Companies Incorporated
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
See Item 5
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
14 TYPE OF REPORTING PERSON*
CO, HC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 20 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 21 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
14 TYPE OF REPORTING PERSON*
HC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 21 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 22 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Finaxa
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
14 TYPE OF REPORTING PERSON*
HC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 22 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 23 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Assurances I.A.R.D. Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 23 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 24 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Assurances Vie Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 24 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 25 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Courtage Assurance Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 25 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 26 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Conseil Vie Assurance Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 26 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 27 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Claude Bebear, as AXA Voting Trustee
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
7 SOLE VOTING POWER
See Item 5
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 27 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 28 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Patrice Garnier, as AXA Voting Trustee
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
7 SOLE VOTING POWER
See Item 5
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 28 of 142
<PAGE>
SCHEDULE 13D
CUSIP No. 59017510 Page 29 of 29 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Henri de Clermont - Tonnerre, as AXA Voting Trustee
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
7 SOLE VOTING POWER
See Item 5
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 29 of 142
<PAGE>
Item 1. Security and Issuer.
The class of equity securities to which this statement relates is the
common stock, $0.01 par value per share (the "Shares"), of Merrill Corporation,
a Minnesota corporation ("Merrill"). The principal executive offices of Merrill
are located at One Merrill Circle, St. Paul, MN 55108.
Item 2. Identity and Background.
This Schedule 13D is being filed jointly on behalf of the following
persons (collectively, the "Reporting Persons"):(1) Viking Merger Sub, Inc. a
Minnesota corporation ("Viking"); (2) DLJ Merchant Banking Partners II, L.P., a
Delaware corporation ("Partners II"); (3) DLJ Merchant Banking Partners II-A,
L.P., a Delaware limited partnership ("Partners II-A"); (4) DLJ Millennium
Partners, L.P., a Delaware limited partnership ("Millennium"); (5) DLJ
Millennium Partners-A, L.P., a Delaware limited partnership ("Millennium-A");
(6) DLJ Offshore Partners II, C.V., a Netherlands Antilles limited partnership
("Offshore II"); (7) DLJ EAB Partners, L.P., a Delaware limited partnership
("EAB"); (8) DLJ Merchant Banking II, LLC, a Delaware limited liability company
("MBII LLC"); (9) DLJ Merchant Banking II, Inc., a Delaware corporation ("MBII
INC"); (10) DLJ Diversified Partners, L.P., a Delaware limited partnership
("Diversified"); (11) DLJ Diversified Partners-A, L.P., a Delaware limited
partnership ("Diversified-A"); (12) DLJ Diversified Associates, L.P., a Delaware
limited partnership ("Diversified Associates"); (13) DLJ Diversified Partners,
Inc., a Delaware corporation ("Diversified Partners"); (14) DLJ First ESC L.P.,
a Delaware limited partnership ("ESC"); (15) DLJ ESC II L.P., a Delaware limited
partnership ("ESC II"); (16) DLJ LBO Plans Management Corporation, a Delaware
corporation ("LBO"); (17) DLJMB Funding II, Inc., a Delaware corporation
("Funding II"); (18) DLJ Capital Investors, Inc., a Delaware corporation
("DLJCI" and together with the previously listed entities, the "DLJ Entities");
(19) Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation ("DLJ"); (20)
The Equitable Companies Incorporated, a Delaware corporation ("EQ"); (21) AXA, a
societe anonyme organized under the laws of France ("AXA"); (22) Finaxa, a
societe anonyme organized under the laws of France; (23) AXA Assurances I.A.R.D.
Mutuelle, a mutual insurance company organized under the laws of France; (24)
AXA Assurances Vie Mutuelle, a mutual insurance company organized under the laws
of France; (25) AXA Courtage Assurance Mutuelle, a mutual insurance company
organized under the laws of France; (26) AXA Conseil Vie Assurance Mutuelle, a
mutual insurance company organized under the laws of France; and (27) Claude
Bebear, Patrice Garnier and Henri de Clermont-Tonnerre, trustees (the "AXA
Voting Trustees") of a voting trust (the "AXA Voting Trust") established
pursuant to a Voting Trust Agreement by and among AXA and the AXA Voting
Trustees dated as of May 12, 1992, as amended on January 22, 1997.
Partners II, Partners II-A, Millennium, Millennium-A, Offshore II, EAB,
Diversified, Diversified-A, Funding II, ESC, and ESC II are collectively
referred to as the "DLJ Funds".
Partners II, Partners II-A, Millennium and Millennium-A are Delaware
limited partnerships which make investments for long term appreciation. MBII LLC
is the Associate General Partner of Partners II and Partners II-A. MBII INC is
the Managing General Partner of Partners II and Partners II-A. MBII LLC and MBII
INC make all of the investment decisions on behalf of Partners II and Partners
II-A.
All of Viking's voting securities are now owned by Partners II. Upon
consummation of the Merger referred to below, all the voting securities of
Viking will be owned by the DLJ Funds.
EAB is Delaware limited partnership which makes investments for long
term appreciation. MBII LLC is the Associate General Partner of EAB and LBO is
the Managing General Partner of EAB. MBII LLC and LBO make all of the investment
decisions on behalf of EAB.
Offshore II is a Netherlands Antilles limited partnership which makes
investments for long term appreciation. MBII LLC is the Associate General
Partner of Offshore II. MBII INC is the Advisory General Partner of Offshore II.
MBII LLC and MBII INC make all of the investment decisions on behalf of Offshore
II.
MBII LLC is a Delaware limited liability company and is a registered
investment adviser. As the Associate General Partner of Partners II, Partners
II-A, Millennium, Millennium-A, EAB and Offshore II, MBII LLC, in conjunction
with MBII INC, participates in investment decisions made on behalf of these
entities. MBII INC is the managing member of MBII LLC.
Page 30 of 142
<PAGE>
MBII INC is a Delaware corporation and is a registered investment
adviser. As the Managing General Partner of Partners II, Partners II-A,
Millennium and Millennium-A, and the Advisory General Partner Offshore II, MBII
INC is responsible for the day to day management of these entities and, in
conjunction with MBII LLC, participates in investment decisions made on behalf
of these entities. MBII INC is a wholly owned subsidiary of DLJCI.
Diversified and Diversified-A are Delaware limited partnerships which
make investments for long term appreciation. A portion of Diversified and
Diversified-A's capital commitments are dedicated to making side-by-side
investments with Partners II and Partners II-A, respectively. Diversified
Associates is the Associate General Partner of Diversified and Diversified-A and
Diversified Partners is the Managing General Partner of Diversified and
Diversified-A. Diversified Partners is responsible for the day to day management
of Diversified and Diversified-A.
Diversified Associates is a Delaware limited partnership and a
registered investment advisor. As the Associate General Partner of Diversified
and Diversified-A, Diversified Associates, in conjunction with Diversified
Partners, participates in the management of investments of Diversified.
Diversified Partners is the general partner of Diversified Associates.
Diversified Partners is a Delaware corporation and a registered
investment advisor. As the Managing General Partner of Diversified and
Diversified-A, Diversified Partners is responsible for the day to day management
of Diversified and Diversified-A. In conjunction with Diversified Associates,
Diversified Partners participates in the investment decisions made on behalf of
Diversified and Diversified-A. Diversified Partners is a wholly owned subsidiary
of DLJCI.
ESC and ESC II are Delaware limited partnerships and "employee
securities companies" as defined in the Investment Company Act of 1940, as
amended. LBO, as the Managing General Partner of ESC and ESC II, makes all of
the investment decisions on behalf of ESC and ESC II.
LBO is a Delaware corporation and a registered investment advisor. LBO
is a wholly owned subsidiary of DLJCI. As the Managing General Partner of EAB,
ESC and ESC II, LBO is responsible for the day-to-day management of EAB, ESC and
ESC II.
Funding II is a Delaware corporation which makes investments for long
term appreciation generally side-by-side with Partners II. Funding II is a
wholly owned subsidiary of DLJCI.
DLJCI is a Delaware corporation a holding company. DLJCI is a wholly
owned subsidiary of DLJ.
DLJ is a publicly held Delaware corporation. DLJ directly owns all of
the capital stock of DLJCI. DLJ, acting on its own behalf or through its
subsidiaries, is a registered broker/dealer and registered investment advisor
engaged in investment banking, institutional trading and research, investment
management and financial and correspondent brokerage services.
EQ is a Delaware corporation and is a holding company. As of June 30,
1999, EQ owns, directly or indirectly, 70.5% of DLJ.
AXA is a societe anonyme organized under the laws of France and a
holding company for an international group of insurance and related financial
services companies. As of June 30, 1999, approximately 58.3% of the outstanding
common stock of EQ was beneficially owned by AXA. For insurance regulatory
purposes, to ensure that certain indirect minority shareholders of AXA will not
be able to exercise control over EQ and certain of its insurance subsidiaries,
the voting shares of EQ capital stock beneficially owned by AXA and its
subsidiaries have been deposited into the AXA Voting Trust. For additional
information regarding the AXA Voting Trust, reference is made to the Schedule
13D filed by AXA with respect to EQ. As of June 30, 1999, AXA directly owned
approximately 1.5% of DLJ.
Finaxa is a societe anonyme organized under the laws of France and is a
holding company. As of March 1, 1999, Finaxa controlled directly and indirectly
approximately 20.7% of the issued ordinary shares (representing approximately
32.7% of the voting power) of AXA.
Page 31 of 142
<PAGE>
Each of AXA Assurances I.A.R.D. Mutuelle, AXA Assurances Vie Mutuelle,
AXA Courtage Assurance Mutuelle, and AXA Conseil Vie Assurance Mutuelle
(collectively, the "Mutuelles AXA") is a mutual insurance company organized
under the laws of France. Each of the Mutuelles AXA is owned by its policy
holders. As of March 1, 1999, the Mutuelles AXA, as a group, control
approximately 61.7% of the issued shares (representing approximately 72.3% of
the voting power) of Finaxa and 22.7% of the shares of Finaxa (representing
13.7% of the voting power) were owned by Paribas, a French bank. Including the
ordinary shares owned by Finaxa, on March 1, 1999, the Mutuelles AXA directly or
indirectly controlled 23.9% of the issued ordinary shares (representing 37.6% of
the voting power) of AXA. Acting as a group, the Mutuelles AXA control AXA and
Finaxa.
Claude Bebear, Patrice Garnier and Henri de Clermont-Tonnerre, the AXA
Voting Trustees, exercise all voting rights with respect to the shares of
Equitable capital stock beneficially owned by AXA and its subsidiaries that have
been deposited in the AXA Voting Trust. The business address, citizenship and
present principal occupation of each of the AXA Voting Trustees are set forth on
Schedule H attached hereto.
The address of the principal business and office of each of the DLJ
Entities and DLJ is 277 Park Avenue, New York, New York 10172. The address of
the principal business and principal office of Equitable is 1290 Avenue of the
Americas, New York, New York 10104.
The address of the principal business and principal office of AXA and
the AXA Voting Trustees is 9 Place Vendome, 75001 Paris, France. The address of
Finaxa is 23, avenue Matignon, 75008 Paris, France; of each of AXA Assurances
I.A.R.D. Mutuelle and AXA Assurances Vie Mutuelle is 21, rue de Chateaudun,
75009 Paris, France; of AXA Courtage Assurance Mutuelle is 26, rue
Louis-le-Grand, 75006 Paris, France; and of AXA Conseil Vie Assurance Mutuelle
is Tour Franklin, 100/101 Terrasse Boieldieu, Cedex 11, 92042 Paris La Defense,
France.
The name, business address, citizenship, present principal occupation
or employment and the name and business address of any corporation or
organization in which each such employment is conducted, of each executive
officer or member, as applicable, of the Board of Directors, Supervisory Board,
or the Conseil d'Administration (French analogue of a Board of Directors) of
DLJ, those DLJ Entities that are corporations, Equitable, AXA, Finaxa and the
Mutuelles AXA are set forth on Schedules A through N, respectively, attached
hereto.
During the past five (5) years, neither any of the Reporting Persons
nor, to the best knowledge of any of the Reporting Persons, any of the other
persons listed on Schedules A through N attached hereto, has been (i) convicted
in a criminal proceeding (excluding traffic violations or similar misdemeanors)
or (ii) a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to United States federal or state securities
laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
Viking has entered into the Voting Agreement ("Voting Agreement")
described in the response to Item 4. Neither Viking nor any of the other persons
listed in the response to Item 2 has expended any funds in connection with the
Voting Agreement.
Item 4. Purpose of Transaction.
On July 14, 1999, Merrill and Viking entered into an Agreement and Plan
of Merger (the "Merger Agreement," attached hereto and made a part hereof as
Exhibit 3). The Merger Agreement provides, among other things, for the merger of
Viking with and into Merrill (the "Merger"), with Merrill as the surviving
corporation (the "Surviving Corporation"). The Merger contemplates that
approximately 93.9% of the issued and outstanding Shares of Merrill will be
converted into cash and that approximately 6.1% of such Shares will be
rolled-over so that certain existing shareholders will own new shares in the
Surviving Corporation. The Merger will become effective at such time as the
certificate of merger is duly filed with the Secretary of State of the State of
Minnesota or at such later time as is specified in the certificate of merger
(the "Effective Time"). From and after the Effective Time, the Surviving
Corporation will possess all the property, rights, privileges, immunities,
powers and franchises and be subject to all of the debts, liabilities,
obligations, restrictions, disabilities and duties of Merrill and Viking, all as
Page 32 of 142
<PAGE>
provided under Minnesota Law. The Merger is subject to customary conditions,
including approval and adoption of the Merger Agreement by the stockholders of
Merrill.
After the Merger, it is expected that the DLJMB Funds will beneficially
own approximately 79.2% of the outstanding shares of common stock of the
Surviving Corporation.
In connection with the Merger, on July 14, 1999, John Castro and Rick
Atterbury, directors and stockholders of Merrill (the "Stockholders"), entered
into the Voting Agreement with Merrill and Viking (attached hereto and made a
part hereof as Exhibit 4). Pursuant to the Voting Agreement, the Stockholders
have agreed among other things to vote an aggregate of 2,185,078 Shares
(representing approximately 13.6% of the outstanding Shares) and any Shares to
which they may become entitled upon the exercise of options that they hold over
an additional 281,300 Shares in favor of approval and adoption of the Merger
Agreement (the "Scheduled Securities").
During the period (the "Agreement Period") beginning on July 14, 1999
and ending on the earlier of (i) the time which is immediately prior to the
Effective Time or (ii) the termination of the Merger Agreement in accordance
with its terms, each of the Stockholders has agreed to vote his Scheduled
Securities to approve and adopt the Merger Agreement, the Merger and all
agreements related to the Merger and any actions related thereto at any meeting
or meetings of the stockholders of Merrill, and at any adjournment thereof, at
which such Merger Agreement and other related agreements (or any amended version
or versions thereof), or such other actions, are submitted for the consideration
and vote of the stockholders of Merrill. The Stockholders have appointed Viking
during the Agreement Period to vote their Shares for and in their name in the
above manner.
Each of the Stockholders has agreed that during the Agreement Period,
he will not vote any of his Scheduled Securities in favor of the approval of any
other merger, consolidation, sale of assets, reorganization, recapitalization,
liquidation or winding up of Merrill or any other extraordinary transaction
involving Merrill or any matters related to or in connection therewith, or any
corporate action relating to or the consummation of which would either frustrate
the purposes of, or prevent or delay the consummation of, the transactions
contemplated by the Merger Agreement.
Each Stockholder has agreed that until the termination of the Voting
Agreement, he will not, directly or indirectly, (i) take any action to solicit,
initiate or encourage any acquisition proposal or (ii) engage in negotiations or
discussions with, or disclose any nonpublic information relating to Merrill or
any subsidiary or afford access to the properties, books or records of Merrill
or any subsidiary to, or otherwise assist, facilitate or encourage, any third
party that may be considering making, or has made, an acquisition proposal.
Under the Voting Agreement and the Merger Agreement, 909,091 Shares
held by Mr. Castro will be exchanged for shares of Class B Common Stock in
Merrill that will remain outstanding after the Merger, and the balance of Mr.
Castro's shares will be converted into the right to receive cash of $22.00 per
share in the Merger. In addition, 70,000 Shares held by Mr. Atterbury will be
exchanged for shares of Class B Common Stock that will remain outstanding after
the Merger, and the balance of Mr. Atterbury's Shares will be converted into the
right to receive cash of $22.00 per share in the Merger.
The parties to the Voting Agreement contemplate that, promptly
following the Merger, the Board of Directors will be changed so as to consist of
seven directors, of which four (including the chairman) will be nominated by the
DLJMB Entities and three will be nominated by Mr. Castro and Mr. Atterbury.
Subject to market conditions and other factors, the DLJMB Funds or
other affiliates of DLJ may acquire or dispose of shares of Merrill from time to
time in future open-market, privately negotiated or other transactions, may
agree with Merrill or the Stockholders to amend the Merger Agreement or the
Voting Agreement, may enter into agreements with third parties relating to
acquisitions of securities to be issued by the Surviving Corporation or Viking,
may enter into agreements with the management of Merrill relating to
acquisitions of shares of the Surviving Corporation by members of management,
issuances of options to management or their employment by the Surviving
Corporation, or may effect other similar agreements or transactions.
At the Effective Time the Shares will become eligible for termination
of registration and will subsequently cease to be listed on any national
securities exchange.
Page 33 of 142
<PAGE>
Item 5. Interest in Securities of the Issuer.
Viking, pursuant to the Voting Agreement, has obtained the agreement of
the Stockholders to vote in favor of the adoption and approval of the Merger
Agreement (as described in Item 4), and, for the purposes of Rule 13d-3
promulgated under the Exchange Act, may be deemed to beneficially own, 2,287,678
Shares (the "Viking Shares"), representing, for the purposes of Rule 13d-3,
approximately 14.1% of the outstanding Shares of Merrill. Viking disclaims
beneficial ownership of the Viking Shares.
Each of the DLJ Entities may be deemed to beneficially own the Viking
Shares. However, each of the DLJ Entities disclaims beneficial ownership of the
Viking Shares.
As the sole stockholder of DLJCI, DLJ may be deemed, for purposes of
Rule 13d-3 under the Act, to beneficially own indirectly the Viking Shares that
may be deemed to be owned beneficially by DLJCI. Because of EQ's ownership
interest in DLJ, EQ may be deemed, for purposes of Rule 13d-3 under the Act, to
beneficially own indirectly the Viking Shares that may be deemed to be
beneficially owned indirectly by DLJ. Each of DLJ and EQ disclaims beneficial
ownership of the Viking Shares.
Because of AXA's ownership interest in EQ, and the AXA Voting Trustees'
power to vote the EQ shares placed in the AXA Voting Trust, each of AXA and the
AXA Voting Trustees may be deemed, for purposes of Rule 13d-3 under the Act, to
beneficially own indirectly the Viking Shares that EQ may be deemed to
beneficially own indirectly. Because of the direct and indirect ownership
interest in AXA of Finaxa and the Mutuelles AXA, each of Finaxa and the
Mutuelles AXA may be deemed, for purposes of Rule 13d-3 under the Act, to
beneficially own indirectly the Viking Shares that AXA may be deemed to
beneficially own indirectly. AXA, Finaxa, the Mutuelles AXA, and the AXA Voting
Trustees expressly disclaim beneficial ownership of any of the Viking Shares.
In addition, in the ordinary course of their investment business, EQ is
indirectly interested in 67,100 Shares and AXA is indirectly interested in
270,400 Shares.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
See response to Item 4.
A copy of each of the Merger Agreement and the Voting Agreement are
attached hereto as Exhibits 3 and 4 and are incorporated herein by reference.
Except for the agreements described above or in the response to Item 4,
to the best knowledge of the Reporting Persons, there are no contracts,
arrangements, understandings or relationships (legal or otherwise) between the
persons enumerated in Item 2, and any other person, with respect to any
securities of Merrill, including, but not limited to, transfer or voting of any
of the securities, finder's fees, joint ventures, loan or option arrangements,
puts or calls, guarantees of profits, division of profits or loss, or the giving
or withholding of proxies.
Item 7. Material to be Filed as Exhibits.
Exhibit 1: Joint Filing Agreement among the Reporting Persons
Exhibit 2: Powers of Attorney
Exhibit 3: Agreement and Plan of Merger dated as of July 14, 1999
between Merrill Corporation and Viking Merger Sub, Inc.
Exhibit 4: Voting Agreement dated July 14, 1999 among Merrill
Corporation, Viking Merger Sub, Inc., John Castro and Rick Atterbury.
Page 34 of 142
<PAGE>
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: July 23, 1999
Viking Merger Sub, Inc.
By: /s/ William F. Dawson
-----------------------------------
Name: William F. Dawson
Title: President
Page 35 of 142
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: July 23, 1999
DLJ Merchant Banking Partners II, L.P.
By DLJ Merchant Banking II, Inc.,
as Managing General Partner
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
Page 36 of 142
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: July 23, 1999
DLJ Merchant Banking Partners II-A, L.P.
By DLJ Merchant Banking II, Inc.,
as Managing General Partner
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
Page 37 of 142
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: July 23, 1999
DLJ Millennium Partners, L.P.
By DLJ Merchant Banking II, Inc.,
as Managing General Partner
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
Page 38 of 142
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: July 23, 1999
DLJ Millennium Partners -A, L.P.
By DLJ Merchant Banking II, Inc.,
as Managing General Partner
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
Page 39 of 142
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: July 23, 1999
DLJ EAB Partners, L.P.
By DLJ LBO Plans Management Corporation
as Managing General Partner
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
Page 40 of 142
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: July 23, 1999
DLJ Offshore Partners II, C.V.
By DLJ Merchant Banking II, Inc.,
as Advisory General Partner
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
Page 41 of 142
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: July 23, 1999
DLJ Merchant Banking II, LLC
By DLJ Merchant Banking II, Inc.,
as Managing Member
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
Page 42 of 142
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: July 23, 1999
DLJ Merchant Banking II, Inc.
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
Page 43 of 142
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: July 23, 1999
DLJ Diversified Partners, L.P.
By DLJ Diversified Partners, Inc.,
as Managing General Partner
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
Page 44 of 142
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: July 23, 1999
DLJ Diversified Partners-A, L.P.
By DLJ Diversified Partners, Inc.,
as Managing General Partner
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
Page 45 of 142
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: July 23, 1999
DLJ Diversified Associates, L.P.
By DLJ Diversified Partners, Inc.,
as Managing General Partner
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
Page 46 of 142
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: July 23, 1999
DLJ Diversified Partners, Inc.
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
Page 47 of 142
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: July 23, 1999
DLJ First ESC, L.P.
By DLJ LBO Plans Management Corporation,
as Managing General Partner
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
Page 48 of 142
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: July 23, 1999
DLJ ESC II L.P.
By DLJ LBO Plans Management Corporation,
as Managing General Partner
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
Page 49 of 142
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: July 23, 1999
DLJ LBO Plans Management Corporation
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
Page 50 of 142
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: July 23, 1999
DLJMB Funding II, Inc.
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
Page 51 of 142
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: July 23, 1999
DLJ Capital Investors, Inc.
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
Page 52 of 142
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: July 23, 1999
Donaldson, Lufkin & Jenrette, Inc.
By: /s/ Marjorie White
-----------------------------------
Name: Marjorie White
Title: Secretary
Page 53 of 142
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: July 22, 1999
The Equitable Companies Incorporated
By: /s/ Alvin H. Fenichel
-----------------------------------
Name: Alvin H. Fenichel
Title: Senior Vice President
and Controller
Page 54 of 142
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: July 22, 1999
AXA
Finaxa
AXA Assurances I.A.R.D. Mutuelle
AXA Assurances Vie Mutuelle
AXA Courtage Assurance Mutuelle
AXA Conseil Vie Assurance Mutuelle
Claude Bebear, as AXA Voting Trustee
Patrice Garnier, as AXA Voting Trustee
Henri de Clermont-Tonnerre, as AXA
Voting Trustee
Signed on behalf of each of the above
By: /s/ Alvin H. Fenichel
-----------------------------------
Name: Alvin H. Fenichel
Title: Attorney-in-fact
Page 55 of 142
<PAGE>
Schedule A
Executive Officers and Directors
of
Viking Merger Sub, Inc.
The names of the Directors and the names and titles of the Executive
Officers of Viking Merger Sub, Inc. ("Viking") and their principal occupations
are set forth below. The Director's or Executive Officer's business address is
that of Viking at 277 Park Avenue, New York, New York 10172. Unless otherwise
indicated, each occupation set forth opposite an individual's name refers to
Mercury and each individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* William F. Dawson, Jr. President and Treasurer; Principal; DLJ
Merchant Banking II, Inc.
* Keith Palumbo Vice President and Secretary; Vice President,
DLJ Merchant Banking II, Inc.
- ------------
* Director
Page 56 of 142
<PAGE>
Schedule B
Executive Officers and Directors
of
DLJ Merchant Banking II, Inc.
The names of the Directors and the names and titles of the Executive
Officers of DLJ Merchant Banking II, Inc. ("MBII INC") and their principal
occupations are set forth below. The Director's or Executive Officer's business
address is that of MBII INC at 277 Park Avenue, New York, New York 10172. Unless
otherwise indicated, each occupation set forth opposite an individual's name
refers to MBII INC and each individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Hamilton E. James Chairman; Managing Director, Donaldson,
Lufkin & Jenrette, Inc.
* Nicole S. Arnaboldi Managing Director
* Thompson Dean Managing Director
Carlos Garcia Managing Director
* Peter T. Grauer Managing Director
* David L. Jaffe Managing Director
* Lawrence M.v.D. Schloss Managing Director and Chief Operating Officer
* Karl R. Wyss Managing Director
- ------------
* Director
Page 57 of 142
<PAGE>
Schedule C
Executive Officers and Directors
of
DLJ Diversified Partners, Inc.
The names of the Directors and the names and titles of the Executive
Officers of DLJ Diversified Partners, Inc. ("DP INC") and their business
addresses and principal occupations are set forth below. If no address is given,
the Director's or Executive Officer's business address is that of DP INC at 277
Park Avenue, New York, New York 10172. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to DP INC and each
individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Hamilton E. James Chairman; Managing Director, Donaldson,
Lufkin & Jenrette, Inc.
* Lawrence M.v.D. Schloss Managing Director and Chief Operating
Officer; Managing Director and Chief
Operating Officer, DLJ Merchant Banking II,
Inc.
* Marjorie S. White Secretary and Treasurer; Vice President and
Secretary, Donaldson, Lufkin & Jenrette, Inc.
- ------------
* Director
Page 58 of 142
<PAGE>
Schedule D
Executive Officers and Directors
of
DLJMB Funding, II, Inc.
The names of the Directors and the names and titles of the Executive
Officers of DLJ MB Funding, II, Inc. ("Funding II") and their business addresses
and principal occupations are set forth below. If no address is given, the
Director's or Executive Officer's business address is that of Funding II at 277
Park Avenue, New York, New York 10172. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to Funding II and each
individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Anthony F. Daddino President; Executive Vice President and Chief
Financial Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Charles J. Hendrickson Treasurer; Senior Vice President and Treasurer,
Donaldson, Lufkin & Jenrette, Inc.
Marjorie S. White Secretary; Vice President and Secretary,
Donaldson, Lufkin & Jenrette, Inc.
- ------------
* Director
Page 59 of 142
<PAGE>
Schedule E
Executive Officers and Directors
of
DLJ LBO Plans Management Corporation
The names of the Directors and the names and titles of the Executive
Officers of DLJ LBO Plans Management Corporation ("LBO") and their business
addresses and principal occupations are set forth below. Each Director's or
Executive Officer's business address is that of LBO at 277 Park Avenue, New
York, New York 10172. Unless otherwise indicated, each occupation set forth
opposite an individual's name refers to LBO and each individual is a United
States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Anthony F. Daddino President; Executive Vice President and Chief
Financial Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Vincent DeGiaimo Vice President; Senior Vice President and
Managing Director, Donaldson, Lufkin &
Jenrette, Inc.
* Marjorie S. White Vice President and Secretary; Vice President,
Donaldson, Lufkin & Jenrette, Inc.
- ------------
* Director
Page 60 of 142
<PAGE>
Schedule F
Executive Officers and Directors
of
DLJ Capital Investors, Inc.
The names of the Directors and the names and titles of the Executive
Officers of DLJ Capital Investors, Inc. ("DLJCI") and their business addresses
and principal occupations are set forth below. If no address is given, the
Director's or Executive Officer's business address is that of DLJCI at 277 Park
Avenue, New York, New York 10172. Unless otherwise indicated, each occupation
set forth opposite an individual's name refers to DLJCI and each individual is a
United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* John S. Chalsty Chairman; Chairman and Chief Executive
Officer, Donaldson, Lufkin & Jenrette, Inc.
* Hamilton E. James Chief Executive Officer; Managing Director,
Donaldson, Lufkin & Jenrette, Inc.
* Joe L. Roby Chief Operating Officer; President and Chief
Operating Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Anthony F. Daddino Executive Vice President and Chief Financial
Officer; Executive Vice President and Chief
Financial Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Marjorie S. White Secretary and Treasurer; Vice President and
Secretary, Donaldson, Lufkin & Jenrette, Inc.
- ------------
* Director
Page 61 of 142
<PAGE>
Schedule G
Executive Officers and Directors
of
Donaldson, Lufkin & Jenrette, Inc.
The names of the Directors and the names and titles of the Executive
Officers of Donaldson, Lufkin & Jenrette, Inc. ("DLJ") and their business
addresses and principal occupations are set forth below. If no address is given,
the Director's or Executive Officer's business address is that of DLJ at 277
Park Avenue, New York, New York 10172. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to DLJ and each
individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* John S. Chalsty Chairman and Chief Executive Officer
* Joe L. Roby President and Chief Operating Officer
* Claude Bebear (1) Chairman of the Executive Board, AXA
AXA
23, avenue Matignon
75008 Paris, France
* Henri de Castries (1) Senior Executive Vice President
AXA Financial Services and Life Insurance
23, avenue Matignon Activities (U.S. & U.K.), AXA
75008 Paris, France
* Denis Duverne (1) Senior Vice President - International
AXA Life, AXA
23, avenue Matignon
75008 Paris, France
* Louis Harris Chairman and Chief Executive Officer,
LH Research LH Research (research)
152 East 38th Street
New York, New York 10016-2605
* Henri G. Hottinguer (3) Chairman and Chief Executive Officer,
Banque Hottinguer Banque Hottinguer (banking)
38, rue de Provence
75009 Paris, France
* W. Edwin Jarmain (2) President, Jarmain Group Inc. (private
Jarmain Group Inc. investment holding company)
Suite 2525, Box 36
121 King Street, West
Toronto, Ontario
M5H 3T9 Canada
* Francis Jungers Retired
19880 NW Nestucca Drive
Portland, Oregon 97229
* Joseph J. Melone Chairman of the Executive Committee
1290 Avenue of the Americas of the Board, The Equitable Companies
New York, New York 10104 Incorporated
Page 62 of 142
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Edward D. Miller President and Chief Executive Officer,
1290 Avenue of the Americas The Equitable Companies Incorporated
New York, New York 10104
* W. J. Sanders, III Chairman and Chief Executive Officer,
Advanced Micro Devices, Inc. Advanced Micro Devices
901 Thompson Place
Sunnyvale, CA 94086
* Stanley B. Tulin Executive Vice President and Chief
Financial Officer, The Equitable
Companies Incorporated
* John C. West Retired
Bothea, Jordan & Griffin
23B Shelter Cove
Hilton Head Island, SC 29928
* Carl B. Menges Vice Chairman of the Board
* Hamilton E. James Managing Director
* Richard S. Pechter Managing Director
* Theodore P. Shen Managing Director
* Anthony F. Daddino Executive Vice President and Chief
Financial Officer
- ------------
* Director
(1) Citizen of the Republic of France
(2) Citizen of Canada
(3) Citizen of Switzerland
Page 63 of 142
<PAGE>
Schedule H
Executive Officers and Directors
of
The Equitable Companies Incorporated
The names of the Directors and the names and titles of the Executive
Officers of The Equitable Companies Incorporated ("EQ") and their business
addresses and principal occupations are set forth below. If no address is given,
the Director's or Executive Officer's business address is that of EQ at 1290
Avenue of the Americas, New York, New York 10104. Unless otherwise indicated,
each occupation set forth opposite an individual's name refers to EQ and each
individual is a United States citizen.
<TABLE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C> <C>
* Claude Bebear (1) Chairman of the Executive Board, AXA
AXA
23, avenue Matignon
75008 Paris, France
* John S. Chalsty Chairman, Donaldson, Lufkin & Jenrette, Inc.
Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, NY 10172
* Francoise Colloc'h (1) Senior Executive Vice President, Group Human
AXA Resources and Communications, AXA
23, avenue Matignon
75008 Paris, France
* Henri de Castries (1) Chairman of the Board; Senior Executive Vice
AXA President, Financial Services and Life
23, avenue Matignon Insurance Activities, U.S. & U.K.), AXA
75008 Paris, France
* Joseph L. Dionne Chairman and Chief Executive Officer, The
The McGraw-Hill Companies McGraw-Hill Companies (publishing)
1221 Avenue of the Americas
New York, NY 10020
* Jean-Rene Fourtou (1) Chairman and Chief Executive Officer, Rhone-
Rhone-Poulenc S.A. Poulenc S.A. (manufacturer of chemicals and
25 Quai Paul Doumer agricultural products)
92408 Courbevoie Cedex
France
* Jacques Friedmann (1) Chairman of the Supervisory Board,
AXA AXA
9, Place Vendome
75001 Paris
France
Page 64 of 142
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
Robert E. Garber Executive Vice President and General Counsel;
Executive Vice President and General Counsel,
The Equitable Life Assurance Society of the
United States
* Donald J. Greene, Esq. Counselor-at-Law, Partner, LeBoeuf, Lamb,
LeBoeuf, Lamb, Greene & Greene & MacRae, L.L.P. (law firm)
MacRae, L.L.P.
125 West 55th Street
New York, NY 10019
* Anthony J. Hamilton (2) Group Chairman and Chief Executive Officer,
Fox-Pitt, Kelton Group Limited Fox-Pitt, Kelton Group Limited (finance)
35 Wilson Street
London, England EC2M 2SJ
* John T. Hartley Retired Chairman and Chief Executive Officer,
Harris Corporation currently Director, Harris Corporation
1025 NASA Boulevard (manufacturer of electronic, telephone and
Melbourne, FL 32919 copying systems)
* John H. F. Haskell, Jr. Director and Managing Director, Warburg
Warburg Dillon Read LLC Dillon Read LLC (formerly, SBC Warburg
299 Park Avenue Dillon Read, Inc.) (investment banking firm)
New York, NY 10171
Michael Hegarty Vice Chairman of the Board and Chief
Operating Officer; President and Chief
Operating Officer, The Equitable Life
Assurance Society of the United States
* Nina Henderson President, BestFoods Grocery (formerly, CPC
BestFoods Grocery International, Inc.) (food manufacturer)
700 Sylvan Avenue
Englewood, NJ 07632
* W. Edwin Jarmain (3) President, Jarmain Group Inc. (private
Jarmain Group Inc. investment holding company)
Suite 2525
121 King Street West
Toronto, Ontario M5H 3T9
Canada
* Edward D. Miller President and Chief Executive Officer;
Chairman and Chief Executive Officer, The
Equitable Life Assurance Society of the United
States
Page 65 of 142
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
Peter D. Noris Executive Vice President and Chief Investment
Officer; Executive Vice President and Chief
Investment Officer, The Equitable Life
Assurance Society of the United States
* Didier Pineau-Valencienne(1) Vice Chairman, Credit Suisse First Boston
64, rue de Miromesnil (investment banking firm)
75008 Paris, France
* George J. Sella, Jr. Retired Chairman and Chief Executive Officer,
American Cyanamid Company American Cyanamid Company (manufacturer
P.O. Box 397 of pharmaceutical products and agricultural
Newton, NJ 07860 products)
Jose Suquet Executive Vice President; Executive Vice
President and Chief Distribution Officer; The
Equitable Life Assurance Society of the United
States
* Peter J. Tobin Dean, College of Business Administration
College of Business Administration (education)
St. John's University
8000 Utopia Parkway
Bent Hall
Jamaica, NY 11439
Stanley B. Tulin Executive Vice President and Chief Financial
Officer; Vice Chairman of the Board and Chief
Financial Officer, The Equitable Life
Assurance Society of the United States
* Dave H. Williams Chairman and Chief Executive Officer,
Alliance Capital Alliance Capital Management Corp.
Management Corporation (investment adviser)
1345 Avenue of the Americas
New York, NY 10105
- ------------
* Director
(1) Citizen of the Republic of France
(2) Citizen of United Kingdom
(3) Citizen of Canada
</TABLE>
Page 66 of 142
<PAGE>
Schedule I
Members of Executive Committee and Supervisory Board
of
AXA
The names and titles (for the Executive Committee members) of the
Members of the Executive Committee and Supervisory Board of AXA and their
business addresses and principal occupations are set forth below. If no address
is given, the Member's business is 23, avenue Matignon, 75008 Paris, France.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to AXA and each individual is a citizen of the Republic of France.
Members of the Executive Committee
Name, Business Address Present Principal Occupation
- ---------------------- ----------------------------
Claude Bebear Chairman of the Executive Board
Donald Brydon (1) Senior Executive Vice President, AXA
Asset Management Europe
Henri de Castries Senior Executive Vice President,
Financial Services and Insurance
Activities (U.S. and U.K.)
John Chalsty (2) Senior Executive Vice President;
Chairman and Chief Executive Officer,
Donaldson, Lufkin & Jenrette, Inc.
(investment banking)
Francoise Colloch Senior Executive Vice President, Group
Human Resources and Communications
Jean-Pierre Gerard (3) Senior Executive Vice President; Chief
Executive Officer, Royale Beige
(insurance)
Denis Kessler Senior Executive Vice President,
Insurance Activities outside France,
U.K. and U.S.
Claus Kleyboldt (4) Senior Executive Vice President;
Chairman of the Executive Board of
AXA Colonia (insurance)
Gerard de La Martiniere Senior Executive Vice President, Chief
Financial Officer
Edward D. Miller (2) Senior Executive Vice President;
President and Chief Executive Officer,
The Equitable Companies Incorporated
Jean-Louis Meunier Senior Executive Vice President,
Central Underwriting Officer
Michel Pinault Senior Executive Vice President, Group
Administration
Page 67 of 142
<PAGE>
Name, Business Address Present Principal Occupation
- ---------------------- ----------------------------
Claude Tendil Senior Executive Vice President,
French Insurance Activities,
international risks, transborder
insurance projects and information
systems policy
Geoff Tomlinson (5) Senior Executive Vice President;
Managing Director, National Mutual
Holdings (insurance)
Dave H. Williams (2) Senior Executive Vice President;
Chairman and Chief Executive Officer,
Alliance Capital Management
Corporation (investment adviser)
Mark Wood (1) Senior Executive Vice President;
Managing Director, Sun Life &
Provincial Holdings plc
Page 68 of 142
<PAGE>
Members of the Supervisory Board
Name, Business Address Present Principal Occupation
- ---------------------- ----------------------------
Jacques Friedmann Chairman of the Supervisory Board
9, Place Vendome
75008 Paris, France
Jean-Louis Beffa Chairman and Chief Executive Officer,
"Les Miroirs" Compagnie de St. Gobain (industry)
Cedex 27
92096 Paris La Defense, France
Antoine Bernheim General Partner, Lazard Freres et Cie
121, Avenue Haussman (investment banking); Chairman,
75008 Paris, France Assicurazioni Generali S.p.A.
(insurance)
Jacques Calvet Former Chairman of the Executive
75, avenue de la Grande Armee Board, Peugeot S.A. (auto
75116 Paris, France manufacturer)
David Dautreseme General Partner, Lazard Freres et Cie
121, Boulevard Haussman (investment banking)
75008 Paris, France
Guy Dejouany Honorary Chairman, Compagnie
52, rue d'Anjou Generaledes Eaux (industry and
75008 Paris, France services)
Paul Desmarais (7) Chairman and Chief Executive Officer,
751, Square Victoria Power Corporation (industry and
Montreal Quebec services)
H3Y 3JY Canada
Jean-Rene Fourtou Chairman and Chief Executive Officer,
25, quai Paul Doumer Rhone-Poulenc S.A. (industry)
93408 Courbevoie Cedex
France
Michel Francois-Poncet Chairman of the Supervisory Board,
5, Rue d'Antin Compagnie Financiere de Paribas
75002 Paris, France (financial services and banking)
Patrice Garnier Director, Finaxa
Latreaumont
76360 Baretin, France
Anthony J. Hamilton (1) General Partner, Fox-Pitt, Kelton
35 Wilson Street Group Limited (finance)
London, England EC2M 2SJ
Henri Hottinguer (6) Vice Chairman, Financier Hottinguer
38, rue de Provence (banking)
75009 Paris, France
Page 69 of 142
<PAGE>
Name, Business Address Present Principal Occupation
- ---------------------- ----------------------------
Richard H. Jenrette (2) Senior Advisor, Donaldson, Lukfin &
c/o Donaldson, Lukfin & Jenrette, Inc. Jenrette, Inc. (investment banking)
277 Park Avenue
New York, New York 10172
Henri Lachmann Chairman and Chief Executive Officer,
56, rue Jean Giraudoux Stafor Facom (office furniture)
67200 Strasbourg, France
Gerard Mestallet Chairman of the Executive Board
1, rue d'Astorg (finance) Suez Lyonnaise des Eaux
75008 Paris, France
Friedel Neuber Chairman of the Executive Board,
Girozentrade Herzogstrasse 15 WestDeutsche Landesbank (banking)
D40127 Dusseldorf, Germany
Alfred von Oppenheim (4) Chairman, Bank Oppenheim (banking)
Konsortium Oppenheim
Unter Sachsenrausen 4
50667 Koln, Germany
Michel Pebereau Chairman and Chief Executive Officer,
16, Boulevard des Italiens Banque Nationale de Paris (banking)
75009 Paris, France
Didier Pineau-Valencienne Chairman and Chief Executive Officer,
64-70, avenue Jean Baptiste Clement Schneider S.A. (electric equipment)
92646 Boulogne Cedex, France
Bruno Roger General Partner, Lazard Freres & Cie
121, Boulevard Hausmann (investment banking)
75008 Paris, France
Simone Rozes First Honorary President, Cour de
2, rue Villaret de Joyeuse Cassation (government)
75017 Paris, France
- ------------
(1) Citizen of the United Kingdom
(2) Citizen of the United States of America
(3) Citizen of Belgium
(4) Citizen of Germany
(5) Citizen of Australia
(6) Citizen of Switzerland
(7) Citizen of Canada
Page 70 of 142
<PAGE>
Schedule J
Executive Officers and
Members of Conseil d'Administration
of
FINAXA
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of Finaxa and their business addresses and
principal occupations are set forth below. If no address is given, the Member's
or Executive Officer's business address is that of Finaxa at 23, avenue
Matignon, 75008 Paris, France. Unless otherwise indicated, each occupation set
forth opposite an individual's name refers to Finaxa and each individual is a
citizen of the Republic of France.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear Chairman and Chief Executive Officer;
Chairman of the Executive Board, AXA
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board,
4, avenue Van Dyke Qualis SCA (transportation)
75008 Paris, France
* Jean-Rene Fourtou Chairman and Chief Executive Officer,
25, quai Paul Doumer Rhone-Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Hottinguer (1) Chairman and Chief Executive Officer,
38, rue de Provence Banque Hottinguer (banking)
75009 Paris, France
* Paul Hottinguer (1) Assistant Chairman and Chief Executive
38, rue de Provence Officer, Banque Hottinguer (banking)
75009 Paris, France
* Henri Lachmann Chairman and Chief Executive Officer,
56, rue Jean Giraudoux Strafor Facom (office furniture)
67000 Strasbourg, France
* Andre Levy-Lang Chief Executive Officer, Paribas
3, rue d'Antin (banking)
75002 Paris, France
Christien Manset Vice Chairman of the Supervisory Board,
3, rue d'Antin Banque Paribas
75002 Paris, France
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan, France
Page 71 of 142
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
Emilio Ybarra (2) Chairman, Banco Bilbao Vizcaya
Paseo de la Castillone, 8 (banking)
28046 Madrid, Spain
- ------------
* Member, Conseil d'Administration
(1) Citizen of Switzerland
(2) Citizen of Spain
Page 72 of 142
<PAGE>
Schedule K
Executive Officers and
Members of Conseil d'Administration
of
AXA ASSURANCES I.A.R.D. MUTUELLE
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of AXA Assurances I.A.R.D. Mutuelle and their
business addresses and principal occupations are set forth below. If no address
is given, the Member's or Executive Officer's business address is that of AXA
Assurances I.A.R.D. Mutuelle at 21, rue de Chateaudun, 75009 Paris, France.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to AXA Assurances I.A.R.D. Mutuelle and each individual is a citizen
of the Republic of France.
<TABLE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C> <C>
* Claude Bebear Chairman; Chairman of the Executive Board,
23, avenue Matignon AXA
75008 Paris, France
Jean-Luc Bertozzi Executive Officer
* Jean-Pierre Chaffin Manager, Federation de la Metallurgie
5, rue la Bruyere (industry)
75009 Paris, France
* Gerard Coutelle Retired
* Henri de Castries Senior Executive Vice President, Financial
23, avenue Matignon Services and Life Insurance Activities (U.S. &
75008 Paris, France U.K.), AXA
* Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone-
25, quai Paul Doumer Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Lachmann Chairman and Chief Executive Officer, Strafor
56, rue Jean Giraudoux Facom (office furniture)
67000 Strasbourg, France
* Francois Richer Retired
Georges Rousseau Retired
* 2, rue des Mouettes
76130 Mont Saint Aignan, France
* Claude Tendil Chief Executive Officer; Senior Executive Vice
President, French Insurance Activities, AXA
Page 73 of 142
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Nicolas Thiery Chairman and Chief Executive Officer,
6 Cite de la Chapelle Etablissements Jaillard (management
75018 Paris, France consulting)
* Francis Vaudour Chief Executive Officer, Segafredo Zanetti
14, boulevard Industriel France S.A. (coffee importing and processing)
76301 Sotteville les Rouen, France
- ------------
* Member, Conseil d'Administration
</TABLE>
Page 74 of 142
<PAGE>
Schedule L
Executive Officers and
Members of Conseil d'Administration
of
AXA ASSURANCES VIE MUTUELLE
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of AXA Assurances Vie Mutuelle and their
business addresses and principal occupations are set forth below. If no address
is given, the Member's or Executive Officer's business address is that of AXA
Assurances Vie Mutuelle at 21, rue de Chateaudun, 75009 Paris, France. Unless
otherwise indicated, each occupation set forth opposite an individual's name
refers to AXA Assurances Vie Mutuelle and each individual is a citizen of the
Republic of France.
<TABLE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C> <C>
* Claude Bebear Chairman; Chairman of the Executive Board,
23, avenue Matignon AXA
75008 Paris, France
Jean-Luc Bertozzi Executive Vice President
* Jean-Pierre Chaffin Manager, Federation de la Metallurgie
11, rue de Rome (industry)
75008 Paris, France
* Henri de Castries Senior Executive Vice President, Financial
23, avenue Matignon Services and Life Insurance Activities (U.S. &
75008 Paris, France U.K.), AXA
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis
4, avenue Van Dyke SCA (transportation)
75008 Paris, France
* Gerard Coutelle Retired
* Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone-
25, quai Paul Doumer Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Henri Lachmann Vice Chairman; Chairman and Chief Executive
56, rue Jean Giraudoux Officer, Strafor Facom (office furniture)
67000 Strasbourg, France
* Francois Richer Retired
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan, France
* Claude Tendil Chief Executive Officer; Senior Executive Vice
Tour Assur 38 President, French Insurance Activities, AXA
92083 Paris La Defense, France
Page 75 of 142
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Nicolas Thiery Chairman and Chief Executive Officer,
6 Cite de la Chapelle Etablissements Jaillard (management
75018 Paris, France consulting)
* Francis Vaudour Chief Executive Officer, Segafredo Zanetti
14, boulevard Industriel France S.A. (coffee importing and processing)
76301 Sotteville les Rouen, France
- ------------
* Member, Conseil d'Administration
</TABLE>
Page 76 of 142
<PAGE>
Schedule M
Executive Officers and
Members of Conseil d'Administration
of
AXA COURTAGE ASSURANCE MUTUELLE
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of AXA Courtage Assurance Mutuelle and their
business addresses and principal occupations are set forth below. If no address
is given, the Member's or Executive Officer's business address is that of AXA
Courtage Assurance Mutuelle at 26, rue de Louis-le-Grand, 75002 Paris, France.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to AXA Courtage Assurance Mutuelle and each individual is a citizen
of the Republic of France.
<TABLE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C> <C>
* Claude Bebear Chairman; Chairman of the Executive Board,
23, avenue Matignon AXA
75008 Paris, France
* Francis Cordier Chairman and Chief Executive Officer, Group
rue Nicephore Niepce BP 232 76304 Sotteville Demay Lesieur (food industry)
Les Rouen, France
* Gerard Coutelle Retired
* Henri de Castries Senior Executive Vice President, Financial
23, avenue Matignon Services and Life Insurance Activities (U.S. &
75008 Paris, France U.K.), AXA
* Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone-
25, quai Paul Doumer Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Lachmann Vice Chairman; Chairman and Chief Executive
56, rue Jean Giraudoux Officer, Strafor Facom (office furniture)
67000 Strasbourg, France
* Francis Magnan Chairman and Chief Executive Officer,
50, boulevard des Dames Compagnie Daher (air and sea transportation)
13002 Marseille, France
* Jean de Ribes Chairman and Chief Executive Officer, Banque
38, rue Fortuny Rivaud (banking)
75008 Paris, France
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan, France
Page 77 of 142
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Jean-Paul Saillard Manager, AXA
23, avenue Matignon
75008 Paris, France
* Claude Tendil Chief Executive Officer; Senior Executive Vice
Tour Assur 38 President, French Insurance Activities, AXA
92083 Paris La Defense, France
- ------------
* Member, Conseil d'Administration
</TABLE>
Page 78 of 142
<PAGE>
Schedule N
Executive Officers and
Members of Conseil d'Administration
of
AXA CONSEIL VIE ASSURANCE MUTUELLE
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of Alpha Assurances Vie Mutuelle and their
business addresses and principal occupations are set forth below. If no address
is given, the Member's or Executive Officer's business address is that of Alpha
Assurances Vie Mutuelle at Tour Franklin, 100/101 Terrasse Boieldieu, Cedex 11,
92042 Paris La Defense, France. Unless otherwise indicated, each occupation set
forth opposite an individual's name refers to Alpha Assurances Vie Mutuelle and
each individual is a citizen of the Republic of France.
<TABLE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C> <C>
* Claude Bebear Chairman; Chairman of the Executive Board,
23, avenue Matignon AXA
75008 Paris, France
* Henri Brischoux Corporate Secretary; AXA Assurance France
Tour Assua 38
92083 Paris La Defense, France
* Bernard Cornille Audit Manager, AXA Assurances
21, rue de Chateaudun
75009 Paris, France
* Henri de Castries Senior Executive Vice President, Financial
23, avenue Matignon Services and Life Insurance Activities (U.S. &
75008 Paris, France U.K.), AXA
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis
4, avenue Van Dyke SCA (transportation)
75008 Paris, France
* Claude Fath Chairman of the Executive Board, UAP Vie
Tour Assur 28F
92083 Paris Las Defense, France
* Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone-
25, quai Paul Doumer Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Lachmann Vice Chairman; Chairman and Chief Executive
56, rue Jean Giraudoux Officer, Strafor Facom (office furniture)
67000 Strasbourg, France
Page 79 of 142
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan, France
* Claude Tendil Chief Executive Officer; Senior Executive Vice
Tour Assur 38 President, French Insurance Activities, AXA
92083 Paris La Defense, France
* Francis Vaudour Chief Executive Officer, Segafredo Zanetti
14, boulevard Industriel France S.A. (coffee importing and processing)
76301 Sotteville les Rouen,
France
- ------------
* Member, Conseil d'Administration
</TABLE>
Page 80 of 142
EXHIBIT 1
Joint Filing Agreement
In accordance with Rule 13d-1(k) under the Securities Exchange Act of
1934, as amended, each of the persons named below agrees to the joint filing
of a Statement on Schedule 13D (including amendments thereto) with respect to
the common stock, par value $0.01, of Merrill Corporation, a Minnesota
corporation and further agrees that this Joint Filing Agreement be included as
an exhibit to such filings provided that, as contemplated by Section
13d-1(k)(l)(ii), no person shall be responsible for the completeness or
accuracy of the information concerning the other persons making the filing,
unless such person knows or has reason to believe that such information is
inaccurate. This Joint Filing may be executed in any number of counterparts,
all of which together shall constitute one and the same instrument.
DLJ Merchant Banking Partners II, L.P.
by: DLJ Merchant Banking II, Inc.
its: Managing General Partner
By: /s/ Ivy Dodes
----------------------------------
Name: Ivy Dodes
Title: Vice President
DLJ Merchant Banking Partners II-A, L.P.
by: DLJ Merchant Banking II, Inc.
its: Managing General Partner
By: /s/ Ivy Dodes
----------------------------------
Name: Ivy Dodes
Title: Vice President
DLJ Millennium Partners, L.P.
by: DLJ Merchant Banking II, Inc.
its: Managing General Partner
By: /s/ Ivy Dodes
----------------------------------
Name: Ivy Dodes
Title: Vice President
DLJ Millennium Partners-A, L.P.
by: DLJ Merchant Banking II, Inc.
its: Managing General Partner
By: /s/ Ivy Dodes
----------------------------------
Name: Ivy Dodes
Title: Vice President
DLJ EAB Partners, L.P.
by: DLJ LBO Plans Management Corporation
its: Managing General Partner
By: /s/ Ivy Dodes
----------------------------------
Name: Ivy Dodes
Title: Vice President
DLJ Offshore Partners II, C.V.
by: DLJ Merchant Banking II, Inc.
its: Advisory General Partner
By: /s/ Ivy Dodes
----------------------------------
Name: Ivy Dodes
Title: Vice President
DLJ Merchant Banking II, LLC
by: DLJ Merchant Banking II, Inc.
its: Managing Member
By: /s/ Ivy Dodes
----------------------------------
Name: Ivy Dodes
Title: Vice President
DLJ Merchant Banking II, Inc.
By: /s/ Ivy Dodes
----------------------------------
Name: Ivy Dodes
Title: Vice President
Page 81 of 142
<PAGE>
DLJ Diversified Partners, L.P.
by: DLJ Diversified Partners, Inc.
its: Managing General Partner
By: /s/ Ivy Dodes
----------------------------------
Name: Ivy Dodes
Title: Vice President
DLJ Diversified Partners-A L.P.
by: DLJ Diversified Partners, Inc.
its: Managing General Partner
By: /s/ Ivy Dodes
----------------------------------
Name: Ivy Dodes
Title: Vice President
DLJ Diversified Associates, L.P.
by: DLJ Diversified Partners, Inc.
its: General Partner
By: /s/ Ivy Dodes
----------------------------------
Name: Ivy Dodes
Title: Vice President
DLJ Diversified Partners, Inc.
By: /s/ Ivy Dodes
----------------------------------
Name: Ivy Dodes
Title: Vice President
DLJ First ESC, L.P.
by: DLJ LBO Plans Management Corporation
its: Managing General Partner
By: /s/ Ivy Dodes
----------------------------------
Name: Ivy Dodes
Title: Vice President
DLJ ESC II, L.P.
by: DLJ LBO Plans Management Corporation
its: Managing General Partner
By: /s/ Ivy Dodes
----------------------------------
Name: Ivy Dodes
Title: Vice President
DLJ LBO Plans Management Corporation
By: /s/ Ivy Dodes
----------------------------------
Name: Ivy Dodes
Title: Vice President
DLJMB Funding II, Inc.
By: /s/ Ivy Dodes
----------------------------------
Name: Ivy Dodes
Title: Vice President
DLJ Capital Investors, Inc.
By: /s/ Ivy Dodes
----------------------------------
Name: Ivy Dodes
Title: Vice President
Donaldson, Lufkin & Jenrette, Inc.
By: /s/ Marjorie White
----------------------------------
Name: Marjorie White
Title: Secretary
The Equitable Companies Incorporated
By: /s/ Alvin H. Fenichel
----------------------------------
Name: Alvin H. Fenichel
Title: Attorney-in-fact
AXA
Finaxa
AXA Assurances I.A.R.D. Mutuelle
AXA Assurances Vie Mutuelle
AXA Courtage Assurance Mutuelle
AXA Conseil Vie Assurance Mutuelle
Claude Bebear, as AXA Voting Trustee
Patrice Garnier, as AXA Voting Trustee
Henri de Clermont-Tonnerre, as AXA Voting Trustee
Page 82 of 142
<PAGE>
Signed on behalf of each of the above
By: /s/ Alvin H. Fenichel
----------------------------------
Name: Alvin H. Fenichel
Title: Attorney-in-fact
Page 83 of 142
EXHIBIT 2
Power of Attorney
AXA, a societe anonyme organized under the laws of the Republic of
France (the "Corporation"), hereby constitutes and appoints each of Richard V.
Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly,
as the true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Corporation and in the name, place and
stead of the Corporation, in any and all capacities, to execute for and on
behalf of the Corporation, all Schedules 13D and Schedules 13G as required by
the Securities Exchange Act of 1934, as amended, and any and all amendments
thereto, and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, the issuer
and relevant stock exchanges (individually, each a "Filing"); provided, however,
that unless specifically instructed in writing by the Corporation, this Power of
Attorney does not authorize any of the above-listed attorneys-in-fact and agents
of the Corporation (or any person substituted or resubstituted therefor) to
execute or file for or on behalf of the Corporation any Filing with respect to
(i) the Common Stock, par value $.01 per share, of The Equitable Companies
Incorporated, a Delaware corporation, or (ii) the Units Representing Assignments
of Beneficial Ownership of Limited Partnership Interests in Alliance Capital
Management L.P., a Delaware limited partnership. The Corporation hereby grants
to such attorneys-in-fact and agents of the Corporation full power and authority
to do and perform each and every act and thing requisite and necessary to be
done, as fully to all intents and purposes as the Corporation might or could,
and hereby ratifies and confirms all that said attorneys-in-fact and agents of
the Corporation or their substitute or substitutes may lawfully do or cause to
be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 24 day of June, 1996.
AXA
By: /s/ Claude Bebear
---------------------------------
Name: Claude Bebear
Title: Chairman and Chief
Executive Officer
Page 84 of 142
<PAGE>
Power of Attorney
Finaxa, a societe anonyme organized under the laws of the Republic of
France (the "Corporation"), hereby constitutes and appoints each of Richard V.
Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly,
as the true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Corporation and in the name, place and
stead of the Corporation, in any and all capacities, to execute for and on
behalf of the Corporation, all Schedules 13D and Schedules 13G as required by
the Securities Exchange Act of 1934, as amended, and any and all amendments
thereto, and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, the issuer
and relevant stock exchanges (individually, each a "Filing"); provided, however,
that unless specifically instructed in writing by the Corporation, this Power of
Attorney does not authorize any of the above-listed attorneys-in-fact and agents
of the Corporation (or any person substituted or resubstituted therefor) to
execute or file for or on behalf of the Corporation any Filing with respect to
(i) the Common Stock, par value $.01 per share, of The Equitable Companies
Incorporated, a Delaware corporation, or (ii) the Units Representing Assignments
of Beneficial Ownership of Limited Partnership Interests in Alliance Capital
Management L.P., a Delaware limited partnership. The Corporation hereby grants
to such attorneys-in-fact and agents of the Corporation full power and authority
to do and perform each and every act and thing requisite and necessary to be
done, as fully to all intents and purposes as the Corporation might or could,
and hereby ratifies and confirms all that said attorneys-in-fact and agents of
the Corporation or their substitute or substitutes may lawfully do or cause to
be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 24 day of June, 1996.
FINAXA
By: /s/ Claude Bebear
---------------------------------
Name: Claude Bebear
Title: Chairman and Chief
Executive Officer
Page 85 of 142
<PAGE>
Power of Attorney
AXA Assurances I.A.R.D. Mutuelle, a mutual insurance company organized
under the laws of the Republic of France (the "Corporation"), hereby constitutes
and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and
Allen J. Zabusky, acting singly, as the true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for the Corporation
and in the name, place and stead of the Corporation, in any and all capacities,
to execute for and on behalf of the Corporation, all Schedules 13D and Schedules
13G as required by the Securities Exchange Act of 1934, as amended, and any and
all amendments thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, the issuer and relevant stock exchanges (individually, each a
"Filing"); provided, however, that unless specifically instructed in writing by
the Corporation, this Power of Attorney does not authorize any of the
above-listed attorneys-in-fact and agents of the Corporation (or any person
substituted or resubstituted therefor) to execute or file for or on behalf of
the Corporation any Filing with respect to (i) the Common Stock, par value $.01
per share, of the Equitable Companies Incorporated, a Delaware corporation, or
(ii) the Units Representing Assignments of Beneficial Ownership of Limited
Partnership Interests in Alliance Capital Management L.P., a Delaware limited
partnership. The Corporation hereby grants to such attorneys-in-fact and agents
of the Corporation full power and authority to do and perform each and every act
and thing requisite and necessary to be done, as fully to all intents and
purposes as the Corporation might or could, and hereby ratifies and confirms all
that said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 24 day of June, 1996.
AXA ASSURANCES I.A.R.D. MUTUELLE
By: /s/ Claude Bebear
---------------------------------
Name: Claude Bebear
Title: Chairman and Chief
Executive Officer
Page 86 of 142
<PAGE>
Power of Attorney
AXA Assurances Vie Mutuelle, a mutual insurance company organized under
the laws of the Republic of France (the "Corporation"), hereby constitutes and
appoints each of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen
J. Zabusky, acting singly, as the true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for the Corporation and in
the name, place and stead of the Corporation, in any and all capacities, to
execute for and on behalf of the Corporation, all Schedules 13D and Schedules
13G as required by the Securities Exchange Act of 1934, as amended, and any and
all amendments thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, the issuer and relevant stock exchanges (individually, each a
"Filing"); provided, however, that unless specifically instructed in writing by
the Corporation, this Power of Attorney does not authorize any of the
above-listed attorneys-in-fact and agents of the Corporation (or any person
substituted or resubstituted therefor) to execute or file for or on behalf of
the Corporation any Filing with respect to (i) the Common Stock, par value $.01
per share, of the Equitable Companies Incorporated, a Delaware corporation, or
(ii) the Units Representing Assignments of Beneficial Ownership of Limited
Partnership Interests in Alliance Capital Management L.P., a Delaware limited
partnership. The Corporation hereby grants to such attorneys-in-fact and agents
of the Corporation full power and authority to do and perform each and every act
and thing requisite and necessary to be done, as fully to all intents and
purposes as the Corporation might or could, and hereby ratifies and confirms all
that said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 24 day of June, 1996.
AXA ASSURANCES VIE MUTUELLE
By: /s/ Claude Tendil
---------------------------------
Name: Claude Tendil
Title: Chief Executive Officer
Page 87 of 142
<PAGE>
Power of Attorney
AXA Courtage Assurance Mutuelle, a mutual insurance company organized
under the laws of the Republic of France (the "Corporation"), hereby constitutes
and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and
Allen J. Zabusky, acting singly, as the true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for the Corporation
and in the name, place and stead of the Corporation, in any and all capacities,
to execute for and on behalf of the Corporation, all Schedules 13D and Schedules
13G as required by the Securities Exchange Act of 1934, as amended, and any and
all amendments thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, the issuer and relevant stock exchanges (individually, each a
"Filing"); provided, however, that unless specifically instructed in writing by
the Corporation, this Power of Attorney does not authorize any of the
above-listed attorneys-in-fact and agents of the Corporation (or any person
substituted or resubstituted therefor) to execute or file for or on behalf of
the Corporation any Filing with respect to (i) the Common Stock, par value $.01
per share, of the Equitable Companies Incorporated, a Delaware corporation, or
(ii) the Units Representing Assignments of Beneficial Ownership of Limited
Partnership Interests in Alliance Capital Management L.P., a Delaware limited
partnership. The Corporation hereby grants to such attorneys-in-fact and agents
of the Corporation full power and authority to do and perform each and every act
and thing requisite and necessary to be done, as fully to all intents and
purposes as the Corporation might or could, and hereby ratifies and confirms all
that said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 24 day of June, 1996.
AXA COURTAGE ASSURANCE MUTUELLE
By: /s/ Claude Tendil
---------------------------------
Name: Claude Tendil
Title: Chief Executive Officer
Page 88 of 142
<PAGE>
Power of Attorney
AXA Conseil Vie Assurance Mutuelle, a mutual insurance company
organized under the laws of the Republic of France (the "Corporation"), hereby
constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H.
Fenichel and Allen J. Zabusky, acting singly, as the true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for the Corporation and in the name, place and stead of the Corporation, in any
and all capacities, to execute for and on behalf of the Corporation, all
Schedules 13D and Schedules 13G as required by the Securities Exchange Act of
1934, as amended, and any and all amendments thereto, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, the issuer and relevant stock exchanges
(individually, each a "Filing"); provided, however, that unless specifically
instructed in writing by the Corporation, this Power of Attorney does not
authorize any of the above-listed attorneys-in-fact and agents of the
Corporation (or any person substituted or resubstituted therefor) to execute or
file for or on behalf of the Corporation any Filing with respect to (i) the
Common Stock, par value $.01 per share, of The Equitable Companies Incorporated,
a Delaware corporation, or (ii) the Units Representing Assignments of Beneficial
Ownership of Limited Partnership Interests in Alliance Capital Management L.P.,
a Delaware limited partnership. The Corporation hereby grants to such
attorneys-in-fact and agents of the Corporation full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as the Corporation might or could, and hereby
ratifies and confirms all that said attorneys-in-fact and agents of the
Corporation or their substitute or substitutes may lawfully do or cause to be
done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 24 day of June, 1996.
AXA CONSEIL VIE ASSURANCE MUTUELLE
By: /s/ Claude Tendil
---------------------------------
Name: Claude Tendil
Title: Chief Executive Officer
Page 89 of 142
<PAGE>
Power of Attorney
Patrice Garnier, as a Voting Trustee (the "Trustee"), pursuant to a
Voting Trust Agreement dated as of May 12, 1992, by and among AXA, a societe
anonyme organized under the laws of Republic of France, and the Voting Trustees
identified therein, hereby constitutes and appoints each of Richard V. Silver,
Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly, as the
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for the Trustee and in the name, place and stead of the Trustee,
in any and all capacities, to execute for and on behalf of the Trustee, all
Schedules 13D and Schedules 13G as required by the Securities Exchange Act of
1934, as amended, and any and all amendments thereto, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, the issuer and relevant stock exchanges
(individually, each a "Filing"); provided, however, that unless specifically
instructed in writing by the Trustee, this Power of Attorney does not authorize
any of the above-listed attorneys-in-fact and agents of the Trustee (or any
person substituted or resubstituted therefor) to execute or file for or on
behalf of the Trustee any Filing with respect to (i) the Common Stock, par value
$.01 per share, of The Equitable Companies Incorporated, a Delaware corporation
or (ii) the Units Representing Assignments of Beneficial Ownership of Limited
Partnership Interests in Alliance Capital Management L.P., a Delaware limited
partnership. The Trustee hereby grants to such attorneys-in-fact and agents of
the Trustee full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as the Trustee might or could, and hereby ratifies and confirms all that said
attorneys-in-fact and agents of the Trustee or their substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Trustee, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13 (d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Trustee.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 24 day of June, 1996.
By: /s/ Patrice Garnier
---------------------------------
Name: Patrice Garnier
Title: Voting Trustee
Page 90 of 142
<PAGE>
Power of Attorney
Claude Bebear, as a Voting Trustee (the "Trustee"), pursuant to a
Voting Trust Agreement dated as of May 12, 1992, by and among AXA, a societe
anonyme organized under the laws of the Republic of France, and the Voting
Trustees identified therein, hereby constitutes and appoints each of Richard V.
Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly,
as the true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Trustee and in the name, place and
stead of the Trustee, in any and all capacities, to execute for and on behalf of
the Trustee, all Schedules 13D and Schedules 13G as required by the Securities
Exchange Act of 1934, as amended, and any and all amendments thereto, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, the issuer and relevant
stock exchanges (individually, each a "Filing"); provided, however, that unless
specifically instructed in writing by the Trustee, this Power of Attorney does
not authorize any of the above-listed attorneys-in-fact and agents of the
Trustee (or any person substituted or resubstituted therefor) to execute or file
for or on behalf of the Trustee any Filing with respect to (i) the Common Stock,
par value $.01 per share, of The Equitable Companies Incorporated, a Delaware
corporation, or (ii) the Units Representing Assignments of Beneficial Ownership
of Limited Partnership Interests in Alliance Capital Management L.P., a Delaware
limited partnership. The Trustee hereby grants to such attorneys-in-fact and
agents of the Trustee full power and authority to do and perform each and every
act and thing requisite and necessary to be done, as fully to all intents and
purposes as the Trustee might or could, and hereby ratifies and confirms all
that said attorneys-in-fact and agents of the Trustee or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Trustee, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Trustee.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 24 day of June, 1996.
By: /s/ Claude Bebear
---------------------------------
Name: Claude Bebear
Title: Voting Trustee
Page 91 of 142
<PAGE>
Power of Attorney
Henri de Clermont-Tonnerre, as Voting Trustee (the "Trustee"), pursuant
to a Voting Trust Agreement dated as of May 12, 1992, by and among AXA, a
societe anonyme organized under the laws of the Republic of France and the
Voting Trustees identified herein, hereby constitutes and appoints each of
Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky,
acting singly, as the true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for the Trustee and in the name, place
and stead of the Trustee, in any and all capacities, to execute for and on
behalf of the Trustee, all Schedules 13D and Schedules 13G as required by the
Securities Exchange Act of 1934, as amended, and any and all amendments thereto,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, the issuer
and relevant stock exchanges (individually, each a "Filing"); provided, however,
that unless specifically instructed in writing by the Trustee, this Power of
Attorney does not authorize any of the above-listed attorneys-in-fact and agents
of the Trustee (or any person substituted or resubstituted therefor) to execute
or file for or on behalf of the Trustee any Filing with respect to (i) the
Common Stock, par value $.01 per share, of The Equitable Companies Incorporated,
a Delaware corporation, or (ii) the Units Representing Assignments of Beneficial
Ownership of Limited Partnership Interests in Alliance Capital Management L.P.,
a Delaware limited partnership. The Trustee hereby grants to such
attorneys-in-fact and agents of the Trustee full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as the Trustee might or could, and hereby
ratifies and confirms all that said attorneys-in-fact and agents of the Trustee
or their substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Trustee, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Trustee.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 24 day of June, 1996.
By: /s/ Henri de Clermont-Tonnerre
---------------------------------
Name: Henri de Clermont-Tonnerre
Title: Voting Trustee
Page 92 of 142
EXHIBIT 3
AGREEMENT AND PLAN OF MERGER
dated as of
July 14, 1999
between
MERRILL CORPORATION
and
VIKING MERGER SUB, INC.
Page 93 of 142
<PAGE>
TABLE OF CONTENTS(1)
----------------
PAGE
----
ARTICLE 1
The Merger
Section 1.01. The Merger.................................Page 96 of 139
Section 1.02. Conversion of Shares.......................Page 98 of 139
Section 1.03. Surrender and Payment......................Page 98 of 139
Section 1.04. Dissenting Shares.........................Page 100 of 139
Section 1.05. Stock Options.............................Page 100 of 139
ARTICLE 2
The Surviving Corporation
Section 2.01. Articles of Incorporation.................Page 101 of 139
Section 2.02. Bylaws....................................Page 101 of 139
Section 2.03. Directors and Officers....................Page 101 of 139
ARTICLE 3
Representations and Warranties of the Company
Section 3.01. Corporate Existence and Power.............Page 101 of 139
Section 3.02. Corporate Authorization...................Page 102 of 139
Section 3.03. Governmental Authorization................Page 102 of 139
Section 3.04. Non-contravention.........................Page 102 of 139
Section 3.05. Capitalization............................Page 103 of 139
Section 3.06. Subsidiaries..............................Page 103 of 139
Section 3.07. SEC Filings...............................Page 104 of 139
Section 3.08. Financial Statements......................Page 104 of 139
Section 3.09. Disclosure Documents......................Page 105 of 139
Section 3.10. Absence of Certain Changes................Page 106 of 139
Section 3.11. No Undisclosed Material Liabilities.......Page 107 of 139
Section 3.12. Litigation................................Page 107 of 139
Section 3.13. Taxes.....................................Page 108 of 139
Section 3.14. ERISA.....................................Page 109 of 139
Section 3.15. Compliance with Laws......................Page 111 of 139
Section 3.16. Licenses and Permits......................Page 111 of 139
Section 3.17. Intellectual Property.....................Page 112 of 139
- ------------
(1) The Table of Contents is not a part of this Agreement.
<PAGE>
PAGE
----
Section 3.18. Environmental Matters.....................Page 112 of 139
Section 3.19. Finders' Fees.............................Page 113 of 139
Section 3.20. Inapplicability of Certain Restrictions...Page 114 of 139
Section 3.21. Rights Plan...............................Page 114 of 139
ARTICLE 4
Representations and Warranties of Merger Sub
Section 4.01. Corporate Existence and Power.............Page 114 of 139
Section 4.02. Corporate Authorization...................Page 114 of 139
Section 4.03. Governmental Authorization................Page 115 of 139
Section 4.04. Non-contravention.........................Page 115 of 139
Section 4.05. Disclosure Documents......................Page 115 of 139
Section 4.06. Finders' Fees.............................Page 116 of 139
Section 4.07. Financing.................................Page 116 of 139
ARTICLE 5
Covenants of the Company
Section 5.01. Conduct of the Company....................Page 116 of 139
Section 5.02. Stockholder Meeting; Proxy Material.......Page 119 of 139
Section 5.03. Access to Information.....................Page 119 of 139
Section 5.04. Other Offers..............................Page 119 of 139
Section 5.05. Notices of Certain Events.................Page 122 of 139
Section 5.06. Resignation of Directors..................Page 122 of 139
Section 5.07. Certificate of Designation; Amendment to Articles of
Incorporation.............................Page 122 of 139
Section 5.08. Exchange for Class B Common Stock.........Page 123 of 139
ARTICLE 6
Covenants of Merger Sub
Section 6.01. SEC Filings...............................Page 123 of 139
Section 6.02. Confidentiality...........................Page 123 of 139
Section 6.03. Voting of Shares..........................Page 123 of 139
Section 6.04. Director and Officer Liability............Page 124 of 139
Section 6.05. Employee Matters..........................Page 124 of 139
Page 95 of 142
<PAGE>
PAGE
----
ARTICLE 7
Covenants of Merger Sub and the Company
Section 7.01. Reasonable Commercial Efforts.............Page 124 of 139
Section 7.02. Certain Filings...........................Page 125 of 139
Section 7.03. Public Announcements......................Page 126 of 139
Section 7.04. Further Assurances........................Page 126 of 139
ARTICLE 8
Conditions to the Merger
Section 8.01. Conditions to the Obligations of Each
Party.....................................Page 126 of 139
Section 8.02. Conditions to the Obligations of Merger
Sub.......................................Page 127 of 139
Section 8.03. Condition to the Obligation of the
Company...................................Page 128 of 139
ARTICLE 9
Termination
Section 9.01. Termination...............................Page 129 of 139
Section 9.02. Effect of Termination.....................Page 130 of 139
ARTICLE 10
Miscellaneous
Section 10.01. Notices..................................Page 131 of 139
Section 10.02. Survival of Representations and
Warranties...............................Page 132 of 139
Section 10.03. Amendments; No Waivers...................Page 132 of 139
Section 10.04. Expenses.................................Page 132 of 139
Section 10.05. Successors and Assigns; Benefit..........Page 132 of 139
Section 10.06. Governing Law............................Page 133 of 139
Section 10.07. Counterparts; Effectiveness..............Page 133 of 139
APPENDIX A: List of Rollover Shareholders
Page 96 of 142
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of July 14, 1999 between Merrill
Corporation, a Minnesota corporation (the "Company"), and Viking Merger Sub,
Inc., a Minnesota corporation ("Merger Sub").
W I T N E S S E T H:
WHEREAS, as of the date of execution of this Agreement, all of the
outstanding capital stock of Merger Sub is owned, in the aggregate, by DLJ
Merchant Banking Partners II, L.P. ("DLJMB"), and certain affiliated entities;
WHEREAS, Merger Sub is unwilling to enter into this Agreement unless,
contemporaneously with the execution and delivery of this Agreement, certain
beneficial and record stockholders of the Company enter into a Voting Agreement
and Irrevocable Proxy (the "Voting Agreement") providing for certain actions
relating to certain of the shares of common stock of the Company owned by them;
WHEREAS, pursuant to the Voting Agreement, certain individuals listed in
Appendix A hereto (the "Roll-over Group") have agreed to exchange their Shares
(as defined below) listed on Appendix A hereto for shares of Class B common
stock, par value $.01 per share, of the Company (the "Class B Common Stock");
WHEREAS, Merger Sub and the Company desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger (as defined in Section 1.01) and also to prescribe certain conditions to
the Merger; and
WHEREAS, it is intended that the Merger be recorded as a
recapitalization for financial reporting purposes;
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements herein contained, the
parties hereto agree as follows:
ARTICLE 1
THE MERGER
SECTION 1.01. The Merger. (a) At the Effective Time (as defined below),
Merger Sub shall be merged (the "Merger") with and into the Company in
accordance with Minnesota Law (as defined below), whereupon the separate
<PAGE>
existence of Merger Sub shall cease, and the Company shall be the surviving
corporation (the "Surviving Corporation").
(b) As soon as practicable after satisfaction or, to the extent
permitted hereunder, waiver of all conditions to the Merger, the Company and
Merger Sub will file articles of merger with the Secretary of State of the State
of Minnesota and make all other filings or recordings required by Minnesota Law
in connection with the Merger. The Merger shall become effective at such time as
the articles of merger are duly filed with the Secretary of State of the State
of Minnesota or at such later date or time as is specified in the articles of
merger (the "Effective Time").
(c) From and after the Effective Time, the Surviving Corporation shall
possess all the property, rights, privileges, immunities, powers and franchises
and be subject to all of the debts, liabilities, obligations, restrictions,
disabilities and duties of the Company and Merger Sub, all as provided under
Minnesota Law.
(d) The Company hereby represents that its Board of Directors, at a
meeting duly called and held and acting on the unanimous recommendation of a
special committee of the Board of Directors of the Company comprised entirely of
non-management and non-employee independent and disinterested directors (the
"Special Committee") and the 673 Committee (as defined below), has (i)
unanimously determined that this Agreement and the transactions contemplated
hereby, including the Merger, are fair to and in the best interest of the
Company's stockholders, (ii) unanimously approved this Agreement and the
transactions contemplated hereby, including the Merger and the Voting Agreement,
which approval satisfies in full the requirements of the Business Corporation
Act of the State of Minnesota (the "Minnesota Law") including, without
limitation, Section 302A.673 thereof and the Articles of Incorporation of the
Company, and (iii) unanimously resolved to recommend approval and adoption of
this Agreement and the Merger and the amendment of the Articles of Incorporation
of the Company contemplated by Section 5.07(b) (the "Charter Amendment") by its
stockholders. The Company further hereby represents that its Special Committee
and the 673 Committee have unanimously approved this Agreement and the
transactions contemplated hereby, including the Merger and the Voting Agreement,
which approval satisfies in full the requirements of the Minnesota Law
including, without limitation, Section 302A.673 thereof, and the Articles of
Incorporation of the Company. The Company further represents that CIBC World
Markets Corp. has delivered to the Company's Board of Directors its written
opinion that the consideration to be paid in the Merger (excluding the Roll-over
Group) is fair to the holders of shares of common stock of the Company, par
value $.01 per share, other than the members of the Roll-over Group (each, a
"Share"), from a financial point of view. The Company has been advised that all
of its directors and executive officers intend to vote all of their Shares in
favor of approval and adoption of this Agreement and the Merger.
Page 98 of 142
<PAGE>
SECTION 1.02. Conversion of Shares. At the Effective Time:
(a) each Share held by the Company or any Subsidiary as treasury stock
or owned by Merger Sub or any subsidiary of Merger Sub immediately prior to the
Effective Time shall be canceled, and no payment shall be made with respect
thereto;
(b) each share of Class B Common Stock outstanding immediately prior to
the Effective Time shall remain outstanding with the same rights, powers and
privileges as such shares had immediately prior to the Effective Time;
(c) each share of common stock, par value $.01 per share, of Merger Sub
("Merger Sub Common Stock") outstanding immediately prior to the Effective Time
shall be converted into and become one share of Class B Common Stock of the
Surviving Corporation with the same rights, powers and privileges as the shares
so converted;
(d) each share of preferred stock, par value $.01 per share, of Merger
Sub ("Merger Sub Preferred Stock"), if any, outstanding immediately prior to the
Effective Time shall be converted into and become one share of preferred stock,
par value $.01 per share, of the Surviving Corporation with the same rights,
powers and privileges as the shares of preferred stock so converted;
(e) each outstanding warrant, if any, to purchase shares of Merger Sub
common stock (each, a "Merger Sub Warrant") shall be automatically amended to
constitute a warrant to acquire shares of common stock, par value $.01 per share
of the Surviving Corporation on the same terms and conditions as the Merger Sub
Warrant; and
(f) each Share outstanding immediately prior to the Effective Time
shall, except as otherwise provided in Section 1.02(a) or as provided in Section
1.04 with respect to Shares as to which dissenters' rights have been exercised,
be converted into the right to receive in cash from Merger Sub an amount equal
to $22.00 (the "Common Stock Consideration").
SECTION 1.03. Surrender and Payment. (a) Prior to the mailing of the
Company Proxy Statement (as defined in Section 3.09), Merger Sub shall appoint
an agent (the "Exchange Agent") for the purpose of exchanging certificates
representing Shares for the Common Stock Consideration. Merger Sub will make
available to the Exchange Agent, at the Closing Date, the Common Stock
Consideration to be paid in respect of the Shares. For purposes of determining
the Common Stock Consideration to be made available, Merger Sub shall assume
that no holder of Shares will exercise dissenters' rights. Promptly after the
Effective Time, the Surviving Corporation will send, or will cause the Exchange
Agent to
Page 99 of 142
<PAGE>
send, to each holder of Shares at the Effective Time a letter of transmittal for
use in such exchange (which shall specify that the delivery shall be effected,
and risk of loss and title shall pass, only upon proper delivery of the
certificates representing Shares to the Exchange Agent).
(b) Each holder of Shares that have been converted into a right to
receive the Common Stock Consideration, upon surrender to the Exchange Agent of
a certificate or certificates representing such Shares, together with a properly
completed letter of transmittal covering such Shares, will be entitled to
receive the Common Stock Consideration payable in respect of such Shares. Until
so surrendered, each such certificate shall, after the Effective Time, represent
for all purposes, only the right to receive such Common Stock Consideration. No
interest will be paid or will accrue on the Common Stock Consideration.
(c) If any portion of the Common Stock Consideration is to be paid to a
Person other than the registered holder of the Shares represented by the
certificate or certificates surrendered in exchange therefor, it shall be a
condition to such payment that the certificate or certificates so surrendered
shall be properly endorsed or otherwise be in proper form for transfer and that
the Person requesting such payment shall pay to the Exchange Agent any transfer
or other taxes required as a result of such payment to a Person other than the
registered holder of such Shares or establish to the satisfaction of the
Exchange Agent that such tax has been paid or is not payable. For purposes of
this Agreement, "Person" means an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or any agency or
instrumentality thereof.
(d) After the Effective Time, there shall be no further registration of
transfers of Shares. If, after the Effective Time, certificates representing
Shares are presented to the Surviving Corporation, they shall be canceled and
exchanged for the consideration provided for, and in accordance with the
procedures set forth, in this Article 1.
(e) Any portion of the Common Stock Consideration made available to the
Exchange Agent pursuant to Section 1.03(a) that remains unclaimed by the holders
of Shares six months after the Effective Time shall be returned to the Surviving
Corporation, upon demand, and any such holder who has not exchanged his Shares
for the Common Stock Consideration in accordance with this Section prior to that
time shall thereafter look only to the Surviving Corporation for payment of the
Common Stock Consideration in respect of his Shares. Notwithstanding the
foregoing, the Surviving Corporation shall not be liable to any holder of Shares
for any amount paid to a public official pursuant to applicable abandoned
property laws. Any amounts remaining unclaimed by holders of Shares two years
after the Effective Time (or such earlier date immediately prior to such time as
such amounts would
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otherwise escheat to or become property of any governmental entity) shall, to
the extent permitted by applicable law, become the property of the Surviving
Corporation free and clear of any claims or interest of any Person previously
entitled thereto.
(f) Any portion of the Common Stock Consideration made available to the
Exchange Agent pursuant to Section 1.03(a) to pay for Shares for which
dissenters' rights have been perfected shall be returned to the Surviving
Corporation, upon demand.
SECTION 1.04. Dissenting Shares. Notwithstanding Section 1.02, Shares
outstanding immediately prior to the Effective Time and held by a holder who has
not voted in favor of the Merger and who has exercised such holder's dissenters'
rights in accordance with Minnesota Law shall not be converted into a right to
receive the Common Stock Consideration and the holder thereof shall only be
entitled to such rights as are granted by Minnesota law, unless such holder
fails to perfect or withdraws or otherwise loses such dissenters' rights. If
after the Effective Time such holder fails to perfect or withdraws or loses such
holder's dissenters' rights, such Shares shall be treated as if they had been
converted as of the Effective Time into a right to receive the Common Stock
Consideration. The Company shall give Merger Sub prompt notice of any notices
received by the Company for the exercise of dissenters' rights or demand for
payment pursuant to the exercise of dissenters' rights, and Merger Sub shall
have the right to participate in all negotiations and proceedings with respect
to such demands. The Company shall not, except with the prior written consent of
Merger Sub (which consent shall not be unreasonably withheld), make any payment
with respect to, or settle or offer to settle, any such demands.
SECTION 1.05. Stock Options. (a) At or immediately prior to the
Effective Time, each outstanding employee and director stock option to purchase
Shares granted under any employee stock option or compensation plan or
arrangement of the Company shall be canceled, and each holder of any such
option, whether or not then vested or exercisable, shall be paid, subject to any
required withholding of taxes, by the Company promptly after the Effective Time
for each such option an amount determined by multiplying (i) the excess, if any,
of $22.00 per Share over the applicable exercise price of such option by (ii)
the number of Shares such holder could have purchased (assuming full vesting of
all options) had such holder exercised such option in full immediately prior to
the Effective Time.
(b) Prior to the Effective Time, the Company shall use its reasonable
efforts (i) to obtain (to the extent requested by Merger Sub) any consents of
holders of options to purchase Shares granted under the Company's stock option
or compensation plans or arrangements and (ii) to make any amendments to the
terms
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of such stock option or compensation plans or arrangements that are necessary to
give effect to the transactions contemplated by Section 1.05(a).
ARTICLE 2
THE SURVIVING CORPORATION
SECTION 2.01. Articles of Incorporation. The articles of incorporation
of the Company in effect at the Effective Time shall be the articles of
incorporation of the Surviving Corporation until amended in accordance with
applicable law.
SECTION 2.02. Bylaws. The bylaws of the Company in effect at the
Effective Time shall be the bylaws of the Surviving Corporation until amended in
accordance with applicable law.
SECTION 2.03. Directors and Officers. From and after the Effective Time,
until successors are duly elected or appointed and qualified in accordance with
applicable law, (a) the directors of Merger Sub at the Effective Time shall be
the directors of the Surviving Corporation, and (b) the officers of the Company
at the Effective Time shall be the officers of the Surviving Corporation.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Merger Sub as of the date hereof
and as of the Effective Time that, except to the extent set forth in the
Disclosure Schedules contained in a side letter of even date herewith delivered
by the Company to Buyer (the "Disclosure Schedules"):
SECTION 3.01. Corporate Existence and Power. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Minnesota, and has all corporate powers required to carry
on its business as now conducted. The Company is duly qualified to do business
as a foreign corporation and is in good standing in each jurisdiction where the
character of the property owned or leased by it or the nature of its activities
makes such qualification necessary, except for those jurisdictions where the
failure to be so qualified would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), business, assets, liabilities or results of operations
of the Company and the Subsidiaries taken as a whole, but excluding any change
resulting from (a) general economic conditions and
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(b) conditions applicable to participants in the financial printing industry
generally, so long as in the case of either (a) or (b) the impact on the Company
and the Subsidiaries is not more severe than that suffered by other participants
in the financial printing industry generally ("Material Adverse Effect"). The
Company has heretofore delivered to Merger Sub true and complete copies of the
Company's articles of incorporation and bylaws as currently in effect.
SECTION 3.02. Corporate Authorization. The execution, delivery and
performance by the Company of this Agreement and the consummation by the Company
of the transactions contemplated hereby are within the Company's corporate
powers and, except for the approval by the Company's stockholders of the Merger
and the Charter Amendment, have been duly authorized by all necessary corporate
action. This Agreement constitutes a valid and binding agreement of the Company.
SECTION 3.03. Governmental Authorization. The execution, delivery and
performance by the Company of this Agreement and the consummation of the Merger
by the Company require no action by or in respect of, or filing with, any
governmental body, agency, official or authority other than (a) the filing of
articles of merger in accordance with Minnesota Law; (b) compliance with any
applicable requirements of the Hart-Scott-Rodino Antitrust Improvements Act of
1976 (the "HSR Act"); (c) compliance with any applicable requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (the "Exchange Act"); and (d) such other actions or
filings the failure of which to take or make would not reasonably be expected to
have a Material Adverse Effect.
SECTION 3.04. Non-contravention. The execution, delivery and performance
by the Company of this Agreement and the consummation by the Company of the
transactions contemplated hereby do not and will not (a) contravene or conflict
with the articles of incorporation or bylaws of the Company, (b) assuming
compliance with the matters referred to in Section 3.03, contravene or conflict
with or constitute a violation of any provision of any law, regulation,
judgment, injunction, order or decree binding upon or applicable to the Company
or any Subsidiary, (c) except as set forth in Schedule 3.04, to the knowledge of
the Company (as set forth in Section 3.12) constitute a default under or give
rise to a right of termination, cancellation or acceleration of any right or
obligation of the Company or any Subsidiary or to a loss of any benefit to which
the Company or any Subsidiary is entitled under any provision of any agreement,
contract or other instrument binding upon the Company or any Subsidiary or any
license, franchise, permit or other similar authorization held by the Company or
any Subsidiary, or (d) result in the creation or imposition of any Lien on any
asset of the Company or any Subsidiary, except in the case of clauses (b), (c)
and (d), to the extent that any such violation, failure to obtain any such
consent or other action, default, right, loss or Lien would not, individually or
in the
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aggregate, be reasonably expected to have a Material Adverse Effect. For
purposes of this Agreement, "Lien" means, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or encumbrance of any kind in
respect of such asset.
SECTION 3.05. Capitalization. The authorized capital stock of the
Company consists of 25,000,000 shares of common stock, par value $.01 per share
(the "Common Stock") and 500,000 shares of undesignated stock (the "Undesignated
Stock"). As of July 12, 1999, there were outstanding 16,115,520 shares of Common
Stock and no shares of Undesignated Stock and stock options to purchase an
aggregate of 3,176,373 Shares (of which options to purchase an aggregate of
1,087,553 Shares were exercisable). All outstanding shares of capital stock of
the Company have been duly authorized and validly issued and are fully paid and
nonassessable. Except as set forth in this Section and except for changes since
July 12, 1999 resulting from the exercise of employee stock options outstanding
on such date and except for the issuance of 979,091 shares of Class B Common
Stock contemplated by Section 5.08, there are outstanding (a) no shares of
capital stock or other voting securities of the Company, (b) no securities of
the Company convertible into or exchangeable for shares of capital stock or
voting securities of the Company, and (c) no options or other rights to acquire
from the Company or any Subsidiary, and no obligation of the Company or any
Subsidiary to issue, any capital stock, voting securities or securities
convertible into or exchangeable for capital stock or voting securities of the
Company (the items in clauses 3.05(a), 3.05(b) and 3.05(c) being referred to
collectively as the "Company Securities"). There are no outstanding obligations
of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any
Company Securities.
SECTION 3.06. Subsidiaries. (a) Each Subsidiary is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, has all corporate powers required to carry on its
business as now conducted and is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the character of
the property owned or leased by it or the nature of its activities makes such
qualification necessary, except for those jurisdictions where failure to be so
qualified would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. For purposes of this Agreement, "Subsidiary"
means any corporation or other entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are directly or
indirectly owned by the Company. All Subsidiaries and their respective
jurisdictions of incorporation are identified in the Company's annual report on
Form 10-K for the fiscal year ended January 31, 1999 (the "Company 10-K").
(b) Except as set forth in Schedule 3.06, all of the outstanding capital
stock of, or other ownership interests in, each Subsidiary, is owned by the
Company, directly or indirectly, free and clear of any Lien and free of any
other limitation or
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restriction (including any restriction on the right to vote, sell or otherwise
dispose of such capital stock or other ownership interests). Except as set forth
in Schedule 3.06, there are no outstanding (i) securities of the Company or any
Subsidiary convertible into or exchangeable for shares of capital stock or other
voting securities or ownership interests in any Subsidiary, and (ii) options or
other rights to acquire from the Company or any Subsidiary, and no other
obligation of the Company or any Subsidiary to issue, any capital stock, voting
securities or other ownership interests in, or any securities convertible into
or exchangeable for any capital stock, voting securities or ownership interests
in, any Subsidiary (the items in clauses 3.06(b)(i) and 3.06(b)(ii) being
referred to collectively as the "Subsidiary Securities"). There are no
outstanding obligations of the Company or any Subsidiary to repurchase, redeem
or otherwise acquire any outstanding Subsidiary Securities.
SECTION 3.07. SEC Filings. (a) The Company has delivered to Merger Sub
(i) its Form 10-K (ii) its proxy or information statements relating to meetings
of, or actions taken without a meeting by, the stockholders of the Company held
since January 1, 1997, and (iii) all of its other reports, statements, schedules
and registration statements filed with the Securities and Exchange Commission
(the "SEC") since January 1, 1997.
(b) As of its filing date, each such report or statement filed pursuant
to the Exchange Act did not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading except for such statements or omissions as may have been modified by
subsequent filings prior to the date of this Agreement pursuant to the Exchange
Act.
(c) Each such registration statement, as amended or supplemented, if
applicable, filed pursuant to the Securities Act of 1933, as amended, as of the
date such statement or amendment became effective did not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading except
for such statements or omissions as may have been modified by subsequent filings
prior to the date of this Agreement pursuant to the Exchange Act.
SECTION 3.08. Financial Statements. The audited consolidated financial
statements of the Company included in its Form 10-K referred to in Section 3.07
and the unaudited consolidated financial statements of the Company included in
its Form 10-Q for the quarter ended April 30, 1999 (the "Company 10-Q") each
fairly present in all material respects, in conformity with generally accepted
accounting principles applied on a consistent basis (except as may be indicated
in the notes thereto), the consolidated financial position of the Company and
its consolidated subsidiaries as of the dates thereof and their consolidated
results of operations and changes in cash flows for the periods then ended
(subject to normal year-end adjustments in the case
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of any unaudited interim financial statements). For purposes of this Agreement,
"Balance Sheet" means the consolidated balance sheet of the Company as of April
30, 1999 set forth in the Company 10-Q and "Balance Sheet Date" means April 30,
1999.
SECTION 3.09. Disclosure Documents. (a) Each document required to be
filed by the Company with the SEC in connection with the transactions
contemplated by this Agreement (the "Company Disclosure Documents"), including,
without limitation, the proxy or information statement of the Company containing
information required by Regulation 14A under the Exchange Act and, if
applicable, Rule 13e-3 and Schedule 13E-3 under the Exchange Act (the "Company
Proxy Statement"), if any, to be filed with the SEC in connection with the
Merger and the Charter Amendment, and any amendments or supplements thereto
will, when filed, comply as to form in all material respects with the applicable
requirements of the Exchange Act except that no representation or warranty is
made hereby with respect to any information supplied by Merger Sub expressly for
inclusion in the Company Disclosure Documents.
(b) At the time the Company Proxy Statement or any amendment or
supplement thereto is first mailed to stockholders of the Company, at the time
such stockholders vote on adoption of this Agreement and at the Effective Time,
the Company Proxy Statement, as supplemented or amended, if applicable, will not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading. At the time of the
filing of any Company Disclosure Document other than the Company Proxy Statement
and at the time of any distribution thereof, such Company Disclosure Document
will not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made therein, in the
light of the circumstances under which they were made, not misleading. The
representations and warranties contained in this Section 3.09(b) will not apply
to statements or omissions included in the Company Disclosure Documents based
upon information furnished to the Company by Merger Sub specifically for use
therein.
(c) The information with respect to the Company or any Subsidiary that
the Company furnishes to Merger Sub specifically for use in the Merger Sub
Disclosure Documents (as defined in Section 6.01) will not, at the time of the
filing thereof, at the time of any distribution thereof and at the time of the
meeting of the Company's stockholders, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
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SECTION 3.10. Absence of Certain Changes. Except as set forth in
Schedule 3.10 hereto or as contemplated by this Agreement, since the Balance
Sheet Date, the Company and Subsidiaries have conducted their business in the
ordinary course consistent with past practice and there has not been:
(a) any event, occurrence or development of a state of circumstances or
facts which has had or reasonably would be expected to have a Material Adverse
Effect;
(b) other than regular quarterly dividends in an amount not in excess of
$.02 per share per quarter, any declaration, setting aside or payment of any
dividend or other distribution with respect to any shares of capital stock of
the Company, or any repurchase, redemption or other acquisition by the Company
or any Subsidiary of any outstanding shares of capital stock or other securities
of, or other ownership interests in, the Company or any Subsidiary;
(c) any amendment of any material term of any outstanding security of
the Company or any Subsidiary;
(d) any incurrence, assumption or guarantee by the Company or any
Subsidiary of any indebtedness for borrowed money other than in the ordinary
course of business and in amounts and on terms consistent with past practices;
(e) any creation or assumption by the Company or any Subsidiary of any
Lien on any material asset other than in the ordinary course of business
consistent with past practices;
(f) any making of any loan, advance or capital contributions to or
investment in any Person other than loans, advances or capital contributions to
or investments in wholly-owned Subsidiaries made in the ordinary course of
business consistent with past practices;
(g) any damage, destruction or other casualty loss (whether or not
covered by insurance) affecting the business or assets of the Company or any
Subsidiary which, individually or in the aggregate, has had or would reasonably
be expected to have a Material Adverse Effect;
(h) any transaction or commitment made, or any contract or agreement
entered into, by the Company or any Subsidiary relating to its assets or
business (including the acquisition or disposition of any assets) or any
relinquishment by the Company or any Subsidiary of any contract or other right,
in either case, material to the Company and the Subsidiaries taken as a whole,
other than transactions and commitments in the ordinary course of business
consistent with past practice and those contemplated by this Agreement;
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(i) any change in any method of accounting or accounting practice by the
Company or any Subsidiary, except for any such change required by reason of a
concurrent change in generally accepted accounting principles;
(j) any (i) grant of any new severance or termination arrangement to any
director, officer or employee of the Company or any Subsidiary, (ii) entering
into of any employment, deferred compensation or other similar agreement (or any
amendment to any such existing agreement) with any director or officer of the
Company or any Subsidiary, (iii) increase in benefits payable under any existing
severance or termination pay policies or employment agreements or (iv) increase
in compensation, bonus or other benefits payable to directors or officers of the
Company or any Subsidiary, other than in the case of this clause (iv) in the
ordinary course of business consistent with past practice;
(k) any labor dispute, other than routine individual grievances, or any
activity or proceeding by a labor union or representative thereof to organize
any employees of the Company or any Subsidiary, which employees were not subject
to a collective bargaining agreement at the Balance Sheet Date, or any lockouts,
strikes, slowdowns, work stoppages or threats thereof by or with respect to such
employees; or
(l) any cancellation of any licenses, sublicenses, franchises, permits
or agreements to which the Company or any Subsidiary is a party, or any
notification to the Company or any Subsidiary that any party to any such
arrangements intends to cancel or not renew such arrangements beyond its
expiration date as in effect on the date hereof, which cancellation or
notification, individually or in the aggregate, has had or reasonably could be
expected to have a Material Adverse Effect.
SECTION 3.11. No Undisclosed Material Liabilities. Except as set forth
in Schedule 3.11, there are no liabilities of the Company or any Subsidiary of
any kind whatsoever, whether accrued, contingent, absolute, determined,
determinable or otherwise, other than:
(a) liabilities disclosed or provided for in the Balance Sheet;
(b) liabilities incurred since the Balance Sheet Date which would not be
reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect; and
(c) liabilities under this Agreement.
SECTION 3.12. Litigation. There is no action, suit, investigation or
proceeding (or to the Company's knowledge any reasonable basis therefor) pending
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against, or to the knowledge of the Company threatened against or affecting, the
Company or any Subsidiary or any of their respective properties before any court
or arbitrator or any governmental body, agency or official which would
reasonably be expected to have a Material Adverse Effect. For purposes of the
Agreement "knowledge of the Company" shall mean the actual knowledge of John
Castro, Richard Atterbury, Kay Barber or Steven Machov.
SECTION 3.13. Taxes. (a) Except as set forth in Schedule 3.13, and
except where the failure to file such Return has not had and would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, all tax returns, statements, reports and forms (including
estimated tax returns and reports and information returns and reports) required
to be filed with any taxing authority with respect to any tax period (or portion
thereof) ending on or before the Effective Time (a "Pre-Closing Tax Period") by
or on behalf of the Company or any Subsidiary of the Company (collectively, the
"Returns"), were filed when due (including any applicable extension periods) in
accordance with all applicable laws. As of the time of filing, the Returns were
true and complete in all material respects.
(b) The Company and its Subsidiaries have timely paid, or withheld and
remitted to the appropriate taxing authority, all taxes shown as due and payable
on the Returns that have been filed, except where the failure to so pay or
withhold and remit has not had and would not be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect.
(c) The charges, accruals and reserves for taxes with respect to the
Company and any Subsidiary for any Pre-Closing Tax Period (including any Pre-
Closing Tax Period for which no Return has yet been filed) reflected on the
books of the Company and its Subsidiaries (excluding any provision for deferred
income taxes) are adequate to cover such taxes in all material respects.
(d) Except as provided in Schedule 3.13, there is no material claim
(including under any indemnification or tax-sharing agreement), audit, action,
suit, proceeding, or investigation now pending or threatened in writing against
or in respect of any tax or "tax asset" of the Company or any Subsidiary. For
purposes of this Section 3.13, the term "tax asset" shall include any net
operating loss, net capital loss, investment tax credit, foreign tax credit,
charitable deduction or any other credit or tax attribute which could be carried
forward or back to reduce taxes.
(e) There are no material Liens for taxes upon the assets of the Company
or its Subsidiaries except for Liens for current taxes not yet due.
(f) The Company is not and has not been a United States real property
holding corporation within the meaning of Section 897(c)(2) of the Internal
Revenue
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Code of 1986, as amended (the "Code") during the applicable period specified in
Section 897(c)(1)(A)(ii) of the Code.
(g) Neither the Company nor any Subsidiary is currently under any
obligation to pay any amounts of the type described in clause (ii) or (iii) of
the definition of "tax", regardless of whether such tax is imposed on the
Company or any Subsidiary.
For purposes of this Section 3.13, "tax" means (i) any tax, governmental
fee or other like assessment or charge of any kind whatsoever (including, but
not limited to, withholding on amounts paid to or by any Person), together with
any interest, penalty, addition to tax or additional amount imposed by any
governmental authority responsible for the imposition of any such tax (domestic
or foreign), (ii) in the case of the Company or any Subsidiary, liability for
the payment of any amount of the type described in clause (i) as a result of
being or having been before the Effective Time a member of an affiliated,
consolidated, combined or unitary group, or a party to any agreement or
arrangement, as a result of which liability of the Company or any Subsidiary to
a taxing authority is determined or taken into account with reference to the
liability of any other Person, and (iii) liability of the Company or any
Subsidiary for the payment of any amount as a result of being party to any tax
sharing agreement or with respect to the payment of any amount of the type
described in (i) or (ii) as a result of any existing express or implied
obligation (including, but not limited to, an indemnification obligation).
SECTION 3.14. ERISA. (a) Schedule 3.14 contains a correct and complete
list identifying each material "employee benefit plan", as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974 ("ERISA"), each
employment, severance or similar contract, plan, arrangement or policy and each
other plan or arrangement (written or oral) providing for compensation, bonuses,
profit-sharing, stock option or other stock related rights or other forms of
incentive or deferred compensation, vacation benefits, insurance (including any
self-insured arrangements), health or medical benefits, employee assistance
program, disability or sick leave benefits, workers' compensation, supplemental
unemployment benefits, severance benefits and post-employment or retirement
benefits (including compensation, pension, health, medical or life insurance
benefits) which is maintained, administered or contributed to by the Company or
any ERISA Affiliate and covers any employee or former employee of the Company or
any Subsidiary, or with respect to which the Company or any Subsidiary has any
liability. Copies of such plans (and, if applicable, related trust or funding
agreements or insurance policies) and all amendments thereto and written
interpretations thereof have been made available to Merger Sub together with the
most recent annual report (Form 5500 including, if applicable, Schedule B
thereto) and tax return (Form 990) prepared in connection with any such plan or
trust. Such plans are referred to collectively herein as the "Employee Plans".
For purposes of this Section 3.14, "ERISA
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Affiliate" of any Person means any other Person which, together with such
Person, would be treated as a single employer under Section 414 of the Code.
(b) Neither the Company nor any ERISA Affiliate nor any predecessor
thereof sponsors, maintains or contributes to, or has any actual or reasonably
likely potential liability under, any Employee Plan subject to Title IV of ERISA
(other than a Multiemployer Plan, as defined below). Neither the Company nor any
ERISA Affiliate nor any predecessor thereof contributes to, or has any actual or
reasonably likely potential liability under, any multiemployer plan, as defined
in Section 3(37) of ERISA (a "Multiemployer Plan").
(c) A current favorable Internal Revenue Service determination letter is
in effect with respect to each Employee Plan which is intended to be qualified
under Section 401(a) of the Code (or the relevant remedial amendment period has
not expired with respect to such Employee Plan), and the Company knows of no
circumstance giving rise to a material likelihood that such Employee Plan would
be treated as other than qualified by the Internal Revenue Service. The Company
has made available to Merger Sub copies of the most recent Internal Revenue
Service determination letters with respect to each such Plan. Each Employee Plan
has been maintained in compliance with its terms and with the requirements
prescribed by any and all statutes, orders, rules and regulations, including but
not limited to ERISA and the Code, which are applicable to such Plan, except
where the failure to so comply would not, individually or in the aggregate, have
a Material Adverse Effect.
(d) Except as set forth in Schedule 3.14, the consummation of the
transactions contemplated by this Agreement will not (either alone or together
with any other event) entitle any employee or independent contractor of the
Company or any Subsidiary to severance pay or accelerate the time of payment or
vesting or trigger any payment of funding (through a grantor trust or otherwise)
of compensation or benefits under, increase the amount payable or trigger any
other material obligation pursuant to, any Employee Plan. To the knowledge of
the Company, there is no contract, agreement, plan or arrangement covering any
employee or former employee of the Company or any Affiliate that, individually
or collectively, could give rise to the payment of any amount that would not be
deductible pursuant to the terms of Sections 162m or 280G of the Code.
(e) Except as set forth in Schedule 3.14, or as reflected on the Balance
Sheet, neither the Company nor any Subsidiary has any liability in respect of
post-retirement health, medical or life insurance benefits for retired, former
or current employees of the Company or its Subsidiaries except as required to
avoid excise tax under Section 4980B of the Code.
(f) There has been no amendment to, written interpretation or
announcement (whether or not written) by the Company or any of its Affiliates
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relating to, or change in employee participation or coverage under, an Employee
Plan which would increase the expense of maintaining such Employee Plan above
the level of the expense incurred in respect thereof for the fiscal year ended
January 31, 1999, unless such increase would not, individually or in the
aggregate, have a Material Adverse Effect.
(g) Neither the Company nor any Subsidiary is a party to or subject to,
or is currently negotiating in connection with entering into, any collective
bargaining agreement or other contract or understanding with a labor union or
labor organization.
(h) Except as set forth in Schedule 3.14, all contributions and payments
accrued under each Employee Plan, determined in accordance with prior funding
and accrual practices, as adjusted to include proportional accruals for the
period ending as of the date hereof, have been discharged and paid on or prior
to the date hereof except to the extent reflected as a liability on the Balance
Sheet.
(i) Except as set forth in Schedule 3.14, there is no action, suit,
investigation, audit or proceeding pending against or involving or, to the
knowledge of the Company, threatened against or involving, any Employee Plan
before any court or arbitrator or any state, federal or local governmental body,
agency or official which would, individually or in the aggregate, have a
Material Adverse Effect.
SECTION 3.15. Compliance with Laws. Neither the Company nor any
Subsidiary is in violation of, or has since January 1, 1998 violated, and to the
knowledge of the Company none is under investigation with respect to or has been
threatened to be charged with or given notice of any violation of, any
applicable law, rule, regulation, judgment, injunction, order or decree, except
for violations that have not had and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
SECTION 3.16. Licenses and Permits. The Company and its Subsidiaries
have all material licenses, franchises, permits, certificates, approvals or
other similar authorizations affecting, or relating in any way to, the assets or
business of the Company and its Subsidiaries (the "Permits") the absence of
which, either individually or in the aggregate, would reasonably be expected to
have a Material Adverse Effect. Except as set forth on Schedule 3.16 and except
when the failure of the following to be true would not reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect, (i)
the Permits are valid and in full force and effect, (ii) neither the Company nor
any Subsidiary is in default under, and no condition exists that with notice or
lapse of time or both would constitute a default under, the Permits and (iii)
none of the Permits will be terminated or impaired or become terminable, in
whole or in part, as a result of the transactions contemplated hereby.
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SECTION 3.17. Intellectual Property. The Company and the Subsidiaries
own or possess adequate licenses or other rights to use all Intellectual
Property Rights necessary to conduct the business now operated by them, except
where the failure to own or possess such licenses or rights would not be
reasonably likely to have a Material Adverse Effect. To the knowledge of the
Company, the Intellectual Property Rights of the Company and the Subsidiaries do
not conflict with or infringe upon any Intellectual Property Rights of others to
the extent that, if sustained, such conflict or infringement has had and would
be reasonably likely to have a Material Adverse Effect. For purposes of this
Agreement, "Intellectual Property Right" means any trademark, service mark,
trade name, mask work, copyright, patent, software license, other data base,
invention, trade secret, know-how (including any registrations or applications
for registration of any of the foregoing) or any other similar type of
proprietary intellectual property right.
SECTION 3.18. Environmental Matters. (a) No notice, notification,
demand, request for information, citation, summons, complaint or order has been
received by, or, to the knowledge of the Company or any Subsidiary, is pending
or threatened by any Person against, the Company or any Subsidiary nor has any
material penalty been assessed against the Company or any Subsidiary with
respect to any (1) alleged violation of any Environmental Law or liability
thereunder, (2) alleged failure to have any permit, certificate, license,
approval, registration or authorization required under any Environmental Law,
(3) generation, treatment, storage, recycling, transportation or disposal of any
Hazardous Substance or (4) discharge, emission or release of any Hazardous
Substance, that in the case of (1), (2), (3) and/or (4), would, either
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect;
(b) No Hazardous Substance has been discharged, emitted, released or, to
the knowledge of the Company, is present at any property now or previously
owned, leased or operated by the Company or any Subsidiary, which circumstance,
individually or in the aggregate, would reasonably be expected to result in a
Material Adverse Effect; and
(c) To the knowledge of the Company, there are no Environmental
Liabilities that have had or would reasonably be expected to have a Material
Adverse Effect.
(d) There has been no environmental investigation, study, audit, test,
review or other analysis conducted of which the Company has knowledge in
relation to the current or prior business of the Company or any property or
facility now or previously owned or leased by the Company or any Subsidiary
which has not been delivered to Merger Sub at least five days prior to the date
hereof.
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(e) Except as set forth on Schedule 3.18, neither the Company nor any
Subsidiary owns or leases or has owned or leased any real property, or conducts
or has conducted any operations, in New Jersey or Connecticut.
(f) For purposes of this Section, the following terms shall have the
meanings set forth below:
(i) "Company" and "Subsidiary" shall include any entity which is,
in whole or in part, a predecessor of the Company or any Subsidiary;
(ii) "Environmental Laws" means any and all federal, state, local
and foreign statutes, laws, judicial decisions, regulations, ordinances,
rules, judgments, orders, decrees, codes, plans, injunctions, permits,
concessions, grants, franchises, licenses, agreements and governmental
restrictions, relating to human health, the environment or to emissions,
discharges or releases of pollutants, contaminants or other hazardous
substances or wastes into the environment, including without limitation
ambient air, surface water, ground water or land, or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants or other
hazardous substances or wastes or the clean-up or other remediation
thereof;
(iii) "Environmental Liabilities" means any and all liabilities of
or relating to the Company and any Subsidiary, whether contingent or
fixed, actual or potential, known or unknown, which (i) arise under or
relate to matters covered by Environmental Laws and (ii) relate to
actions occurring or conditions existing on or prior to the Effective
Time; and
(iv) "Hazardous Substances" means any pollutant, contaminant,
toxic, radioactive, corrosive or otherwise hazardous substance, material
or waste, including petroleum, its derivatives, by-products and other
hydrocarbons, or any substance having any constituent elements
displaying any of the foregoing characteristics, which in any event is
regulated under Environmental Laws.
(g) Since the date of this Agreement, there has been no change to the
situation or the conclusions described in Schedule 3.18 which would reasonably
be expected to result in a Material Adverse Effect.
SECTION 3.19. Finders' Fees. Except for CIBC World Markets Corp., a copy
of whose engagement agreement has been provided to Merger Sub, there is no
investment banker, broker, finder or other intermediary which has been retained
by or is authorized to act on behalf, of the Company or any Subsidiary who might
be
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entitled to any fee or commission from Merger Sub or any of its affiliates upon
consummation of the transactions contemplated by this Agreement.
SECTION 3.20. Inapplicability of Certain Restrictions. No "fair price",
"moratorium", "business combination", "control share acquisition", or other form
of anti-takeover statute or regulation under Minnesota law limits, prevents,
contravenes or is breached by the Merger, the execution and performance of this
Agreement or the consummation of any other transaction contemplated hereby or
the execution and performance of the Voting Agreement dated as of the date
hereof among Merger Sub and the several individuals named therein or the
consummation of any transaction contemplated thereby.
Prior to the execution hereof, the Merger, the execution and performance
of this Agreement and the consummation of the transactions contemplated hereby
was approved by the Special Committee and by a committee consisting of all of
the "disinterested" directors pursuant to the requirements of Section 302A.673
subd. 1(d)(3) of Minnesota Law (the "673 Committee").
SECTION 3.21. Rights Plan. The Company has not entered into, and its
Board of Directors has not adopted or authorized the adoption of, a shareholder
rights or similar agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF MERGER SUB
Merger Sub represents and warrants to the Company as of the date hereof
and as of the Effective Time that:
SECTION 4.01. Corporate Existence and Power. Merger Sub is a corporation
duly incorporated, validly existing and in good standing under the laws of
Minnesota and has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted. Since the date of its incorporation, Merger Sub has not engaged in
any activities other than in connection with or as contemplated by this
Agreement or in connection with arranging any financing required to consummate
the transactions contemplated hereby.
SECTION 4.02. Corporate Authorization. The execution, delivery and
performance by Merger Sub of this Agreement and the consummation by Merger Sub
of the transactions contemplated hereby are within the corporate powers of
Merger
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Sub and have been duly authorized by all necessary corporate and stockholder
action. This Agreement constitutes a valid and binding agreement of Merger Sub.
SECTION 4.03. Governmental Authorization. The execution, delivery and
performance by Merger Sub of this Agreement and the consummation by Merger Sub
of the transactions contemplated by this Agreement require no action by or in
respect of, or filing with, any governmental body, agency, official or authority
other than (a) the filing of articles of merger in accordance with Minnesota
Law, (b) compliance with any applicable requirements of the HSR Act; and (c)
compliance with any applicable requirements of the Exchange Act.
SECTION 4.04. Non-contravention. The execution, delivery and performance
by Merger Sub of this Agreement and the consummation by Merger Sub of the
transactions contemplated hereby do not and will not (a) contravene or conflict
with the articles of incorporation or bylaws of Merger Sub, (b) assuming
compliance with the matters referred to in Section 4.03, contravene or conflict
with any provision of law, regulation, judgment, order or decree binding upon
Merger Sub, or (c) constitute a default under or give rise to any right of
termination, cancellation or acceleration of any right or obligation of Merger
Sub or to a loss of any benefit to which Merger Sub is entitled under any
agreement, contract or other instrument binding upon Merger Sub.
SECTION 4.05. Disclosure Documents. (a) The information with respect to
Merger Sub and its subsidiaries that Merger Sub furnishes to the Company in
writing specifically for use in any Company Disclosure Document will not
contain, any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading (i) in the case of the
Company Proxy Statement at the time the Company Proxy Statement or any amendment
or supplement thereto is first mailed to stockholders of the Company, at the
time the stockholders vote on adoption of this Agreement and at the Effective
Time, and (ii) in the case of any Company Disclosure Document other than the
Company Proxy Statement, at the time of the filing thereof and at the time of
any distribution thereof.
(b) The Merger Sub Disclosure Documents, when filed, will comply as to
form in all material respects with the applicable requirements of the Exchange
Act and will not at the time of the filing thereof, at the time of any
distribution thereof or at the time of the meeting of the Company's
stockholders, contain any untrue statement of a material fact or omit to state
any material fact necessary to make the statements made therein, in the light of
the circumstances under which they were made, not misleading, provided, that
this representation and warranty will not apply to statements or omissions in
the Merger Sub Disclosure Documents based upon information furnished to Merger
Sub in writing by the Company specifically for use therein.
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SECTION 4.06. Finders' Fees. Except for Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJSC"), whose fees will be paid by Merger Sub, there
is no investment banker, broker, finder or other intermediary who might be
entitled to any fee or commission from the Company or any of its affiliates upon
consummation of the transactions contemplated by this Agreement.
SECTION 4.07. Financing. The Company has received copies of (a) a
commitment letter dated July 14, 1999 from DLJ Merchant Banking Partners II,
L.P. and certain related funds pursuant to which each of the foregoing has
committed, subject to the terms and conditions set forth therein, to purchase
equity securities of Merger Sub for an aggregate amount equal to $107.2 million,
and (b) a letter dated July 14, 1999 from DLJ Capital Funding, Inc. ("DLJ Senior
Debt Fund") and DLJ Bridge Finance, Inc. ("DLJ Bridge Fund") pursuant to which
(i) DLJ Bridge Fund has committed, subject to the terms and conditions set forth
therein, to purchase Senior Subordinated Increasing Rate Notes of the Company in
the amount of $190.0 million, and (ii) DLJ Senior Debt Fund has committed,
subject to the terms and conditions set forth therein, to enter into one or more
credit agreements providing for loans to the Company of up to an aggregate of
$245.0 million, comprised of term loans of $195.0 million and a revolving credit
facility of $50.0 million. As used in this Agreement, the aforementioned
entities shall hereinafter be referred to as the "Financing Entities." The
aforementioned commitments shall be referred to as the "Financing Agreements"
and the financing to be provided thereunder shall be referred to as the
"Financing." The aggregate proceeds of the Financing are in an amount sufficient
to consummate the transactions contemplated hereby, including, without
limitation, to pay the Common Stock Consideration, to repay all of the Company's
and its Subsidiaries' indebtedness together with any interest, premium or
penalties payable in connection therewith, to provide a reasonable amount of
working capital financing and to pay related fees and expenses (such amounts,
the "Required Amounts"). As of the date hereof, none of the commitment letters
relating to the Financing Agreements referred to above has been withdrawn and
Merger Sub does not know of any facts or circumstances that may reasonably be
expected to result in any of the conditions set forth in the commitment letters
relating to the Financing Agreements not being satisfied.
ARTICLE 5
COVENANTS OF THE COMPANY
SECTION 5.01. Conduct of the Company. From the date hereof until the
Effective Time (and except as expressly permitted under Section 5.04 or
contemplated by the Disclosure Schedules), the Company and the Subsidiaries
shall
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conduct their business in the ordinary course consistent with past practice and
shall use their commercially reasonable efforts to preserve intact their
business organizations and relationships with third parties and to keep
available the services of their present officers and employees. Without limiting
the generality of the foregoing, from the date hereof until the Effective Time,
without the consent of Merger Sub, which shall not be reasonably withheld or
delayed, the Company will not and will cause its Subsidiaries not to:
(a) adopt or propose any change in its articles of incorporation or
bylaws except as provided in Section 5.07;
(b) except pursuant to existing agreements or arrangements
(i) acquire (by merger, consolidation or acquisition of stock or
assets) any corporation, partnership or other business organization or
division thereof for an amount in excess of $5,000,000 in the aggregate,
or sell, lease or otherwise dispose of a subsidiary or an amount of
assets or securities for an amount in excess of $5,000,000 in the
aggregate;
(ii) make any investment in an amount in excess of $5,000,000 in
the aggregate whether by purchase of stock or securities, contributions
to capital or any property transfer, or purchase for an amount in excess
of $5,000,000 in the aggregate, any property or assets of any other
individual or entity;
(iii) waive, release, grant, or transfer any rights of material
value outside of the ordinary course consistent with past practice;
(iv) modify or change in any material respect any existing material
license, lease, contract, or other document outside of the ordinary
course consistent with past practice;
(v) incur or assume an amount of long-term or short-term debt in
excess of $25,000,000 in the aggregate (net of cash and marketable
securities);
(vi) assume, guarantee, endorse or otherwise become liable or
responsible (whether directly, contingently or otherwise) for the
obligations of any other person (other than any Subsidiary) which, are
in excess of $10,000,000 in the aggregate;
(vii) make any loans, advances or capital contributions to, or
investments in, any other person which are in excess of $5,000,000 in
the aggregate or
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(viii) authorize any new capital expenditures which, individually,
is in excess of $3,000,000 or, in the aggregate, are in excess of
$10,000,000;
(c) split, combine or reclassify any shares of its capital stock,
declare, set aside or pay any dividend or other distribution (whether in cash,
stock or property or any combination thereof) in respect of its capital stock,
other than cash dividends and distributions by a wholly owned subsidiary of the
Company to the Company or to a subsidiary all of the capital stock which is
owned directly or indirectly by the Company, or redeem, repurchase or otherwise
acquire or offer to redeem, repurchase, or otherwise acquire any of its
securities or any securities of its Subsidiaries;
(d) (i) adopt or amend any material bonus, profit sharing, compensation,
severance, termination, stock option, pension, retirement, deferred
compensation, employment or employee benefit plan, agreement, trust, plan, fund
or other arrangement for the benefit and welfare of any director, officer or
employee, or (ii) except for increases that, in the aggregate, do not result in
a material increase in benefits or compensation expense to the Company, increase
the compensation or fringe benefits of the Company's employees, or (iii)
materially increase the compensation or fringe benefits of any director or
officer or (iv) pay any material benefit not required by any existing plan or
arrangement (including, without limitation, the granting of stock options or
stock appreciation rights or the removal of existing restrictions in any benefit
plans or agreements);
(e) except as set forth in Schedule 5.01, revalue in any material
respect any of its assets, including, without limitation, writing down the value
of inventory in any material manner or write-off of notes or accounts receivable
in any material manner;
(f) pay, discharge or satisfy any material claims, liabilities or
obligations (whether absolute, accrued, asserted or unasserted, contingent or
otherwise) other than the payment, discharge or satisfaction in the ordinary
course of business, consistent with past practices, of liabilities reflected or
reserved against in the consolidated financial statements of the Company or
incurred in the ordinary course of business, consistent with past practices;
(g) make or change any tax election or settle or compromise any material
income tax liability;
(h) take any action other than in the ordinary course of business and
consistent with past practices with respect to accounting policies or procedures
other than any change in accounting policies that is required by the regulations
of the SEC or as otherwise required by GAAP; or
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(i) agree or commit to do any of the foregoing; or
(j) take or agree or commit to take any action that would make any
representation and warranty of the Company hereunder inaccurate in any material
respect at, or as of any time prior to, the Effective Time.
SECTION 5.02. Stockholder Meeting; Proxy Material. The Company shall
cause a meeting of its stockholders (the "Company Stockholder Meeting") to be
duly called and held as soon as reasonably practicable for the purpose of voting
on the approval and adoption of this Agreement and the Merger and the Charter
Amendment. Subject to their fiduciary duties as advised by counsel, the
Directors of the Company, including, without limitation, at least a majority of
the 673 Committee, shall, recommend approval and adoption of this Agreement and
the Merger by the Company's stockholders and shall not withdraw such
recommendation. In connection with such meeting, the Company (a) will promptly
prepare and file with the SEC, will use its commercially reasonable efforts to
have cleared by the SEC and will thereafter mail to its stockholders as promptly
as practicable the Company Proxy Statement and all other proxy materials for
such meeting, (b) will use its commercially reasonable efforts to obtain the
necessary approvals by its stockholders of this Agreement and the transactions
contemplated hereby and the Charter Amendment and (c) will otherwise comply with
all legal requirements applicable to such meeting.
SECTION 5.03. Access to Information. From the date hereof until the
Effective Time, the Company will give Merger Sub, its counsel, financial
advisors, auditors and other authorized representatives reasonable access to the
offices, properties, books and records of the Company and the Subsidiaries, will
furnish to Merger Sub, its counsel, financial advisors, auditors and other
authorized representatives such financial and operating data and other
information as such Persons may reasonably request and will instruct the
Company's employees, counsel and financial advisors to cooperate with Merger Sub
in its investigation of the business of the Company and the Subsidiaries;
provided that no investigation pursuant to this Section shall affect any
representation or warranty given by the Company to Merger Sub hereunder.
SECTION 5.04. Other Offers. (a) The Company and its Subsidiaries will
not and the Company will use its reasonable best efforts to cause the officers,
directors, agents, representatives or advisors of the Company and its
Subsidiaries not to, directly or indirectly, take any action to solicit,
initiate, encourage or knowingly facilitate the making of any Acquisition
Proposal or any inquiry with respect thereto or engage in negotiations with any
Person with respect thereto, or disclose any non-public information relating to
the Company or any Subsidiary of the Company or afford access to the properties,
books or records of the Company or any Subsidiary of the Company to, any Person
that has made, or to the Company's knowledge, is considering making, any
Acquisition Proposal, provided that nothing contained in
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this Section 5.04 shall prevent the Company from furnishing non-public
information to, or entering into negotiations with, or affording access to the
properties, books or records of the Company or its Subsidiaries to, any Person
in connection with an unsolicited bona fide Acquisition Proposal received from
such Person so long as prior to furnishing non-public information to, or
entering into negotiations with, such Person, (i) the Special Committee of the
Board of Directors of the Company by a majority vote determines in its good
faith judgment that it is necessary to do so to comply with its fiduciary duty
to shareholders under applicable law, after consultation with outside legal
counsel, and (ii) the Company receives from such Person an executed
confidentiality agreement with terms no less favorable to the Company than those
contained in the Confidentiality Agreement between the Company and DLJ Merchant
Banking II, Inc. referred to in Section 6.02. Nothing contained in this
Agreement shall prevent the Board of Directors of the Company from complying
with Rule 14e-2 under the Exchange Act with regard to an Acquisition Proposal.
Unless the Special Committee of the Board of Directors of the Company by a
majority vote determines in its good faith judgment that it is necessary not to
do so to comply with its fiduciary duty to stockholders under applicable law,
after consultation with outside legal counsel, the Company will (a) promptly
(and in no event later than 48 hours after receipt of any Acquisition Proposal)
notify (which notice shall be provided orally and in writing and shall identify
the Person making such Acquisition Proposal and set forth the material terms
thereof) Merger Sub of: (x) the receipt of any Acquisition Proposal, (y) any
indication, of which the Company has knowledge, that any Person is considering
making an Acquisition Proposal or (z) any request for non-public information
relating to the Company or any Subsidiary of the Company or for access to the
properties, books or records of the Company or any Subsidiary of the Company by
any Person that has made, or to the Company's knowledge may be considering
making, an Acquisition Proposal, and (b) will keep Merger Sub informed of the
status and material terms of any such Acquisition Proposal or request. The
Company and its Subsidiaries will, and the Company will use its reasonable best
efforts to cause the officers, directors, agents, representatives or advisors of
the Company and its Subsidiaries to, immediately cease and cause to be
terminated all negotiations, if any, that have taken place prior to the date
hereof with any parties with respect to any Acquisition Proposal.
For purposes of this Agreement, "Person" means any person, corporation,
entity or group, as defined in Section 13(d) of the Exchange Act, other than
Merger Sub or any of its affiliates.
For purposes of this Agreement, "Acquisition Proposal" means any offer
or proposal for, or any indication of interest in, any (i) direct or indirect
acquisition or purchase of a business or assets that constitute or generate 20%
or more of the net revenues, net income or the assets of the Company and its
Subsidiaries, taken as a whole, (ii) direct or indirect acquisition or purchase
of 20% or more of any class of equity securities of the Company or any of its
Subsidiaries whose business
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constitutes or generates 20% or more of the net revenues, net income or assets
of the Company and its Subsidiaries, taken as a whole, (iii) tender offer or
exchange offer (including a self-tender offer) that if consummated would result
in any person beneficially owning 20% or more of any class of equity securities
of the Company or any of its Subsidiaries whose business constitutes or
generates 20% or more the net revenues, net income or assets of the Company and
its Subsidiaries, taken as a whole, or (iv) merger, consolidation, business
combination, recapitalization, liquidation, dissolution or similar transaction
involving the Company or any of its Subsidiaries whose business constitutes or
generates 20% or more of the net revenue, net income or assets of the Company
and its Subsidiaries, taken as a whole, other than the transactions contemplated
by this Agreement.
(b) If a Payment Event (as hereinafter defined) occurs, the Company
shall pay to Merger Sub, if pursuant to (x) below, simultaneously with the
occurrence of such Payment Event or, if pursuant to (y) below, within two
business days following such Payment Event, a fee of $12,000,000 (the
"Termination Fee"). Notwithstanding the foregoing if the Company breaches any
representation, warranty, covenant or other agreement hereunder, the Termination
Fee paid by the Company and actually received by Merger Sub shall be credited
against the amount of damages awarded to Merger Sub as a result of such breach,
and any damages awarded to Merger Sub as a result of such breach shall be
credited against any subsequent payment of the Termination Fee, to the extent
the Company is also obligated hereunder to pay the Termination Fee.
"Payment Event" means (x) the termination of this Agreement by
the Company or Merger Sub pursuant to Sections 9.01(e) or (f); or (y) (1) a
Person shall have made an Acquisition Proposal prior to the Company Stockholder
Meeting and (2) within 12 months of the termination of this Agreement pursuant
to Sections 9.01(b) or (g) any of the following events shall have occurred
(whether or not proposed prior to the Company Stockholder Meeting and whether or
not any such event involves the Person referred to in 5.04(b)(y)(1) above)
whereby stockholders of the Company receive, pursuant to such event, cash,
securities or other consideration having an aggregate value, when taken together
with the value of any securities of the Company or its Subsidiaries otherwise
held by the stockholders of the Company after such event, in excess of $22.00
per Share: the Company merges with or into, or is acquired by merger or
otherwise by, a Person (directly or indirectly); a Person (directly or
indirectly) acquires more than 50% of the total assets of the Company and its
Subsidiaries, taken as a whole; a Person (directly or indirectly) acquires more
than 50% of the outstanding Shares or the Company adopts and implements a plan
of liquidation, recapitalization or share repurchase relating to more than 50%
of the outstanding Shares or an extraordinary dividend relating to more than 50%
of the outstanding Shares or 50% of the assets of the Company and its
Subsidiaries, taken as a whole.
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(c) The Company acknowledges that the agreements contained in this
Section 5.04 are an integral part of the transactions contemplated by this
Agreement, and that, without these agreements, Merger Sub would not enter into
this Agreement; accordingly, if the Company fails to promptly pay any amount due
pursuant to this Section 5.04, and, in order to obtain such payment, the other
party commences a suit which results in a judgment against the Company for the
fee or fees and expenses set forth in this Section 5.04, the Company shall also
pay to Merger Sub its costs and expenses incurred in connection with such
litigation.
(d) This Section 5.04 shall survive any termination of this Agreement,
however caused.
SECTION 5.05. Notices of Certain Events. The Company shall promptly
notify Merger Sub of:
(a) any notice or other communication from any Person alleging that the
consent of such Person is or may be required in connection with the transactions
contemplated by this Agreement;
(b) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions contemplated
by this Agreement;
(c) any actions, suits, claims, investigations or proceedings commenced
or, to the best of its knowledge threatened against, relating to or involving or
otherwise affecting the Company or any Subsidiary which, if pending on the date
of this Agreement, would have been required to have been disclosed pursuant to
Section 3.12 or which relate to the consummation of the transactions
contemplated by this Agreement.
SECTION 5.06. Resignation of Directors. Prior to the Effective Time, the
Company shall deliver to Merger Sub evidence satisfactory to Merger Sub of the
resignation of all directors of the Company (except as requested by Merger Sub)
effective at the Effective Time.
SECTION 5.07. Certificate of Designation; Amendment to Articles of
Incorporation. (a) If requested by Merger Sub no later than 10 days prior to the
Effective Time, the Board of Directors shall establish a class or series of
preferred stock from the undesignated shares of preferred stock of the Company
currently authorized that shall have rights and privileges that are
substantively identical to such rights and privileges of any series of Class A
Preferred Stock, par value $.01 per share, of Merger Sub that Merger Sub may
create and shall authorize the issuance of 2,000,000 shares of such class of
preferred stock (the "Mirror Preferred Stock").
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(b) Prior to the Effective Time, the Company shall amend its Articles of
Incorporation to authorize the issuance of 10,000,000 shares of Class B Common
Stock that shall have the same rights and privileges as the Shares, except that
they shall have a liquidation preference of $1.00 per share.
SECTION 5.08. Exchange for Class B Common Stock. Immediately prior to
the Effective Time, the Company shall issue to each member of the Roll-over
Group that number of shares of Class B Common Stock in exchange for the Shares
owned by such member of the Roll-over Group as is set forth in Appendix A at a
ratio of one share of Class B Common Stock for each Share so exchanged.
ARTICLE 6
COVENANTS OF MERGER SUB
Merger Sub agrees that:
SECTION 6.01. SEC Filings. As soon as practicable after the date of
announcement of the execution of the Merger Agreement, Merger Sub shall file
(separately, or as part of the Company Proxy Statement) with the SEC, if
required, a Rule 13E-3 Transaction Statement (the "Transaction Statement") with
respect to the Merger (together with any supplements or amendments thereto,
collectively the "Merger Sub Disclosure Documents"). Merger Sub and the Company
each agrees to correct any information provided by it for use in the Merger Sub
Disclosure Documents if and to the extent that it shall have become false or
misleading in any material respect. Merger Sub agrees to take all steps
necessary to cause the Merger Sub Disclosure Documents as so corrected to be
filed with the SEC and to be disseminated to holders of Shares, in each case as
and to the extent required by applicable federal securities laws. The Company
and its counsel shall be given an opportunity to review and comment on each
Merger Sub Disclosure Document prior to its being filed with the SEC.
SECTION 6.02. Confidentiality. The Confidentiality Agreement dated March
24, 1999 between the Company and DLJ Merchant Banking II, Inc. shall continue in
full force and effect prior to the Effective Time and after any termination of
this Agreement.
SECTION 6.03. Voting of Shares. Merger Sub agrees to vote all Shares
beneficially owned by it in favor of adoption of this Agreement at the Company
Stockholder Meeting.
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SECTION 6.04. Director and Officer Liability. For six years after the
Effective Time, Merger Sub will cause the Surviving Corporation to indemnify and
hold harmless the present and former officers and directors of the Company in
respect of acts or omissions occurring prior to the Effective Time including,
without limitation, matters related to the transactions contemplated by this
Agreement, to the extent provided under the Company's articles of incorporation
and bylaws in effect on the date hereof; provided that such indemnification
shall be subject to any limitation imposed from time to time under applicable
law. For six years after the Effective Time, Merger Sub will cause the Surviving
Corporation to use its best efforts to provide officers' and directors'
liability insurance in respect of acts or omissions occurring prior to and
including the Effective Time covering each such Person currently covered by the
Company's officers' and directors' liability insurance policy on terms with
respect to coverage and amount no less favorable than those of such policy in
effect on the date hereof, provided that in satisfying its obligation under this
Section, Merger Sub shall not be obligated to cause the Surviving Corporation to
pay premiums in excess of 200% of the amount per annum the Company paid in its
last full fiscal year, which amount has been disclosed to Merger Sub. It is
understood that such obligation to indemnify (but not to maintain insurance)
shall apply to claims of which the Surviving Corporation shall have been
notified prior to the expiration of such six-year period regardless of when such
claims shall have been disposed of.
SECTION 6.05. Employee Matters. Merger Sub agrees that, for at least one
year from the Effective Time, subject to applicable law, the Surviving
Corporation and its Subsidiaries will provide benefits to its employees which
will, in the aggregate, be comparable to those currently provided by the Company
and its Subsidiaries to their employees (other than any stock option or other
equity based incentive plan currently provided by the Company). Notwithstanding
the foregoing, nothing herein shall otherwise limit the Surviving Corporation's
right to amend, modify or terminate any Employee Plan.
ARTICLE 7
COVENANTS OF MERGER SUB AND THE COMPANY
The parties hereto agree that:
SECTION 7.01. Reasonable Commercial Efforts. Subject to the terms and
conditions of this Agreement, each party will use commercially reasonable
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate the transactions contemplated by this Agreement. Each
party shall also refrain from
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<PAGE>
taking, directly or indirectly, any action contrary to or inconsistent with the
provisions of this Agreement, including action which would impair such party's
ability to consummate the Merger and the other transactions contemplated hereby.
Without limiting the foregoing, the Company and its Board of Directors shall use
commercially reasonable efforts to (a) take all action necessary so that no
state takeover statute or similar statute or regulation is or becomes applicable
to the Merger or any of the other transactions contemplated by this Agreement
and (b) if any state takeover statute or similar statute or regulation becomes
applicable to any of the foregoing, take all action necessary so that the Merger
and the other transactions contemplated by this Agreement may be consummated as
promptly as practicable on the terms contemplated by this Agreement and
otherwise to minimize the effect of such statute or regulation on the Merger and
the other transactions contemplated by this Agreement.
SECTION 7.02. Certain Filings. (a) The Company and Merger Sub shall use
their respective commercially reasonable efforts to take or cause to be taken,
(i) all actions necessary, proper or advisable by such party with respect to the
prompt preparation and filing with the SEC of the Company Disclosure Documents
and the Merger Sub Disclosure Documents, and (ii) such actions as may be
required to have the Company Proxy Statement cleared by the SEC, in each case as
promptly as practicable.
(b) The Company agrees to provide all necessary cooperation, without any
requirement to expend funds currently, in connection with the arrangement of any
financing to be consummated contemporaneous with or at or after the purchase of
Shares pursuant to the Offer in respect of the transactions contemplated by this
Agreement and the Offer, including without limitation, (x) participation in
meetings, due diligence sessions and road shows, (y) the preparation of offering
memoranda, private placement memoranda, prospectuses and similar documents, and
(z) the execution and delivery of any commitment letters, underwriting or
placement agreements, pledge and security documents, other definitive financing
documents, or other requested certificates or documents, including a certificate
of the chief financial officer of the Company with respect to solvency matters,
comfort letters of accountants and legal opinions as may be reasonably requested
by the Merger Sub.
(c) The Company and Merger Sub shall cooperate with one another (i) in
determining whether any action by or in respect of, or filing with, any
governmental body, agency or official, or authority is required, or any actions,
consents, approvals or waivers are required to be obtained from parties to any
material contracts, in connection with or as a result of the consummation of the
transactions contemplated by this Agreement and (ii) in seeking any such
actions, consents, approvals or waivers or making any such filings, furnishing
information required in connection therewith or with the Company Disclosure
Documents and
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<PAGE>
Merger Sub Disclosure Documents and seeking timely to obtain any such actions,
consents, approvals or waivers.
SECTION 7.03. Public Announcements. Merger Sub and the Company will
consult with each other before issuing any press release or making any public
statement with respect to this Agreement and the transactions contemplated
hereby and, except as may be required by applicable law or any listing agreement
with any national securities exchange, will not issue any such press release or
make any such public statement prior to such consultation.
SECTION 7.04. Further Assurances. At and after the Effective Time, the
officers and directors of the Surviving Corporation will be authorized to
execute and deliver, in the name and on behalf of the Company or Merger Sub, any
deeds, bills of sale, assignments or assurances and to take and do, in the name
and on behalf of the Company or Merger Sub, any other actions and things to
vest, perfect or confirm of record or otherwise in the Surviving Corporation any
and all right, title and interest in, to and under any of the rights, properties
or assets of the Company acquired or to be acquired by the Surviving Corporation
as a result of, or in connection with, the Merger.
ARTICLE 8
CONDITIONS TO THE MERGER
SECTION 8.01. Conditions to the Obligations of Each Party. The
obligations of the Company and Merger Sub to consummate the Merger are subject
to the satisfaction of the following conditions:
(a) this Agreement and the Charter Amendment shall have been adopted by
the stockholders of the Company in accordance with Minnesota Law;
(b) any applicable waiting period under the HSR Act relating to the
Merger shall have expired;
(c) no provision of any applicable law or regulation and no judgment,
injunction, order of decree shall prohibit the consummation of the Merger;
provided, however, that the Company and Merger Sub shall each use its reasonable
efforts to have any such judgment, order, decree or injunction vacated; and
(d) all actions by or in respect of or filings with any governmental
body, agency, official, or authority required to permit the consummation of the
Merger shall have been obtained.
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<PAGE>
SECTION 8.02. Conditions to the Obligations of Merger Sub. The
obligations of Merger Sub to consummate the Merger are subject to the
satisfaction or waiver by Merger Sub of the following further conditions:
(a) (i) the Company shall have performed in all material respects all of
its obligations hereunder required to be performed by it at or prior to the
Effective Time, (ii) except to the extent expressly permitted under this
Agreement, the representations and warranties of the Company contained in this
Agreement and in any certificate or other writing delivered by the Company
pursuant hereto (x) that are qualified by materiality or Material Adverse Effect
shall be true at and as of the Effective Time as if made at and as of such time,
and (y) that are not qualified by materiality or Material Adverse Effect shall
be true in all material respects at and as of the Effective Time as if made at
and as of such time and (iii) Merger Sub shall have received a certificate
signed by the President of the Company to the foregoing effect;
(b) there shall not be instituted or pending any action or proceeding by
any government or governmental authority or agency that has a reasonable
likelihood of success, before any court or governmental authority or agency, (i)
challenging or seeking to make illegal, to delay materially or otherwise
directly or indirectly to restrain or prohibit the consummation of the Merger or
seeking to obtain material damages or otherwise directly or indirectly relating
to the transactions contemplated by this Agreement, (ii) seeking to restrain or
prohibit the Surviving Corporation's (including its Subsidiaries and affiliates)
ownership or operation of all or any material portion of the business or assets
of the Company and its Subsidiaries, taken as a whole, or to compel the
Surviving Corporation or any of its Subsidiaries or affiliates to dispose of or
hold separate all or any material portion of the business or assets of the
Company and its Subsidiaries, taken as a whole, (iii) seeking to impose or
confirm material limitations on the ability of the Surviving Corporation or any
of its Subsidiaries or affiliates to effectively control the business or
operations of the Company and its Subsidiaries, taken as a whole, or the ability
of DLJMB or any of its Affiliates effectively to exercise full rights of
ownership of any shares of the Surviving Corporation or any of its Subsidiaries
or affiliates prior to the Effective Time on all matters properly presented to
the Surviving Corporation's stockholders, or (iv) seeking to require divestiture
by DLJMB or any of its Affiliates of any shares of the Surviving Corporation,
and no court, arbitrator or governmental body, agency or official shall have
issued any judgment, order, decree or injunction, and there shall not be any
statute, rule or regulation proposed, adopted or enacted, that, in the sole
judgment of Merger Sub is likely, directly or indirectly, to result in any of
the consequences referred to in the preceding clauses (i) through (iv);
(c) Merger Sub shall have received all documents it may reasonably
request relating to the existence of the Company and the Subsidiaries and the
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<PAGE>
authority of the Company for this Agreement, all in form and substance
satisfactory to Merger Sub;
(d) funds in an amount at least equal to the Required Amounts shall have
been made available to Merger Sub as contemplated in Section 4.07;
(e) the holders of not more than 10% of the outstanding Shares shall
have exercised dissenters' rights in accordance with Minnesota Law;
(f) no change in accounting practice or policies by the SEC after the
date hereof shall cause Merger Sub reasonably to conclude that the Merger will
not be recorded as a "recapitalization" for financial reporting purposes;
(g) the Charter Amendment shall have become effective under Minnesota
Law and the exchange contemplated by Section 5.08 shall have occurred;
(h) if requested by Merger Sub pursuant to Section 5.07, the certificate
of designation for the Mirror Preferred Stock shall have been accepted for
filing by the Minnesota Secretary of State; and
(i) total indebtedness (long and short term), net of cash and marketable
securities, of the Company and its Subsidiaries as of the Effective Time shall
not exceed $125,000,000.
SECTION 8.03. Condition to the Obligation of the Company. The obligation
of the Company to consummate the Merger is subject to the satisfaction of the
following further conditions:
(a) (i) Merger Sub shall have performed in all material respects all of
its obligations hereunder required to be performed by it at or prior to the
Effective Time, (ii) except to the extent expressly permitted under this
Agreement, the representations and warranties of Merger Sub contained in this
Agreement and in any certificate or other writing delivered by Merger Sub
pursuant hereto (x) that are qualified by materiality or Material Adverse Effect
shall be true at and as of the Effective Time as if made at and as of such time,
and (y) that are not qualified by materiality or Material Adverse Effect shall
be true in all material respects at and as of the Effective Time as if made at
and as of such time and (iii) the Company shall have received a certificate
signed by the President of Merger Sub to the foregoing effect.
(b) The Board of Directors of the Company shall have received advice
reasonably satisfactory to the Board, from an independent advisor to the effect
that, upon consummation of the transactions contemplated hereby, including,
without limitation, the Financing, the Surviving Corporation (i) will not become
insolvent, (ii) will not be left with unreasonably small capital, (iii) will not
have incurred debts
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<PAGE>
beyond its ability to pay such debts as they mature, and (iv) the capital of the
Company will not become impaired.
ARTICLE 9
TERMINATION
SECTION 9.01. Termination. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time (notwithstanding
any approval of this Agreement by the stockholders of the Company):
(a) by mutual written consent of the Company on the one hand and Merger
Sub on the other hand;
(b) by either the Company or Merger Sub, if the Merger has not been
consummated by December 31, 1999, provided that the party seeking to exercise
such right is not then in breach in any material respect of any of its
obligations under this Agreement;
(c) by either the Company or Merger Sub, if Merger Sub (in the case of
termination by the Company), or the Company (in the case of termination by
Merger Sub) shall have breached in any material respect any of its obligations
under this Agreement or any representation and warranty of Merger Sub (in the
case of termination by the Company) or the Company (in the case of termination
by Merger Sub) shall have been incorrect in any material respect when made or at
any time prior to the Effective Time;
(d) by either the Company or Merger Sub, if there shall be any law or
regulation that makes consummation of the Merger illegal or otherwise prohibited
or if any judgment, injunction, order or decree enjoining Merger Sub or the
Company from consummating the Merger is entered and such judgment, injunction,
order or decree shall become final and nonappealable;
(e) by Merger Sub if the Board of Directors of the Company shall have
withdrawn, or modified or amended in a manner adverse to Merger Sub, its
approval or recommendation of this Agreement and the Merger and the Charter
Amendment or its recommendation that stockholders of the Company adopt and
approve this Agreement and the Merger and the Charter Amendment or approved,
recommended or endorsed any proposal for a transaction other than the Merger
(including a tender or exchange offer for Shares) or if the Company has failed
to call the Company Stockholder Meeting or failed to mail the Company Proxy
Statement to its
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<PAGE>
stockholders within 20 days after being cleared by the SEC or failed to include
in such statement the recommendation referred to above;
(f) by the Company, if (i) the Board of Directors of the Company
authorizes the Company, subject to complying with the terms of this Agreement,
to enter into a binding written agreement to enter into a transaction that
constitutes a Superior Proposal and the Company notifies Merger Sub in writing
that it intends to enter into such an agreement, attaching a description of the
material terms and conditions thereof, (ii) Merger Sub does not make, within
three business days of receipt of the Company's written notification of its
intention to enter into a binding agreement for a Superior Proposal, an offer
that the Special Committee of the Board of Directors of the Company determines
in good faith by a majority vote after consultations with its financial
advisors, is at least as favorable to the shareholders of the Company as the
Superior Proposal, it being understood that the Company shall not enter into any
such binding agreement during such three day period and (iii) the Company prior
to such termination pursuant to this clause (f) pays to Merger Sub in
immediately available funds the fees required to be paid pursuant to Section
5.04. The Company agrees to notify Merger Sub promptly if its intention to enter
into a written agreement referred to in its notification shall change at any
time after giving such notification; and
(g) by either the Company or Merger Sub if, at a duly held stockholders
meeting of the Company or any adjournment thereof at which this Agreement and
the Merger and the Charter Amendment are voted upon, the requisite stockholder
adoption and approval shall not have been obtained.
The party desiring to terminate this Agreement pursuant to Sections
9.01(b)- (g) shall give written notice of such termination to the other party in
accordance with Section 10.01.
For purposes of this Agreement, "Superior Proposal" means any bona fide,
unsolicited written Acquisition Proposal that the Special Committee of the Board
of Directors of the Company determines, in good faith by a majority vote, after
consultation with its financial advisors and after taking into account all the
terms and conditions of such Acquisition Proposal, is more favorable to the
Company's stockholders than the Merger and for which financing, to the extent
required, is then fully committed or reasonably determined to be available by
the Board of Directors of the Company.
SECTION 9.02. Effect of Termination. If this Agreement is terminated
pursuant to Section 9.01, this Agreement shall become void and of no effect with
no liability on the part of any party hereto, except that termination of this
Agreement shall be without prejudice to any rights any party may have hereunder
against any
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<PAGE>
other party for breach of this Agreement. The agreements contained in Sections
5.04, 6.02, 9.02, 10.04 and 10.06 shall survive the termination hereof.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including telecopy or similar
writing) and shall be given,
if to Merger Sub, to:
William F. Dawson, Jr.
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
Telecopy: 212-892-7272
with a copy to:
George R. Bason, Jr.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Telecopy: 212-450-4800
if to the Company, to:
General Counsel
Merrill Corporation
One Merrill Circle
St. Paul, MN 55108
Telecopy: 651-649-1348
with a copy to:
Frederick W. Kanner
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, NY 10019
Telecopy: 212-259-6333
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<PAGE>
or such other address or telecopy number as such party may hereafter specify for
the purpose by notice to the other parties hereto. Each such notice, request or
other communication shall be effective (a) if given by telecopy, when such
telecopy is transmitted to the telecopy number specified in this Section and the
appropriate telecopy confirmation is received or (b) if given by any other
means, when delivered at the address specified in this Section.
SECTION 10.02. Survival of Representations and Warranties. The
representations and warranties and agreements contained herein and in any
certificate or other writing delivered pursuant hereto shall not survive the
Effective Time or the termination of this Agreement except for the
representations, warranties and agreements set forth in Sections 5.04, 6.02,
6.04, 9.02, 10.04 and 10.06.
SECTION 10.03. Amendments; No Waivers. (a) Any provision of this
Agreement may be amended or waived prior to the Effective Time if, and only if,
such amendment or waiver is in writing and signed, in the case of an amendment,
by the Company and Merger Sub or in the case of a waiver, by the party against
whom the waiver is to be effective; provided that after the adoption of this
Agreement by the stockholders of the Company, no such amendment or waiver shall,
without the further approval of such stockholders, alter or change (i) the
amount or kind of consideration to be received in exchange for any shares of
capital stock of the Company or (ii) any of the terms or conditions of this
Agreement if such alteration or change would adversely affect the rights of the
holders of any shares of capital stock of the Company.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 10.04. Expenses. Except as provided in Section 5.04, all costs
and expenses incurred in connection with this Agreement shall be paid by the
party incurring such cost or expense.
SECTION 10.05. Successors and Assigns; Benefit. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other parties hereto except that Merger Sub
may make such an assignment to one or more of its affiliates. Nothing in this
Agreement, expressed or implied, shall confer on any Person other than the
parties hereto, and their respective successors and assigns, any rights,
remedies, obligations, or liabilities under or by
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reason of this Agreement, except that the present and former officers and
directors of the Company shall have the rights set forth in Section 6.04 hereof.
SECTION 10.06. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York, except that,
insofar as the procedures of the Merger that are subject to Minnesota Law
because the Merger Sub and the Company are incorporated in Minnesota are
concerned, the law of the State of Minnesota shall apply.
SECTION 10.07. Counterparts; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
MERRILL CORPORATION
By:
-----------------------------------
Name:
Title:
VIKING MERGER SUB, INC.
By:
-----------------------------------
Name:
Title:
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<PAGE>
APPENDIX A
Class B Common Stock to
Individual Shares be received in exchange
---------- ------ -----------------------
John Castro 909,091 909,091
Rick Atterbury 70,000 70,000
Page 136 of 142
EXHIBIT 4
VOTING AGREEMENT AND IRREVOCABLE PROXY
In consideration of Viking Merger Sub, Inc., a Minnesota corporation
("MergerSub") and Merrill Corporation, a Minnesota corporation (the "Company"),
entering into an Agreement and Plan of Merger dated as of the date hereof (the
"Merger Agreement") which provides, among other things, that MergerSub, upon the
terms and subject to the conditions thereof, will be merged with and into the
Company (the "Merger") and each outstanding share of common stock, $0.01 par
value, of the Company (the "Company Common Stock") will be converted into the
right to receive the Common Stock Consideration (as defined in the Merger
Agreement) in accordance with the terms of such Agreement, the undersigned
holders (the "Stockholders") of shares of Company Common Stock, some of which
are to be exchanged for an equal number of shares of Class B Common Stock (as
defined in the Merger Agreement) as further described below (the "Exchange"),
agree with MergerSub as follows:
1. During the period (the "Agreement Period") beginning on the date
hereof and ending on the earlier of (i) the time which is immediately prior to
the Effective Time (as defined in the Merger Agreement) or (ii) the termination
of the Merger Agreement in accordance with its terms, the Stockholders hereby
agree not to sell, transfer, assign, encumber or otherwise dispose of any shares
of Company Common Stock set forth in Schedule A attached hereto, or upon the
Exchange, the shares of Class B Common Stock received in the Exchange, or, upon
the exercise of any of the Schedule A Options (as defined below), the shares
received as a result of such exercise (collectively, the "Schedule A Shares") or
any of the options over shares of Company Common Stock set forth in Schedule A
(collectively, the "Schedule A Options" and together with the Schedule A Shares,
the "Schedule A Securities") or enter into any contract, option or other
arrangement or understanding with respect to the direct or indirect sale,
assignment, transfer, encumbrance or other disposition of any of the Schedule A
Securities. Notwithstanding the foregoing, any Stockholder may at any time
during the five days prior to the Company Stockholder Meeting (as defined in the
Merger Agreement) transfer up to 10% of his Schedule A Securities to any
charitable organization. It is acknowledged that at or immediately prior to the
Effective Time the Schedule A Options will be treated in accordance with the
terms of Section 1.05 of the Merger Agreement and those Schedule A Shares that
are not exchanged for Class B Common Stock in accordance with Section 5.08 of
the Merger Agreement will be treated in accordance with Section 1.02(f) of the
Merger Agreement.
2. During the Agreement Period, the Stockholders hereby agree to vote
the Schedule A Shares to approve and adopt the Merger Agreement and the Charter
Amendment, the Merger and all agreements related to the Merger and any actions
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related thereto at any meeting or meetings of the stockholders of the Company,
and at any adjournment thereof or pursuant to action by written consent, at or
by which such Merger Agreement or Charter Amendment and other related agreements
(or any amended version or versions thereof), or such other actions, are
submitted for the consideration and vote of the stockholders of the Company.
3. During the Agreement Period, the Stockholders hereby agree that they
will not vote any of the Schedule A Shares in favor of the approval of any other
merger, consolidation, sale of assets, reorganization, recapitalization,
liquidation or winding up of the Company or any other extraordinary transaction
involving the Company or any matters related to or in connection therewith,
except for the Charter Amendment, or any corporate action relating to or the
consummation of which would either frustrate the purposes of, or prevent or
delay the consummation of, the transactions contemplated by the Merger
Agreement.
4. The Stockholders hereby irrevocably appoint MergerSub, during the
Agreement Period, as proxy for and on behalf of the Stockholders to vote
(including, without limitation, the taking of action by written consent) the
Schedule A Shares, for and in the name, place and stead of the Stockholders for
the matters and in the manner contemplated by paragraph 2 above.
5. Subject to and without prejudice to their fiduciary obligations as
employees, officers or directors of the Company, during the Agreement Period,
the Stockholders will not, directly or indirectly, (i) take any action to
solicit, initiate or encourage any Acquisition Proposal or (ii) engage in
negotiations or discussions with, or disclose any nonpublic information relating
to the Company or any Subsidiary or afford access to the properties, books or
records of the Company or any Subsidiary to, or otherwise assist, facilitate or
encourage, any Third Party that may be considering making, or has made, an
Acquisition Proposal.
6. The Stockholders agree not to exercise any rights (including, without
limitation, under Section 302A.471 of the Minnesota Law) to exercise dissenters'
rights with respect to any Schedule A Shares owned by the Stockholders with
respect to the Merger.
7. Each Stockholder hereby represents and warrants to MergerSub that as
of the date hereof:
(a) such Stockholder (i) owns beneficially all of the shares of
Company Common Stock and options therefor set forth in Schedule A
hereto, (ii) has the full and unrestricted legal power, authority and
right to enter into, execute and deliver this Voting Agreement and
Irrevocable Proxy without the consent or approval of any other person
and (iii) has not entered into any voting agreement with or granted any
person any proxy (revocable or
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<PAGE>
irrevocable) with respect to such shares (other than this Voting
Agreement and Irrevocable Proxy).
(b) This Voting Agreement and Irrevocable Proxy is the valid and
binding agreement of such Stockholder. If this Agreement is being
executed in a representative or fiduciary capacity, the person signing
this Agreement has full power and authority to enter into and perform
such agreement.
(c) No investment banker, broker or finder is entitled to a
commission or fee from such Stockholder or the Company in respect of
this Agreement based upon any arrangement or agreement made by or on
behalf of such Stockholder.
8. Immediately prior to the Effective Time, each Stockholder agrees to
exchange that number of shares of Company Common Stock referred to for such
Stockholder in Appendix A to the Merger Agreement for Class B Common Stock at a
ratio of one share of Class B Common Stock for each share of Company Common
Stock so exchanged. The Company hereby agrees to take all reasonable actions
necessary to ensure that the Charter Amendment is enacted and the Exchange is
effected.
9. If any provision of this Voting Agreement and Irrevocable Proxy shall
be invalid or unenforceable under applicable law, such provision shall be
ineffective to the extent of such invalidity or unenforceability only, without
in any way affecting the remaining provisions of this Voting Agreement and
Irrevocable Proxy.
10. This Voting Agreement and Irrevocable Proxy may be executed in two
or more counterparts each of which shall be an original with the same effect as
if the signatures hereto and thereto were upon the same instrument.
11. The parties hereto agree that if for any reason any party hereto
shall have failed to perform its obligations under this Voting Agreement and
Irrevocable Proxy, then the party seeking to enforce this Agreement against such
non-performing party shall be entitled to specific performance and injunctive
and other equitable relief, and the parties hereto further agree to waive any
requirement for the securing or posting of any bond in connection with the
obtaining of any such-injunctive or other equitable relief. This provision is
without prejudice to any other rights or remedies, whether at law or in equity,
that any party hereto may have against any other party hereto for any failure to
perform its obligations under this Voting Agreement and Irrevocable Proxy.
12. This Voting Agreement and Irrevocable Proxy shall be governed by and
construed in accordance with the laws of the State of New York.
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<PAGE>
13. The Stockholders will, upon request, execute and deliver any
additional documents deemed by MergerSub to be necessary or desirable to
complete and effectuate the Irrevocable Proxy granted herein.
14. This Agreement shall terminate upon the termination of the Agreement
Period.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Voting
Agreement as of this 14th day of July, 1999.
VIKING MERGER SUB, INC.
By:
-----------------------------------
Name:
Title:
MERRILL CORPORATION
By:
-----------------------------------
Name:
Title:
-----------------------------------
Name: John Castro, individually
-----------------------------------
Name: Rick Atterbury, individually
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<PAGE>
SCHEDULE A
Options to Acquire
Shares of Company Company Common
Stockholder Common Stock Stock
----------- ----------------- ------------------
John Castro 1,907,716 76,300
Rick Atterbury 277,362 205,000
Page 142 of 142
