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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 11, 1994
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MERRILL CORPORATION
(Exact name of registrant as specified in its charter)
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MINNESOTA 41-0946258
(State of incorporation) (I.R.S. Employer
Identification No.)
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ONE MERRILL CIRCLE
ST. PAUL, MINNESOTA 55108
(612) 646-4501
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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1993 STOCK INCENTIVE PLAN
(Full title of the plans)
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STEVEN J. MACHOV, ESQ.
VICE PRESIDENT -- GENERAL COUNSEL AND SECRETARY
MERRILL CORPORATION
ONE MERRILL CIRCLE
ST. PAUL, MINNESOTA 55108
(612) 646-4501
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
IMMEDIATELY UPON THE FILING OF THIS REGISTRATION STATEMENT
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CALCULATION OF REGISTRATION FEE
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PROPOSED
PROPOSED MAXIMUM
TITLE OF MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED (1) PER SHARE (2) PRICE (2) FEE
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Common Stock, par value $.01
per share.................... 500,000 shares $27.75 $13,875,000 $4,785
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(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended, this Registration Statement includes an indeterminate number of
additional shares as may be issuable as a result of anti-dilution provisions
described herein.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee and calculated on the basis of the average between the high
and low reported sales prices of the Registrant's Common Stock on March 10,
1994 on the national over-the-counter market, as reported by the NASDAQ
National Market System.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated by reference in this Registration Statement:
(1) the Company's Annual Report on Form 10-K for the year ended January 31, 1993
(File No. 0-14082); (2) all other reports filed by the Company pursuant to
Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since January 31, 1993; and (3) the description of the
Company's Common Stock contained in its Registration Statement on Form 8-A.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all shares of Common Stock offered pursuant to this
Registration Statement have been sold or that deregisters all shares of Common
Stock then remaining unsold, shall be deemed to be incorporated by reference in
this Registration Statement and to be a part hereof from the date of filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The description of the Company's Common Stock to be offered pursuant to this
Registration Statement has been incorporated by reference into this Registration
Statement as described in Item 3 of this Part II.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The consolidated balance sheets as of January 31, 1993 and 1992 and the
consolidated statements of operations, changes in shareholders' equity, and cash
flows for each of the three years in the period ended January 31, 1993,
incorporated by reference in this Registration Statement, have been incorporated
herein in reliance on the report of Coopers & Lybrand, independent accountants,
given on the authority of that firm as experts in accounting and auditing.
The validity of the Common Stock being offered hereby is being passed upon
for the Company by Oppenheimer Wolff & Donnelly, Minneapolis, Minnesota. Richard
G. Lareau, a partner of the law firm, is a director of the Company and, as of
February 7, 1994, directly and beneficially owned 75,300 shares and indirectly,
an additional 5,000 shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Minnesota Statute Section 302A.521 provides that a Minnesota business
corporation shall indemnify any director, officer, or employee of the
corporation made or threatened to be made a party to a proceeding, by reason of
the former or present official capacity (as defined) of the person, against
judgments, penalties, fines, settlements and reasonable expenses incurred by the
person in connection with the proceeding if certain statutory standards are met.
"Proceeding" means a threatened, pending or completed civil, criminal,
administrative, arbitration or investigative proceeding, including one by or in
the right of the corporation. Section 302A.521 contains detailed terms regarding
such right of indemnification and reference is made thereto for a complete
statement of such indemnification rights.
Article X of the Company's Restated Articles of Incorporation provides that
directors, officers, employees and agents, past or present, of the Company, and
persons serving as such of another corporation or entity at the request of the
Company, shall be indemnified by the Company to the fullest extent permitted by
applicable state law.
The Company maintains directors' and officers' liability insurance,
including a reimbursement policy in favor of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
No securities are to be reoffered or resold pursuant to this Registration
Statement.
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ITEM 8. EXHIBITS.
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EXHIBIT
NO. DESCRIPTION
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4.1 Articles of Incorporation of the Company, as amended (incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1 (File No. 33-4062)).
4.2 Amendments to Articles of Incorporation as of June 20, 1986 and March 27, 1987 (incorporated by reference
to Exhibit 3.2 to the Company's Annual Report on Form 10-K for fiscal year ended January 31, 1987 (File
No. 0-14082)).
4.3 Restated Bylaws of the Company (incorporated by reference to Exhibit 3.3 to the Company's Annual Report
on Form 10-K for fiscal year ended January 31, 1990 (File No. 0-14082)).
5.1 Opinion and Consent of Oppenheimer Wolff & Donnelly.
23.1 Consent of Oppenheimer Wolff & Donnelly (included in Exhibit 5.1).
23.2 Consent of Coopers & Lybrand, Independent Accountants.
24.1 Power of Attorney (included on page II-4 of this Registration Statement).
99.1 1993 Stock Incentive Plan (incorporated by reference to Exhibit 10.8 to the Company's Annual Report on
Form 10-K for the fiscal year ended January 31, 1993 (File No. 0-14082)).
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ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represents a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of
II-2
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1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, except as to
certain insurance policies, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of St. Paul, State of Minnesota, on March 11, 1994.
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(REGISTRANT) MERRILL CORPORATION
BY (SIGNATURE)
(NAME AND TITLE) John W. Castro, President and Chief Executive Officer
(DATE) March 11, 1994
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints John W. Castro and John B. McCain and each or any
one of them, his true and lawful attorneys-in-fact and agents, each acting
alone, with full powers of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any or all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, each acting alone, or his substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on the dates and
in the capacities indicated.
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BY (SIGNATURE) John W. Castro, President and Chief Executive Officer (Principal
(NAME AND TITLE) Executive Officer) and Director
(DATE) March 11, 1994
John B. McCain, Vice President -- Finance, Chief Financial
BY (SIGNATURE) Officer and Treasurer (Principal Financial and Accounting
(NAME AND TITLE) Officer)
(DATE) March 11, 1994
BY (SIGNATURE)
(NAME AND TITLE) Kenneth F. Merrill, Director
(DATE) March 11, 1994
BY (SIGNATURE)
(NAME AND TITLE) Robert F. Nienhouse, Director
(DATE) March 11, 1994
BY (SIGNATURE)
(NAME AND TITLE) Richard G. Lareau, Director
(DATE) March 11, 1994
BY (SIGNATURE)
(NAME AND TITLE) Paul G. Miller, Director
(DATE) March 11, 1994
BY (SIGNATURE)
(NAME AND TITLE) Rick R. Atterbury, Director
(DATE) March 11, 1994
BY (SIGNATURE)
(NAME AND TITLE) Ronald N. Hoge, Director
(DATE) March 11, 1994
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II-4
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INDEX TO EXHIBITS
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EXHIBIT PAGE
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4.1 Articles of Incorporation of the Company (incorporated by reference
to Exhibit 3.1 to the Company's Registration Statement on Form S-1
(File No. 33-4062)).
4.2 Amendments to Articles of Incorporation as of June 20, 1986 and
March 27, 1987 (incorporated by reference to Exhibit 3.2 to the
Company's Annual Report on Form 10-K for fiscal year ended January
31, 1987
(File No. 0-14082)).
4.3 Restated Bylaws of the Company (incorporated by reference to Exhibit
3.3 to the Company's Annual Report on Form 10-K for fiscal year
ended January 31, 1990 (File No. 0-14082)).
5.1 Opinion and Consent of Oppenheimer Wolff & Donnelly................. Filed herewith electronically.
23.1 Consent of Oppenheimer Wolff & Donnelly (included in Exhibit 5.1).
23.2 Consent of Coopers & Lybrand, Independent
Accountants........................................................ Filed herewith electronically.
24.1 Power of Attorney (included on page II-4 of this Registration
Statement).
99.1 1993 Stock Incentive Plan (incorporated by reference to Exhibit 10.8
to the Company's Annual Report on Form 10-K for the fiscal year
ended January 31, 1993 (File No. 0-14082)).
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EXHIBIT 5.1
March 11, 1994
Merrill Corporation
One Merrill Circle
Saint Paul, MN 55108
RE: REGISTRATION STATEMENT ON FORM S-8
1993 STOCK INCENTIVE PLAN
Ladies and Gentlemen:
We have acted as counsel to Merrill Corporation, a Minnesota corporation
(the "Company"), in connection with the registration by the Company of 500,000
shares of its Common Stock, $.01 par value (the "Shares"), pursuant to the
Company's Registration Statement on Form S-8 for the Company's 1993 Stock
Incentive Plan (the "Plan"), to be filed with the Securities and Exchange
Commission on March 11, 1994 (the "Registration Statement").
In acting as counsel for the Company and arriving at the opinions expressed
below, we have examined and relied upon originals or copies, certified or
otherwise identified to our satisfaction, of such records of the Company,
agreements and other instruments, certificates of officers and representatives
of the Company, certificates of public officials and other documents as we have
deemed necessary or appropriate as a basis for the opinions expressed herein.
In connection with our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents tendered to us as originals, the
legal capacity of natural persons and the conformity to original documents of
all documents submitted to us as certified or photostatic copies.
Based on the foregoing, and subject to the qualifications and limitations
set forth herein, it is our opinion that:
1. The Company has the corporate authority to issue the Shares in the
manner and under the terms set forth in the Registration Statement.
2. The Shares have been duly authorized and, when issued, delivered and
paid for in accordance with the Plan referred to in the Registration
Statement, will be validly issued, fully paid and nonassessable.
We express no opinion with respect to laws other than those of the State of
Minnesota and the federal laws of the United States of America, and we assume no
responsibility as to the applicability thereto, or the effect thereon, of the
laws of any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to its use as part of the Registration Statement.
We are furnishing this opinion to the Company solely for its benefit in
connection with the Registration Statement as described above. It is not to be
used, circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
/s/ Oppenheimer Wolff & Donnelly
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Oppenheimer Wolff & Donnelly
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
of Merrill Corporation on Form S-8 of our reports dated March 23, 1993, on our
audits of the consolidated financial statements and financial statement
schedules of Merrill Corporation as of January 31, 1993 and 1992, and for the
years ended January 31, 1993, 1992, and 1991, which reports are incorporated by
reference in this Annual Report on Form 10-K for the year ended January 31,
1993. We also consent to the reference to our Firm under Item 5. of the
Registration Statement, "Interests of Named Experts and Counsel."
/s/ COOPERS & LYBRAND
COOPERS & LYBRAND
St. Paul, Minnesota
March 11, 1994
