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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
(MARK ONE)
/X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED JANUARY 31, 1997
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from __________________ to __________________
COMMISSION FILE NUMBER: 0-14082
MERRILL CORPORATION
(Exact name of Registrant as specified in its charter)
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MINNESOTA 41-0946258
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
ONE MERRILL CIRCLE
ST. PAUL, MINNESOTA 55108
(Address of principal executive offices) (Zip Code)
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Registrant's telephone number, including area code: (612) 646-4501
Securities registered pursuant to Section 12(b) of the Act: NONE
Securities registered pursuant to Section 12(g) of the Act:
COMMON STOCK, PAR VALUE $.01 PER SHARE
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Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes _X_ No ____
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. /X/
As of April 23, 1997, 7,915,900 shares of Common Stock of the Registrant
were outstanding, and the aggregate market value of the Common Stock of the
Registrant as of that date (based upon the last reported sale price of the
Common Stock at that date by the Nasdaq National Market) excluding
outstanding shares owned beneficially by officers and directors, was
approximately $142,871,000.
DOCUMENTS INCORPORATED BY REFERENCE
This Report does not repeat important information that you can find in
selected pages of our Annual Report to Shareholders for the year ended January
31, 1997 (Annual Report) and in our Proxy Statement for our Annual Meeting on
May 20, 1997 (Proxy Statement). The SEC allows us to "incorporate by reference"
portions of these documents, which means that we can disclose important
information to you by referring you to other documents which are legally
considered to be a part of this Report. We encourage you to read the referenced
pages in the Annual Report and Proxy Statement for a more thorough understanding
of our company and business.
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TABLE OF CONTENTS
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PART I................................................................................. 1
ITEM 1. BUSINESS..................................................................... 1
ITEM 2. PROPERTIES................................................................... 8
ITEM 3. LEGAL PROCEEDINGS............................................................ 8
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.......................... 9
PART II................................................................................ 9
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS........ 9
ITEM 6. SELECTED FINANCIAL DATA...................................................... 10
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS................................................................... 10
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.................................. 10
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL
DISCLOSURE................................................................... 10
PART III............................................................................... 10
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.......................... 10
ITEM 11. EXECUTIVE COMPENSATION...................................................... 10
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.............. 10
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.............................. 11
PART IV................................................................................ 11
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS OF FORM 8-K............ 11
REPORT OF INDEPENDENT ACCOUNTANTS ON FINANCIAL STATEMENT SCHEDULE...................... 13
SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS....................................... 14
SIGNATURES............................................................................. 15
EXHIBIT INDEX.......................................................................... 16
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PART I
ITEM 1. BUSINESS
(a) GENERAL DEVELOPMENT OF BUSINESS
Merrill Corporation provides a full range of typesetting, printing, document
management and reproduction, distribution and marketing communication services
to financial, legal, funds and corporate markets. Our headquarters are in St.
Paul, Minnesota and we have 29 locations in major cities across the United
States, including six regional printing plants. In addition, we have
distribution operations in St. Cloud, Minnesota and Monroe, Washington. We also
service financial and corporate printing clients internationally with joint
venture operations in Canada, Europe and Asia, and through arrangements with
printing companies in many cities around the world.
Since February 1, 1996, we have acquired three businesses. On March 29,
1996, we bought FMC Resource Management Corporation (FMC) near Seattle. FMC is a
manufacturing, distribution and inventory management business. On April 15,
1996, we purchased selected assets of The Corporate Printing Company, Inc. and
its related companies and partnerships (CPC), a New York financial and corporate
printer. CPC had offices in New York, Washington, D.C. and Maryland. On February
21, 1997, we bought most of the assets of Roald Marth Learning Systems, Inc.
which used the name Superstar Computing (Superstar). Superstar provides computer
systems and training to the real estate industry.
On May 17, 1996, we combined our Canadian financial and corporate business
with certain assets of Quebecor Printing, Inc. into a joint venture known as
Quebecor Merrill Canada, Inc.
On October 25, 1996, we sold $35 million of Senior Notes through a private
placement. The proceeds were used to reduce our short-term bank line of credit
that we had used to finance the FMC and CPC acquisitions earlier in the year.
On November 25, 1996, we replaced our existing revolving credit agreement
with a $40 million revolving credit agreement with a group of banks. The new
agreement expires on November 29, 1999.
Merrill Corporation is a Minnesota corporation that was organized in 1968
under the name "K.F. Merrill Company." Our main offices are at One Merrill
Circle, Energy Park, St. Paul, Minnesota 55108, telephone (612) 646-4501.
Unless it does not make sense in the sentence, when we use "Company,"
"Merrill," "our" or "we," those terms also include our subsidiaries, Merrill/New
York Company, Merrill/Magnus Publishing Corporation, Merrill Corporation,
Canada, Merrill/ May, Inc., Merrill International, Inc, Merrill Real Estate
Company, FMC Resource Management Corporation and Merrill/ Superstar Computing
Company.
(b) FINANCIAL INFORMATION ABOUT INDUSTRY SEGMENTS
Since we started in 1968, Merrill's revenues, operating profits and assets
have come from one business segment: we have provided document typesetting,
printing, management and reproduction, distribution and marketing communication
services for the financial, legal, funds and corporate markets. Please refer to
pages 12 to 27 of our 1997 Annual Report to Shareholders for more information.
That information is part of our disclosure in this Report.
(c) NARRATIVE DESCRIPTION OF BUSINESS
We are a document management and services company; we use advanced computer
and telecommunication technology to provide a full range of services to our
customers. These services include typesetting, printing, electronic document
formation, reproduction, facilities management, distribution and marketing
communication services. We market these services through the following product
sectors: financial, funds, document management services and managed
communications.
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CATEGORIES OF SERVICE
We divide our revenue into four groups: Financial, Corporate, Document
Management Services and Commercial and Other work. The following table shows the
percentage of revenue Merrill has produced in each of those groups for our past
three fiscal years:
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YEAR ENDED JANUARY 31,
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CATEGORY OF SERVICE 1997 1996 1995
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Financial............ 40.6% 36.1% 33.4%
Corporate............ 27.6% 29.5% 33.4%
Document Management
Services............ 11.2% 12.9% 9.9%
Commercial and
Other............... 20.6% 21.5% 23.3%
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Total............ 100.0% 100.0% 100.0%
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FINANCIAL AND CORPORATE
GENERAL
The Financial revenue category includes the production and distribution of
time-sensitive, transactional financial documents, such as registration
statements, prospectuses and other printed materials that are part of business
financings and acquisitions.
Merrill's Corporate revenue category includes the production and
distribution of corporate documents that our clients provide at regular
intervals. Corporate revenue includes documents marketed through both our
financial and funds product sectors. Some examples are annual and quarterly
reports and proxy materials for companies. Other examples are registration
statements, compliance and marketing materials for unit investment trusts and
mutual funds. We use the same technology and people to provide both Financial
and Corporate printing services.
We are a service-oriented company. The production of financial and corporate
documents requires rapid typesetting, printing and electronic conversion
services that are available twenty-four hours per day and tailored to the
exacting demands of our customers. We receive information directly from our
customers in various forms, including typed or handwritten pages, tapes, faxes,
disks, modems, Internet-based files, and direct links from customers' computers.
The information may come into one of our offices, which will transmit it by fax
or direct electronic connection (modem) to our centralized production facilities
for processing into a typeset or electronic document. Each document typically
goes through many cycles of proofreading and editing. Each version of a document
is typeset or converted to an electronic format required by the SEC (EDGAR), and
distributed to the people drafting it, including corporate executives,
investment bankers, attorneys and accountants. If the drafters are in different
cities, the proofs must be delivered simultaneously to different parts of the
country.
Just before the final version of a financial or corporate document is
completed, the drafting group will usually meet in one of our conference rooms
in our offices. These "in-houses" are one of the most time-critical services
that we provide. In-house sessions require the accurate and rapid turnaround of
the edited pages and expert knowledge of the documents and filing requirements
of the SEC. We also need to provide a comfortable and pleasant environment for
the many hours of drafting. After the customers have made their final changes,
we quickly prepare an electronic submission for filing through EDGAR. We also
create paper copies of the document and exhibits for filing with the SEC and
other regulatory authorities. The document is then printed, collated, bound and
distributed in booklet form. We can also produce material electronically for
distribution via the Internet in PDF or HTML formats (computer coding that makes
it possible to look at pages of text on a computer screen).
"HUB AND SPOKE" NETWORK
We use computers and telecommunication technology to create a "hub and
spoke" network for Merrill's financial and corporate services, linking our
typesetting centers in St. Paul and suburban Baltimore (the hubs) with our 22
service facilities in the United States (the spokes). We also have the
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technology to link the hubs directly to our customers and to our international
partners and affiliates.
CENTRAL COMPUTERIZED PRODUCTION FACILITY. Merrill has computer systems in
our central production facility located in St. Paul that work with communication
technology and software we have developed. We use computers, communication
controllers, text entry and editing stations, laser typesetting equipment, and a
number of special purpose computer subsystems for data conversion and
information management. Each critical piece of equipment in the system has at
least one back-up device. We designed the computer systems to be
high-performance, reliable, and secure.
The concentration of equipment and typesetting personnel in a central
facility has been a key Merrill strategy to reduce overhead and labor costs,
train people more effectively, and use our resources efficiently. In addition,
with the growth of the Company, a second hub in suburban Baltimore has given us
regional focus and stronger backup in case of a disaster to the St. Paul hub. We
believe we benefit more quickly from new technologies that have decreased costs
and improved the quality of our service, since new technologies and methods in
the hub facilities immediately benefit the spoke facilities. We also believe
that we are better able to allocate our typesetting resources when and where our
customers need them.
NATIONAL COMMUNICATIONS NETWORK. Merrill has a self-contained
telecommunications network connecting our service facilities with the hubs. We
transmit documents and production control information electronically among our
offices. The network consists of digital lines connecting each of our service
facilities with the hubs, automated data switching and routing equipment and the
software that controls the communications. Designed to operate continuously, the
network is highly efficient and reliable. We have back-up service for each
section of the network, in case any or all of it fails to operate.
SERVICE FACILITIES. Merrill staffs service facilities with sales,
administrative, customer service, production, duplication and distribution
personnel. The service facilities have conference rooms with support staff,
office equipment and amenities to give our customers a comfortable work
environment in which to meet, write and revise their documents. The service
facilities have photo-imaging equipment to produce high quality images using the
electronic information received from the hubs. Within minutes of completion, we
can transmit documents to one or more service facilities for distribution.
MERRILLLINK-TM-. We developed the MERRILLLINK system to connect our hubs to
other locations through the use of portable printing devices in the client's
office or at our smaller sales offices. We can edit typeset pages and provide
proof distribution to remote locations throughout the world. MERRILLLINK lets us
do business almost anywhere. The system is particularly helpful in our financial
work where our customers require a quick turnaround.
INTERNATIONAL SERVICE. Merrill and Burrups, Ltd., a London-based financial
printing company, jointly market international financial transaction business
worldwide. Both companies work together to give customers integrated document
typesetting, printing and distribution services wherever the document originates
or needs to be delivered. Besides London, Burrups has full service facilities in
Frankfurt, Luxembourg, Paris, and Tokyo for use in our joint international
service.
We also market and service financial and corporate documents in Canada
through a joint venture with Quebecor Printing, Inc., a large commercial printer
based in Montreal. Quebecor Merrill Canada, Inc. has full service facilities in
Calgary, Montreal, Toronto, and Vancouver.
We have also established relationships with financial printing companies in
thirty-six countries who provide services to us on an "as needed" basis. We have
the software and hardware for electronic communications between our production
hubs and the
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international service facilities. With this electronic connection and the
MERRILLLINK system, we can transmit high-quality typeset documents for printing
and distribution in Europe, Asia, the Middle East, Africa, the Pacific Rim and
Latin America without the time delays and costs of air shipment.
THE JOB CONTROL SYSTEM. We coordinate the activities of our service
facilities through our own Job Control System (JCS). This system tracks each
document from the time we receive it through production and billing. Information
can be sent to and retrieved from the JCS by any service facility and can be
immediately read in the hubs. During the production phase, the JCS assigns job
numbers and tracks information about the document, such as dates and the times
at which proofs are due, style and job specifications, messages regarding the
job and last-minute changes. Distribution of drafts is a critical task in the
preparation of financial documents, and the JCS simplifies this task. It keeps a
current address list for each job, the history of the distribution, and the
method of delivery for each proof. We also use the production information
collected in the JCS for billing.
EDGAR
The SEC now requires public companies or their agents to file most
disclosure information in an electronic format through EDGAR, rather than in
paper. This electronic format, usually in ASCII, includes additional submission
information and coding "tags" embedded in the document. The SEC uses this
embedded information to analyze the document and to help the public retrieve
these disclosures. EDGAR filings are generally delivered by modem on a telephone
line, but may be delivered on magnetic computer tape or by diskette. We convert
SEC forms and exhibit documents from standard word processing and other computer
formats to the EDGAR format and we then assemble these documents for electronic
filing with the SEC.
Merrill has been involved in all stages of EDGAR's development. We wrote
software that enables us to prepare documents in single source files and file
the electronic version of financial and corporate documents quickly. "Single
source files" mean we make only one set of corrections to alter both the
electronic and print files -- reducing the chance of inconsistency. We have a
dedicated data line directly to the SEC's computers, which avoids busy signals
and other tie-ups. In addition, we have trained our staff extensively to
coordinate the preparation of these EDGAR filings. We keep participants informed
of EDGAR developments by publishing quarterly Merrill's EDGAR ADVISOR-TM-, a
newsletter for distribution to lawyers, corporate executives and other readers.
We conduct seminars throughout the country on EDGAR. Customers may call our
toll-free EDGAR information line. We also publish a variety of reference
materials on EDGAR rules, forms, and procedures.
We have experienced increased demand for EDGAR filing services in both our
financial and corporate categories of services. Many public companies choose not
to manage their own EDGAR filings and use outside services to meet EDGAR filing
requirements. We believe that our full array of EDGAR services will continue to
enhance the need for our other time-sensitive document services.
DOCUMENT MANAGEMENT SERVICES
Merrill provides comprehensive document management services for our
customers. We work both on an ongoing basis, which can include management of the
client's entire photocopying, typesetting, imaging and/or mailroom facilities,
and on a transactional basis, which includes photocopying and electronic imaging
services on an as needed basis.
We offer comprehensive office photocopying, typesetting and mailroom
facility management services to our customers in Document Service Centers (DSCs)
within their offices. These services involve providing for a client's document
management needs, including on-site employees, equipment and management of the
operation.
We typically enter into three-year agreements with our clients to provide a
range of services at their location. We help our customers determine their
needs, and
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provide the equipment, staff, and management to meet those needs. Since most of
our DSCs are located in cities where we have our own full-service facilities, we
can provide back-up capacity and personnel to our DSC customers as needed.
The transactional business includes document reproduction for projects that
are time-sensitive or otherwise require special service, such as photocopying
documents for large litigation matters. We produce the photocopies at our own
service facilities or we place photocopying equipment and personnel at the
client's office. Document reproduction services require rapid turnaround and
availability twenty-four hours per day. Our document reproduction customers
typically have several boxes of documents that may be in file folders, stapled
or on varying sizes of paper. We take apart, photocopy and reassemble the
original documents and copies as instructed by the client. We also provide
sequential numbering, binding and imaging services for these documents, if
requested. Photocopying projects range from single copies of short documents to
very complicated tasks.
Our full-service facilities include document management equipment and
personnel. Each service facility is equipped with high-performance photocopying
equipment. We make efficient use of this equipment by performing project
photocopying during times when the equipment would otherwise be idle. We also
operate document reproduction facilities in Century City (Los Angeles area) and
Union, New Jersey.
COMMERCIAL AND OTHER SERVICES
GENERAL
The Commercial and Other revenue category includes document services
performed by our Merrill/May, Inc. (Merrill/ May) and FMC Resource Management
Corporation (FMC) subsidiaries, as well as revenue from the production of other
commercial documents, including health care provider directories, price
catalogs, insurance industry annual reports, sample ballots, directories, and
technical manuals from electronic information supplied by customers. Merrill/May
provides custom marketing communication services to corporate customers and
demand printing and distribution services designed to promote the corporate
identity of large, national customers with multiple franchisees, members,
divisions or affiliated organizations, including real estate companies, fast
food restaurants, and credit card companies. FMC provides manufacturing,
distribution, and inventory management services of marketing items for large,
geographically diverse companies, such as department stores.
MANAGED MARKETING COMMUNICATIONS
We provide demand printing and distribution of "corporate identity"
materials -- brochures, business cards, even clothing that carries the
distinctive marks and symbols of those corporations. We call this managed
marketing communications. Merrill/ May's customers are usually large, national
customers with multiple franchisees, members, divisions or affiliated
organizations (member organizations).
Like Merrill/May, FMC provides manufacturing, distribution, and inventory
management services, such as commercial printing, business forms, digital
printing, display items, collateral materials, (i.e. hangers, pricetags, and
point of purchase signage), and gift certificates for large companies with
multiple locations and departments that are seeking consistency throughout the
organization.
Merrill/May can produce multi-color, highly technical, commercial quality
printed materials. We develop, produce, and prepare a catalog of the printed
products, which includes other promotional merchandise produced by third
parties. We also distribute the client-specific catalogs to the client's member
organizations. To our real estate customers, we also offer computer training and
technology services.
Merrill/May develops direct relationships with the individual member
organizations, which are often independently owned and operated and make their
own print purchasing decisions. We use a sophisticated
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order entry system, including a large inbound telemarketing staff, to receive
and process orders. A member organization or an individual can place an order by
mail, fax or toll free number. Our customer service representative processing
the order will have access to the client's purchase history (if an existing
client) and can suggest reordering certain items, cross-sell complementary items
or alert the client to current specials. Merrill/ May accepts major credit cards
and payment is typically made upon placing the order.
We produce printed materials in large quantities, which we warehouse pending
receipt of an order. Products ordered from a catalog typically require
additional "personalizing" for the ordering member organization. They are
checked for quality, packaged and shipped. Promotional merchandise (point of
purchase, advertising specialty, premiums and incentives) included in a catalog
that are produced by third parties are generally shipped directly by the
manufacturer to the ordering member organization. Merrill/May uses a materials
handling system with automated handling, order consolidation and shipping. Most
orders are filled within four days of receipt.
Our centralized production and fulfillment benefits both the national
account client and its member organizations. The national account client can
control the use of its trademarks and enjoy the economies of mass production.
The members, the ultimate consumers of Merrill/May's services, receive quality
products, fast delivery and prices that we believe are competitive with prices
charged by local print shops.
Merrill/May's customers are located in all fifty states and Canada, with
limited shipments to Mexico, Puerto Rico, Australia, New Zealand, France and
England.
Merrill/May also provides custom marketing communications and publishing
services, primarily to financial services companies, media organizations,
retailers and the health care industry. The types of custom publications we
produce include magazines, tabloids, newsletters, booklets and catalogs used by
customers for their marketing purposes. We work with customers in the design,
editorial content and lists for these publications. We typeset, print and mail
the publications. Most often, we operate on annual contracts for this work.
Our commercial typesetting business provides full document services,
including camera, pre-press and printing services for one- or multi-color
publications. These commercial printing projects, like financial and corporate
printing, require a high level of attention to detail, quick turnaround times,
and responsive customer service. We believe that offering a high level of
specialty service is a competitive advantage in certain niches of the commercial
printing business.
PRINTING SERVICES
We currently operate printing plants in St. Paul, Los Angeles, Chicago,
Dallas and New Jersey. We have found it advantageous to operate printing presses
at these locations to service our financial printing customers, and service a
portion of our recurring corporate and commercial printing business. Corporate
and commercial printing is generally more predictable in volume and less
time-sensitive in nature than financial printing. Because we use the presses for
both types of printing, we retain the flexibility to meet the immediate demands
of financial printing.
In all markets, we have identified several printers capable of meeting our
production needs on an "as required" basis. We use associated printers when we
need additional capacity in markets where we do not own presses, when special
printing equipment is needed, or when we have overflow work. We generally select
associated printers on a job-by-job basis, based upon considerations of price,
availability and suitability of press equipment.
We also operate a printing plant in St. Cloud, Minnesota, for our
specialized color printing services. SEE BUSINESS -- COMMERCIAL AND OTHER
SERVICES -- MANAGED MARKETING COMMUNICATIONS ABOVE.
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MARKETING AND CUSTOMERS
We market our services through the following product sectors:
- Financial (includes transaction and compliance documents)
- Funds
- Document Management Services
- Managed Communications
We sell our products and services nationwide through a direct sales
organization operating from our service facilities and sales offices. We market
in Canada through employees of our joint venture, Quebecor Merrill Canada Inc.
Internationally, we sell with Burrups, Ltd. through the direct sales by
employees of each company.
We market managed communications through direct sales teams based in St.
Cloud, Minneapolis/St. Paul, San Francisco and the Seattle area.
We direct our financial and corporate printing services to executives of
corporations whose securities are or are about to be publicly traded. We also
sell to the advisers to those companies -- corporate finance underwriters,
municipal bond underwriters, and attorneys, as well as others who require fast
and accurate typesetting. Funds services are marketed to mutual fund and unit
investment trust managers.
We sell our commercial printing services primarily to corporations,
associations, insurance companies and legal, institutional and governmental
publishers, and market our document management services primarily to lawyers,
paralegals, law office administrators, and legal departments of corporations.
We market our demand printing and distribution services to large, national
customers with multiple franchisees, members, divisions or affiliated
organizations and our custom publication services to financial service companies
(such as banks, credit unions and insurance companies), television and radio
stations and networks, trade associations, manufacturers and vacation travel
industries. We sell computer training and technology services to real estate
agents through industry networking, telemarketing and other direct marketing
methods.
As of April 15, 1997, we employed 230 full-time salespeople to market
typesetting, printing, publishing, distribution and document management and
reproduction services. Our salespeople solicit business from existing and
prospective customers. Together with the customer service representatives, the
sales team helps coordinate our services and provides advice and assistance to
customers.
COMPETITION
Merrill competes with many domestic and international companies in the
financial and corporate printing industries, including two principal U.S.-based
competitors, Bowne & Co., Inc. and R.R. Donnelley & Sons Company. Both Bowne and
Donnelley are major competitors in most of our financial and corporate printing
markets.
We also compete for complex, large-run typesetting work with a number of
other computer typesetting firms, and we compete for medium-run printing work
with a number of commercial web press printers.
In the managed communications business, we believe our primary competitors
are local print shops and marketing service firms, including advertising
agencies, custom publication printers, direct mail firms, and television, radio,
newspapers, magazine and other media organizations. We also compete with
computer training organizations and computer retailers.
In our document management services businesses, we compete with three
nationwide service companies -- Xerox Corporation, Pitney Bowes and IKON -- and
a number of smaller local companies. We also compete with litigation support
services vendors and a large number of photocopying and imaging shops, including
privately-owned shops as well as franchise operations. Competition in this part
of our business is intense and is based principally on service, price, speed,
accuracy, technological capability and established relationships.
We believe that Merrill competes favorably with our competitors.
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EMPLOYEES
As of April 15, 1997, we had 2,751 full-time employees and 53 part-time
employees. None of our employees is covered by a collective bargaining
agreement. We consider our employee relations to be good.
Merrill's senior management and certain technical personnel have substantial
experience and expertise in the document services industry. We consider the
retention of these employees to be important to our continued success.
We compete intensely with others in the industry to attract and retain
qualified salespeople. However, we believe that we are able to provide
incentives sufficient to minimize the loss of key salespeople and to attract
productive new salespeople for both replacement and expansion of our sales team.
Many salespeople are under employment contracts of varying terms with us.
(d) FINANCIAL INFORMATION ABOUT FOREIGN AND DOMESTIC OPERATIONS AND EXPORT
SALES
Substantially all of our revenue, operating profit and identifiable assets
are based in the United States.
ITEM 2. PROPERTIES
We lease all of our facilities, except two.
We own Merrill/May's main facility in St. Cloud that includes approximately
123,000 square feet.
We also own the Energy Park Business Center in St. Paul. This space consists
of approximately 150,000 square feet in two buildings adjacent to our principal
production and administrative office facility. We maintain several of our
corporate and administration departments in these buildings along with the
prepress and reprographics departments. We believe that owning these buildings
allows us to plan our expansion more efficiently. All of the approximately
91,000 square feet of space available for lease is currently leased to other
businesses.
Our main office in St. Paul includes 47,000 square feet and is leased from
the Port Authority of the City of St. Paul. The terms of our agreements with the
Port Authority are in a facilities lease and land lease, both dated October 1,
1985, which require us to pay rent to the Port Authority in the amounts of
$24,069 per month and $3,431 per month, respectively, for terms expiring on
November 30, 2005. Each lease grants us the option to purchase the property at
the end of the term. Under the facilities lease, we may purchase the building
for $254,500 and the land for $167,140 at the end of the lease terms.
Our New York City full service facility consists of approximately 102,000
square feet of leased space on three floors of a building in Greenwich Village.
We are required to pay rent in the amount of $57,385 per month for a term
expiring on October 31, 2014.
We also lease service facilities, sales offices and warehouse space in other
cities, with space ranging from 200 square feet to 77,000 square feet. These
leases have expiration dates ranging from June 1997 to May 2005 under which we
make monthly payments aggregating approximately $363,000, including rental fees,
real estate taxes and operating expenses.
We make a continuing effort to keep all of our properties and facilities
modern, efficient and adequate for our operating needs.
ITEM 3. LEGAL PROCEEDINGS
We do not know of any important legal, governmental, administrative or other
matters that would significantly affect Merrill's business or property.
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ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
We did not ask our shareholders to vote on anything during the fourth
quarter of fiscal year 1997.
ITEM 4A. EXECUTIVE OFFICERS OF THE REGISTRANT
The executive officers of Merrill, their ages, the year they became
executive officers and the offices held as of April 28, 1997 are as follows:
<TABLE>
<CAPTION>
YEAR FIRST
ELECTED
OR APPOINTED AS
AN
NAME AGE EXECUTIVE OFFICER TITLE
- ----------------------- --- ----------------- ------------------------------------------
<S> <C> <C> <C>
John W. Castro 48 1980 President and Chief Executive Officer
Rick R. Atterbury 43 1981 Executive Vice President
Steven J. Machov 46 1987 Vice President, General Counsel and
Secretary
Kathleen A. Larkin 37 1993 Vice President -- Human Resources
Kay A. Barber 46 1995 Vice President -- Finance, Chief Financial
Officer, Treasurer
</TABLE>
Our executive officers are elected by the Board of Directors. The officers
serve one-year terms that begin with their election at the first meeting of the
Board of Directors after the annual meeting of shareholders. Their terms end at
the same meeting the following year. The President and Chief Executive Officer
appoints other officers who serve at his discretion. There are no family
relationships between any of the executive officers or directors. There has been
no change in position of any of the executive officers during the past five
years, except as we explain below:
Mr. Atterbury was elected Executive Vice President in 1996. He previously
served as Vice President -- Operations.
Mr. Machov was elected Vice President in May 1993.
Ms. Larkin joined Merrill in April 1993 as Manager of Human Resources and
was appointed Vice President -- Human Resources in December 1993. From February
1987 to March 1993, Ms. Larkin was Employee Relations Manager for The Gillette
Company, a personal care products manufacturer.
Ms. Barber joined Merrill in August 1995 as Vice President -- Finance, Chief
Financial Officer and Treasurer. From January 1993 to August 1995, Ms. Barber
was Vice President, Finance and Controller for Growing Healthy, Inc., a frozen
baby food company. From March 1991 to August 1992, she served as Director,
Planning and Financial Analysis for NeXT Computer, Inc., a computer hardware and
software company.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
Please refer to the section called "Quarterly Stock Price Comparison" on
page 11 of our 1997 Annual Report for additional important information about
Merrill's stock price. That information is part of our disclosure in this
Report. You should review this information carefully. Merrill did not sell any
unregistered securities from November 1, 1996 through January 31, 1997.
9
<PAGE>
ITEM 6. SELECTED FINANCIAL DATA
The financial information in the table on page 27 of our 1997 Annual Report
should be reviewed. It is part of our disclosure in this Report.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Please review the information under the caption "Management's Discussion and
Analysis of Financial Condition and Results of Operations" on pages 6 to 11 of
our 1997 Annual Report. It is part of our disclosure in this Report and analyzes
our financial performance over the last few years. You should review this
information carefully.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Our "Consolidated Financial Statements" on pages 12 to 27 (including the
unaudited information in the "Quarterly Financial Data" section on page 26) and
the Report of Independent Accountants on page 28 of our 1997 Annual Report are
part of our disclosure in this Report. You should review this information
carefully.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
(a) DIRECTORS OF THE REGISTRANT.
Please review the information under the captions "Election of Directors --
Information About Nominees" and "Other Information About Nominees" on pages 5
and 6 of our 1997 Proxy Statement. It is part of our disclosure in this Report.
You should review this information carefully.
(b) EXECUTIVE OFFICERS OF THE REGISTRANT.
Information concerning Merrill's Executive Officers is included in this
Report under Item 4A, "Executive Officers of the Registrant."
(c) COMPLIANCE WITH SECTION 16(a) OF THE EXCHANGE ACT.
The information under the caption "Section 16(a) Beneficial Ownership
Reporting Compliance" on page 22 of our 1997 Proxy Statement is part of our
disclosure in this Report. You should review this information carefully.
ITEM 11. EXECUTIVE COMPENSATION
The information under the captions "Election of Directors -- Directors'
Compensation" on pages 7 and 8 and "Executive Compensation" on pages 8 to 15,
(excluding the "Comparative Stock Performance" graph on page 13), of our 1997
Proxy Statement is part of our disclosure in this Report. You should review this
information carefully.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information under the captions "Security Ownership of Certain Beneficial
Owners and Management" on pages 3 and 4, and "Election of Directors --
Information About Nominees" on
10
<PAGE>
page 5 of our 1997 Proxy Statement is part of our disclosure in this Report. You
should review this information carefully.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
None.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) 1. Financial statements:
The following Financial Statements are part of our disclosure in
this Report and are found on the following pages in our 1997 Annual
Report:
Consolidated Balance Sheets as of January 31, 1997 and 1996
-- page 12.
Consolidated Statements of Operations for the years ended
January 31, 1997, 1996 and 1995 -- page 13.
Consolidated Statements of Cash Flows for the years ended
January 31, 1997, 1996 and 1995 -- page 14.
Consolidated Statements of Changes in Shareholders' Equity
for the years ended January 31, 1997, 1996 and 1995 -- page 15.
Notes to Consolidated Financial Statements -- pages 16-26.
Report of Independent Accountants -- page 28.
2. Financial statement schedules:
The following supplemental schedule and report of independent
accountants are part of our disclosure in this Report and should be
read together with the consolidated financial statements in the 1997
Annual Report we refer to above (page numbers refer to pages in this
Report):
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Report of Independent Accountants............................................................ 13
Supplemental Schedule:
II Valuation and Qualifying
Accounts................................................................................. 14
</TABLE>
We are omitting all other schedules either because the
information does not apply or the information is in the consolidated
financial statements or related notes.
3. Exhibits:
The exhibits to this Report are listed in the Exhibit Index on pages 16 to
18 of this Report.
If you were a shareholder on April 1, 1997, you may request copies of any of
these exhibits by writing to: Investor Relations, Merrill Corporation, One
Merrill Circle, St. Paul, Minnesota 55108. We may charge a small handling fee
for the copies.
The following is a list of each management contract or compensatory plan or
arrangement we need to file as an exhibit to this Report:
A. Employment Agreement between John Castro and the Company (this was made
part of our disclosure in Exhibit 10 to the Company's Quarterly Report on
Form 10-Q for the fiscal quarter ended April 30, 1989 (File No.
0-14082)).
11
<PAGE>
B. Amendment to Employment Agreement between John Castro and the Company
(this was made part of our disclosure in Exhibit 10.9 to the Company's
Annual Report on Form 10-K for the fiscal year ended January 31, 1994
(File No. 0-14082)).
C. Employment Agreement between Rick R. Atterbury and the Company (this was
made part of our disclosure in Exhibit 10.2 to the Company's Annual
Report on Form 10-K for the fiscal year ended January 31, 1991 (File No.
0-14082)).
D. Amendment to Employment Agreement between Rick R. Atterbury and the
Company (this was made part of our disclosure in Exhibit 10.3 to the
Company's Annual Report on Form 10-K for the fiscal year ended January
31, 1994 (File No. 0-14082)).
E. 1987 Omnibus Stock Plan, as amended (this was made part of our
disclosure in Exhibit 10.14 to the Company's Annual Report on Form 10-K
for the fiscal year ended January 31, 1991 (File No. 0-14082)).
F. 1993 Stock Incentive Plan, as amended (this is included with this
filing).
G. Option Agreement between Ronald N. Hoge and the Company (this was made
part of our disclosure in Exhibit 10.9 to the Company's Annual Report on
Form 10-K for the fiscal year ended January 31, 1993 (File No. 0-14082)).
H. 1996 Non-Employee Director Plan (this is included with this filing).
(b) REPORTS ON FORM 8-K:
No reports on Form 8-K were filed during the fourth quarter of the fiscal
year ended January 31, 1997.
12
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
ON FINANCIAL STATEMENT SCHEDULE
Our report on the consolidated financial statements of Merrill Corporation
has been incorporated by reference in this Form 10-K from page 28 of the 1997
Annual Report to Shareholders of Merrill Corporation. In connection with our
audits of such financial statements, we have also audited the related financial
statement schedule listed in Item 14(a)2. of this Form 10-K.
In our opinion, the financial statement schedule referred to above, when
considered in relation to the basic financial statements taken as a whole,
presents fairly, in all material respects, the information required to be
included therein.
COOPERS & LYBRAND L.L.P.
St. Paul, Minnesota
March 25, 1997
13
<PAGE>
SCHEDULE II
MERRILL CORPORATION
VALUATION AND QUALIFYING ACCOUNTS
FOR THE YEARS ENDED JANUARY 31, 1997, 1996 AND 1995
(IN THOUSANDS)
<TABLE>
<CAPTION>
COLUMN C
--------------------
COLUMN B ADDITIONS COLUMN D
---------- -------------------- ---------- COLUMN E
COLUMN A BALANCE AT CHARGED DEDUCTIONS -----------
- -------------------------------------------------- BEGINNING CHARGED TO OTHER FROM BALANCE AT
DESCRIPTION OF YEAR TO INCOME ACCOUNTS RESERVES END OF YEAR
- -------------------------------------------------- ---------- --------- -------- ---------- -----------
<S> <C> <C> <C> <C> <C>
Year Ended January 31, 1995
Valuation account deducted from assets to which
it applies --
Allowance for doubtful accounts............... $2,294 $2,038 $177(A) $1,679(B) $2,830
---------- --------- -------- ---------- -----------
---------- --------- -------- ---------- -----------
Allowance for unbillable inventories.......... $ 495 $ 183(C) $ 312
---------- ---------- -----------
---------- ---------- -----------
Year Ended January 31, 1996
Valuation account deducted from assets to which
it applies --
Allowance for doubtful accounts............... $2,830 $1,486 $ 26(A) $ 797(B) $3,545
---------- --------- -------- ---------- -----------
---------- --------- -------- ---------- -----------
Allowance for unbillable inventories.......... $ 312 $ 250 $ 562
---------- --------- -----------
---------- --------- -----------
Year Ended January 31, 1997
Valuation account deducted from assets to which
it applies --
Allowance for doubtful accounts............... $3,545 $2,861 $ 61(A) $ 440(B) $6,027
---------- --------- -------- ---------- -----------
---------- --------- -------- ---------- -----------
Allowance for unbillable inventories.......... $ 562 $2,678 $3,240
---------- --------- -----------
---------- --------- -----------
</TABLE>
- ------------------------
(A) Recoveries on accounts previously written off.
(B) Uncollectible accounts written off and adjustments to the allowance.
(C) Adjustments to the allowance account to reflect estimated net realizable
value at year-end.
14
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this Report to be signed on
its behalf by the undersigned, thereunto duly authorized.
<TABLE>
<S> <C>
(REGISTRANT) MERRILL CORPORATION
BY (SIGNATURE) /s/ JOHN W. CASTRO
(NAME AND TITLE) John W. Castro, President and Chief Executive Officer
(DATE) April 30, 1997
</TABLE>
Pursuant to the requirements of the Securities Exchange Act of 1934, this
Report has been signed below by the following persons on behalf of the
Registrant in the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
BY (SIGNATURE) /s/ JOHN W. CASTRO
(NAME AND TITLE) John W. Castro, President and Chief Executive Officer (Principal Executive Officer) and Director
(DATE) April 30, 1997
BY (SIGNATURE) /s/ KAY A. BARBER
(NAME AND TITLE) Kay A. Barber, Vice President -- Finance, Chief Financial Officer and Treasurer (Principal Financial
and Accounting Officer)
(DATE) April 30, 1997
BY (SIGNATURE) /s/ ROBERT F. NIENHOUSE
(NAME AND TITLE) Robert F. Nienhouse, Director
(DATE) April 30, 1997
BY (SIGNATURE) /s/ RICHARD G. LAREAU
(NAME AND TITLE) Richard G. Lareau, Director
(DATE) April 30, 1997
BY (SIGNATURE) /s/ PAUL G. MILLER
(NAME AND TITLE) Paul G. Miller, Director
(DATE) April 30, 1997
BY (SIGNATURE) /s/ RICK R. ATTERBURY
(NAME AND TITLE) Rick R. Atterbury, Director
(DATE) April 30, 1997
BY (SIGNATURE) /s/ RONALD N. HOGE
(NAME AND TITLE) Ronald N. Hoge, Director
(DATE) April 30, 1997
BY (SIGNATURE)
(NAME AND TITLE) James R. Campbell, Director
(DATE) April 30, 1997
BY (SIGNATURE) /s/ FREDERICK W. KANNER
(NAME AND TITLE) Frederick W. Kanner, Director
(DATE) April 30, 1997
</TABLE>
15
<PAGE>
MERRILL CORPORATION
EXHIBIT INDEX TO ANNUAL REPORT
ON FORM 10-K
FOR FISCAL YEAR ENDED JANUARY 31, 1997
<TABLE>
<CAPTION>
ITEM NO. DESCRIPTION METHOD OF FILING
- ----------- -------------------------------------------------- --------------------------------------------------
<C> <S> <C>
3.1 Articles of Incorporation of the Company This was made part of our disclosure in Exhibit
3.1 to the Company's Registration Statement on
Form S-1 (File No. 33-4062)
3.2 Amendments to Articles of Incorporation as of June This was made part of our disclosure in Exhibit
20, 1986 and March 27, 1987 3.2 to the Company's Annual Report on Form 10-K
for the fiscal year ended January 31, 1987
3.3 Restated Bylaws of the Company This was made part of our disclosure in Exhibit
3.3 to the Company's Annual Report on Form 10-K
for the fiscal year ended January 31, 1990
10.1 Employment Agreement between Rick R. Atterbury and This was made part of our disclosure in Exhibit
the Company, dated as of February 1, 1987, as 10.2 to the Company's Annual Report on Form 10-K
amended for the fiscal year ended January 31, 1991
10.2 Amendment to Employment Agreement between Rick R. This was made part of our disclosure in Exhibit
Atterbury and the Company, dated as of April 29, 10.3 to the Company's Annual Report on Form 10-K
1994. for the fiscal year ended January 31, 1994
10.3 Facilities Lease dated October 1, 1985 between the This was made part of our disclosure in Exhibit
Port Authority of the City of Saint Paul as 10.17 to the Company's Registration Statement on
lessor and the Company as lessee Form S-1 (File No. 33-4062)
10.4 Land Lease dated October 1, 1985 between the Port This was made part of our disclosure in Exhibit
Authority of the City of Saint Paul as lessor and 10.18 to the Company's Registration Statement on
the Company as lessee Form S-1 (File No. 33-4062)
10.5 Credit Agreement dated as of November 25, 1996 This was made part of our disclosure in Exhibit
among First Bank, N.A., as Agent and as a Bank, 10.2 to the Company's Quarterly Report on Form
Norwest Bank Minnesota, N.A., and the Company. 10-Q for the fiscal quarter ended October 31,
1996
10.6 Note Purchase Agreement, dated as of October 25, This was made part of our disclosure in Exhibit
1996 10.1 to the Company's Quarterly Report on Form
10-Q for the fiscal quarter ended October 31,
1996
10.7 1987 Omnibus Stock Plan, as amended This was made part of our disclosure in Exhibit
10.14 to the Company's Annual Report on Form 10-K
for the fiscal year ended January 31, 1991
10.8 Employment Agreement between John Castro and the This was made part of our disclosure in Exhibit 10
Company dated as of February 1, 1989 to the Company's Quarterly Report on Form 10-Q
for the fiscal quarter ended April 30, 1989
</TABLE>
16
<PAGE>
<TABLE>
<CAPTION>
ITEM NO. DESCRIPTION METHOD OF FILING
- ----------- -------------------------------------------------- --------------------------------------------------
10.10 Amendment to Employment Agreement between John This was made part of our disclosure in Exhibit
Castro and the Company dated as of April 29, 10.9 to the Company's Annual Report on Form 10-K
1994. for the fiscal year ended January 31, 1994
<C> <S> <C>
10.11 1993 Incentive Stock Plan, as amended Included with this filing electronically
10.12 Option Agreement dated as of July 1, 1991 between This was made part of our disclosure in Exhibit
Ronald N. Hoge and the Company 10.9 to the Company's Annual Report on Form 10-K
for the fiscal year ended January 31, 1993
10.13 Asset Purchase Agreement, dated as of December 31, This was made part of our disclosure in Exhibit
1993 among the Company, Merrill Acquisition 2.1 to the Company's Current Report on Form 8-K
Corporation, May Printing Company and dated December 31, 1993.
Shareholders of May Printing Company.
10.14 Loan Agreement, dated as of July 1, 1990 between This was made part of our disclosure in Exhibit
May Printing Company and Minnesota Agricultural 10.13 to the Company's Annual Report on Form 10-K
and Economic Development Board, amended as of for the fiscal year ended January 31, 1994
December 31, 1993.
10.15 Guaranty of Loan Obligations of May Printing This was made part of our disclosure in Exhibit
Company by the Company in favor of Minnesota 10.14 to the Company's Annual Report on Form 10-K
Agricultural and Economic Development Board, for the fiscal year ended January 31, 1994
dated as of December 31, 1993.
10.16 Guaranty Agreement of the obligations of Merrill This was made part of our disclosure in Exhibit
Acquisition Corporation by the Company in favor 10.15 to the Company's Annual Report on Form 10-K
of May Printing Company, and Thomas May and James for the fiscal year ended January 31, 1994
Scott May, dated as of December 31, 1993.
10.17 Stock Purchase Agreement, dated March 28, 1996, by This was made part of our disclosure in Exhibit
and among the Company and the Shareholders of FMC 2.1 to the Company's Current Report on Form 8-K
Resource Management Corporation dated April 15, 1996
</TABLE>
17
<PAGE>
<TABLE>
<CAPTION>
ITEM NO. DESCRIPTION METHOD OF FILING
- ----------- -------------------------------------------------- --------------------------------------------------
10.18 Asset Purchase Agreement, dated April 15, 1996, by This was made part of our disclosure in Exhibit
and among the Company, Merrill/New York Company 10.22 to the Company's Annual Report on Form 10-K
and The Corporate Printing Company, Inc., CPC for the fiscal year ended January 31, 1996.
Communications, Inc., CPC Reprographics, Inc.,
The Corporate Printing Company International,
Ltd., CP International Holdings, Inc., CPC
Management Services, Inc., The Corporate Printing
Company International SNC, The Corporate Printing
Company International PTE Ltd., Oakland
Composition Limited Partnership, and the
Shareholders of the above Affiliated Companies.
(Omitted from this Agreement, as filed, are the
exhibits listed in the List of Exhibits included
at the beginning of the Agreement. The Company
will furnish supplementally a copy of any such
omitted exhibits to the Commission upon request.)
<C> <S> <C>
10.19 1996 Non-Employee Director Plan Included with this filing electronically
10.20 Lease dated as of May 1, 1994 between The Rector, Included with this filing electonically.
Church-Wardens, and Vestrymen of Trinity Church
in the City of New York, as landlord and The
Corporate Printing Company, Inc, as lessee,
assignor to Merrill/New York Company. (Omitted
from this Lease, as filed, are the floor plan
exhibits listed in the Exhibits and Other
Attachments included at the beginning of the
Agreement. The Company will furnish
supplementally a copy of any such omitted
exhibits to the Commission upon request.)
11.1 Computation of per share earnings Included with this filing electronically
13.1 Portions of Annual Report to Shareholders Included with this filing electronically
21.1 Subsidiaries of the Company Included with this filing electronically
23.1 Consent of Independent Accountants Included with this filing electronically
27.1 Financial Data Schedule Included with this filing electronically
</TABLE>
18
<PAGE>
MERRILL CORPORATION
1993 STOCK INCENTIVE PLAN
(AS AMENDED EFFECTIVE JANUARY 13, 1997)
1. PURPOSE OF PLAN.
The purpose of the Merrill Corporation 1993 Stock Incentive Plan (the
"Plan") is to advance the interests of Merrill Corporation (the "Company") and
its shareholders by enabling the Company and its Subsidiaries to attract and
retain persons of ability to perform services for the Company and its
Subsidiaries by providing an incentive to such individuals through equity
participation in the Company and by rewarding such individuals who contribute to
the achievement by the Company of its economic objectives.
2. DEFINITIONS.
The following terms will have the meanings set forth below, unless the
context clearly otherwise requires:
2.1 "ADVERSE ACTIONS" mean the actions described in Section 12.5 of the
Plan.
2.2 "BOARD" means the Board of Directors of the Company.
2.3 "BROKER EXERCISE NOTICE" means a written notice pursuant to which a
Participant, upon exercise of an Option, irrevocably instructs a broker or
dealer to sell a sufficient number of shares or loan a sufficient amount of
money to pay all or a portion of the exercise price of the Option and/or any
related withholding tax obligations and remit such sums to the Company and
directs the Company to deliver stock certificates to be issued upon such
exercise directly to such broker or dealer.
2.4 "CHANGE IN CONTROL" means an event described in Section 11.1 of the
Plan.
2.5 "CODE" means the Internal Revenue Code of 1986, as amended.
2.6 "COMMITTEE" means the group of individuals administering the Plan, as
provided in Section 3 of the Plan.
2.7 "COMMON STOCK" means the common stock of the Company, par value $.01
per share, or the number and kind of shares of stock or other securities into
which such Common Stock may be changed in accordance with Section 4.3 of the
Plan.
2.8 "DISABILITY" means the disability of the Participant such as would
entitle the Participant to receive disability income benefits pursuant to the
long-term disability plan of the Company or Subsidiary then covering the
Participant or, if no such plan exists or is applicable to the Participant, the
permanent and total disability of the Participant within the meaning of Section
22(e)(3) of the Code.
2.9 "ELIGIBLE RECIPIENTS" means all employees (including, without
limitation, officers and directors who are also employees) of the Company or any
Subsidiary and any non-employee consultants and independent contractors of the
Company or any Subsidiary.
2.10 "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
2.11 "FAIR MARKET VALUE" means, with respect to the Common Stock, as of any
date (or, if no shares were traded or quoted on such date, as of the next
preceding date on which there was such a trade or quote), the mean between the
reported high and low sale prices of the Common Stock as reported on the NASDAQ
National Market System.
2.12 "INCENTIVE AWARD" means an Option, Restricted Stock Award or
Performance Unit granted to an Eligible Recipient pursuant to the Plan.
2.13 "INCENTIVE STOCK OPTION" means a right to purchase Common Stock
granted to an Eligible Recipient pursuant to Section 6 of the Plan that
qualifies as an "incentive stock option" within the meaning of Section 422 of
the Code.
A-1
<PAGE>
2.14 "NON-STATUTORY STOCK OPTION" means a right to purchase Common Stock
granted to an Eligible Recipient pursuant to Section 6 of the Plan that does not
qualify as an Incentive Stock Option.
2.15 "OPTION" means an Incentive Stock Option or a Non-Statutory Stock
Option.
2.16 "PARTICIPANT" means an Eligible Recipient who receives one or more
Incentive Awards under the Plan.
2.17 "PERFORMANCE UNIT" means a right granted to an Eligible Recipient
pursuant to Section 8 of the Plan to receive a payment from the Company, in the
form of stock, cash or a combination of both, upon the achievement of
established performance goals.
2.18 "PREVIOUSLY ACQUIRED SHARES" means shares of Common Stock that are
already owned by the Participant or, with respect to any Incentive Award, that
are to be issued upon the grant, exercise or vesting of such Incentive Award.
2.19 "RESTRICTED STOCK AWARD" means an award of Common Stock granted to an
Eligible Recipient pursuant to Section 7 of the Plan that is subject to the
restrictions on transferability and the risk of forfeiture imposed by the
provisions of such Section 7.
2.20 "RETIREMENT" means termination of employment or service pursuant to
and in accordance with the regular (or, if approved by the Board for purposes of
the Plan, early) retirement/pension plan or practice of the Company or
Subsidiary then covering the Participant, provided that if the Participant is
not covered by any such plan or practice, the Participant will be deemed to be
covered by the Company's plan or practice for purposes of this determination.
2.21 "SECURITIES ACT" means the Securities Act of 1933, as amended.
2.22 "SUBSIDIARY" means any entity that is directly or indirectly
controlled by the Company or any entity in which the Company has a significant
equity interest, as determined by the Committee.
2.23 "TAX DATE" means the date any withholding tax obligation arises under
the Code for a Participant with respect to an Incentive Award.
3. PLAN ADMINISTRATION.
3.1 THE COMMITTEE. So long as the Company has a class of its equity
securities registered under Section 12 of the Exchange Act, the Plan will be
administered by a committee (the "Committee") consisting solely of not less than
two members of the Board who are "disinterested persons" within the meaning of
Rule 16b-3 under the Exchange Act. To the extent consistent with corporate law,
the Committee may delegate to any officers of the Company the duties, power and
authority of the Committee under the Plan pursuant to such conditions or
limitations as the Committee may establish; provided, however, that only the
Committee may exercise such duties, power and authority with respect to Eligible
Recipients who are subject to Section 16 of the Exchange Act. Each
determination, interpretation or other action made or taken by the Committee
pursuant to the provisions of the Plan will be conclusive and binding for all
purposes and on all persons, and no member of the Committee will be liable for
any action or determination made in good faith with respect to the Plan or any
Incentive Award granted under the Plan.
3.2 AUTHORITY OF THE COMMITTEE.
(a) In accordance with and subject to the provisions of the Plan, the
Committee will have the authority to determine all provisions of Incentive
Awards as the Committee may deem necessary or desirable and as consistent
with the terms of the Plan, including, without limitation, the following:
(i) the Eligible Recipients to be selected as Participants; (ii) the nature
and extent of the Incentive Awards to be made to each Participant (including
the number of shares of Common Stock to be subject to each Incentive Award,
any exercise price, the manner in which Incentive Awards will vest or become
exercisable and whether Incentive Awards will be granted in tandem
A-2
<PAGE>
with other Incentive Awards) and the form of written agreement, if any,
evidencing such Incentive Award; (iii) the time or times when Incentive
Awards will be granted; (iv) the duration of each Incentive Award; and (v)
the restrictions and other conditions to which the payment or vesting of
Incentive Awards may be subject. In addition, the Committee will have the
authority under the Plan in its sole discretion to pay the economic value of
any Incentive Award in the form of cash, Common Stock or any combination of
both.
(b) The Committee will have the authority under the Plan to amend or
modify the terms of any outstanding Incentive Award in any manner,
including, without limitation, the authority to modify the number of shares
or other terms and conditions of an Incentive Award, extend the term of an
Incentive Award, accelerate the exercisability or vesting or otherwise
terminate any restrictions relating to an Incentive Award, accept the
surrender of any outstanding Incentive Award or, to the extent not
previously exercised or vested, authorize the grant of new Incentive Awards
in substitution for surrendered Incentive Awards; provided, however that the
amended or modified terms are permitted by the Plan as then in effect and
that any Participant adversely affected by such amended or modified terms
has consented to such amendment or modification. No amendment or
modification to an Incentive Award, however, whether pursuant to this
Section 3.2 or any other provisions of the Plan, will be deemed to be a
regrant of such Incentive Award for purposes of this Plan.
(c) In the event of (i) any reorganization, merger, consolidation,
recapitalization, liquidation, reclassification, stock dividend, stock
split, combination of shares, rights offering, extraordinary dividend or
divestiture (including a spin-off) or any other change in corporate
structure or shares, (ii) any purchase, acquisition, sale or disposition of
a significant amount of assets or a significant business, (iii) any change
in accounting principles or practices, or (iv) any other similar change, in
each case with respect to the Company or any other entity whose performance
is relevant to the grant or vesting of an Incentive Award, the Committee
(or, if the Company is not the surviving corporation in any such
transaction, the board of directors of the surviving corporation) may,
without the consent of any affected Participant, amend or modify the vesting
criteria of any outstanding Incentive Award that is based in whole or in
part on the financial performance of the Company (or any Subsidiary or
division thereof) or such other entity so as equitably to reflect such
event, with the desired result that the criteria for evaluating such
financial performance of the Company or such other entity will be
substantially the same (in the sole discretion of the Committee or the board
of directors of the surviving corporation) following such event as prior to
such event; provided, however, that the amended or modified terms are
permitted by the Plan as then in effect.
4. SHARES AVAILABLE FOR ISSUANCE.
4.1 MAXIMUM NUMBER OF SHARES AVAILABLE. Subject to adjustment as provided
in Section 4.3 of the Plan, the maximum number of shares of Common Stock that
will be available for issuance under the Plan will be 1,500,000 shares.
Notwithstanding any other provisions of the Plan to the contrary, no Participant
in the Plan may be granted any Options, or any other Incentive Awards with a
value based solely on an increase in the value of the Common Stock after the
date of grant, relating to more than 100,000 shares of Common Stock in the
aggregate in any fiscal year of the Company (subject to adjustment as provided
in Section 4.3 of the Plan); provided, however, that a Participant who is first
appointed or elected as an officer, hired as an employee or retained as a
consultant by the Company or who receives a promotion that results in an
increase in responsibilities or duties may be granted, during the fiscal year of
such appointment, election, hiring, retention or promotion, Options or such
other Incentive Awards relating to up to 200,000 shares of Common Stock (subject
to adjustment as provided in Section 4.3 of the Plan).
4.2 ACCOUNTING FOR INCENTIVE AWARDS. Shares of Common Stock that are issued
under the Plan or that are subject to outstanding Incentive Awards will be
applied to reduce the maximum number of shares of Common Stock remaining
available for issuance under the Plan. Any shares of Common
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Stock that are subject to an Incentive Award that lapses, expires, is forfeited
or for any reason is terminated unexercised or unvested and any shares of Common
Stock that are subject to an Incentive Award that is settled or paid in cash or
any form other than shares of Common Stock will automatically again become
available for issuance under the Plan. Any shares of Common Stock that
constitute the forfeited portion of a Restricted Stock Award, however, will not
become available for further issuance under the Plan.
4.3 ADJUSTMENTS TO SHARES AND INCENTIVE AWARDS. In the event of any
reorganization, merger, consolidation, recapitalization, liquidation,
reclassification, stock dividend, stock split, combination of shares, rights
offering, divestiture or extraordinary dividend (including a spin-off) or any
other change in the corporate structure or shares of the Company, the Committee
(or, if the Company is not the surviving corporation in any such transaction,
the board of directors of the surviving corporation) will make appropriate
adjustment (which determination will be conclusive) as to the number and kind of
securities available for issuance under the Plan and, in order to prevent
dilution or enlargement of the rights of Participants, the number, kind and,
where applicable, exercise price of securities subject to outstanding Incentive
Awards.
5. PARTICIPATION.
Participants in the Plan will be those Eligible Recipients who, in the
judgment of the Committee, have contributed, are contributing or are expected to
contribute to the achievement of economic objectives of the Company or its
Subsidiaries. Eligible Recipients may be granted from time to time one or more
Incentive Awards, singly or in combination or in tandem with other Incentive
Awards, as may be determined by the Committee in its sole discretion. Incentive
Awards will be deemed to be granted as of the date specified in the grant
resolution of the Committee, which date will be the date of any related
agreement with the Participant.
6. OPTIONS.
6.1 GRANT. An Eligible Recipient may be granted one or more Options under
the Plan, and such Options will be subject to such terms and conditions,
consistent with the other provisions of the Plan, as may be determined by the
Committee in its sole discretion. The Committee may designate whether an Option
is to be considered an Incentive Stock Option or a Non-Statutory Stock Option.
6.2 EXERCISE PRICE. The per share price to be paid by a Participant upon
exercise of an Option will be determined by the Committee in its discretion at
the time of the Option grant but will not be less than 100% of the Fair Market
Value of one share of Common Stock on the date of grant.
6.3 EXERCISABILITY AND DURATION. An Option will become exercisable at such
times and in such installments as may be determined by the Committee in its sole
discretion at the time of grant; provided, however, that no Option may be
exercisable after 10 years from its date of grant.
6.4 PAYMENT OF EXERCISE PRICE. The total purchase price of the shares to be
purchased upon exercise of an Option will be paid entirely in cash (including
check, bank draft or money order); provided, however, that the Committee, in its
sole discretion and upon terms and conditions established by the Committee, may
allow such payments to be made, in whole or in part, by tender of a Broker
Exercise Notice, Previously Acquired Shares or by a combination of such methods.
6.5 MANNER OF EXERCISE. An Option may be exercised by a Participant in
whole or in part from time to time, subject to the conditions contained in the
Plan and in the agreement evidencing such Option, by delivery in person, by
facsimile or electronic transmission or through the mail of written notice of
exercise to the Company (Attention: Secretary) at its principal executive office
in St. Paul, Minnesota and by paying in full the total exercise price for the
shares of Common Stock to be purchased in accordance with Section 6.4 of the
Plan.
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7. RESTRICTED STOCK AWARDS.
7.1 GRANT. An Eligible Recipient may be granted one or more Restricted
Stock Awards under the Plan, and such Restricted Stock Awards will be subject to
such terms and conditions, consistent with the other provisions of the Plan, as
may be determined by the Committee in its sole discretion. The Committee may
impose such restrictions or conditions, not inconsistent with the provisions of
the Plan, to the vesting of such Restricted Stock Awards as it deems
appropriate, including, without limitation, that the Participant remain in the
continuous employ or service of the Company or a Subsidiary for a certain period
or that the Participant or the Company (or any Subsidiary or division thereof)
satisfy certain performance goals or criteria.
7.2 RIGHTS AS A SHAREHOLDER; TRANSFERABILITY. Except as provided in
Sections 7.1, 7.3 and 12.3 of the Plan, a Participant will have all voting,
dividend, liquidation and other rights with respect to shares of Common Stock
issued to the Participant as a Restricted Stock Award under this Section 7 upon
the Participant becoming the holder of record of such shares as if such
Participant were a holder of record of shares of unrestricted Common Stock.
7.3 DIVIDENDS AND DISTRIBUTIONS. Unless the Committee determines otherwise
in its sole discretion (either in the agreement evidencing the Restricted Stock
Award at the time of grant or at any time after the grant of the Restricted
Stock Award), any dividends or distributions (including regular quarterly cash
dividends) paid with respect to shares of Common Stock subject to the unvested
portion of a Restricted Stock Award will be subject to the same restrictions as
the shares to which such dividends or distributions relate. In the event the
Committee determines not to pay such dividends or distributions currently, the
Committee will determine in its sole discretion whether any interest will be
paid on such dividends or distributions. In addition, the Committee in its sole
discretion may require such dividends and distributions to be reinvested (and in
such case the Participants consent to such reinvestment) in shares of Common
Stock that will be subject to the same restrictions as the shares to which such
dividends or distributions relate.
7.4 ENFORCEMENT OF RESTRICTIONS. To enforce the restrictions referred to in
this Section 7, the Committee may place a legend on the stock certificates
referring to such restrictions and may require the Participant, until the
restrictions have lapsed, to keep the stock certificates, together with duly
endorsed stock powers, in the custody of the Company or its transfer agent or to
maintain evidence of stock ownership, together with duly endorsed stock powers,
in a certificateless book-entry stock account with the Company's transfer agent.
8. PERFORMANCE UNITS.
An Eligible Recipient may be granted one or more Performance Units under the
Plan, and such Performance Units will be subject to such terms and conditions,
consistent with the other provisions of the Plan, as may be determined by the
Committee in its sole discretion. The Committee may impose such restrictions or
conditions, not inconsistent with the provisions of the Plan, to the vesting of
such Performance Units as it deems appropriate, including, without limitation,
that the Participant remain in the continuous employ or service of the Company
or any Subsidiary for a certain period or that the Participant or the Company
(or any Subsidiary or division thereof) satisfy certain performance goals or
criteria. The Committee will have the sole discretion either to determine the
form in which payment of the economic value of vested Performance Units will be
made to the Participant (i.e., cash, Common Stock or any combination thereof) or
to consent to or disapprove the election by the Participant of the form of such
payment.
9. EFFECT OF TERMINATION OF EMPLOYMENT OR OTHER SERVICE.
9.1 TERMINATION DUE TO DEATH, DISABILITY OR RETIREMENT. In the event a
Participant's employment or other service with the Company and all Subsidiaries
is terminated by reason of death, Disability or Retirement:
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(a) All outstanding Options then held by the Participant will become
immediately exercisable in full and will remain exercisable for a period of
one year (three months in the case of Retirement) after such termination
(but in no event after the expiration date of any such Option);
(b) All Restricted Stock Awards then held by the Participant will become
fully vested; and
(c) All Performance Units then held by the Participant will vest and/or
continue to vest in the manner determined by the Committee and set forth in
the agreement evidencing such Performance Units.
9.2 TERMINATION FOR REASONS OTHER THAN DEATH, DISABILITY OR RETIREMENT.
(a) In the event a Participant's employment or other service is
terminated with the Company and all Subsidiaries for any reason other than
death, Disability or Retirement, or a Participant is in the employ or
service of a Subsidiary and the Subsidiary ceases to be a Subsidiary of the
Company (unless the Participant continues in the employ or service of the
Company or another Subsidiary), all rights of the Participant under the Plan
and any agreements evidencing an Incentive Award will immediately terminate
without notice of any kind, and no Options then held by the Participant will
thereafter be exercisable, all Restricted Stock Awards then held by the
Participant that have not vested will be terminated and forfeited, and all
Performance Units then held by the Participant will vest and/or continue to
vest in the manner determined by the Committee and set forth in the
agreement evidencing such Performance Units; provided, however, that if such
termination is due to any reason other than termination by the Company or
any Subsidiary for "cause," all outstanding Options then held by such
Participant will remain exercisable to the extent exercisable as of such
termination for a period of three months after such termination (but in no
event after the expiration date of any such Option).
(b) For purposes of this Section 9.2, "cause" (as determined by the
Committee) will be as defined in any employment or other agreement or policy
applicable to the Participant or, if no such agreement or policy exists,
will mean (i) dishonesty, fraud, misrepresentation, embezzlement or
deliberate injury or attempted injury, in each case related to the Company
or any Subsidiary, (ii) any unlawful or criminal activity of a serious
nature, (iii) any intentional and deliberate breach of a duty or duties
that, individually or in the aggregate, are material in relation to the
Participant's overall duties, or (iv) any material breach of any employment,
service, confidentiality or noncompete agreement entered into with the
Company or any Subsidiary.
9.3 MODIFICATION OF RIGHTS UPON TERMINATION. Notwithstanding the other
provisions of this Section 9, upon a Participant's termination of employment or
other service with the Company and all Subsidiaries, the Committee may, in its
sole discretion (which may be exercised at any time on or after the date of
grant, including following such termination), cause Options (or any part
thereof) then held by such Participant to become or continue to become
exercisable and/or remain exercisable following such termination of employment
or service and Restricted Stock Awards and Performance Units then held by such
Participant to vest and/or continue to vest or become free of transfer
restrictions, as the case may be, following such termination of employment or
service, in each case in the manner determined by the Committee; provided,
however, that no Option may remain exercisable beyond its expiration date.
9.4 DATE OF TERMINATION OF EMPLOYMENT OR OTHER SERVICE. Unless the
Committee otherwise determines in its sole discretion, a Participant's
employment or other service will, for purposes of the Plan, be deemed to have
terminated on the date recorded on the personnel or other records of the Company
or the Subsidiary for which the Participant provides employment or other
service, as determined by the Committee in its sole discretion based upon such
records.
10. PAYMENT OF WITHHOLDING TAXES.
10.1 GENERAL RULES. The Company is entitled to (a) withhold and deduct from
future wages of the Participant (or from other amounts that may be due and owing
to the Participant from the
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Company or a Subsidiary), or make other arrangements for the collection of, all
legally required amounts necessary to satisfy any and all federal, state and
local withholding and employment-related tax requirements attributable to an
Incentive Award, including, without limitation, the grant, exercise or vesting
of, or payment of dividends with respect to, an Incentive Award or a
disqualifying disposition of stock received upon exercise of an Incentive Stock
Option, or (b) require the Participant promptly to remit the amount of such
withholding to the Company before taking any action, including issuing any
shares of Common Stock, with respect to an Incentive Award.
10.2 SPECIAL RULES. The Committee may, in its sole discretion and upon
terms and conditions established by the Committee, permit or require a
Participant to satisfy, in whole or in part, any withholding or
employment-related tax obligation described in Section 10.1 of the Plan by
electing to tender Previously Acquired Shares or a Broker Exercise Notice, or by
a combination of such methods.
11. CHANGE IN CONTROL.
11.1 CHANGE IN CONTROL. For purposes of this Section 11.1, a "Change in
Control" of the Company will mean (a) the sale, lease, exchange or other
transfer of substantially all of the assets of the Company (in one transaction
or in a series of related transaction) to a person or entity that is not
controlled by the Company, (b) a merger or consolidation to which the Company is
a party if the shareholders of the Company immediately prior to effective date
of such merger or consolidation do not have "beneficial ownership" (as defined
in Rule 13d-3 under the Exchange Act) immediately following the effective date
of such merger or consolidation of more than 80% of the combined voting power of
the surviving corporation's outstanding securities ordinarily having the right
to vote at elections of directors, or (c) a change in control of the Company of
a nature that would be required to be reported pursuant to Section 13 or 15(d)
of the Exchange Act, whether or not the Company is then subject to such
reporting requirements, including, without limitation, such time as (i) any
person becomes after the effective date of the Plan the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 20% or
more of the combined voting power of the Company's outstanding securities
ordinarily having the right to vote at elections of directors, or (ii)
individuals who constitute the Board on the effective date of the Plan cease for
any reason to constitute at least a majority of the Board, provided that any
person becoming a director subsequent to the effective date of the Plan whose
election, or nomination for election by the Company's shareholders, was approved
by a vote of at least a majority of the directors comprising the Board on the
effective date of the Plan will, for purposes of this clause (ii), be considered
as though such persons were a member of the Board on the effective date of the
Plan.
11.2 ACCELERATION OF VESTING. Without limiting the authority of the
Committee under Section 3.2 of the Plan, if a Change in Control of the Company
occurs, then, if approved by the Committee in its sole discretion either in an
agreement evidencing an Incentive Award at the time of grant or at any time
after the grant of an Incentive Award, (a) all Options will become immediately
exercisable in full and will remain exercisable for the remainder of their
terms, regardless of whether the Participants to whom such Options have been
granted remain in the employ or service of the Company or any Subsidiary; (b)
all outstanding Restricted Stock Awards will become immediately fully vested;
and (c) all Performance Units then held by the Participant will vest and/or
continue to vest in the manner determined by the Committee and set forth in the
agreement evidencing such Performance Units.
11.3 CASH PAYMENT FOR OPTIONS. If a Change in Control of the Company
occurs, then the Committee, if approved by the Committee in its sole discretion
either in an agreement evidencing an Incentive Award at the time of grant or at
any time after the grant of an Incentive Award, and without the consent of any
Participant effected thereby, may determine that some or all Participants
holding outstanding Options will receive, with respect to some or all of the
shares of Common Stock subject to such Options, as of the effective date of any
such Change in Control of the Company, cash in an amount equal to the excess of
the Fair Market Value of such shares immediately prior to the effective date of
such Change in Control of the Company over the exercise price per share of such
Options.
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11.4 LIMITATION ON CHANGE IN CONTROL PAYMENTS. Notwithstanding anything in
Section 11.2 or 11.3 of the Plan to the contrary, if, with respect to a
Participant, the acceleration of the vesting of an Incentive Award as provided
in Section 11.2 or the payment of cash in exchange for all or part of an
Incentive Award as provided in Section 11.3 (which acceleration or payment could
be deemed a "payment" within the meaning of Section 280G(b)(2) of the Code),
together with any other payments which such Participant has the right to receive
from the Company or any corporation that is a member of an "affiliated group"
(as defined in Section 1504(a) of the Code without regard to Section 1504(b) of
the Code) of which the Company is a member, would constitute a "parachute
payment" (as defined in Section 280G(b)(2) of the Code), then the payments to
such Participant pursuant to Section 11.2 or 11.3 will be reduced to the largest
amount as will result in no portion of such payments being subject to the excise
tax imposed by Section 4999 of the Code; provided, however, that if such
Participant is subject to a separate agreement with the Company or a Subsidiary
which specifically provides that payments attributable to one or more forms of
employee stock incentives or to payments made in lieu of employee stock
incentives will not reduce any other payments under such agreement, even if it
would constitute an excess parachute payment, then the limitations of this
Section 11.4 will, to that extent, not apply.
12. RIGHTS OF ELIGIBLE RECIPIENTS AND PARTICIPANTS; TRANSFERABILITY.
12.1 EMPLOYMENT OR SERVICE. Nothing in the Plan will interfere with or
limit in any way the right of the Company or any Subsidiary to terminate the
employment or service of any Eligible Recipient or Participant at any time, nor
confer upon any Eligible Recipient or Participant any right to continue in the
employ or service of the Company or any Subsidiary.
12.2 RIGHTS AS A SHAREHOLDER. As a holder of Incentive Awards (other than
Restricted Stock Awards), a Participant will have no rights as a shareholder
unless and until such Incentive Awards are exercised for, or paid in the form
of, shares of Common Stock and the Participant becomes the holder of record of
such shares. Except as otherwise provided in the Plan, no adjustment will be
made for dividends or distributions with respect to such Incentive Awards as to
which there is a record date preceding the date the Participant becomes the
holder of record of such shares, except as the Committee may determine in its
discretion.
12.3 RESTRICTIONS ON TRANSFER. Except pursuant to testamentary will or the
laws of descent and distribution or as otherwise expressly permitted by the
Plan, no right or interest of any Participant in an Incentive Award prior to the
exercise or vesting of such Incentive Award will be assignable or transferable,
or subjected to any lien, during the lifetime of the Participant, either
voluntarily or involuntarily, directly or indirectly, by operation of law or
otherwise. A Participant will, however, be entitled to designate a beneficiary
to receive an Incentive Award upon such Participant's death, and in the event of
a Participant's death, payment of any amounts due under the Plan will be made
to, and exercise of any Options (to the extent permitted pursuant to Section 9
of the Plan) may be made by, the Participant's legal representatives, heirs and
legatees.
12.4 NON-EXCLUSIVITY OF THE PLAN. Nothing contained in the Plan is intended
to modify or rescind any previously approved compensation plans or programs of
the Company or create any limitations on the power or authority of the Board to
adopt such additional or other compensation arrangements as the Board may deem
necessary or desirable.
12.5 RESTRICTIONS REGARDING EMPLOYMENT OR SERVICE.
(a) Notwithstanding anything in the Plan to the contrary, in the event
that a Participant, prior to or following such Participant's voluntary
termination of employment or other service with the Company or any
Subsidiary, takes Adverse Actions with respect to the Company or any
Subsidiary, the Committee in its sole discretion will have the authority (by
so providing in the agreement evidencing the Incentive Award at the time of
grant) to terminate immediately all rights of the Participant under the Plan
and any agreement evidencing Incentive Awards than held by the Participant
without notice of any kind. In addition, to the extent that a Participant
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takes such Adverse Actions during the period beginning 12 months prior to,
and ending 12 months following, the date of such voluntary employment or
service termination, the Committee in its sole discretion will have the
authority (by so providing in the agreement evidencing the Incentive Award
at the time of grant) to rescind the exercise or vesting of any Incentive
Awards of the Participant that were exercised or became vested during such
period and to require the Participant to pay to the Company, within 10 days
of receipt from the Company of notice of such rescission, the amount of any
gain realized or payment received as a result of such rescinded exercise or
vesting. Such payment will be made in cash (including check, bank draft or
money order) or, with the Committee's consent, shares of Common Stock with a
Fair Market Value on the date of payment equal to the amount of such
payment. The Company will be entitled to withhold and deduct from future
wages of the Participant (or from other amounts that may be due and owing to
the Participant from the Company or a Subsidiary) or make other arrangements
for the collection of all amounts necessary to satisfy such payment
obligation.
(b) For purposes of this Section 12.5, an "Adverse Action" will mean any
action by a Participant that the Committee, in its sole discretion,
determines to be adverse to the interests of the Company or any Subsidiary,
including, without limitation, (i) disclosing confidential information of
the Company or any Subsidiary to any person not authorized by the Company to
receive it, (ii) engaging, directly or indirectly, in any commercial
activity that in the judgment of the Committee competes with the business of
the Company or any Subsidiary, or (iii) interfering with the relationships
of the Company or its Subsidiaries with their respective employees and
customers.
13. SECURITIES LAW AND OTHER RESTRICTIONS.
Notwithstanding any other provision of the Plan or any agreements entered
into pursuant to the Plan, the Company will not be required to issue any shares
of Common Stock under this Plan, and a Participant may not sell, assign,
transfer or otherwise dispose of shares of Common Stock issued pursuant to
Incentive Awards granted under the Plan, unless (a) there is in effect with
respect to such shares a registration statement under the Securities Act and any
applicable state securities laws or an exemption from such registration under
the Securities Act and applicable state securities laws, and (b) there has been
obtained any other consent, approval or permit from any other regulatory body
which the Committee, in its sole discretion, deems necessary or advisable. The
Company may condition such issuance, sale or transfer upon the receipt of any
representations or agreements from the parties involved, and the placement of
any legends on certificates representing shares of Common Stock, as may be
deemed necessary or advisable by the Company in order to comply with such
securities law or other restrictions.
14. PLAN AMENDMENT, MODIFICATION AND TERMINATION
The Board may suspend or terminate the Plan or any portion thereof at any
time, and may amend the Plan from time to time in such respects as the Board may
deem advisable in order that Incentive Awards under the Plan will conform to any
change in applicable laws or regulations or in any other respect the Board may
deem to be in the best interests of the Company; provided, however, that no
amendments to the Plan will be effective without approval of the stockholders of
the Company if stockholder approval of the amendment is then required pursuant
to Rule 16b-3 under the Exchange Act, Section 422 of the Code or the rules of
the National Association of Securities Dealers, Inc. No termination, suspension
or amendment of the Plan may adversely affect any outstanding Incentive Award
without the consent of the affected Participant; provided, however, that this
sentence will not impair the right of the Committee to take whatever action it
deems appropriate under Sections 4.3 and 11 of the Plan.
15. EFFECTIVE DATE AND DURATION OF THE PLAN
The Plan is effective as of January 18, 1993, the date it was adopted by the
Board. The Plan will terminate at midnight on January 18, 2003, and may be
terminated prior to such time to by Board
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action, and no Incentive Award will be granted after such termination. Incentive
Awards outstanding upon termination of the Plan may continue to be exercised, or
become free of restrictions, in accordance with their terms.
16. MISCELLANEOUS
16.1 GOVERNING LAW. The validity, construction, interpretation,
administration and effect of the Plan and any rules, regulations and actions
relating to the Plan will be governed by and construed exclusively in accordance
with the laws of the State of Minnesota.
16.2 SUCCESSORS AND ASSIGNS. The Plan will be binding upon and inure to the
benefit of the successors and permitted assigns of the Company and the
Participants.
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MERRILL CORPORATION
1996 NON-EMPLOYEE DIRECTOR PLAN
1. PURPOSE OF PLAN.
The purpose of the Merrill Corporation 1996 Non-Employee Director Plan
(the "Plan") is to advance the interests of Merrill Corporation (the
"Company") and its shareholders by enabling the Company to attract and retain
the services of experienced and knowledgeable non-employee directors and to
increase the proprietary interests of such non-employee directors in the
Company's long-term success and progress and their identification with the
interests of the Company's shareholders.
2. DEFINITIONS.
The following terms will have the meanings set forth below, unless the
context clearly otherwise requires:
2.1 "ANNUAL OPTION" means the right to purchase shares of Common Stock
pursuant to Section 5.1(b) of the Plan.
2.2 "BOARD" means the Board of Directors of the Company.
2.3 "CODE" means the Internal Revenue Code of 1986, as amended.
2.4 "COMMITTEE" means the group of individuals administering the Plan,
as provided in Section 3 of the Plan.
2.5 "COMMON STOCK" means the common stock of the Company, par value
$0.01 per share, or the number and kind of shares of stock or other
securities into which such Common Stock may be changed in accordance with
Section 4.3 of the Plan.
2.6 "DISABILITY" means the disability of an Eligible Director such as
would entitle the Eligible Director to receive disability income benefits
pursuant to the long-term disability plan of the Company then covering the
Eligible Director or, if no such plan exists or is applicable to the Eligible
Director, the permanent and total disability of the Eligible Director within
the meaning of Section 22(e)(3) of the Code.
2.7 "ELIGIBLE DIRECTORS" means all directors of the Company who are not
employees of the Company or any subsidiary of the Company.
2.8 "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
2.9 "FAIR MARKET VALUE" means, with respect to the Common Stock, as of any
date (or, if no shares were traded on such date, as of the next preceding date
on which there was such a trade), the average of the reported high and low sales
prices of the Common Stock as reported by the Nasdaq National Market.
2.10 "INCENTIVE AWARDS" means Options and Retainer Stock.
2.11 "OPTIONS" means the One-Time Options and Annual Options.
2.12 "ONE-TIME OPTION" means the right to purchase shares of Common Stock
pursuant to Section 5.1(a) of the Plan.
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2.13 "RETAINER STOCK" means shares of Common Stock granted to an Eligible
Director pursuant to Section 6 of the Plan.
2.14 "SECURITIES ACT" means the Securities Act of 1933, as amended.
3. PLAN ADMINISTRATION.
The Plan will be administered by a committee (the "Committee")
consisting solely of two or more members of the Board. All questions of
interpretation of the Plan will be determined by the Committee, each
determination, interpretation or other action made or taken by the Committee
pursuant to the provisions of the Plan will be conclusive and binding for all
purposes and on all persons, and no member of the Committee will be liable
for any action or determination made in good faith with respect to the Plan
or any Incentive Award granted under the Plan. The Committee, however, will
have no power to determine the eligibility for participation in the Plan, the
number of shares of Common Stock to be subject to Incentive Awards, or the
timing, pricing or other terms and conditions of Incentive Awards.
4. SHARES AVAILABLE FOR ISSUANCE.
4.1 MAXIMUM NUMBER OF SHARES AVAILABLE. Subject to adjustment as
provided in Section 4.3 of the Plan, the maximum number of shares of Common
Stock that will be available for issuance under the Plan will be 200,000
shares. The shares available for issuance under the Plan shall be authorized
but unissued shares.
4.2 ACCOUNTING FOR INCENTIVE AWARDS. Shares of Common Stock that are
issued under the Plan or that are subject to outstanding Incentive Awards
will be applied to reduce the maximum number of shares of Common Stock
remaining available for issuance under the Plan. Any shares of Common Stock
that are subject to an Option that lapses, expires, or for any reason is
terminated unexercised will automatically again become available for issuance
under the Plan.
4.3 ADJUSTMENTS TO SHARES AND INCENTIVE AWARDS. In the event of any
reorganization, merger, consolidation, recapitalization, liquidation,
reclassification, stock dividend, stock split, combination of shares, rights
offering, divestiture or extraordinary dividend (including a spin-off) or any
other change in the corporate structure or shares of the Company, the
Committee (or, if the Company is not the surviving corporation in any such
transaction, the board of directors of the surviving corporation) will make
appropriate adjustment (which determination will be conclusive) as to the
number and kind of securities available for issuance under the Plan and, in
order to prevent dilution or enlargement of the rights of Eligible Directors,
the number, kind and, where applicable, exercise price of securities subject
to outstanding Incentive Awards.
5. OPTIONS.
5.1 GRANT.
(a) At such time as new Eligible Directors are first elected or
appointed to the Board to fill new directorships or to fill vacancies, such
Eligible Directors will be granted automatically, on a one-time basis on
the date of such election or appointment, a non-statutory stock option to
purchase 10,000 shares of Common Stock (subject to adjustment as provided
in Section 4.3 of the Plan).
2
<PAGE>
(b) Commencing with the annual meeting of shareholders of the Company
that first occurs following the date that an Eligible Director is first
elected or appointed to the Board, each Eligible Director who is elected or
re-elected to the Board at an annual meeting of shareholders will be
granted automatically, on the date of each such annual meeting, a non-
statutory stock option to purchase 3,000 shares of Common Stock (subject to
adjustment as provided in Section 4.3 of the Plan).
5.2 EXERCISE PRICE OF OPTIONS. The per share price to be paid by an
Eligible Director upon exercise of an Option will be 100% of the Fair Market
Value of one share of Common Stock on the date of grant. The total purchase
price of the shares to be purchased upon exercise of an Option must be paid
entirely in cash (including check, bank draft or money order).
5.3 EXERCISABILITY AND DURATION OF OPTIONS. Each One-Time Option will
become exercisable, on a cumulative basis, with respect to 20% of the shares
originally subject to such One-Time Option on each anniversary of the date of
grant of such One-Time Option. Each Annual Option will become exercisable in
full six months following the date of grant of such Annual Option. Each
Option will expire and will no longer be exercisable 10 years following the
date of grant of such Option.
5.4 MANNER OF EXERCISE OF OPTIONS. An Option may be exercised by an
Eligible Director in whole or in part from time to time, subject to the
conditions contained in the Plan and in the agreement evidencing such Option,
by delivery in person, by facsimile (with written confirmation) or through
the mail of written notice of exercise to the Company at its principal
executive office in St. Paul, Minnesota and by paying in full the total
exercise price for the shares of Common Stock to be purchased in accordance
with Section 5.2 of the Plan.
6. RETAINER STOCK.
Commencing with the date of the annual meeting of shareholders of the
Company to be held in 1996 and continuing on the date of each succeeding
annual meeting of shareholders of the Company, each Eligible Director who
continues to serve in such capacity following such annual meeting will
receive, as part of such Eligible Director's annual retainer for the ensuing
year, such number of shares of Common Stock (rounded to the nearest whole
share) as equals $6,000 divided by the average of the Fair Market Value of
one share of Common Stock for the 10 trading days immediately preceding the
date of such annual meeting.
7. TERMINATION OF SERVICE AS A DIRECTOR.
7.1 TERMINATION DUE TO DEATH OR DISABILITY. In the event an Eligible
Director's service as a director of the Company is terminated by reason of
death or Disability, all outstanding Options then held by such Eligible
Director will become immediately exercisable in full and will remain
exercisable for a period of one year after such death or Disability (but in
no event after the expiration date of any such Options).
7.2 TERMINATION FOR REASONS OTHER THAN DEATH OR DISABILITY. In the
event an Eligible Director's service as a director of the Company is
terminated for any reason other than death or Disability, all outstanding
Options then held by such Eligible Director will remain exercisable to the
extent exercisable as of such termination for a period of three months after
such termination (but in no event after the expiration date of any such
Options).
3
<PAGE>
7.3 DATE OF TERMINATION. An Eligible Director's service as a director
of the Company will, for purposes of the Plan, be deemed to have terminated
on the date recorded on the personnel or other records of the Company, as
determined by the Committee based upon such records.
8. RIGHTS OF ELIGIBLE DIRECTORS; TRANSFERABILITY OF INTERESTS.
8.1 SERVICE AS A DIRECTOR. Nothing in the Plan will interfere with or
limit in any way the right of the shareholders to terminate an Eligible
Director's service as a director of the Company at any time, and neither the
Plan, nor the granting of an Incentive Award nor any other action taken
pursuant to the Plan, will constitute or be evidence of any agreement or
understanding, express or implied, that the shareholders will retain an
Eligible Director as a director of the Company for any period of time or at
any particular rate of compensation.
8.2 RIGHTS AS A SHAREHOLDER. An Eligible Director will have no rights
as a shareholder unless and until Retainer Stock is issued or an Option is
exercised and the Eligible Director becomes the holder of record of such
shares. Except as otherwise provided in the Plan, no adjustment will be made
for dividends or distributions with respect to Incentive Awards as to which
there is a record date preceding the date the Eligible Director becomes the
holder of record of such shares.
8.3 RESTRICTIONS ON TRANSFER OF INTERESTS. Except pursuant to
testamentary will or the laws of descent and distribution or as otherwise
expressly permitted by the Plan, no right or interest of any Eligible
Director in an Option prior to the exercise of such Option will be assignable
or transferable, or subjected to any lien, during the lifetime of the
Eligible Director, either voluntarily or involuntarily, directly or
indirectly, by operation of law or otherwise. An Eligible Director will,
however, be entitled to designate a beneficiary to receive an Option upon
such Eligible Director's death, and in the event of an Eligible Director's
death, payment of any amounts due under the Plan will be made to, and
exercise of any Options (to the extent permitted pursuant to Section 7 of the
Plan) may be made by, the Eligible Director's legal representatives, heirs
and legatees.
8.4 NON-EXCLUSIVITY OF THE PLAN. Nothing contained in the Plan is
intended to modify or rescind any previously approved compensation plans or
programs of the Company or create any limitations on the power or authority
of the Board to adopt such additional or other compensation arrangements as
the Board may deem necessary or desirable.
9. SECURITIES LAW AND OTHER RESTRICTIONS.
Notwithstanding any other provision of the Plan or any agreements
entered into pursuant to the Plan, the Company will not be required to issue
any shares of Common Stock under this Plan, and an Eligible Director may not
sell, assign, transfer or otherwise dispose of shares of Common Stock issued
in connection with an Incentive Award granted under the Plan, unless (a)
there is in effect with respect to such shares a registration statement under
the Securities Act and any applicable state securities laws or an exemption
from such registration under the Securities Act and applicable state
securities laws, and (b) there has been obtained any other consent, approval
or permit from any other regulatory body which the Committee, in its sole
discretion, deems necessary or advisable. The Company may condition such
issuance, sale or transfer upon the receipt of any representations or
agreements from the parties involved, and the placement of any legends on
certificates representing shares of Common Stock, as may be deemed necessary
or advisable by the Company in order to comply with such securities law or
other restrictions.
4
<PAGE>
10. PLAN AMENDMENT, MODIFICATION AND TERMINATION
The Board may suspend or terminate the Plan or any portion thereof at
any time, and may amend the Plan from time to time in such respects as the
Board may deem advisable in order that Incentive Awards granted under the
Plan will conform to any change in applicable laws or regulations or in any
other respect the Board may deem to be in the best interests of the Company;
provided, however, that (a) no amendments to the Plan will be effective
without approval of the shareholders of the Company if shareholder approval
of the amendment is then required pursuant to Rule 16b-3 under the Exchange
Act or the rules of the Nasdaq National Market, and (b) to the extent
prohibited by Rule 16b-3 of the Exchange Act, the Plan may not be amended
more than once every six months. No termination, suspension or amendment of
the Plan may adversely affect any outstanding Incentive Award without the
consent of the affected Eligible Director; provided, however, that this
sentence will not impair the right of the Committee to take whatever action
it deems appropriate under Section 4.3 of the Plan.
11. EFFECTIVE DATE AND DURATION OF THE PLAN
The Plan will be effective as of the date it is adopted by the
shareholders of the Company. The Plan will terminate at midnight on May 21,
2001 but may be terminated prior thereto by Board action. No Incentive
Awards may be granted after such termination, but Options outstanding upon
termination of the Plan may continue to be exercised in accordance with their
terms.
12. MISCELLANEOUS
12.1 GOVERNING LAW. The validity, construction, interpretation,
administration and effect of the Plan and any rules, regulations and actions
relating to the Plan will be governed by and construed exclusively in
accordance with the laws of the State of Minnesota, notwithstanding any
conflicts of law principles.
12.2 SUCCESSORS AND ASSIGNS. The Plan will be binding upon and inure to
the benefit of the successors and permitted assigns of the Company and the
Eligible Directors.
5
<PAGE>
Lease
dated as of
May 1, 1994
between
The Rector, Church-Wardens, and Vestrymen
of Trinity Church
in the City of New York, Landlord
and
The Corporate Printing Company, Inc.
--------------------------
225 Varick Street
--------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
FIRST: Use . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECOND: Rent . . . . . . . . . . . . . . . . . . . . . . . . . . 2
THIRD: Repairs, Machinery, Cleaning and Waste . . . . . . . . . 2
FOURTH: Alterations and Fixtures . . . . . . . . . . . . . . . . 3
FIFTH: Compliance with Governmental Rules and Regulations . . . 5
SIXTH: Compliance with Landlord's Rules . . . . . . . . . . . . 5
SEVENTH: Plate Glass . . . . . . . . . . . . . . . . . . . . . . 6
EIGHTH: Care of Sidewalks . . . . . . . . . . . . . . . . . . . 6
NINTH: Landlord's Access to the Premises . . . . . . . . . . . 6
TENTH: Electric Current; Live Steam . . . . . . . . . . . . . . 6
ELEVENTH: Condemnation and Demolition . . . . . . . . . . . . . . 8
TWELFTH: Mechanic's Liens . . . . . . . . . . . . . . . . . . . . 8
THIRTEENTH: Subordination . . . . . . . . . . . . . . . . . . . . . 9
FOURTEENTH: Certificate of Occupancy . . . . . . . . . . . . . . . . 9
FIFTEENTH: Vaults . . . . . . . . . . . . . . . . . . . . . . . . . 10
SIXTEENTH: Liquors . . . . . . . . . . . . . . . . . . . . . . . . 10
SEVENTEENTH: Fire and Fire Insurance . . . . . . . . . . . . . . . . 10
EIGHTEENTH: Change in Use of Premises, Subletting and Assignment . . 11
NINETEENTH: Waiver and Surrender; Remedies Cumulative . . . . . . . 15
TWENTIETH: Representations as to Premises, Certificate of
Occupancy and Use . . . . . . . . . . . . . . . . . . . 16
TWENTY-FIRST: Limitations of Landlord's Liability . . . . . . . . . . 16
TWENTY-SECOND: Indemnity by Tenant . . . . . . . . . . . . . . . . . . 17
TWENTY-THIRD: Notices . . . . . . . . . . . . . . . . . . . . . . . . 18
TWENTY-FOURTH: Insolvency . . . . . . . . . . . . . . . . . . . . . . . 18
TWENTY-FIFTH: Remedies of the Landlord on Default, Performance . . . . 18
TWENTY-SIXTH: Surrender at Expiration . . . . . . . . . . . . . . . . 20
TWENTY-SEVENTH: Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . 21
TWENTY-EIGHTH: Tenant's Deposit . . . . . . . . . . . . . . . . . . . . 21
TWENTY-NINTH: Elevators, Heat . . . . . . . . . . . . . . . . . . . . 23
THIRTIETH: Water and Sewer Rents . . . . . . . . . . . . . . . . . 24
THIRTY-FIRST: Sprinkler Maintenance . . . . . . . . . . . . . . . . . 24
i
<PAGE>
Page
----
THIRTY-SECOND: Insurance . . . . . . . . . . . . . . . . . . . . . . . 25
THIRTY-THIRD: Default Under Other Leases . . . . . . . . . . . . . . . 25
THIRTY-FOURTH: Work to be Done by Landlord . . . . . . . . . . . . . . 25
THIRTY-FIFTH: Trading with the Enemy . . . . . . . . . . . . . . . . . 25
THIRTY-SIXTH: Marginal Notes . . . . . . . . . . . . . . . . . . . . . 25
THIRTY-SEVENTH: . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(a) Real Estate and CPI Escalation . . . . . . . . . . . . . . . . . . 25
(b) Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(c) Statements for the Tenant . . . . . . . . . . . . . . . . . . . . 27
(d) Computation of Increase in Rent Payable by the Tenant . . . . . . 28
(e) Inspection of Books . . . . . . . . . . . . . . . . . . . . . . . 28
(f) Decreases in Real Estate Taxes or Index . . . . . . . . . . . . . 28
(g) Real Estate Tax Refunds . . . . . . . . . . . . . . . . . . . . . 29
THIRTY-EIGHTH: Arrangements with Respect to the Eleventh Floor . . . . 29
THIRTY-NINTH: Free Rent . . . . . . . . . . . . . . . . . . . . . . . 30
FORTIETH: [Intentionally Omitted] . . . . . . . . . . . . . . . . 31
FORTY-FIRST: Conditional Termination of Existing Leases . . . . . . . 31
FORTY-SECOND: Tenant's Use of Elevator . . . . . . . . . . . . . . . . 32
FORTY-THIRD: Tenant's Installation of Air Conditioning Equipment . . 33
FORTY-FOURTH: Eighth Floor Option Space . . . . . . . . . . . . . . . 34
FORTY-FIFTH: Loading Dock . . . . . . . . . . . . . . . . . . . . . . 34
FORTY-SIXTH: Tenant's Obligation to Improve the Premises . . . . . . 34
FORTY-SEVENTH: Right to Cancel Third Floor Lease . . . . . . . . . . . 34
FORTY-EIGHTH: Broker . . . . . . . . . . . . . . . . . . . . . . . . . 35
</TABLE>
<TABLE>
<CAPTION>
EXHIBITS AND OTHER ATTACHMENTS
- -------------------------------
<S> <C>
Exhibit A . . . . . Portion of Basement
Exhibit B . . . . . Portion of 8th Floor
Exhibit C . . . . . Entire 10th Floor
Exhibit D . . . . . Entire 11th Floor
Exhibit E . . . . . Entire 12th Floor
Exhibit F . . . . . Portion of 10th Floor to be Subleased to
Four Color Litho, Inc.
Exhibit G . . . . . Vacant 11th Floor Space
Exhibit H . . . . . Automatic Passenger Elevator to be used
by Tenant
Exhibit I . . . . . Manual Freight Elevator to be used by Tenant
Exhibit J . . . . . Area on roof where Tenant's air conditioning
equipment may be installed
Exhibit K . . . . . 8th Floor Option Space
Exhibit L . . . . . Tenant's Loading Dock
Exhibit M . . . . . Location of Tenant's Trade Machinery and
Equipment
</TABLE>
ii
<PAGE>
<TABLE>
Page
----
<S> <C>
Work Sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . WS-1
Rules and Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . R-1
Certificate of Occupancy . . . . . . . . . . . . . . . . . . . . . . . . CO-1
</TABLE>
iii
<PAGE>
THIS LEASE made as of the first day of May, 1994 between The Rector,
Church-Wardens and Vestrymen of Trinity Church in the city of New York, a
religious corporation (hereafter referred to as "the Landlord"), having its
offices at 74 Trinity Place, Borough of Manhattan, City, County and State of
New York, and The Corporate Printing Company, Inc., a New York corporation
(hereafter referred to as "the Tenant"), having its place of business at 225
Varick Street, Borough of Manhattan, City, County and State of New York.
W I T N E S S E T H:
That the Landlord hereby lets and leases to the Tenant, and the Tenant
hereby takes and hires from the Landlord, the following described space: a
portion of the basement, a portion of the 8th floor, the entire 10th floor,
the entire 11th floor and the entire 12th floor as hatched in red on the
diagrams attached hereto and made part hereof and marked Exhibit "A", "B",
"C", "D", and "E", respectively, (such space is hereafter referred to as "the
premises") in the building known by street number as No. 225 Varick Street in
the Borough of Manhattan, City, County and State of New York (hereafter
referred to as "the building"), with the privilege to the Tenant of using
(subject to such rules and regulations as the Landlord shall from time to
time prescribe) the necessary entrances and appurtenances to the premises,
reserving to the Landlord all other portions of the building not herein
specifically demised, for a term to commence on the first day of November,
1994, at noon, Standard Time, and to expire on the thirty-first day of
October, 2014, at noon, Standard Time (or until such term shall sooner cease
and expire or be terminated as hereafter provided), at the fixed rent at the
annual rates as follows:
<TABLE>
<CAPTION>
Annual Rate
Period of Fixed Rent
------ -----------
<S> <C>
November 1, 1994 to October 31, 2001 . . . . $ 688,619.00
November 1, 2001 to October 31, 2009 . . . . $1,180,038.00
November 1, 2009 to October 31, 2014 . . . . $1,412,525.00
</TABLE>
Such fixed rent is payable at the offices of the Landlord in equal monthly
installments equal to 1/12th of the rent at the annual rates as above
prescribed for the respective periods in which they are payable, in advance
without demand therefor an installment equal to the amount of the rent
payable under this lease for the first month of the term for which rent is
payable upon the execution hereof by the Tenant, and thereafter, on the first
day of each month during said term, in lawful money of the United States,
plus, (i) when due or demanded, such as shall be provided hereafter are
payable by the Tenant as additional rent, and (ii), should the Tenant at the
commencement of the term of this lease be in default in the payment of rent
to the Landlord pursuant to the terms of any prior lease with the Landlord,
or with a predecessor in interest of the Landlord, the amount of such
arrears, which the Landlord may at its option and without notice thereof to
the Tenant, add to any monthly installments of rent due under this lease. The
Landlord agrees to give the Tenant notice of any default under the prior
lease no later than November 12, 1994. As of May 12, 1994, the Tenant was not
in default in the payment of rent or additional rent under the terms of the
existing prior lease between the Landlord and the Tenant.
THE ABOVE LETTING IS UPON THE FOLLOWING COVENANTS AND CONDITIONS, each
and every one of which the Tenant covenants and agrees with the Landlord to
keep and perform, and the Tenant agrees that the covenants herein contained
on the part of the Tenant to be performed shall be deemed conditional
limitations, as well as covenants and conditions:
-1-
<PAGE>
FIRST: USE. (a) The Tenant shall use the premises only for offices,
storage and the operation of Tenant's general printing business including the
use of printing presses photocopying, document reproduction, info wiring and
any use or activity incidental thereto.
(b) If any portion of the premises consists of basement space, such
portion shall be used only for storage purposes.
(c) No auction sale and no other sale of all or substantially all of the
Tenant's property, stock, fixtures and machinery, except a sale made in
connection with an assignment of this lease to another tenant for which the
Landlord's consent shall have been obtained, shall be held at the premises
unless the provisions of Article Twenty-Ninth (b) of this lease shall have
been complied with.
SECOND: RENT. (a) The Tenant shall pay the rent and additional rent as
provided in this lease.
(b) If any installment or installments of rent or additional rent or any
service charge shall not be paid within fifteen (15) days following the date
on which the same shall be due and payable pursuant of this lease, provided
that the Tenant has failed to pay such amount within ten (10) days after
receipt of written notice from the Landlord, then, in addition to, and
without waiving or releasing, any other rights and remedies of the Landlord,
the Tenant shall pay to the Landlord a late charge of one and one (1%)
percent per month computed (on the basis of a 30-day month) from the date of
such notice from the Landlord to the date of payment of the installment on
the amount of each such installment or installments, as liquidated damages
for Tenant's failure to make prompt payment, and the same may be collected on
demand as additional rent in accordance with the provisions of Article
Twenty-Third of this lease.
THIRD: REPAIRS, MACHINERY, CLEANING AND WASTE. (a) The Tenant shall take
good care of the premises and the fixtures, appurtenances, equipment and
facilities therein and shall make, as and when needed, all repairs in and
about the premises required to keep them in good order and condition
reasonable wear and tear and damage by casualty except covered by insurance
maintained by the Landlord; such repairs to be equal in quality of the
original work provided that the Tenant shall not be obligated for structural
or exterior repairs to the building or for repairs to the systems and
facilities of the building for the use or service of tenants generally, other
than fixtures, appurtenances, equipment and facilities in the premises,
except where structural or exterior repairs or repairs to such systems and
facilities are made necessary by reason of one or more of the occurrences
described below in clauses (i) through (iv) of this Article Third (a). Should
the Tenant fail to repair any condition in or about the premises or the
fixtures, appurtenances, equipment and facilities therein which is of such a
nature that its neglect would result in damage or danger to the building, its
fixtures, appurtenances, facilities and equipment, or to its occupants (of
which nature the Landlord shall be the judge) or, in the case of repairs of
any other nature, should the Tenant have failed to make the required repairs
or to have begun in good faith, the work necessary to make them within five
business days after notice from the Landlord of the condition requiring
repair, the Landlord may, in either such case, immediately enter the premises
and make the required repairs at the expense of the Tenant. The Landlord may
make, at the expense of the Tenant, any repairs to the building or to its
fixtures, appurtenances, facilities or equipment, whether of a structural or
any other nature, which are required by reason of damage or injury due (i) to
the negligence or the improper acts of the Tenant or its employees, agents,
licenses or visitors; (ii) to the moving, into or out of the building, of
property being delivered to or taken from the premises; (iii) to the
installation, repair or removal of
-2-
<PAGE>
the property of the Tenant in the premises; or (iv) to the faulty operation
of any machinery, equipment, or facility installed in the premises by or for
the Tenant. The Tenant will pay the cost of any repairs made by the Landlord
pursuant to this paragraph upon presentation of bills therefor, or the
Landlord may, at its option, add such amounts to any installment or
installments of rent due under this lease and collect the same as additional
rent. The liability of the Tenant under this Article Third shall survive the
expiration or other termination of this lease.
(b) If the Tenant shall install or maintain machinery or manufacturing
equipment of any description in the premises, the operation of which produces
noise or vibration which is transmitted beyond the premises and the Landlord
deems it necessary that the noise or vibration of such machinery or equipment
be diminished, eliminated, prevented or confined to the premises, the
Landlord may give written notice to the Tenant, requiring that the Tenant
provide and install rubber or other approved settings for absorbing,
preventing or decreasing the noise or vibration of such machinery or
equipment within fifteen (15) days. The judgment of the Landlord of the
necessity of such installation shall be conclusive, and the installation
shall be made in such manner and of such material as the Landlord may direct.
Should the Tenant fail to comply with such request within fifteen (15) days,
the Landlord, provided ten (10) days notice is afforded Tenant, may do the
work necessary to absorb, prevent or decrease the noise or vibration of such
machinery or equipment and the Tenant will pay to the Landlord the cost of
such work upon demand or such cost may, at the option of the Landlord, be
added to any installment or installments of rent under this lease and shall
be payable by the Tenant as additional rent.
(c) The premises shall be kept clean and in order by the Tenant, at the
Tenant's expense, and to the satisfaction of the Landlord. The Tenant shall,
at its own expense, clean the interior and exterior surfaces of the windows
at such times as the windows become dirty (however, not more often than two
times per year) to a degree which, in the judgment of the Landlord, adversely
affects the appearance of the building or the premises. Such window cleaning
shall be done in a manner which complies with the requirements of this lease
and all applicable laws and regulations. The Tenant shall, at its own
expense, remove from the building any and all rubbish, refuse and waste
originating in the premises of the Tenant or cause the same to be removed.
The removal of such refuse, rubbish and waste shall be subject to such
results and regulations as to time and manner of removal as, in the judgment
of the Landlord, are necessary for the proper operation of the building. In
the event that the Tenant shall fail to clean the windows or remove its
refuse, rubbish and waste, provided ten (10) days notice is afforded Tenant,
such cleaning or removal may be done by the Landlord, and the Tenant shall
pay to the Landlord the actual and reasonable cost of the cleaning of the
windows or the removal of any of the Tenant's refuse, rubbish and waste from
the building. Bills for the same shall be rendered by the Landlord to the
Tenant at such times as the Landlord may elect and shall be due and payable
within ten (10) days from when rendered, and the amount of such bills shall
be deemed to be, and be paid as, additional rent. Should the Landlord clean
the windows or remove the rubbish of the Tenant and of other tenants, the
cost of such cleaning or removal shall be apportioned as between the Tenant
and such other tenants respectively on the basis of the number of windows or
the respective approximate quantities of such rubbish and waste as the case
may be. The Landlord's apportionment of such respective quantities shall be
conclusive on the parties.
FOURTH: ALTERATIONS AND FIXTURES. (a) The Tenant shall not make any
alteration, addition or improvement in or upon the premises cost of which
exceeds $50,000, (excluding painting, wall covering, floor covering or
other interior decoration), nor incur any expense therefor, without having
first obtained the written
-3-
<PAGE>
consent of the Landlord therefor which shall not be unreasonably withheld or
delayed and such approval shall be deemed granted if Tenant is not notified
in writing of the Landlord's basis for withholding such approval within ten
(10) days of notifying Landlord thereof. If the Tenant shall desire to make
alterations, decorations, additions or improvements to fit out the premises
for the Tenant's use which will not adversely affect the structure of the
building or the operation of any of the systems or facilities of the building
for the use of all tenants or violate the requirements of government hereafter
referred to and if the Tenant shall furnish the Landlord with the Tenant's
plans and specifications for the proposed alteration, decoration, addition or
improvement in sufficient detail to permit the Landlord to determine that the
same will comply with the requirements of this subdivision (a), the
Landlord's approval will not be unreasonably withheld or delayed and such
approval shall be deemed granted if Tenant is not notified in writing of the
Landlord's basis for withholding such approval within ten (10) days of
notifying Landlord thereof. Whenever any alterations, decorations, additions
or improvements of the premises are made by the Tenant, the Tenant shall not,
knowingly, employ or permit to be employed therein any labor which will cause
strikes or labor troubles with other employees in the building employed by
the Landlord or its contractors. All alterations, decorations, additions or
improvements shall be made and installed in a good and workmanlike manner and
shall comply with all requirements, by law, regulation or rule, of the
Federal, State and City Governments and all subdivisions and agencies thereof,
and with the requirements of the New York Fire Insurance Exchange, New York
Board of Fire Underwriters and all other bodies exercising similar functions,
and shall conform to any particular requirements of the Landlord, which shall
be reasonably expressed in its consent for the making of any such
alterations, decorations, additions, and improvements. Any such work once
begun shall be completed with all reasonable dispatch, but shall be done at
such time an in such manner as not to interfere with the occupancy of any
other tenant or the progress of any work being performed by or on account of
the Landlord. If requested to do so by the Tenant in connection with the
Landlord's approval of any alteration, decoration, addition or improvement,
the Landlord will advise the Tenant whether the alteration, decoration,
addition or improvement will be required to be removed by the Tenant at the
expiration or earlier termination of this lease or may remain upon the
premise to become the property of the Landlord. If no such advice is given by
the Landlord, the provision of subdivision (b) of this Article Fourth shall
apply.
(b) All alterations, decorations, additions or improvements, which may
be made or installed in or upon the premises (whether made during or prior to
the term of this lease or during the term of any prior lease of the premises
by the Landlord, the Tenant or any previous tenant), except the furniture,
trade equipment of any kind, trade fixtures, stock in trade, and like
personal property of the Tenant, shall be conclusively deemed to be part of
the freehold and the property of the Landlord, and shall remain upon the
premises, and, upon the expiration or any termination of the term of this
lease, shall be surrendered therewith as a part thereof, unless the Landlord
shall, prior to the expiration or termination of the term, notify the Tenant
that any or all of such alterations, decorations, additions or improvements
shall be removed, in which event, the Tenant shall remove the same in
accordance with the Landlord's notice at its own cost and expense at of prior
to the expiration or termination of the term. The Tenant, at or prior to the
expiration or any termination of the term of this lease shall, at its own
expense, remove all its furniture, trade fixtures, stock in trade and like
personal property. The Tenant shall restore and repair, at its own cost and
expense, any damage or disfigurement of the premises occasioned by any such
removals or remaining ten (10) days after notice to Tenant after such
removals, so as to leave the premises in good order and condition or, the
Landlord, at its option, may do such restoration and repair and the Tenant
will pay the cost thereof upon demand.
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If any furniture, trade fixtures, stock in trade or other personal property
of the Tenant shall not be removed at the expiration or any termination of
this lease, the Landlord, at the Landlord's option, may treat the same as
having been irrevocably abandoned, in which event the Tenant shall have no
further right, title or interest therein and the Landlord may remove the same
from the premises, disposing of them in any way which the Landlord sees fit
to do, and the Tenant shall, on demand, pay to the Landlord the actual and
reasonable expense incurred by the Landlord for the removal thereof, as well
as the cost of any restoration of the premises above provided. The Tenant's
obligations under this subdivision (b) of this Article Fourth shall survive
the expiration of this lease.
(c) The Landlord may at any time during the term of this lease change
the arrangement or location of the entrances or passageways, doors and
doorways, and the corridors, elevators, stairs, toilets (except for toilets
on floors where the Tenant leases the entire floor) or other parts of the
building used by the public or in common by the Tenant and other tenants
(including, without limitation, the conversion of elevators from a manually
operated to an automatic self-service basis) provided no such change in
arrangement shall materially reduce the size of the premises or materially
impair access to the premises, and may alter the staffing of the building and
the scale and manner of the operation thereof, provided that the services to
which the Tenant is entitled as specified in this lease are not diminished
and may alter the facilities, fixtures, appurtenances and equipment of the
building as it may deem the same advisable, or as it may be required so to do
by any governmental authority, law, rule or regulation. The Landlord may,
after reasonable notice, change the name, street number or designation by
which the building is commonly known. To the extend any portion of the
premises becomes unuseable for Tenant's business, due to Landlord's work, the
rent and additional rent shall abate with respect thereto.
FIFTH: COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS. The Tenant
shall promptly comply, at the Tenant's own expense, with all laws,
ordinances, regulations and requirements of the City, State and Federal
Governments, and all subdivisions and agencies thereof, and the New York Fire
Insurance Exchange, the New York Board of Fire Underwriters, and of any fire
insurance rating organization, and of all other departments, bureaus,
officials, boards and commissions with regard to the premises or the use
thereof by the Tenant, provided that the Tenant shall not be required to make
alterations or additions to the premises, except where the same are required
by reason of the nature of the Tenant's use of the premises, the manner in
which it business is carried on in the premises or a failure on the part of
the Tenant to conform to the provisions of this lease. The Tenant will not
permit the maintenance of any nuisance upon the premises or permit its
employees, licensees or visitors to do any illegal act therein, or in and
about the building. If any such law, ordinance, regulation or requirement
shall not be promptly complied with by the Tenant, then the Landlord may
after providing Tenant with ten (10) days prior notice, at its option, enter
upon the premises to comply therewith, and should any fine or penalty be
imposed for failure to comply therewith or by reason of any such illegal act,
the Tenant agrees that the Landlord may, at its option, pay such fine or
penalty, which the Tenant agrees to repay to the Landlord, with interest from
the date of payment, as additional rent.
SIXTH: COMPLIANCE WITH LANDLORD'S RULES. The Tenant and the Tenant's
employees, and any other persons subject of the control of the Tenant, shall
well and faithfully observe all the rules and regulations annexed hereto, and
also any and all reasonable rules and regulations affecting the premises, the
building or the equipment, appurtenances, facilities and services thereof,
hereafter promulgated by the Landlord. The Landlord may at any time, and from
time to time, prescribe and regulate the
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placing of safes, machinery, quantities of merchandise and other things, and
regulate which elevator and entrance shall be used by the Tenant's employees,
and for the Tenant's shipping; and may make such other and further rules and
regulations as in its reasonable judgment may, from time to time, be needed
or desirable for the safety, care or cleanliness of the building and for the
preservation of good order therein.
The type and location of the Tenant's trade machinery and equipment is
indicated on Exhibit "M" hereto and the Landlord approves the location of such
machinery and equipment.
SEVENTH: PLATE GLASS. [Intentionally Omitted]
EIGHTH: CARE OF SIDEWALKS. [Intentionally Omitted]
NINTH: LANDLORD'S ACCESS TO THE PREMISES. (a) The Tenant shall, without
in any way affecting the Tenant's obligations hereunder, and without
constituting any eviction, permit the Landlord and its agents: (i) during
regular business hours on reasonable prior notice; to enter the premises and
have access thereto, for the purpose of inspecting or examining them during
regular business hours on reasonable prior notice; (ii) to enter the premises
to make repairs and alterations, and to do any work on the premises and any
work in connection with excavation or construction on any adjoining premises
or property (including, but not limited to, the shoring up of the building)
and to take in any of the foregoing instances, any space needed therefor; and
(iii) during the six months preceding the termination hereof, to place and
maintain thereon the usual "for rent" notices. The Tenant shall permit the
Landlord to erect and maintain ducts, pipes and conduits in and through the
premises, provided such are "boxed-in". In the exercise of the rights of the
Landlord reserved under clause (ii) or under the next preceding sentence of
this subdivision (a) of Article Seventh the Landlord will do so in a manner
which minimizes the interference with the Tenant's use of the premises so far
as practicable and where ducts, pipes or conduits are to be erected through
the premises will locate them along walls or ceilings wherever practicable.
The Landlord will exercise its rights under the preceding sentence in a
manner which will no unnecessarily interfere with the operation of the
Tenant's business or disfigure or impair the usefulness of the premises.
(b) If the Tenant or an officer or authorized employee of the Tenant
shall not be personally present to open and permit an entry into said
premises, at any time, when for any reason an entry therein shall be
necessary or permissible hereunder, the Landlord or the Landlord's agents,
may, in the case of an emergency of the Tenant's repeated refusal to grant
the Landlord access, enter the same by a master key, or may forcibly enter
the same without rendering the Landlord or such agents liable therefor (if
during such entry the Landlord shall accord reasonable care to the Tenant's
property) and without in any manner affecting the obligations and covenants
of this lease and in no event shall any such entry by the Landlord or its
agents be deemed an acceptance of a surrender of this lease, either expressed
or implied, nor a waiver by the Landlord of any covenant of this lease on the
part of the Tenant to be performed.
TENTH: ELECTRIC CURRENT; LIVE STEAM. (a) Electric current is to be
supplied by the Landlord. The Tenant covenants and agrees to purchase the
Tenant's requirements therefor at the premises from the Landlord or the
Landlord's designated agent at 110% of the rates set forth in the rate
schedule of Consolidated Edison Company of New York, Inc. applicable to the
building (or the conjunctional group in which the building is included), plus
any sales or use tax or other governmental charge or levy; provided, however,
that if such rate schedule includes any adjustment for time-of-day for either
demand or consumption, the rate applicable to the Tenant's demand for and
consumption of electricity, shall be
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that specified for the peak period. The calculation of the rate shall
include the effect of all direct and indirect charges which affect the cost
of the electricity, including without limitation, consumption charges, demand
charges and fuel cost escalation charges. In the event that the Tenant is
required to pay New York City or New York State tax on any amount payable
pursuant to this paragraph (a), then the amount payable by the Tenant
hereunder for electricity shall be reduced by the amount of such taxes;
provided, however, that in the event that the Landlord continues to own the
building, in no event shall such amount, as so reduced, be less than 105% of
the rates set forth in the rate schedule of Consolidated Edison Company of
New York, Inc. applicable to the building.
(b) Where more than one meter measures the service of the Tenant in
the building, the service rendered through each meter may be computed and
billed separately in accord with the rates herein provided for. No current
shall be furnished until the equipment of the Tenant has been approved by the
proper authorities, and after such approval, no changes shall be made in such
equipment which would cause an increase in consumption beyond the capacity
available to the premises. The Tenant shall pay, upon demand, the bills for
electric current furnished and the use of meters. The Tenant shall comply
with such rules, regulations and contract provisions as are customarily
prescribed by public service corporations supplying such services, for
consumption similar to that of the Tenant. Landlord shall repair and
maintain all risers, feeders and other electrical equipment used to supply
electricity to the tenants in the building generally and to replace same at
its own expense when necessary.
(c) Provided electrical service is discontinued to all tenants in the
building, The Landlord may discontinue the supply of electric current under
subdivision (a) at any time on sixty (60) days' notice to the Tenant without
being liable to the Tenant therefor or without in any way affecting this
lease or the liability of the Tenant hereunder or causing the diminution of
rent, and the same shall not be deemed to be a lessening or diminution of
services within the meaning of any law, rule, or regulation now or hereafter
enacted, promulgated, or issued. Should the Landlord give such notice of
discontinuance, the Tenant shall make the Tenant's own arrangements to
receive such service direct from such public utility corporation serving the
building and the Landlord shall permit the Landlord's wires, conduits and
meters, to the extent to which they are safely available for such use and
to the extent to which they may be used under any applicable governmental
regulations or the regulations of such public utility, to be used for the
purpose. Should any additional or other wiring, conduits, meters or any
other or different distribution equipment be required in order to permit the
Tenant to receive such service directly from the public utility, the same
will be installed as the Landlord shall elect, either by the Landlord, at the
sole cost and expense of the Tenant, or by the Tenant at the Tenant's sole
cost and expense, except that the Landlord shall pay any fee required to
permit the building to be connected to the electrical distribution system of
Consolidated Edison. In the case of central distribution equipment which is
used in connection with the distribution or metering of current supplied to
the Tenant and other tenants of the building, and which is required to be
installed under governmental regulations or the regulation of such utility,
the cost of installation thereof will be prorated among the several tenants,
serviced through the distribution facility in the proportion which their
average consumption of electric current over the next preceding period of not
less than six months' duration bears to the total consumption of electric
current by all tenants during such period, and the Tenant shall pay to the
Landlord the Tenant's share of such cost of installation, apportioned as
above, within ten (10) days following receipt of a statement showing the cost
of the distribution equipment and the manner in which the cost has been
allocated to the Tenant. Should the supply of electric current by the
Landlord be discontinued, but
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not as a result of the Landlord's election to discontinue the supply of
current, then the Tenant shall, at the Tenant's expense, install all wiring,
metering and distribution facilities which are required in order to permit
the Tenant to purchase the Tenant's requirements for electric current for the
premises from such utility and may discontinue the use of the Landlord's
electric wires, cables, meters and distribution facilities. All such
facilities installed by the Tenant shall be installed in a workmanlike way
which complies with applicable governmental regulations and the regulations
of the public utility. The Landlord will in any such case permit any
pipe-chases or channels available in the building to be used by the Tenant for
the Tenant's cables and conduits, to the extent that the same may be
available and may be safely used for the purpose.
(d) The Landlord shall not in any way be liable or responsible to the
Tenant for any loss or damage or expense which the Tenant may sustain or
incur if either the quantity or character of electric service is changed or
is no longer available or suitable for the Tenant's requirements, provided
such is not caused by any action of the Landlord, nor shall the Landlord be
in any way responsible for any interruption of service due to breakdowns,
repairs, malfunction of electrical equipment or any other cause relating to
electrical service which is beyond the Landlord's reasonable control.
(e) If there be any facilities for the supply of live steam in the
building, such steam shall be supplied to the Tenant only if separate
agreements are made therefor and pursuant to such arrangements. In the event
that such separate agreements shall be made, the appropriate provisions of
this Article Tenth shall be applicable thereto.
ELEVENTH: CONDEMNATION AND DEMOLITION. If the premises or any part
thereof shall be taken or condemned for any public or quasi public use, this
lease and the term hereby granted shall terminate on the date when title
vests in the condemnor and the Tenant shall have no claim for the value of
any unexpired portion of the term of the lease. If any other part of the
building shall be so taken and such taking shall, in the judgment of the
Landlord, make the operation of the building impractical, unprofitable or
uneconomical (even though no part of the premises be taken), the Landlord
may, at its option, give to the Tenant, at any time after the vesting of
title and prior to the actual taking of possession, thirty (30) days' notice
of intention to terminate this lease, and upon the date designated in such
notice, this lease and the term hereby granted shall terminate. In no event
shall any condemnation award be apportioned, and the Tenant hereby assigns to
the Landlord all right and claim to any part of such award, but the rent, and
all other sums payable by the Tenant, shall be apportioned as of the date of
any such termination of this lease, provided that nothing contained in the
foregoing portion of this Article Eleventh shall be deemed to prevent the
Tenant's making claim for and retaining an award for the damage to or loss of
value of its trade fixtures, unexpired term of the lease, or from making
claim for and retaining any award which may be made to the Tenant for
Tenant's moving expenses if, and to the extent that, the award to be claimed
and retained by the Tenant is independent of and does not result in a
diminution of the award to the Landlord for the taking of the land, building
and the Landlord's other property.
TWELFTH: MECHANIC'S LIENS. The Tenant will not permit, during the
term hereby granted, any mechanic's or other lien or order for payment of
work, labor, services, or materials furnished or to be furnished to Tenant to
attach to or affect the premises or any portion thereof, and agrees that no
such lien or order shall under any circumstances attach to or affect the fee,
leasehold or other estate of the Landlord herein, or the building. The
Tenant's obligation to keep the premises in repair, and any right of the
Tenant to make alterations therein, and the Landlord's consent to
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make any alterations or improvements, shall not be construed as the
permission, consent or request of the Landlord to the furnishing of any such
work, labor or materials within the meaning of any present or future lien
law. Notice is hereby given that the Tenant has no power, authority or right
to do any act or to make any contract which may create, or be the foundation
for, any lien upon the fee or leasehold estate of the Landlord in the
premises or upon the land or buildings of which they are a part of the
improvements now erected or hereafter to be erected upon the premises or the
land or building of which the premises are a part; and if any such mechanic's
or other lien or order shall be filed against the premises or the land or
building of which the premises are a part, the Tenant shall, within thirty
(30) days thereafter, discharge said lien or order by payment, deposit or by
bond fixed in a proper proceeding according to law. If the Tenant shall fail
to take such action, or shall not cause such lien or order to be discharged
within thirty (30) days after receipt of notice of the filing thereof, the
Landlord may pay the amount of such lien or discharge the same by deposit or
by bond or in any other manner according to law, and pay any judgment
recovered in any action to establish or foreclose such lien or order, and any
amount so paid, together with the expenses incurred by the Landlord,
including all attorneys' fees and disbursements incurred in any defense of
any such action, bonding or other proceeding, shall be deemed additional rent.
THIRTEENTH: SUBORDINATION. (a) This lease, and all the rights of the
Tenant hereunder, are and shall be subject and subordinate to any and all
mortgages or liens, now existing or hereafter created, either in whole or in
part on the building, or the land on which it stands, and also to any and all
other mortgages covering other lands or lands and buildings, which may now or
hereafter be consolidated with any mortgage or mortgages upon the building
and the land on which it stands or which may be consolidated and spread to
cover the building and such land and any such other lands or lands and
buildings, and any extension, renewal or modification of any such mortgages,
and to any and all underlying leases of record, or hereafter to be recorded,
against the building or the land on which it stands, and any extensions,
renewals or modification hereof.
The Landlord represents that the building and the land on which it is
located are not subject to the lien of any mortgage or to any underlying
ground lease. The Landlord shall obtain from any future mortgagee or from
any future lessor of any underlying lease, an agreement to the effect that,
so long as the Tenant shall not be in default under the terms of this lease,
the Tenant shall not be made party to any proceeding to foreclose the
mortgage or to terminate the underlying lease; and that the Tenant's
possession of the premises under the term of this lease, shall not be
terminated or disturbed as a result of the foreclosure of any mortgage or
termination of any underlying lease. The Tenant agrees it will execute any
agreement consistent with the foregoing provisions which may be required to
confirm the subordination of this lease subject to the non-disturbance
provisions above outlined. In any such agreement the The Tenant shall agree
that, in the event that the mortgagee shall succeed to the rights of the
Landlord herein named, or if any Landlord of any underlying lease shall
succeed to the position or the Landlord under this lease, then the Tenant
will recognize such successor Landlord as the Landlord of this lease and pay
the rent and attorn to and perform the provisions of this lease for the
benefit of any such successor Landlord.
FOURTEENTH: CERTIFICATE OF OCCUPANCY. The Tenant shall immediately
discontinue any use of the demised premises, which may, at any time, be
claimed or declared by the City or State of New York or other governmental
authority to be in violation of or contrary to the certificate of occupancy
of the building, or by reason of which any attempt may be made to penalize
the Landlord or require the Landlord to secure any certificate of occupancy
other than the one, if any, now issued for the building.
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FIFTEENTH: VAULTS. Landlord represents and warrants to Tenant that
the premises do not include any vault space, and Tenant shall not be
responsible for the payment of any vault charge or tax, if any, imposed by
any governmental authority.
SIXTEENTH: LIQUORS. Neither the Tenant nor any occupant of the
premises or of any part thereof shall at any time during the continuance of
the term, sell, traffic in, expose for sale, dispense or give away, upon any
part of the premises, any strong or spirituous liquor, wine, ale or beer, or
take or have a license for such sale. The provisions of this Article
Sixteenth will not be deemed violated by a continuation of the Tenant's
practice of affording hospitality to customers employing its printing
services, including the service of alcoholic beverages; it being understood
that there will be no dispensing in any way of alcoholic beverages to any
employees of the Landlord or to any part of the public other than the
customers of the Tenant's printing services.
SEVENTEENTH: FIRE AND FIRE INSURANCE. (a) If the premises shall be
damaged by fire, action of the elements or other casualty or cause which is
within the risks covered by insurance carried by the Landlord, the Tenant
shall give immediate notice thereof to the Landlord, and said damage shall
be repaired by the Landlord, at the Landlord's expense, with all reasonable
speed, making due allowance for delay due to labor troubles, settlement of
loss and other causes beyond the control of the Landlord, and the Tenant
shall, in every reasonable way, facilitate the making of such repairs, and
(unless the fire shall be due to the negligence or other fault of the Tenant
or its employees) the rent (and the additional rent) shall be suspended
during such period as the premises shall have been rendered wholly
untenantable and, in the event that the premises are rendered partially
untenantable, the rent shall be abated during such period, in the proportion
which the area of the premises which is rendered untenantable bears to the
area of the whole premises, but no damage to the premises or the building by
fire, or other cause, however extensive, shall terminate this lease, or give
the Tenant the right to quit and surrender the premises, or impair any
obligation of the Tenant hereunder, except with respect to the payment of
rent (and with respect thereto the extent above provided) and except that (i)
if the damage shall be so extensive that the Landlord shall determine to
demolish or substantially alter the building, the Landlord may at any time
within thirty (30) days following the occurrence of the damage give to the
Tenant thirty (30) days' notice of intention to terminate this lease; (ii) if
the damage to the premises is substantial so that the whole or substantially
the whole of the premises is rendered untenantable by the Tenant and the
Landlord does not repair the damage to the premises and, in fact, commence
repair within thirty (30) days of such notice so that the premises are again
usable by the Tenant within a period of not more than 120 days following the
occurrence of the damage subject to delays due to causes of the kinds described
in Article Thirty-Fourth of this lease, the Tenant may cancel this lease by
notice given within ten (10) days following the expiration of the said
30-day period for the Landlord's notice of election to repair. If notice of
election to terminate this lease shall be given as above provided, then, upon
the date for termination designated in any such notice this lease and the
term hereby granted shall terminate and the rent shall be apportioned as of
the date of the damage or as of such later date as the Tenant may actually
surrender possession. Nothing herein contained shall be deemed to obligate
the Landlord to restore the Tenant's trade fixtures, stocks, furnishings or
other property remaining the property of the Tenant.
(b) The Tenant further agrees not to permit any act to be done or
anything brought into or kept upon the premises which will void or avoid the
insurer's liability under any contract of fire insurance on the building or
its contents or increase the rate of insurance upon the building. Should the
fire insurance rate on the building be increased beyond the present rate, by
reason of
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Tenant's failure to comply with the terms hereof, the Tenant agrees to pay to
the Landlord, on demand, the additional cost of such insurance, or, at the
option of the Landlord, the same may be added to any installment of rent and
be payable as additional rent. The schedule of the makeup of a rate issued
by an authorized rating organization shall be conclusive evidence of the
facts therein stated and of the items in the rate applicable to the premises.
(c) The Landlord, as to the premises, and the Tenant, as to the
improvements made therein at the Tenant's expense and all of the Tenant's
stock, trade fixtures and other property in the premises, hereby release one
another from all liability for any loss or damage caused by fire or any of
the risks enumerated in standard extended coverage insurance. This release
is conditioned upon the inclusion in their respective policies of insurance
of a provision stating that such release shall not adversely affect said
policies or prejudice any right of the insured to recover thereunder. The
Landlord and Tenant agree that their respective insurance policies will
include the aforesaid provision so long as the same is obtainable without
extra cost or if extra cost be charged, so long as the party for whose
benefit the clause is obtained shall pay such extra cost. If extra cost
shall be chargeable therefor the party so affected shall advise the other
thereof and of the amount of the extra cost and the other party at its
election may pay the same or decline to so pay in which event the release
from liability given to said party by this Article Seventeenth (c) shall be
deemed to be withdrawn and of no force and effect.
(d) The parties hereto shall each use their best efforts to procure
and maintain in force and effect an appropriate clause in, or endorsement on,
any fire or extended coverage insurance covering the demised premises and the
building and the personal property, fixtures and equipment located therin or
thereon, pursuant to which the insurance companies waive subrogation,
provided such waiver is procurable without additional premium, and, having
obtained such clause or endorsement of waiver or subrogation, every party
hereby agrees that it will not make any claims against or seek to recover
from the other for any loss or damage to its property or of others, covered
by such fire and extended coverage insurance; provided, however, that the
release, discharge, exoneration and covenant not to sue herein contained
shall be limited to the terms and provisions of the waiver of subrogation
clauses and/or endorsements and shall be co--extensive therewith. If such
waiver of subrogation shall be procurable only by payment of an additional
premium therefor, notice of such requirement shall be furnished to the other
party and if such other party fails to pay such additional premium, then the
provisions hereof shall not be applicable to such other party.
EIGHTEENTH: CHANGE IN USE OF PREMISES, SUBLETTING AND ASSIGNMENT. (a)
The use to be made of the premises by the Tenant and the identity of the
Tenant being among the inducements to the making of this lease by the
Landlord, the Tenant shall not, except in accordance with the terms of this
Article, (i) use or permit the premises or any part thereof to be used for
any purposes other than those specified in the lease, (ii) sublet or underlet
the premises or any part thereof, (iii) permit the premises or any part
thereof to be occupied by anyone other than the Tenant or it officers or
employees, (iv) mortgage or encumber; this lease or any interest therein, (v)
assign or transfer, by operation of law or otherwise, this lease or any
interest therein.
(b) The Tenant shall not, without having first obtained the Landlord's
prior written consent thereto, (i) use or permit the premises or any part
thereof to be used for any purposes other than those specified in the lease,
or (ii) mortgage or encumber this lease or any interest therein. The Landlord
agrees that if, in connection with a proposed assignment of the lease or
subletting of the premises, the Tenant requests a change in the purposes for
which the premises may be used, the Landlord will not unreasonably
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withhold its consent, bearing in mind that the Landlord is a religious
institution..
(c) The Tenant shall not, except in accordance with the provisions of
paragraphs (d) through (l) of this Article, (i) assign or transfer, by
operation of law or otherwise, this lease or any part therein, (ii) sublet or
underlet the premises or any part thereof, or (iii) permit the premises or
any part thereof to be occupied by anyone other than the Tenant or its
officers or employees.
(d) If the Tenant shall desire to assign this lease or to sublet the
whole or any part of the premises or to permit the premises to be occupied by
any person other than the Tenant, the Tenant will notify the Landlord as to
(i) the action which the Tenant proposes; (ii) the portion of the premises
with respect to which the Tenant proposes to take such action (the "Affected
Premises"); (iii) the name and business address of the proposed assignee,
sublessee or occupant (the "Proposed Undertenant"), (iv) the name and
residence address of the officers and principal stockholders of the Proposed
Undertenant, if a corporation is involved or the names and residence
addresses of the general partners thereof if a partnership or joint venture
is involved; (v) the information, in reasonable detail, as to the Proposed
Undertenant which is required to permit the Landlord to make the
determinations described in paragraph (h) below; (vi) the terms upon which
the Tenant proposes to assign this lease or sublet the premises or permit the
premises to be occupied by the Proposed Undertenant (including the terms
under which any additions, alterations or decorations are to be made to the
Affected Premises and the terms on which the Proposed Undertenant is to buy
or lease any fixtures, leasehold improvements, equipment, furniture,
furnishings or other personal property from the Tenant; and (vii) the name
and address of any real estate broker or other person to whom a commission
may be owed by any person in connection with such assignment, subleasing or
occupation. (The Tenant's notice of desire to assign, sublease or permit
occupancy of the Affected Premises by others, with the information prescribed
above is hereafter referred to as a "Tenant's Subleasing Notice").
(e) By written notice executed by the Landlord and delivered to the
Tenant within thirty (30) days following receipt of the Tenant's Subleasing
Notice (for the purposes hereof such notice shall not be deemed to have been
received by the Landlord until all of the information required by paragraph
(d) above shall have been furnished to the Landlord), the Landlord shall and
if the Landlord fails to respond in such 30 day period, the Landlord will be
deemed to have consented to the subletting or assignment requested by the
Tenant.
(f) In the event of a proposed assignment of this lease or the
subleasing or occupation of the entire premises subject to this lease for the
then remaining balance of the term of this lease, (i) the Landlord may elect
to require the Tenant to surrender the premises to the Landlord and terminate
this lease with respect to the premises on the last day of the second
complete calendar month following the Tenant's Subleasing Notice and comply
with the provisions of this lease respecting surrender at the end of the term
not later than such date or (ii) the Landlord may give its consent to any
such assignment, sublease or occupation. Any subletting or occupancy by a
third party as a consequence of which 25% or less in an area of the Premises
shall remain in occupancy by the Tenant herein named may, at the Landlord's
option, be considered a subleasing of the whole of the Premises. The Landlord
will not elect to require the Tenant to surrender the premises and will not
unreasonably withhold its consent to an assignment or subleasing proposed by
the Tenant in connection with the sale of all or substantially all of the
business operations and assets of the Tenant.
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(g) In the event of a proposed subleasing or occupation of all or any
portion of the premises subject to this lease for the then remaining balance
term of this lease, (i) the Landlord may elect to require the Tenant to
surrender to the Landlord and vacate the Affected Premises not later than the
date upon which the proposed subleasing or occupation is proposed to commence
and comply on such date with the provisions of this lease as to surrender at
the expiration of the term with respect to the Affected Premises, and the
Tenant shall, at its expense, erect the partitioning required to separate the
Affected Premises from the remainder of the premises, create any doors
required to provide an independent means of access to the Affected Premises
from elevators and lavatories and to segregate the wiring and meters and
electric current facilities, so that the Affected Premises may be used as a
unit for commercial purposes, separate from the remainder of the premises
remaining in occupation of the Tenant; in which event the rent and all
additional rent payable under this lease shall be reduced proportionately
with the diminution in the area of the premises upon surrender of the
Affected Premises; or (ii) the Landlord may give its consent to any such
sublease or occupation.
(h) In the case of an assignment or subletting, the Landlord shall be
under no obligation to consent thereto or to select one of the alternatives
set forth in paragraph (f) above, unless the Landlord's investigation of the
financial standing of the proposed assignee discloses that there is no reason
to doubt the financial ability of the assignee to carry out its obligations
under this lease for the balance of the term and the Landlord's investigation
of the manner in which the proposed assignee conducts its business indicates
that the assignee will conduct its business in the premises in conformity
with the requirements of this lease or that there will be no interference
with the orderly conduct of their business and the enjoyment of their
premises by other tenants in the building. In the case of a sublease or
occupation, the Landlord shall be under no obligation to consent thereto or
select one of the alternatives set forth in paragraph (f) or (g) above, as
the case may be, unless the Landlord's investigation of the nature of the
business of the proposed sublessee or occupant or the manner in which the
proposed sublessee or occupant will conduct such business indicates that
there is no reason to doubt that such business will be conducted in
conformity with the requirements of this lease and that the use of the
premises by the proposed sublessee or occupant will not result in damage to
or deterioration of the premises or the building, or interfere with the
orderly conduct of their businesses and the enjoyment of their premises by
other tenants in the building. The Landlord shall be under no obligation to
consent to any assignment of this lease or any subletting or occupation of
the premises to or by any person other than the Tenant unless the criteria
set forth in this paragraph are satisfied. In the event of any assignment or
subleasing, the Landlord will not unreasonably withhold its consent to any
requested change in uses applicable to the premises, bearing in mind that the
Landlord is a religious organization and, as such may consider certain uses
inappropriate.
(i) If the Landlord's Subleasing Notice shall be to the effect that the
Landlord elects that the Affected Premises be surrendered, then the Affected
Premises shall be surrendered in accordance with clause (i) of paragraph (f)
or (g) above, as the case may be, and any work required to be done to
separate the Affected Premises from the remainder shall be commenced promptly
following the Tenant's receipt of the Landlord's Subleasing Notice and
carried on with diligence and conformity.
(j) No consent given by the Landlord shall be deemed to permit any act
except the act to which it specifically refers, or to render unnecessary any
subsequent consent, and any assignment or subletting of the premises shall
not relieve the Tenant or any mesne assignee from any obligations, duty or
covenant under this lease, and in all cases a violation of any of the
covenants or
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duties or obligations under this lease by a subtenant or assignee shall, in
addition, be deemed to be the act of the Tenant herein. No assignment,
transfer, mortgage, encumbrance, subletting or arrangement in respect of
the occupancy of the premises shall create any right in the assignee,
transferee, mortgagee, subtenant or occupant, unless the consent of the
Landlord shall first have been obtained, and unless, if an assignment is
involved, the transferee or assignee shall have delivered an agreement duly
executed by the assignee shall have delivered an agreement duly executed by
the assignee or transferee wherein the assignee or transferee assumes and
agrees to pay or otherwise keep and perform the obligations of the Tenant in
this lease or, if a sublease is involved wherein the sublessee agrees that
any act or omission by the sublessee which, if performed or omitted by the
Tenant under this lease would be a default thereunder shall also be a default
under the provisions of the sublease. Any assignee by accepting an assignment
shall nevertheless be conclusively deemed to have assumed this lease and all
obligations already accrued or to accrue thereunder and further to have
agreed to fully and duly perform all the Tenant's covenants herein contained.
If the Tenant shall, at any time, be in default in the payment of rent after
applicable notice, the Landlord shall have the right to collect rent from any
assignee, undertenant or occupant, and credit the same to the account of the
Tenant, and no such collection shall constitute a waiver of the foregoing
covenant or the acceptance of anyone other than the Tenant, as Tenant or
shall otherwise release, impair or otherwise affect any obligation of the
Tenant under this lease. Immediately following the execution and delivery of
any assignment of this lease or any subleasing of the premises or an
agreement as to the occupancy thereof, the Tenant will furnish a duplicate of
the instrument in question to the Landlord.
(k) Subject to paragraphs (j) and (l) of this Article and to continued
compliance with Article First of this lease, the Tenant is authorized to
sublease portions of the premises to a subsidiary corporation or corporations
or to a corporation or other entity affiliated with the Tenant, without
compliance with the provisions of paragraph (c) through (g) of this Article.
A subsidiary corporation shall mean and include a corporation of which the
Tenant owns and holds at least a majority of each class of stock which is
authorized to vote at the time when the sublease is executed. An affiliated
corporation shall mean and include a corporation which is owned and
controlled by the corporation which owns and controls the Tenant by ownership
of at least a majority of each such class of stock. Before making any
sublease to any such subsidiary or affiliated corporation, the Tenant shall
certify to the Landlord the manner in which such subsidiary or affiliated
corporation is related to and controlled by the Tenant and the purposes for
which the subleased premises will be used.
(l) Anything herein to the contrary notwithstanding, the Tenant may not
assign this lease or sublet or permit the occupancy by any other party of all
or any part of the demised premises at any time when the Tenant has not paid
any rent and additional rent when it is payable. The Tenant shall furnish the
Landlord with a counterpart (which may be a conformed or reproduced copy) of
each sublease, assignment or agreement of occupancy made hereunder within ten
(10) days after the date of its execution. Tenant shall remain fully liable
for the performance of all of Tenant's obligations hereunder notwithstanding
anything provided for herein, and without limiting the generality of the
foregoing, shall remain fully responsible and liable to Landlord for all acts
and omissions of any subtenant, assignee or occupant or anyone claiming under
or through any such person which shall be in violation of any of the
obligations of this lease and any such violation shall be deemed to be a
violation by Tenant. Tenant shall pay Landlord on demand any expense which
Landlord may reasonably be required to incur in acting upon request for
consent pursuant to this Article.
(m) Notwithstanding anything else in this Article, the Landlord shall
have the right to condition its consent to any
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proposed sublease of all or a portion of the premises on the following:
(i) The Tenant shall not be in default in the payment of rent or
the performance of any other of its obligations under this lease.
(ii) The Tenant shall have delivered to the Landlord a Tenant's
Subleasing Notice as required by Subparagraph (d) above.
(iii) The Tenant shall have complied with the provisions of
paragraphs (j) and (l) of this Article.
(iv) The Tenant shall grant the Landlord a security interest in the
sublease and the rents payable thereunder and shall take all necessary
steps required to perfect such security interest.
(v) The sublease shall include a provision to the effect that if
the Landlord shall notify the sublessee that the Tenant is in default in
the payment of rent or the performance of its other obligations under this
lease the sublessee shall, if so requested by the Landlord pay all rent and
other amounts due under the sublease directly to the Landlord.
(n) At the request of the Landlord, the Tenant will furnish to the
Landlord, within ten (10) days of receipt of a request therefor, a
certificate executed in the name and on behalf of the Tenant, confirming
that, except as previously consented to in writing by the Landlord or as
otherwise specifically set forth in such certificate, the Tenant has not (i)
used or permitted the premises or any part thereof to be used for any
purposes other than those specified in this lease, (ii) mortgaged or
encumbered this lease or any interest therein, (iii) assigned or transferred,
by operation of law or otherwise, this lease or any interest therein, (iv)
sublet or underlet the premises or any part thereof, or (v) permitted the
premises or any part thereof to be occupied by anyone other than the Tenant
or its officers or employees. With respect to any exception to clauses (i)
through (v) above which the Landlord has not previously consented to in
writing, the Landlord in its sole discretion, may either consent thereto
(which consent may be subject to any conditions specified by the Landlord) or
exercise the rights and remedies available to the Landlord under the terms of
this lease.
(o) Notwithstanding anything to the contrary herein, provided that the
Tenant complies with the other provisions of this Article Eighteenth, the
Tenant shall have the right to enter into a sublease with Four Color Litho,
Inc. relating to a portion of the premises on the 10th floor all of which
portion shall be contiguous and the aggregate areas of such portions shall
not exceed 3,878 sq. ft., as hatched in red on the diagram attached hereto
and marked Exhibit "F", then in each such case, the Landlord shall not have
the right, as provided in clause (i) of paragraph (g) of this Article, to
require the Tenant to surrender the portion of the premises in question.
NINETEENTH: WAIVER AND SURRENDER; REMEDIES CUMULATIVE. No consent or
waiver of any provision hereof or acceptance of any surrender shall be
implied from any act or forbearance by the Landlord. No agreement purporting
to accept a surrender of this lease, or to modify, alter, amend or waive any
term or provision thereof, shall have any effect or validity whatever, unless
the same shall be in writing, and executed by the Landlord and by the Tenant,
and be duly delivered, nor shall the delivery of any keys to anyone have any
legal effect, any rule or provision of law to the contrary notwithstanding.
Any consent, waiver or acceptance of surrender, in writing, and properly
executed and delivered as aforesaid, shall be limited to the special instance
for which it is
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given, and no superintendent or employee, other than an officer of the
Landlord or of its managing agent, and no renting representative shall have
any authority to accept a surrender of the premises, or to make any agreement
or modification of this lease, or any of the terms and provisions hereof. No
provision of any lease made by the Landlord to any other tenant of the
building shall be taken into consideration in any manner whatever in
determining the rights of the Tenant herein. No payment by the Tenant or
receipt by the Landlord of a lesser amount than the monthly rent herein
stipulated shall be deemed to be other than on account of the stipulated
rent, nor shall any endorsement on any check, nor any letter accompanying
any such payment of rent, be deemed an accord and satisfaction (unless an
agreement to accept a lesser amount be signed by the Landlord), but the
Landlord may accept such payment without prejudice to the Landlord's full
right to recover the balance of such rent to institute summary proceedings
therefor. The receipt by the Landlord of any rent, or additional rent or of
any other sum of money which may be payable under this lease, or of any
portion thereof, shall not be deemed a waiver of the right of the Landlord to
enforce the payment of any sum of any kind previously due or which may
thereafter become due under this lease, or of the right to forfeit this lease
by such remedies as may be appropriate, or to terminate this lease or to
exercise any of the rights and remedies reserved to the Landlord hereunder,
and the failure of the Landlord to enforce any covenant or condition
(although the Tenant shall have repeatedly or continuously broken the same
without objection from the Landlord) shall not stop the Landlord at any time
from taking any action with respect to such breach which may be authorized by
this lease, or by law, or from enforcing said covenant or any other covenant
or condition on the occasion of any subsequent breach or default. In the
event of any continuing breach by the Tenant, the Landlord shall have the
right of injunction. The various rights, remedies, powers and elections of
the Landlord, as provided in this lease or created by law, are cumulative,
and none of them shall be deemed to be exclusive of the others, or of such
other rights, remedies, powers or elections as are now or may hereafter be
conferred upon the Landlord by law.
TWENTIETH: REPRESENTATIONS AS TO PREMISES, CERTIFICATE OF OCCUPANCY AND
USE. The Tenant represents to the Landlord that the Tenant has made, or
caused to be made, a careful inspection of the premises and that the Tenant
has made an examination of the certificate of occupancy of the building and
that the area and present condition of the premises are in all respects
satisfactory to the Tenant, except (if at all) as may herein otherwise be
expressly stated in the memorandum of repairs or decorations to be done by
the Landlord attached to this lease, and that the Tenant has determined that
the use of the premises, as set forth in this lease, is consistent with the
uses permitted under the certificate of occupancy. The Tenant acknowledges
that no representations or promises have been made by the Landlord or the
Landlord's agents with respect to the premises or the building or the
certificate of occupancy thereof, except as in this lease set forth. The
statements contained in this lease regarding the use of the premises by the
Tenant shall not be deemed a representation or warranty by the Landlord that
such use is lawful or permitted by the certificate of occupancy of the
building.
TWENTY-FIRST: LIMITATIONS OF LANDLORD'S LIABILITY. (a) The Tenant shall
make no claim upon the Landlord for abatement of rent, constructive eviction,
rescission, or otherwise, and the Landlord shall be exempt from all
liability, except for injuries to the Tenant's person or property which are
due to the negligence of the Landlord, its agents, servants or employees in
the management of the premises or the real property of which the demised
premises are a part, for or on account of any annoyance, inconvenience,
interference with business, or other damage, caused by: (i) any interruption,
malfunction or curtailment of the operation of the elevator service, heating
plant, sprinkler system, gas, water,
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sewer or steam supply, plumbing, machinery, electric equipment or other
appurtenances, facilities, equipment and conveniences in the building,
whether such interruption, malfunction or curtailment be due to breakdowns,
or repairs, or strikes or inability to obtain electricity, fuel or water due
to any such cause or any other cause beyond the Landlord's control; (ii) any
work of repair, alteration or replacement done by or on behalf of the
Landlord or the Tenant, pursuant to the provisions of this lease; (iii) any
water, rain, snow, steam, gas, electricity or other element, which may enter,
flow from or into the premises or any part of the building, or any noise or
vibration audible in, or transmitted to, the premises; (iv) any vermin; (v)
any falling paint, plaster or cement; (vi) any interference with light or
with other easements or incorporeal hereditaments; (vii) any latent defect or
deterioration in the building or the appurtenances thereof, whether or not
the Landlord shall have been notified of any condition allegedly causing
same; (viii) any zoning ordinance or other acts of governmental or public
authority now or hereafter in force; and (ix) any act or omission of any
other occupant of the building or other person temporarily therein. The
Tenant will not hold the Landlord liable for any loss or theft of, or damage
to, any property in the premises done or caused by any employee, servant, or
agent of the Landlord who is invited into the premises by the Tenant, nor for
the loss, damage or theft of any property stored or left in the basement or
in any other part of the building, which is not enclosed within the premises
or of any property, left with any employee of the Landlord, notwithstanding
such theft, loss or damage may occur through carelessness or negligence of
the Landlord's employees; and the Tenant agrees that any employee in entering
the premises at the invitation of the Tenant or accepting custody of property
shall be then deemed the agent of the Tenant or other person at whose
instance he may be acting, and not the agent of the Landlord. Employees are
not permitted to receive or accept packages or property for account of
Tenants. Storerooms or storage space for personal property (if provided) are
provided gratuitously by the Landlord, and the use of same shall be at the
Tenant's risk and the Tenant will not hold the Landlord liable for any loss
of or damage to person or property therein or thereby. Nothing in this lease
contained shall impose any obligation upon the Landlord with respect to any
real property other than the building, whether said other real property be
owned by the Landlord or otherwise, or shall in any way limited the
Landlord's right to build upon or otherwise use said other real property in
such manner as the Landlord may see fit. The Tenant shall make no claim upon
the Landlord for abatement of rent, constructive eviction or rescission, and
the Landlord shall have no liability by reason of the Landlord's failure to
enforce the provisions of the lease to any other tenant against such other
tenant. Nothing in the preceding sentence shall prohibit the Tenant from
making any claim for physical damage or personal injury which results from
the negligence of the Landlord.
(b) Any right and authority reserved by and granted to the
Landlord under this lease to enter upon and make repairs in the
premises shall not be taken as obligating the Landlord to inspect and to
repair the premises and the Landlord hereby assumes no responsibility or
liability for the care, inspection, maintenance, supervision, alteration or
repair of the premises except as herein specifically provided. The Tenant
assumes possession and control of the premises and exclusively the whole duty
of care and repair thereof, except as herein specifically provided, and the
duty of care, if any, owed by the Tenant to persons on the sidewalk and in
the corridors of the building.
TWENTY-SECOND: INDEMNITY BY TENANT. Subject to Article
Seventeenth, paragraph (c), The Tenant hereby indemnifies and agrees forever
to save harmless the Landlord against any and all liabilities, penalties,
claims, damages, expenses (including attorneys' and counsel fees) or
judgments, arising from injury to person or property of any kind, occasioned
wholly or in part by the Tenant's failure to perform or abide by any of the
covenants of
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this lease or occasioned wholly or in part by any act or acts, omission or
omissions of the Tenant, or of the employees, customers, agents, assigns or
under-tenants of the Tenant, or based on any matter or thing growing out of
the Tenant's use or occupation of the premises or any part of the building.
TWENTY-THIRD: NOTICES. Any notice which is to be given by either
party to the other pursuant to this lease shall be in writing and shall be
given by registered or certified mail, return receipt requested, by deposing
the notice, enclosed in an envelope addressed to the Landlord or Tenant at
its address given in this lease or at the premises, in any United States Post
Office, postage and registry or certification fees prepaid. Any notice shall
be deemed to have been given on the second day after the date when such
notice is deposited in the United States Post Office. All notices, under this
lease shall be in writing.
TWENTY-FOURTH: INSOLVENCY. If, at any time after the execution and
delivery of this lease, the Tenant shall be adjudicated a bankrupt, or if the
Tenant shall make any assignment for the benefit of creditors, or attempt to
take the benefit of any insolvency law, or if a petition or answer to
reorganize the Tenant shall be approved by any court or judge, or if a
petition or answer for a composition or extension shall be filed by the
Tenant, or if a receiver or trustee shall be appointed for the Tenant's
property, or if the Tenant's interest in this lease shall be attached or
levied upon or shall devolve upon or pass to any party other than the Tenant
(whether such event occurs prior to subsequent to the commencement of the
term or Tenant's entry into possession) such event shall be conclusively
deemed a default hereunder, and the Landlord shall have the right to
terminate this lease in the manner hereinafter provided, as if such event were
a breach by the Tenant of one of the covenants of this lease. In the event of
such termination, the Tenant or any person claiming under, by or through the
Tenant, by virtue of any statute or of an order of any court, shall not be
entitled to possession or to remain in possession of the demised premises but
shall forthwith quit and surrender same. Exclusive of and in addition to any
other rights or remedies the Landlord may have through any other portion or
provision of this lease or by virtue of any rule of law or statute, said
Landlord may keep and retain, as liquidated damages, any rent, security,
deposit or other moneys or consideration received by the Landlord from the
Tenant, or others on behalf of the Tenant. Also, in the event of termination
of this lease as aforesaid, the Landlord shall be entitled, as and for
liquidated damages from the Tenant for breach of the unexpired term of this
lease, to an amount equal to the difference between the rental value of the
remainder of the term at the time of termination and the actual rent
reserved, both discounted to present worth at the rate of six per cent (6%)
per annum. If at any time within a reasonable period following the date of
the termination of the lease, as aforesaid, the premises should be re-rented
by the Landlord, the rent realized by any re-letting shall be deemed PRIMA
FACIE to be the rental value. In the event of the occurrence of any of the
above-mentioned events of default occasioned solely through the invocation by
the Tenant or by third parties of the laws of the State of New York, judicial
or statutory, as distinguished from the invocation of Federal laws relating
to bankruptcy, reorganization, or otherwise, the Landlord, in addition to the
foregoing, may accelerate the full amount of rent reserved for the remainder
of the lease, and the same shall forthwith become due and payable to the
Landlord. Nothing herein provided shall be deemed to prevent or restrict the
Landlord from proving and receiving as liquidated damages herein the maximum
permitted by any rule of law or statute prevailing when such damages are to
be proved, whether they be greater or less than those referred to above.
TWENTY-FIFTH: REMEDIES OF THE LANDLORD ON DEFAULT, PERFORMANCE.
(a) If the Tenant shall default in the full and due performance of any
covenant of this lease, the Landlord shall have
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the right, upon ten (10) days' notice to the Tenant (unless a shorter period
of notice or provision for the performance of such work without notice is
elsewhere established), to perform the same for the account of the Tenant,
and in such event all workmen employed by the Landlord shall be deemed the
agents of the Tenant, and any reasonable payment made, and expense incurred,
by the Landlord in this connection, shall forthwith become due and payable by
the Tenant to the Landlord. If the Landlord is compelled to incur any
expenses, including reasonable attorneys' fees in instituting, prosecuting or
defending any action or proceeding instituted by reason of any default of the
Tenant hereunder, the sum or sums so paid by the Landlord with all interest,
costs and damages shall be deemed immediately due to the Landlord upon
demand. Any and all sums payable by the Tenant to the Landlord which are
unpaid for ten (10) days following the due date thereafter shall bear
interest at the rate of twelve per centum (12%) per annum from the due date
to the date of actual payment, and any and all such sums (except the rent
hereinabove expressly reserved) shall be deemed to be additional rent for the
period prior to such due date, and the Landlord shall have the same remedies
for default in the payment of such additional rent as for default in the
payment of the rent expressly reserved.
(b) In the event that under the provisions of this lease the
Landlord shall have the privilege of performing any covenant in respect of
which the Tenant may be in default and of recovering the expenses so involved
from the Tenant as additional rent or otherwise, such remedy shall not be the
exclusive remedy of the Landlord but the Landlord may, at its option, treat
such default as a breach of substantial obligation of this lease and shall
have all the other remedies in respect thereof provided in this or any other
Article of this lease.
(c) If the Tenant shall violate or default in the full and due
performance of any covenant, provision or condition of this lease (other than
the covenant to pay the rent or any additional rent), or if any of the events
specified in the Article of this lease numbered Twenty-Fourth and headed
"Insolvency" shall occur, the Landlord will give to the Tenant thirty (30)
days' notice of such violation, default or misconduct. In the event that (i)
the Tenant shall default in the payment of the rent or of any additional
rent, or (ii) in the event that the Tenant, after notice thereof as above
provided, shall fail to stop any violation or fully cure or remedy any
default or terminate any misconduct under this lease (or in the event that
the default is of a nature such that the steps required to cure or remedy the
same fully cannot reasonably be completed within thirty (30) days, then if
the Tenant shall not have commenced and have diligently and continuously
prosecuted the steps necessary to cure or remedy such default) the Landlord
may give to the Tenant fifteen (15) days' notice of its intention to
terminate this lease, and, in such event, on the fifteenth day following the
giving of such notice this lease and the term hereby granted shall terminate
and expire as fully and completely as if that day were the date herein
expressly fixed for the expiration of the term, and the Tenant shall
thereupon quit and surrender the premises into the possession of the
Landlord, but the Tenant shall nevertheless remain liable for deficiency in
future rent and for any other defaults hereunder, as hereinafter provided. If
the Tenant shall default in the payment of the rent, or any additional rent
herein mentioned, or of any part of either, or if this lease shall be
terminated by the notice last above provided for, the Landlord may
immediately, or at any time thereafter, re-enter the premises and remove all
persons and property therefrom, either by summary dispossess proceedings, or
by any suitable action or proceeding at law, or by force, or otherwise,
without being liable to indictment, prosecution or damages therefor, and
re-possess and enjoy the premises, together with all additions, alterations,
installations and improvements, and no entry by the Landlord shall be deemed
an acceptance of surrender. Upon any such re-entry, the Landlord may re-let
the premises or any part or parts thereof, and
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for such term or terms as to the Landlord may seem wise, even though the
same extend beyond the date herein expressly fixed for the expiration of the
term. Any such re-letting shall, at the Landlord's option, be either for the
Landlord's own account, or as the agent for the Tenant. If the Landlord shall
re-let as the agent of the Tenant, the Landlord shall receive the rents and
apply the same, first, to the payment of all expenses which the Landlord
shall have incurred by reason of the Tenant's default and in connection with
such re-entry and re-letting, including, but not by way of limitation, legal
expenses, brokers' commissions, and the cost of reasonable repairs,
redecoration and alterations, and, secondly, to the fulfillment of the
covenants of the Tenant herein contained, and the surplus, if any, existing
at the date herein expressly fixed for the expiration of the term, shall be
paid to the Tenant, but the Tenant shall be entitled to no such payment until
said date. So long as the premises, or any part thereof, shall not be re-let,
or shall be re-let by the Landlord as the agent of the Tenant, the Tenant
shall remain liable for the full and due performance of all the covenants of
this lease, and the Tenant hereby agrees to pay to the Landlord, as damages
for any default hereunder, until the date herein expressly fixed for the
expiration of the term, the equivalent of the amount of all the rent and
additional rent reserved herein, less the net avails of re-letting, as
hereinbefore defined, if any, and the same shall be due and payable by the
Tenant to the Landlord on the several rent days above specified, that is,
upon each of the said rent days the Tenant shall pay to the Landlord the
amount of deficiency then existing, and shall not be entitled to withhold any
such payment until the date herein expressly fixed for the expiration of the
term. In lieu of the foregoing, the Landlord, at its option, shall be
entitled, as and for liquidated damages from the Tenant for breach of the
unexpired term of this Lease, to an amount equal to the difference between
the rental value of the remainder of the term at the time of termination and
the actual rent reserved, both discounted to present worth at the rate of
four percent (4%) per annum. The liability of the Tenant shall survive the
issuance of a final order and warrant of dispossess, and re-entry by the
Landlord, and any other termination of this lease for default of the Tenant,
and the granting by the Landlord of a new lease of the premises to another
tenant, and the Tenant hereby waives any defense which might be predicated
upon any of said acts or events.
The Tenant hereby expressly waives (i) any and all right to regain
possession of said premises or to reinstate or redeem this lease as provided
by the Real Property Actions & Proceedings Law (and as said law may be
amended), or any such right which is or may be given by any other statute,
law or decision now or hereafter in force; (ii) the service of any notice
demanding rent or stating an intention to re-enter; or any similar right
which is or may be given by any statute, law or decision now or hereafter in
force; (iii) any and all rights of redemption and all other rights to regain
possession or to reinstate this lease (in case the Tenant shall be
dispossessed or ejected by, or pursuant to judgment, order, execution or
warrant of any court or judge). Except as provided in Section 259-c of the
Real Property Law with respect to an action for personal injury or property
damage between the parties hereto, the Tenant waives and will waive all right
to trial by jury in any summary proceedings and in any other proceeding or
action at law hereafter instituted by the Landlord against the Tenant in
respect of this lease, and also in any action or proceeding between the
parties hereto for any cause; and it is hereby agreed, that in any of such
events, the matter in dispute shall be tried before a judge without a jury.
In the event the Landlord shall commence any action or summary proceeding for
non-payment of rent or other breach of covenant or condition, the Tenant
hereby agrees not to interpose any counter-claim of whatever nature or
description in any such action or proceeding, except for any counterclaim
which would as a matter of law, be waived, except for any counterclaim which
would as a matter of law, be waived. The words "re-enter" and "re-entry" as
used in this lease are not
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restricted to their technical legal meaning.
TWENTY-SIXTH: SURRENDER AT EXPIRATION. Upon the expiration or any
termination of the term of this lease, the Tenant shall quit and surrender
the demised premises, together with any fixtures, equipment or appurtenances
installed in the premises at the commencement of this lease, and any
alterations, decorations, additions and improvements which are not to be
removed in compliance with the provisions of Article Fourth hereof, to the
Landlord, in good order and condition, ordinary wear and any unavoidable
casualty fully covered by insurance carried by the Landlord excepted. The
Tenant shall remove all its furnishings, trade fixtures, stock in trade and
like personal property in accord with the requirements of Article Fourth, so
as to leave the premises broom-clean and in an orderly condition. If the last
day of the term of this lease falls on Sunday, this lease shall expire on the
business day immediately preceding. The Tenant's obligation to observe and
perform this covenant shall survive the expiration or other termination of
the term of this lease.
TWENTY-SEVENTH: QUIET ENJOYMENT. The Landlord covenants that, if
the Tenant shall duly keep and perform all the terms and conditions hereof,
the Tenant shall peaceably and quietly have, hold and enjoy the premises for
the term aforesaid, subject, however, to ground leases, underlying leases and
mortgages as hereinbefore described, and to the lien, rights and estate by
virtue of unpaid taxes of any government having jurisdiction of the premises
of which the herein demised premises are a part. If the Landlord shall
hereafter sell, exchange or lease the entire building or the land and
building wherein the premises are located, subject to this lease, or, being
the lessee thereof, shall assign its lease, the grantee, lessee, or assignee
thereof, as the case may be, shall, without further agreement by any party,
be conclusively deemed to be the Landlord of this lease and to have assumed
and undertaken to carry out all of the obligations hereof on the part of the
Landlord to be performed, and the Tenant does hereby release the above-named
Landlord from any claim or liability arising or accruing hereunder subsequent
to such transfer of ownership or possession, for breach of the covenant of
quiet enjoyment, or otherwise to the extent that such liabilities have been
assumed in writing by the new Landlord.
TWENTY-EIGHT: TENANT'S DEPOSIT. (a) The Tenant has deposited
with the Landlord the sum of $298,562.89 (of which an aggregate of $51,635.93
is on hand as security deposits for Tenant's and Express Reprographics,
Inc.'s existing leases), to secure the faithful performance by the Tenant of
all the terms, conditions, covenants and agreements of this lease, and to
make good to the Landlord any damage which it may sustain by reason of any
act or omission of the Tenant. The Landlord agrees that, provided that, on
November 1, 1998, the Tenant is not in default in the payment of fixed rent,
additional rent or any other amount due under this lease, the Landlord will
reduce the security deposit by $99,520.96. The Landlord shall segregate the
said security deposit as a trust fund not to be mingled with other funds of
the Landlord, and if, during the term of this lease, the Landlord shall sell,
exchange or lease the entire building, subject to this lease, or, being the
lessee thereof, shall assign its lease, the Landlord shall have the right to
pay or transfer the said deposit to such grantee, lessee, or assignee, as the
case may be, pursuant to written assignment as provided in Article
Twenty-Fifth, and, in such event, the Landlord shall be released from all
responsibility and liability in connection therewith, and the Tenant will
look solely to said grantee, lessee, or assignee for its return. The
aforesaid security deposit shall be deposited with a bank or trust company,
savings bank or savings and loan association, and the Landlord shall advise
the Tenant of the name and address thereof and such shall be deposited in an
interest-bearing account. The Tenant shall be entitled to the payment of any
interest earned upon such deposit less the amount equal to 1% per annum of
the deposit,
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to which the Landlord shall be entitled as administration expense, shall be
added to the amount of the deposit. The Tenant's interest in said deposit
shall not be assigned or encumbered without the written consent of the
Landlord, and within thirty (30) days after the expiration of the term, the
amount of said deposit shall be repaid to the Tenant, less any proper charges
against the same, as hereinabove or hereinafter provided. If the Tenant shall
at any time be in default with respect to any payment of rent or of
additional rent or of any other payment due from the Tenant to the Landlord
under this lease beyond any applicable notice and grace period the Landlord
may, at its option, apply such portion of said deposit as may be adequate to
cure such default, including, but not by way of limitation, interest, costs,
fees and other expenses, paid or incurred by the Landlord, as permitted under
the terms of this lease, and thereafter such portion so applied shall be free
from any claim by the Tenant for its return. If the Landlord shall re-enter,
pursuant to the provisions of this lease (other than in the event of
insolvency in which event the provisions of Article Twenty-Fourth of the
lease shall apply), and shall re-let the premises for its own account, the
entire said deposit shall immediately be and become the absolute property of
the Landlord, as fixed, liquidated and agreed damages, and not as a penalty,
it being impossible in such event to ascertain the exact amount of the damage
which the Landlord may thus sustain, but unless the Landlord shall so re-let
the premises for its own account, the Landlord shall continue to hold the
said deposit, as security for the performance of the Tenant's obligations,
until the date herein expressly fixed for the expiration of the term, and
apply the same from time to time to the unpaid obligations of the Tenant,
under the same terms and conditions as if the said lease were still in full
force and effect. No termination of this lease or re-entry by the Landlord
for default of the Tenant shall entitle the Tenant to the return of any part
of said deposit, nor shall the retention of such deposit, after such
re-entry, impair or otherwise affect the Tenant's liability to the Landlord
during the balance of the term originally provided for. If, at any time, the
said deposit shall be diminished, by reason of the Landlord's having applied
any part thereof in accordance with the provisions of this paragraph, the
Tenant shall pay over to the Landlord upon demand, the equivalent of such
decrease, to be added to said deposit and to be held and applied in
accordance with the provisions of this paragraph.
(b) In lieu of delivering cash as the Deposit, the Tenant may deliver
to Landlord an unconditional, irrevocable, letter of credit (such letter of
credit or any extension or replacement thereof, being hereinafter referred to
as the "Letter of Credit") issued by a New York Clearing House bank, in
substance satisfactory to the Landlord, which Letter of Credit is to be held
by Landlord in accordance with the terms described in paragraph (a) above. In
the event that the Landlord receives notice from the Bank or Tenant that the
Letter of Credit is not being renewed or in the event that Tenant has not
delivered a replacement Deposit or a similar Letter of Credit to Landlord by
thirty (30) days before the expiration of the Letter of Credit, then Landlord
shall be entitled to present the Letter of Credit for immediate payment of
the then potential amount available pursuant to the Letter of Credit, and
such amount of the Letter of Credit shall become the Deposit hereunder and
shall be held, applied and returned by Landlord in accordance with the terms
provided by the Lease for the holding, application and return of the Deposit.
If the Letter of Credit is not being renewed but Tenant does deliver a
replacement Deposit or a similar Letter of Credit by thirty (30) days before
expiration of the Letter of Credit, then Landlord shall not thereafter be
entitled to present the expiring Letter of Credit for payment of any amounts.
(c) At Tenant's request, any cash or cash equivalent held by Landlord
as part of the security deposit, which is in excess of that required to be
held by Landlord pursuant to paragraph (a) which has not been or is not in
the process of being
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applied pursuant to the provisions of paragraph (a) of this Article, shall be
returned promptly to Tenant. If Landlord is holding a Letter of Credit as
part of the security deposit and provided Landlord has not presented for
payment such Letter of Credit, upon delivery of a substitute Letter of Credit
in the appropriate amount and which otherwise satisfies the requirements of
paragraph (b) of this Article, the Landlord shall deliver to Tenant the
Letter of Credit being replaced.
TWENTY-NINTH: ELEVATORS, HEAT. (a) Except on Saturdays and Sundays, and
on holidays recognized as legal holidays by State or Federal Government, the
Landlord shall furnish, between the hours of eight a.m. and six p.m.,
elevator service with the elevators now in the building, and sufficient heat
during the cold season to heat the premises. The Landlord shall have one
automatic elevator in service and available for the Tenant's use at all other
times. The Landlord may suspend such automatic passenger service, if it
should become necessary or proper so to do, at any time only if use thereof
is unsafe or necessary repairs must be completed. The Landlord shall restore
such service within a reasonable time, making due allowance for labor
troubles, acts of God, or any cause beyond the Landlord's control.
(b) The Landlord shall be entitled to refuse to furnish passenger or
freight elevator service in connection with any sale at auction of the
Tenant's fixtures, machinery, stock in trade and other property or a sale in
any other manner of all or substantially all of such property unless the
Landlord shall have been given not less than two (2) days' notice of the
intention to hold the auction or other sale and unless the Landlord shall be
given an undertaking by a person, firm or corporation of satisfactory
financial resources wherein the Landlord shall be indemnified against (i) all
reasonable expense incurred by the Landlord in connection with the removal by
purchasers of any property sold to them at the auction or other sale, (ii)
all reasonable expense for removal or storage of any property sold at the
auction or other sale which is not removed by the purchaser within two (2)
days following the later to occur of the termination of the lease or the date
of such sale, and (iii) all reasonable expenses which the Landlord may incur
after the termination of the lease for the removal of property not sold and
waste and rubbish from the premises.
(c) In addition to the elevator service described in this Article
Twenty-Ninth, the Landlord will maintain in service and available for the use
of the Tenant, one passenger elevator at all times on all days of the week,
including Saturdays, Sundays and legal holidays. In the event that the Tenant
requires freight elevator service on Saturdays, Sundays, federal and state
holidays and all holidays recognized by the unions representing Landlord's
building personnel or during hours in addition to those prescribed under this
Article Twenty-Ninth, the Landlord will furnish the additional elevator
service upon notice of the Tenant's need there for. Such notice may be
written or oral and shall be given as long a time as practicable prior to the
time when the additional freight elevator service is required. The Tenant
will pay for any additional freight elevator service furnished after the
hours prescribed in this Article Twenty-Ninth at the prevailing rate per hour
as established from time-to-time by the Landlord for such service at the
building or in the buildings of the Landlord, generally, for each hour during
which the additional service is supplied (currently $41.50 per hour).
(d) In the event that the Tenant requires heat either after 6:00 p.m.
on a weekday, or on any Saturday, Sunday or holiday recognized by the union
represented the porters employed at the building, the Landlord will furnish
such additional heat as requested by the Tenant in a written request
delivered to the Building Manager no later than 4:00 p.m. on the date on
which after hours heat is requested or on the day preceding the Saturday,
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Sunday or holiday in question. The Tenant will pay for any such additional
heat and the charge shall be an amount equal to the product obtained by
multiplying (x) the Landlord's good faith estimate of the number of gallons
of fuel oil consumed to provide such overtime heat by (y) the price per
gallon paid by the Landlord for its most recent purchase of fuel oil at the
building. There shall be no additional labor charge for Landlord's employees
required to provide such heat.
(e) All charges for additional freight elevator service and heat shall
be payable when billed and in the event of default of payment therefor, the
Landlord may refuse further service and the amount unpaid shall be deemed
additional rent for which the Landlord shall have all the remedies for
collection herein specified with respect to rent. The failure on the part of
the Landlord to furnish such additional elevator service or heat, if due to
breakdowns, repairs, maintenance, strikes, or other causes beyond the control
of the Landlord, shall involve no liability on the part of the Landlord nor
shall it constitute an eviction.
(f) The Tenant shall for a period of ninety (90) days after receipt of
any invoice for any change pursuant to this Article. have the right to
inspect the records and books of the Landlord insofar as they relate to the
calculation of such change.
THIRTIETH: WATER AND SEWER RENTS. (a) The Tenant shall pay for all hot
and cold water used on the premises and the Tenant's proportionate share of
the cost of regular water used for lavatory purposes in any lavatories used
by Tenant in common with other tenants at the Landlord's cost, without a
profit. In the event that the Tenant shall use water for any industrial
purpose or any purpose other than usual lavatory purposes, the Tenant shall,
at its own expense, install a meter or meters for the measurement of the
quantity of water thus consumed and keep the same in good working order. With
respect to water used for lavatory purposes, whether on the premises or in
lavatories used by the Tenant in common with other tenants, if the quantity
of water so used is measured by a meter which measures the consumption of
water by other tenants, the Tenant shall pay its proportionate share of all
water so consumed. Such proportionate part shall be fixed in accord with the
number of persons occupying the premises and the number of persons occupying
all premises using water which is measured by such meter. In the event that
there shall be a separate meter which measures the use of water by the Tenant
for lavatory purposes, the Tenant will pay for the water so shown to have
been used and the cost of maintenance of such meter. All payments for water
shall be due when billed to the Tenant. The Landlord is not under obligation
to supply hot water and, if hot water is supplied, the Landlord may at any
time without notice discontinue such supply (except for hot water for the
lavatories which shall not be discontinued) without constituting an eviction
or without incurring any liability or disability therefor.
(b) The Tenant shall pay its proportionate share of the New York City
sewer rents apportioned to the Tenant's consumption of water at the premises.
The apportionment of the sewer rent to the premises shall be made in accord
with the measurement or apportionment of water consumed at the premises as in
this lease hereinbefore provided. The sewer rents shall be billed with the
water charges and the Landlord shall have the same remedies for the
collection thereof provided in the case of charges for water.
THIRTY-FIRST: SPRINKLER MAINTENANCE. The Tenant shall pay to the
Landlord the Tenant's proportionate share of the cost of regular maintenance,
operation and rental of the automatic fire alarm supervisory service and
manual alarm and sprinkler system now installed in the building and the
premises (currently estimated to be $1,171 per annum). The Tenant's
proportionate share of such cost shall be the fraction of the annual
expenditures of the Landlord for such purposes, of which the numerator is the
rentable
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THIRTY-SEVENTH: (a) REAL ESTATE AND CPI ESCALATION. In order (i) to
adjust, during the term of this lease, for increases in the expenses of the
Landlord for Real Estate Taxes, the Tenant shall pay to the Landlord, as
additional rent, the Tenant's Proportionate Share of any increases in such
Real Estate Taxes, and (ii) to adjust for increases in other operating
expenses of the Landlord, the Tenant shall pay to the Landlord, as additional
rent, the CPI Adjustments for Increases in Other Operating Expenses, namely
the amount by which the Base Rent Allocated to Other Operating Expenses is
increased by application to the Base Rent Allocated to Other Operating
Expenses of increases in the Index over the Base Index, all as computed as
set forth below in this Article; PROVIDED, HOWEVER, that the increases in
the CPI Adjustment for Increases in Other Operating Expenses shall not, on
average (computed on an annual basis), exceed an amount equal to 4% per annum
multiplied by the then applicable fixed rent set forth on the first page of
this lease. Capitalized words or expressions used above are defined in
subparagraph (b) below.
(b) DEFINITIONS. As used in this Article the following capitalized
words or expressions shall have the meanings ascribed to them below:
1. "Real Estate Taxes" shall mean and include the expenditures of
the Landlord for taxes or assessments payable by the Landlord upon
or with respect to the building and the land upon which it is located,
imposed by Federal, State and local government (plus all expenditures
for fees and expenses incurred in the course of obtaining a reduction
in any tentative assessed valuation), and all taxes imposed by any such
authority relating to the maintenance and operation of the building,
but shall not include income, franchise, inheritance or capital stock
taxes.
2. "Base Rent Allocated to Other Operating Expenses" shall mean
an amount equal to 75% of the fixed annual rent prescribed on page 1 of
this lease, as such rent may be payable from time to time.
3. "Increases in Real Estate Taxes" shall mean the amount by
which Real Estate Taxes in any Subsequent Year exceed Real Estate Taxes
for the Base Year.
4. "CPI Adjustment for Increases in Other Operating Expenses"
shall mean the amount obtained by multiplying the Base Rent Allocated
to Other Operating Expenses by the percentage by which the Index, as
last published on the date next prior to the Computation Date and the
Index as last published on the date next prior to each anniversary date
of the Computation Date, shall exceed the Base Index; PROVIDED,
HOWEVER, that the increases in the CPI Adjustment for Increases in
Other Operating Expenses shall not, on average (computed on an annual
basis), exceed an amount equal to 4% per annum multiplied by the then
applicable fixed rent set forth on the first page of this lease.
5. "Index" shall mean the "Consumer Price Index for All Urban
Consumers" "(1982-84 = 100)" specified for "All Items," relating to New
York City and published by the Bureau of Labor Statistics of the United
States Department of Labor. In the event the Index shall hereafter be
converted to a different standard reference base or otherwise revised,
the determination of the CPI Adjustment for Increases in Other
Operating Expenses shall be made on the basis of such conversion
factor, formula or table for converting the Index as may be published
by the Bureau of Labor Statistics, or, if said Bureau shall not publish
the same, then with the use of such conversion factor, formula or table
as may be published by Prentice-Hall, Inc., or, failing such
publication, by any other nationally recognized publisher of similar
statistical
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information. In the event either Index shall cease to be published,
then, for the purposes of this Article, there shall be substituted for
the Index such other index as Landlord and Tenant shall agree upon,
and, if they are unable within ninety (90) days after the Index ceases
to be published, such matter shall be determined in New York City by
arbitration in accordance with the Rules of the American Arbitration
Association.
6. "Base Index" shall mean the Index as last published prior to
October 1, 1994.
7. "CPI Comparative Statement" shall mean a statement, in
writing, signed by the Landlord, or, on its behalf, by an officer of
any corporation acting as its managing agent, showing (i) a comparison
of (a) Real Estate Taxes for the Base Year with (b) Projected Real
Estate Taxes for a Subsequent Year (which shall be the same calendar
year as the year of the Computation Date used in such CPI Comparative
Statement), (ii) the Base Rent Allocated to Other Operating Expenses
and the CPI Adjustment for Increases in Other Adjustment for Increases in
Other Operating Expenses for such Subsequent Year, and (iii) if the Tenant
paid additional rent pursuant to this Article with respect to the
immediately preceding Subsequent Year, any adjustment necessitated by a
variance between the Projected Real Estate Taxes for such Subsequent Year
(as shown in the last previous CPI Comparative Statement) and the actual
Real Estate Taxes for such Subsequent Year (as shown in the current CPI
Comparative Statement).
8. "Base Year" shall mean the 12 month period commencing July 1,
1995 and ending June 30, 1996.
9. "Subsequent Year" shall mean any calendar year following the
Base Year, falling wholly or partly within the term of the Tenant under
this lease and the calendar year following the year in which the term
of this lease terminates.
10. "Computation Date" shall mean the first day of October, 1995,
and, in Subsequent Years, its anniversary date.
11. "Projected Real Estate Taxes" shall mean the Landlord's
estimate (which in any event must be reasonable in the light of past
experience) of Real Estate Taxes for a particular Subsequent Year.
12. "Tenant's Proportionate Share" shall mean a fraction, of
which the numerator shall be the number of Rentable Square Feet of Area
of the premises occupied by the Tenant and the denominator shall be 90%
of the total number of Rentable Square Feet of Area in the entire
building.
13. "Rentable Square Feet of Area" shall mean, as to basement and
ground floor space, the number of net square feet of the area thereof
and, as to all floors above the ground floor, shall mean the number of
gross square feet of the area thereof.
(c) STATEMENTS FOR THE TENANT. On or before November 1, 1995, and on or
before that day in each Subsequent Year, the Landlord will furnish a CPI
Comparative Statement to the Tenant. The failure of the Landlord to furnish a
CPI Comparative Statement shall be without prejudice to the right of the
Landlord to furnish a CPI Comparative Statement until December 31 of each
subsequent year.
Every CPI Comparative Statement furnished by the Landlord pursuant to
this Article shall be conclusive and binding upon the Tenant unless (i)
within sixty (60) days after the receipt of such CPI Comparative Statement
Tenant shall notify Landlord that it
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payable on account of any CPI Adjustment for Increases in Other Operating
Expenses, and that no decrease om the amount of the CPI Adjustment for
Increases in Other Operating Expenses shall in any way reduce any additional
rent payable on account of any Increase in Real Estate Taxes.
(g) REAL ESTATE TAX REFUNDS. The Tenant's Proportionate Share of any
rebates, refunds, or abatements of Real Estate Taxes received by Landlord
subsequent to payment of taxes by Tenant shall, after the deduction of all
costs and expenses incurred in connection therewith, be refunded to the
Tenant on a pro rata basis within ten (10) days of receipt thereof by
Landlord. Any such rebate, refund of abatement realized by Landlord prior to
payment by Tenant shall result in an immediate reduction in Tenant's pro rata
share of Real Estate Taxes then due to Landlord.
THIRTY-EIGHTH: ARRANGEMENTS WITH RESPECT TO THE ELEVENTH FLOOR. (a)
Under the terms of this lease the Landlord is obligated to the lease the
entire eleventh floor to the Tenant. However, as of the date of the execution
of this lease, only the portion of the eleventh floor indicated in Exhibit
"G" hereto is vacant (the "Vacant 11th Floor Space"); the balance of the
eleventh floor (the "Occupied 11th Floor Space") is leased to three tenants
pursuant to leases which expire after November 1, 1994, (the date of the
commencement of the term of this lease). With respect to the Vacant 11th
Floor Space, the Tenant is granted the privilege of occupying such space free
of rent, commencing on the date of execution of this lease and ending on
October 31, 1994, all subject to the terms and conditions set forth in
Article Thirty-Ninth of this lease. With respect to the Occupied 11th Floor
Space the Tenant is granted the privilege of occupying such space free of
rent, commencing seven (7) days after the Landlord has obtained possession of
such space and ending on October 31, 1994, all subject to the terms and
conditions set forth in Article Thirty-Ninth of this lease.
(b) The Landlord agrees that, on or before October 31, 1994, the
Landlord shall have entered into agreements ("Surrender Agreements") with
each of the current three tenants leasing portions of the Occupied 11th Floor
Space providing for the lease relating to the Occupied 11th Floor Space
leased by such tenant to be terminated on or before March 31, 1995 and for
each such tenant to surrender to the Landlord no later than that date the
portion of the Occupied 11th Floor Space leased by such Tenant.
(c) In the event that the Landlord has not notified the Tenant by
November 1, 1994 that it has entered into agreements with the three tenants
leasing portions of the Occupied 11th Floor Space contemplated by paragraph
(b) above, the Tenant shall have the right by written notice delivered to the
Landlord on or before November 8, 1994 to terminate this lease, in which case
provided that the Tenant has paid all amounts due under this lease through
October 31, 1994, (i) this lease shall be deemed terminated as of November 1,
1994, (ii) the Conditionally Terminated Prior Tenant Leases and the
Conditionally Terminated Reprographics Lease (both, as defined in Article
Forty-First of this lease) shall be automatically reinstated and shall be in
full force and effect, as of November 1, 1994 and (iii) the Tenant shall
immediately surrender to the Landlord any premises leased hereunder but not
leased by the Tenant pursuant to the Conditionally Terminated Prior Tenant
Leases. In the event that the Tenant does not terminate this lease on or
before November 8, 1994,as permitted by this paragraph (c), then the Tenant
shall have no further right to terminate this lease by reason of the failure
of the Landlord to lease to the Tenant any portion of the Occupied 11th Floor
Space leased to any current tenant of such space which did not execute a
Surrender Agreement (the "Unterminated 11th Floor Space"); and the Landlord
and the Tenant shall promptly execute an amendment to this lease (i) to
reflect that the premises on the 11th floor to be leased pursuant to this
lease do not include the Unterminated 11th Floor Space and
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(ii) to reduce the fixed rent payable pursuant to this to reflect that the
Unterminated 11th Floor Spaces not being leased hereunder.
(d) In the event that the Landlord has not, by July 1, 1995,
tendered to the Tenant for occupancy pursuant to this lease all of the
Occupied 11th Floor Space (other than the Unterminated 11th Floor Space), the
Tenant shall have the right by written notice delivered to the Landlord on or
before July 8, 1995 to terminate this lease, in which case provided that the
Tenant has paid all amounts due under this lease through June 30, 1995, (i) this
lease shall be deemed terminated as of July 1, 1995, (ii) the Conditionally
Terminated Prior Tenant Leases and the Conditionally Terminated Reprographics
Lease (both, as defined in Article Forty-First of this lease) shall be
automatically reinstated and shall be in full force and effect, as of July 1,
1995, and (iii) the Tenant shall immediately surrender to the Landlord any
premises leased hereunder but not leased by the Tenant pursuant to the
Conditionally Terminated Prior Tenant Leases. In the event that the Tenant
does not terminate this lease on or before July 8, 1995, as permitted by this
paragraph (d), then the Tenant shall have no further right to terminate this
lease by reason of the failure of the Landlord to lease to the Tenant any
portion of the Occupied 11th Floor Space leased to any current tenant of such
space which is not surrendered by such current tenant by June 30, 1995; and
the Landlord and the Tenant shall promptly execute an amendment to this
lease (i) to reflect that the premises on the 11th floor be leased pursuant
to this lease do not include any such unsurrendered space and (ii) to reduce
the fixed rent payable pursuant to this to reflect that such unsurrendered
space is not being leased hereunder.
THIRTY-NINTH: ELEVENTH FLOOR FREE RENT. (a) With respect to the
Vacant 11th Floor Space, the Tenant is hereby granted the privilege of
occupying such space subject to all of the terms, covenants and conditions of
this lease, including but not limited to, the payment of any service charges
for electric current, water, sprinkler maintenance and any overtime elevator
or heat service and to the payment of any additional rent payable pursuant to
the provisions of paragraph Thirty-Seventh of this lease but not otherwise
free of the payment of fixed rent, net of (i) the amortization of certain
amounts and (ii) the effect of the free-rent period provided in Article
Thirty-Eighth hereof (which net free rent with respect to the Vacant 11th
Floor accrues, after November 1, 1994, at the rate of $19,338.48 per month)
during the following periods:
(i) during the period beginning with the tender of possession of the
premises by the Landlord to the Tenant at any time prior to the
commencement of the term of this lease and ending on October 31, 1994 the
date prior to the commencement of the term;
(ii) during the period of the term of this lease commencing on
November 1, 1994 and ending on April 30, 1995; and
(iii) during the period of the term of this lease commencing on
November 1, 1995 and ending on April 30, 1996.
(b) With respect to any portion of the Occupied 11th Floor Space,
the Tenant is hereby granted the privilege of occupying such space subject
to all of the terms, covenants and conditions of this lease, including but
not limited to, the payment of any service charges for electric current,
water, sprinkler maintenance and any overtime elevator or heat service and to
the payment of any additional rent payable pursuant to the provisions of
paragraph Thirty-Seventh of this lease but otherwise free of the payment of
fixed rent net of (i) the amortization of certain amounts and (ii) the effect
of the free-rent period provided in Article Thirty-Eighth hereof (which net
free rent with respect to the Occupied 11th Floor Space accrues, after
November 1, 1994, at the rate of $4,286.52 per month) during the following
periods:
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(xx) if such portion of the Occupied 11th Floor Space is tendered by
Landlord to the Tenant for possession prior to August 1, 1994, then
the periods during which fixed rent is not payable with respect to
such portion shall be the periods specified in clauses (i), (ii) and
(iii) of paragraph (a) above;
(yy) if such portion of the Occupied 11th Floor Space is tendered by
Landlord to the Tenant for possession on or after August 1, 1994 and
prior to November 1, 1994, then the periods during which fixed rent is
not payable with respect to such portion shall be as follows:
(i) during the period beginning of the date of tender of possession of
such portion of the Occupied 11th Floor Space and ending on October 31,
1994 (the "Pre-Commencement Date Free Rent Period");
(ii) during the period of the term of this lease commencing on
November 1, 1994 and ending on April 30, 1995; and
(iii) during the period of the term of this lease commencing on
May 1, 1995 and continuing that number of days which is equal to (aa) 90
minus (bb) the number of days in the Pre-Commencement Date Free Rent
Period; and
(iv) during the period specified in clause (iii) of paragraph (a)
above;
(zz) If such portion of the Occupied 11th Floor Space is tendered by
Landlord to the Tenant for possession after November 1, 1994, then
the periods during which fixed rent is not payable with respect to
such portion shall be as follows:
(i) during the period of the term of this lease commencing on the
date of the tender of possession of such portion of the Occupied 11th
Floor Space and ending 270 days after such date of tender; and
(ii) during the period of the term of this lease referred to in
clause (iii) of paragraph (a) above.
(c) With respect to all of the premises leased pursuant to this
lease, the Tenant is hereby granted the privilege of occupying such premises
subject to all of the terms, covenants and conditions of this lease,
including but not limited to, the payment of any service charges for electric
current, water, sprinkler maintenance and any overtime elevator or heat
service and to the payment of any additional rent payable pursuant to the
provisions of Paragraph Thirty-Seventh of this lease but otherwise free of
the payment of fixed rent (i) during the period commencing January 1, 2001
and ending March 31, 2001 and (ii) during the period commencing January 1,
2009 and ending March 31, 2009.
(d) The right to occupy the premises free of rent during the periods
set forth in paragraphs (a), (b) and (c) of this Article First shall be
subject to the condition that the Tenant shall not default in the payment of
any other fixed rent, of any additional rent or any other charge due under
this lease or in the performance of the other terms, covenants and conditions
thereof beyond any applicable notice and grace periods if any. In the event
of any such default, then fixed rent shall be payable during the period in
which the Tenant would otherwise be entitled to the use of the premises free
of fixed annual rent. Any such payment shall be paid within ten (10) days
following demand and shall constitute additional rent under this lease.
FORTIETH: [Intentionally Omitted]
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FORTY-FIRST: CONDITIONAL TERMINATION OF EXISTING LEASES. (a)
Effective at noon on November 1, 1994, the leases listed below (the
"Conditionally Terminated Prior Leases") between the Landlord and the Tenant
shall be modified so that the term of the Tenant in the premises leased
under the Prior Tenant Leases shall, on a conditional basis and subject to
being reinstated as set forth in paragraph (c) below, terminate and come to
an end, as if said date were the date originally specified for the expiration
of the term thereof:
(i) Lease dated as of December 15, 1986 between the Landlord and the
Tenant, as amended by the Agreement dated as of October 10, 1987 and the
Agreement dated as of April 19, 1990;
(ii) Lease dated as of September 12, 1985 between the Landlord and
Baron Dapoigny Inc., ("BDl"), assigned by BDI to the Tenant pursuant to
the Assignment of Lease dated as of July 1, 1991, as extended by the
letter agreement dated as of November 11, 1992; and
(iii) Letter agreement between the Landlord and the Tenant, pursuant to
which the Tenant leased premises on the 11th floor of the building on a
month-to-month basis.
(b) Effective at noon on November 1, 1994, the lease dated as
December 15, 1986 between the Landlord and CPC Reprographics, Inc. (formerly
Express Reprographics, Inc.), as amended by the Agreement dated as of
September 7, 1989 (the "Conditionally Terminated Reprographics Lease"), which
relates to premises on the 10th floor of the building, shall be modified so
that the term of the Tenant in the premises leased under such lease shall, on
a conditional basis and subject to being reinstated as set forth in paragraph
(c) below, terminate and come to an end, as if said date were the date
originally specified for the expiration of the term thereof.
(c) In the event that, in accordance with the terms and conditions
of Article Thirty-Eight of this lease, the Tenant elects to terminate this
lease as of November 1, 1994 or June 1, 1995, then such election, without any
further action by the Landlord or the Tenant, the Conditionally Terminated
Prior Leases and the Conditionally Terminated Reprographics Lease, shall
automatically be reinstated and shall be and remain in full force and effect,
effective as of the date on which this lease is terminated.
FORTY-SECOND: TENANT'S USE OF ELEVATOR. (a) During the hours of
12:00 midnight to 6:00 a.m. and from 6:00 p.m. to 12:00 midnight on each
weekday and from 12:00 midnight to 12:00 midnight on Saturday and Sunday and
on each holiday recognized by the union representing the porters employed at
the building, the Tenant shall have the exclusive use, and shall take
complete charge of, the automatic passenger elevator marked in red on the
floor plan annexed to this lease designated as Exhibit "H", (the "Overtime
Passenger Elevator"), solely for use transporting passengers. The Tenant
understands that the Overtime Passenger Elevator will not service the
Tenant's basement or 3rd floor premises.
(b) The Tenant shall have the exclusive use, and shall take complete
charge of, the manually operated freight elevator marked in red on the floor
plan annexed to this lease designated as Exhibit "I", (the "Exclusive Freight
Elevator"), solely for use transporting of freight. (The "Overtime Passenger
Elevator and the Exclusive Freight Elevator are hereinafter collectively
referred to as the "Private Elevators".) The Tenant agrees that the Exclusive
Freight Elevator shall only be operated by certain designated employees of
the Tenant, all of whom shall be fully qualified as elevator operators,
designated in a written notice to the Landlord, and reasonably acceptable to
the Landlord.
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(c) The Landlord shall modify the control panel of the Overtime
Passenger Elevator so that during the hours specified in paragraph (a) above,
it will service only the 1st, 8th, 10th, 11th and 12th floors of the
building. The Landlord shall maintain the Private Elevators, at its own cost
and expense, except that the Tenant shall bear all costs and expenses of
repairs or non-routine maintenance which, in the judgment of the Landlord,
results from the negligence or misuse in the operation of the Private
Elevators by the Tenant or any employee or agent of the Tenant.
(d) In the event that the operation of the Exclusive Freight
Elevator by the Tenant shall be the occasion of labor troubles or threat of
labor troubles involving the other building or other tenants' premises (of
which the Landlord shall be the judge) the Landlord may notify the Tenant of
such fact and if the Tenant shall wish to continue the exclusive use of the
Exclusive Freight Elevator, the Landlord may cause the Exclusive Freight
Elevator to be operated by its own employees, in which case the Tenant will
pay to the Landlord the cost of the operators in monthly installments as
additional rent.
(e) The Tenant agrees to indemnify and hold harmless the Landlord
from any and all liabilities, obligations, losses, claims, suits or actions
resulting from or arising out of the use and operation of the Private
Elevators by the Tenant or its employees or agents. The Tenant agrees to
provide and keep in full force and effect liability insurance written by
insurance companies approved by the Landlord naming the Tenant and the
Landlord as insured thereunder which shall be in the amount of at least
$3,000,000 for claims arising from personal injury from any one casualty or
accident involving either the Private Elevators and for at least $1,000,000
for property damage arising from any one casualty or accident involving
either the Private Elevators.
FORTY-THIRD: TENANT'S INSTALLATION OF AIR CONDITIONING EQUIPMENT.
(a) The Landlord confirms its agreement in principle to permit the Tenant, at
its cost and expense, to install air conditioning equipment in the area in
the northwest corner of the roof of the building indicated by the hatching in
Exhibit "J" hereto for the purpose of air conditioning and premises leased by
the Tenant pursuant to this lease. Final approval of the installation of such
air conditioning equipment shall be subject to the following conditions:
(i) The size and type of such air conditioning equipment and its
exact location on the roof, as well as the location of any related ducts,
shall be subject to the Landlord's prior approval;
(ii) Prior to the installation of the air conditioning equipment and
any related ducts, the Tenant will furnish the Landlord with plans and
specifications as contemplated by Article Fourth of this lease and, if
the Landlord so requests, a report of a certified engineer with respect
to the ability of the roof to support the weight of the air conditioning
equipment;
(b) The Tenant shall comply with the requirements of such Article
Fourth in connection with the installation of the air conditioning equipment
and any related duct work.
(c) The Tenant shall bear all costs and expenses related to (x) the
purchase, installation, repair, maintenance and operation of the air
conditioning equipment, as well as any related duct work and controls, (y)
the maintenance of the roof of the building in the area in which the air
conditioning equipment is installed and the maintenance of the waterproof
integrity of any penetration in the roof necessitated by the installation of
the air conditioning equipment or any related duct work.
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cancel the Lease, not less than sixty (60) days prior to the date of
cancellation specified in such notice (the "Specified Termination Date"). If
the Tenant shall give such notice, the Tenant will quit, vacate and surrender
the premises in accord with the provisions of the Third Floor Lease relating
to surrender at the expiration of the term. The Tenant shall not have the
foregoing option if, at the time when the notice of termination is given or
on the Specified Termination Date, the Tenant shall be in default in the
payment of rent or additional rent or in the performance of the Tenant's
other obligations under the Third Floor Lease.
(b) In the event that, in accordance with the terms and conditions
of Article Thirty-Eighth of this lease, the Tenant elects to terminate this
lease as of November 1, 1994, or July 1, 1995, then such election, without
any further action by the Landlord or the Tenant, the Third Floor Lease shall
automatically be reinstated and shall be and remain in full force and effect,
effective as of the date on which this lease is terminated.
FORTY-EIGHTH: Broker. Each party hereto represents that,
except for Edward S. Gordon Company, Inc. ("Gordon"), represented by David
W. Levinson, no broker, licensed or otherwise was involved in the
making of this lease or brought the premises to the attention of the
Tenant and that all of the negotiations respecting this lease were
conducted with and through the offices of the Landlord. The Landlord
agrees that it shall be responsible for any commission payable to
Mr. Levinson and Gordon, and agrees to indemnify and reimburse the
Tenant for any expenses including legal fees incurred by the Tenant
in the event of an action brought by Gordon against the Tenant, which
results from the failure of the Landlord to pay the aforesaid
commission to Gordon and Levinson.
If the foregoing representation is breached, the breaching party
agrees to indemnify and hold the other harmless from any and all costs and
expenses, including without limitation, such other party's legal fees and
expenses paid or incurred by such other party in connection with any claim by
a broker, co-broker and/or finder claiming through or under the breaching
party in connection with this lease.
IN WITNESS WHEREOF, this agreement, (including the Rules and
Regulations and Work Sheet attached hereto) has been signed and sealed by the
parties hereto, the day and year first above written.
Attest THE RECTOR, CHURCH-WARDENS, AND
As to Landlord: VESTRYMEN OF TRINITY CHURCH IN
THE CITY OF NEW-YORK
By: /s/ Daniel Paul Matthews
-----------------------------------
Daniel Paul Matthews, Rector
/s/ (Signature Illegible) By: /s/ Jeffrey L. Smith
- --------------------------------- -----------------------------------
Executive Vice President of Director of Leasing
Real Estate
By: /s/ (Signature Illegible)
-----------------------------------
Finance Department
Attest THE CORPORATE PRINTING COMPANY,
As to Tenant: INC.
/s/ Barbara Jolly By: /s/ Jeffrey Goldberg
- --------------------------------- -----------------------------------
Executive VP-Finance
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<PAGE>
The provisions of Articles Thirty-Eighth
and Forty-First are accepted and
agreed to, and the undersigned hereby
assigns and transfers to the Tenant all
of its right, title and interest in and
to the security deposit of $9,613.23
deposited by the undersigned pursuant
to the terms of the lease referred to
in paragraph (b) of Article Forty-First:
EXPRESS REPROGRAPHICS, INC.
By: /s/ Jeffrey Goldberg
-----------------------------------
Executive VP-Finance
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<PAGE>
Subject to the foregoing provisions the Landlord reserves the
right, after according reasonable consideration to the Tenant's wishes in the
matter, to make all decisions as to the time or times when, the order and
style in which said work is to be done, and the labor or materials to be
employed therefore. The work shall be done, unless the Landlord otherwise
directs, during the usual working hours observed by the trades in question.
It is stipulated and agreed that in case the Landlord is prevented from
commencing, prosecuting or completing said work, due to the Landlord's
inability to obtain or difficulty in obtaining the labor or materials
necessary therefor, or due to any governmental requirements or regulations
relating to the priority or national defense requirements, or due to any
other cause beyond the Landlord's control, the Landlord shall not be liable to
the Tenant for damages resulting therefrom, nor shall the Tenant be entitled
to any abatement or reduction of rent by reason thereof, nor shall the same
give rise to a claim in the Tenant's favor that such failure constitutes
actual, constructive, total or partial eviction from the demised premises.
Any reimbursement called for by this Work Sheet shall only be made
upon presentation to the Landlord by the Tenant of invoices marked "Paid in
Full" or other evidence of payment satisfactory to the Landlord, together
with copies of waivers of liens executed by all contractors, subcontractors,
materialmen or others involved with the work in question.
THE RECTOR, CHURCH-WARDENS AND VESTRYMEN
OF TRINITY CHURCH IN THE CITY OF NEW-YORK,
Landlord.
By: /s/ Jeffrey L. Smith
-----------------------------------
Director of Leasing
THE CORPORATE PRINTING CO., INC.,
Tenant
By: /s/ Jeffrey Goldberg
-----------------------------------
Title: Executive VP-Finance
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RULES AND REGULATIONS
1. The Tenant shall not clean, nor require, permit or allow any
window in the demised premises to be cleaned from the outside in violation of
Section 202 of the Labor Law or of the Rules of the Board of Standards and
Appeals, or of any other board or body having or asserted jurisdiction;
2. All machinery shall be kept in approved settings, sufficient to
absorb any shock and prevent any noise, vibration or annoyance in the
building of which the demised premises are a part and shall be provided with
oil pans between such machinery and the floor beneath it, sufficient to
prevent the seepage of oil on or into the floors;
3. No acid that in any way may injure any of the pipes or plumbing
equipment in the building shall be poured or allowed to drain into the pipes
or plumbing equipment thereof, but shall in the event that the building is
provided with an acid line be poured or allowed to drain only therein, or if
there be no acid line, shall be neutralized in a manner satisfactory to the
Landlord. No substance which may cause any objectionable odor shall be left
in the demised premises;
4. During the cold season, the windows shall be kept closed to
maintain the temperature of the demised premises and to prevent any freezing
thereof, or of any equipment or appliance therein;
5. All trucks, vehicles or conveyances used by the Tenant in the
demised premises shall have rubber-tired wheels;
6. The Tenant's employees, except clerical or executive help,
shall, if the Landlord so directs, at all times use only the combination
passenger and freight elevator, if any, in going into or coming out of the
demised premises;
7. No sign or lettering shall be inscribed on any door, wall or
window of the demised premises which is visible from the street or the
portion of the building used in common by other tenants except such as may be
approved in writing by the Landlord or its agents or designee;
8. No additional locks or bolts shall be placed anywhere upon or
within the demised premises or any on rooms therein, unless duplicate keys
thereto be given to the Landlord and all such keys must, on the termination
of this lease, be surrendered to the Landlord;
9. The Landlord may exclude any persons visiting or attempting to
visit the premises between 7 P.M. and 8 A.M. and on Saturdays, Sundays and
the holidays recognized as such by the state or federal government unless
such person shall be equipped with a pass signed by the Tenant and unless
such person shall sign his name and the premises which he is to visit on the
night report.
10. The sanitary and safety facilities used solely by the Tenant or
by the Tenant in common with other occupants of the building of which the
demised premises are a part shall be used only for the purposes for which
they were constructed;
11. No signs, signals, devices, displays, sounds or advertisements
visible or audible from the street or from the halls and other parts of the
building used in common by the Tenant and other tenants shall be inscribed,
erected or maintained unless the kind, style, location and manner thereof
shall have been approved in writing by the Landlord and if any sign, signal,
sound display or advertising be erected, made or inscribed without such
approval, the Landlord may remove the same and charge the cost of
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so doing to the Tenant as additional rent. Any sign or display which may be
installed by the Tenant shall be kept in good order and repair and in a neat
and attractive condition. The Landlord reserves the right to use the roof and
outside walls surrounding the premises for sign purposes. The Landlord may
remove any sign or signs or displays in order to paint the premises or any
part of the building, or make any repairs, alterations or improvements in or
upon the premises or any part of the building, or any part thereof, provided
it causes the same to be removed and replaced at the Landlord's expense,
whenever the said painting, repairs, alterations or improvements shall have
been completed;
12. No advertising which, in the opinion of the Landlord, tends to
impair the reputation of the building or its desirability as a loft or office
building, shall be published or caused to be published by the Tenant and,
upon notice from the Landlord, the Tenant shall refrain from or discontinue
such advertising;
13. Awnings, antennae, aerials, ventilating and air-conditioning
apparatus or other projections from the window or outside walls of the
demised premises shall not be erected or installed. All air-conditioning
apparatus installed in windows shall be so arranged that condensate does not
drain on the outside of the building wall or into the street;
14. The lights, skylights, entrances, passages, courts, elevators,
stairways, loading platforms, halls or any part of the building intended for
the use in common by the Tenant and the other occupants thereof shall not be
obstructed or encumbered (whether by means of storing of materials and skids
or otherwise). In the event of any such encumbrance or obstruction, the
Landlord may, after not less than five (5) days' prior written notice to the
Tenant, remove the material causing such encumbrance or obstruction and cause
it to be stored and charge the cost of doing so to the Tenant. No courtyard
or yard appurtenant to the premises or the building shall be used for parking
vehicles of any kind;
15. No part of the premises or the building shall be marked,
painted, drilled into, or in any way defaced. No laying of linoleum, or other
similar floor covering so that the same shall come in direct contact with the
floor of the demised premises shall be made; and if linoleum or other similar
floor covering is desired to be used, an interlining of builder's deadening
felt shall be first affixed to the floor, by a paste or other material,
soluble in water. Cements and other similar adhesive material shall not be
used. Removal of any alterations, decorations or improvements in compliance
with paragraph Fourth of this lease shall include the removal of all
linoleum, lining and adhesive material;
16. No part of the demised premises shall be used in a manner or
for a purpose that is substantially objectionable to the Landlord or to
another tenant, or which in the reasonable judgment of the Landlord, might
cause structural injury to the building;
17. The Tenant's employees shall not stand or loiter around the
hallways, stairways, elevators, front, roof or any other part of the building
used in common by the occupants thereof;
18. No load shall be placed upon any floor of the building
exceeding the floor load per square foot area which such floor was designed
to carry, and all loads shall be evenly distributed. The Landlord reserves
the right to prescribe the weight and position of all safes, machinery and
other personal property in the premises which must be placed so as to
distribute their weight;
19. Nothing shall be thrown out of the windows or doors, or down
the passages or skylights of the building, nor shall any of them be covered,
obstructed or encumbered. No improper noises shall be made in the building,
nor shall birds or animals be
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brought therein;
20. Where freight elevators are provided by the building and are in
operation, all deliveries shall be made to or from the demised premises
exclusively by means of such elevators;
21. Anyone doing janitorial work for the Tenant shall at all times be
subject to order and direction by the superintendent of the building,
although he shall not be the servant of either the superintendent or the
Landlord;
22. No peddling, soliciting or canvassing shall be permitted in the
premises or by the Tenant's employees elsewhere in the building;
23. The Landlord may prescribe, and from time to time vary, the time for
any removals or deliveries from or into the premises, at any time, and such
prescriptions shall apply whether or not the material so removed or received
is the property of the Tenant. Removals or deliveries of safes, machinery and
any other heavy or bulky matter shall be done only upon written authorization
of the Landlord and only in such manner and by such persons as may be
acceptable to the Landlord, and the Landlord may require any further
assurances or agreements or indemnity from the Tenant and the movers to that
effect. The Landlord reserves the right to inspect all freight to be brought
into the building and to exclude from the building all freight which violates
any of these Rules and Regulations or the lease of which these Rules and
Regulations are a part;
24. The Tenant shall not permit its servants, employees, agents,
visitors or licensees at any time to bring or keep upon the premises any
inflammable, combustible or explosive fluid, chemical or substance or cause
or permit any unusual or objectionable odors to be produced upon or emanate
from the premises;
25. Except as contemplated by Article Forty-Second, The passenger and
service elevators, other than automatic self-service elevators, if any, shall
be operated only be employees of the Landlord, and must not in any event be
interfered with by the Tenant, his servants, employees, agents, visitors or
licesees. Manned freight elevators will be operated only during such hours as
the Landlord may from time to time determine;
26. The Tenant shall not use any other method of heating than that
supplied by the Landlord;
27. If the premises consist of basement space, or if any merchandise of
the Tenant is stored in the basement portion of the building, all such
merchandise shall, at the Tenant's own cost and expense, be placed entirely
on skids or platforms, which will raise such merchandise at least six inches
from the floor;
28. No drilling in floors, walls or ceilings shall be done except in
compliance with paragraph Fourth of this lease and no such drilling shall be
done during usual business hours unless authorized by the Landlord in writing;
29. No vending machine shall be installed or permitted to remain in the
premises unless the Landlord shall first have given its specific written
authorization for the installation of each such machine. The Tenant shall not
authorize or permit any vendor of sandwiches, coffee, or other foods, candies
or beverages to enter the premises for the purpose of soliciting sales of
such wares to the Tenant's employees.
The Landlord agrees that it will not discriminate against the Tenant in
enforcing the rules and regulations set forth herein.
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[Exhibit "A" Floor Plan]
<PAGE>
[Exhibit "B" Floor Plan]
<PAGE>
[Exhibit "C" Floor Plan]
<PAGE>
[Exhibit "D" Floor Plan]
<PAGE>
[Exhibit "E" Floor Plan]
<PAGE>
[Exhibit "F" Floor Plan]
<PAGE>
[Exhibit "G" Floor Plan]
<PAGE>
[Exhibit "H" Floor Plan]
<PAGE>
[Exhibit "I" Floor Plan]
<PAGE>
[Exhibit "J" Floor Plan]
<PAGE>
[Exhibit "K" Floor Plan]
<PAGE>
[Exhibit "L" Floor Plan]
<PAGE>
ASSIGNMENT AND ASSUMPTION
OF
LEASE AGREEMENT
THIS AGREEMENT is made as of April 15, 1996 by THE CORPORATE PRINTING
COMPANY, INC., a New York corporation ("Assignor") to MERRILL/NEW YORK
COMPANY, a Minnesota corporation ("Assignee").
WHEREAS, Assignee desires to assume Assignor's obligations under those
certain leases and subleases (collectively, the "Leases") described on
Schedule I annexed hereto and made a part hereof and Assignor is willing to
assign unto Assignee all of Assignor's right, title and interest in, to and
under the Leases upon and subject to the terms hereof;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Assignor and Assignee hereby
agree as follows:
EFFECTIVE as of the date of this Agreement, Assignor hereby assigns to
Assignee without recourse, representation or warranty, except as may be set
forth in that certain Asset Purchase Agreement dated as of April 15, 1996 by
and among CPC Management Services, Inc., The Corporate Printing Company,
Inc., CPC Communications, Inc., CPC Reprographics, Inc., The Corporate
Printing Company International, Ltd., CP International Holdings, Inc., The
Corporate Printing Company International SNC, The Corporate Printing Company
International Pte. Ltd., and Oakland Composition Limited Partnership
(collectively the "Affiliated Companies"). Merrill Corporation, Merrill/New
York Company and Shareholders of the Affiliated Companies (and subject to all
liens, encumbrances, tenancies and occupancies existing on the date hereof)
all right, title and interest of Assignor in, to and under the Leases and
Assignee hereby assumes all of Assignor's obligations under the Leases and
agrees to indemnify and hold Assignor forever harmless from any liability
arising thereunder and in connection therewith which arise from and after the
date of this Agreement.
TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns,
from the date hereof for all the rest of the years mentioned in each of the
respective Leases, subject to the rents, covenants, conditions and provisions
therein also mentioned.
THIS AGREEMENT may be executed by the parties hereto on any number of
separate counterparts and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement
as of the date and year above written.
THE CORPORATE PRINTING COMPANY, INC.
By: /s/ George L. Shifrin
---------------------------------
Name:
Title:
MERRILL/NEW YORK COMPANY
By: /s/ Steven J. Machov
---------------------------------
Name:
Title:
<PAGE>
SCHEDULE 1
1. Sublease Agreement dated as of November 1, 1993, by and between Dechert
Price & Rhoads, as sublessor, and The Corporate Printing Company, Inc., as
sublessee.
2. Office Lease dated December 21, 1987 by and between 15th & K Associates,
as lessor, and Corporate Printing Corporation, Inc., as lessee.
3. Lease dated as of May 1, 1994 between The Rector, Church-Wardens, and
Vestrymen of Trinity Church in the City of New York, as landlord, the The
Corporate Printing Company, Inc., as Tenant.
4. Lease of a Condominium Unit dated August 18, 1994 between Zikade Handels
Anstalt, as landlord, and The Corporate Printing Co., Inc.
<PAGE>
Exhibit 11.1
MERRILL CORPORATION
SCHEDULE OF COMPUTATION OF PER SHARE EARNINGS
(UNAUDITED)
<TABLE>
<CAPTION>
FOR THE YEARS ENDED JANUARY 31,
-------------------------------------------
1997 1996 1995
------------- ------------- -------------
<S> <C> <C> <C>
Primary
Net income.............................................................. $ 17,839,451 $ 10,662,199 $ 11,982,785
------------- ------------- -------------
------------- ------------- -------------
Weighted average number of common shares outstanding during the
period................................................................. 7,896,080 7,752,532 7,568,380
Add common equivalent shares relating to outstanding options to
purchase common stock using the treasury stock method.................. 246,224 192,614 425,853
------------- ------------- -------------
Total common and common equivalent shares outstanding............... 8,142,304 7,945,146 7,994,233
------------- ------------- -------------
------------- ------------- -------------
Primary income per common share........................................... $2.19 $1.34 $1.50
------------- ------------- -------------
------------- ------------- -------------
Fully diluted
Net income.............................................................. $ 17,839,451 $ 10,662,199 $ 11,982,785
------------- ------------- -------------
------------- ------------- -------------
Weighted average number of common shares outstanding during the
period................................................................. 7,896,080 7,752,532 7,568,380
Add common equivalent shares relating to outstanding options to
purchase common stock using the treasury stock method.................. 318,538 196,731 425,759
------------- ------------- -------------
Total common and common equivalent shares outstanding............... 8,214,618 7,949,263 7,994,139
------------- ------------- -------------
------------- ------------- -------------
Fully diluted income per common share.................................... $2.17 $1.34 $1.50
------------- ------------- -------------
------------- ------------- -------------
</TABLE>
<PAGE>
EXHIBIT 13.1
MANAGEMENT'S DISCUSSION AND ANALYSIS
- --------------------------------------------------------------------------------
Certain statements in Management's Discussion and Analysis of Financial
Condition and Results of Operations constitute FORWARD-LOOKING statements within
the meaning of the Private Securities Litigation Reform Act of 1995. Such
FORWARD-LOOKING statements involve known and unknown risks, uncertainties or
achievements of the Company which may cause actual results to be materially
different from any future results, performance or achievements expressed or
implied by such FORWARD-LOOKING statements. These risks and uncertainties
include, but are not limited to, the effect of economic and financial market
conditions, government security reporting regulations, paper costs and the
integration and performance of recent acquisitions.
RESULTS OF OPERATIONS
The following table sets forth, for the years indicated, the percentage
relationship to revenue of certain items in the Company's consolidated
statements of operations and the percentage changes in the dollar amounts of
such items in comparison to the prior years.
<TABLE>
<CAPTION>
For the Years Ended January 31,
-------------------------------------------------------
% Increase (Decrease)
------------------------
Percentage of Revenues 1997 1996 1995
------------------------ VS. vs. vs.
1997 1996 1995 1996 1995 1994
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Revenues
Financial 40.6% 36.1% 33.4% 62% 12% 3%
Corporate 27.6 29.5 33.4 35 (9) 26
Document management services 11.2 12.9 9.9 26 35 38
Commercial and other 20.6 21.5 23.3 38 (5) 120
- ---------------------------------------------------------------------------
100.0 100.0 100.0 44 4 30
Cost of revenues 64.3 67.6 67.3 37 4 37
Gross profit 35.7 32.4 32.7 59 3 19
Selling, general and administrative expenses 25.4 24.5 23.5 50 8 29
Operating income 10.3 7.9 9.2 87 (10) (1)
Interest expense (1.2) (0.4) (0.5) 275 (2) 249
Other income, net 0.1 0.1 0.2 (23) (36) 48
Income before provision for income taxes 9.2 7.6 8.9 74 (12) (4)
Provision for income taxes 4.1 3.3 3.9 82 (12) 4
Net income 5.1 4.3 5.0 67 (11) (9)
- ----------------------------------------------------------------------------------------------------------
</TABLE>
6
<PAGE>
REVENUE - Merrill Corporation is engaged in one line of business - providing
paper and electronic document services. The Company divides its revenues into
four categories of service: financial, corporate, document management services,
and commercial and other. The percentage of revenue attributable to each
category of service is set forth in the chart below. Revenue in the financial
category generally reflects the level of transactional activity in the capital
markets. Financial encompasses many types of transactions, and some types of
transactions tend to increase when others are out of favor. However, a prolonged
reduction in the overall level of financial transactions could be expected to
have a negative impact on this revenue category. The corporate category
encompasses required regulatory compliance and mutual fund documentation and
other repetitive work, and is typically not significantly affected by capital
market fluctuations. Revenue in the document management services and commercial
and other categories tend to follow general economic trends.
FISCAL YEAR 1997 VS. FISCAL YEAR 1996 - Revenues for fiscal year 1997 increased
44 percent over the previous year. The financial revenue category experienced a
62 percent increase in revenue over last year. This increase was driven by the
inclusion of nine months of operations from The Corporate Printing Company
acquisition in April 1996, as well as strong financial market activity
throughout fiscal year 1997. This financial market activity continues to be
strong and should result in continued growth for the financial revenue category
for the first quarter of fiscal year 1998. International revenues, which are
included in the financial revenue category, represented less than 5 percent of
consolidated revenues and approximated fiscal year 1996 international revenues.
Management does not anticipate significant fluctuations in the relative
percentage of international revenues during fiscal year 1998. Corporate revenue
increased 35 percent when compared to fiscal year 1996. This increase is
attributed to a strong demand for EDGAR services and growth in mutual fund
market share plus long-term mutual fund clients gained from The Corporate
Printing Company acquisition. Document management services revenues grew 26
percent in fiscal year 1997, reflecting continued growth in the number of
document service centers, which totaled 64 at January 31, 1997, and the
offering of new services such
- -------------------------------------------------------------------------------
PERCENTAGE OF REVENUES BY SERVICE 1997 1996 1995
- -------------------------------------------------------------------------------
Financial 40.6% 36.1% 33.4%
Corporate 27.6 29.5 33.4
Document management services 11.2 12.9 9.9
Commercial and other 20.6 21.5 23.3
7
<PAGE>
as records management and on-demand digital print services. The commercial and
other category experienced a 38 percent increase in revenue during the year. The
growth is primarily the result of including 10 months of operations of FMC
Resource Management Corporation, which was acquired in March 1996, and election-
related ballot work, which was lower in the off-election year of fiscal 1996.
Merrill/May revenues were up slightly from fiscal year 1996 revenues. Management
anticipates that, with the addition of new customer programs and operational
efficiency improvements, Merrill/May revenues and operating results will improve
during fiscal year 1998.
FISCAL YEAR 1996 VS. FISCAL YEAR 1995 - Revenues for fiscal year 1996 increased
4 percent to $245 million. The financial revenue category growth was 12 percent
reflecting improved financial market activity during the last half of fiscal
year 1996. Document management services revenues increased 35 percent during
fiscal year 1996, driven by the addition of 18 new document service centers,
bringing the total number of document service centers to 50. Revenue growth from
the financial and document management services categories was offset by declines
in revenue from the corporate and commercial and other revenue categories. A 9
percent decrease in corporate revenues reflects the absence of a few
significant, one-time mutual fund projects. The Company did not bid on these
low-margin projects after the last half of fiscal year 1995. Commercial and
other revenues were down slightly from fiscal 1995 levels, primarily from an
off-election year for ballot printing.
FISCAL YEAR 1995 VS. FISCAL YEAR 1994 - Revenues increased 30 percent in fiscal
year 1995 to $237 million. Approximately half of the revenue increase was
attributed to the inclusion of a full year of operations of May Printing
Company, which was acquired in December 1993. The May Printing acquisition was
primarily responsible for the 120 percent increase in revenues in our commercial
and other category. Also contributing to the revenue growth was the near
doubling in the number of document service centers. Corporate revenues grew 26
percent in fiscal year 1995, principally from increased mutual fund
documentation services and growth in the number of companies using electronic
filing services to comply with the Securities and Exchange Commission's EDGAR
program. Financial category revenues were virtually flat compared to fiscal year
1994 levels as rising interest rates and resulting uncertainty in the financial
markets caused a dramatic mid-year reduction in the volume of capital market
transactions.
GROSS PROFIT - Fiscal year 1997 gross profit increased to approximately 36
percent compared to 32 percent in fiscal year 1996. The increase in gross profit
is attributed to the significant increase in the volume of financial transaction
documents during the year. Financial transaction business generally results in
higher margins when compared to the other service categories offered by the
Company. The general increase in the volume of work across all service
categories also contributed to the increase in gross profit as the Company
maximized the utilization of its operating resources.
8
<PAGE>
Gross profit in fiscal year 1996 decreased slightly when compared to fiscal
year 1995 gross profit. Financial margins during the last half of fiscal year
1996 improved as the volume of financial work increased. Financial margins,
however, were lower than in prior years as a result of continued competitive
pricing pressures. Overall gross profit was also affected by the increase in
document management service revenue, which typically generates lower margins
than the Company's more traditional businesses. The reduction in gross profit
percentage in fiscal 1995 versus 1994 was caused primarily by the sharp
reduction in financial printing volume during the second half of the fiscal
year, which led to intense price competition. Also contributing to the decrease
was the growth in the Company's document management services business which has
historically realized lower gross margins than the Company's other businesses.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES - Selling, general and
administrative expenses have increased in each of the last three fiscal years.
The increase in these expenses in fiscal year 1997 was attributed to integration
costs associated with the fiscal year 1997 acquisition from The Corporate
Printing Company and acquisition of FMC Resource Management Corporation, the
related goodwill amortization, continued expansion of the Company's sales and
marketing activities and incentive compensation.
The increase in selling, general and administrative expenses in fiscal year
1996 was a result of the continued expansion of the Company's sales and
marketing organization, increased market penetration in existing offices and the
marketing of new services. In addition, our commercial and other businesses
continued to incur higher selling expenses to add more national clients and
increase marketing efforts to promote its service. The increase in fiscal year
1995 was attributed to the inclusion of a full year of expenses from
Merrill/May, together with the goodwill amortization associated with that
acquisition, and the increase in provision for losses on trade receivables
resulting from aborted securities offerings as a result of poor market
conditions.
INTEREST EXPENSE - Average short-term borrowings under the Company's bank line
of credit were approximately $30,117,000, $2,221,000 and $710,000 in fiscal
years 1997, 1996 and 1995, respectively. The significant increase in the average
short-term borrowings during 1997 resulted from financing the Company's
acquisition from The Corporate Printing Company and acquisition of FMC Resource
Management Corporation with the bank line of credit for approximately six months
of fiscal year 1997. Interest expense for fiscal year 1997 was significantly
higher than for fiscal year 1996, which is attributed to the financing of the
acquisitions noted above, and the increased need for working capital to support
the strong financial transaction activity. Fiscal year 1996 interest expense
remained relatively stable compared to fiscal year 1995. Fiscal year 1995
interest expense was up over the previous year as a result of cash expended and
debt assumed in connection with the December 1993 acquisition of May Printing
Company and interest expense associated with the Internal Revenue Service audits
discussed on the next page.
9
<PAGE>
PROVISION FOR INCOME TAXES - The effective tax rate for fiscal year 1997 was 45
percent, compared to 43 percent for fiscal years 1996 and 1995. The effective
rates were higher than the statutory federal rate of 35 percent primarily
because of state income taxes and the impact of increased non-deductible
business entertainment expenses incurred in conjunction with the additional
financial revenues previously discussed. The increase in the effective tax rate
for fiscal year 1995 versus 1994 was also affected by a provision for additional
taxes payable of approximately $650,000 for fiscal years 1992, 1993 and 1994,
resulting from an Internal Revenue Service audit of those years. The effective
income tax rate in future years is expected to approximate 45 percent.
IMPACT OF INFLATION - The Company does not believe that inflation has had a
significant impact on the results of its operations.
LIQUIDITY AND CAPITAL RESOURCES
Working capital at January 31, 1997, increased to $69.2 million from $39.4
million a year ago, reflecting the growth from acquisitions and strong sales
activity during the entire year when compared to fiscal year 1996 activity. The
increase in sales activity resulted in a corresponding increase in trade
receivables and work-in-process inventories at January 31, 1997. Capital
expenditures for the year were $9.2 million and were primarily related to
reprographics and computer-based production equipment. Cash and cash equivalents
decreased to $5.2 million and borrowings under the Company's line of credit were
$5.9 million at January 31, 1997. During the fourth quarter of fiscal year 1997,
the Company replaced its line of credit with a new $40 million line of credit
which expires on November 29, 1999. Long-term obligations at January 31, 1997,
were 30.8 percent of total capitalization compared to 7.7 percent at January 31,
1996. The significant increase in long-term obligations to capitalization is a
result of financing The Corporate Printing Company and FMC Resources Management
Corporation acquisitions with privately placed $35 million unsecured senior
notes during the third quarter of fiscal year 1997. The notes require semi-
annual principal payments commencing in 1999, maturing in 2006, and bear an
annual interest rate of 7.463 percent.
The Company expects capital expenditures in fiscal year 1998 to range from
$15 million to $20 million for computer and production equipment and facility
expansion and remodeling. Approximately $4.7 million of this amount is committed
at this time.
Working capital at January 31, 1996, increased to $39.4 million from $31.5
million at January 31, 1995, reflecting a rise in sales activity during the
fourth quarter, as compared to sales activity during the fourth quarter of
fiscal year 1995. The increase in sales activity contributed to corresponding
increases in year-end accounts receivable and work-in-process inventory
balances. Capital expenditures for fiscal year 1996 were $12.5 million, of which
$5.5 million represented the purchase of two administration buildings in St.
Paul which were previously partially leased. Other capital expenditures were
principally for production equipment and office remodeling and furnishings. Cash
and cash equivalents increased to $12.1 million at January 31, 1996, and
borrowings under the Company's bank line of credit were $6 million. Long-term
obligations to total capitalization were 7.7 percent at January 31, 1996,
compared to 10.2 percent a year ago.
10
<PAGE>
The Company has historically been working-capital intensive, but in recent
years has increased its needs for technology and production equipment. The
Company generally has been able to generate sufficient cash flow from operations
to fund its capital needs.
At January 31, 1997, the Company's principal internal sources of liquidity
were cash and cash equivalents and cash flow from operations. The Company has
available a $40 million unsecured bank line of credit expiring on November 29,
1999, under which there were $5.9 million of borrowings at January 31, 1997.
Management anticipates that these sources will satisfy its needs for fiscal year
1998.
NEW ACCOUNTING STANDARD
In March 1997, the Financial Accounting Standards Board issued Statement No.
128, "Earnings per Share." This statement establishes standards for computing
and presenting earnings per share information. The Company will compute and
present earnings per share information in accordance with this standard for
year-ending January 31, 1998, reporting. The Company does not anticipate that
this standard will have a significant impact on reported earnings per share.
QUARTERLY STOCK PRICE COMPARISON
Merrill Corporation shares are traded on The NASDAQ Stock Market under the
symbol MRLL. The table below sets forth the range of high and low sales prices
per share as reported by The NASDAQ Stock Market. These prices do not include
adjustments for retail markups, markdowns or commissions. There were
approximately 1,750 shareholders of record and non-objecting beneficial owners
of the Company's common stock at the close of trading on April 1, 1997. The
Company paid quarterly dividends of $.03 per share in fiscal 1997 and 1996,
totaling approximately $948,000 and $931,000, respectively.
First Second Third Fourth
Stock Price Per Share Quarter Quarter Quarter Quarter
- --------------------------------------------------------------------------------
FY1997 High 22 26 1/2 24 1/2 24 3/4
Low 14 1/2 18 1/4 19 20 1/2
FY1996 High 20 21 1/4 19 1/2 20 3/4
Low 14 3/4 15 3/4 15 3/4 14 1/4
- --------------------------------------------------------------------------------
11
<PAGE>
CONSOLIDATED BALANCE SHEETS
- --------------------------------------------------------------------------------
As of January 31,
---------------------
(IN THOUSANDS, EXCEPT SHARE DATA) 1997 1996
- --------------------------------------------------------------------------------
ASSETS
Current assets
Cash and cash equivalents $ 5,161 $ 12,074
Trade receivables, less allowance for doubtful
accounts of $6,027 and $3,545, respectively 81,733 48,566
Work-in-process inventories 24,958 10,898
Other inventories 4,878 5,235
Other current assets 9,933 2,463
- --------------------------------------------------------------------------------
Total current assets 126,663 79,236
Property, plant and equipment, net 34,717 31,681
Goodwill, net 34,030 10,528
Other assets 6,587 4,076
- --------------------------------------------------------------------------------
Total assets $201,997 $125,521
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities
Notes payable to banks $ 5,950 $ 6,000
Current maturities of long-term debt 645 770
Current maturities of capital lease obligations 307 538
Accounts payable 20,387 17,598
Accrued expenses 30,154 14,951
- --------------------------------------------------------------------------------
Total current liabilities 57,443 39,857
Long-term debt, net of current maturities 40,880 4,525
Capital lease obligations, net of current maturities 1,849 1,929
Other liabilities 5,665 1,476
- --------------------------------------------------------------------------------
Total liabilities 105,837 47,787
- --------------------------------------------------------------------------------
Commitments and contingencies (Notes 3, 5 and 10)
Shareholders' equity
Common stock, $.01 par value: 25,000,000 shares
authorized; 7,932,524 shares and 7,855,783 shares,
respectively, issued and outstanding 79 78
Undesignated stock: 500,000 shares authorized;
no shares issued
Additional paid-in capital 17,858 16,324
Retained earnings 78,223 61,332
- --------------------------------------------------------------------------------
Total shareholders' equity 96,160 77,734
- --------------------------------------------------------------------------------
Total liabilities and shareholders' equity $201,997 $125,521
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE CONSOLIDATED FINANCIAL
STATEMENTS.
12
<PAGE>
CONSOLIDATED STATEMENTS OF OPERATIONS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
For the Years Ended January 31,
--------------------------------
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA) 1997 1996 1995
- --------------------------------------------------------------------------------------
<S> <C> <C> <C>
Revenues $353,769 $245,306 $236,878
Cost of revenues 227,478 165,765 159,462
- --------------------------------------------------------------------------------------
Gross profit 126,291 79,541 77,416
Selling, general and administrative expenses 89,946 60,079 55,680
- --------------------------------------------------------------------------------------
Operating income 36,345 19,462 21,736
Interest expense (4,124) (1,099) (1,120)
Other income, net 263 343 538
- --------------------------------------------------------------------------------------
Income before provision for income taxes 32,484 18,706 21,154
Provision for income taxes 14,645 8,044 9,171
- --------------------------------------------------------------------------------------
Net income $ 17,839 $ 10,662 $ 11,983
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
Net income per common and common equivalent share:
Primary $ 2.19 $ 1.34 $ 1.50
Fully diluted $ 2.17 $ 1.34 $ 1.50
- --------------------------------------------------------------------------------------
Weighted average number of common and
common equivalent shares outstanding:
Primary 8,142,304 7,945,146 7,994,233
Fully diluted 8,214,618 7,949,263 7,994,139
- --------------------------------------------------------------------------------------
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE CONSOLIDATED FINANCIAL
STATEMENTS.
13
<PAGE>
CONSOLIDATED STATEMENTS OF CASH FLOWS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
For the Years Ended January 31,
-------------------------------
(IN THOUSANDS) 1997 1996 1995
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Operating activities
Net income $17,839 $10,662 $11,983
Adjustments to reconcile net income to net
cash provided by operating activities
Depreciation and amortization 10,825 9,724 8,651
Amortization of intangible assets 2,581 1,088 1,127
Provision for losses on trade receivables 2,861 1,486 2,038
Provision for unbillable inventories 2,678 250 (183)
Deferred income taxes (6,555) (2,583) (2,390)
Change in deferred compensation 401 582 600
Changes in operating assets and liabilities,
net of effects from business acquisitions
Trade receivables (18,499) (10,768) (1,946)
Work in process inventories (11,667) (4,141) 4,997
Other inventories 583 (709) (540)
Other current assets (1,718) 315 (31)
Accounts payable (3,720) 1,594 (126)
Accrued expenses 11,365 2,142 (368)
Income taxes 1,530 (89) (380)
- ------------------------------------------------------------------------------------------------
Net cash provided by operating activities 8,504 9,553 23,432
Investing activities
Purchase of property, plant and equipment (9,216) (12,487) (10,085)
Business acquisitions, net of cash acquired (26,010) (993)
Other (564) (727) (553)
- ------------------------------------------------------------------------------------------------
Net cash used in investing activities (35,790) (13,214) (11,631)
Financing activities
Borrowings on notes payable to banks 139,050 51,700 28,100
Repayments on notes payable to banks (139,100) (45,700) (30,700)
Proceeds from issuance of long-term debt 35,000
Principal payments on long-term debt and
capital lease obligations (15,164) (1,243) (2,273)
Dividends paid (948) (931) (908)
Tax benefit realized upon exercise of stock options 328 1,451 863
Other equity transactions, net 1,207 491 526
- ------------------------------------------------------------------------------------------------
Net cash provided by (used in)
financing activities 20,373 5,768 (4,392)
- ------------------------------------------------------------------------------------------------
(Decrease) increase in cash and cash equivalents (6,913) 2,107 7,409
Cash and cash equivalents, beginning of year 12,074 9,967 2,558
- ------------------------------------------------------------------------------------------------
Cash and cash equivalents, end of year $ 5,161 $12,074 $ 9,967
- ------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------
Supplemental cash flow disclosures
Income taxes paid $19,253 $ 9,268 $11,088
Interest paid 2,866 880 1,019
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE CONSOLIDATED FINANCIAL
STATEMENTS.
14
<PAGE>
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
For the Years Ended January 31, 1997, 1996, 1995
------------------------------------------------
Additional
Common Paid-in Retained
(IN THOUSANDS, EXCEPT PER SHARE DATA) Stock Capital Earnings Total
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Balance, January 31, 1994 $75 $12,996 $40,526 $53,597
- --------------------------------------------------------------------------------------------------------
Exercise of stock options 1 496 497
Tax benefit realized upon exercise of stock options 863 863
Other 29 29
Cash dividends ($.12 per share) (908) (908)
Net income 11,983 11,983
- --------------------------------------------------------------------------------------------------------
Balance, January 31, 1995 $76 $14,384 $51,601 $66,061
- --------------------------------------------------------------------------------------------------------
Exercise of stock options 2 1,022 1,024
Tax benefit realized upon exercise of stock options 1,451 1,451
Other (533) (533)
Cash dividends ($.12 per share) (931) (931)
Net income 10,662 10,662
- --------------------------------------------------------------------------------------------------------
Balance, January 31, 1996 $78 $16,324 $61,332 $77,734
- --------------------------------------------------------------------------------------------------------
Exercise of stock options 1 1,044 1,045
Tax benefit realized upon exercise of stock options 328 328
Other 162 162
Cash dividends ($.12 per share) (948) (948)
Net income 17,839 17,839
- --------------------------------------------------------------------------------------------------------
BALANCE, JANUARY 31, 1997 $79 $17,858 $78,223 $96,160
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE CONSOLIDATED FINANCIAL
STATEMENTS.
15
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 1 - NATURE OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES
- --------------------------------------------------------------------------------
NATURE OF BUSINESS - The Company provides paper and electronic document services
consisting of document typesetting, printing, reproduction, distribution and
publishing services to financial, legal, fund and corporate markets worldwide.
USE OF ESTIMATES - The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates. The most
significant areas which require the use of management's estimates relate to the
determination of the allowances for doubtful accounts and obsolete inventories.
PRINCIPLES OF CONSOLIDATION - The consolidated financial statements include all
majority-owned subsidiaries. All significant intercompany transactions and
balances have been eliminated.
CASH EQUIVALENTS - The Company considers all highly liquid investments purchased
with an original maturity of three months or less to be cash equivalents.
INVENTORIES - Work-in-process, which includes purchased services, materials,
direct labor and overhead, is valued at the lower of cost or net realizable
value, with cost determined on a specific job-cost basis. Other inventories
consist primarily of paper and printed materials and are valued at the lower of
cost or market, with cost determined on a specific job-cost basis.
PROPERTY, PLANT AND EQUIPMENT - Property, plant and equipment are stated at
cost. Significant additions or improvements extending asset lives are
capitalized; normal maintenance and repair costs are expensed as incurred.
Depreciation is determined using the straight-line method over the estimated
useful lives of the assets which range from three to 30 years. Amortization of
leasehold improvements is recorded on a straight-line basis over the estimated
useful lives of the assets or the lease term, whichever is shorter. When assets
are sold or retired, related gains or losses are included in the results of
operations.
GOODWILL - Goodwill recognized in business acquisitions accounted for as
purchases is amortized on the straight-line method, principally over 15 years.
The Company periodically evaluates the recoverability of unamortized goodwill
through measurement of future estimated undiscounted operating unit cash flows.
16
<PAGE>
INCOME TAXES - Deferred income taxes are recognized for the tax consequences in
future years of differences between the tax bases of assets and liabilities and
their financial reporting amounts at each year end based on enacted tax laws and
statutory tax rates applicable to the periods in which the differences are
expected to affect taxable income. Valuation allowances are established when
necessary to reduce deferred tax assets to the amount expected to be realized.
Income tax expense is the tax payable for the year and the change during the
year in deferred tax assets and liabilities.
REVENUE RECOGNITION - The Company recognizes revenue when service projects are
completed or products are shipped.
NET INCOME PER SHARE - Net income per common and common equivalent share is
computed by dividing net income by the weighted average number of shares of
common stock and dilutive common equivalent shares outstanding during each year.
Common stock equivalents result from dilutive stock options computed using the
treasury stock method. In March 1997, the Financial Accounting Standards Board
issued Statement No. 128 "Earnings per Share," which the Company will adopt
effective for its fiscal 1998 year end reporting. The Company will be required
to report basic net income per share based on weighted average common shares
outstanding, without considering common equivalent shares, and diluted net
income per share based on weighted average common equivalent shares outstanding.
Diluted net income per share would be equivalent to the Company's current
reporting primary net income per share.
STOCK-BASED COMPENSATION - In accordance with Statement of Financial Accounting
Standards No. 123, "Accounting for Stock-Based Compensation" (SFAS No. 123), the
Company has chosen to continue to account for stock-based compensation using the
intrinsic value method prescribed in Accounting Principles Board Opinion No. 25,
"Accounting for Stock Issued to Employees," and related interpretations.
Accordingly, compensation costs for stock options granted to employees are
measured as the excess, if any, of the value of the Company's stock at the date
of the grant over the amount an employee must pay to acquire the stock. Such
compensation costs, if any, are amortized on a straight-line basis over the
underlying option vesting terms. The Company accounts for stock-based
compensation to non-employees using the fair value method prescribed by SFAS No.
123. Compensation costs for stock options granted to non-employees are measured
as the excess of the fair value of the option over the amount the holder must
pay to acquire the stock.
17
<PAGE>
NOTE 2 - SELECTED FINANCIAL STATEMENT DATA
- --------------------------------------------------------------------------------
As of January 31,
--------------------
(IN THOUSANDS) 1997 1996
- -------------------------------------------------------------------------------
PROPERTY, PLANT AND EQUIPMENT
Land $ 1,951 $ 1,951
Buildings 11,778 11,389
Equipment 45,250 37,907
Furniture and fixtures 9,655 8,228
Leasehold improvements 9,923 6,831
Construction in progress 659 404
- -------------------------------------------------------------------------------
79,216 66,710
Less accumulated depreciation and amortization (44,499) (35,029)
- -------------------------------------------------------------------------------
$ 34,717 $ 31,681
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
GOODWILL
Goodwill $ 38,481 $ 12,597
Less accumulated amortization (4,451) (2,069)
- -------------------------------------------------------------------------------
$ 34,030 $ 10,528
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
ACCRUED EXPENSES
Commissions and compensation $ 17,926 $ 7,906
Retirement plan 3,860 3,620
Other 8,368 3,425
- -------------------------------------------------------------------------------
$ 30,154 $ 14,951
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NOTE 3 - BUSINESS ACQUISITIONS
- --------------------------------------------------------------------------------
On April 15, 1996, the Company purchased substantially all of the operating
assets and assumed certain liabilities of The Corporate Printing Company, Inc.
and Affiliated Group (CPC) for approximately $22.6 million in cash. The Company
did not purchase any assets relating to CPC's pressroom and shipping businesses.
The purchase price was subsequently reduced by approximately $1.7 million in
accordance with terms of the purchase agreement. The agreement includes
additional contingent purchase consideration, not to exceed $12 million, based
on increases in the average stock price, as defined in the agreement, of the
Company's common stock through April 15, 2001. The Company also entered into a
five-year non-compete agreement with CPC's principal shareholder that requires
payments totaling $3.4 million through April 15, 2001. The principal shareholder
is also entitled to an additional $500,000 annually, through March 31, 2001, if
the Company maintains certain business of a specified customer. The acquisition
has been accounted for as a purchase. The excess of the adjusted purchase price
over the estimated fair values of the net tangible and identifiable intangible
assets acquired approximated $18.5 million and is being amortized using the
straight-line method over 15 years.
18
<PAGE>
NOTE 3 - BUSINESS ACQUISITIONS, CONTINUED
- --------------------------------------------------------------------------------
On March 28, 1996, the Company purchased all of the outstanding common stock of
FMC Resource Management Corporation for $5.4 million in cash and promissory
notes for $2.0 million. The agreement calls for additional contingent
consideration, not to exceed $4 million, based on annual gross profits of the
acquired business through January 31, 2001, as defined in the agreement. The
acquisition has been accounted for as a purchase. The excess of the purchase
price over the estimated fair values of the net tangible and identifiable
intangible assets acquired approximated $6.0 million and is being amortized
using the straight-line method over 15 years.
Results of the acquired companies' operations have been included in the
Consolidated Statements of Operations from their respective dates of
acquisitions. Pro forma (unaudited) results of the Company for the years ended
January 31, 1997 and 1996 as if the acquisitions had been effective at
February 1, 1995 are as follows:
For the Years Ended January 31,
-------------------------------
(IN THOUSANDS, EXCEPT PER SHARE DATA) 1997 1996
- --------------------------------------------------------------------------------
Revenues $376,647 $325,157
Net income 17,047 8,263
Net income per share - primary 2.09 1.04
- --------------------------------------------------------------------------------
NOTE 4 - FINANCING ARRANGEMENTS
BANK FINANCING - In November 1996, the Company entered into a new revolving
credit agreement with a group of banks that provides for a $40 million unsecured
bank line of credit which expires on November 29, 1999. Borrowings under the
agreement were $5,950,000 at January 31, 1997, and bear interest at the Agent's
reference rate (8.25% at January 31, 1997). Borrowings under the previous
revolving credit agreement, at January 31, 1996, were $6 million and bore
interest at 8.5%. Under the new agreement, the Company has the option to borrow
at the Agent's reference rate, at 1% above the London Interbank Offered Rate
(LIBOR) or at 1.0% above a certificate of deposit-based rate, and is required to
pay quarterly commitment fees of 0.25% on the unused portion of the line of
credit. The weighted average interest rates on borrowings on the line of credit
were 7.39%, 8.83% and 7.18% for the years ended 1997, 1996 and 1995,
respectively. The revolving credit agreement includes various covenants,
including the maintenance of minimum tangible net worth and limitations on the
amounts of certain transactions, including payment of dividends.
19
<PAGE>
NOTE 4 - FINANCING ARRANGEMENTS, CONTINUED
- --------------------------------------------------------------------------------
LONG-TERM DEBT - Long-term debt consisted of the following:
As of January 31,
------------------
(IN THOUSANDS) 1997 1996
- --------------------------------------------------------------------------------
Unsecured senior notes, bearing interest at 7.463%,
with semi-annual interest payments through October
1999, at which time semi-annual principal and
interest payments are due through October 2006. The
notes have various covenants, including the
maintenance of certain financial ratios and
limitations on the amount of certain transactions
including the payment of dividends. $35,000
Industrial development bonds, due in semi-annual
installments including interest ranging from 7.0% to
8.375%, over the life of the bonds with the remaining
unpaid balance due on August 1, 2010; collateralized
by land, building and equipment with a carrying value
of $4,279 at January 31, 1997. 3,525 $ 3,660
Unsecured promissory notes payable due in March 1999.
The notes bear interest at LIBOR plus 1.0%,
adjustable and payable annually. The interest rate
at January 31, 1997 was 6.608%. 2,000
Unsecured promissory note payable in equal installments
of $500 on December 31 through 1998. The note bears
interest at the prime rate and is payable annually.
The prime interest rate at January 31, 1997 and 1996
was 8.25% and 8.5%, respectively. 1,000 1,500
Other notes 135
- --------------------------------------------------------------------------------
41,525 5,295
Less current maturities (645) (770)
- --------------------------------------------------------------------------------
$40,880 $ 4,525
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
The aggregate maturities of long-term debt are as follows:
(IN THOUSANDS)
- --------------------------------------------------------------------------------
1998 $ 645
1999 655
2000 2,170
2001 5,180
2002 5,195
Thereafter 27,680
- --------------------------------------------------------------------------------
$41,525
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Based on quoted market prices for similar issues, the fair value of long-term
debt approximated its reported value at January 31, 1997 and 1996.
20
<PAGE>
NOTE 5 - LEASES
- --------------------------------------------------------------------------------
The Company leases an office and production facility and the associated land and
equipment under capital leases that terminate at various dates through November
30, 2005. Certain leases contain bargain purchase options. A summary of the
Company's property under capital leases, which is classified as property, plant
and equipment, is as follows:
As of January 31,
-----------------
(IN THOUSANDS) 1997 1996
- -------------------------------------------------------------------------------
Land $ 333 $ 333
Building 2,439 2,439
Equipment 594 542
Less accumulated amortization (1,129) (856)
- -------------------------------------------------------------------------------
$ 2,237 $ 2,458
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
The Company also leases office space and equipment under noncancelable operating
leases which expire at various dates through October 31, 2014. Rental expense
charged to operations was $6,009,000, $5,123,000 and $4,867,000, for the years
ended January 31, 1997, 1996 and 1995, respectively.
Future minimum rental commitments under noncancelable leases at January 31,
1997, are as follows:
Capital Operating
(IN THOUSANDS) Leases Leases
- --------------------------------------------------------------------------------
1998 $ 497 $ 5,218
1999 434 3,758
2000 392 2,738
2001 330 2,202
2002 330 1,721
Thereafter 1,265 13,700
- -------------------------------------------------------------------------------
3,248 $ 29,337
--------
--------
Imputed interest (1,092)
Present value of minimum lease payments 2,156
Less current maturities of obligations under capital leases (307)
- -------------------------------------------------------------------
Long-term obligations under capital leases $ 1,849
- -------------------------------------------------------------------
- -------------------------------------------------------------------
21
<PAGE>
NOTE 6 - INCOME TAXES
- --------------------------------------------------------------------------------
Components of the provision for income taxes are as follows:
For the Years Ended January 31,
-------------------------------
(IN THOUSANDS) 1997 1996 1995
- --------------------------------------------------------------------------------
Currently payable
Federal $17,758 $ 9,203 $ 9,879
State 3,442 1,424 1,682
21,200 10,627 11,561
Deferred (6,555) (2,583) (2,390)
- --------------------------------------------------------------------------------
Provision for income taxes $14,645 $ 8,044 $ 9,171
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Temporary differences comprising the net deferred tax asset recognized in the
accompanying Consolidated Balance Sheets are as follows:
As of January 31,
-------------------
(IN THOUSANDS) 1997 1996
- --------------------------------------------------------------------------------
Allowance for doubtful accounts $2,676 $1,383
Deferred compensation 1,382 576
Depreciation and amortization 1,102 351
Insurance reserves 1,001 492
Inventories 300 (2,068)
Other, net 980 152
- --------------------------------------------------------------------------------
Net deferred tax asset $7,441 $ 886
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Management expects that the Company will fully realize the benefits attributable
to the net deferred tax asset at January 31, 1997. Accordingly, no valuation
allowance has been recorded at January 31, 1997.
Significant differences between income taxes on income for financial
reporting purposes and income taxes calculated using the federal statutory tax
rate are as follows:
As of January 31,
------------------------------
(IN THOUSANDS) 1997 1996 1995
- --------------------------------------------------------------------------------
Provision for federal income taxes at
statutory rate $11,369 $6,547 $7,404
State income taxes, net of federal benefit 1,444 695 1,039
Non-deductible business meeting and
entertainment expenses 1,210 778 565
Other 622 24 163
- --------------------------------------------------------------------------------
$14,645 $8,044 $9,171
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
22
<PAGE>
NOTE 7 - RETIREMENT PLAN
- --------------------------------------------------------------------------------
The Company has a defined contribution retirement plan covering substantially
all employees. Contributions to the plan are based on 7% of eligible employee
compensation. Costs charged to operations were $3,860,000, $3,620,000 and
$3,403,000 for the years ended January 31, 1997, 1996 and 1995, respectively.
NOTE 8 - SHAREHOLDERS' EQUITY
- --------------------------------------------------------------------------------
COMMON STOCK - The classes, series, rights and preferences of the undesignated
stock may be established by the Company's Board of Directors. No action with
respect to such shares has been taken. During fiscal year 1997, the Company's
Board of Directors approved the repurchase of up to 750,000 shares of the
Company's common stock. No shares were repurchased as of January 31, 1997.
STOCK PLANS - Under Company-sponsored incentive and stock option plans,
2,508,000 shares of common stock were reserved for granting of incentive awards
to employees in the form of incentive stock options, non-statutory stock options
and restricted stock awards, at exercise prices not less than 100% of the fair
market value of the Company's common stock on the date of grant. As of January
31, 1997, incentive stock options for 108,666 shares, non-statutory options for
1,813,000 shares and 31,700 restricted stock awards had been granted under the
plans, leaving 554,634 shares available for future grants.
In May 1996, the shareholders of the Company approved the Company's 1996
Non-employee Director Plan (the Plan) whereby 200,000 shares of common stock are
reserved for granting of non-statutory options and awarding of common shares as
partial payment to non-employee directors who serve on the Company's Board of
Directors. Non-statutory stock options issued under the Plan are granted at an
exercise price not less than 100% of the fair market value of the Company's
common stock on the date of grant. Compensation expense is recorded when common
stock is awarded as partial payment for the director's annual retainer in an
amount approximately equal to the fair market value of the Company's common
stock on the date of grant. As of January 31, 1997, non-statutory options for
18,000 shares and 1,750 shares of common stock were granted under the plan,
leaving 180,250 shares available for future grants.
In addition to options granted under the plans above, the Company has
granted non-qualified options to directors and consultants at prices equal to or
exceeding market value at date of grant. Options granted under all Company-
sponsored stock plans generally vest over seven years and expire in 10 years.
23
<PAGE>
NOTE 8 - SHAREHOLDERS' EQUITY, CONTINUED
- --------------------------------------------------------------------------------
A summary of selected information regarding all stock options for the three
years ended January 31, 1997, is as follows:
Weighted Average
Number of Exercise Price Exercise Price
Shares Per Share Per Share
- --------------------------------------------------------------------------------
Balance, January 31, 1994 1,022,934 $ 3.37 - 29.50 $12.02
Granted 110,664 14.56 - 29.75 23.64
Exercised (113,134) 3.37 - 17.50 4.39
Canceled (34,500) 3.87 - 17.37 15.17
- --------------------------------------------------------------------------------
Balance, January 31, 1995 985,964 3.37 - 29.75 14.12
Granted 304,500 16.25 - 18.50 16.43
Exercised (278,300) 3.37 - 17.37 3.68
Canceled (84,850) 17.37 - 29.75 20.10
- --------------------------------------------------------------------------------
Balance, January 31, 1996 927,314 4.00 - 29.75 16.92
Granted 546,000 16.25 - 23.94 18.13
Exercised (76,218) 7.37 - 20.75 13.70
Canceled (53,182) 16.25 - 26.50 19.71
- --------------------------------------------------------------------------------
BALANCE, JANUARY 31, 1997 1,343,914 $ 4.00 - 29.75 $17.49
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
At January 31, 1997, the weighted average exercise price and remaining life of
the stock options are as follows:
Range of exercise prices $4.00-16.50 $17.37-29.75 Total
- --------------------------------------------------------------------------------
Total options outstanding 674,450 669,464 1,343,914
Weighted average exercise price $14.72 $20.27 $17.49
Weighted average remaining life 6.7 years 7.8 years 7.2 years
Options exercisable 215,550 178,714 394,264
Weighted average price of
exercisable options $11.49 $22.22 $16.35
- --------------------------------------------------------------------------------
24
<PAGE>
NOTE 8 - SHAREHOLDERS' EQUITY, CONTINUED
- --------------------------------------------------------------------------------
Had the Company used the fair value-based method of accounting for its incentive
and stock option plans beginning on February 1, 1995, and charged compensation
cost against income, over the vesting period, based on the fair value of options
at the date of grant, net income and net income per common share would have been
reduced to the following pro forma amounts:
For the Years Ended January 31,
-------------------------------
(IN THOUSANDS EXCEPT PER SHARE DATA) 1997 1996
- --------------------------------------------------------------------------------
NET INCOME
As reported $17,839 $10,662
Pro forma 17,223 10,444
- --------------------------------------------------------------------------------
NET INCOME PER COMMON SHARE - PRIMARY
As reported $ 2.19 $ 1.34
Pro forma - primary 2.12 1.31
- --------------------------------------------------------------------------------
The pro forma information above includes only stock options granted in fiscal
years 1997 and 1996. Compensation expense under the fair value-based method of
accounting will increase in the future as additional stock option grants are
considered.
The weighted-average grant date fair value of options granted during fiscal
years 1997 and 1996 was $9.44 and $8.84, respectively. The weighted-average
grant date fair value of options was determined by using the fair value of each
option grant, utilizing the Black-Scholes option-pricing model and the following
key assumptions:
For the Years Ended January 31,
-------------------------------
1997 1996
- --------------------------------------------------------------------------------
Risk free interest rate 6.87% 6.28%
Expected life 6 years 6 years
Expected volatility 48.85% 49.26%
Expected dividend yield 0.68% 0.58%
- --------------------------------------------------------------------------------
25
<PAGE>
NOTE 9 - QUARTERLY FINANCIAL DATA (UNAUDITED)
- --------------------------------------------------------------------------------
The following is a summary of unaudited quarterly financial data for the years
ended January 31, 1997 and 1996:
<TABLE>
<CAPTION>
First Second Third Fourth
(IN THOUSANDS EXCEPT PER SHARE DATA) Quarter Quarter Quarter Quarter Total
- -----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1997 Revenues $71,200 $87,569 $93,776 $101,224 $353,769
Gross profit 25,170 32,691 32,273 36,157 126,291
Net income 4,245 4,671 4,377 4,546 17,839
Net income per share - primary .54 .57 .53 .55 2.19
Dividends declared per share .03 .03 .03 .03 .12
- -----------------------------------------------------------------------------------------
1996 Revenues $57,432 $62,703 $62,475 $ 62,696 $245,306
Gross profit 18,616 18,888 20,986 21,051 79,541
Net income 2,076 2,714 3,035 2,837 10,662
Net income per share .26 .34 .38 .36 1.34
Dividends declared per share .03 .03 .03 .03 .12
- -----------------------------------------------------------------------------------------
</TABLE>
NOTE 10 - SUBSEQUENT EVENTS
- --------------------------------------------------------------------------------
On February 21, 1997, the Company received substantially all operating assets in
return for assuming certain liabilities of Roald Marth Learning Systems, Inc.,
doing business as Superstar Computing. In addition, the agreement requires the
Company to pay contingent cash consideration of up to $5 million, dependent on
future performance of Superstar Computing, as defined by the purchase agreement.
Subsequent to January 31, 1997, the Company repurchased 132,000 shares of
its common stock for approximately $3.1 million.
26
<PAGE>
SUMMARY OF OPERATING AND FINANCIAL DATA
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
For the Years Ended January 31,
(IN THOUSANDS, EXCEPT EMPLOYEE, ---------------------------------------------------------------
PER SHARE DATA AND RATIO) 1997 1996 1995 1994 1993 1992
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
OPERATING RESULTS
Revenues $353,769 $245,306 $236,878 $181,584 $147,716 $125,312
Costs and expenses 321,285 226,600 215,724 159,593 133,552 114,559
Income before provision
for income taxes 32,484 18,706 21,154 21,991 14,164 10,753
Provision for income taxes 14,645 8,044 9,171 8,820 5,565 4,308
- ----------------------------------------------------------------------------------------------------
Net income $ 17,839 $ 10,662 $ 11,983 $ 13,348 $ 8,599 $ 6,518
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
PER COMMON SHARE
Net income - primary $ 2.19 $ 1.34 $ 1.50 $ 1.67 $ 1.12 $ .86
Net income - fully $ 2.17 $ 1.34 $ 1.50 $ 1.67 $ 1.11 $ .86
Book value $ 12.12 $ 9.90 $ 8.69 $ 7.15 $ 5.36 $ 4.11
FINANCIAL DATA/OTHER
Working capital $ 69,220 $ 39,379 $ 31,523 $ 22,528 $ 24,650 $ 17,550
Current ratio 2.2 2.0 2.0 1.6 2.1 1.9
Total assets $201,997 $125,521 $106,470 $100,123 $ 66,042 $ 52,954
Shareholders' equity $ 96,160 $ 77,734 $ 66,061 $ 53,597 $ 39,330 $ 29,116
Return on average
shareholders' equity 20.5% 14.8% 20.0% 28.7% 25.1% 25.3%
Long-term obligations $ 42,729 $ 6,454 $ 7,522 $ 8,656 $ 2,138 $ 2,230
Long-term obligations
to capitalization 30.8% 7.7% 10.2% 13.9% 5.2% 7.1%
Number of employees 2,320 1,932 1,739 1,601 1,041 831
- ----------------------------------------------------------------------------------------------------
</TABLE>
27
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
- --------------------------------------------------------------------------------
To the Shareholders and Board of Directors of Merrill Corporation:
We have audited the accompanying consolidated balance sheets of Merrill
Corporation as of January 31, 1997 and 1996 and the related consolidated
statements of operations, cash flows and changes in shareholders' equity for
each of the three years in the period ended January 31, 1997. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based
on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements.
An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present
fairly, in all material respects, the consolidated financial position of
Merrill Corporation as of January 31, 1997 and 1996, and the consolidated
results of its operations and its cash flows for each of the three years in
the period ended January 31, 1997, in conformity with generally accepted
accounting principles.
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
St. Paul, Minnesota
March 25, 1997, except as to the
second paragraph of Note 10,
for which the date is April 16, 1997.
28
<PAGE>
Exhibit 21.1
SUBSIDIARIES OF THE COMPANY
<TABLE>
<CAPTION>
JURISDICTION OF
NAME INCORPORATION PERCENT OWNED
- --------------------------------------------------------------------- --------------- -------------
<S> <C> <C>
Merrill/New York Company............................................. Minnesota 100%
Merrill/Magnus Publishing Corporation................................ Minnesota 100%
Merrill Corporation, Canada ......................................... Ontario 100%
Merrill/May, Inc..................................................... Minnesota 100%
Merrill International Inc............................................ Minnesota 100%
Merrill Real Estate Company.......................................... Minnesota 100%
FMC Resource Management Corporation.................................. Washington 100%
Merrill/Superstar Computing Company.................................. Minnesota 100%
</TABLE>
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement on
Forms S-8 of Merrill Corporation (File No. 33-46275, File No. 33-52623 and
File No. 333-06897) of our report dated March 25, 1997, except as to the
second paragraph of Note 10, for which the date is April 16, 1997, on our
audits of the consolidated financial statements of Merrill Corporation as of
January 31, 1997 and 1996, and for each of the three years in the period
ended January 31, 1997, which report is incorporated by reference in this
Annual Report on Form 10-K, and our report dated March 25, 1997, on the
related financial statement schedule included in this Annual Report on Form
10-K.
COOPERS & LYBRAND L.L.P.
Minneapolis, Minnesota
April 29, 1997
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> JAN-31-1997
<PERIOD-START> FEB-01-1996
<PERIOD-END> JAN-31-1997
<CASH> 5,161
<SECURITIES> 0
<RECEIVABLES> 87,760
<ALLOWANCES> 6,027
<INVENTORY> 29,836
<CURRENT-ASSETS> 126,663
<PP&E> 79,216
<DEPRECIATION> 44,499
<TOTAL-ASSETS> 201,997
<CURRENT-LIABILITIES> 57,443
<BONDS> 43,681
0
0
<COMMON> 79
<OTHER-SE> 96,081
<TOTAL-LIABILITY-AND-EQUITY> 201,997
<SALES> 353,769
<TOTAL-REVENUES> 353,769
<CGS> 227,478
<TOTAL-COSTS> 227,478
<OTHER-EXPENSES> 89,946
<LOSS-PROVISION> 2,861
<INTEREST-EXPENSE> 4,124
<INCOME-PRETAX> 32,484
<INCOME-TAX> 14,645
<INCOME-CONTINUING> 17,839
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 17,839
<EPS-PRIMARY> 2.19
<EPS-DILUTED> 2.17
</TABLE>
