<PAGE>
As filed with the Securities and Exchange Commission on September 24, 1997
REGISTRATION NO. 333-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MAIL-WELL, INC.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<CAPTION>
<S> <C> <C>
COLORADO 23 INVERNESS WAY, SUITE 160 84-1250533
(State or Other Jurisdiction of ENGLEWOOD, CO 80112 (I.R.S. Employer
Incorporation or Organization) (303) 790-8023 Identification Number)
</TABLE>
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
ROGER WERTHEIMER, ESQ.
23 INVERNESS WAY, SUITE 160
ENGLEWOOD, CO 80112
(303) 790-8023
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
Herbert H. Davies III, Esq.
Rothgerber, Appel, Powers & Johnson LLP
1200 Seventeenth Street, Suite 3000
Denver, Colorado 80202
(303) 623-9000
Approximate date of commencement of proposed sale to the public: from time to
time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 of the Securities Act of 1933,
other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================
PROPOSED MAXIMUM
AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED OFFERING PRICE (1) REGISTRATION FEE (1)
<S> <C> <C>
- -----------------------------------------------------------------------------------------------------------------
Debt Securities (2)....................................................
- -----------------------------------------------------------------------------------------------------------------
Preferred Stock, par value $0.01 per share (2).........................
- -----------------------------------------------------------------------------------------------------------------
Depository shares representing Preferred Stock, without par value (2)..
- -----------------------------------------------------------------------------------------------------------------
Common Stock, par value $0.01 per share (2)............................
- -----------------------------------------------------------------------------------------------------------------
Warrants (2)...........................................................
- -----------------------------------------------------------------------------------------------------------------
Total $300,000,000 $90,910
================================================================================================================
</TABLE>
(1) Calculated pursuant to Rule 457(o) based on the maximum aggregate offering
price of all the Securities.
(2) There is being registered hereunder such indeterminate principal amount of
Debt Securities, such indeterminate number of Warrants and such
indeterminate number of shares of Preferred Stock, Depository Shares and
Common Stock as may be issued from time to time by the Registrant, including
Securities issued upon conversion, exchange or exercise of Warrants or
convertible or exchangeable Debt Securities or Preferred Stock.
___________________
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED SEPTEMBER 24, 1997
PROSPECTUS
- --------------------------------------------------------------------------------
$300,000,000
MAIL-WELL, INC.
Debt Securities
Preferred Stock
Depository Shares
Common Stock
Warrants
- --------------------------------------------------------------------------------
Mail-Well, Inc., a Colorado corporation (the "Company" or "Mail-Well"), may
offer from time to time, in one or more series (i) debt securities (the "Debt
Securities"), which may be senior subordinated debt securities ("Senior
Subordinated Debt Securities") or subordinated debt securities ("Subordinated
Debt Securities"), in each case consisting of debentures, notes and/or other
unsecured evidences of indebtedness, (ii) shares of Preferred Stock, par value
$0.01 per share (the "Preferred Stock"), (iii) Preferred Stock represented by
depository shares ("Depository Shares"), (iv) shares of its common stock, par
value $0.01 per share (the "Common Stock") and (v) warrants to purchase Debt
Securities, Preferred Stock or shares of Common Stock (the "Warrants"), as shall
be designated by the Company at the time or times of the offering. The Debt
Securities, the Preferred Stock, the Common Stock, the Warrants and any shares
of Common Stock issuable upon conversion or exchange of the Debt Securities or
Preferred Stock or exercise of the Warrants are collectively referred to as the
"Securities" and will have an aggregate public offering price of up to
$300,000,000 or the equivalent thereof in U.S. dollars if any Securities are
denominated in a currency other than U.S. dollars or in currency units. The
Securities may be offered separately or together (in any combination) and as a
separate series, in any case in amounts, at prices and on terms to be determined
at the time of sale.
The form in which the Securities are to be issued will be set forth in a
Prospectus Supplement (including any related term sheet) relating to such
Securities (the "Prospectus Supplement"), together with the offering terms of
such Securities, and will include where applicable, their specific designation,
aggregate principal amount or aggregate public offering price, maturity, if any,
rate and times of payment of interest or dividends, if any, redemption,
conversion, exchange and sinking fund terms, if any, exercise price and
detachability, if any, and other specific terms. If so specified in the
applicable Prospectus Supplement, Debt Securities of a series may be issued in
whole or in part in the form of one or more temporary or permanent global
securities. The Prospectus Supplement will also contain information, as
applicable, about certain material United States federal income tax
considerations relating to the particular securities offered thereby. The
Prospectus Supplement will also contain information, where applicable, as to any
listing on a national securities exchange of the securities covered by such
Prospectus Supplement.
The Securities may be offered directly through agents designated from time to
time by the Company or to or through underwriters or dealers. The names of such
agents, dealers or underwriters and any applicable purchase price, fee,
underwriting discounts and commissions and the net proceeds from such sale will
be set forth, or will be calculable from the information set forth, in the
applicable Prospectus Supplement. See "Plan of Distribution." No Securities may
be sold without delivery of the applicable Prospectus Supplement describing the
method and terms of offering of such Securities.
SEE "RISK FACTORS" ON PAGES 4 TO 7 FOR A DISCUSSION OF CERTAIN FACTORS THAT
SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS IN CONNECTION WITH AN INVESTMENT
IN THE SECURITIES.
- --------------------------------------------------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
- --------------------------------------------------------------------------------
This Prospectus is dated , 1997
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, 450 Fifth
Street, N.W. Washington, D.C. 20549; 7 World Trade Center, 13th Floor, New York,
New York 10048; and Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. Copies of such material can be obtained at prescribed
rates from the Public Reference Section of the Commission at 450 Fifth Street,
N.W. Washington, D.C. 20549. Such reports and other information concerning the
Company may also be inspected at the offices of the New York Stock Exchange, 20
Broad Street, New York, New York 10005. The Commission also maintains a site on
the World Wide Web at http://www.sec.gov that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the Commission.
The Company has filed with the Commission a registration statement on Form
S-3 (including all amendments thereto, the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Securities offered hereby. As permitted by the rules and regulations of the
Commission, this Prospectus does not contain all of the information set forth in
the Registration Statement and the exhibits and schedules thereto. Such
additional information is available for inspection and copying at the offices of
the Commission. Statements contained in this Prospectus, in any Prospectus
Supplement or in any document incorporated by reference herein or therein as to
the contents of any contract or other document referred to herein or therein are
not necessarily complete, and in each instance reference is made to the copy of
such contract or other document filed as an exhibit to, or incorporated by
reference in, the Registration Statement, each such statement being qualified in
all respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, all of which were previously filed by the Company
(File No. 0-26692) with the Commission pursuant to the Exchange Act, are hereby
incorporated by reference in this Prospectus:
(1) the Company's Annual Report on Form 10-K for the year ended December
31, 1996;
(2) the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997 and June 30, 1997;
(3) the Company's Current Report on Form 8-K, dated May 20, 1997.
All reports and documents filed by the Company subsequent to the date of
this Prospectus pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act and prior to the termination of the offering of the Securities covered by
this Prospectus shall be deemed to be incorporated by reference and to be a part
hereof from the date of filing of such documents.
Any statement contained herein or in a document incorporated by reference
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that such statement
is modified or replaced by a statement contained in this Prospectus or in any
other subsequently filed document that also is or is deemed to be incorporated
by reference into this Prospectus. Any such statement so modified or superseded
shall not be deemed, except as so modified or replaced, to constitute a part of
this Prospectus.
The Company undertakes to provide without charge to each person to whom a
copy of this Prospectus has been delivered, upon the written or oral request of
any such person to the Company, a copy of any or all of the documents referred
to above that have been or may be incorporated into this Prospectus by
reference, including exhibits to such documents (unless such exhibits are
specifically incorporated by reference to such documents). Requests for such
copies should be directed to Investor Relations, Mail-Well, Inc., 23 Inverness
Way East, Englewood, Colorado 80112, telephone number (303) 790-8023.
-2-
<PAGE>
THE COMPANY
Mail-Well, Inc. (the "Company") is the largest printer and manufacturer of
envelopes in the United States and Canada, competing primarily in the higher-
margin consumer direct market segment of the envelope industry in which
envelopes are designed and manufactured to customer specifications. In
addition, the Company is the leading high-impact color printer in the United
States. As of August 31, 1997, the Company and its subsidiaries operated 52
envelope plants and printing facilities throughout the United States and Canada
serving over 40,000 customers.
Since its formation in 1994, the Company has achieved significant growth in
both revenues and net income through a business strategy that focuses on
acquisitions, internal growth and operating leverage. As a result of this
strategy, revenue and net income increased to $778.5 million and $16.9 million,
respectively, for the Company in 1996 from $262.3 million and $1.4 million,
respectively, for the Company and its predecessors in 1994. For the six months
ended June 30, 1997, the Company's revenue and net income grew to $419.5 million
and $12.6 million, respectively, from $378.8 million and $6.4 million,
respectively, during the same period in 1996.
The envelope and high-impact color printing industries are highly
fragmented. There are approximately 215 independent envelope companies in the
United States and Canada, generating in excess of $3.0 billion in annual
revenues. The Company estimates that there are approximately 500 commercial
printing companies in the United States competing in the high-impact color
segment of the printing industry, generating approximately $3.5 billion in
annual revenues in that segment. The Company's objective is to grow both
internally and externally. Internally, the Company plans to expand the products
and services sold to existing customers and to add new customers. Externally,
the Company plans to continue to grow by pursuing acquisition opportunities to
capitalize on the consolidation occurring within these industries. From
December 1, 1994 through July 31, 1997, the Company completed nine acquisitions
in the envelope and commercial printing industries, ranging in size from $6.5
million to $98.0 million.
Management believes that it enjoys, and will continue to enjoy, certain
competitive advantages, including (i) the ability to utilize the Company's
network of strategically located plants and sales offices to attract customers
that require production from multiple locations, (ii) the ability to realize
cost savings as a result of volume related purchases of paper, ink and other raw
materials, (iii) the reduction of overhead expense through the consolidation of
certain administrative functions for insurance, employee health benefits and
financial management, (iv) the ability to increase profitability through the
optimization of equipment utilization among facilities, (v) the ability to offer
customers greater flexibility in meeting their needs due to more available
capacity and equipment capabilities and (vi) the ability to combine the
responsiveness of a local or regional facility with the resources of a large
national company.
The Company's envelope products include standard size envelopes as well as
envelopes with features customized for mass mailing markets. The Company also
produces medical folders, overnight mailers, photofinishing envelopes, airline
and car rental jackets, tags and interoffice envelopes. The Company's high-
impact printed products are designed to elicit the maximum response from the
reader and include advertising literature, high-end catalogs and brochures,
calendars and annual reports. The Company is recognized as an innovative
provider of quality printed products to leading companies throughout the United
States.
The Company's principal executive offices are located at 23 Inverness Way
East, Englewood, Colorado 80112; its telephone number is (303) 790-8023.
-3-
<PAGE>
RISK FACTORS
An investment in the Securities offered hereby involves a high degree of
risk. Prospective investors should consider carefully the following factors, in
addition to other information contained in this Prospectus and any Prospectus
Supplement, in connection with an investment in the Securities offered hereby.
This Prospectus contains statements which constitute "forward-looking
statements" within the meaning of Section 27A of the Securities Act of 1933, as
amended (the "Securities Act"), and Section 21E of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"). The words "expect," "believe,"
"goal," "plan," "intend," "estimate" and similar expressions and variations
thereof used in this Prospectus are intended to specifically identify forward-
looking statements. Those statements appear in a number of places in this
Prospectus and include statements regarding, but not limited to, product, demand
and sales, growth rate, ability to obtain assumed productivity savings, quality
controls, availability of acquisition opportunities and their related costs,
cost savings due to integration and synergies associated with acquisitions,
ability to obtain additional financings and bank restructuring, interest rates,
foreign currency exchange rates, paper and raw material costs, waste paper
prices, ability to pass through paper costs to customers, postage rates, changes
in the direct mail industry, competition, ability to develop new products, labor
costs, labor relations and advertising costs. Prospective investors are
cautioned that any such forward-looking statements are not guarantees of future
performance and involve risks and uncertainties, and that actual results may
differ materially from those projected in the forward-looking statements as a
result of various factors. The Company undertakes no obligation to publicly
update or revise forward-looking statements made in this Prospectus to reflect
events or circumstances after the date of this Prospectus or to reflect the
occurrence of unanticipated events.
LEVERAGE. The Company has incurred substantial indebtedness in connection
with financing certain of its acquisitions. The degree to which the Company is
leveraged could have important consequences to the holders of the Company's
Securities, including the following: (i) the Company's ability to obtain
additional financing for working capital, acquisitions or other purposes in the
future may be limited, (ii) a substantial portion of the Company's cash flow
from operations will be dedicated to the payment of principal and interest on
indebtedness, (iii) the Company may be more vulnerable to economic downturns or
other adverse developments than less leveraged competitors, and (iv) borrowings
under the Company's bank credit agreements (as amended through the date hereof,
the "Credit Agreements") bear interest at fluctuating rates which could result
in higher interest expense in the event of an increase in interest rates. The
Company's ability to make scheduled payments of principal or interest on, or to
refinance, indebtedness will depend on future operating performance and cash
flow, which are subject to prevailing economic conditions and financial,
competitive and other factors beyond the Company's control.
AVAILABILITY, FINANCING AND INTEGRATION OF ACQUISITIONS. The Company has
grown rapidly through acquisitions. Although the Company believes it has an
adequate infrastructure, there can be no assurance that the Company's current
management, personnel and other corporate infrastructure will be adequate to
manage the Company's growth. In addition, to the extent the success of the
Company's strategy is contingent on making further acquisitions, there can be no
assurance that the Company will be able to identify and acquire acceptable
acquisition candidates on terms favorable to the Company or that the Company
will be able to integrate such acquisitions successfully. Increased competition
for acquisition candidates may develop, in which event there may be fewer
acquisition opportunities available to the Company as well as higher acquisition
prices. There can be no assurance that the Company will be able to continue to
identify, acquire or profitably manage additional businesses or successfully
integrate acquired businesses, if any, into the Company without substantial
costs, delays or other operational or financial problems. Further, acquisitions
involve a number of special risks, including possible adverse effects on the
Company's operating results, diversion of management's attention, failure to
retain key acquired personnel, risks associated with unanticipated events or
liabilities and amortization of acquired intangible assets, some or all of which
could have a material adverse effect on the Company's business, financial
condition and results of operations.
The Company may finance future acquisitions through the issuance of the
Securities, the incurrence of additional bank indebtedness, the utilization of
cash from operations, or a combination thereof. In the event that the Common
Stock does not maintain a sufficient market value, or potential acquisition
candidates are otherwise unwilling to accept Common Stock or other Securities as
part of the consideration for the sale of their businesses, the Company may be
required to utilize more of its cash resources or available funds under its
Credit Agreements in order to finance future acquisitions. If the Company does
not have sufficient cash resources, its ability to make acquisitions could be
-4-
<PAGE>
limited unless it is able to obtain additional capital through debt or equity
financings. There can be no assurance that the Company will be able to obtain
all the financing it will need in the future on terms the Company deems
acceptable.
UNITED STATES AND CANADIAN POSTAL SERVICES. Because the great majority of
envelopes used in the United States and Canada are sent through the mail, postal
rates are a significant factor affecting the growth of envelope usage.
Historically, increases in postal rates, relative to changes in the cost of
alternative delivery means and/or advertising media, have resulted in temporary
reductions in the growth rate of mail sent. For example, third class postal
rates increased approximately 50% and 14% in 1991 and 1995, respectively,
contributing to a substantial leveling off in the growth rate of third class
mail sent during the periods following such increases. In 1997, the U.S. Postal
Service announced proposed rate increases of approximately 4% for direct mail
and 3% for first class mail, and a proposed 6% rate decrease for prepaid,
courtesy reply envelopes. The recent proposed postal rate increases are
significantly less than the cumulative rate of inflation since the last postal
rate increases. Management does not anticipate that these postal rate increases
will go into effect until mid-1998 and, if implemented, does not expect the
rate increases to negatively impact mail volume, although there can be no
assurance in that regard.
The Canadian Post Corporation (the "CPC") increased the basic postal rate
by approximately 4.7% in 1995, and approximately 6.7% in 1996, contributing to a
leveling off of the growth rate of mail sent during the periods immediately
following such increases. Although the CPC has announced its intention to raise
rates further in 1998, management believes such an increase will be minimal and
does not anticipate that it will have a negative impact on mail volume. There
can be no assurance, however, that future increases in United States and/or
Canadian postal rates will not have a material adverse effect on the Company's
financial condition and results of operations.
The CPC has been operating under an expired labor contract since May 1996.
Although no agreement has been reached, the parties continue to negotiate. In
the event of a work stoppage, the Canadian government has the right to call the
postal workers back to work, a power which it has exercised in previous work
stoppages. Although management believes that a short-term work stoppage would
not have a material, long-term impact on the Company's business, there can be no
assurance that any work stoppage would not be prolonged, or would not have a
material adverse effect on the Company.
LABOR RELATIONS. As of June 30, 1997, the Company had approximately 6,600
full-time employees, of which approximately 2,100 employees were members of 14
local labor unions. If unionized employees were to engage in a concerted strike
or other work stoppage, or if other employees were to become unionized, the
Company could experience a disruption of operations and higher labor costs. The
Company is currently negotiating new union contracts with respect to four of its
larger envelope printing and converting facilities, as well as the Company's
commercial printing facility in Portland, all of which have been operating under
tentative arrangements which are terminable on short notice. No new agreement
has been reached with respect to any of these plants. In order to mitigate the
effect of a potential work stoppage, the Company has prepared a contingency plan
for each of these locations. There can be no assurance, however, that the
Company's preparations will prevent a material adverse effect on the Company's
operations in the event of a protracted work stoppage.
COST AND AVAILABILITY OF PAPER. The cost of paper represents a
significant portion of the Company's cost of materials. Increases in paper
costs could have a material adverse effect on the Company's results of
operations and financial condition. Historically, the Company has been
successful in maintaining gross profit margins when paper prices increase by
passing paper price increases on to its customers and by receiving increased
proceeds from waste paper sales. There can be no assurance, however, that the
Company will be able to continue to pass on future increases in the cost of
paper. Moreover, rising paper costs and their consequent impact on the
Company's pricing could have a material adverse effect on the Company's volume
of units sold. For example, successive paper price increases during the latter
part of 1995 and early 1996 resulted in a decline in demand for the Company's
products, particularly from the direct-mail advertising industry.
Proceeds from the sale of waste paper were equal to 1.3% of the Company's
net sales and 5.0% of the Company's gross profits for the six months ended June
30, 1997. Prices for waste paper generally fluctuate in a pattern similar to
changes in raw paper prices. Accordingly, in a falling paper price environment,
the Company's proceeds from waste paper sales could decrease significantly.
Although management believes that the Company will be able to generate waste
paper proceeds in the future, there can be no assurance that such proceeds will
not decline from current levels.
-5-
<PAGE>
Due to the significance of paper in the manufacture of most of the
Company's products, the Company is dependent upon the availability of paper.
During periods of tight paper supply, many paper producers allocate shipments of
paper based on the historical purchase levels of customers. As a result of the
Company's large volume paper purchases from several paper producers, the Company
generally has not experienced difficulty in obtaining adequate quantities of
paper, although occasionally the Company has experienced minor delays in
delivery. Although management believes that the Company's large volume paper
purchases will continue to enable the Company to receive adequate supplies of
paper in the future, there can be no assurance in this regard.
COMPETITION. The envelope and commercial printing industries in which the
Company competes are extremely fragmented and highly competitive. In the
envelope market, the Company competes primarily with a few multi-plant and many
single-plant companies servicing regional and local markets. The Company also
faces competition from alternative sources of communication and information
transfer such as facsimile machines, electronic mail, interactive video disks,
interactive television and electronic retailing. In the commercial printing
market, the Company competes against a number of large, diversified and
financially stronger printing companies, as well as regional and local
commercial printers, many of which are capable of competing with the Company in
both volume and production quality.
AVAILABILITY OF ALTERNATIVE DELIVERY MEDIA. The Company's envelope
printing and manufacturing business is highly dependent upon the demand for
envelopes sent through the mail. Such demand comes from utility companies,
banks and other financial institutions, among others. As the current trend
towards usage of the Internet and other electronic media by consumers for such
purposes as paying utility and credit card bills grows, the Company expects the
demand for envelopes for such purposes to decline. Although management believes
that overall demand for envelopes will continue to grow at rates comparable to
recent historical levels, there can be no assurance that competition from
alternative media will not have an adverse effect on such demand.
NATURE OF PRINTING BUSINESS. The envelope and high-impact color printing
businesses in which the Company competes are generally characterized by
individual orders from customers or short-term (less than one year) supply
contracts. In the high-impact color printing market in particular, customer
orders are typically for specific printing jobs, and continued or repeat
engagements for successive jobs depend upon the customer's satisfaction with
the services provided. Although the Company is not dependent upon any one
customer or group of customers, and management believes that the Company has and
will continue to have excellent relations with its customers, there can be no
assurance that any particular customer will continue to do business with the
Company over an extended period of time. In addition, the timing of particular
jobs or types of jobs at particular times of year may cause fluctuations in the
financial results of the Company's high-impact color printing operations in any
given quarter.
ASSET ENCUMBRANCES; RESTRICTIVE COVENANTS. The obligations of the Company
under the Credit Agreements are secured by a pledge of all of the capital stock
of Mail-Well I Corporation ("M-W Corporation"), a wholly-owned subsidiary of the
Company, and all of M-W Corporation's subsidiaries, and by a first priority
security interest in substantially all of the assets of M-W Corporation and its
subsidiaries. If the Company becomes insolvent or is liquidated, or if payment
under the Credit Agreements is accelerated, the lenders under the Credit
Agreements would be entitled to exercise the remedies available to secured
lenders under applicable law and pursuant to the Credit Agreements.
Accordingly, such lenders will have a claim on the assets of the Company and its
subsidiaries prior to that of any Security holder.
The Credit Agreements and the indenture pursuant to which the 10 1/2%
Senior Subordinated Notes due 2004 were issued by M-W Corporation (the
"Indenture") contain numerous financial and operating covenants and require the
Company and its subsidiaries to meet certain financial ratios and tests. A
failure to comply with the obligations contained in the Credit Agreements or the
Indenture could result in an event of default under either the Credit Agreements
or the Indenture which could permit acceleration of the related debt and
acceleration of debt under other instruments that may contain cross-acceleration
or cross-default provisions.
CONTROL BY MANAGEMENT AND DIRECTORS. As of June 30, 1997, officers and
directors of the Company and entities affiliated with them beneficially owned
approximately 20.7% of the then outstanding shares of Common Stock. In addition,
the Company's employee stock ownership plan ("ESOP") owned approximately 10.4%
of the outstanding shares, of which approximately 5.0% were unallocated and thus
voted by management on all matters. As a result, management and directors
exercise substantial influence over the Company's affairs.
-6-
<PAGE>
VOLATILITY OF STOCK PRICE. Since the completion of the Company's initial
public offering in September 1995, the market price of the Common Stock has
fluctuated significantly. The Company believes that factors such as
announcements of developments related to the Company's business, sales by
competitors, including sales to the Company's customers, sales of the Common
Stock into the public market, including by members of management, developments
in the Company's relationship with its customers, partners, distributors and
suppliers, shortfalls or changes in analysts expectations for revenue, gross
margins, earnings or losses or other financial results, regulatory developments,
fluctuations in results of operations, seasonality and general conditions in the
Company's market or the markets served by the Company's customers or the economy
could cause the price of the Common Stock to fluctuate substantially. In
addition, the stock market has experienced extreme price fluctuations which have
often been unrelated to the operating performance of affected companies. There
can be no assurance that the market price of the Common Stock will not decline
substantially, or otherwise continue to experience significant fluctuations in
the future, including fluctuations that are unrelated to the Company's operating
performance. In addition, to the extent a public market develops for any of the
Company's other Securities, investors may experience similar levels of
volatility, including but not limited to changes in interest rates generally.
HOLDING COMPANY STRUCTURE. The only asset of the Company is the capital
stock of M-W Corporation. Because all of the operations of the Company are
conducted through its subsidiaries, the Company's cash flow and consequently its
ability to service debt and pay dividends is dependent upon the cash flow of its
subsidiaries and the transfer of funds by its subsidiaries to the Company in the
form of loans, dividends or otherwise. The subsidiaries are distinct legal
entities and have no obligation, contingent or otherwise, to pay any amounts due
pursuant to the various obligations of indebtedness of the Company or to make
any funds available therefor, whether in the form of loans, dividends or
otherwise. Moreover, the Credit Agreements and the Indenture restrict the
Company's ability to pay dividends.
ENVIRONMENTAL COMPLIANCE. The Company's operations are subject to
federal, state and local environmental laws and regulations relating to air
emissions, waste generation, handling, management and disposal, and at certain
facilities, wastewater treatment and discharge. In addition, certain of the
Company's predecessors have been designated as potentially responsible parties
under the Comprehensive Environmental Response, Compensation and Liability Act
of 1980 with respect to off-site disposal of hazardous waste. While management
believes that the Company has minimal exposure as a result of such designations
and that the Company's current operations are in substantial compliance with
applicable environmental laws and regulations, there can be no assurance that
currently unknown matters, new laws and regulations, or stricter interpretations
of existing laws and regulations will not materially affect the Company's
business or operations in the future.
DEPENDENCE ON KEY MANAGEMENT. The Company's success will continue to
depend to a significant extent on its executive officers and other key
management personnel. The Company has not currently entered into employment
agreements with its executive officers. There can be no assurance that the
Company will be able to retain its executive officers and key personnel or
attract additional qualified management in the future. In addition, the success
of certain of the Company's acquisitions may depend, in part, on the Company's
ability to retain management personnel of the acquired companies.
-7-
<PAGE>
USE OF PROCEEDS
Except as otherwise indicated in this Prospectus and in an accompanying
Prospectus Supplement, the Company intends to use the net proceeds from the sale
of the Securities offered hereby for general corporate purposes, which may
include, without limitation, capital expenditures, possible future acquisitions,
repayment of outstanding indebtedness, working capital requirements and other
corporate purposes. Pending any of the foregoing applications, the net proceeds
may be invested temporarily in short-term, investment-grade, interest bearing
securities.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges is computed by dividing the sum of
historical earnings from continuing operations before taxes on income and fixed
charges, as adjusted, by fixed charges. Fixed charges represent interest expense
(including capitalized interest) and amortization of debt discount and expense
and that portion of rental expense which is deemed to be representative of
interest.
<TABLE>
<CAPTION>
Six Months Ended
June 30 Fiscal Year Ended December 31
---------------- -----------------------------
<S> <C> <C> <C> <C> <C>
1997 1996 1996 1995 1994
---- ---- ---- ---- ----
Ratio of Earnings to Fixed Charges... 2.74 1.71 1.94 1.60 1.35
</TABLE>
-8-
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions
of the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement and
the extent, if any, to which such general provisions may apply to the Debt
Securities so offered will be described in the applicable Prospectus Supplement
relating to such Debt Securities.
The Debt Securities may be issued, from time to time, in one or more
series, and will constitute either Senior Subordinated Debt Securities or
Subordinated Debt Securities. Senior Subordinated Debt Securities may be issued
from time to time under an Indenture (the "Senior Subordinated Debt Securities
Indenture") to be entered into between the Company and a trustee to be named in
the applicable Prospectus Supplement (the "Senior Subordinated Debt Securities
Trustee"). Subordinated Debt Securities may be issued from time to time under an
Indenture (the "Subordinated Debt Securities Indenture") to be entered into
between the Company and a trustee to be named in the applicable Prospectus
Supplement (the "Subordinated Debt Securities Trustee").
The Senior Subordinated Debt Securities Indenture and the Subordinated
Debt Securities Indenture are referred to herein individually as an "Indenture"
and collectively as the "Indentures," and the Senior Subordinated Debt
Securities Trustee and the Subordinated Debt Securities Trustee are referred to
herein individually as the "Trustee" and collectively as the "Trustees." Forms
of the Indentures are filed as exhibits to the Registration Statement. The
Indentures will be subject to and governed by the Trust Indenture Act of 1939,
as amended (the "TIA"). Capitalized terms used in this section which are not
otherwise defined in this Prospectus shall have the meanings set forth in the
Indentures to which they relate. The following summaries of certain provisions
of the Debt Securities and the Indentures do not purport to be complete and are
subject to, and are qualified in their entirety by express reference to, all the
provisions of the Indentures, including the definitions therein of certain
terms. As used in this section of the Prospectus, the "Company" refers to Mail-
Well, Inc. and does not include its subsidiaries.
GENERAL
The Debt Securities will be direct, unsecured obligations of the Company.
The Indentures do not limit the aggregate principal amount of Debt Securities
that may be issued thereunder and provide that Debt Securities may be issued
thereunder from time to time in one or more series. Under the Indentures, the
Company will have the ability to issue Debt Securities with terms different from
those of Debt Securities previously issued, without the consent of the holders
of previously issued series of Debt Securities, in an aggregate principal amount
determined from time to time by the Company.
The applicable Prospectus Supplement or Prospectus Supplements relating to
any Senior Subordinated Debt Securities or Subordinated Debt Securities will set
forth the aggregate amount of other outstanding indebtedness, if any, that would
be senior to such Debt Securities and any limitation on the issuance of
additional senior indebtedness.
Securities may be issued as discount securities which may be sold at a
discount below their principal amount. Even if Securities are not issued at a
discount below their principal amount, such Securities may, for United States
Federal income tax purposes, be deemed to have been issued with "original issue
discount" ("OID") because of certain interest payment characteristics. Special
United States Federal income tax considerations applicable to Securities issued
with original issue discount, including discount securities, will be described
in more detail in any applicable Prospectus Supplement. In addition, special
United States Federal tax considerations or other restrictions or terms
applicable to any Debt Securities which are issuable in bearer form, offered
exclusively to United States Aliens or denominated in a currency other than
United States dollars will be set forth in the Prospectus Supplement relating
thereto.
The applicable Prospectus Supplement or Prospectus Supplements will
describe, among other things, the following terms of the Debt Securities offered
thereby (the "Offered Debt Securities"): (i) the title of the Offered Debt
Securities; (ii) any limit on the aggregate principal amount of the Offered Debt
Securities; (iii) whether the Offered Debt Securities are to be issuable as
registered securities or bearer securities or both and whether the Offered Debt
Securities may be represented initially by a Debt Security in temporary or
permanent global form, and if so, the initial Depositary with respect to such
temporary or permanent global Debt Security and whether, and the circumstances
under which, beneficial owners of interests in any such temporary or permanent
global Debt Security may exchange such interests for Debt Securities of such
series and of like tenor of any authorized form and denomination; (iv) the price
or prices at
-9-
<PAGE>
which the Offered Debt Securities will be issued; (v) the date or dates on which
the principal of the Offered Debt Securities is payable or the method of
determination thereof; (vi) the place or places where and the manner in which
the principal of and premium, if any, and interest, if any, on such Offered Debt
Securities will be payable and the place or places where such Offered Debt
Securities may be presented for transfer and, if applicable, conversion or
exchange; (vii) the rate or rates at which the Offered Debt Securities will bear
interest, or the method of calculating such rate or rates, if any, and the date
or dates from which such interest, if any, will accrue; (viii) the Stated
Maturities (as defined below) of installments of interest (the "Interest Payment
Dates"), if any, on which any interest on the Offered Debt Securities will be
payable, and the Regular Record Date for any interest payable on any Offered
Debt Securities which are registered securities; (ix) the right or obligation,
if any, of the Company to redeem or purchase Debt Securities of the series
pursuant to any sinking fund or analogous provisions or at the option of a
holder thereof, the conditions, if any, giving rise to such right or obligation,
and the period or periods within which, and the price or prices at which and the
terms and conditions upon which Debt Securities of the series shall be redeemed
or purchased, in whole or part, and any provisions for the remarketing of such
Debt Securities; (x) whether such Offered Debt Securities are convertible or
exchangeable into other debt or equity securities, and, if so, the terms and
conditions upon which such conversion or exchange will be effected, including
the initial conversion or exchange price or rate and any adjustments thereto,
the conversion or exchange period and other conversion or exchange provisions;
(xi) the currency or currencies, including composite currencies or currency
units, of payment of principal of and interest, if any, on the Offered Debt
Securities, if other than U.S. dollars, and, if other than U.S. dollars, whether
the Offered Debt Securities may be satisfied and discharged other than as
provided in the Indenture and whether the Company or the holders of any such
Offered Debt Securities may elect to receive payments in respect of such Offered
Debt Securities in a currency or currency units other than that in which such
Offered Debt Securities are stated to be payable; (xii) any terms applicable to
such Offered Debt Securities issued at an issue price below their stated
principal amount, including the issue price thereof and the rate or rates at
which such original issue discount will accrue; (xiii) if the amount of payments
of principal of and interest, if any, on the Offered Debt Securities is to be
determined by reference to an index or formula, or based on a coin or currency
or currency unit other than that in which the Offered Debt Securities are stated
to be payable, the manner in which such amounts are to be determined and the
calculation agent, if any, with respect thereto; (xiv) if other than the
principal amount thereof, the portion of the principal amount of the Offered
Debt Securities which will be payable upon declaration or acceleration of the
maturity thereof pursuant to an Event of Default; (xv) any deletions from,
modifications of or additions to the Events of Default or covenants of the
Company with respect to such Offered Debt Securities, whether or not such Events
of Default or covenants are consistent with the Events of Default or covenants
set forth herein; (xvi) any special United States Federal income tax
considerations applicable to the Offered Debt Securities; and (xvii) any other
terms of the Offered Debt Securities not inconsistent with the provisions of the
applicable Indenture. The applicable Prospectus Supplement will also describe
the following terms of any series of Senior Subordinated Debt Securities or
Subordinated Debt Securities offered hereby in respect of which this Prospectus
is being delivered: (a) the rights, if any, to defer payments of interest on the
Senior Subordinated Debt Securities or Subordinated Debt Securities of such
series by extending the interest payment period, and the duration of such
extensions, and (b) the subordination terms of the Senior Subordinated Debt
Securities or Subordinated Debt Securities of such series. The foregoing is not
intended to be an exclusive list of the terms that may be applicable to any
Offered Debt Securities and shall not limit in any respect the ability of the
Company to issue Debt Securities with terms different from or in addition to
those described above or elsewhere in this Prospectus provided that such terms
are not inconsistent with the applicable Indenture. Any such Prospectus
Supplement will also describe any special provisions for the payment of
additional amounts with respect to the Offered Debt Securities.
The operations of the Company are currently conducted almost entirely
through subsidiaries. Accordingly, the Company's cash flow and its consequent
ability to service debt, including the Debt Securities, are dependent, in large
part, upon the earnings of its subsidiaries and the distribution of those
earnings to the Company, whether by dividends, loans or otherwise. The payment
of dividends and the making of loans and advances to the Company by its
subsidiaries may be subject to statutory or contractual restrictions, are
contingent upon the earnings of those subsidiaries and are subject to various
business considerations. Any right of the Company to receive assets of any of
its subsidiaries upon their liquidation or reorganization (and the consequent
right of the holders of the Debt Securities to participate in those assets) will
be effectively subordinated to the claims of that subsidiary's creditors
(including trade creditors and tort claimants), except to the extent that the
Company is itself recognized as a creditor of such subsidiary, in which case the
claims of the Company would still be subordinate to any security interests in
the assets of such subsidiary and any indebtedness of such subsidiary senior to
that held by the Company.
-10-
<PAGE>
Unless otherwise indicated in an applicable Prospectus Supplement, the
Indentures do not include covenants limiting the amount of indebtedness that may
be incurred or otherwise restricting the Company's ability to enter into a
highly leveraged transaction, including a reorganization, restructuring, merger
or similar transaction involving the Company, that may adversely affect the
holders of the Debt Securities, if such transaction is a permissible
consolidation, merger or similar transaction. In addition, unless otherwise
specified in an applicable Prospectus Supplement, the Indentures do not afford
the holders of the Debt Securities the right to require the Company to
repurchase or redeem the Debt Securities in the event of a highly leveraged
transaction. See "Mergers and Sale of Assets."
FORM, EXCHANGE, REGISTRATION AND TRANSFER
The Debt Securities of a series may be issued solely as registered
securities, solely as bearer securities (with or without coupons attached) or as
both registered securities and bearer securities. Debt Securities of a series
may be issuable in whole or in part in the form of one or more global Debt
Securities, as described below under "Global Debt Securities." Unless otherwise
indicated in an applicable Prospectus Supplement, registered securities will be
issuable in denominations of $1,000 and integral multiples thereof, and bearer
securities will be issuable in denominations of $5,000 and $100,000.
Registered securities of any series will be exchangeable for other
registered securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor. In addition, if Debt Securities of
any series are issuable as both registered securities and as bearer securities,
at the option of the holder, subject to the terms of the applicable Indenture,
bearer securities (accompanied by all unmatured coupons, except as provided
below, and all matured coupons in default) of such series will be exchangeable
for registered securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor. Unless otherwise indicated in an
applicable Prospectus Supplement, any bearer security surrendered in exchange
for a registered security between a Regular Record Date or a Special Record Date
and the relevant date for payment of interest will be surrendered without the
coupon relating to such date for payment of interest and interest will not be
payable in respect of the registered security issued in exchange for such bearer
security, but will be payable only to the holder of such coupon when due in
accordance with the terms of the applicable Indenture. Bearer securities may not
be issued in exchange for registered securities.
Debt Securities may be presented for exchange as provided above, and unless
otherwise indicated in an applicable Prospectus Supplement, registered
securities may be presented for registration of transfer, at the office or
agency of the Company designated as registrar or co-registrar with respect to
any series of Debt Securities, without service charge and upon payment of any
taxes, assessments or other governmental charges as described in the applicable
Indenture. Such transfer or exchange will be effected on the books of the
registrar or any other transfer agent appointed by the Company upon such
registrar or transfer agent, as the case may be, being satisfied with the
documents of title and identity of the person making the request. The Company
intends to initially appoint the Trustee as registrar and the name of any
different or additional registrar designated by the Company with respect to the
Offered Debt Securities will be included in the Prospectus Supplement relating
thereto. If a Prospectus Supplement refers to any transfer agents (in addition
to the registrar) designated by the Company with respect to any series of Debt
Securities, the Company may at any time rescind the designation of any such
transfer agent or approve a change in the location through which any such
transfer agent acts, except that, if Debt Securities of a series are issuable
only as registered securities, the Company will be required to maintain a
transfer agent in each Place of Payment for such series and, if Debt Securities
of a series are issuable as bearer securities, the Company will be required to
maintain (in addition to the registrar) a transfer agent in a Place of Payment
for such series located outside the United States. The Company may at any time
designate additional transfer agents with respect to any series of Debt
Securities.
In the event of any partial redemption of Debt Securities of any series,
the Company will not be required to (i) issue, register the transfer of or
exchange Debt Securities of that series during a period beginning at the opening
of business 15 days before any selection of Debt Securities of that series to be
redeemed and ending at the close of business on (a) if Debt Securities of the
series are issuable only as registered securities, the day of mailing of the
relevant notice of redemption, and (b) if Debt Securities of the series are
issuable as bearer securities, the day of the first publication of the relevant
notice of redemption or, if Debt Securities of the series are also issuable as
registered securities and there is no publication, the mailing of the relevant
notice of redemption; (ii) register the transfer of or exchange any registered
security, or portion thereof, called for redemption, except the unredeemed
portion of any registered security being redeemed in part; or (iii) exchange any
bearer security called for redemption, except to exchange such bearer security
-11-
<PAGE>
for a registered security of that series and of like tenor and principal amount
that is immediately surrendered for redemption.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and interest on any registered securities will be made at the
office of such paying agent or paying agents as the Company may designate from
time to time, except that at the option of the Company payment of principal or
interest may be made by check or by wire transfer to an account maintained by
the payee. Unless otherwise indicated in an applicable Prospectus Supplement,
payment of any installment of interest on registered securities will be made to
the person in whose name such registered security is registered at the close of
business on the Regular Record Date for such payment of interest.
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and interest, if any, on bearer securities will be payable,
subject to any applicable laws and regulations, at the offices of such paying
agents outside the United States as the Company may designate from time to time,
or by check or transfer to an account maintained by the payee outside the United
States. Unless otherwise indicated in an applicable Prospectus Supplement, any
payment of interest on any bearer securities will be made only against surrender
of the coupon relating to such interest installment.
Unless otherwise indicated in an applicable Prospectus Supplement, the
Trustee will be designated as the Company's sole paying agent for payments with
respect to Debt Securities which are issuable solely as registered securities
and as the Company's paying agent for payments with respect to Debt Securities
(subject to any limitations described in any applicable Prospectus Supplement)
which are issuable as bearer securities. Any paying agents outside the United
States and any other paying agents in the United States initially designated by
the Company for the Offered Debt Securities will be named in an applicable
Prospectus Supplement. The Company may at any time designate additional paying
agents or rescind the designation of any paying agent or approve a change in the
office through which any paying agent acts, except that, if Debt Securities of a
series are issuable only as registered securities, the Company will be required
to maintain a paying agent in each Place of Payment for such series and, if Debt
Securities of a series are issuable as bearer securities, the Company will be
required to maintain (i) a paying agent for payments with respect to any
registered securities of the series (and for payments with respect to bearer
securities of the series in the circumstances described in the Indenture, but
not otherwise), and (ii) a paying agent in a Place of Payment located outside
the United States where Debt Securities of such series and any related coupons
may be presented and surrendered for payment.
All moneys paid by the Company to a paying agent for the payment of
principal of or interest, if any, on any Debt Security which remains unclaimed
at the end of two years after such principal or interest shall have become due
and payable will be repaid to the Company, and the holder of such Debt Security
or any coupon will thereafter look only to the Company for payment thereof.
GLOBAL DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in global
form. A Debt Security in global form will be deposited with, or on behalf of, a
Depositary, which will be identified in an applicable Prospectus Supplement. A
global Debt Security may be issued in either registered or bearer form and in
either temporary or permanent form. A Debt Security in global form may not be
transferred except as a whole to the Depositary for such Debt Security or to a
nominee or successor of such Depositary. If any Debt Securities of a series are
issuable in global form, the applicable Prospectus Supplement will describe the
circumstances, if any, under which beneficial owners of interests in any such
global Debt Security may exchange such interests for definitive Debt Securities
of such series and of like tenor and principal amount in any authorized form and
denomination, the manner of payment of principal of and interest, if any, on any
such global Debt Security and the specific terms of the depositary arrangement
with respect to any such global Debt Security.
MERGERS AND SALES OF ASSETS
The Company, in a single transaction or series of related transactions, may
not consolidate with or merge into any other person or convey, transfer or lease
all or substantially all of its properties and assets to another person or group
-12-
<PAGE>
of affiliated persons, unless, among other things, (i) the resulting, surviving
or transferee person (if other than the Company) is organized and existing under
the laws of the United States, any state thereof or the District of Columbia and
such person expressly assumes all obligations of the Company under the Debt
Securities and the Indenture, and (ii) immediately after giving effect to such
transaction, no event which is, or after notice or passage of time or both would
be, an Event of Default (any such event, a "Default") or Event of Default shall
have occurred or be continuing under the Indenture. Upon the assumption of the
Company's obligations by a person to whom such properties or assets are
conveyed, transferred or leased, subject to certain exceptions, the Company
shall be discharged from all obligations under the Debt Securities and the
Indenture.
EVENTS OF DEFAULT
Each Indenture provides that, if an Event of Default specified therein
shall have occurred and be continuing, with respect to each series of the Debt
Securities outstanding thereunder individually, the Trustee or the holders of
not less than 25% in aggregate principal amount of the outstanding Debt
Securities of such series may declare the principal amount (or, if any of the
Debt Securities of such series are Discount Securities, such portion of the
principal amount of such Debt Securities as may be specified by the terms
thereof) of the Debt Securities of such series to be immediately due and
payable. Under certain circumstances, the holders of a majority in aggregate
principal amount of the outstanding Debt Securities of such series may rescind
any such declaration.
Under each Indenture, an Event of Default is defined as, with respect to
each series of Securities outstanding thereunder individually, any of the
following: (i) default in payment of the principal of any Debt Security of such
series; (ii) default in payment of any interest on any Debt Security of such
series when due, continuing for 30 days (or such other period as shall be set
forth in the applicable Prospectus Supplement); (iii) failure by the Company to
comply with its other agreements in the Debt Securities of such series or such
Indenture for the benefit of the holders of Debt Securities of such series upon
the receipt by the Company of notice of such Default by the Trustee or the
holders of at least 25% in aggregate principal amount of the outstanding Debt
Securities of such series and the Company's failure to cure such Default within
60 days (or such other period as shall be set forth in the applicable Prospectus
Supplement) after receipt by the Company of such notice; (iv) certain events of
bankruptcy or insolvency; and (v) any other Event of Default set forth in the
applicable Prospectus Supplement.
The Trustee shall give notice to holders of the Debt Securities of any
continuing Default known to the Trustee within 90 days after the occurrence
thereof; provided, that the Trustee may withhold such notice, as to any Default
other than a payment Default, if it determines in good faith that withholding
the notice is in the interests of the holders.
The holders of a majority in principal amount of the outstanding Debt
Securities of any series may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to the Debt Securities of such
series; provided that such direction shall not be in conflict with any law or
the Indenture and subject to certain other limitations. Before proceeding to
exercise any right or power under the Indenture at the direction of such
holders, the Trustee shall be entitled to receive from such holders reasonable
security or indemnity satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in complying with any such direction.
With respect to each series of Debt Securities, no holder will have any right to
pursue any remedy with respect to the Indenture or the Debt Securities, unless
(i) such holder shall have previously given the Trustee written notice of a
continuing Event of Default with respect to the Debt Securities of such series;
(ii) the holders of at least 25% in aggregate principal amount of the
outstanding Debt Securities of such series shall have made a written request to
the Trustee to pursue such remedy; (iii) such holder or holders have offered to
the Trustee reasonable indemnity satisfactory to the Trustee; (iv) the holders
of a majority in aggregate principal amount of the outstanding Debt Securities
of such series have not given the Trustee a direction inconsistent with such
request within 60 days after receipt of such request; and (v) the Trustee shall
have failed to comply with the request within such 60-day period.
Notwithstanding the foregoing, the right of any holder of any Debt Security
or coupon to receive payment of the principal of and interest in respect of such
Debt Security or payment of such coupon on the date specified in such Debt
Security or coupon representing such installment of interest as the fixed date
on which an amount equal to the principal of such Debt Security or an
installment of principal thereof or interest thereon is due and payable (the
"Stated Maturity" or "Stated Maturities") or to institute suit for the
enforcement of any such payments shall not be impaired or adversely affected
without such holder's consent. The holders of at least a majority in aggregate
principal amount of the
-13-
<PAGE>
outstanding Debt Securities of any series may waive an existing Default with
respect to such series and its consequences, other than (i) any Default in any
payment of the principal of, or interest on, any Debt Security of such series or
(ii) any Default in respect of certain covenants or provisions in the Indenture
which may not be modified without the consent of the holder of each outstanding
Debt Security of such series affected as described in "Modification and Waiver,"
below.
Each Indenture provides that the Company shall deliver to the Trustee
within 120 days after the end of each fiscal year of the Company (beginning with
the first fiscal year ending after the execution of the relevant Indenture) an
officers' certificate stating whether or not the signers know of any Default
that occurred during such period.
MODIFICATION AND WAIVER
The Company and the Trustee may execute a supplemental indenture without
the consent of the holders of the Debt Securities or any related coupons (i) to
add to the covenants, agreements and obligations of the Company for the benefit
of the holders of all the Debt Securities of any series or to surrender any
right or power conferred in the Indenture upon the Company; (ii) to evidence the
succession of another corporation to the Company and the assumption by it of the
obligations of the Company under the Indenture and the Debt Securities; (iii) to
provide that bearer securities may be registrable as to principal, to change or
eliminate any restrictions (including restrictions relating to payment in the
United States) on the payment of principal of or interest, if any, on bearer
securities, to permit bearer securities to be issued in exchange for registered
securities, to permit bearer securities to be issued in exchange for bearer
securities of other authorized denominations or to permit the issuance of Debt
Securities in uncertificated form; (iv) to establish the form or terms of Debt
Securities of any series and any related coupons as permitted by the Indenture;
(v) to provide for the acceptance of appointment under the Indenture of a
successor Trustee with respect to the Debt Securities of one or more series and
to add to or change any provisions of the Indenture as shall be necessary to
provide for or facilitate the administration of the trusts by more than one
Trustee; (vi) to cure any ambiguity, defect or inconsistency; (vii) to add to,
change or eliminate any provisions (which addition, change or elimination may
apply to one or more series of Debt Securities), provided that any such
addition, change or elimination neither (a) applies to any Debt Security of any
series created prior to the execution of such supplemental indenture and is
entitled to the benefit of such provision nor (b) modifies the rights of the
holder of any such Debt Security with respect to such provision; (viii) to
secure the Debt Securities; or (ix) to make any other change that does not
adversely affect the rights of any Security holder.
Each Indenture provides that, with the consent of the holders of not less
than a majority in aggregate principal amount of the outstanding Debt Securities
of the series affected by such supplemental indenture, the Company and the
Trustee may also execute a supplemental indenture to add provisions to, or
change in any manner or eliminate any provisions of, the Indenture with respect
to such series of Debt Securities or modify in any manner the rights of the
holders of the Debt Securities of such series and any related coupons under such
Indenture; provided that no such supplemental indenture will, without the
consent of the holder of each such outstanding Debt Security affected thereby
(i) change the stated maturity of the principal of, or any installment of
principal or interest on, any such Debt Security or any premium payable upon
redemption thereof, or reduce the amount of principal of any Debt Security that
is a discount security and that would be due and payable upon declaration of
acceleration of maturity thereof, (ii) reduce the principal amount of, or the
rate of interest on, any such Debt Security; (iii) change the place or currency
of payment of principal or interest, if any, on any such Debt Security; (iv)
impair the right to institute suit for the enforcement of any payment on or with
respect to any such Debt Security; (v) reduce the above-stated percentage of
holders of Debt Securities of any series necessary to modify or amend such
Indenture; (vi) modify the foregoing requirements or reduce the percentage in
principal amount of outstanding Debt Securities of any series necessary to waive
any covenant or past default; or (vii) amend or modify any of the provisions of
such Indenture relating to subordination of the Debt Securities in any manner
adverse to the holders of such Debt Securities. Holders of not less than a
majority in principal amount of the outstanding Debt Securities of any series
may waive certain past Defaults and may waive compliance by the Company with
certain of the restrictive covenants described above with respect to the Debt
Securities of such series.
DISCHARGE AND DEFEASANCE
Unless otherwise indicated in an applicable Prospectus Supplement, each
Indenture provides that the Company may satisfy and discharge obligations
thereunder with respect to the Debt Securities of any series by delivering to
the Trustee for cancellation all outstanding Debt Securities of such series or
depositing with the Trustee, after such outstanding Debt Securities have become
due and payable, cash sufficient to pay at Stated Maturity all of the
-14-
<PAGE>
outstanding Debt Securities of such series and paying all other sums payable
under the Indenture with respect to such series.
In addition, unless otherwise indicated in an applicable Prospectus
Supplement, each Indenture provides that the Company (a) shall be discharged
from its obligations in respect of the Debt Securities of such series
("defeasance and discharge"), or (b) may cease to comply with certain
restrictive covenants ("covenant defeasance") including those described under
"Mergers and Sales of Assets" and any such omission shall not be an Event of
Default with respect to the Debt Securities of such series, in each case at any
time prior to the Stated Maturity or redemption thereof, when the Company has
irrevocably deposited with the Trustee, in trust, (i) sufficient funds in the
currency or currency unit in which the Debt Securities are denominated to pay
the principal of (and premium, if any) and interest to Stated Maturity (or
redemption) on, the Debt Securities of such series, or (ii) such amount of
direct obligations of, or obligations the principal of (and premium, if any) and
interest on which are fully guaranteed by, the government which issued the
currency in which the Debt Securities are denominated, and which are not subject
to prepayment, redemption or call, as will, together with the predetermined and
certain income to accrue thereon without consideration of any reinvestment
thereof, be sufficient to pay when due the principal of (and premium, if any)
and interest to Stated Maturity (or redemption) on, the Debt Securities of such
series. Such defeasance and discharge and covenant defeasance are conditioned
upon, among other things, the Company's delivery of an opinion of counsel that
the holders of the Debt Securities of such series will not recognize income,
gain or loss for United States Federal income tax purposes as a result of such
defeasance, and will be subject to tax in the same manner as if no defeasance
and discharge or covenant defeasance, as the case may be, had occurred. Upon
such defeasance and discharge, the holders of the Debt Securities of such series
shall no longer be entitled to the benefits of the Indenture, except for the
purposes of registration of transfer and exchange of the Debt Securities of such
series and replacement of lost, stolen or mutilated Debt Securities and shall
look only to such deposited funds or obligations for payment.
THE TRUSTEES
Each Trustee will be permitted to engage in other transactions with the
Company and its subsidiaries; however, if any Trustee acquires any conflicting
interest, it must eliminate such conflict or resign.
-15-
<PAGE>
DESCRIPTION OF PREFERRED STOCK
The Company may issue, from time to time, shares of one or more series or
classes of Preferred Stock. The following description sets forth certain general
terms and provisions of the Preferred Stock to which any Prospectus Supplement
may relate. The particular terms of any series of Preferred Stock and the
extent, if any, to which such general provisions may apply to the series of
Preferred Stock so offered will be described in the Prospectus Supplement
relating to such Preferred Stock. The following summary of certain provisions of
the Preferred Stock does not purport to be complete and is subject to, and is
qualified in its entirety by express reference to, the provisions of the
Company's Articles of Incorporation (the "Articles of Incorporation") and the
Certificate of Designation relating to a specific series of the Preferred Stock
(the "Certificate of Designation"), which will be in the form filed as an
exhibit to, or incorporated by reference in, the Registration Statement of which
this Prospectus is a part at or prior to the time of issuance of such series of
Preferred Stock.
Under the Articles of Incorporation, the Company has the authority to issue
up to twenty-five thousand (25,000) shares of Preferred Stock. The Board of
Directors of the Company is authorized to issue shares of Preferred Stock, in
one or more series or classes, and to fix for each such series voting powers and
such preferences and relative, participating, optional or other special rights
and such qualifications, limitations or restrictions as are permitted by the
Colorado Business Corporation Act.
The Board of Directors of the Company shall be authorized to determine for
each series of Preferred Stock, and the Prospectus Supplement shall set forth
with respect to such series: (1) the distinguishing designation of, and the
number of shares of Preferred Stock that shall constitute, such series; (2) the
rights in respect of dividends, if any, of such series of Preferred Stock, the
extent of the preference or relation, if any, of such dividends to the dividends
payable on any other class or classes or any other series of the same or other
class or classes of capital stock of the Company and whether such dividends
shall be cumulative or noncumulative; (3) the right, if any, of the holders of
such series of Preferred Stock to convert the same into, or exchange the same
for, shares of any other class or classes or of any other series of the same or
any other class or classes of capital stock of the Company, and the terms and
conditions of such conversion or exchange; (4) whether or not shares of such
series of Preferred Stock shall be subject to redemption, and the redemption
price or prices and the time or times at which, and the terms and conditions on
which, shares of such series of Preferred Stock may be redeemed; (5) the rights,
if any, of the holders of such series of Preferred Stock upon the voluntary or
involuntary liquidation, dissolution or winding-up of the Company or in the
event of any merger or consolidation of or sale of assets by the Company; (6)
the terms of any sinking fund or redemption or repurchase or purchase account,
if any, to be provided for shares of such series of Preferred Stock; (7) the
voting powers, if any, of the holders of any series of Preferred Stock generally
or with respect to any particular matter, which may be less than, equal to or
greater than one vote per share, and which may, without limiting the generality
of the foregoing, include the right, voting as a series of Preferred Stock as a
class, to elect one or more directors of the Company generally or under such
specific circumstances and on such conditions, as shall be provided in the
resolution or resolutions of the Board of Directors adopted pursuant hereto,
including, without limitation, in the event there shall have been a default in
the payment of dividends on or redemption of any one or more series of Preferred
Stock; and (8) such other powers, preferences and relative, participating,
optional and other special rights, and the qualifications, limitations and
restrictions thereof, as the Board of Directors shall determine.
DIVIDENDS
Holders of shares of Preferred Stock shall be entitled to receive, when and
as declared by the Board of Directors of the Company out of funds of the Company
legally available therefor, a cash dividend payable in such amounts, at such
dates and at such rates, if any, per share as set forth in the applicable
Prospectus Supplement.
Unless otherwise set forth in the applicable Prospectus Supplement, no
dividends (other than in common stock or other capital stock ranking junior to
the Preferred Stock as to dividends and upon liquidation) shall be declared or
paid or set aside for payment, nor shall any other distribution be declared or
made upon the common stock, or any other capital stock of the Company ranking
junior to or on a parity with the Preferred Stock as to dividends, nor shall any
common stock or any other capital stock of the Company ranking junior to or on a
parity with the Preferred Stock as to dividends be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any shares of any such stock)
by the Company (except by conversion into or exchange for other capital stock of
the Company ranking junior to the Preferred Stock as to dividends) unless
-16-
<PAGE>
(i) if such series of Preferred Stock has a cumulative dividend, full cumulative
dividends on the Preferred Stock have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart for all
past dividend periods and the then current dividend period and (ii) if such
series of Preferred Stock does not have a cumulative dividend, full dividends on
the Preferred Stock have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for payment for
the then current dividend period; provided, however, that any monies theretofore
deposited in any sinking fund with respect to any preferred stock in compliance
with the provisions of such sinking fund may thereafter be applied to the
purchase or redemption of such preferred stock in accordance with the terms of
such sinking fund, regardless of whether at the time of such application full
cumulative dividends upon shares of the Preferred Stock outstanding on the last
dividend payment date shall have been paid or declared and set apart for payment
and provided, further; that any such junior or parity preferred stock or common
stock may be converted into or exchanged for stock of the Company ranking junior
to the Preferred Stock as to dividends.
The amount of dividends payable for the initial dividend period or any
period shorter than a full dividend period shall be computed on the basis of a
360-day year of twelve 30-day months. Accrued but unpaid dividends will not bear
interest.
CONVERTIBILITY
No series of Preferred Stock will be convertible into, or exchangeable for,
other securities or property except as set forth in the applicable Prospectus
Supplement, which will set forth the terms and conditions upon which such
conversion or exchange may be effected, including the initial conversion or
exchange rate and any adjustments thereto, the conversion or exchange period and
any other conversion or exchange provisions.
REDEMPTION AND SINKING FUND
No series of Preferred Stock will be redeemable or receive the benefit of a
sinking fund except as set forth in the applicable Prospectus Supplement, which
will set forth the terms and conditions thereof, including the dates and
redemption prices of any such redemption, any conditions thereto, and any other
redemption or sinking fund provisions.
LIQUIDATION RIGHTS
Unless otherwise set forth in the applicable Prospectus Supplement, in the
event of any liquidation, dissolution or winding up of the Company, the holders
of shares of each series of Preferred Stock are entitled to receive out of
assets of the Company available for distribution to stockholders, before any
distribution of assets is made to holders of (i) any other shares of preferred
stock ranking junior to such series of Preferred Stock as to rights upon
liquidation, dissolution or winding up and (ii) shares of common stock,
liquidating distributions per share in the amount of the liquidation preference
specified in the applicable Prospectus Supplement for such series of Preferred
Stock plus any dividends accrued and accumulated but unpaid to the date of final
distribution; but the holders of each series of Preferred Stock will not be
entitled to receive the liquidating distribution of, plus such dividends on,
such shares until the liquidation preference of any shares of the Company's
capital stock ranking senior to such series of the Preferred Stock as to the
rights upon liquidation, dissolution or winding up shall have been paid (or a
sum set aside therefor sufficient to provide for payment) in full. If upon any
liquidation, dissolution or winding up of the Company, the amounts payable with
respect to the Preferred Stock, and any other Preferred Stock ranking as to any
such distribution on a parity with the Preferred Stock are not paid in full, the
holders of the Preferred Stock and such other parity preferred stock will share
ratably in any such distribution of assets in proportion to the full respective
preferential amount to which they are entitled. Unless otherwise specified in a
Prospectus Supplement for a series of Preferred Stock, after payment of the full
amount of the liquidating distribution to which they are entitled, the holders
of shares of Preferred Stock will not be entitled to any further participation
in any distribution of assets by the Company. Neither a consolidation or merger
of the Company with, or into, another corporation nor a sale of securities,
lease, transfer or conveyance shall be considered a liquidation, dissolution or
winding up of the Company.
VOTING RIGHTS
The Board of Directors may determine the voting powers, if any, of the
holders of any series of Preferred Stock generally or with respect to any
particular matter. Any such voting rights may be less than, equal to or greater
than one
-17-
<PAGE>
vote per share, and which may, without limiting the generality of the foregoing,
include the right, voting as a series of Preferred Stock as a class, to elect
one or more directors of the Company generally or under such specific
circumstances and on such conditions, as shall be provided in the resolution or
resolutions of the Board of Directors adopted pursuant to the Articles of
Incorporation, including, without limitation, in the event there shall have been
a default in the payment of dividends on or redemption of any one or more series
of Preferred Stock.
Holders of shares of Preferred Stock will have no voting rights except as
provided in the Prospectus Supplement and as otherwise required from time to
time by applicable law.
MISCELLANEOUS
The holders of Preferred Stock will have no preemptive rights. The
Preferred Stock, upon issuance against full payment of the purchase price
therefor, will be fully paid and nonassessable. Shares of Preferred Stock
redeemed or otherwise reacquired by the Company shall resume the status of
authorized and unissued shares of Preferred Stock undesignated as to series, and
shall be available for subsequent issuance. There are no restrictions on
repurchase or redemption of the Preferred Stock while there is any arrearage on
sinking fund installments except as may be set forth in an applicable Prospectus
Supplement. Payment of dividends on any series of Preferred Stock may be
restricted by loan agreements, indentures and other transactions entered into by
the Company. The accompanying Prospectus Supplement will describe any material
contractual restrictions on dividend payments.
NO OTHER RIGHTS
The shares of a series of Preferred Stock will not have any preferences,
voting powers or relative, participating, optional or other special rights
except as set forth above or in the applicable Prospectus Supplement, the
Articles of Incorporation or the applicable Certificate of Designation or as
otherwise required by law.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for each series of Preferred Stock will be
designated in the applicable Prospectus Supplement.
-18-
<PAGE>
DESCRIPTION OF DEPOSITORY SHARES
GENERAL
The Company may offer receipts ("Depository Receipts") for Depository
Shares, each of which will represent a fractional interest in a share of a
particular series of a class of Preferred Stock, as specified in the applicable
Prospectus Supplement. Preferred Stock of each series of each class represented
by Depository Shares will be deposited under a separate Deposit Agreement (each,
a "Deposit Agreement") among the Company, the depository named therein (such
depository or its successor, the "Preferred Stock Depository") and the holders
from time to time of the Depository Receipts. Subject to the terms of the
Deposit Agreement, each owner of a Depository Receipt will be entitled, in
proportion to the fractional interest of a share of the particular series of a
Depository Receipt, to all the rights and preferences of the Preferred Stock
represented by such Depository Shares (including dividend, voting, conversion,
redemption and liquidation rights).
The Depository Shares will be evidenced by Depository Receipts issued
pursuant to the applicable Deposit Agreement. Immediately following the
issuance and delivery of the Preferred Stock by the Company to the Preferred
Stock Depository, the Company will cause the Preferred Stock Depository to
issue, on behalf of the Company, the Depository Receipts. Copies of the
applicable form of Deposit Agreement and Depository Receipt may be obtained from
the Company upon request.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depository will distribute all cash dividends or other
cash distributions received in respect of the Preferred Stock to the record
holders of the Depository Receipts evidencing the related Depository Shares in
proportion to the number of such Depository Receipts owned by such holder,
subject to certain obligations of holders to file proofs, certificates and other
information and to pay certain charges and expenses to the Preferred Stock
Depository.
In the event of a distribution other than in cash, the Preferred Stock
Depository will distribute property received by it to the record holders of
Depository Receipts entitled thereto, subject to certain obligations of holders
to file proofs, certificates and other information and to pay certain charges
and expenses to the Preferred Stock Depository, unless the Preferred Stock
Depository determines that it is not feasible to make such distribution, in
which case the Preferred Stock Depository may, with the approval of the Company,
sell such property and distribute the net proceeds from such sale to such
holders.
WITHDRAWAL OF SHARES
Upon surrender of the Depository Receipts at the corporate trust office of
the Preferred Stock Depository (unless the related Depository Shares have
previously been called for redemption), the holders thereof will be entitled to
delivery at such office, to or upon such holder's order, or the number of whole
shares of Preferred Stock and any money or other property represented by the
Depository Shares evidenced by such Depository Receipts. Holders of Depository
Receipts will be entitled to receive whole shares of the related Preferred Stock
on the basis of the proportion of Preferred Stock represented by each Depository
Share as specified in the applicable Prospectus Supplement, but holders of such
Preferred Stock will not thereafter be entitled to receive Depository Shares
therefor. If the Depository Receipts delivered by the holder evidence a number
of Depository Shares in excess of the number of Depository Shares representing
the number of shares of Preferred Stock to be withdrawn, the Preferred Stock
Depository will deliver to such holder at the same time a new Depository Receipt
evidencing such excess number of Depository Shares.
REDEMPTION OF DEPOSITORY SHARES
Whenever the Company redeems Preferred Stock held by the Preferred Stock
Depository, the Preferred Stock Depository will redeem as of the same redemption
date the number of Depository Shares representing the Preferred Stock so
redeemed, provided the Company shall have paid in full to the Preferred Stock
Depository the redemption price of the Preferred Stock to be redeemed plus an
amount equal to any accrued and unpaid dividends (except, with respect to
noncumulative shares of Preferred Stock, dividends for the current dividend
period only) thereon to the date fixed for redemption. The redemption price per
Depository Share will be equal to the redemption price and any other amounts
-19-
<PAGE>
per share payable with respect to the Preferred Stock. If less than all the
Depository Shares are to be redeemed, the Depository Shares to be redeemed will
be selected by the Preferred Stock Depository by lot.
After the date fixed for redemption, the Depository Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depository Receipts evidencing the Depository Shares so called
for redemption will cease, except the right to receive any moneys payable upon
such redemption and any money or other property to which the holders of such
Depository Receipts were entitled upon such redemption upon surrender thereof to
the Preferred Stock Depository.
VOTING OF THE UNDERLYING PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Preferred Stock Depository will mail the
information contained in such notice of meeting to the record holders of the
Depository Receipts evidencing the Depository Shares which represent such
Preferred Stock. Each record holder of Depository Receipts evidencing
Depository Shares on the record date (which will be the same date as the record
date for the Preferred Stock) will be entitled to instruct the Preferred Stock
Depository as to the exercise of the voting rights pertaining to the amount of
Preferred Stock represented by such holder's Depository Shares. The Preferred
Stock Depository will vote the amount of Preferred Stock represented by such
Depository Shares in accordance with such instructions, and the Company will
agree to take all reasonable action which may be deemed necessary by the
Preferred Stock Depository in order to enable the Preferred Stock Depository to
do so. The Preferred Stock Depository will abstain from voting the amount of
Preferred Stock represented by such Depository Shares to the extent it does not
receive specific instructions from the holders of Depository Receipts evidencing
such Depository Shares.
LIQUIDATION PREFERENCE
In the event of liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary, each holder of a Depository Receipt will be
entitled to the fraction of the liquidation preference accorded each share of
Preferred Stock represented by the Depository Share evidenced by such Depository
Receipt, as set forth in the applicable Prospectus Supplement.
CONVERSION OF THE UNDERLYING PREFERRED STOCK
The Depository Shares, as such, are not convertible into Common Stock or
any securities or property of the Company. Nevertheless, if so specified in the
applicable Prospectus Supplement relating to an offering of Depository Shares,
the Depository Receipts may be surrendered by holders thereof to the Preferred
Stock Depository with written instructions to the Preferred Stock Depository to
instruct the Company to cause conversion of the Preferred Stock represented by
the Depository Shares evidenced by such Depository Receipts into whole shares of
Common Stock, other Preferred Stock of the Company or other shares of capital
Stock, and the Company has agreed that upon receipt of such instructions and any
amounts payable in respect thereof, it will cause the conversion thereof
utilizing the same procedures as those provided for delivery of Preferred Stock
to effect such conversion. If the Depository Shares evidenced by a Depository
Receipt are to be converted in part only, one or more new Depository Receipts
will be issued for any Depository Shares not to be converted. No fractional
shares of Common Stock will be issued upon conversion, and if such conversion
will result in a fractional share being issued, an amount will be paid in cash
by the Company equal to the value of the fractional interest based upon the
closing price of the Common Stock on the last business day prior to the
conversion.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depository Receipt evidencing the Depository Shares which
represent the Preferred Stock and any provision of the Deposit Agreement may at
any time be amended by agreement between the Company and the Preferred Stock
Depository. However, any amendment that materially and adversely alters the
rights of the holders of Depository Receipts will not be effective unless such
amendment has been approved by the existing holders of at least a majority of
the Depository Shares evidenced by the Depository Receipts then outstanding.
The Deposit Agreement may be terminated by the Company upon not less than
30 days' prior written notice to the Preferred Stock Depository if a majority of
each class of Depository Shares affected by such termination consents
-20-
<PAGE>
to such termination, whereupon the Preferred Stock Depository shall deliver or
make available to each holder of Depository Receipts, upon surrender of the
shares of Preferred Stock as are represented by the Depository Shares evidenced
by such Depository Receipts. In addition, the Deposit Agreement will
automatically terminate if (i) all outstanding Depository Shares shall have been
redeemed, (ii) there shall have been a final distribution in respect of the
related Preferred Stock in connection with any liquidation, dissolution or
winding up of the Company and such distribution shall have been distributed to
the holders of Depository Receipts evidencing the Depository Shares representing
such Preferred Stock or (iii) each related share of Preferred Stock shall have
been converted into capital stock of the Company not so represented by
Depository Shares.
CHARGES OF PREFERRED STOCK DEPOSITORY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the Deposit Agreement. In addition, the
Company will pay the fees and expenses of the Preferred Stock Depository in
connection with the performance of its duties under the Deposit Agreement.
However, holders of the Depository Receipts will pay the fees and expenses of
the Preferred Stock Depository for any duties requested by such holders to be
performed which are outside of those expressly provided for in the Deposit
Agreement.
RESIGNATION AND REMOVAL OF PREFERRED STOCK DEPOSITORY
The Preferred Stock Depository may resign at any time by delivering to the
Company notice of its election to do so, and the Company may at any time remove
the Preferred Stock Depository, any such resignation or removal to take effect
upon the appointment of a successor Preferred Stock Depository. A successor
Preferred Stock Depository must be appointed within 60 days after delivery of
the notice of resignation or removal and must be a bank or trust company having
its principal office in the United States and having a combined capital and
surplus of at least $50,000,000.
MISCELLANEOUS
The Preferred Stock Depository will forward to holders of Depository
Receipts any reports and communications from the Company that are received by
the Preferred Stock Depository with respect to the related Preferred Stock.
Neither the Preferred Stock Depository nor the Company will be liable if it
is prevented from or delayed in, by law or any circumstances beyond its control,
performing its obligations under the Deposit Agreement. The obligations of the
Company and the Preferred Stock Depository under the Deposit Agreement will be
limited to performing their duties thereunder in good faith and without gross
negligence or willful misconduct, and the Company and the Preferred Stock
Depository will not be obligated to prosecute or defend any legal proceeding in
respect of any Depository Receipts, Depository Shares or the Preferred Stock
represented thereby unless satisfactory indemnity is furnished. The Company and
the Preferred Stock Depository may rely on written advice of counsel or
accountants, or information provided by persons presenting Preferred Stock
represented thereby for deposit, holders of Depository Receipts or other persons
believed to be competent to give such information, and on documents believed to
be genuine and signed by a proper party.
If the Preferred Stock Depository shall receive conflicting claims,
requests or instructions from any holders of Depository Receipts, on the one
hand, and the Company, on the other hand, the Preferred Stock Depository shall
be entitled to act on such claims, requests or instructions received from the
Company.
-21-
<PAGE>
DESCRIPTION OF COMMON STOCK
The Company's Articles of Incorporation authorize an aggregate of 30,000,000
shares of Common Stock. Except as described below with respect to certain
significant shareholders, holders of Common Stock are entitled to one vote for
each share on all matters on which shareholders are entitled to vote, including
election of directors. The Articles do not provide for cumulative voting or
preemptive, subscription, redemption or conversion rights.
Dividends may be paid to shareholders when, as and if declared by the Board
of Directors out of funds legally available for such purpose. The declaration
and payment of dividends is restricted under the terms of the Company's
guarantees of certain indebtedness of its subsidiaries.
In the event of the dissolution or winding up of the Company, after payment
or provision for payment of debts and other liabilities of the Company, the
holders of Common Stock will be entitled to receive pro rata all remaining
assets of the Company.
Under the provisions of Article XII of the Articles of Incorporation, a
holder of 15% or more of the Common Stock may not vote such shares in favor of
certain transactions, e.g. merger, consolidation, plan of exchange or sale of
substantially all of the Company's assets, with such shareholder or any party
related to such shareholder for a period of three years following acquisition of
the Common Stock without the approval of the Board of Directors and two-thirds
of the other shareholders. This provision does not apply if such shareholder
acquires at least 85% of the Common Stock in the same transaction resulting in
such shareholder acquiring 15%, or if such transaction is approved by the Board
of Directors prior to such shareholder's acquisition of 15% of the Common Stock.
-22-
<PAGE>
DESCRIPTION OF WARRANTS
GENERAL
The Company may issue, together with other Securities or separately,
warrants for the purchase of (i) Debt Securities ("Debt Warrants"), (ii)
Preferred Stock (the "Preferred Stock Warrants") or (iii) Common Stock ("Common
Stock Warrants"). The Preferred Stock Warrants and the Common Stock Warrants are
collectively referred to as the "Stock Warrants" and the Stock Warrants and the
Debt Warrants are collectively referred to as the "Warrants").
The Warrants will be issued under Warrant Agreements (as defined below) to
be entered into between the Company and a bank or trust company, as warrant
agent (the "Warrant Agent"), all to be set forth in the applicable Prospectus
Supplement relating to any or all Warrants in respect of which this Prospectus
is being delivered. Copies of the form of agreement for each Warrant (each a
"Debt Securities Warrant Agreement" or "Stock Warrant Agreement," as the case
may be, or collectively the "Warrant Agreements"), including the forms of
certificates representing the Warrants ("Debt Warrant Certificates" or "Stock
Warrant Certificates," as the case may be, or collectively, the "Warrant
Certificates") reflecting the provisions to be included in such agreements that
will be entered into with respect to the particular offerings of each type of
warrant are, or will be, filed as exhibits to the Registration Statement of
which this Prospectus forms a part.
The following description sets forth certain general terms and provisions
of the Warrants to which any Prospectus Supplement may relate. The particular
terms of the Warrants to which any Prospectus Supplement may relate and the
extent, if any, to which such general provisions may apply to the Warrants so
offered will be described in the applicable Prospectus Supplement. The following
summary of certain provisions of the Warrants, Warrant Agreements and Warrant
Certificates does not purport to be complete and is subject to, and is qualified
in its entirety by express reference to, all the provisions of the Warrant
Agreements and Warrant Certificates, including the definitions therein of
certain terms.
DEBT WARRANTS
General. Reference is made to the applicable Prospectus Supplement for the
terms of Debt Warrants in respect of which this Prospectus is being delivered,
the Debt Securities Warrant Agreement relating to such Debt Warrants and the
Debt Warrant Certificates representing such Debt Warrants, including the
following: (i) the designation, aggregate principal amount and terms of the Debt
Securities purchasable upon exercise of such Debt Warrants and the procedures
and conditions relating to the exercise of such Debt Warrants; (ii) the
designation and terms of any related Debt Securities with which such Debt
Warrants are issued and the number of such Debt Warrants issued with each such
Debt Security; (iii) the date, if any, on and after which such Debt Warrants and
the related Debt Securities will be separately transferable; (iv) the principal
amount of Debt Securities purchasable upon exercise of each Debt Warrant and the
price at which such principal amount of Debt Securities may be purchased upon
such exercise; (v) the date on which the right to exercise such Debt Warrants
shall commence and the date on which such right shall expire; (vi) a discussion
of the material United States Federal income tax considerations applicable to
the ownership or exercise of Debt Warrants; (vii) whether the Debt Warrants
represented by the Debt Warrant Certificates will be issued in registered or
bearer form, and, if registered, where they may be transferred and registered;
(viii) call provisions of such Debt Warrants, if any; and (ix) any other terms
of the Debt Warrants.
Debt Warrant Certificates will be exchangeable for new Debt Warrant
Certificates of different denominations and Debt Warrants may be exercised at
the corporate trust office of the Warrant Agent or any other office indicated in
the applicable Prospectus Supplement. Prior to the exercise of their Debt
Warrants, holders of Debt Warrants will not have any of the rights of holders of
the Debt Securities purchasable upon such exercise and will not be entitled to
payments of principal of (and premium, if any) or interest, if any, on the Debt
Securities purchasable upon such exercise.
Exercise of Debt Warrants. Each Debt Warrant will entitle the holder to
purchase for cash such principal amount of Debt Securities at such exercise
price as shall in each case be set forth in, or be determinable as set forth in,
the applicable Prospectus Supplement relating to the Debt Warrants offered
thereby. Debt Warrants may be exercised at any time up to 5:00 p.m., New York
City time, on the expiration date set forth in the applicable Prospectus
Supplement. After 5:00 p.m., New York City time, on the expiration date,
unexercised Debt Warrants will become void.
-23-
<PAGE>
Debt Warrants may be exercised as set forth in the applicable Prospectus
Supplement relating to the Debt Warrants. Upon receipt of payment and the Debt
Warrant Certificate properly completed and duly executed at the corporate trust
office of the Warrant Agent or any other office indicated in the applicable
Prospectus Supplement, the Company will, as soon as practicable, forward the
Debt Securities purchasable upon such exercise. If less than all of the Debt
Warrants represented by such Debt Warrant Certificate are exercised, a new Debt
Warrant Certificate will be issued for the remaining amount of Debt Warrants.
STOCK WARRANTS
General. Reference is made to the applicable Prospectus Supplement for the
terms of Stock Warrants in respect of which this Prospectus is being delivered,
the Stock Warrant Agreement relating to such Stock Warrants and the Stock
Warrant Certificates representing such Stock Warrants, including the following:
(i) the type and number of shares of Preferred Stock or Common Stock purchasable
upon exercise of such Stock Warrants and the procedures and conditions relating
to the exercise of such Stock Warrants; (ii) the date, if any, on and after
which such Stock Warrants and the related shares of Preferred Stock or Common
Stock will be separately tradeable; (iii) the offering price of such Stock
Warrants, if any; (iv) the initial price at which such shares may be purchased
upon exercise of Stock Warrants and any provision with respect to the adjustment
thereof; (v) the date on which the right to exercise such Stock Warrants shall
commence and the date on which such right shall expire; (vi) a discussion of the
material United States Federal income tax considerations applicable to the
ownership or exercise of Stock Warrants; (vii) call provisions of such Stock
Warrants, if any; (viii) any other terms of the Stock Warrants and; (ix) in the
case of Preferred Stock Warrants, information relating to the Preferred Stock
purchasable upon exercise of such Preferred Stock Warrants.
Stock Warrant Certificates will be exchangeable for new Stock Warrant
Certificates of different denominations and Stock Warrants may be exercised at
the corporate trust office of the Warrant Agent or any other office indicated in
the applicable Prospectus Supplement. Prior to the exercise of their Stock
Warrants, holders of Stock Warrants will not have any of the rights of holders
of shares of capital stock purchasable upon such exercise, and will not be
entitled to any dividend payments on such capital stock purchasable upon such
exercise.
Exercise of Stock Warrants. Each Stock Warrant will entitle the holder to
purchase for cash such number of shares of Preferred Stock or Common Stock, as
the case may be, at such exercise price as shall in each case be set forth in,
or be determinable as set forth in, the applicable Prospectus Supplement
relating to the Stock Warrants offered thereby. Unless otherwise specified in
the applicable Prospectus Supplement, Stock Warrants may be exercised at any
time up to 5:00 p.m., New York City time, on the expiration date set forth in
the applicable Prospectus Supplement. After 5:00 p.m., New York City time, on
the expiration date, unexercised Stock Warrants will become void.
Stock Warrants may be exercised as set forth in the applicable Prospectus
Supplement relating thereto. Upon receipt of payment and the Stock Warrant
Certificates properly completed and duly executed at the corporate trust office
of the Warrant Agent or any other office indicated in the applicable Prospectus
Supplement, the Company will, as soon as practicable, forward a certificate
representing the number of shares of capital stock purchasable upon such
exercise. If less than all of the Stock Warrants represented by such Stock
Warrant Certificate are exercised, a new Stock Warrant Certificate will be
issued for the remaining amount of Stock Warrants.
-24-
<PAGE>
PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more underwriters for public
offering and sale by them or may sell the Securities to investors directly or
through agents or dealers. Any such underwriter, agent or dealer involved in the
offer and sale of the Securities will be named in an applicable Prospectus
Supplement. Securities offered pursuant to a particular Prospectus Supplement
are referred to herein as "Offered Securities."
Underwriters may offer and sell the Offered Securities at a fixed price or
prices, which may be changed, or from time to time at market prices prevailing
at the time of sale, at prices related to such prevailing market prices or at
negotiated prices. The Company also may, from time to time, authorize
underwriters acting as its agents to offer and sell the Offered Securities upon
the terms and conditions set forth in the applicable Prospectus Supplement. In
connection with the sale of Offered Securities, underwriters may be deemed to
have received compensation from the Company in the form of underwriting
discounts or commissions and may also receive commissions from purchasers of
Offered Securities for whom they may act as agent. Underwriters may sell Offered
Securities to or through dealers, and such dealers may receive compensation in
the form of discounts and commissions or concessions from the underwriters
and/or commissions (which may be changed from time to time) from the purchasers
for whom they may act as agent.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of Offered Securities, and any discounts and
commissions or concessions allowed by underwriters to participating dealers,
will be set forth in an applicable Prospectus Supplement. Underwriters, dealers
and agents participating in the distribution of the Offered Securities may be
deemed to be underwriters under the Securities Act, and any discounts and
commissions received by them and any profit realized by them on resale of the
Offered Securities may be deemed to be underwriting discounts and commissions
under the Securities Act. Underwriters, dealers and agents may be entitled,
under agreements with the Company, to indemnification against and contribution
toward certain civil liabilities, including liabilities under the Securities
Act, and to reimbursement by the Company for certain expenses.
If a dealer is utilized in the sale of the Securities in respect of which
this Prospectus is delivered, the Company will sell such Securities to such
dealer, as principal. The dealer may then resell such Securities to the public
at varying prices to be determined by such dealer at the time of resale.
If so indicated in an applicable Prospectus Supplement, the Company will
authorize dealers acting as its agents to solicit offers by certain institutions
to purchase Offered Securities from the Company at the public offering price set
forth in such Prospectus Supplement pursuant to Delayed Delivery Contracts
("Contracts") providing for payment and delivery on the date or dates stated in
such Prospectus Supplement. Each Contract will be for an amount not less than,
and the aggregate principal amount of Offered Securities sold pursuant to
Contracts shall not be less nor more than, the respective amounts stated in such
Prospectus Supplement. Institutions with whom Contracts, when authorized, may be
made include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and other
institutions, but will in all cases be subject to the approval of the Company.
The terms and conditions of any Contracts will be set forth in the applicable
Prospectus Supplement relating thereto. Agents and underwriters will have no
responsibility in respect of the delivery or performance of Contracts.
LEGAL MATTERS
The validity of the issuance of the Securities offered hereby will be
passed upon for the Company by Rothgerber, Appel, Powers & Johnson LLP, Denver,
Colorado.
EXPERTS
The consolidated financial statements and related financial statement
schedules incorporated in this Prospectus by reference from the Company's Annual
Report on Form 10-K have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their reports, which are incorporated herein by
reference, and have been so incorporated in reliance upon the reports of such
firm given upon their authority as experts in accounting and auditing.
-25-
<PAGE>
===============================================================================
No dealer, salesperson or any other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus or any Prospectus Supplement and, if given or made, such information
or representations must not be relied upon as having been authorized by the
Company or any underwriter or agent. This Prospectus and any Prospectus
Supplement do not constitute an offer to sell or the solicitation of any offer
to buy any of the securities offered hereby or thereby by anyone in any
jurisdiction in which such offer or solicitation is not authorized, or in which
the person making such offer is not qualified to do so, or to any person to whom
it is unlawful to make such offer or solicitation. Neither the delivery of this
Prospectus or any Prospectus Supplement nor any sale made hereunder and
thereunder shall, under any circumstances, create any implication that the
information herein or therein is correct as of any time subsequent thereof.
________________
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Available Information........................................................ 2
Incorporation of Certain Documents by Reference.............................. 2
The Company.................................................................. 3
Risk Factors................................................................. 4
Use of Proceeds.............................................................. 8
Ratio of Earnings to Fixed Charges........................................... 8
Description of Debt Securities............................................... 9
Description of Preferred Stock...............................................16
Description of Depository Shares.............................................19
Description of Common Stock..................................................22
Description of Warrants......................................................23
Plan of Distribution.........................................................25
Legal Matters................................................................25
Experts......................................................................25
</TABLE>
===============================================================================
===============================================================================
$300,000,000
MAIL-WELL, INC.
Debt Securities
Preferred Stock
Depository Shares
Common Stock
Warrants
________________
P R O S P E C T U S
________________
,1997
===============================================================================
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses of the offering (except for SEC registration fees),
all of which are to be borne by the Registrant, are as follows:
Printing Expenses..................... $ 10,000
Accounting Fees and Expenses.......... 45,000
Legal Fees and Expense................ 25,000
SEC Registration Fee.................. 90,910
Blue Sky Fees......................... 5,000
Miscellaneous......................... 5,000
--------------
TOTAL................................. $ 181,910
==============
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 7-109-101 et seq. of the Colorado Business Corporation Act ("CBCA")
------
empowers a Colorado corporation to indemnify its directors, officers, employees
and agents under certain circumstance, as well as providing for the elimination
of personal liability of directors and officers of a Colorado corporation for
monetary damages.
Article V of the Articles of Incorporation of the Registrant reads as
follows:
"The Corporation shall indemnify, to the fullest extent permitted by
applicable law in effect from time to time, any person, and the estate and
personal representative of any such person, against all liability and expense
(including attorneys' fees) incurred by reason of the fact that he or she is or
was a director or officer of the Corporation or, while serving as a director or
officer of the Corporation, he or she is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee, fiduciary, or
agent of, or in any similar managerial or fiduciary position of, another
domestic or foreign Corporation or other individual or entity or of an employee
benefit plan. The Corporation shall also indemnify any person who is serving or
has served the Corporation as director, officer, employee, fiduciary, or agent,
and that person's estate and personal representative, to the extent and in the
manner provided in any bylaw, resolution of the shareholders or directors,
contract, or otherwise, so long as such provision is legally permissible."
Article VI of the Articles of Incorporation of the Registrant reads as
follows:
"There shall be no personal liability of a director to the Corporation or
to its shareholders for monetary damages for breach of fiduciary duty as a
director, except that said personal liability shall not be eliminated to the
Corporation or to the shareholders for monetary damages arising due to any
breach of the director's duty of loyalty to the Corporation or to the
shareholders, acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, acts specified in section 7-108-403,
C.R.S., or any transaction from which a director derived an improper personal
benefit. Notwithstanding any other provisions herein, personal liability of a
director shall be eliminated to the greatest extent possible as is now, or in
the future, provided for by law. Any repeal or modification of the foregoing
sentence shall not adversely affect any right or protection of a director of the
Corporation existing hereunder with respect to any act or omission occurring
prior to such repeal or modification."
The Company has entered into Indemnity Agreements with its directors and
certain key officers pursuant to which the Company generally is obligated to
indemnify its directors and such officers to the full extent permitted by the
CBCA as described above.
The Company has purchased liability insurance policies covering directors
and officers in certain circumstances.
II-1
<PAGE>
ITEM 16. EXHIBITS.
The following Exhibits are filed as a part of this Registration Statement
pursuant to Item 601 of Regulation S-K:
Exhibit
Number
------
*1.1 Form of Underwriting Agreement for Equity Securities
*1.2 Form of Underwriting Agreement for Debt Securities
*4.1 Form of Senior Subordinated Debt Securities Indenture
*4.2 Form of Subordinated Debt Securities Indenture
5.1 Legal Opinion of Rothgerber, Appel, Powers & Johnson LLP
23.1 Consent of Rothgerber, Appel, Powers & Johnson LLP
(Reference is made to Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP
24.1 Power of Attorney (included on the signature page attached
hereto)
*25.1 Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of the trustee under the Senior Subordinated Debt
Securities Indenture.
*25.2 Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of the trustee under the Subordinated Debt Securities
Indenture.
____________________________________
* To be filed by amendment or incorporated by reference from a Current Report on
Form 8-K prior to the offering of the securities represented thereby.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
(2) That, for the purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit, or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
II-2
<PAGE>
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Securities Act.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Englewood, State of Colorado, on September 24, 1997.
MAIL-WELL, INC.
By: /s/ Gerald F. Mahoney
------------------------------------------
Gerald F. Mahoney, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Paul V.
Reilly and Roger Wertheimer and each of them, as attorneys-in-fact, each with
the power of substitution, for him in any and all capacities, to sign any
amendments to this Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting to said attorney-in-fact, and each of them, full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact, or any one of them, or their or his substitute or
substitutes, may lawfully do or causes to be done by virtue hereof.
Signature Title Date
- --------- ----- ----
/s/ Gerald F. Mahoney Chairman of the Board/ September 24, 1997.
- ------------------------ Chief Executive Officer/Director
Gerald F. Mahoney
/s/ Paul V. Reilly Senior Vice President/ September 24, 1997
- ------------------------ Chief Financial Officer
Paul V. Reilly (principal financial officer and
principal accounting officer)
/s/ Robert J. Terry President and CEO, September 24, 1997
- ------------------------ U.S. Envelope Operations/
Robert J. Terry Director
/s/ Frank P. Diassi Director September 24, 1997
- ------------------------
Frank P. Diassi
/s/ J. Bruce Duty Director September 24, 1997
- ------------------------
J. Bruce Duty
II-4
<PAGE>
/s/ Frank J. Heverdejs Director September 24, 1997
- ------------------------
Frank J. Heverdejs
- ------------------------ Director September 24, 1997
Jerome W. Pickholz
/s/ Susan O. Rheney Director September 24, 1997
- ------------------------
Susan O. Rheney
/s/ W. Thomas Stevens Director September 24, 1997
- ------------------------
W. Thomas Stevens
II-5
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NO. EXHIBITS
----------- --------
*1.1 Form of Underwriting Agreement for Equity Securities
*1.2 Form of Underwriting Agreement for Debt Securities
*4.1 Form of Senior Subordinated Debt Securities Indenture
*4.2 Form of Subordinated Debt Securities Indenture
5.1 Legal Opinion of Rothgerber, Appel, Powers & Johnson LLP
23.1 Consent of Rothgerber, Appel, Powers & Johnson LLP
(Reference is made to Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP
24.1 Power of Attorney (included on the signature page attached hereto)
*25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of the trustee under the Senior Subordinated Debt
Securities Indenture.
*25.2 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of the trustee under the Subordinated Debt Securities
Indenture.
____________________________________
* To be filed by amendment or incorporated by reference from a Current Report on
Form 8-K prior to the offering of the securities represented thereby.
II-6
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF ROTHGERBER, APPEL, POWERS & JOHNSON LLP APPEARS HERE]
September 24, 1997
Mail-Well, Inc.
23 Inverness Way, Suite 160
Englewood, Colorado 80112
Ladies and Gentlemen:
We have acted as counsel to Mail-Well, Inc., a Colorado corporation
(the "Company"), in connection with the preparation of the Registration
Statement on Form S-3 (the "Registration Statement") to be filed with the
Securities and Exchange Commission (the "Commission") on or about September 24,
1997. The Registration Statement relates to the issuance and sale from time to
time, pursuant to Rule 415 of the General Rules and Regulations promulgated
under the Securities Act of 1933, as amended (the "Act"), of the following
securities with an aggregate initial offering price of up to $300,000,000 (or
the equivalent thereof, based on the applicable exchange rate at the time of
sale, in one or more foreign currencies, currency units or composite currencies
as shall be designated by the Company): (i) shares of the Company's Common
Stock, $.01 par value per share ("Common Stock"); (ii) whole or fractional
shares of the Company's Preferred Stock, $.01 par value per share (collectively,
"Preferred Stock"); (iii) Preferred Stock represented by depository shares
("Depository Shares"); (iv) the Company's debt securities (the "Debt
Securities"), which may be issued under the Senior Subordinated Debt Indenture,
between the Company and a trustee to be named in an applicable Prospectus
Supplement (the "Senior Subordinated Indenture") or under the Subordinated Debt
Indenture, between the Company and a trustee to be named in an applicable
Prospectus Supplement (the "Subordinated Indenture" and, together with the
Senior Subordinated Indenture, the "Indentures"); (v) warrants to purchase
Common Stock (the "Common Stock Warrants"); (vi) warrants to purchase Preferred
Stock ("Preferred Stock Warrants"); and (vii) warrants to purchase Debt
Securities ("Debt Warrants" and collectively with the Common Stock Warrants and
the Preferred Stock Warrants, the "Warrants"). The Common Stock, Preferred
Stock, Depository Shares, Debt Securities and the Warrants are collectively
referred to herein as the "Offered Securities." We do not express any opinion
herein as to the issuance of Debt Securities under any indenture other than the
Indentures. This opinion is furnished in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Act.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of: (i) the Registration
Statement filed with the Commission on September 24, 1997 under the Act; (ii)
the form of each of the Indentures proposed to be entered into
<PAGE>
Mail-Well, Inc.
September 24, 1997
Page 2
by the Company; (iii) the form of underwriting agreement (the "Debt Underwriting
Agreement") proposed to be entered into by the Company and one or more
underwriters to be named therein in connection with any firm commitment
underwritten offering of Debt Securities or Warrants; (iv) the form of
underwriting agreement (the "Equity Underwriting Agreement" and, together with
the Debt Underwriting Agreement, the "Underwriting Agreements") proposed to be
entered into by the Company and one or more underwriters in connection with any
firm commitment underwritten offering of Common Stock, Preferred Stock,
Depository Shares or Warrants; (v) the Articles of Incorporation of the Company
as in effect on the date hereof; (vi) the By-laws of the Company as in effect on
the date hereof; and (vii) resolutions adopted by the Board of Directors of the
Company (the "Board"), authorizing the issuance and sale of the Offered
Securities (the "Board Resolutions"). We have also examined originals or copies,
certified or otherwise identified to our satisfaction, of such records of the
Company and such agreements, certificates of public officials, certificates of
officers or other representatives of the Company and others, and such other
documents, certificates and records as we have deemed necessary or appropriate
as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed or to be executed by parties other than the
Company, we have assumed that such parties have the power, corporate or other,
to enter into and perform all obligations thereunder and have also assumed the
due authorization by all requisite action, corporate or other, and execution and
delivery by such parties of such documents and the validity and binding effect
thereof. As to any facts material to the opinions expressed herein that were
not independently established or verified, we have relied upon statements and
representations of officers and other representatives of the Company and others.
Members of our firm are admitted to the bar in the State of Colorado, and
we do not express any opinion as to the laws of any other jurisdiction. The
Offered Securities may be issued from time to time on a delayed or continuous
basis, and this opinion is limited to the laws, including the rules and
regulations, as in effect on the date hereof.
Based upon and subject to the foregoing, we are of the opinion that:
1. When (i) the Registration Statement shall have become effective under
the Act, (ii) the Blue Sky or securities laws of certain states shall have been
complied with, (iii) if the Debt Securities are to be sold pursuant to a firm
commitment underwritten offering, the Debt Underwriting Agreement with respect
to the Debt Securities has been duly authorized, executed and delivered by the
Company and the other parties thereto, (iv) the Indenture relating to the Debt
Securities shall have been duly authorized, executed and delivered by the
Company and the Trustee and duly qualified under the Trust Indenture Act of
1939, as amended, (v) the terms of the Debt Securities and of their
<PAGE>
Mail-Well, Inc.
September 24, 1997
Page 3
issuance shall have been duly established by the Board, or any appropriate
Committee appointed thereby, in conformity with the Indenture relating to the
Debt Securities so as not to violate any applicable law or the Articles of
Incorporation or By-laws of the Company or result in default under or breach of
any agreement or instrument binding upon the Company and so as to comply with
any requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company, and (vi) the Debt Securities shall have been (A)
duly authorized, executed, authenticated and delivered against payment therefor
in accordance with the related Indenture and Debt Underwriting Agreement, if
any, or any other applicable duly authorized, executed and delivered purchase
agreement or (B) issued upon conversion or exchange of Debt Securities or
Preferred Stock which, by their respective terms, are convertible into or
exchangeable for Debt Securities or upon exercise of Debt Warrants, and the
Company shall have received any additional consideration which is payable upon
such conversion, exchange or exercise, the Debt Securities shall constitute
binding obligations of the Company enforceable in accordance with their terms,
except as enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to or affecting creditors' rights generally and (b)
general principles of equity (regardless of whether enforcement is considered in
a proceeding of law or in equity), and except that enforcement thereof may also
be limited by (x) requirements that a claim with respect to any Debt Securities
denominated other than in United States dollars (or a foreign currency or
foreign currency unit judgment in respect of such claim) be converted into
United States dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (y) governmental authority to limit, delay or
prohibit the making of payments in foreign currency or currency units or payment
outside the United States.
2. When (i) the Registration Statement shall have become effective under
the Act, (ii) the Blue Sky or securities laws of certain states shall have been
complied with, (iii) if the Preferred Stock is to be sold pursuant to a firm
commitment underwritten offering, the Equity Underwriting Agreement with respect
to such Preferred Stock has been duly authorized, executed and delivered by the
Company and the other parties thereto, (iv) the Board of Directors, including
any appropriate committee appointed thereby, and appropriate officers of the
Company have taken all necessary corporate action to approve the issuance and
terms of the shares of the Preferred Stock and related matters, including the
adoption of a Certificate of Designation for the Preferred Stock, (v) the filing
of the applicable Certificate of Designation with the Secretary of State of the
State of Colorado has duly occurred, (vi) the terms of the Preferred Stock and
of their issuance and sale have been duly established in conformity with the
Company's Articles of Incorporation, including the Certificate of Designation
relating to the Preferred Stock, and the By-laws of the Company so as not to
violate any applicable law or the Articles of Incorporation or By-laws of the
Company or result in a default under or breach of any agreement or instrument
binding upon the Company and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company,
(vii) certificates representing the shares of the Preferred Sock are duly
executed, countersigned, registered and delivered upon payment of the agreed-
upon consideration therefor, and
<PAGE>
Mail-Well, Inc.
September 24, 1997
Page 4
(viii) the Preferred Stock shall have been (A) authorized, issued and sold in
accordance with the related Equity Underwriting Agreement or any other
applicable duly authorized, executed and delivered purchase agreement and the
Company shall have received consideration therefor or (B) issued upon conversion
or exchange of Debt Securities or Preferred Stock which, by their respective
terms, are convertible into or exchangeable for shares of Preferred Stock or
upon exercise of Preferred Stock Warrants and the Company shall have received
any additional consideration which is payable upon such conversion, exchange or
exercise, the Preferred Stock will be validly issued, fully paid and
nonassessable.
3. When (i) the Registration Statement shall have become effective, (ii)
the Blue Sky or securities laws of certain states shall have been complied with,
(iii) if the Depository Shares are to be sold pursuant to a firm commitment
underwritten offering, the Equity Underwriting Agreement with respect to the
Depository Shares has been duly authorized, executed and delivered by the
Company Committee and the other parties thereto, (iv) the Board of Directors,
including any appropriate committee appointed thereby, and appropriate officers
of the Company have taken all necessary corporate action to approve the issuance
and terms of the Depository Shares and related matters, including the adoption
of the Certificate of Designation for the related Preferred Stock, (v) the
filing of the applicable Certificate of Designation with the Secretary of State
of the State of Colorado has duly occurred, (vi) a deposit agreement relating to
the Depository Shares (the "Deposit Agreement") in the form to be filed as an
exhibit to the Registration Statement, any amendment thereto or any document
incorporated by reference therein as contemplated by the Board Resolution has
been duly executed and delivered by the Company and a depository, (vii) the
terms of the Depository Shares and of their issuance and sale have been duly
established in conformity with the Deposit Agreement so as not to violate any
applicable law or the Articles of Incorporation or By-laws of the Company or
result in a default under or breach of any agreement or instrument binding upon
the Company and so as to comply with any requirement or restriction imposed by
any court or governmental body having jurisdiction over the Company, (viii) the
related Preferred Stock which is represented by the Depository Shares has been
duly authorized, validly issued and delivered to the applicable depository for
deposit in accordance with the laws of the State of Colorado and any other
applicable jurisdiction, and (ix) the receipts evidencing the Depository Shares
(the "Receipts") are duly issued against the deposit of the Preferred Stock in
accordance with the Deposit Agreement, such Receipts will be validly issued and
will entitle the holders thereof to the rights specified therein and in the
Deposit Agreement.
4. When (i) the Registration Statement shall have become effective under
the Act, (ii) the Blue Sky or securities laws of certain states shall have been
complied with, (iii) if the Common Stock is to be sold pursuant to a firm
commitment underwritten offering, the Equity Underwriting Agreement with respect
to such Common Stock has been duly authorized, executed and delivered by the
Company and the other parties thereto, (iv) certificates representing the shares
of the Common Stock are duly executed, countersigned, registered and delivered
upon payment of the agreed upon
<PAGE>
Mail-Well, Inc.
September 24, 1997
Page 5
consideration therefor, (v) the Board of Directors of the Company, including any
appropriate committee appointed thereby, and appropriate officers of the Company
have taken all necessary corporate action to approve the issuance of the Common
Stock and related matters, (vi) the terms of the issuance of the Common Stock
have been duly established as contemplated by the Board Resolutions in
conformity with the Company's Articles of Incorporation and By-laws so as not to
violate any applicable law or the Articles of Incorporation or By-laws of the
Company or results in a default under or breach of any agreement or instrument
binding upon the Company and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company,
and (vii) the Common Stock shall have been (A) authorized, issued and sold in
accordance with the related Equity Underwriting Agreement or any other
applicable duly authorized, executed and delivered purchase agreement and the
Company shall have received consideration therefor, provided that the amount of
such consideration shall not be less than the par value thereof, or (B) issued
upon conversion or exchange of Debt Securities or Preferred Stock which, by
their respective terms, are convertible into or exchangeable for shares of
Common Stock or upon exercise of Common Stock Warrants, and the Company shall
have received any additional consideration which is payable upon such conversion
or exchange, the Common Stock shall be validly issued, fully paid and
nonassessable.
5. When (i) the Registration Statement has become effective under the
Act, (ii) the Blue Sky or securities laws of certain states shall have been
complied with, (iii) if the Warrants are to be sold pursuant to a firm
commitment underwritten offering, the Underwriting Agreement with respect to
such Warrants has been duly authorized, executed and delivered by the Company
and the other parties thereto, (iv) the terms of the Warrants and of their
issuance and sale have been duly established so as not to violate any applicable
law, the Articles of Incorporation or By-laws of the Company or result in a
default under or breach of any agreement or instrument binding upon the Company
and so as to comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company, and (v) the Warrants
have been duly authorized, executed, delivered and countersigned, and duly
issued and sold in a form filed as an exhibit in an amendment to the
Registration Statement and in the manner contemplated by the related
Underwriting Agreement or any other duly authorized executed and delivered
purchase agreement and the Company shall have received consideration therefor,
any such Warrants will constitute valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to or affecting creditors' rights generally and (b)
general principles of equity (regardless of whether enforcement is considered in
a proceeding of law or in equity).
To the extent that the obligations of the Company under a Deposit Agreement
relating to the Depository Shares or under an Indenture may be dependent upon
such matters, we have assumed for purposes of this opinion (i) that the
applicable depository or trustee, as the case may be, is duly
<PAGE>
Mail-Well, Inc.
September 24, 1997
Page 6
organized, validly existing and in good standing under the laws of its
jurisdiction of organization and is duly qualified to engage in the activities
contemplated by the applicable Deposit Agreement or Indenture, as the case may
be, (ii) that such Deposit Agreement or Indenture, as the case may be, has been
duly authorized, executed and delivered by and constitutes the legal, valid and
binding obligation of such depository or trustee, as the case may be,
enforceable in accordance with its respective terms, (iii) that such depository
or trustee, as the case may be, is in compliance, generally and with respect to
acting as a depository or trustee, respectively, under the applicable Deposit
Agreement or Indenture, with all applicable laws and regulations, and (iv) that
such depository or trustee has the requisite organizational and legal power and
authority to perform its obligations under the applicable Deposit Agreement or
Indenture, as the case may be.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement. We also consent to the reference to our
firm under the caption "Legal Matters" in the Registration Statement. In giving
this consent, we do not thereby admit that we are included in the category of
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission.
Sincerely yours,
ROTHGERBER, APPEL, POWERS & JOHNSON LLP
/s/ Rothgerber, Appel, Powers & Johnson LLP
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Mail-Well, Inc. on Form S-3 of our reports dated February 10, 1997, appearing in
the Annual Report on Form 10-K of Mail-Well, Inc. for the year ended December
31, 1996 and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche, LLP
DELOITTE & TOUCHE LLP
Denver, Colorado
September 23, 1997
