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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C
____________________
FORM 8-B
FOR REGISTRATION OF SECURITIES OF
CERTAIN SUCCESSOR ISSUERS
FILED PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
MAIL-WELL, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Colorado 84-1250533
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(State or Other Jurisdiction of (IRS Employer Identification No.)
Incorporation or Organization)
23 Inverness Way East, Suite 160 Englewood, Colorado 80112
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(Address of Principal Executive Offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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Common Stock, $0.01 par value per share The New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
N.A.
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(Title of Class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1 GENERAL INFORMATION
Mail-Well, Inc., a Colorado corporation (the "Registrant"), was
incorporated in Colorado on May 1, 1997, as Mail-Well of Colorado, Inc., a
wholly-owned subsidiary of Mail-Well, Inc., a Delaware corporation (the
"Predecessor Corporation"). Registrant's fiscal year ends December 31.
ITEM 2 TRANSACTION OF SUCCESSION
The Predecessor Corporation previously had its common stock registered
pursuant to Section 12(b) of the Securities Exchange Act of 1934.
The Registrant became successor to the Predecessor Corporation upon
the merger of the Predecessor Corporation with and into the Registrant effective
May 30, 1997 (the "Merger"). The purpose of the Merger was to reincorporate in
Colorado. The Merger was effected by the Registrant by means of the Colorado
"short-form" merger statute and was approved by the Board of Directors pursuant
to the Colorado Business Corporation Act. The Merger was effected by the
Predecessor Corporation pursuant to shareholder approval which was received at
the Predecessor Corporation's regular annual meeting held on April 7, 1997.
Under the terms of the Merger, each share of the Predecessor Corporation was
exchanged for an equal number of shares of the Registrant and all existing
options to acquire the shares of the Predecessor Corporation were converted into
options to acquire a like number of shares of the Registrant. In addition, in
connection with the Merger the Board of Directors of the Predecessor Corporation
became the Board of Directors of the Registrant and each executive officer and
employee of the Predecessor Corporation became an executive officer or employee
of the Registrant. In addition, as described below in Item 3, the Registrant
has been authorized to issue 15,000,000 additional shares than the Predecessor
Corporation.
ITEM 3 SECURITIES TO BE REGISTERED
There are currently 30,000,000 shares of the Registrant's common
stock, $0.01 par value (the "Common Stock"), authorized with approximately
12,644,357 shares issued and outstanding and 428,468 shares held as treasury
stock. Pursuant to a 3-for-2 stock split declared by the Board of Directors,
there will be, effective June 2, 1997, approximately 18,966, 535 shares
outstanding, and 642,702 shares held in treasury.
ITEM 4 DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The Registrant'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.
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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.
ITEM 5 FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements. The financial statements of the Registrant
are substantially similar to those of the Predecessor Corporation which were
filed with the Predecessor Corporation's annual report on Form 10-K with the
Commission.
(b) Exhibits. The following exhibits are attached hereto or
incorporated by reference herein:
(1) Agreement and Plan of Merger by and between the Registrant
and the Predecessor Corporation dated as of May 7, 1997.*
(2) The definitive Proxy Statement mailed to shareholders of
the Predecessor Corporation on or about April 4, 1997 in connection with the
regular annual meeting held on May 7, 1997, at which the Merger was approved;
previously filed with the Commission on such date and incorporated herein by
this reference.
(3) The following other exhibits required in connection with
this Statement and Form 10, numbered according to Item 601(b) of Regulation S-K:
Exhibit
Number Description of Exhibit
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3(i)(a)* Articles of Incorporation of the Registrant.
3(i)(b)* Form of Articles of Merger dated May 21, 1997 between
Registrant and the Predecessor Corporation.
3(ii) Bylaws of the Registrant - incorporated by reference
from Exhibit 3.4 of the Predecessor Corporation's
Registration Statement on Form S-1 dated September 21,
1995.
4.1* Form of temporary Certificate representing the Common
Stock, par value $0.01 per share, of the Registrant.
4.2 Indenture dated February 24, 1994 by and between the
Predecessor Corporation and Shawmut Bank, National
Association, as Trustee, with respect to the
$39,500,000 in aggregate principal amount of Original
Senior Deferred Coupon Notes and Exchange Senior
Deferred Coupon Notes due 2006, including the form of
Deferred Coupon Note -incorporated by reference from
Exhibit 4.2 of the Predecessor Corporation's
Registration Statement on Form S-1 dated March 25,
1994.
4.3 Indenture dated as of February 24, 1994 by and between
M-W Corp. and Shawmut Bank, National Association, as
Trustee, with respect to the 10-1/2% Original Senior
Subordinated Notes and the 10-1/2% Exchange Senior
Subordinated Notes due 2004, including the form of
Note and the guarantees of the Predecessor
Corporation, Wisco and Pavey - incorporated by
reference from
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Exhibit 4.3 of the Predecessor Corporation's
Registration Statement on Form S-1 dated March 25,
1994.
4.3.1 Supplemental Indenture dated July 31, 1995 to the
Indenture identified in Exhibit 4.3 - incorporated by
reference from Exhibit 4.4.1 of the Predecessor
Corporation's Registration Statement on Form S-1 dated
September 21, 1995.
4.3.2 Form of Second Supplemental Indenture to the Indenture
identified in Exhibit 4.3 -incorporated by reference
from Exhibit 4.4.2 of the Predecessor Corporation's
Registration Statement on Form S-1 dated September 21,
1995.
10.1 Tax Sharing Agreement dated February 24, 1994 among
the Predecessor Corporation, M-W Corp., Wisco and
Pavey - incorporated by reference from Exhibit 10.15
of the Predecessor Corporation's Registration
Statement on Form S-1 dated March 25, 1994.
10.2 General Indemnity Agreement between M-W Corp. and
Amwest Surety Insurance Company together with form of
Letter of Credit- incorporated by reference from
Exhibit 10.16 of the Predecessor Corporation's
Registration Statement on Form S-1 dated March 25,
1994.
10.3 Form of Indemnity Agreement between the Predecessor
Corporation and each of its officers and directors -
incorporated by reference from Exhibit 10.17 of the
Predecessor Corporation's Registration Statement on
Form S-1 dated March 25, 1994.
10.4 Form of Indemnity Agreement between M-W Corp. and each
of its officers and directors - incorporated by
reference from Exhibit 10.18 of the Predecessor
Corporation's Registration Statement on Form S-1 dated
March 25, 1994.
10.5 Form of M-W Corp. Employee Stock Ownership Plan
effective as of February 23, 1994 and related Employee
Stock Ownership Plan Trust Agreement - incorporated by
reference from Exhibit 10.19 of the Predecessor
Corporation's Registration Statement on Form S-1 dated
March 25, 1994.
10.6 Form of M-W Corp. 401(k) Savings Retirement Plan -
incorporated by reference from Exhibit 10.20 of the
Predecessor Corporation's Registration Statement on
Form S-1 dated March 25, 1994.
10.7 The Predecessor Corporation's 1994 Stock Option Plan,
as amended - incorporated by reference from Exhibit
10.15 of the Predecessor Corporation's Registration
Statement on Form S-1 dated September 21, 1995.
10.8 Form of the Predecessor Corporation's Incentive Stock
Option Agreement - incorporated by reference from
Exhibit 10.22 of the Predecessor Corporation's
Registration Statement on Form S-1 dated March 25,
1994.
10.9 Form of the Predecessor Corporation Nonqualified Stock
Option Agreement - incorporated by from Exhibit 10.23
of the Predecessor Corporation's Registration
Statement on Form S-1 dated March 25, 1994.
10.10 Asset Purchase Agreement dated October 31, 1994 by and
between American and M-W Corp., as amended -
incorporated by reference from Exhibit 10.30 of the
Predecessor Corporation's Registration Statement on
Form S-1 dated May 9, 1995.
10.11 Transition Services Agreement dated December 19, 1994
by and among CC Industries or American and M-W Corp. -
incorporated by reference from Exhibit 10.31 of the
Predecessor Corporation's Registration Statement on
Form S-1 dated May 9, 1995.
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10.12 Guaranty dated December 19, 1994, executed by CC
Industries in favor of M-W Corp. - incorporated by
reference from Exhibit 10.33 of the Predecessor
Corporation's Registration Statement on Form S-1 dated
May 9, 1995.
10.13 Commitment Letter dated December 19, 1994, from Henry
Crown & Predecessor Corporation to M-W Corp. -
incorporated by reference from Exhibit 10.34 of the
Predecessor Corporation's Registration Statement on
Form S-1 dated May 9, 1995.
10.14 Share Purchase Agreement dated July 20, 1995, by and
among the shareholders of Supremex, 3159051 Canada
Inc. and Schroder Investment Canada Limited and
Schroder Venture Managers (North America) Inc. -
incorporated by reference from Exhibit 10.25 of the
Predecessor Corporation's Registration Statement on
Form S-1 dated September 21, 1995.
10.15 Indemnification Escrow Agent dated July 31, 1995, by
and among 3159051 Canada Inc., Royal Trust Predecessor
Corporation of Canada and Schroder Investment Canada
Limited and Schroder Venture Mangers (North America)
Inc. - incorporated by reference from Exhibit 10.26 of
the Predecessor Corporation's Registration Statement
on Form S-1 dated September 21, 1995.
10.16 Guaranty dated July 31, 1995, executed by M-W Corp. in
favor of Schroder Investment Canada Limited and
Schroder Venture Mangers (North America) Inc., as
Agents - incorporated by reference from Exhibit 10.27
of the Predecessor Corporation's Registration
Statement on Form S-1 dated September 21, 1995.
10.17 Securities Purchase Agreement dated as of August 2,
1995, as amended, by and among GAC Acquisition
Predecessor Corporation, Inc., GAC and the
securityholders of GAC and McCown De Leeuw & Co., as
Agents - incorporated by reference from Exhibit 10.28
of the Predecessor Corporation's Registration
Statement on Form S-1 dated September 21, 1995.
10.18 Escrow Agreement dated as of August 2, 1995, by and
among GAC Acquisition Predecessor Corporation, Inc.,
GAC and securityholders of GAC and McCown De Leeuw &
Co., as Agents -incorporated by reference from Exhibit
10.29 of the Predecessor Corporation's Registration
Statement on Form S-1 dated September 21, 1995.
10.19 Guaranty dated as of August 2, 1995, by M-W Corp. in
favor of McCown De Leeuw & Co., as Agents -
incorporated by reference from Exhibit 10.30 of the
Predecessor Corporation's Registration Statement on
Form S-1 dated September 21, 1995.
10.20 Second Amendment to Second Amended and Restated Credit
Agreement - incorporated by reference from Exhibit
10.31 of the Predecessor Corporation's Form 10-Q dated
March 31, 1996.
10.21 Asset Purchase Agreement dated April 26, 1996 by and
between Quality Park Products, Inc. and Mail-Well I
Corporation -incorporated by reference from Exhibit 1
of the Predecessor Corporation's Form 8-K dated May 2,
1996.
10.22 Acquisition Agreement and Plan of Share Exchange by
and among Graphic Arts Center, Inc. and Shepard
Poorman Communications Corporation dated November 6,
1996 - incorporated by reference from exhibit 10.33 of
the Predecessor Corporation's Form 10-K for the year
ended December 31, 1996.
10.23 Amendment No. 1 to Acquisition Agreement and Plan of
Share Exchange by and among Graphic Arts Center, Inc.
and Shepard Poorman Communications Corporation dated
November 6, 1996-incorporated by reference from
exhibit
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10.34 of the Predecessor Corporation's Form
10-K for the year ended December 31, 1996.
10.24 Asset Purchase Agreement dated as of October 15, 1996
by and between Supremex, Inc. and PNG Products, Inc.
Pac National Group and PNG Envelope Internationale,
Inc- incorporated by reference from exhibit 10.35 of
the Predecessor Corporation's Form 10-K for the year
ended December 31, 1996.
10.25 Master Lease Agreement dated as of August 1, 1996
between General Electric Capital Corporation and Mail-
Well, Inc., Mail-Well I Corporation, Graphic Arts
Center, Inc., Mail-Well West, Pavey Envelope and Tag
Corp., Wisco II, L.L.C and Wisco Envelope Corp-
incorporated by reference from exhibit 10.36 of the
Predecessor Corporation's Form 10-K for the year ended
December 31, 1996.
10.26 Third Amended and Restated Credit Agreement dated as
of November 15, 1996, executed by Mail-Well I
Corporation, as Borrower, and Wisco Envelope Corp.,
Pavey Envelope and Tag Corp., Mail-Well West, Inc.,
Wisco II, L.L.C., Mail-Well Canada Holdings, Inc.,
Graphic Arts Center, Inc. and Wisco III, L.L.C., as
Guarantors, in favor of Banque Paribas, as Agent, and
the Lenders named herein -incorporated by reference
from exhibit 10.37 of the Predecessor Corporation's
Form 10-K for the year ended December 31, 1996.
10.27 Amended and Restated Credit Agreement dated as of
November 15, 1996, executed by Supremex, Inc., as
borrower, and Mail-Well I Corporation and Innova
Envelope, Inc., as Guarantors, in favor of Banque
Paribas, as Agent, and the Lenders named herein -
incorporated by reference from exhibit 10.38 of the
Predecessor Corporation's Form 10-K for the year ended
December 31, 1996.
10.28 Purchase and Contribution Agreement dated as of
November 15, 1996 between Mail-Well I Corporation,
Wisco Envelope Corp., Pavey Envelope and Tag Corp.,
Mail-Well West, Inc., Graphic Arts Center, Inc., Wisco
III, L.L.C., Supremex, Inc., Innova Envelope, Inc., as
Sellers, and Mail-Well Trade Receivables Corp., as
Purchaser - incorporated by reference from exhibit
10.39 of the Predecessor Corporation's Form 10-K for
the year ended December 31, 1996.
10.29 Mail-Well Receivables Master Trust Pooling and
Servicing Agreement dated as of November 15, 199 by
and between Mail-Well Trade Receivables Corporation,
Seller, Mail-Well I Corporation, Servicer, and Norwest
Bank Colorado, National Association, Trustee -
incorporated by reference from exhibit 10.40 of the
Predecessor Corporation's Form 10-K for the year ended
December 31, 1996.
10.30 Series 1996-1 Supplement dated as of November 15, 1996
to Pooling and Servicing Agreement, dated as of
November 15, 1996, by and between Mail-Well Trade
Receivables Corporation, Seller, Mail-Well I
Corporation, Servicer, and Norwest Bank Colorado,
National Association, as Trustee on behalf of the
Series 1996-1 Certificateholders - incorporated by
reference from exhibit 10.41 of the Predecessor
Corporation's Form 10-K for the year ended December
31, 1996.
10.31 Series 1996-1 Certificate Purchase Agreement dated as
of November 15, 1996 among Mail-Well Trade Receivables
Corporation, as Seller, Corporate Receivables
Corporation, as Purchaser, Norwest Bank Colorado,
National Association, as Trustee, and Mail-Well I
Corporation, as Servicer- incorporated by reference
from exhibit 10.42 of the Predecessor Corporation's
Form 10-K for the year ended December 31, 1996.
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10.32 Intercreditor Agreement dated as of November 15, 1996
by and among Citicorp North America, Inc., as
Securitization Predecessor Corporation Agent, Banque
Paribas, New York Branch, as Liquidity Agent, Banque
Paribas, as Credit Lenders' Agent, Norwest Bank
Colorado, National Association, as Trustee, Mail-Well
Trade Receivables Corporation, as Servicer, originator
and Mail-Well Credit Borrower, Supremex, Inc., as the
Supremex Credit Borrower and the other parties
hereto -incorporated by reference from exhibit 10.43
of the Predecessor Corporation's Form 10-K for the
year ended December 31, 1996 .
10.33 Series 1996-1 Asset Purchase Agreement among Corporate
Receivables Corporation, the Liquidity Providers
Parties hereto, Citicorp North America, Inc., as
Securitization Predecessor Corporation Agent, Banque
Paribas, New York Branch, as Liquidity Agent, and
Norwest Bank Colorado, National Association, as
trustee, dated as of November 15, 1996 - incorporated
by reference from exhibit 10.44 of the Predecessor
Corporation's Form 10-K for the year ended December
31, 1996.
10.34 Participation Agreement dated as of November 15, 1996
among Mail-Well I Corporation, as Lessee and
Guarantor, Certain Subsidiaries of Mail-Well I
Corporation, as Subsidiary Guarantors, Paribas
Properties, Inc., as Lessor, Various Financial
Institutions Identified herein, as Equity Lenders,
Various Financial Institutions Identified herein, as
Financing Lenders and Banque Paribas, as Agent for the
Financing Lenders and Equity Lenders - incorporated by
reference from exhibit 10.45 of the Predecessor
Corporation's Form 10-K for the year ended December
31, 1996.
10.35 Loan Agreement dated as of November 15, 1996 among
Paribas Properties, Inc., as Lessor, Various Financial
Institutions Identified herein, as Financing Lenders,
Various Financial Institutions Identified herein, as
Equity Lenders, and Banque Paribas, as Agent for the
Lenders - incorporated by reference from exhibit 10.46
of the Predecessor Corporation's Form 10-K for the
year ended December 31, 1996.
10.36 Master Equipment Lease and Security Agreement dated
November 15, 1996 between Mail-Well I Corporation, as
the Lessee or Debtor and Paribas Properties, Inc., as
the Lessor or Secured Party -incorporated by reference
from exhibit 10.47 of the Predecessor Corporation's
Form 10-K for the year ended December 31, 1996.
10.37 Security Agreement (Second and Subordinated Security
Interest) made and entered into by Paribas Properties,
Inc. and Mail-Well I Corporation, as Debtors, and
Banque Paribas, as Agent for Secured Party date
November 15, 1996 - incorporated by reference from
exhibit 10.48 of the Predecessor Corporation's Form
10-K for the year ended December 31, 1996.
10.38 Appendix A to Participation Agreement, Master Lease,
and Loan Agreement - incorporated by reference from
exhibit 10.49 of the Predecessor Corporation's Form
10-K for the year ended December 31, 1996.
10.39 Lease Facility Guaranty dated as of November 15, 1996
made by Mail-Well I Corporation, Mail-Well, Inc. and
certain of their Subsidiaries, as Guarantors, in favor
of Various Financial Institutions, as the Lenders, and
Banque Paribas, as Agent for the Lenders -
incorporated by reference from exhibit 10.50 of the
Predecessor Corporation's Form 10-K for the year ended
December 31, 1996.
10.40 Assignment of Lease and rent dated as of November 15,
1996 from Paribas Properties, Inc., as Assignor to
Banque Paribas, as Agent for the Lenders, as
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Assignee -incorporated by reference from exhibit 10.51
of the Predecessor Corporation's Form 10-K for the
year ended December 31, 1996.
10.41 Security Agreement (First and Prior Security Interest)
made and entered into by Paribas Properties, Inc. and
Mail-Well I Corporation, as Debtors, and Banque
Paribas, as Agent for Secured Party dated November 15,
1996 - incorporated by reference from exhibit 10.52 of
the Predecessor Corporation's Form 10-K for the year
ended December 31, 1996.
10.42 Bill of Sale and Assignment of Equipment made and
entered into on this 15th day of November, 1996 by
Mail-Well I Corporation to and for the benefit of
Paribas Properties, Inc. -incorporated by reference
from exhibit 10.53 of the Predecessor Corporation's
Form 10-K for the year ended December 31, 1996.
10.43 The Predecessor Corporation's 1997 Non-Qualified Stock
Option Plan, incorporated by reference from the
Predecessor Corporation's Form 10-Q for the period
ended March 31, 1997.
10.44 Form of the Predecessor Corporation's 1997 Non-
Qualified Stock Option Agreement, incorporated by
reference from the Predecessor Corporation's Form 10-Q
for the period ended March 31, 1997.
_____________
* Filed herewith.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
MAIL-WELL, INC.
(Registrant)
By /s/ PAUL V. REILLY
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Paul V. Reilly, Senior Vice President,
and Chief Financial Officer
May 21, 1997
8
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EXHIBIT INDEX
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<CAPTION>
Sequentially
Exhibit Numbered
Number Description of Exhibit Pages
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<C> <S> <C>
Item 5(b)(1) Agreement and Plan of Merger by and between the Registrant and the
Predecessor Corporation dated as of May 7, 1997.
3(i)(a) Articles of Incorporation of the Registrant.
3(i)(b) Form of Articles of Merger dated May 21, 1997 between Registrant and
the Predecessor Corporation.
3(ii) Bylaws of the Registrant - incorporated by reference from Exhibit 3.4 of
the Predecessor Corporation's Registration Statement on Form S-1 dated
September 21, 1995.
4.1 Form of temporary Certificate representing the Common Stock, par value
$0.01 per share, of the Registrant.
4.2 Indenture dated February 24, 1994 by and between the Predecessor
Corporation and Shawmut Bank, National Association, as Trustee, with
respect to the $39,500,000 in aggregate principal amount of Original
Senior Deferred Coupon Notes and Exchange Senior Deferred Coupon Notes
due 2006, including the form of Deferred Coupon Note - incorporated by
reference from Exhibit 4.2 of the Predecessor Corporation's
Registration Statement on Form S-1 dated March 25, 1994.
4.3 Indenture dated as of February 24, 1994 by and between M-W Corp. and
Shawmut Bank, National Association, as Trustee, with respect to the
10-1/2% Original Senior Subordinated Notes and the 10-1/2% Exchange
Senior Subordinated Notes due 2004, including the form of Note and the
guarantees of the Predecessor Corporation, Wisco and Pavey -
incorporated by reference from Exhibit 4.3 of the Predecessor
Corporation's Registration Statement on Form S-1 dated March 25, 1994.
4.3.1 Supplemental Indenture dated July 31, 1995 to the Indenture identified in
Exhibit 4.3 - incorporated by reference from Exhibit 4.4.1 of the
Predecessor Corporation's Registration Statement on Form S-1 dated
September 21, 1995.
4.3.2 Form of Second Supplemental Indenture to the Indenture identified in
Exhibit 4.3 -incorporated by reference from Exhibit 4.4.2 of the
Predecessor Corporation's Registration Statement on Form S-1 dated
September 21, 1995.
10.1 Tax Sharing Agreement dated February 24, 1994 among the Predecessor
Corporation, M-W Corp., Wisco and Pavey - incorporated by reference
from Exhibit 10.15 of the Predecessor Corporation's Registration
Statement on Form S-1 dated March 25, 1994.
10.2 General Indemnity Agreement between M-W Corp. and Amwest Surety Insurance
Company together with form of Letter of Credit - incorporated by
reference from Exhibit 10.16 of the Predecessor Corporation's
Registration Statement on Form S-1 dated March 25, 1994.
</TABLE>
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<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description of Exhibit Pages
- ------ ---------------------- ------------
<C> <S> <C>
10.3 Form of Indemnity Agreement between the Predecessor Corporation and each
of its officers and directors - incorporated by reference from Exhibit
10.17 of the Predecessor Corporation's Registration Statement on Form
S-1 dated March 25, 1994.
10.4 Form of Indemnity Agreement between M-W Corp. and each of its officers and
directors - incorporated by reference from Exhibit 10.18 of the
Predecessor Corporation's Registration Statement on Form S-1 dated
March 25, 1994.
10.5 Form of M-W Corp. Employee Stock Ownership Plan effective as of February
23, 1994 and related Employee Stock Ownership Plan Trust Agreement -
incorporated by reference from Exhibit 10.19 of the Predecessor
Corporation's Registration Statement on Form S-1 dated March 25, 1994.
10.6 Form of M-W Corp. 401(k) Savings Retirement Plan - incorporated by
reference from Exhibit 10.20 of the Predecessor Corporation's
Registration Statement on Form S-1 dated March 25, 1994.
10.7 The Predecessor Corporation's 1994 Stock Option Plan, as amended -
incorporated by reference from Exhibit 10.15 of the Predecessor
Corporation's Registration Statement on Form S-1 dated September 21,
1995.
10.8 Form of the Predecessor Corporation's Incentive Stock Option Agreement -
incorporated by reference from Exhibit 10.22 of the Predecessor
Corporation's Registration Statement on Form S-1 dated March 25, 1994.
10.9 Form of the Predecessor Corporation Nonqualified Stock Option Agreement -
incorporated by from Exhibit 10.23 of the Predecessor Corporation's
Registration Statement on Form S-1 dated March 25, 1994.
10.10 Asset Purchase Agreement dated October 31, 1994 by and between American
and M-W Corp., as amended - incorporated by reference from Exhibit
10.30 of the Predecessor Corporation's Registration Statement on Form
S-1 dated May 9, 1995.
10.11 Transition Services Agreement dated December 19, 1994 by and among CC
Industries or American and M-W Corp. - incorporated by reference from
Exhibit 10.31 of the Predecessor Corporation's Registration Statement
on Form S-1 dated May 9, 1995.
10.12 Guaranty dated December 19, 1994, executed by CC Industries in favor of
M-W Corp. - incorporated by reference from Exhibit 10.33 of the
Predecessor Corporation's Registration Statement on Form S-1 dated May
9, 1995.
10.13 Commitment Letter dated December 19, 1994, from Henry Crown & Predecessor
Corporation to M-W Corp. - incorporated by reference from Exhibit
10.34 of the Predecessor Corporation's Registration Statement on Form
S-1 dated May 9, 1995.
</TABLE>
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<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description of Exhibit Pages
- ------ ---------------------- ------------
<C> <S> <C>
10.14 Share Purchase Agreement dated July 20, 1995, by and among the
shareholders of Supremex, 3159051 Canada Inc. and Schroder Investment
Canada Limited and Schroder Venture Managers (North America) Inc. -
incorporated by reference from Exhibit 10.25 of the Predecessor
Corporation's Registration Statement on Form S-1 dated September 21,
1995.
10.15 Indemnification Escrow Agent dated July 31, 1995, by and among 3159051
Canada Inc., Royal Trust Predecessor Corporation of Canada and
Schroder Investment Canada Limited and Schroder Venture Mangers (North
America) Inc. - incorporated by reference from Exhibit 10.26 of the
Predecessor Corporation's Registration Statement on Form S-1 dated
September 21, 1995.
10.16 Guaranty dated July 31, 1995, executed by M-W Corp. in favor of Schroder
Investment Canada Limited and Schroder Venture Mangers (North America)
Inc., as Agents - incorporated by reference from Exhibit 10.27 of the
Predecessor Corporation's Registration Statement on Form S-1 dated
September 21, 1995.
10.17 Securities Purchase Agreement dated as of August 2, 1995, as amended, by
and among GAC Acquisition Predecessor Corporation, Inc., GAC and the
securityholders of GAC and McCown De Leeuw & Co., as Agents -
incorporated by reference from Exhibit 10.28 of the Predecessor
Corporation's Registration Statement on Form S-1 dated September 21,
1995.
10.18 Escrow Agreement dated as of August 2, 1995, by and among GAC Acquisition
Predecessor Corporation, Inc., GAC and securityholders of GAC and
McCown De Leeuw & Co., as Agents - incorporated by reference from
Exhibit 10.29 of the Predecessor Corporation's Registration Statement
on Form S-1 dated September 21, 1995.
10.19 Guaranty dated as of August 2, 1995, by M-W Corp. in favor of McCown De
Leeuw & Co., as Agents - incorporated by reference from Exhibit 10.30
of the Predecessor Corporation's Registration Statement on Form S-1
dated September 21, 1995.
10.20 Second Amendment to Second Amended and Restated Credit Agreement -
incorporated by reference from Exhibit 10.31 of the Predecessor
Corporation's Form 10-Q dated March 31, 1996.
10.21 Asset Purchase Agreement dated April 26, 1996 by and between Quality Park
Products, Inc. and Mail-Well I Corporation - incorporated by reference
from Exhibit 1 of the Predecessor Corporation's Form 8-K dated May 2,
1996.
10.22 Acquisition Agreement and Plan of Share Exchange by and among Graphic
Arts Center, Inc. and Shepard Poorman Communications Corporation dated
November 6, 1996 - incorporated by reference from exhibit 10.33 of the
Predecessor Corporation's Form 10-K for the year ended December 31,
1996.
10.23 Amendment No. 1 to Acquisition Agreement and Plan of Share Exchange by
and among Graphic Arts Center, Inc. and Shepard Poorman Communications
Corporation dated November 6, 1996- incorporated by reference from
exhibit 10.34 of the Predecessor Corporation's Form 10-K for the year
ended December 31, 1996.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description of Exhibit Pages
- ------ ---------------------- ------------
<C> <S> <C>
10.24 Asset Purchase Agreement dated as of October 15, 1996 by and between
Supremex, Inc. and PNG Products, Inc. Pac National Group and PNG
Envelope Internationale, Inc- incorporated by reference from exhibit
10.35 of the Predecessor Corporation's Form 10-K for the year ended
December 31, 1996.
10.25 Master Lease Agreement dated as of August 1, 1996 between General
Electric Capital Corporation and Mail-Well, Inc., Mail-Well I
Corporation, Graphic Arts Center, Inc., Mail-Well West, Pavey Envelope
and Tag Corp., Wisco II, L.L.C and Wisco Envelope Corp- incorporated
by reference from exhibit 10.36 of the Predecessor Corporation's Form
10-K for the year ended December 31, 1996.
10.26 Third Amended and Restated Credit Agreement dated as of November 15,
1996, executed by Mail-Well I Corporation, as Borrower, and Wisco
Envelope Corp., Pavey Envelope and Tag Corp., Mail-Well West, Inc.,
Wisco II, L.L.C., Mail-Well Canada Holdings, Inc., Graphic Arts
Center, Inc. and Wisco III, L.L.C., as Guarantors, in favor of Banque
Paribas, as Agent, and the Lenders named herein - incorporated by
reference from exhibit 10.37 of the Predecessor Corporation's Form 10-
K for the year ended December 31, 1996.
10.27 Amended and Restated Credit Agreement dated as of November 15, 1996,
executed by Supremex, Inc., as borrower, and Mail-Well I Corporation
and Innova Envelope, Inc., as Guarantors, in favor of Banque Paribas,
as Agent, and the Lenders named herein - incorporated by reference
from exhibit 10.38 of the Predecessor Corporation's Form 10-K for the
year ended December 31, 1996.
10.28 Purchase and Contribution Agreement dated as of November 15, 1996
between Mail-Well I Corporation, Wisco Envelope Corp., Pavey Envelope
and Tag Corp., Mail-Well West, Inc., Graphic Arts Center, Inc., Wisco
III, L.L.C., Supremex, Inc., Innova Envelope, Inc., as Sellers, and
Mail-Well Trade Receivables Corp., as Purchaser - incorporated by
reference from exhibit 10.39 of the Predecessor Corporation's Form 10-
K for the year ended December 31, 1996.
10.29 Mail-Well Receivables Master Trust Pooling and Servicing Agreement dated
as of November 15, 199 by and between Mail-Well Trade Receivables
Corporation, Seller, Mail-Well I Corporation, Servicer, and Norwest
Bank Colorado, National Association, Trustee - incorporated by
reference from exhibit 10.40 of the Predecessor Corporation's Form 10-
K for the year ended December 31, 1996.
10.30 Series 1996-1 Supplement dated as of November 15, 1996 to Pooling and
Servicing Agreement, dated as of November 15, 1996, by and between
Mail-Well Trade Receivables Corporation, Seller, Mail-Well I
Corporation, Servicer, and Norwest Bank Colorado, National
Association, as Trustee on behalf of the Series 1996-1
Certificateholders - incorporated by reference from exhibit 10.41 of
the Predecessor Corporation's Form 10-K for the year ended December
31, 1996.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
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Exhibit Numbered
Number Description of Exhibit Pages
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<C> <S> <C>
10.31 Series 1996-1 Certificate Purchase Agreement dated as of November 15,
1996 among Mail-Well Trade Receivables Corporation, as Seller,
Corporate Receivables Corporation, as Purchaser, Norwest Bank
Colorado, National Association, as Trustee, and Mail-Well I
Corporation, as Servicer- incorporated by reference from exhibit 10.42
of the Predecessor Corporation's Form 10-K for the year ended December
31, 1996.
10.32 Intercreditor Agreement dated as of November 15, 1996 by and among
Citicorp North America, Inc., as Securitization Predecessor
Corporation Agent, Banque Paribas, New York Branch, as Liquidity
Agent, Banque Paribas, as Credit Lenders' Agent, Norwest Bank
Colorado, National Association, as Trustee, Mail-Well Trade
Receivables Corporation, as Servicer, originator and Mail-Well Credit
Borrower, Supremex, Inc., as the Supremex Credit Borrower and the
other parties hereto - incorporated by reference from exhibit 10.43 of
the Predecessor Corporation's Form 10-K for the year ended December
31, 1996.
10.33 Series 1996-1 Asset Purchase Agreement among Corporate Receivables
Corporation, the Liquidity Providers Parties hereto, Citicorp North
America, Inc., as Securitization Predecessor Corporation Agent, Banque
Paribas, New York Branch, as Liquidity Agent, and Norwest Bank
Colorado, National Association, as trustee, dated as of November 15,
1996 - incorporated by reference from exhibit 10.44 of the Predecessor
Corporation's Form 10-K for the year ended December 31, 1996.
10.34 Participation Agreement dated as of November 15, 1996 among Mail-Well I
Corporation, as Lessee and Guarantor, Certain Subsidiaries of Mail-
Well I Corporation, as Subsidiary Guarantors, Paribas Properties,
Inc., as Lessor, Various Financial Institutions Identified herein, as
Equity Lenders, Various Financial Institutions Identified herein, as
Financing Lenders and Banque Paribas, as Agent for the Financing
Lenders and Equity Lenders - incorporated by reference from exhibit
10.45 of the Predecessor Corporation's Form 10-K for the year ended
December 31, 1996.
10.35 Loan Agreement dated as of November 15, 1996 among Paribas Properties,
Inc., as Lessor, Various Financial Institutions Identified herein, as
Financing Lenders, Various Financial Institutions Identified herein,
as Equity Lenders, and Banque Paribas, as Agent for the Lenders -
incorporated by reference from exhibit 10.46 of the Predecessor
Corporation's Form 10-K for the year ended December 31, 1996.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description of Exhibit Pages
- ------ ---------------------- ------------
<C> <S> <C>
10.36 Master Equipment Lease and Security Agreement dated November 15, 1996
between Mail-Well I Corporation, as the Lessee or Debtor and Paribas
Properties, Inc., as the Lessor or Secured Party - incorporated by
reference from exhibit 10.47 of the Predecessor Corporation's Form 10-
K for the year ended December 31, 1996.
10.37 Security Agreement (Second and Subordinated Security Interest) made and
entered into by Paribas Properties, Inc. and Mail-Well I Corporation,
as Debtors, and Banque Paribas, as Agent for Secured Party date
November 15, 1996 - incorporated by reference from exhibit 10.48 of
the Predecessor Corporation's Form 10-K for the year ended December
31, 1996.
10.38 Appendix A to Participation Agreement, Master Lease, and Loan Agreement
- incorporated by reference from exhibit 10.49 of the Predecessor
Corporation's Form 10-K for the year ended December 31, 1996.
10.39 Lease Facility Guaranty dated as of November 15, 1996 made by Mail-Well
I Corporation, Mail-Well, Inc. and certain of their Subsidiaries, as
Guarantors, in favor of Various Financial Institutions, as the
Lenders, and Banque Paribas, as Agent for the Lenders - incorporated
by reference from exhibit 10.50 of the Predecessor Corporation's Form
10-K for the year ended December 31, 1996.
10.40 Assignment of Lease and rent dated as of November 15, 1996 from Paribas
Properties, Inc., as Assignor to Banque Paribas, as Agent for the
Lenders, as Assignee - incorporated by reference from exhibit 10.51 of
the Predecessor Corporation's Form 10-K for the year ended December
31, 1996.
10.41 Security Agreement (First and Prior Security Interest) made and entered
into by Paribas Properties, Inc. and Mail-Well I Corporation, as
Debtors, and Banque Paribas, as Agent for Secured Party dated November
15, 1996 - incorporated by reference from exhibit 10.52 of the
Predecessor Corporation's Form 10-K for the year ended December 31,
1996.
10.42 Bill of Sale and Assignment of Equipment made and entered into on this
15th day of November, 1996 by Mail-Well I Corporation to and for the
benefit of Paribas Properties, Inc. - incorporated by reference from
exhibit 10.53 of the Predecessor Corporation's Form 10-K for the year
ended December 31, 1996.
10.43 The Predecessor Corporation's 1997 Non-Qualified Stock Option Plan,
incorporated by reference from the Predecessor Corporation's Form 10-Q
for the period ended March 31, 1997.
10.44 Form of the Predecessor Corporation's 1997 Non-Qualified Stock Option
Agreement, incorporated by reference from the Predecessor
Corporation's Form 10-Q for the period ended March 31, 1997.
</TABLE>
<PAGE>
EXHIBIT 5(b)(1)
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and entered
into as of May 7, 1997, by and between MAIL-WELL, INC., a Delaware corporation
("Mail-Well Delaware") and MAIL-WELL COLORADO, INC., a Colorado corporation
("Mail-Well Colorado").
WHEREAS, Mail-Well Colorado is a wholly-owned subsidiary of Mail-Well
Delaware; and
WHEREAS, the respective Boards of Directors of Mail-Well Colorado and Mail-
Well Delaware have determined it to be in the best interests of each to merge
Mail-Well Delaware with and into Mail-Well Colorado, for the purpose of
effecting a reincorporation of Mail-Well Delaware in Colorado; and
WHEREAS, the shareholders of Mail-Well Delaware have approved the plan of
merger (the "Merger") at the regular annual meeting thereof in accordance with
its Certificate of Incorporation and Bylaws and the Delaware General Corporation
Law.
NOW, THEREFORE, in consideration of these premises and the mutual covenants
contained herein, the parties agree as follows:
1. Plan of Merger. Effective at 5:01 p.m. EDT on May 30, 1997 (the
--------------
"Effective Time") Mail-Well Delaware will merge with and into Mail-Well
Colorado, and the separate corporate existence of Mail-Well Delaware shall
cease. Effective at such time, Mail-Well Colorado shall change its name to
"Mail-Well, Inc."
2. Effect of Merger. At the Effective Time, all of the common shares of
----------------
Mail-Well Delaware (the "Mail-Well Common") shall be converted automatically and
by operation of law into common shares of Mail-Well Colorado (the "New Shares"),
and all outstanding options to acquire Mail-Well Common shall be converted into
the right to acquire a like number of New Shares, all without any action on the
part of shareholders or optionees. The shares of Mail-Well Colorado currently
held by Mail-Well Delaware shall be canceled. Mail-Well Colorado shall succeed
to all of the rights, property and subsidiaries, and all of the obligations and
liabilities, of Mail-Well Delaware. The Bylaws of Mail-Well Delaware shall
become substantially the Bylaws of Mail-Well Colorado, with only such changes as
are necessary to reflect the change of state of incorporation.
3. Officers and Directors. After the Effective Time, all of the
----------------------
officers of Mail-Well Delaware shall become officers of Mail-Well Colorado, and
all of the directors of Mail-Well Delaware shall become directors of Mail-Well
<PAGE>
Colorado, until their successors have been elected and qualified. The officers
and directors of Mail-Well Colorado shall thenceforth hold no offices therewith,
except insofar as such officers and directors hold such offices with Mail-Well
Delaware.
4. Articles of Merger. The respective officers of Mail-Well Delaware
------------------
and Mail-Well Colorado shall execute Articles of Merger and cause them to be
filed with the respective Secretaries of State of each of Colorado and Delaware
in order to effect the Merger, and shall execute and deliver such other
documents, instruments or certificates as may be required to accomplish same.
5. Successors. This Agreement shall inure to the benefit of the parties
----------
hereto and their respective successors, heirs and assigns.
6. Entire Understanding. This Agreement constitutes the entire
--------------------
understanding of the parties hereto, and there are no oral or written
statements, representations or agreements that modify or amend and of the terms
hereof.
IN WITNESS WHEREOF, the parties hereto have duly caused this Agreement to
be executed as of the date first above written.
MAIL-WELL, INC.
a Delaware corporation
By: /s/ Gerald F. Mahoney
-----------------------------
Gerald F. Mahoney, President
MAIL-WELL COLORADO, INC.
a Colorado corporation
By: /s/ Gerald F. Mahoney
-----------------------------
Gerald F. Mahoney, President
2
<PAGE>
EXHIBIT 3(i)(a)
ARTICLES OF INCORPORATION
OF
MAIL-WELL COLORADO, INC.
ARTICLE 1
The name of the Corporation is Mail-Well Colorado, Inc.
ARTICLE 2
The principal business address and the Corporation's registered office in
the state of Colorado is 23 Inverness Way East, Suite 165, Englewood, CO 80112.
The name of its registered agent at such address is Roger Wertheimer.
ARTICLE 3
The nature of the business or purposes to be conducted or promoted by the
Corporation is to engage in any lawful business, act or activity for which
corporations may be organized under the Colorado Business Corporation Act.
ARTICLE 4
The total number of shares of stock which the Corporation shall have
authority to issue is thirty million twenty-five thousand (30,025,000) shares,
of which twenty-five thousand (25,000) shares are to be preferred stock, par
value $.01 per share ("Preferred Stock"), and thirty million (30,000,000) shares
are to be common stock, par value $.01 per share ("Common Stock").
(1) Subject to the rights of the holders of any series of Preferred Stock
as set forth in any resolution adopted by the Board of Directors pursuant to
Section (b) of this Article IV, the holders of the Common Stock shall
exclusively hold all of the voting rights in the Corporation, with each holder
entitled to one vote on all matters to be voted on by the shareholders for each
share of Common Stock held, and the holders of the Common Stock shall be
entitled to receive the net assets of the Corporation upon dissolution.
(2) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of Directors,
each of said series to be given a distinguishing designation. The Board of
Directors may determine, in whole or in part, the preferences, limitations and
relative rights, within the limits set forth in Section 7-106-101 of the
Colorado Business Corporation Act, of any series of Preferred Stock before the
issuance of any shares of that series, including:
<PAGE>
(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 Corporation
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 Corporation, and this 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 Corporation or in the event of any merger or consolidation of or sale of
assets by the Corporation;
(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 Corporation
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.
All shares of a series shall have preferences, limitations, and relative
rights identical with those of other shares of the same series and, except to
the extent otherwise provided in the description of the series, with those of
other series of the
<PAGE>
same class. Before issuing any shares of a class or series, the preferences,
limitations and relative rights of which are determined by the Board of
Directors under this section, the Corporation shall deliver to the secretary of
state for filing articles of amendment to the Corporation's articles of
incorporation (meeting the requirements of Section 7-106-102 of the Colorado
Business Corporation Act), which articles shall be effective without shareholder
action.
ARTICLE 5
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 6
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.
ARTICLE 7
The number of directors which shall constitute the whole board of directors
shall be fixed from time to time by the bylaws of the Corporation.
ARTICLE 8
3
<PAGE>
The name and mailing address of the person who is to serve as the initial
director of the Corporation until the first annual meeting of shareholders of
the Corporation, or until his successors are elected and qualified, are set
forth below:
Name Address
---- -------
Gerald F. Mahoney 23 Inverness Way East, Suite 165
Englewood, CO 80112
ARTICLE 9
The name and mailing address of the incorporator are as follows:
Name Address
---- -------
Paul Reilly 23 Inverness Way East, Suite 165
Englewood, CO 80112
ARTICLE 10
In furtherance and not in limitation of the powers conferred by statute,
the board of directors is expressly authorized to adopt, alter or repeal the
bylaws of the Corporation.
ARTICLE 11
Elections of directors need not be by written ballot unless the bylaws of
the Corporation shall so provide.
There shall be no cumulative voting by shareholders of any class or series
in the election of directors of the Corporation.
Meetings of shareholders may be held at such place, either within or
without the State of Colorado, as may be designated by or in the manner provided
in the bylaws. The books of the Corporation may be kept (subject to any
provision contained in the statutes of the State of Colorado) outside the State
of Colorado at such place or places as may be designated from time to time by
the board of directors or in the bylaws of the Corporation.
ARTICLE 12
4
<PAGE>
(1) As used in this Article, the term:
(1) "Affiliate" means a person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, another person.
(2) "Associate," when used to indicate a relationship with any person,
means: (i) any corporation, partnership, unincorporated association or other
entity of which such person is a director, officer or partner or is, directly or
indirectly, the owner of 20% or more of any class of voting stock; (ii) any
trust or other estate in which such person has at least a 20% beneficial
interest or as to which such person serves as trustee or in a similar fiduciary
capacity; and (iii) any relative or spouse of such person, or any relative of
such spouse, who has the same residence as such person.
(3) "Business Combination," means:
(i) any merger, consolidation or plan of share exchange involving the
Corporation or any direct or indirect majority-owned subsidiary of the
Corporation with (A) an Interested Shareholder (as hereinafter defined), or
(B) with any other corporation, partnership, unincorporated association or
other entity if the merger, consolidation or plan of share exchange is
caused by the Interested Shareholder and as a result of such merger,
consolidation or plan of share exchange subsection (b) of this Article is
not applicable to the surviving entity;
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions), except
proportionately with all other shareholders of the Corporation, to or with
the Interested Shareholder, whether as part of a dissolution or otherwise,
of assets of the Corporation or of any direct or indirect majority-owned
subsidiary of the Corporation which assets have an aggregate market value
equal to 10% or more of either the aggregate market value of all the assets
of the Corporation determined on a consolidated basis or the aggregate
market value of all the outstanding stock of the Corporation;
(iii) any transaction which results in the issuance or transfer by
the Corporation or by any direct or indirect majority-owned subsidiary of
the Corporation of any stock of the Corporation or of such subsidiary to an
Interested Shareholder, except: (A) pursuant to the exercise, exchange or
conversion of securities exercisable for, exchangeable for or convertible
into stock of the Corporation or any such subsidiary which securities were
outstanding prior to the time that the Interested Shareholder became such;
5
<PAGE>
(B) pursuant to a dividend or distribution paid or made, or the exercise,
exchange or conversion of securities exercisable for, exchangeable for or
convertible into stock of the Corporation or any such subsidiary which
security is distributed, pro rata to all holders of a class or series of
stock of the Corporation subsequent to the time the Interested Shareholder
became such; (C) pursuant to an exchange offer by the Corporation to
purchase stock made on the same terms to all holders of said stock; or (D)
any issuance or transfer of stock by the Corporation; provided however,
that in no case under items (B)-(D) of this subparagraph shall there be an
increase in the Interested Shareholder's proportionate share of the stock
of any class or series of the Corporation or of the voting stock of the
Corporation;
(iv) any transaction involving the Corporation or any direct or
indirect majority-owned subsidiary of the Corporation which has the effect,
directly or indirectly, of increasing the proportionate share of the stock
of any class or series, or securities convertible into the stock of any
class or series, of the Corporation or of any such subsidiary which is
owned by the Interested Shareholder, except as a result of immaterial
changes due to fractional share adjustments or as a result of any purchase
or redemption of any shares of stock not caused, directly or indirectly, by
the Interested Shareholder; or
(v) any receipt by the Interested Shareholder of the benefit, directly
or indirectly (except proportionately as a shareholder of the Corporation),
of any loans, advances, guarantees, pledges or other financial benefits
(other than those expressly permitted in subparagraphs (i)-(iv) of this
paragraph) provided by or through the Corporation or any direct or indirect
majority-owned subsidiary.
(4) "control," including the terms "controlling," "controlled by" and
"under common control with," means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
person, whether through the ownership of voting stock, by contract or otherwise.
A person who is the owner of 20% or more of the outstanding voting stock of any
corporation, partnership, unincorporated association or other entity shall be
presumed to have control of such entity, in the absence of proof by a
preponderance of the evidence to the contrary; notwithstanding the foregoing, a
presumption of control shall not apply where such person holds voting stock, in
good faith and not for the purpose of circumventing this section, as an agent,
bank, broker, nominee, custodian or trustee for one or more owners who do not
individually or as a group have control of such entity.
6
<PAGE>
(5) "Interested Shareholder" means any person (other than the
Corporation and any direct or indirect majority-owned subsidiary of the
Corporation) that (i) is the owner of 15% or more of the outstanding voting
stock of the Corporation, or (ii) is an Affiliate or Associate of the
Corporation and was the owner of 15% or more of the outstanding voting stock of
the Corporation at any time within the 3-year period immediately prior to the
date on which it is sought to be determined whether such person is an Interested
Shareholder, and the Affiliates and Associates of such person; provided,
however, that the term "Interested Shareholder" shall not include any person
whose ownership of shares in excess of the 15% limitation set forth herein is
the result of action taken solely by the Corporation; provided that such person
shall be an Interested Shareholder if thereafter such person acquires additional
shares of voting stock of the Corporation, except as a result of further
corporate action not caused, directly or indirectly, by such person. For the
purpose of determining whether a person is an Interested Shareholder, the voting
stock of the Corporation deemed to be outstanding shall include stock deemed to
be owned by the person through application of paragraph (8) of this subsection
but shall not include any other unissued stock of the Corporation which may be
issuable pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise.
(6) "person" means any individual, corporation, partnership,
unincorporated association or other entity.
(7) "stock" means, with respect to any corporation, capital stock and,
with respect to any other entity, any equity interest.
(8) "voting stock" means, with respect to any corporation, stock of
any class or series entitled to vote generally in the election of directors and,
with respect to any entity that is not a corporation, any equity interest
entitled to vote generally in the election of the governing body of such entity.
(9) "owner," including the terms "own" and "owned," when used with
respect to any stock, means a person that individually or with or through any of
its Affiliates or Associates:
(i) beneficially owns such stock, directly or indirectly; or
(ii) has (A) the right to acquire such stock (whether such right is
exercisable immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding, or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise; provided,
however, that a person shall not be deemed the owner of stock
7
<PAGE>
tendered pursuant to a tender or exchange offer made by such person or any
of such person's Affiliates or Associates until such tendered stock is
accepted for purchase or exchange; or (B) the right to vote such stock
pursuant to any agreement, arrangement or understanding; provided, however,
that a person shall not be deemed the owner of any stock because of such
person's right to vote such stock if the agreement, arrangement or
understanding to vote such stock arises solely from a revocable proxy or
consent given in response to a proxy or consent solicitation made to 10 or
more persons; or
(iii) has any agreement, arrangement or understanding for the purpose
of acquiring, holding, voting (except voting pursuant to a revocable proxy
or consent as described in item (B) of subparagraph (ii) of this
paragraph), or disposing of such stock with any other person that
beneficially owns, or whose Affiliates or Associates beneficially own,
directly or indirectly, such stock.
(2) Notwithstanding any other provisions contained in these Articles, the
Corporation shall not engage in any Business Combination with any Interested
Shareholder for a period of three (3) years following the time that such
shareholder became an Interested Shareholder, unless:
(1) Prior to such time the Board of Directors of the Corporation
approved either the Business Combination or the transaction which resulted in
the shareholder becoming an Interested Shareholder;
(2) Upon consummation of the transaction which resulted in the
shareholder becoming an Interested Shareholder, the Interested Shareholder owned
at least 85% of the voting stock of the Corporation outstanding at the time the
transaction commenced, excluding for purposes of determining the number of
shares outstanding those shares owned (i) by persons who are directors and also
officers and (ii) employee stock plans in which employee participants do not
have the right to determine confidentially whether shares held subject to the
plan will be tendered in a tender or exchange offer; or
(3) At or subsequent to such time the Business Combination is approved
by the board of directors and authorized at an annual or special meeting of
shareholders, and not by written consent, by the affirmative vote of at least 66
2/3% of the outstanding voting stock which is not owned by the Interested
Shareholder.
(3) The restrictions contained in this Article shall not apply if:
8
<PAGE>
(1) The Corporation, by action of the shareholders, adopts an
amendment to these Articles of Incorporation expressly repealing this Article;
provided that, in addition to any other vote required by law, such amendment to
the Articles of Incorporation or bylaws must be approved by the affirmative vote
of a majority of the shares entitled to vote. An amendment adopted pursuant to
this paragraph shall not be effective until 12 months after the adoption of such
amendment and shall not apply to any Business Combination between the
Corporation and any person who became an Interested Shareholder of the
Corporation on or prior to the date of such adoption;
(2) A shareholder becomes an Interested Shareholder inadvertently and
(i) as soon as practicable divests itself of ownership of sufficient shares so
that the shareholder ceases to be an Interested Shareholder; and (ii) would not,
at any time within the 3-year period immediately prior to a Business Combination
between the Corporation and such shareholder, have been an Interested
Shareholder but for the inadvertent acquisition of ownership; or
(3) The Business Combination is proposed prior to the consummation or
abandonment of and subsequent to the earlier of the public announcement or the
notice required under the Colorado Business Corporation Act of a proposed
transaction which (i) constitutes one of the transactions described in the 2nd
sentence of this paragraph; (ii) is with or by a person who either was not an
Interested Shareholder during the previous 3 years or who became an Interested
Shareholder with the approval of the Corporation's Board of Directors; and (iii)
is approved or not opposed by a majority of the members of the Board of
Directors then in office (but not less than 1) who were directors prior to any
person becoming an Interested Shareholder during the previous 3 years or were
recommended for election or elected to succeed such directors by a majority of
such directors. The proposed transactions referred to in the preceding sentence
are limited to (x) a merger, consolidation or plan of share exchange involving
the Corporation (except for a merger in respect of which, pursuant to Section 7-
111-104 of the Colorado Business Corporation Act or any successor provision
thereto, no vote of the shareholders of the Corporation is required); (y) a
sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one
transaction or a series of transactions), whether as part of a dissolution or
otherwise, of assets of the Corporation or of any direct or indirect majority-
owned subsidiary of the Corporation (other than to any direct or indirect
wholly-owned subsidiary or to the Corporation) having an aggregate market value
equal to 50% or more of either that aggregate market value of all of the assets
of the Corporation determined on a consolidated basis or the aggregate market
value of all the outstanding stock of the Corporation; or (z) a proposed tender
or exchange offer for 50% or more of the outstanding voting stock of the
Corporation. The Corporation shall give not less than 20 days' notice to all
Interested Shareholders prior to the consummation of
9
<PAGE>
any of the transactions described in clause (x) or (y) of the 2nd sentence of
this paragraph.
(4) No provision of the Articles of Incorporation or bylaw shall require,
for any vote of shareholders required by this section, a greater vote of
shareholders than that specified in this section.
ARTICLE 13
Except as specifically provided otherwise herein, the Corporation may
amend, alter, change or repeal any provision contained in these Articles of
Incorporation, in the manner now or hereafter prescribed by the laws of the
State of Colorado and may add additional provisions authorized by such laws as
are then in force. All rights conferred upon the directors or shareholders of
the Corporation herein or in any amendment hereof are granted subject to this
reservation.
IN WITNESS WHEREOF, I, the undersigned (who, if a natural person is over
the age of 18 years), being the incorporator designated in Article IX of the
foregoing Articles of Incorporation, have executed said Articles of
Incorporation as of the ______ day of _______________, 19____.
__________________________________________________
Paul Reilly, Incorporator
The undersigned consents to the appointment as the initial registered agent
of Mail-Well Colorado, Inc.
__________________________________________________
Roger Wertheimer
10
<PAGE>
EXHIBIT 3(i)(b)
ARTICLES OF MERGER
------------------
The undersigned corporations, Mail-Well Colorado, Inc., a Colorado
corporation ("M-W Colorado"), and Mail-Well, Inc., a Delaware corporation ("M-W
Delaware"), pursuant to Section 7-7-104 of the Colorado Revised Statutes, adopt
the following Articles of Merger:
Article 1. On the effective date, M-W Delaware shall merge with and
into M-W Colorado and the separate existence of M-W Delaware shall cease
pursuant to the terms of the Merger Agreement and Plan of Reorganization
attached hereto as EXHIBIT A ("Merger Agreement"), and M-W Colorado shall
continue as the surviving corporation.
Article 2. The Merger Agreement was approved by the shareholders of M-W
Delaware at a duly called and properly held Meeting of Shareholders. At the
time of the adoption of the Merger Agreement there were 12,498,645 shares of the
common stock of M-W Delaware issued and outstanding. Of these shares,
_____________________shares (________ percent) were voted in favor of the
adoption of the Merger Agreement. The number of shares voted for the Merger
Agreement was sufficient for approval.
Article 3. M-W Delaware owns 100% of the Common Stock of M-W Colorado
and as the sole shareholder approved the Merger Agreement for M-W Colorado.
Article 4. The effective time and date of the merger shall be 5:01 p.m.
Eastern Daylight Time, May 30, 1997.
Article 5. The Articles of Incorporation of M-W Colorado shall be
amended as of the effective time and date recited above as follows:
ARTICLE I
The name of the Corporation is Mail-Well, Inc.
IN WITNESS WHEREOF, these Articles of Merger have been signed and verified
by the duly authorized officers of M-W Colorado and M-W Delaware on this _____
day of May, 1997.
MAIL-WELL COLORADO, INC.
By:__________________________________________
, _____ President
By:__________________________________________
, Secretary
VERIFIED:
_______________________________
<PAGE>
MAIL-WELL, INC.
By:________________________________________
, ________ President
By:________________________________________
, Secretary
VERIFIED:
_______________________________
STATE OF COLORADO )
) ss.
COUNTY OF _________________ )
The foregoing instrument was acknowledged before me this ______ day of May,
1997, by ___________________, as _______ President of Mail-Well Colorado, Inc.
and as ______ President of Mail-Well, Inc..
WITNESS my hand and official seal.
My Commission expires: ________________
------------------------------------------------
Notary Public
STATE OF COLORADO )
) ss.
COUNTY OF _________________ )
The foregoing instrument was acknowledged before me this ______ day of May,
1997, by ___________________, as _______ President of Mail-Well Colorado, Inc.
and as ______ President of Mail-Well, Inc..
WITNESS my hand and official seal.
My Commission expires: ________________
------------------------------------------------
Notary Public
<PAGE>
EXHIBIT 4.1
HJ 48029
TEMPORARY CERTIFICATE - EXCHANGEABLE FOR DEFINITIVE ENGRAVED
CERTIFICATE WHEN READY FOR DELIVERY
MAIL-WELL, INC.
THIS CERTIFICATE IS TRANSFERABLE IN DENVER, CO OR NEW YORK, NY
COMMON STOCK COMMON STOCK
NUMBER SHARES
[ TMV ] [ ]
INCORPORATED UNDER THE LAWS SEE REVERSE FOR
OF THE STATE OF DELAWARE CERTAIN DEFINITIONS
CUSIP 560321 20 0
- --------------------------------------------------------------------------------
THIS CERTIFIES THAT
SPECIMEN
IS THE OWNER OF
- --------------------------------------------------------------------------------
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK,
OF THE PAR VALUE OF $.01 PER SHARE, OF
CERTIFICATE OF STOCK
MAIL-WELL, INC.
(hereinafter and on the back hereof called the "Company")
STATE OF INCORPORATION CHANGED TO COLORADO
transferable on the books of the Company by the holder hereof in person or by
duly authorized attorney upon surrender of this certificate properly endorsed.
This certificate and the shares represented hereby are issued and shall be
held subject to all the provisions of the laws of the State of Delaware and to
all the provisions of the Certificate of Incorporation and the Bylaws of the
Company, as amended from time to time (copies of which are on file at the office
of the Transfer Agent), to all of which the holder of this certificate by
acceptance hereof assents. This certificate is not valid unless countersigned
and registered by the Transfer Agent and Registrar.
WITNESS in facsimile seal of the Company and the facsimile signatures of
its duly authorized officers.
Dated:
[SPECIMEN] [CORPORATE SEAL [SPECIMEN]
[SIGNATURE OF OF DELAWARE OF [SIGNATURE OF
ROGER WEITHEIMER MAIL-WELL, INC. G. MAHONEY
APPEARS HERE] APPEARS HERE] APPEARS HERE]
SECRETARY CHAIRMAN
COUNTERSIGNED AND REGISTERED:
AMERICAN SECURITIES TRANSFER & TRUST, INC.
P.O. BOX 1596
Denver, Colorado 80201
TRANSFER AGENT AND REGISTRAR
BY
AUTHORIZED SIGNATURE
<PAGE>
MAIL-WELL, INC.
This Company will furnish without charge to each stockholder who so
requests a full statement of the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof of the Company, and the qualifications, limitations or restrictions of
such preferences and/or rights. Such statement may be obtained by a request in
writing to the Secretary of the Company at its principal place of business or to
the office of the Transfer Agent.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations.
<TABLE>
<CAPTION>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT -______________Custodian______________
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_________________________________
in common (State)
UNIF TRF MIN ACT - __________Custodian (until age_____)
(Cust)
__________under Uniform Transfers
(Minor)
to Minors Act_______________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED,_______________________________________________________________hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
____________________________________________________________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE ON ASSIGNEE)
____________________________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________________________
______________________________________________________________________________________________________________________________Shares
of the capital stock represented by the within Certificate, and do hereby irrevocably constitute and appoint.
____________________________________________________________________________________________________________________________Attorney
to transfer the said stock on the books of the within named Corporation with full power of substitution in the premises.
Dated___________________________________________
X __________________________________________________________________
X __________________________________________________________________
THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE
NOTICE: NAME(S) AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER.
Signature(s) Guaranteed
By _______________________________________________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM). PURSUANT TO
S.E.C. RULE 17Ad-15.
</TABLE>
