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As filed with the Securities and Exchange Commission on August 14, 1998
Registration No. 333-61467
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT TO FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
MAIL-WELL, INC.
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(Exact Name of Registrant as Specified in its Charter)
Delaware 84-1250533
(State or Other (IRS Employer
Jurisdiction of Identification
Incorporation or Organization) Number)
23 Inverness Way East, Suite 160, Englewood, Colorado 80112
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(Address of Principal Executive Offices)
MAIL-WELL, INC. 1997 NON-QUALIFIED STOCK OPTION PLAN
MAIL-WELL, INC. 1998 INCENTIVE STOCK OPTION PLAN
MAIL-WELL, INC. ALLIED ACQUISITION NON-QUALIFIED STOCK OPTION PLAN
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(Full Title of the Plans)
Roger Wertheimer COPIES TO:
Mail-Well, Inc. Herbert H. Davis III, Esq.
23 Inverness Way East, Suite 160 Rothgerber Johnson & Lyons LLP
ENGLEWOOD, COLORADO 80112 1200 17th Street, Suite 3000
(Name and Address of Agent for Service) Denver, Colorado 80202
(303) 623-9000
(303) 790-8023
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(Telephone Number of Agent for Service)
CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered Per Share Offering Price Fee
Common Stock 3,074,800 $13.18(1) $40,529,184(1) $11,956.11(1)+
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(1) Pursuant to Rule 457(c), (h) under the Securities Act of 1933, as
amended, the proposed maximum offering price per share and the proposed
maximum aggregate offering price are estimated solely for purposes of
calculating the registration fee and are based upon the following: options
for 1,184,400 shares at a weighted average exercise price of $8.65 a share
under the 1997 Plan; options for 124,800 shares at an exercise price of
$13.685 a share under the Allied Plan; and 1,765,600 shares at $16.185 a
share, the average of the high and low prices of the Common Stock as quoted
on the New York Stock Exchange on August 11, 1998.
+ Previously paid.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, all of which were previously filed by
Mail-Well, Inc. (the "Company") (File No. 0-26692) with the Commission
pursuant to the Exchange Act, are hereby incorporated by reference:
(1) the Company's Annual Report on Form 10-K for the year ended December
31, 1997;
(2) the Company's Quarterly Reports on Form 10-Q and Amendment No. 1 to
Form 10-Q for the quarter ended March 31, 1998;
(3) the Company's Current Reports on Form 8-K, dated January 22, 1998,
February 17, 1998, March 13, 1998, May 28, 1998, and May 30, 1998, and
Amendment No. 1 to Form 8-K dated May 30, 1998;
(4) the Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1998; and
(5) The description of the common stock of the Company, par value $0.01
(the "Company Stock"), contained in the Company's Registration Statement on
Form 8-A, File No. 001-12551, filed by the Company under Section 12 of the
Exchange Act.
All documents subsequently filed by the Company with the Securities and
Exchange Commission (the "Commission") pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act, as amended, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold
shall be deemed to be incorporated in this Registration Statement by
reference and to be a part hereof from the date of filing such documents.
Any statement contained herein or in a document, all or a portion of which is
incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained in any subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or replaces such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Company Stock registered pursuant to this Form S-8
Registration Statement will be passed upon for the Company by the law firm of
Rothgerber Johnson & Lyons LLP, One Tabor Center, Suite 3000, 1200 17th
Street, Denver, Colorado 80202, which has served as special counsel to the
Company in the preparation of the Form S-8 Registration Statement. No
members of this law firm have a substantial interest in the Company or are
employed on a contingent basis by the Company.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 7-109-101 et seq. of the Colorado Business Corporation Act
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."
ITEM 8. EXHIBITS
The Company hereby undertakes that it will submit or has submitted any
of the plans intended to be qualified under Section 401 of the Internal
Revenue Code and any amendment thereto to the Internal Revenue Service (the
"IRS") in a timely manner and has made or will make all changes required by
the IRS in order to qualify the Plan.
The following exhibits are attached to this registration statement:*
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4.1 Mail-Well, Inc. 1997 Non-Qualified Stock Option Plan
4.2 Mail-Well, Inc. 1998 Incentive Stock Option Plan
4.3 Mail-Well, Inc. Allied Acquisition Non-Qualified Stock Option
Plan
5 Opinion of Rothgerber Johnson & Lyons LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Rothgerber Johnson & Lyons LLP (included in Exhibit 5
hereto)
23.3 Consent of Rubin, Brown, Gornstein & Co. LLP
24 Power of Attorney (included on signature page hereto)
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* All previously filed.
ITEM 9. UNDERTAKINGS
(a) RULE 415 OFFERING
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(h) FILING OF REGISTRATION STATEMENT ON FORM S-8
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the
Company 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
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such liabilities (other than the payment by the Company of expenses incurred
or paid by a director, officer or controlling person of the Company 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 Company will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Englewood and the State of Colorado, on this 14th
day of August, 1998.
MAIL-WELL, INC.
By: /s/ Roger Wertheimer
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Roger Wertheimer, as attorney-in-fact for
Gerald F. Mahoney, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/ Roger Wertheimer Director, Chairman August 14, 1998
- ------------------------- of the Board and CEO
Roger Wertheimer as
attorney-in-fact for
Gerald F. Mahoney
/s/ Roger Wertheimer President, Chief August 14, 1998
- ------------------------- Operating Officer, Chief
Roger Wertheimer as Financial Officer, Director
attorney-in-fact for (Principal Accounting and
Paul V. Reilly Financial Officer)
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/s/ Roger Wertheimer Director August 14, 1998
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Roger Wertheimer as
attorney-in-fact for
J. Bruce Duty
/s/ Roger Wertheimer Director August 14, 1998
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Roger Wertheimer as
attorney-in-fact for
Frank J. Heverdejs
/s/ Roger Wertheimer Director August 14, 1998
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Roger Wertheimer as
attorney-in-fact for
Jerome W. Pickholz
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EXHIBIT INDEX
Exhibit No. Description Page No.
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4.1 Mail-Well, Inc. 1997 Non-Qualified Stock Option Plan *
4.2 Mail-Well, Inc. 1998 Incentive Stock Option Plan *
4.3 Mail-Well, Inc. Allied Acquisition Non-Qualified Stock *
Option Plan
5 Opinion of Rothgerber Johnson & Lyons LLP *
23.1 Consent of Deloitte & Touche LLP *
23.2 Consent of Rothgerber Johnson & Lyons LLP (included in *
Exhibit 5 hereto)
23.3 Consent of Rubin, Brown, Gornstein & Co. LLP *
24 Power of Attorney (included on signature page hereto) *
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* Previously filed.
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