<PAGE>
As filed with the Securities and Exchange Commission on August 14, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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
------------------------------------------------------------------
(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) $11,753.47(1)
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</TABLE>
(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.
<PAGE>
TABLE OF CONTENTS
<TABLE>
Page
PART II ----
<S> <C>
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT . . . . . . . . . II-1
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE. . . . . . . . . II-1
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL . . . . . . . . . II-1
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. . . . . . . . II-2
Item 8. EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . II-2
Item 9. UNDERTAKINGS . . . . . . . . . . . . . . . . . . . . . . II-3
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-5
EXHIBIT INDEX. . . . . . . . . . . . . . . . . . . . . . . . . . . . II-7
</TABLE>
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<PAGE>
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; and
(4) 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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<PAGE>
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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<PAGE>
<TABLE>
<S> <C>
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)
</TABLE>
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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<PAGE>
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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<PAGE>
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 13th
day of August, 1998.
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 below 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
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/s/ Gerald F. Mahoney Director, Chairman August 13, 1998
- ------------------------- of the Board and CEO
Gerald F. Mahoney
/s/ Paul V. Reilly President, Chief August 13, 1998
- ------------------------- Operating Officer, Chief
Paul V. Reilly Financial Officer, Director
(Principal Accounting and
Financial Officer)
/s/ Frank P. Diassi Director August 13, 1998
- -------------------------
Frank P. Diassi
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<PAGE>
/s/ J. Bruce Duty Director August 13, 1998
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J. Bruce Duty
/s/ Frank J. Heverdejs Director August 13, 1998
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Frank J. Heverdejs
/s/ Jerome W. Pickholz Director August 13, 1998
- -------------------------
Jerome W. Pickholz
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<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page No.
- ----------- ----------- --------
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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<PAGE>
EXHIBIT 4.1
MAIL-WELL, INC. 1997 NON-QUALIFIED STOCK OPTION PLAN
<PAGE>
MAIL-WELL, INC.
1997 NON-QUALIFIED STOCK OPTION PLAN
SECTION 1. PURPOSE OF THE PLAN. The purpose of this Mail-Well, Inc.
1997 Non-Qualified Stock Option Plan, as amended ("Plan") is to encourage
ownership of common stock, $.01 par value ("Common Stock"), of Mail-Well, Inc.,
a Delaware corporation (the "Company"), by eligible key employees of the Company
and its Affiliates (as defined below) and to provide increased incentive for
such employees and directors to render services and to exert maximum effort for
the business success of the Company. In addition, the Company expects that the
Plan will further strengthen the identification of employees and directors with
the stockholders. Options to be granted under this Plan are not intended to
qualify as Incentive Stock Options pursuant to Section 422 of the Internal
Revenue Code of 1986, as amended ("Code"). As used in this Plan, the term
"Affiliates" means any "parent corporation" of the Company and any "subsidiary
corporation" of the Company within the meaning of Code Sections 424(e) and (f),
respectively.
SECTION 2. ADMINISTRATION OF THE PLAN.
(a) COMPOSITION OF COMMITTEE. The Plan shall be administered by the
Compensation Committee (the "Committee") comprised of two or more directors
designated by the Board of Directors of the Company (the "Board"), which
shall also designate the Chairman of the Committee. No director shall
serve as a member of the Committee unless he is a "Non-Employee Director"
within the meaning of such Rule 16b-3 under the Securities Exchange Act of
1934, as amended ("Exchange Act").
(b) COMMITTEE ACTION. The Committee shall hold its meetings at such
times and places as it may determine. A majority of its members shall
constitute a quorum, and all determinations of the Committee shall be made
by not less than a majority of its members. Any decision or determination
reduced to writing and signed by a majority of the members shall be fully
effective as if it had been made by a majority vote of its members at a
meeting duly called and held. The Committee may designate the Secretary of
the Company or other Company employees to assist the Committee in the
administration of the Plan, and may grant authority to such persons to
execute award agreements or other documents on behalf of the Committee and
the Company. Any duly constituted committee of the Board satisfying the
qualifications of this Section 2 may be appointed as the Committee.
(c) COMMITTEE EXPENSES. All expenses and liabilities incurred by the
Committee in the administration of the Plan shall be borne by the Company.
The Committee may employ attorneys, consultants, accountants or other
persons.
SECTION 3. STOCK RESERVED FOR THE PLAN. Subject to adjustment as
provided in Section 6(i) hereof, the aggregate number of shares of Common Stock
that may be optioned under the Plan is 650,000. The shares subject to the Plan
shall consist of authorized but unissued shares of Common Stock and such number
of shares shall be and is hereby reserved for sale for such purpose. Any of
<PAGE>
such shares which may remain unsold and which are not subject to outstanding
options at the termination of the Plan shall cease to be reserved for the
purpose of the Plan, but until termination of the Plan or the termination of the
last of the options granted under the Plan, whichever last occurs, the Company
shall at all times reserve a sufficient number of shares to meet the
requirements of the Plan. Should any option expire or be canceled prior to its
exercise in full, the shares theretofore subject to such option may again be
made subject to an option under the Plan.
SECTION 4. ELIGIBILITY. The persons eligible to participate in the
Plan as a recipient of options ("Optionee") shall include only key employees of
the Company or its Affiliates at the time the option is granted. An employee
who has been granted an option hereunder may be granted an additional option or
options, if the Committee shall so determine.
SECTION 5. GRANT OF OPTIONS. The Committee shall have sole and
absolute discretionary authority (i) to determine, authorize, and designate
those key employees of the Company or its Affiliates who are to receive
options under the Plan, (ii) to determine the number of shares of Common
Stock to be covered by such options, (iii) to determine the exercise price
for options granted under the Plan, and (iv) to determine the other terms of
such options and the conditions for exercise thereof. The Committee shall
thereupon grant options in accordance with such determinations and such
options shall be evidenced by a written option agreement. Subject to the
express provisions of the Plan, the Committee shall have discretionary
authority to prescribe, amend and rescind rules and regulations relating to
the Plan, to interpret the Plan, to prescribe and amend the terms of the
option agreements (which need not be identical) and to make all other
determinations deemed necessary or advisable for the administration of the
Plan.
SECTION 6. TERMS AND CONDITIONS. Each option granted under the Plan
shall be evidenced by an agreement, in a form approved by the Committee, which
shall be subject to the following express terms and conditions and to such other
terms and conditions as the Committee may deem appropriate.
(a) OPTION PERIOD. The Committee shall promptly notify the Optionee
of the option grant and a written agreement shall promptly be executed and
delivered by and on behalf of the Company and the Optionee. The date of
grant shall be the date the option is actually granted by the Committee,
even though the written agreement may be executed and delivered by the
Company and the Optionee after that date. Each option agreement shall
specify the period for which the option thereunder is granted (which in no
event shall exceed ten years from the date of grant) and shall provide that
the option shall expire at the end of such period. If the original term of
an option is less than ten years from the date of grant, the option may be
amended prior to its expiration, with the approval of the Committee and the
Optionee, to extend the term so that the term as amended is not more than
ten years from the date of grant.
(b) EXERCISE PERIOD. The Committee may provide in the option
agreement that an option may be exercised in whole, immediately, or is to
be exercisable in increments.
<PAGE>
(c) PROCEDURE FOR EXERCISE. Options shall be exercised by the
delivery of written notice to the Secretary of the Company setting forth
the number of shares with respect to which the option is being exercised.
Such notice shall be accompanied by cash or cashier's check, bank draft,
postal or express money order payable to the order of the Company, or at
the option of the Committee, in Common Stock theretofore owned by such
Optionee (or any combination of cash and Common Stock). Notice may also be
delivered by fax or telecopy provided that the purchase price of such
shares is delivered to the Company via wire transfer on the same day the
fax is received by the Company. The notice shall specify the address to
which the certificates for such shares are to be mailed. An Optionee shall
be deemed to be a stockholder with respect to shares covered by an option
on the date the Company receives such written notice and such option
payment.
As promptly as practicable after receipt of such written notification
and payment, the Company shall deliver to the Optionee certificates for the
number of shares with respect to which such option has been so exercised,
issued in the Optionee's name or such other name as Optionee directs;
provided, however, that such delivery shall be deemed effected for all
purposes when a stock transfer agent of the Company shall have deposited
such certificates in the United States mail, addressed to the Optionee at
the address specified pursuant to this Section 6(c).
(d) TERMINATION OF EMPLOYMENT. If an employee to whom an option is
granted ceases to be employed by the Company for any reason other than
death or disability, any option which is exercisable on the date of such
termination of employment shall expire upon such date of such termination
of employment; provided, however, the Committee, in its sole discretion,
may allow an Optionee to exercise all or a portion of the Options granted
but unexercised for a period of time after the Optionee's termination of
employment, such extension not to exceed three months from the date of
termination.
(e) DISABILITY OR DEATH OF OPTIONEE. In the event of the
determination of disability or death of an Optionee under the Plan while he
is employed by the Company, the options previously granted to him may be
exercised (to the extent he would have been entitled to do so at the date
of the determination of disability or death) at any time and from time to
time, within a three-month period after such determination of disability or
death, by the former employee, the guardian of his estate, the executor or
administrator of his estate or by the person or persons to whom his rights
under the option shall pass by will or the laws of descent and
distribution, but in no event may the option be exercised after its
expiration under the terms of the option agreement. An Optionee shall be
deemed to be disabled if, in the opinion of a physician selected by the
Committee, he is incapable of performing services for the Company of the
kind he was performing at the time the disability occurred by reason of any
medically determinable physical or mental impairment which can be expected
to result in death or to be of long, continued and indefinite duration.
The date of determination of disability for purposes hereof shall be the
date of such determination by such physician. The Committee, in its sole
discretion, may allow an Optionee to exercise all or a portion of the
<PAGE>
Options granted but unexercised for a longer period than three months after
disability or death.
(f) ASSIGNABILITY. An option shall not be assignable or otherwise
transferable except by will or by the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined in the Code or
Title I of the Employee Retirement Income Security Act, as amended, or the
rules thereunder. During the lifetime of an Optionee, an option shall be
exercisable only by the Optionee.
(g) NO RIGHTS AS STOCKHOLDER. No Optionee shall have any rights as a
stockholder with respect to shares covered by an option until the option is
exercised by the written notice and accompanied by payment as provided in
clause (c) above.
(h) EXTRAORDINARY CORPORATE TRANSACTIONS. The existence of
outstanding options shall not affect in any way the right or power of the
Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations, exchanges, or other changes in the
Company's capital structure or its business, or any merger or consolidation
of the Company, or any issuance of Common Stock or other securities or
subscription rights thereto, or any issuance of bonds, debentures,
preferred or prior preference stock ahead of or affecting the Common Stock
or the rights thereof, or the dissolution or liquidation of the Company, or
any sale or transfer of all or any part of its assets or business, or any
other corporate act or proceeding, whether of a similar character or
otherwise. If the Company recapitalizes or otherwise changes its capital
structure, or merges or consolidates, (each of the foregoing a "Fundamental
Change"), then thereafter upon any exercise of an option theretofore
granted the Optionee shall be entitled to purchase under such option, in
lieu of the number of shares of Common Stock as to which option shall then
be exercisable, the number and class of shares of stock and securities to
which the Optionee would have been entitled pursuant to the terms of the
Fundamental Change if, immediately prior to such Fundamental Change, the
Optionee had been the holder of record of the number of shares of Common
Stock as to which such option is then exercisable.
(i) CHANGES IN COMPANY'S CAPITAL STRUCTURE. If the outstanding
shares of Common Stock or other securities of the Company, or both, for
which the option is then exercisable shall at any time be changed or
exchanged by declaration of a stock dividend, stock split, or combination
of shares, the number and kind of shares of Common Stock or other
securities which are subject to the Plan or subject to any options
theretofore granted, and the option prices, shall be appropriately and
equitably adjusted so as to maintain the proportionate number of shares or
other securities without changing the aggregate option price.
(j) ACCELERATION OF OPTIONS. Except as hereinbefore expressly
provided, (i) the issuance by the Company of shares of stock of any class
of securities convertible into shares of stock of any class, for cash,
property, labor or services, upon direct sale, upon the exercise of rights
or warrants to subscribe therefor, or upon conversion of shares or
obligations of the Company convertible into such shares or other
securities, (ii) the payment of a dividend in
<PAGE>
property other than Common Stock or (iii) the occurrence of any similar
transaction, and in any case whether or not for fair value, shall not
affect, and no adjustment by reason thereof shall be made with respect
to, the number of shares of Common Stock subject to options theretofore
granted or the purchase price per share, unless the Committee shall
determine in its sole discretion that an adjustment is necessary to
provide equitable treatment to Optionee. Notwithstanding anything to the
contrary contained in this Plan, the Committee may in its sole
discretion accelerate the time at which any option may be exercised,
including, but not limited to, upon the occurrence of the events
specified in this Section 6, and is authorized at any time (with the
consent of the Optionee) to purchase options pursuant to Section 7.
(k) STOCKHOLDERS AGREEMENT. The Committee shall provide in the
option agreement that prior to receiving any shares of Common Stock or
other securities on the exercise of the option, the Optionee (or the
Optionee's representative upon the Optionee's death) shall be required to
execute the American Mail-Well Employee Stockholders Agreement, or the
Company's Stockholders Agreement, whichever the Committee deems
appropriate.
(l) CHANGE OF CONTROL. In the event that (i) there is a proposed
action whereby the Company would not be the surviving entity in any merger
or consolidation (or survives only as a subsidiary of another entity) other
than a merger for the sole purpose of changing the Company's state of
incorporation, (ii) there is a proposed action whereby the Company would
sell all or substantially all of its assets to any person or entity (other
than a wholly-owned subsidiary), (iii) any person or entity (including a
"group" as contemplated by Section 13(d)(3) of the Exchange Act), acquires
or gains ownership or control of (including, without limitation, power to
vote) more than 50% of the outstanding shares of Common Stock, (iv) there
is a proposed action whereby the Company would be dissolved and liquidated,
or (v) as a result of or in connection with a contested election of
directors, the persons who were directors of the Company before such
election shall cease to constitute a majority of the Board (each such event
in clauses (i) through (v) above is referred to herein as a "Corporate
Change"), all Optionees hereunder shall be given notice of such Corporate
Change and shall have a period of thirty (30) days thereafter to exercise
their options after receipt of such notice whether such options had vested
in accordance with their terms or not.
SECTION 7. RELINQUISHMENT OF OPTIONS.
(a) The Committee, in granting options hereunder, shall have
discretion to determine whether or not options shall include a right of
relinquishment as hereinafter provided by this Section 7. The Committee
shall also have discretion to determine whether an option agreement
evidencing an option initially granted by the Committee without a right of
relinquishment shall be amended or supplemented to include such a right of
relinquishment. Neither the Committee nor the Company shall be under any
obligation or incur any liability to any person by reason of the
Committee's refusal to grant or include a right of relinquishment in any
option granted hereunder or in any option agreement evidencing the same.
Subject to the Committee's determination in any case that the grant by it
of a right of
<PAGE>
relinquishment is consistent with Section 1 hereof, any option
granted under this Plan, and the option agreement evidencing such
option, may provide:
i) That the Optionee, or his heirs or other legal
representatives to the extent entitled to exercise the option under
the terms thereof, in lieu of purchasing the entire number of shares
subject to purchase thereunder, shall have the right to relinquish all
or any part of the then unexercised portion of the option (to the
extent then exercisable) for a number of shares of Common Stock, for
an amount of cash or for a combination of Common Stock and cash to be
determined in accordance with the following provisions of this clause
(i):
a) The written notice of exercise of such right of
relinquishment shall state the percentage, if any, of the
Appreciated Value (as defined below) that the Optionee elects to
receive in cash ("Cash Percentage"), such Cash Percentage to be
in increments of 10% of such Appreciated Value up to 100%
thereof;
b) The number of shares of Common Stock, if any, issuable
pursuant to such relinquishment shall be the number of such
shares, rounded to the next greater number of full shares, as
shall be equal to the quotient obtained by dividing (A) the
difference between (I) the Appreciated Value and (II) the result
obtained by multiplying the Appreciated Value and the Cash
Percentage by (B) the then current market value per share of
Common Stock;
c) The amount of cash payable pursuant to such
relinquishment shall be an amount equal to the Appreciated Value
less the aggregate current market value of the Common Stock
issued pursuant to such relinquishment, if any, which cash shall
be paid by the Company subject to such conditions as are deemed
advisable by the Committee to permit compliance by the Company
with the withholding provisions applicable to employers under the
Code and any applicable state income tax laws;
d) For the purpose of this clause (i), "Appreciated Value"
means the excess of (x) the aggregate current market value of the
shares of Common Stock covered by the option or the portion
thereof to be relinquished over (y) the aggregate purchase price
for such shares specified in such option;
ii) That such right of relinquishment may be exercised only upon
receipt by the Company of a written notice of such relinquishment
which shall be dated the date of election to make such relinquishment;
and that, for the purposes of this Plan, such date of election shall
be deemed to be the date when such notice is sent by registered or
certified mail, or when receipt is acknowledged by the Company, if
mailed by other than registered or certified mail or if delivered by
hand or by any telegraphic communications equipment of the sender or
otherwise delivered;
<PAGE>
provided, that, in the event the method just described for
determining such date of election shall not be or remain consistent
with the provisions of Section 16(b) of the Exchange Act or the
rules and regulations adopted by the Commission thereunder, as
presently existing or as may be hereafter amended, which
regulations exempt from the operation of Section 16(b) of the
Exchange Act in whole or in part any such relinquishment
transaction, then such date of election shall be determined by such
other method consistent with Section 16 (b) of the Exchange Act or
the rules and regulations thereunder as the Committee shall in its
discretion select and apply;
iii) That the "current market value" of a share of Common Stock
on a particular date shall be equal to the mean of the reported high
and low sales prices of the Common Stock on the New York Stock
Exchange Composite Tape on that date, or if no prices are reported on
that date, on the last preceding date on which such prices of the
Common Stock are so reported provided if the Common Stock is not
traded on the New York Stock Exchange at the time a determination of
its fair market value is required to be made hereunder, its fair
market value shall be deemed to be equal to the average between the
closing bid and ask prices of the Common Stock on the most recent date
the Common Stock was publicly traded, and, provided further, in the
event the Common Stock is not publicly traded at the time a
determination of its value is required to be made hereunder, the
determination of its fair market value shall be made by the Committee
in such manner as it deems appropriate; and
iv) That the option, or any portion thereof, may be relinquished
only to the extent that (A) it is exercisable on the date written
notice of relinquishment is received by the Company, (B) the
Committee, subject to the provisions of Section 7(b), shall consent to
the election of the holder to relinquish such option in whole or in
part for cash as set forth in such written notice of relinquishment
and (C) the holder of such option pays, or makes provision
satisfactory to the Company for the payment of, any taxes which the
Company is obligated to collect with respect to such relinquishment.
(b) The Committee shall have sole discretion to consent to or
disapprove, and neither the Committee nor the Company shall be under any
liability by reason of the Committee's disapproval of, any election by a
holder of an option to relinquish such option in whole or in part for cash
as provided in Section 7(a), except that no such consent to or approval of
a relinquishment for cash shall be required under the following
circumstances. Each Optionee who is subject to the short-swing profits
recapture provisions of Section 16(b) of the Exchange Act ("Covered
Optionee") shall be entitled to receive payment only in cash when options
are relinquished during any window period commencing on the third business
day following the Company's release of a quarterly or annual summary
statement of sales and earnings and ending on the twelfth business day
following such release ("Window Period"); provided, however, that payment
shall be so made in cash only in respect of 50% of the options covered by
any stock option agreement. A Covered Optionee shall be entitled to
receive payment only in shares of Common Stock upon (a) the relinquishment
of options
<PAGE>
outside a Window Period and (b) the relinquishment of options during a
Window Period once such Optionee has received payment in cash for the
relinquishment of 50% of the options covered by any stock option
agreement.
(c) The Committee, in granting options hereunder, shall have
discretion to determine the terms upon which such options shall be
relinquishable, subject to the applicable provisions of this Plan, and
including such provisions as are deemed advisable to permit the exemption
from the operation from Section 16(b) of the Exchange Act of any such
relinquishment transaction, and options outstanding, and option agreements
evidencing such options, may be amended, if necessary, to permit such
exemption. If an option is relinquished, such option shall be deemed to
have been exercised to the extent of the number of shares of Common Stock
covered by the option or part thereof which is relinquished, and no further
options may be granted covering such shares of Common Stock.
(d) Neither any option nor any right to relinquish the same to the
Company as contemplated by this Section 7 shall be assignable or otherwise
transferable except by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined in the Code or
Title I of the Employee Retirement Income Security Act, as amended, or the
rules thereunder.
(e) Except as provided in Section 7(f) below, no right of
relinquishment may be exercised within the first six months after the
initial award of any Option containing, or the amendment or supplementation
of any existing option agreement adding, the right of relinquishment.
(f) No right of relinquishment may be exercised after the initial
award of any option containing, or the amendment or supplementation of any
existing option agreement adding the right of relinquishment, unless such
right of relinquishment is effective upon the Optionee's death, disability
or termination of his relationship with the Company and the payment upon
the exercise of such right is only in cash.
SECTION 8. AMENDMENTS OR TERMINATION. The Board may amend, alter or
discontinue the Plan, but no amendment or alteration shall be made which would
impair the rights of any Optionee, without his or her consent.
SECTION 9. COMPLIANCE WITH OTHER LAWS AND REGULATIONS. The Plan, the
grant and exercise of options thereunder, and the obligation of the Company to
sell and deliver shares under such options, shall be subject to all applicable
federal and state laws, rules and regulations and to such approvals by any
governmental or regulatory agency as may be required. The Company shall not be
required to issue or deliver any certificates for shares of Common Stock prior
to the completion of any registration or qualification of such shares under any
federal or state law or issuance of any ruling or regulation of any government
body which the Company shall, in its sole discretion, determine to be necessary
or advisable.
<PAGE>
SECTION 10. PURCHASE FOR INVESTMENT. Unless the options and shares of
Common Stock covered by this Plan have been registered under the Securities Act
of 1933, as amended, or the Company has determined that such registration is
unnecessary, each person exercising an option under this Plan may be required by
the Company to give a representation in writing that he is acquiring such shares
for his own account for investment and not with a view to, or for sale in
connection with, the distribution of any part thereof.
SECTION 11. TAXES.
(a) The Company may make such provisions as it may deem appropriate
for the withholding of any taxes which it determines is required in
connection with any options granted under this Plan.
(b) Notwithstanding the terms of Section 11(a), any Optionee may pay
all or any portion of the taxes required to be withheld by the Company or
paid by him in connection with the exercise of a nonqualified option by
electing to have the Company withhold shares of Common Stock, or by
delivering previously owned shares of Common Stock, having a current market
value, determined in accordance with Section 7(a)(iii), equal to the amount
required to be withheld or paid. An Optionee must make the foregoing
election on or before the date that the amount of tax to be withheld is
determined ("Tax Date"). All such elections are irrevocable and subject to
disapproval by the Committee.
SECTION 12. REPLACEMENT OF OPTIONS. The Committee from time to time may
permit an Optionee under the Plan to surrender for cancellation any unexercised
outstanding option and receive from the Company in exchange an option for such
number of shares of Common Stock as may be designated by the Committee. The
Committee may, with the consent of the person entitled to exercise any
outstanding option, amend such option, including reducing the exercise price of
any option to not less than the fair market value of the Common Stock at the
time of the amendment and extending the term thereof.
SECTION 13. NO RIGHT TO COMPANY EMPLOYMENT. Nothing in this Plan or as
a result of any option granted pursuant to this Plan shall confer on any
individual any right to continue in the employ of the Company or interfere in
any way with the right of the Company to terminate an individual's employment at
any time. The option agreements may contain such provisions as the Committee
may approve with reference to the effect of approved leaves of absence.
SECTION 14. LIABILITY OF COMPANY. The Company and any Affiliate which
is in existence or hereafter comes into existence shall not be liable to an
Optionee or other persons as to:
(a) THE NON-ISSUANCE OF SHARES. The non-issuance or sale of shares
as to which the Company has been unable to obtain from any regulatory body
having jurisdiction with the authority deemed by the Company's counsel to
be necessary to the lawful issuance and sale of any shares hereunder; and
<PAGE>
(b) TAX CONSEQUENCES. Any tax consequence expected, but not
realized, by any Optionee or other person due to the exercise of any option
granted hereunder.
SECTION 15. EFFECTIVENESS AND EXPIRATION OF PLAN. The Plan shall be
effective as of March 31, 1997.
SECTION 16. NON-EXCLUSIVITY OF THE PLAN. Neither the adoption by the
Board nor the submission of the Plan to the stockholders of the Company for
approval shall be construed as creating any limitations on the power of the
Board to adopt such other incentive arrangements as it may deem desirable,
including without limitation, the granting of restricted stock or stock options
otherwise than under the Plan, and such arrangements may be either generally
applicable or applicable only in specific cases.
SECTION 17. GOVERNING LAW. This Plan and any agreements hereunder shall
be interpreted and construed in accordance with the laws of the state in which
the Company is incorporated and applicable federal law.
SECTION 18. CASHLESS EXERCISE. The Committee also may allow cashless
exercises as permitted under Federal Reserve Board's Regulation T, subject to
applicable securities law restrictions, or by any other means which the
Committee determines to be consistent with the Plan's purpose and applicable
law. The proceeds from such a payment shall be added to the general funds of
the Company and shall be used for general corporate purposes.
IN WITNESS WHEREOF, and as conclusive evidence of the adoption of the
foregoing by directors of the Company, Mail-Well, Inc. has caused these presents
to be duly executed in its name and behalf by its proper officers thereunto duly
authorized.
Mail-Well, Inc.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
ATTEST:
- ----------------------------
Secretary
[CORPORATE SEAL]
<PAGE>
EXHIBIT 4.2
MAIL-WELL, INC. 1998 INCENTIVE STOCK OPTION PLAN
<PAGE>
MAIL-WELL, INC.
1998 INCENTIVE STOCK OPTION PLAN
SECTION 1. PURPOSE OF THE PLAN. The purpose of this Mail-Well, Inc.
1998 Incentive Stock Option Plan ("Plan"), is to encourage ownership of
common stock, $.01 par value ("Common Stock"), of Mail-Well, Inc., a Colorado
corporation (the "Company"), by eligible key employees and directors of the
Company and its Affiliates (as defined below) and to provide increased
incentive for such employees and directors to render services and to exert
maximum effort for the business success of the Company. In addition, the
Company expects that the Plan will further strengthen the identification of
employees and directors with the stockholders. Certain options to be granted
under this Plan are intended to qualify as Incentive Stock Options ("ISOs")
pursuant to Section 422 of the Internal Revenue Code of 1986, as amended
("Code"), while other options granted under this Plan will be nonqualified
options which are not intended to qualify as ISOs ("Nonqualified Options"),
either or both as provided in the agreements evidencing the options as
provided in the Section 6 hereof. As used in this Plan, the term
"Affiliates" means any "parent corporation" of the Company and any
"subsidiary corporation" of the Company within the meaning of Code Sections
424(e) and (f), respectively.
SECTION 2. ADMINISTRATION OF THE PLAN.
(a) COMPOSITION OF COMMITTEE. The Plan shall be administered by the
Compensation Committee (the "Committee") comprised of two or more Directors
designated by the Board of Directors of the Company (the "Board"), which
shall also designate the Chairman of the Committee. If the Company is
governed by Rule 16b-3 promulgated by the Securities and Exchange
Commission ("Commission") pursuant to the Securities Exchange Act of 1934,
as amended ("Exchange Act"), no director shall serve as a member of the
Committee unless he is a "Non-Employee Director" within the meaning of such
Rule 16b-3.
(b) COMMITTEE ACTION. The Committee shall hold its meetings at such
times and places as it may determine. A majority of its members shall
constitute a quorum, and all determinations of the Committee shall be made
by not less than a majority of its members. Any decision or determination
reduced to writing and signed by a majority of the members shall be fully
effective as if it had been made by a majority vote of its members at a
meeting duly called and held. The Committee may designate the Secretary of
the Company or other Company employees to assist the Committee in the
administration of the Plan, and may grant authority to such persons to
execute award agreements or other documents on behalf of the Committee and
the Company. Any duly constituted committee of the Board satisfying the
qualifications of this Section 2 may be appointed as the Committee.
(c) COMMITTEE EXPENSES. All expenses and liabilities incurred by the
Committee in the administration of the Plan shall be borne by the Company.
The Committee may employ attorneys, consultants, accountants or other
persons.
SECTION 3. STOCK RESERVED FOR THE PLAN. Subject to adjustment as
provided in Section 6(k) hereof, the aggregate number of shares of Common
Stock that may be optioned under the Plan
<PAGE>
is 500,000. The shares subject to the Plan shall consist of authorized but
unissued shares of Common Stock and such number of shares shall be and is
hereby reserved for sale for such purpose. Any of such shares which may
remain unsold and which are not subject to outstanding options at the
termination of the Plan shall cease to be reserved for the purpose of the
Plan, but until termination of the Plan or the termination of the last of the
options granted under the Plan, whichever last occurs, the Company shall at
all times reserve a sufficient number of shares to meet the requirements of
the Plan. Should any option expire or be canceled prior to its exercise in
full, the shares theretofore subject to such option may again be made subject
to an option under the Plan.
SECTION 4. ELIGIBILITY. The persons eligible to participate in the
Plan as a recipient of options ("Optionee") shall include only key employees
and directors of the Company or its Affiliates at the time the option is
granted. An employee who has been granted an option hereunder may be granted
an additional option or options, if the Committee shall so determine.
SECTION 5. GRANT OF OPTIONS.
(a) COMMITTEE DISCRETION. The Committee shall have sole and absolute
discretionary authority (i) to determine, authorize, and designate those
key employees and directors of the Company or its Affiliates who are to
receive options under the Plan, (ii) to determine the number of shares of
Common Stock to be covered by such options and the terms thereof, and (iii)
to determine the type of option granted: ISO, Nonqualified Option or a
combination of ISO and Nonqualified Options; provided that a director who
is not also an employee of the Company may not receive any ISOs. The
Committee shall thereupon grant options in accordance with such
determinations as evidenced by a written option agreement. Subject to the
express provisions of the Plan, the Committee shall have discretionary
authority to prescribe, amend and rescind rules and regulations relating to
the Plan, to interpret the Plan, to prescribe and amend the terms of the
option agreements (which need not be identical) and to make all other
determinations deemed necessary or advisable for the administration of the
Plan.
(b) STOCKHOLDER APPROVAL. All options granted under this Plan are
subject to, and may not be exercised before, the approval of this Plan by
the stockholders prior to the first anniversary date of the Board meeting
held to approve the Plan, by the affirmative vote of the holders of a
majority of the outstanding shares of the Company present, or represented
by proxy, and entitled to vote thereat or by written consent in accordance
with applicable corporate law; provided that if such approval by the
stockholders of the Company is not forthcoming, all options previously
granted under this Plan shall be void.
(c) LIMITATION ON INCENTIVE STOCK OPTIONS. The aggregate fair market
value (determined in accordance with Section 6(b) of this Plan at the time
the option is granted) of the Common Stock with respect to which ISOs may
be exercisable for the first time by any Optionee during any calendar year
under all such plans of the Company and its Affiliates shall not exceed
$100,000.
SECTION 6. TERMS AND CONDITIONS. Each option granted under the Plan
shall be evidenced by an agreement, in a form approved by the Committee, which
shall be subject to the following
<PAGE>
express terms and conditions and to such other terms and conditions as the
Committee may deem appropriate.
(a) OPTION PERIOD. The Committee shall promptly notify the Optionee
of the option grant and a written agreement shall promptly be executed and
delivered by and on behalf of the Company and the Optionee, provided that
the option grant shall expire if a written agreement is not signed by said
Optionee (or his agent or attorney) and returned to the Company within 60
days from date of receipt by the Optionee of such agreement. The date of
grant shall be the date the option is actually granted by the Committee,
even though the written agreement may be executed and delivered by the
Company and the Optionee after that date. Each option agreement shall
specify the period for which the option thereunder is granted (which in no
event shall exceed ten years from the date of grant) and shall provide that
the option shall expire at the end of such period. If the original term of
an option is less than ten years from the date of grant, the option may be
amended prior to its expiration, with the approval of the Committee and the
Optionee, to extend the term so that the term as amended is not more than
ten years from the date of grant. However, in the case of an ISO granted
to an individual who, at the time of grant, owns stock possessing more than
10 percent of the total combined voting power of all classes of stock of
the Company or its Affiliate ("Ten Percent Stockholder"), such period shall
not exceed five years from the date of grant.
(b) OPTION PRICE. The purchase price of each share of Common Stock
subject to each option granted pursuant to the Plan shall be determined by
the Committee at the time the option is granted and, in the case of ISOs,
shall not be less than 100% of the fair market value of a share of Common
Stock on the date the option is granted, as determined by the Committee.
In the case of an ISO granted to a Ten Percent Stockholder, the option
price shall not be less than 110% of the fair market value of a share of
Common Stock on the date the option is granted. The purchase price of each
share of Common Stock subject to a Nonqualified Option under this Plan
shall be determined by the Committee prior to granting the option. The
Committee shall set the purchase price for each share subject to a
Nonqualified Option at such price as the Committee in its sole discretion
shall determine, provided that the purchase price of each share of Common
Stock subject to a Nonqualified Option shall not be greater than the fair
market value of a share of Common Stock on the date the option is granted
as determined by the Committee.
For all purposes under the Plan, the fair market value of a share of
Common Stock on a particular date shall be equal to the mean of the
reported high and low sales prices of the Common Stock on the New York
Stock Exchange Composite Tape on that date, or if no prices are reported on
that date, on the last preceding date on which such prices of the Common
Stock are so reported. If the Common Stock is not traded on the New York
Stock Exchange at the time a determination of its fair market value is
required to be made hereunder, its fair market value shall be deemed to be
equal to the average between the closing bid and ask prices of the Common
Stock on the most recent date the Common Stock was publicly traded.
<PAGE>
In the event the Common Stock is not publicly traded at the time a
determination of its value is required to be made hereunder, the
determination of its fair market value shall be made by the Committee in
such manner as it deems appropriate.
(c) EXERCISE PERIOD. The Committee may provide in the option
agreement that an option may be exercised in whole, immediately, or is to
be exercisable in increments. However, no portion of any option may be
exercisable by an Optionee prior to the approval of the Plan by the
Stockholders of the Company.
(d) PROCEDURE FOR EXERCISE. Options shall be exercised by the
delivery of written notice to the Secretary of the Company setting forth
the number of shares with respect to which the option is being exercised.
Such notice shall be accompanied by cash or cashier's check, bank draft,
postal or express money order payable to the order of the Company, or at
the option of the Committee, in Common Stock theretofore owned by such
Optionee (or any combination of cash and Common Stock). Notice may also be
delivered by fax or telecopy provided that the purchase price of such
shares is delivered to the Company via wire transfer on the same day the
fax is received by the Company. The notice shall specify the address to
which the certificates for such shares are to be mailed. An Optionee shall
be deemed to be a stockholder with respect to shares covered by an option
on the date the Company receives such written notice and such option
payment.
As promptly as practicable after receipt of such written notification
and payment, the Company shall deliver to the Optionee certificates for the
number of shares with respect to which such option has been so exercised,
issued in the Optionee's name or such other name as Optionee directs;
provided, however, that such delivery shall be deemed effected for all
purposes when a stock transfer agent of the Company shall have deposited
such certificates in the United States mail, addressed to the Optionee at
the address specified pursuant to this Section 6(d).
(e) TERMINATION OF EMPLOYMENT. If an employee to whom an option is
granted ceases to be employed by the Company for any reason other than
death or disability or if a director to whom an option is granted ceases to
serve on the Board for any reason other than death or disability, any
option which is exercisable on the date of such termination of employment
or cessation from the Board shall expire upon such date of such termination
of employment or cessation from the Board; provided, however, the
Committee, in its sole discretion, may allow an Optionee to exercise all or
a portion of the Options granted but unexercised for a period of time after
the Optionee's termination of employment or cessation from the Board,
provided that in no event shall ISOs be exercised after the date three
months from the effective date of the termination of employment and
provided further in no event may any option be exercised after its
expiration under the terms of the option agreement.
(f) DISABILITY OR DEATH OF OPTIONEE. In the event of the
determination of disability or death of an Optionee under the Plan while he
is employed by the Company or while he serves on the Board, the options
previously granted to him may be exercised (to the extent he would have
been entitled to do so at the date of the determination of disability or
death) at any time and from time to time, within a three-month period after
such determination of disability or death, by the former employee or
director, the guardian of his estate, the executor or
<PAGE>
administrator of his estate or by the person or persons to whom his
rights under the option shall pass by will or the laws of descent and
distribution, but in no event may the option be exercised after its
expiration under the terms of the option agreement. An Optionee shall
be deemed to be disabled if, in the opinion of a physician selected by
the Committee, he is incapable of performing services for the Company
of the kind he was performing at the time the disability occurred by
reason of any medically determinable physical or mental impairment
which can be expected to result in death or to be of long, continued
and indefinite duration. The date of determination of disability for
purposes hereof shall be the date of such determination by such
physician. The Committee, in its sole discretion, may allow an
Optionee to exercise all or a portion of the Options granted but
unexercised for a longer period than three months after disability or
death, provided that in no event shall ISOs be exercised after the date
12 months from the effective date of the termination of employment due
to disability or the date 18 months from the effective date of
termination of employment due to death (or 18 months after the death of
the optionee within 12 months of the termination of such optionee's
employment due to disability).
(g) ASSIGNABILITY. An option shall not be assignable or otherwise
transferable except by will or by the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined in the Code or
Title I of the Employee Retirement Income Security Act, as amended, or the
rules thereunder. During the lifetime of an Optionee, an option shall be
exercisable only by him.
(h) INCENTIVE STOCK OPTIONS. Each option agreement may contain such
terms and provisions as the Committee may determine to be necessary or
desirable in order to qualify an option designated as an incentive stock
option under Section 422 of the Code.
(i) NO RIGHTS AS STOCKHOLDER. No Optionee shall have any rights as a
stockholder with respect to shares covered by an option until the option is
exercised by the written notice and accompanied by payment as provided in
clause (d) above.
(j) EXTRAORDINARY CORPORATE TRANSACTIONS. The existence of
outstanding options shall not affect in any way the right or power of the
Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations, exchanges, or other changes in the
Company's capital structure or its business, or any merger or consolidation
of the Company, or any issuance of Common Stock or other securities or
subscription rights thereto, or any issuance of bonds, debentures,
preferred or prior preference stock ahead of or affecting the Common Stock
or the rights thereof, or the dissolution or liquidation of the Company, or
any sale or transfer of all or any part of its assets or business, or any
other corporate act or proceeding, whether of a similar character or
otherwise. If the Company recapitalizes or otherwise changes its capital
structure, or merges, consolidates, sells all of its assets or dissolves
(each of the foregoing a "Fundamental Change"), then thereafter upon any
exercise of an option theretofore granted the Optionee shall be entitled to
purchase under such option, in lieu of the number of shares of Common Stock
as to which option shall then be exercisable, the number and class of
shares of stock and securities to which the Optionee would have been
entitled pursuant to the terms of the Fundamental Change if, immediately
prior to such Fundamental Change, the Optionee had been the holder of
record of the number of shares of Common Stock as to which such option is
then exercisable.
<PAGE>
(k) CHANGES IN COMPANY'S CAPITAL STRUCTURE. If the outstanding
shares of Common Stock or other securities of the Company, or both, for
which the option is then exercisable shall at any time be changed or
exchanged by declaration of a stock dividend, stock split, or combination
of shares, the number and kind of shares of Common Stock or other
securities which are subject to the Plan or subject to any options
theretofore granted, and the option prices, shall be appropriately and
equitably adjusted so as to maintain the proportionate number of shares or
other securities without changing the aggregate option price.
(l) ACCELERATION OF OPTIONS. Except as hereinbefore expressly
provided, (i) the issuance by the Company of shares of stock of any class
of securities convertible into shares of stock of any class, for cash,
property, labor or services, upon direct sale, upon the exercise of rights
or warrants to subscribe therefor, or upon conversion of shares or
obligations of the Company convertible into such shares or other
securities, (ii) the payment of a dividend in property other than Common
Stock or (iii) the occurrence of any similar transaction, and in any case
whether or not for fair value, shall not affect, and no adjustment by
reason thereof shall be made with respect to, the number of shares of
Common Stock subject to options theretofore granted or the purchase price
per share, unless the Committee shall determine in its sole discretion that
an adjustment is necessary to provide equitable treatment to Optionee.
Notwithstanding anything to the contrary contained in this Plan, the
Committee may in its sole discretion accelerate the time at which any
option may be exercised, including, but not limited to, upon the occurrence
of the events specified in this Section 6, and is authorized at any time
(with the consent of the Optionee) to purchase options pursuant to Section
7.
(m) STOCKHOLDERS AGREEMENT. The Committee shall provide in the
option agreement that prior to receiving any shares of Common Stock or
other securities on the exercise of the option, the Optionee (or the
Optionee's representative upon the Optionee's death) shall be required to
execute the American Mail-Well Employee Stockholders Agreement, or the
Company's Stockholders Agreement, whichever the Committee deems
appropriate.
(n) CHANGE OF CONTROL. In the event that (i) there is a proposed
action whereby the Company would not be the surviving entity in any merger
or consolidation (or survives only as a subsidiary of another entity) other
than a merger for the sole purpose of changing the Company's state of
incorporation, (ii) there is a proposed action whereby the Company would
sell all or substantially all of its assets to any person or entity (other
than a wholly-owned subsidiary), (iii) any person or entity (including a
"group" as contemplated by Section 13(d)(3) of the Exchange Act), acquires
or gains ownership or control of (including, without limitation, power to
vote) more than 50% of the outstanding shares of Common Stock, (iv) there
is a proposed action whereby the Company would be dissolved and liquidated,
or (v) as a result of or in connection with a contested election of
directors, the persons who were directors of the Company before such
election shall cease to constitute a majority of the Board (each such event
in clauses (i) through (v) above is referred to herein as a "Corporate
Change"), all Optionees hereunder shall be given notice of such Corporate
Change and shall have a period of thirty (30) days thereafter to exercise
their options after receipt of such notice whether such options had vested
in accordance with their terms or not.
SECTION 7. RELINQUISHMENT OF OPTIONS.
<PAGE>
(a) The Committee, in granting options hereunder, shall have
discretion to determine whether or not options shall include a right of
relinquishment as hereinafter provided by this Section 7. The Committee
shall also have discretion to determine whether an option agreement
evidencing an option initially granted by the Committee without a right of
relinquishment shall be amended or supplemented to include such a right of
relinquishment. Neither the Committee nor the Company shall be under any
obligation or incur any liability to any person by reason of the
Committee's refusal to grant or include a right of relinquishment in any
option granted hereunder or in any option agreement evidencing the same.
Subject to the Committee's determination in any case that the grant by it
of a right of relinquishment is consistent with Paragraph 1 hereof, any
option granted under this Plan, and the option agreement evidencing such
option, may provide:
i) That the Optionee, or his heirs or other legal
representatives to the extent entitled to exercise the option under
the terms thereof, in lieu of purchasing the entire number of shares
subject to purchase thereunder, shall have the right to relinquish all
or any part of the then unexercised portion of the option (to the
extent then exercisable) for a number of shares of Common Stock, for
an amount of cash or for a combination of Common Stock and cash to be
determined in accordance with the following provisions of this clause
(i):
a) The written notice of exercise of such right of
relinquishment shall state the percentage, if any, of the
Appreciated Value (as defined below) that the Optionee elects to
receive in cash ("Cash Percentage"), such Cash Percentage to be
in increments of 10% of such Appreciated Value up to 100%
thereof;
b) The number of shares of Common Stock, if any, issuable
pursuant to such relinquishment shall be the number of such
shares, rounded to the next greater number of full shares, as
shall be equal to the quotient obtained by dividing (A) the
difference between (I) the Appreciated Value and (II) the result
obtained by multiplying the Appreciated Value and the Cash
Percentage by (B) the then current market value per share of
Common Stock;
c) The amount of cash payable pursuant to such
relinquishment shall be an amount equal to the Appreciated Value
less the aggregate current market value of the Common Stock
issued pursuant to such relinquishment, if any, which cash shall
be paid by the Company subject to such conditions as are deemed
advisable by the Committee to permit compliance by the Company
with the withholding provisions applicable to employers under the
Code and any applicable state income tax laws;
d) For the purpose of this clause (i), "Appreciated Value"
means the excess of (x) the aggregate current market value of the
shares of Common Stock covered by the option or the portion
thereof to be relinquished over (y) the aggregate purchase price
for such shares specified in such option;
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ii) That such right of relinquishment may be exercised only upon
receipt by the Company of a written notice of such relinquishment
which shall be dated the date of election to make such relinquishment;
and that, for the purposes of this Plan, such date of election shall
be deemed to be the date when such notice is sent by registered or
certified mail, or when receipt is acknowledged by the Company, if
mailed by other than registered or certified mail or if delivered by
hand or by any telegraphic communications equipment of the sender or
otherwise delivered; provided, that, in the event the method just
described for determining such date of election shall not be or remain
consistent with the provisions of Section 16(b) of the Exchange Act or
the rules and regulations adopted by the Commission thereunder, as
presently existing or as may be hereafter amended, which regulations
exempt from the operation of Section 16(b) of the Exchange Act in
whole or in part any such relinquishment transaction, then such date
of election shall be determined by such other method consistent with
Section 16(b) of the Exchange Act or the rules and regulations
thereunder as the Committee shall in its discretion select and apply;
iii) That the "current market value" of a share of Common Stock
on a particular date shall be deemed to be its fair market value on
that date as determined in accordance with Paragraph 6(b); and
iv) That the option, or any portion thereof, may be relinquished
only to the extent that (A) it is exercisable on the date written
notice of relinquishment is received by the Company, (B) the
Committee, subject to the provisions of Paragraph 7(b), shall consent
to the election of the holder to relinquish such option in whole or in
part for cash as set forth in such written notice of relinquishment
and (C) the holder of such option pays, or makes provision
satisfactory to the Company for the payment of, any taxes which the
Company is obligated to collect with respect to such relinquishment.
(b) The Committee shall have sole discretion to consent to or
disapprove, and neither the Committee nor the Company shall be under any
liability by reason of the Committee's disapproval of, any election by a
holder of an option to relinquish such option in whole or in part for cash
as provided in Paragraph 7(a), except that no such consent to or approval
of a relinquishment for cash shall be required under the following
circumstances. Each Optionee who is subject to the short-swing profits
recapture provisions of Section 16(b) of the Exchange Act ("Covered
Optionee") shall be entitled to receive payment only in cash when options
are relinquished during any window period commencing on the third business
day following the Company's release of a quarterly or annual summary
statement of sales and earnings and ending on the twelfth business day
following such release ("Window Period"); provided, however, that payment
shall be so made in cash only in respect of 50% of the options covered by
any stock option agreement. A Covered Optionee shall be entitled to
receive payment only in shares of Common Stock upon (a) the relinquishment
of options outside a Window Period and (b) the relinquishment of options
during a Window Period once such Optionee has received payment in cash for
the relinquishment of 50% of the options covered by any stock option
agreement.
<PAGE>
(c) The Committee, in granting options hereunder, shall have
discretion to determine the terms upon which such options shall be
relinquishable, subject to the applicable provisions of this Plan, and
including such provisions as are deemed advisable to permit the exemption
from the operation from Section 16(b) of the Exchange Act of any such
relinquishment transaction, and options outstanding, and option agreements
evidencing such options, may be amended, if necessary, to permit such
exemption. If an option is relinquished, such option shall be deemed to
have been exercised to the extent of the number of shares of Common Stock
covered by the option or part thereof which is relinquished, and no further
options may be granted covering such shares of Common Stock.
(d) Neither any option nor any right to relinquish the same to the
Company as contemplated by this Paragraph 7 shall be assignable or
otherwise transferable except by will or the laws of descent and
distribution or pursuant to a qualified domestic relations order as defined
in the Code or Title I of the Employee Retirement Income Security Act, as
amended, or the rules thereunder.
(e) Except as provided in Section 7(f) below, no right of
relinquishment may be exercised within the first six months after the
initial award of any Option containing, or the amendment or supplementation
of any existing option agreement adding, the right of relinquishment.
(f) No right of relinquishment may be exercised after the initial
award of any option containing, or the amendment or supplementation of any
existing option agreement adding the right of relinquishment, unless such
right of relinquishment is effective upon the Optionee's death, disability
or termination of his relationship with the Company and the payment upon
the exercise of such right is only in cash.
SECTION 8. AMENDMENTS OR TERMINATION. The Board may amend, alter or
discontinue the Plan, but no amendment or alteration shall be made which
would impair the rights of any Optionee, without his consent, under any
option theretofore granted, or which, without the approval of the
stockholders, would: (i) except as is provided in Section 6(k) of the Plan,
increase the total number of shares reserved for the purposes of the Plan,
(ii) change the class of persons eligible to participate in the Plan as
provided in Section 4 of the Plan, (iii) extend the applicable maximum option
period provided for in Section 6(a) of the Plan, (iv) extend the expiration
date of this Plan set forth in Section 14 of the Plan, (v) except as provided
in Section 6(k) of the Plan, decrease to any extent the option price of any
option granted under the Plan or (vi) withdraw the administration of the Plan
from the Committee.
SECTION 9. COMPLIANCE WITH OTHER LAWS AND REGULATIONS. The Plan, the
grant and exercise of options thereunder, and the obligation of the Company
to sell and deliver shares under such options, shall be subject to all
applicable federal and state laws, rules and regulations and to such
approvals by any governmental or regulatory agency as may be required. The
Company shall not be required to issue or deliver any certificates for shares
of Common Stock prior to the completion of any registration or qualification
of such shares under any federal or state law or issuance of any ruling or
regulation of any government body which the Company shall, in its sole
discretion, determine to be necessary or advisable. Any adjustments provided
for in subparagraphs 6(j), (k) and (l) shall be subject to any shareholder
action required by applicable corporate law.
<PAGE>
SECTION 10. PURCHASE FOR INVESTMENT. Unless the options and shares of
Common Stock covered by this Plan have been registered under the Securities
Act of 1933, as amended, or the Company has determined that such registration
is unnecessary, each person exercising an option under this Plan may be
required by the Company to give a representation in writing that he is
acquiring such shares for his own account for investment and not with a view
to, or for sale in connection with, the distribution of any part thereof.
SECTION 11. TAXES.
(a) The Company may make such provisions as it may deem appropriate
for the withholding of any taxes which it determines is required in
connection with any options granted under this Plan.
(b) Notwithstanding the terms of Paragraph 11(a), any Optionee may
pay all or any portion of the taxes required to be withheld by the Company
or paid by him in connection with the exercise of a nonqualified option by
electing to have the Company withhold shares of Common Stock, or by
delivering previously owned shares of Common Stock, having a fair market
value, determined in accordance with Paragraph 6(b), equal to the amount
required to be withheld or paid. An Optionee must make the foregoing
election on or before the date that the amount of tax to be withheld is
determined ("Tax Date"). All such elections are irrevocable and subject to
disapproval by the Committee.
SECTION 12. REPLACEMENT OF OPTIONS. The Committee from time to time
may permit an Optionee under the Plan to surrender for cancellation any
unexercised outstanding option and receive from the Company in exchange an
option for such number of shares of Common Stock as may be designated by the
Committee. The Committee may, with the consent of the person entitled to
exercise any outstanding option, amend such option, including reducing the
exercise price of any option to not less than the fair market value of the
Common Stock at the time of the amendment and extending the term thereof.
SECTION 13. NO RIGHT TO COMPANY EMPLOYMENT. Nothing in this Plan or
as a result of any option granted pursuant to this Plan shall confer on any
individual any right to continue in the employ of the Company or interfere in
any way with the right of the Company to terminate an individual's employment
at any time. The option agreements may contain such provisions as the
Committee may approve with reference to the effect of approved leaves of
absence.
SECTION 14. LIABILITY OF COMPANY. The Company and any Affiliate which
is in existence or hereafter comes into existence shall not be liable to an
Optionee or other persons as to:
(a) THE NON-ISSUANCE OF SHARES. The non-issuance or sale of
shares as to which the Company has been unable to obtain from any
regulatory body having jurisdiction with the authority deemed by the
Company's counsel to be necessary to the lawful issuance and sale of
any shares hereunder; and
(b) TAX CONSEQUENCES. Any tax consequence expected, but not
realized, by any Optionee or other person due to the exercise of any
option granted hereunder.
<PAGE>
SECTION 15. EFFECTIVENESS AND EXPIRATION OF PLAN. The Plan shall be
effective on the date the Board adopts the Plan. If the stockholders of the
Company fail to approve the Plan within twelve months of the date the Board
approved the Plan, the Plan shall terminate and all options previously
granted under the Plan shall become void and of no effect. The Plan shall
expire ten years after the date the Board approves the Plan and thereafter no
option shall be granted pursuant to the Plan.
SECTION 16. NON-EXCLUSIVITY OF THE PLAN. Neither the adoption by the
Board nor the submission of the Plan to the stockholders of the Company for
approval shall be construed as creating any limitations on the power of the
Board to adopt such other incentive arrangements as it may deem desirable,
including without limitation, the granting of restricted stock or stock
options otherwise than under the Plan, and such arrangements may be either
generally applicable or applicable only in specific cases.
SECTION 17. GOVERNING LAW. This Plan and any agreements hereunder
shall be interpreted and construed in accordance with the laws of the state
in which the Company is incorporated and applicable federal law.
IN WITNESS WHEREOF, and as conclusive evidence of the adoption of the
foregoing by directors of the Company, Mail-Well, Inc. has caused these
presents to be duly executed in its name and behalf by its proper officers
thereunto duly authorized on February 4, 1998.
ATTEST: Mail-Well, Inc.
By:
- --------------------------- ---------------------------
Secretary Name:
---------------------------
Title:
---------------------------
[CORPORATE SEAL]
<PAGE>
EXHIBIT 4.3
MAIL-WELL, INC. ALLIED ACQUISITION NON-QUALIFIED STOCK OPTION PLAN
<PAGE>
MAIL-WELL, INC.
ALLIED ACQUISITION NON-QUALIFIED STOCK OPTION PLAN
SECTION 1. PURPOSE OF THE PLAN. The purpose of the Allied Acquisition
Non-Qualified Stock Option Plan, ("Plan") is to encourage ownership of common
stock, $.01 par value ("Common Stock"), of Mail-Well, Inc., a Colorado
corporation (the "Company"), by eligible key employees of the Company and its
Affiliates (as defined below), who were formerly employees of The Allied
Printers prior to the acquisition of Allied by the Company, pursuant to that
certain Stock Purchase Agreement dated July 11, 1997, and to provide increased
incentive for such employees to render services and to exert maximum effort for
the business success of the Company. In addition, the Company expects that the
Plan will further strengthen the identification of employees with the
stockholders. Options to be granted under this Plan are not intended to qualify
as Incentive Stock Options pursuant to Section 422 of the Internal Revenue Code
of 1986, as amended ("Code"). As used in this Plan, the term "Affiliates" means
any "parent corporation" of the Company and any "subsidiary corporation" of the
Company within the meaning of Code Sections 424(e) and (f), respectively.
SECTION 2. ADMINISTRATION OF THE PLAN.
(a) COMPOSITION OF COMMITTEE. The Plan shall be administered by the
Compensation Committee (the "Committee") comprised of two or more directors
designated by the Board of Directors of the Company (the "Board"), which
shall also designate the Chairman of the Committee. No director shall
serve as a member of the Committee unless he or she is a "Non-Employee
Director" within the meaning of such Rule 16b-3 under the Securities
Exchange Act of 1934, as amended ("Exchange Act").
(b) COMMITTEE ACTION. The Committee shall hold its meetings at such
times and places as it may determine. A majority of its members shall
constitute a quorum, and all determinations of the Committee shall be made
by not less than a majority of its members. Any decision or determination
reduced to writing and signed by a majority of the members shall be fully
effective as if it had been made by a majority vote of its members at a
meeting duly called and held. The Committee may designate the Vice
President-General Counsel and Secretary of the Company or other Company
employees to assist the Committee in the administration of the Plan, and
may grant authority to such persons to execute award agreements or other
documents on behalf of the Committee and the Company. Any duly constituted
committee of the Board satisfying the qualifications of this Section 2 may
be appointed as the Committee.
(c) COMMITTEE EXPENSES. All expenses and liabilities incurred by the
Committee in the administration of the Plan shall be borne by the Company.
The Committee may employ attorneys, consultants, accountants or other
persons.
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SECTION 3. STOCK RESERVED FOR THE PLAN. Subject to adjustment as
provided in Section 6(h) hereof, the aggregate number of shares of Common Stock
that may be optioned under the Plan is 62,400. The shares subject to the Plan
shall consist of authorized but unissued shares of Common Stock and such number
of shares shall be and is hereby reserved for sale for such purpose. Any of
such shares which may remain unsold and which are not subject to outstanding
options at the termination of the Plan shall cease to be reserved for the
purpose of the Plan, but until termination of the Plan or the termination of the
last of the options granted under the Plan, whichever last occurs, the Company
shall at all times reserve a sufficient number of shares to meet the
requirements of the Plan. Should any option expire or be canceled prior to its
exercise in full, the shares theretofore subject to such option may again be
made subject to an option under the Plan.
SECTION 4. ELIGIBILITY. The persons eligible to participate in the
Plan as a recipient of options ("Optionee") shall include only key employees of
the Company or its Affiliates at the time the option is granted. An employee
who has been granted an option hereunder may be granted an additional option or
options, if the Committee shall so determine.
SECTION 5. GRANT OF OPTIONS. The Committee shall have sole and
absolute discretionary authority (i) to determine, authorize, and designate
those key employees of the Company or its Affiliates who are to receive options
under the Plan, (ii) to determine the number of shares of Common Stock to be
covered by such options, (iii) to determine the exercise price for options
granted under the Plan, and (iv) to determine the other terms of such options
and the conditions for exercise thereof. The Committee shall thereupon grant
options in accordance with such determinations and such options shall be
evidenced by a written option agreement. Subject to the express provisions of
the Plan, the Committee shall have discretionary authority to prescribe, amend
and rescind rules and regulations relating to the Plan, to interpret the Plan,
to prescribe and amend the terms of the option agreements (which need not be
identical) and to make all other determinations deemed necessary or advisable
for the administration of the Plan.
SECTION 6. TERMS AND CONDITIONS. Each option granted under the Plan
shall be evidenced by an agreement, in a form approved by the Committee, which
shall be subject to the following express terms and conditions and to such other
terms and conditions as the Committee may deem appropriate.
(a) OPTION PERIOD. The Committee shall notify the Optionee of the
option grant and a written agreement shall promptly be executed and
delivered by and on behalf of the Company and the Optionee. The date of
grant shall be the date the option is actually granted by the Committee,
even though the written agreement may be executed and delivered by the
Company and the Optionee after that date. Each option agreement shall
specify the period for which the option thereunder is granted (which in no
event shall exceed ten years from the date of grant) and shall provide that
the option shall expire at the end of such period. If the original term of
an option is less than ten years from the date of grant, the option may be
amended prior to its expiration, with the approval of the
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<PAGE>
Committee and the Optionee, to extend the term so that the term as amended
is not more than ten years from the date of grant.
(b) EXERCISE PERIOD. The Committee may provide in the option
agreement that an option may be exercised in whole, immediately, or is to
be exercisable in increments.
(c) PROCEDURE FOR EXERCISE. Options shall be exercised by the
delivery of written notice to the Secretary of the Company setting forth
the number of shares with respect to which the option is being exercised.
Such notice shall be accompanied by cash or cashier's check, bank draft,
postal or express money order payable to the order of the Company, or at
the option of the Committee, in Common Stock theretofore owned by such
Optionee (or any combination of cash and Common Stock). Notice may also be
delivered by fax or telecopy provided that the purchase price of such
shares is delivered to the Company via wire transfer on the same day the
fax is received by the Company. The notice shall specify the address to
which the certificates for such shares are to be mailed. An Optionee shall
be deemed to be a stockholder with respect to shares covered by an option
on the date the Company receives such written notice and such option
payment.
As promptly as practicable after receipt of such written notification
and payment, the Company shall deliver to the Optionee certificates for the
number of shares with respect to which such option has been so exercised,
issued in the Optionee's name or such other name as Optionee directs;
provided, however, that such delivery shall be deemed effected for all
purposes when a stock transfer agent of the Company shall have deposited
such certificates in the United States mail, addressed to the Optionee at
the address specified pursuant to this Section 6(c).
(d) TERMINATION OF EMPLOYMENT, DEATH OR DISABILITY. If Optionee's
employment with the Company or its Affiliates is terminated during the
Option Period by reason of Optionee's voluntary resignation or termination
for "Cause" (as defined below), Options granted to him or her which are not
exercisable on such date thereupon terminate. Any Options which are
exercisable on the date of Optionee's voluntary resignation or termination
of employment for cause which have not been exercised within thirty (30)
days of such voluntary resignation or termination for Cause shall expire
and be of no force or effect. "Cause" means (i) gross or repeated failure
by Optionee to substantially perform his or her duties hereunder which
persists thirty (30) days after written notice thereof is delivered to
Optionee by the Company (or any Affiliate); (ii) the existence of legal
restrictions on the ability of Optionee to substantially perform his or her
duties hereunder; (iii) misappropriation or embezzlement of corporate
funds; (iv) conviction of a felony involving moral turpitude or which in
the opinion of the Board of Directors brings Optionee into disrepute or
causes material harm to the Company's (or any Affiliate's) business,
customer relations, financial condition or prospects; or (v) material
breach of the provisions of any covenant not to compete or confidentiality
agreement entered into between Optionee and the Company (or any Affiliate).
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If Optionee's employment with the Company or its Affiliates is
terminated involuntarily other than for Cause, or by reason of his or her
disability or death, all Options granted pursuant to this Plan shall be
thereafter exercisable by Optionee, his or her executor or administrator,
or the person or persons to whom his or her rights under this Option
Agreement shall pass by will or by the laws of descent and distribution, as
the case may be, for a period of ninety (90) days from the date of
Optionee's involuntary termination other than for Cause, or by reason of
disability or death, whether such Options had vested in accordance with
their terms or not, unless this Option Agreement should earlier terminate
in accordance with its other terms. Optionee shall be deemed to be
disabled if, in the opinion of a physician selected by the Committee, he or
she is incapable of performing services for the Company by reason of any
medically determinable physical or mental impairment which can be expected
to result in death or to be of long, continued and indefinite duration.
(e) ASSIGNABILITY. An option shall not be assignable or otherwise
transferable except by will or by the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined in the Code or
Title I of the Employee Retirement Income Security Act, as amended, or the
rules thereunder. During the lifetime of an Optionee, an option shall be
exercisable only by the Optionee.
(f) NO RIGHTS AS STOCKHOLDER. No Optionee shall have any rights as a
stockholder with respect to shares covered by an option until the option is
exercised by the written notice and accompanied by payment as provided in
clause (c) above.
(g) EXTRAORDINARY CORPORATE TRANSACTIONS. The existence of
outstanding options shall not affect in any way the right or power of the
Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations, exchanges, or other changes in the
Company's capital structure or its business, or any merger or consolidation
of the Company, or any issuance of Common Stock or other securities or
subscription rights thereto, or any issuance of bonds, debentures,
preferred or prior preference stock ahead of or affecting the Common Stock
or the rights thereof, or the dissolution or liquidation of the Company, or
any sale or transfer of all or any part of its assets or business, or any
other corporate act or proceeding, whether of a similar character or
otherwise. If the Company recapitalizes or otherwise changes its capital
structure, or merges or consolidates, (each of the foregoing a "Fundamental
Change"), then thereafter upon any exercise of an option theretofore
granted the Optionee shall be entitled to purchase under such option, in
lieu of the number of shares of Common Stock as to which option shall then
be exercisable, the number and class of shares of stock and securities to
which the Optionee would have been entitled pursuant to the terms of the
Fundamental Change if, immediately prior to such Fundamental Change, the
Optionee had been the holder of record of the number of shares of Common
Stock as to which such option is then exercisable.
(h) CHANGES IN COMPANY'S CAPITAL STRUCTURE. If the outstanding
shares of Common Stock or other securities of the Company, or both, for
which the option is then exercisable shall at any time be changed or
exchanged by declaration of a stock dividend,
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<PAGE>
stock split, or combination of shares, the number and kind of shares of
Common Stock or other securities which are subject to the Plan or
subject to any options theretofore granted, and the option prices, shall
be appropriately and equitably adjusted so as to maintain the
proportionate number of shares or other securities without changing the
aggregate option price.
(i) ACCELERATION OF OPTIONS. Except as hereinbefore expressly
provided, (i) the issuance by the Company of shares of stock of any class
of securities convertible into shares of stock of any class, for cash,
property, labor or services, upon direct sale, upon the exercise of rights
or warrants to subscribe therefor, or upon conversion of shares or
obligations of the Company convertible into such shares or other
securities, (ii) the payment of a dividend in property other than Common
Stock or (iii) the occurrence of any similar transaction, and in any case
whether or not for fair value, shall not affect, and no adjustment by
reason thereof shall be made with respect to, the number of shares of
Common Stock subject to options theretofore granted or the purchase price
per share, unless the Committee shall determine in its sole discretion that
an adjustment is necessary to provide equitable treatment to Optionee.
Notwithstanding anything to the contrary contained in this Plan, the
Committee may in its sole discretion accelerate the time at which any
option may be exercised, including, but not limited to, upon the occurrence
of the events specified in this Section 6.
(j) CHANGE OF CONTROL. In the event that (i) there is a proposed
action whereby the Company would not be the surviving entity in any merger
or consolidation (or survives only as a subsidiary of another entity) other
than a merger for the sole purpose of changing the Company's state of
incorporation, (ii) there is a proposed action whereby the Company would
sell all or substantially all of its assets to any person or entity (other
than a wholly-owned subsidiary), (iii) any person or entity (including a
"group" as contemplated by Section 13(d)(3) of the Exchange Act), acquires
or gains ownership or control of (including, without limitation, power to
vote) more than 50% of the outstanding shares of Common Stock, (iv) there
is a proposed action whereby the Company would be dissolved and liquidated,
or (v) as a result of or in connection with a contested election of
directors, the persons who were directors of the Company before such
election shall cease to constitute a majority of the Board (each such event
in clauses (i) through (v) above is referred to herein as a "Corporate
Change"), all Optionees hereunder shall be given notice of such Corporate
Change and shall have a period of thirty (30) days thereafter to exercise
their options after receipt of such notice whether such options had vested
in accordance with their terms or not.
SECTION 7. AMENDMENTS OR TERMINATION. The Board may amend, alter or
discontinue the Plan, but no amendment or alteration shall be made which would
impair the rights of any Optionee, without his or her consent.
SECTION 8. COMPLIANCE WITH OTHER LAWS AND REGULATIONS. The Plan, the
grant and exercise of options thereunder, and the obligation of the Company to
sell and deliver shares under such options, shall be subject to all applicable
federal and state laws, rules and regulations and to such
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approvals by any governmental or regulatory agency as may be required. The
Company shall not be required to issue or deliver any certificates for shares
of Common Stock prior to the completion of any registration or qualification
of such shares under any federal or state law or issuance of any ruling or
regulation of any government body which the Company shall, in its sole
discretion, determine to be necessary or advisable.
SECTION 9. PURCHASE FOR INVESTMENT. Unless the options and shares of
Common Stock covered by this Plan have been registered under the Securities Act
of 1933, as amended, or the Company has determined that such registration is
unnecessary, each person exercising an option under this Plan may be required by
the Company to give a representation in writing that he or she is acquiring such
shares for his or her own account for investment and not with a view to, or for
sale in connection with, the distribution of any part thereof.
SECTION 10. TAXES.
(a) The Company may make such provisions as it may deem appropriate
for the withholding of any taxes which it determines is required in
connection with any options granted under this Plan.
(b) Notwithstanding the terms of Section 10(a), any Optionee may pay
all or any portion of the taxes required to be withheld by the Company or
paid by him or her in connection with the exercise of a nonqualified option
by electing to have the Company withhold shares of Common Stock, or by
delivering previously owned shares of Common Stock, having a current market
value, determined in accordance with Section 7(a)(iii), equal to the amount
required to be withheld or paid. An Optionee must make the foregoing
election on or before the date that the amount of tax to be withheld is
determined ("Tax Date"). All such elections are irrevocable and subject to
disapproval by the Committee.
SECTION 11. REPLACEMENT OF OPTIONS. The Committee from time to time may
permit an Optionee under the Plan to surrender for cancellation any unexercised
outstanding option and receive from the Company in exchange an option for such
number of shares of Common Stock as may be designated by the Committee. The
Committee may, with the consent of the person entitled to exercise any
outstanding option, amend such option, including reducing the exercise price of
any option to not less than the fair market value of the Common Stock at the
time of the amendment and extending the term thereof.
SECTION 12. NO RIGHT TO COMPANY EMPLOYMENT. Nothing in this Plan or as
a result of any option granted pursuant to this Plan shall confer on any
individual any right to continue in the employ of the Company or interfere in
any way with the right of the Company to terminate an individual's employment at
any time, nor shall anything contained herein be construed or interpreted to
limit the "employment-at-will" relationship between the Optionee and the
Company. The option agreements may contain such provisions as the Committee may
approve with reference to the effect of approved leaves of absence.
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SECTION 13. LIABILITY OF COMPANY. The Company and any Affiliate which
is in existence or hereafter comes into existence shall not be liable to an
Optionee or other persons as to:
(a) THE NON-ISSUANCE OF SHARES. The non-issuance or sale of shares
as to which the Company has been unable to obtain from any regulatory body
having jurisdiction with the authority deemed by the Company's counsel to
be necessary to the lawful issuance and sale of any shares hereunder; and
(b) TAX CONSEQUENCES. Any tax consequence expected, but not
realized, by any Optionee or other person due to the exercise of any option
granted hereunder.
SECTION 14. EFFECTIVENESS AND EXPIRATION OF PLAN. The Plan shall be
effective as of July 11, 1997.
SECTION 15. NON-EXCLUSIVITY OF THE PLAN. Neither the adoption by the
Board nor the submission of the Plan to the stockholders of the Company for
approval shall be construed as creating any limitations on the power of the
Board to adopt such other incentive arrangements as it may deem desirable,
including without limitation, the granting of restricted stock or stock options
otherwise than under the Plan, and such arrangements may be either generally
applicable or applicable only in specific cases.
SECTION 16. GOVERNING LAW. This Plan and any agreements hereunder shall
be interpreted and construed in accordance with the laws of the state in which
the Company is incorporated and applicable federal law.
SECTION 17. CASHLESS EXERCISE. The Committee also may allow cashless
exercises as permitted under Federal Reserve Board's Regulation T, subject to
applicable securities law restrictions, or by any other means which the
Committee determines to be consistent with the Plan's purpose and applicable
law. The proceeds from such a payment shall be added to the general funds of
the Company and shall be used for general corporate purposes.
IN WITNESS WHEREOF, and as conclusive evidence of the adoption of the
foregoing by directors of the Company, The Allied Printers, Inc. has caused
these presents to be duly executed in its name and behalf by its proper officers
thereunto duly authorized.
Mail-Well, Inc.
By:
----------------------------------
Roger Wertheimer
Title: Vice President-General Counsel
and Secretary
7
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ATTEST:
- ----------------------------
Mark L. Zoeller
Assistant Secretary
[CORPORATE SEAL]
8
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EXHIBIT 5
August 13, 1998
Mail-Well, Inc.
23 Inverness Way East, Suite 160
Englewood, Colorado 80112
Ladies and Gentlemen:
You have requested our opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") which is expected to be
filed by Mail-Well, Inc. (the "Company") on or about August 13, 1998, with
respect to the offer and sale of 3,074,800 additional shares of the Company's
common stock, $.01 par value ("Company Stock"), issuable under the Mail-Well,
Inc. 1997 Non-Qualified Stock Option Plan, the Mail-Well Inc. 1998 Incentive
Stock Option Plan and the Mail-Well, Inc. Allied Acquisition Non-Qualified
Stock Option Plan (the "Plans") as described in the Registration Statement.
We have examined such records and documents and have made such
investigations of law as we have deemed necessary under the circumstances.
Based on that examination and investigation, it is our opinion that the
shares of Company Stock referred to above will be, when sold in accordance
with the Plans and in the manner described in the Registration Statement,
validly issued, fully paid and non-assessable.
We consent to the use in the Registration Statement of our name and the
statement with respect to our firm under the heading of "Interests of Named
Experts and Counsel."
Sincerely yours,
ROTHGERBER JOHNSON & LYONS LLP
/s/ Rothgerber Johnson & Lyons LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF DELOITTE & TOUCHE LLP
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Mail-Well, Inc. on Form S-8 of our reports dated January 26,
1998 (February 11, 1998 as to the second and third paragraphs of Note 12)
appearing in the Annual Report on Form 10-K of Mail-Well, Inc. for the year
ended December 31, 1997 and of our report dated July 10, 1998 appearing in
Amendment No. 1 to Current Report on Form 8-K/A of Mail-Well, Inc. dated May
30, 1998.
DELOITTE & TOUCHE LLP
/s/ Deloitte & Touche LLP
Denver, Colorado
August 13, 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF RUBIN, BROWN, GORNSTEIN & CO. LLP
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Mail-Well, Inc. on Form S-8 of our reports dated March 6, 1998
(except for Notes 7 and 13, which are dated May 15, 1998 and May 22, 1998,
respectively) and March 7, 1997 (except for Note 7, which is dated March 24,
1997) appearing in Amendment No. 1 to Current Report on Form 8-K/A of
Mail-Well, Inc. dated May 30, 1998.
Rubin, Brown, Gornstein & Co. LLP
/s/ Rubin, Brown, Gornstein & Co. LLP
St. Louis, MO
August 13, 1998
