As filed with the Securities and Exchange Commission on May 14, 1998.
Registration Statement 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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CUNNINGHAM GRAPHICS INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
New Jersey 22-3561164
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
629 Grove Street, Jersey City, New Jersey 07032
(Address of principal executive offices) (Zip Code)
1998 Stock Option Plan
Directors' Stock Option Plan
(Full title of the plan)
Mr. Michael R. Cunningham
Chairman, President and Chief Executive Officer
629 Grove Street
Jersey City, New Jersey 07310
(Name and address of agent for service)
(201) 217-1990
(Telephone number, including area code, of agent for service)
Copy to:
Lawrence A. Goldman, Esq.
Gibbons, Del Deo, Dolan, Griffinger & Vecchione
One Riverfront Plaza
Newark, New Jersey 07102-5497
(973) 596-4500
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Calculation of Registration Fee
- ----------------------------------------- ---------------- -------------------- ----------------- -------------------
Proposed Proposed
Title of Each Class Amount Maximum Offering Maximum Amount of
of Securities To Be Price Aggregate Registration
to be Registered Registered(1) Per Share(2) Offering Fee(2)
Price(2)
- ----------------------------------------- ---------------- -------------------- ----------------- -------------------
- ----------------------------------------- ---------------- -------------------- ----------------- -------------------
<S> <C> <C> <C> <C>
Common Stock, no par value per share 600,000 $20.625 $12,375,000 $3,651
- ----------------------------------------- ---------------- -------------------- ----------------- -------------------
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended,
this registration statement also covers additional shares of Common Stock
pursuant to the anti-dilution provisions of the Plan.
(2) Estimated in accordance with Rule 457(c) solely for the purposes of
calculating the registration fee, based on the average high and low prices per
share of the Registrant's Common Stock as reported on The Nasdaq National Market
System on May 11, 1998.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by Cunningham Graphics
International, Inc. (the "Company") with the Securities and Exchange Commission
(the "Commission") are incorporated by reference in this Registration Statement:
(1) The Company's Final Prospectus filed April 22, 1998 under the
Securities Act of 1933, as amended (the "Securities Act") in
connection with the Company's Registration Statement filed on Form S-1
(File No. 333-46541) as filed under the Securities Act;
(2) The description of the Company's common stock, no par value per share
(the "Common Stock"), contained in the foregoing Prospectus; and
(3) All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all
securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference
in this Registration Statement and to be a part hereof from the
respective date of filing of such documents. Any statement contained
in a document incorporated by reference herein is modified or
superseded for all purposes to the extent that a statement contained
in this Registration Statement or in any other subsequently filed
document which is incorporated by reference modifies or replaces such
statement.
Item 4. Description of Securities
Not applicable.
Item 5 Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company's Certificate of Incorporation contains a provision eliminating
or limiting director liability to the Company and its stockholders for monetary
damages arising from acts or omissions in the director's capacity as director.
The provision does not, however, eliminate or limit the personal liability of a
director (i) for any breach of such director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or knowing violation of the law, (iii) under the New
Jersey statutory provision making directors personally liable, under a
negligence standard, for unlawful dividends or unlawful stock purchases or
redemptions or (iv) for any transaction from which the director derived an
improper personal benefit. This provision offers persons who serve on the Board
of Directors of the Company protection against awards of monetary damages
resulting from breaches of their duty of care (except as indicated above). As a
result of this provision, the ability of the Company or a stockholder thereof to
successfully prosecute an action against a director
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<PAGE>
for breach of his duty of care is limited. However, the provision does not
affect the availability of equitable remedies such as an injunction or
rescission based upon a director's breach of his duty of care. The Securities
and Exchange Commission has taken the position that the provision will have no
effect on claims arising under the federal securities laws.
In addition, the Company's Certificate of Incorporation and By-Laws provide
for mandatory indemnification rights, subject to limited exceptions, to any
director or officer of the Company who by reason of the fact that he or she is a
director or officer of the Company is involved in a legal proceeding of any
nature. Such indemnification rights include reimbursement for expenses incurred
by such director, officer, employee or agent in advance of the final deposition
of such proceeding in accordance with the applicable provisions of the New
Jersey Business Corporation Act.
Each of the officers and directors of the Company is insured against
certain liabilities which he or she might incur in his or her capacity as an
officer or director pursuant to a Directors and Officers Liability Policy issued
by Executive Risk Indemnity Inc. of Wilmington, Delaware. The general effect of
this policy is that if during the policy period any claim or claims are made
against the officers and directors of the Company or any of them individually
for a Wrongful Act (as defined in the policy) while acting in their individual
or collective capacities as directors or officers, the insurer will pay for 100%
of any Loss (as defined in the policy), after application of any applicable
deductible. The insurer's combined limit of liability is $5,000,000 during any
policy year and $5,000,000 for any single Loss. "Wrongful Act" is defined as any
error, misstatement, misleading statement, act, omission, neglect or breach of
duty actually or allegedly committed or attempted by the officers or directors
of the Company while acting in their individual or collective capacities or in
any matter, not excluded by the terms and conditions of the policy, claimed
against them by reason of their being directors or officers of the Company. The
term "Loss" is defined as any amount which the Company shall be required or
permitted by law to pay as a result of any "Claims," and includes damages,
judgments, settlements, costs, charges, and expenses incurred in the defense of
actions, suits or proceedings and appeals therefrom, except that the term "Loss"
does not include fines or penalties imposed by law or matters which may be
deemed uninsurable under the law pursuant to which the policy shall be
construed.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
Exhibit No. Description
- ----------- -----------
4.1 1998 Stock Option Plan (incorporated by reference to Exhibit 10.1
to Amendment No. 1 to the Company's Registration Statement on
Form S-1 (File No. 333-46541), filed April 17, 1998)
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4.2 Directors' Stock Option Plan (incorporated by reference to
Exhibit 10.2 to the Company's Registration Statement on Form S-1
(File No. 333-46541), filed February 19, 1998).
4.3 The Company's Certificate of Incorporation, in effect as of the
date of this Registration Statement (incorporated by reference to
Exhibit 3.1 to the Company's Registration Statement on Form S-1
(File No. 333-46541), filed February 19, 1998).
4.4 By-Laws of the Company (incorporated by reference to Exhibit 3.2
to the Company's Registration Statement on Form S-1 (File No.
333-46541), filed February 19, 1998).
5.1 Opinion of Gibbons, Del Deo, Dolan, Griffinger & Vecchione.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Ernst & Young Chartered Accountants
23.3 Consent of Gibbons, Del Deo, Dolan, Griffinger & Vecchione
(included in Exhibit 5.1)
24.1 Powers of Attorney
Item 9. Undertakings.
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:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
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.
Provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with the Commission by the
Company pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934, as amended, that are incorporated by reference in this registration
statement.
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(2) That, for the purpose of determining any liability under the Securities
Act of 1933, as amended, 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.
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, as amended, (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, as amended) 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing procedures, 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
Securities Act of 1933, as amended, and is, therefore, unenforceable. In the
event that a claim for indemnification against 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 Securities
Act of 1933, as amended, and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Jersey City, State of New Jersey, on this 13 day of
May, 1998.
CUNNINGHAM GRAPHICS INTERNATIONAL, INC.
By: /s/ Michael R. Cunningham
----------------------------------------
Michael R. Cunningham
Chairman, President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Michael R. Cunningham Chairman, President and Chief May 13, 1998
- ---------------------------- Executive Officer
Michael R. Cunningham (Principal Executive Officer)
/s/ Robert M. Okin Senior Vice President, Chief May 13, 1998
- ---------------------------- Financial Officer and Treasurer
Robert M. Okin (Principal Financial and Accounting
Officer)
*/s/ James J. Cunningham Director May 13, 1998
--------------------------
James J. Cunningham
*/s/ Gordon Mays Director May 13, 1998
- ----------------------------
Gordon Mays
*/s/ Arnold Spinner Director May 13, 1998
- ----------------------------
Arnold Spinner
*/s/ Laurence Gerber Director May 13, 1998
- ----------------------------
Laurence Gerber
*/s/ Stanley J. Moss Director May 13, 1998
- ----------------------------
Stanley J. Moss
*By:/s/ Michael R. Cunningham
----------------------------
Michael R. Cunningham
Attorney-in-Fact
</TABLE>
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<PAGE>
EXHIBIT INDEX
No. Description Method of Filing
- --- ----------- ----------------
4.1 1998 Stock Option Plan Filed by reference to Exhibit 4.1
to Amendment No. 1 to the Company's
Registration Statement on Form S-1
(File No. 333-46541), filed April
17, 1998
4.2 Directors' Stock Option Plan Filed by reference to Exhibit 10.2
to the Company's Registration
Statement on Form S-1 (File No.
333-46541), filed February 19, 1998
4.3 The Company's Certificate of Filed by reference to Exhibit 3.1
Incorporation to the Company's Registration
Statement on Form S-1 (File No.
333-46541) filed February 19, 1998
4.4 By-Laws of the Company Filed by reference to Exhibit 3.2
to the Company's Registration
Statement on Form S-1 (File No.
333-46541) filed February 19, 1998
5.1 Opinion of Gibbons, Del Deo, Dolan, Filed with this Registration
Griffinger & Vecchione Statement
23.1 Consent of Ernst & Young LLP Filed with this Registration
Statement
23.2 Consent of Ernst & Young Chartered Filed with this Registration
Accountants Statement
23.3 Consent of Gibbons, Del Deo, Dolan, Included in Exhibit 5.1
Griffinger & Vecchione
24.1 Powers of Attorney Filed with this Registration
Statement
Exhibit 5.1
May 13, 1998
Cunningham Graphics International, Inc.
629 Grove Street
Jersey City, New Jersey 07310
Re: Cunningham Graphics International, Inc.
Gentlemen:
We have acted as counsel to Cunningham Graphics International, Inc. (the
"Company") in connection with all proceedings relating to the authorization and
proposed issuance and sale by you of shares of common stock, no par value per
share ("Common Stock") upon the exercise of stock options granted pursuant to
1998 Stock Option Plan (the "1998 Plan") and the Directors' Stock Option Plan
(the "Directors' Plan"), as described in the Registration Statement on Form S-8
(the "Registration Statement"), filed by you with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, (the "Act").
Based upon our examination of such documents and proceedings as we have
deemed necessary and pertinent, we are of the opinion that:
1. Cunningham Graphics International, Inc. (the "Company") is a corporation
duly organized and existing under the laws of the State of New Jersey;
2. Each of the 1998 Plan and the Directors' Plan has been duly authorized
and approved by the Board of Directors and the stockholders of the Company;
3. The shares of Common Stock reserved by the Board of Directors of the
Company for issuance upon the exercise of stock options granted under the 1998
Plan and the Directors' Plan have been duly authorized;
4. When the shares of Common Stock are issued upon the due exercise of
stock options granted in accordance with the 1998 Plan and the Directors' Plan,
such shares of Common Stock will be duly and validly issued and outstanding and
will be fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Gibbons, Del Deo, Dolan, Griffinger & Vecchione
GIBBONS, DEL DEO, DOLAN, GRIFFINGER & VECCHIONE
A Professional Corporation
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1998 Stock Option Plan and the Directors
Stock Option Plan of Cunningham Graphics International, Inc. of our report dated
January 16, 1998 with respect to the predecessor consolidated financial
statements and schedules of Cunningham Graphics International, Inc. included in
its Registration Statement (Form S-1 No. 333-46541), in the form in which it
became effective, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Princeton, New Jersey
May 8, 1998
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement in Form S-8 of our report dated 11 February 1998 which appears in the
Registration Statement of Cunningham Graphics International, Inc. on Form S-1
(File No. 333-46541), filed with the Securities and Exchange Commission with
respect to the consolidated financial statements of Roda Limited for the period
ended 31 December 1997 and the financial statements of Roda Print Concepts
Limited (Predecessor) for the ten months ended 31 October 1996.
/s/ Ernst & Young LLP
Chartered Accountants
London, England
11 May, 1998
Exhibit 23.4
POWER OF ATTORNEY
The undersigned directors of Cunningham Graphics International, Inc.
(the "Company") hereby appoint Michael R. Cunningham and Robert M. Okin, and
each of them severally, as their true and lawful attorneys-in-fact, (i) to
execute, in their names and capacities as directors of the Company, registration
statements on Form S-8 and all exhibits, amendments and supplements thereto to
register the Common Stock of the Company authorized for issuance pursuant to
each of the Cunningham Graphics International, Inc. 1998 Stock Option Plan and
the Cunningham Graphics International, Inc. Directors' Stock Option Plan, and
(ii) to file, in the name and on behalf of the Company, such registration
statements and any related documents with the Securities and Exchange Commission
under the Securities Act of 1993, as amended and/or the Securities Exchange Act
of 1934, as amended.
This Power of Attorney automatically ends as to each appointee upon the
termination of his service with the Company.
IN WITNESS WHEREOF, the undersigned have executed this instrument on
May 4, 1998.
/s/ Gordon Mays /s/ Laurence Gerber
- ------------------------------- --------------------------------
Gordon Mays Laurence Gerber
/s/ Arnold Spinner /s/ Stanley J. Moss
- ------------------------------- --------------------------------
Arnold Spinner Stanley J. Moss
/s/ James J. Cunningham
- -------------------------------
James J. Cunningham
