AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 20, 1998
REGISTRATION STATEMENT 333-46541
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
----------------
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
----------------
CUNNINGHAM GRAPHICS INTERNATIONAL, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
NEW JERSEY 2750 22-3561164
(State or Other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation or Organization) Classification Code Number) Identification Number)
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629 GROVE STREET
JERSEY CITY, NEW JERSEY 07310
(201) 217-1990
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
MR. MICHAEL R. CUNNINGHAM
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
629 GROVE STREET
JERSEY CITY, NEW JERSEY 07310
(201) 217-1990
(Name, Address Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
----------------
Copies of Communications to:
JEFFREY A. BAUMEL, ESQ. JEFFREY S. LOWENTHAL, ESQ.
LAWRENCE A. GOLDMAN, ESQ. STROOCK & STROOCK & LAVAN LLP
GIBBONS, DEL DEO, DOLAN, 180 MAIDEN LANE
GRIFFINGER & VECCHIONE, P.C. NEW YORK, NEW YORK 10038
ONE RIVERFRONT PLAZA (212) 806-5400
NEWARK, NEW JERSEY 07102
(973) 596-4500
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] ______.
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ______.
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ______.
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [X]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Set forth below is an estimate of the fees and expenses to be incurred in
connection with the issuance and distribution of the shares of Common Stock
offered hereby.
Securities and Exchange Commission Registration Fee ......... $ 9,262
NASD Filing Fee ............................................. $ 3,640
NASDAQ Listing Fee -- National Market Fee ................... $44,500
Blue Sky Fees and Expenses .................................. $ 3,000
-------
Legal Fees and Expenses ..................................... $ *
Accounting Fees ............................................. $ *
Printing and Engraving Costs ................................ $ *
Transfer Agent Fees ......................................... $ *
Miscellaneous Expenses ...................................... $ *
=======
Total ....................................................... $800,000
========
- ----------
* To be included by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Certificate of Incorporation contains a provision
eliminating or limiting director liability to the Registrant 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 Registrant 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 Registrant 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
Registrant or a stockholder thereof to successfully prosecute an action against
a director 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 Registrant's Certificate of Incorporation and Bylaws
provide for mandatory indemnification rights, subject to limited exceptions, to
any director or officer of the Registrant who by reason of the fact that he or
she is a director or officer of the Registrant, 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 Federal Insurance Company of Warren, New Jersey. 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, and the Company has indemnified
them, the insurer will pay for 100% of any Loss (as defined in the policy). In
those instances where the officers and directors are not indemnified by the
Company, the insurer will pay on behalf of the officers and directors
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of the Company or any of them, their executors, administrators, or assigns, 100%
of the Loss. The insurer's combined limit of liability is $1,000,000 during any
policy year and $1,000,000 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 to such person as indemnity for a claim or claims made
against them for "Wrongful Acts," 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 15. RECENT SALES OF UNREGISTERED SECURITIES
Upon formation of the Company, one share of Common Stock was issued to
Michael R. Cunningham.
Immediately prior to the Offering, the Company is closing the private
placement of 2,595,260 shares of Common Stock to the existing stockholders of
the Predecessor in connection with the Reorganization.
The recipients of these securities are the following:
NAME NUMBER OF SHARES
------------------------------------------------- -----------------
Michael R. Cunningham .................... 2,050,727
Gordon Mays .............................. 228,198
Timothy Mays ............................. 165,803
James J. Cunningham, Trustee ............. 130,898
William J. Mays, Trustee ................. 9,817
William Edward Shannon, Trustee .......... 9,817
Contemporaneously with the completion of the Offering, the Company is
closing the private placement of 169,739 shares of Common Stock to the selling
stockholders of Roda as part of the purchase price for the shares of capital
stock of Roda. For purposes of the transaction, a share of Common Stock is being
valued at the initial public offering price.
The recipients of these securities are the following:
NAME NUMBER OF SHARES
-------------------------------------------------- -----------------
Peter L. Furlonge ......................... 128,323
Ralph J. Elman ............................ 624
Stelby Holdings Limited ................... 3,999
Central Investments Limited ............... 17,901
The Naggar Family Pension Scheme .......... 3,999
M. L. Tagliaferri ......................... 508
M. D. Moriarty ............................ 51
Mrs. J. Moriarty .......................... 76
George Harvey ............................. 14,258
The Company relies on Section 4(2) of the Securities Act in making the
foregoing private placements. No offer was made to any person other than the
existing stockholders of the Predecessor and the selling stockholders of Roda
Limited.
No underwriters are involved nor will any commissions be paid in connection
with the foregoing transactions.
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ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT NO. DESCRIPTION
- ---------------- -------------------------------------------------------------
1.1- Form of Underwriting Agreement among the Company, Schroder &
Co. Inc. and Prudential Securities Incorporated
1.2^ Agreement for the Sale and Purchase of the Entire Issued
Share Capital of Roda Limited dated January 16, 1998 between
P.L. Furlonge and others and the Predecessor
1.2(a)- Supplemental Agreement dated March 24, 1998 between P.L.
Furlonge and others and the Predecessor
2.1- Reorganization Agreement among Stockholders of the
Predecessor and CGII
3.1^ Certificate of Incorporation
3.2^ By-Laws
4.2- Specimen Common Stock Certificate
5.1- Opinion of Gibbons, Del Deo, Dolan, Griffinger & Vecchione
10.1* 1998 Stock Option Plan
10.2^ Directors' Stock Option Plan
10.3- Form of Employment Agreement between the Company and M.R.
Cunningham
10.4- Form of Employment Agreement between the Company and G. Mays
10.5- Form of Employment Agreement between the Company and T. Mays
10.6- Form of Employment Agreement between the Company and R.
Needle
10.7^ Form of Service Agreement between Roda Limited and P.L.
Furlonge
10.8- Employment Agreement between the Company and Robert M. Okin
10.9^ Loan and Security Agreement dated December 15, 1997 between
the Company and Summit Bank, as amended
10.10+ Printing Services Agreement dated July 12, 1996 between the
Company and Goldman, Sachs & Co., as amended
10.11^ Agreement of Lease dated April 18, 1989 between the Company
and Lackawanna Warehouse Corp. of New Jersey, as amended
10.12^ Agreement of Sublease dated July 15, 1996 between the Company
and Goldman, Sachs & Co.
10.13* Form of Roda Lease
10.14* Joint Marketing Agreement among Cunningham Graphics, Inc.,
Roda Print Concepts Ltd. and Workable Ltd.
10.15- Form of Employment Agreement between the Company and I.
Lykogiannis
10.16- Form of Employment Agreement between the Company and R.
Zanisnik
14(a)^ Financial Statement Schedule
Report of Independent Auditors on Financial Statement
Schedule Schedule II -- Valuation of Qualifying Accounts
21.1^ List of all subsidiaries of the Company
23.1- Consent of Gibbons, Del Deo, Dolan, Griffinger & Vecchione
(included in Exhibit 5.1)
23.2- Consent of Ernst & Young LLP
23.3- Consent of Ernst & Young Chartered Accountants
24.1- Power of Attorney (Page II -- 5)
27^ Financial Data Schedule
99.1^ Consent of Arnold Spinner
99.3* Consent of Laurence Gerber
99.4* Consent of Stanley J. Moss
- ----------
^ Previously filed with the Commission on February 19, 1998 in the
Company's Registration Statement on Form S-1.
* Previously filed with the Commission on March 31, 1998 in Amendment No. 1
to the Company's Registration Statement on Form S-1.
- Previously filed with the Commission on April 17, 1998 in Amendment No. 2
to the Company's Registration Statement on Form S-1.
+ Portions of this Exhibit have been omitted and have been filed separately
with the Secretary of the Commission pursuant to Registrant's Application
Requesting Confidential Treatment under Rule 406 of the Securities Act.
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ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to Item 14 hereof, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer, or controlling person of the Registrant in the
successful defense of any action, suit, or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
The undersigned Registrant further undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of Prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of Prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective;
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of Prospectus shall
be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at the time shall be
deemed to be bona fide offering thereof.
The undersigned registrant hereby undertakes to provide to the
Underwriters, at the closing specified in the Underwriting Agreement,
certificates in such denominations and registered in such names as required by
the Underwriters to permit prompt delivery to each purchaser.
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SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this Amendment to the 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 April 20, 1998.
CUNNINGHAM GRAPHICS INTERNATIONAL, INC.
By: /s/ Michael R. Cunningham
------------------------------------------
Michael R. Cunningham
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated. Each person whose signature appears below hereby constitutes
and appoints Michael R. Cunningham and Gordon Mays, or either of them, as such
person's true and lawful attorney-in-fact and agent with full power of
substitution for such person and in such person's name, place and stead, in any
and all capacities, to sign and to file with the Commission, any and all
amendments and post-effective amendments to this Registration Statement, with
exhibits thereto and other documents in connection therewith, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as such person might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or any substitute therefor, may lawfully do or cause to be done by virtue
thereof.
NAME TITLE DATE
- ------------------------------- ------------------------------ ---------------
/s/ Michael R. Cunningham Chairman of the Board, April 20, 1998
---------------------------- President, Chief Executive
Michael R. Cunningham Officer and Director
(Principal Executive Officer)
/s/ Robert M. Okin Senior Vice President and April 20, 1998
---------------------------- Chief Financial Officer
Robert M. Okin (Principal Financial and
Accounting Officer)
/s/ James J. Cunningham Director April 20, 1998
----------------------------
James J. Cunningham
/s/ Gordon Mays Director April 20, 1998
----------------------------
Gordon Mays
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ---------------- -------------------------------------------------------------
1.1- Form of Underwriting Agreement among the Company, Schroder &
Co. Inc. and Prudential Securities Incorporated
1.2^ Agreement for the Sale and Purchase of the Entire Issued
Share Capital of Roda Limited dated January 16, 1998 between
P.L. Furlonge and others and the Predecessor
1.2(a)- Supplemental Agreement dated March 24, 1998 between P.L.
Furlonge and others and the Predecessor
2.1- Reorganization Agreement among Stockholders of the
Predecessor and CGII
3.1^ Certificate of Incorporation
3.2^ By-Laws
4.2- Specimen Common Stock Certificate
5.1- Opinion of Gibbons, Del Deo, Dolan, Griffinger & Vecchione
10.1* 1998 Stock Option Plan
10.2^ Directors' Stock Option Plan
10.3- Form of Employment Agreement between the Company and M.R.
Cunningham
10.4- Form of Employment Agreement between the Company and G. Mays
10.5- Form of Employment Agreement between the Company and T. Mays
10.6- Form of Employment Agreement between the Company and R.
Needle
10.7^ Form of Service Agreement between Roda Limited and P.L.
Furlonge
10.8- Employment Agreement between the Company and Robert M. Okin
10.9^ Loan and Security Agreement dated December 15, 1997 between
the Company and Summit Bank, as amended
10.10+ Printing Services Agreement dated July 12, 1996 between the
Company and Goldman, Sachs & Co., as amended
10.11^ Agreement of Lease dated April 18, 1989 between the Company
and Lackawanna Warehouse Corp. of New Jersey, as amended
10.12^ Agreement of Sublease dated July 15, 1996 between the Company
and Goldman, Sachs & Co.
10.13* Form of Roda Lease
10.14* Joint Marketing Agreement among Cunningham Graphics, Inc.,
Roda Print Concepts Ltd. and Workable Ltd.
10.15- Form of Employment Agreement between the Company and I.
Lykogiannis
10.16- Form of Employment Agreement between the Company and R.
Zanisnik
14(a)^ Financial Statement Schedule
Report of Independent Auditors on Financial Statement
Schedule Schedule II -- Valuation of Qualifying Accounts
21.1^ List of all subsidiaries of the Company
23.1- Consent of Gibbons, Del Deo, Dolan, Griffinger & Vecchione
(included in Exhibit 5.1)
23.2- Consent of Ernst & Young LLP
23.3- Consent of Ernst & Young Chartered Accountants
24.1- Power of Attorney (Page II -- 5)
27^ Financial Data Schedule
99.1^ Consent of Arnold Spinner
99.3* Consent of Laurence Gerber
99.4* Consent of Stanley J. Moss
- ----------
^ Previously filed with the Commission on February 19, 1998 in the
Company's Registration Statement on Form S-1.
* Previously filed with the Commission on March 31, 1998 in Amendment No. 1
to the Company's Registration Statement on Form S-1.
- Previously filed with the Commission on April 17, 1998 in Amendment No. 2
to the Company's Registration Statement on Form S-1.
+ Portions of this Exhibit have been omitted and have been filed separately
with the Secretary of the Commission pursuant to Registrant's Application
Requesting Confidential Treatment under Rule 406 of the Securities Act.
PRINTING SERVICES AGREEMENT
This Agreement ("Agreement") is made as of July 12, 1996 between Cunningham
Graphics, Inc., ("Cunningham") a New Jersey corporation, with its principal
place of business at 629 Grove Street, Jersey City, New Jersey, 07306, and
Goldman, Sachs & Co. ("Goldman Sachs") a New York limited partnership with its
principal place of business at 85 Broad Street, New York, New York 10004.
WHEREAS, Goldman Sachs wishes to appoint Cunningham to supply the services
described herein and further listed in Schedule A, and any other services added
thereto by agreement between the parties (the "Services"); and
WHEREAS, Cunningham is willing and able to supply the Services on the terms
and conditions set out below.
NOW THEREFORE, the parties hereto agree as follows:
Section 1. DEFINITIONS
1.1 In this Agreement, the following words and expressions shall have the
meanings set out below:
1.1.1 "Affiliates" shall mean all entities which are controlling,
controlled by or under common control with Goldman, Sachs & Co.,
wheresoever in the world located.
1.1.2 "Commencement Date" shall mean July 15, 1996.
1.1.3 "Confidential Information"
(a) shall mean, with respect to Goldman Sachs information, any
trade secrets or other proprietary, confidential or
non-public information of Goldman Sachs or its clients or
third parties to whom Goldman Sachs owes a duty of
confidentiality and any other information which Cunningham
knows or ought reasonably to know to be proprietary or
confidential; in addition to the foregoing, all materials
provided to Cunningham by any means for copying or
fulfillment services shall be deemed Confidential
Information; and
(b) shall mean, with respect to Cunningham information, the
terms of this Agreement and all non-public information
regarding Cunningham's business and which Cunningham has
marked as
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confidential.
1.1.4 "Confirms or Client Statements" shall mean those documents
printed by Cunningham which include account and trade information
for clients of Goldman Sachs, which information is transmitted to
Cunningham via connections to Goldman Sachs' mainframe computers.
1.1.5 "Material Breach" shall mean, with respect to Cunningham,
documented material inconsistences in performance, including
failure to meet the Service Criteria, as well as material failure
to comply with any material term of this Agreement; and shall
mean, with respect to Goldman Sachs, material failure to comply
with any material term of this Agreement.
1.1.6 "Minimum Commitments" shall mean the level of printing services
obtained from Cunningham as further described in Schedule A.
1.1.7 "Operating Hours" shall mean the hours specified in Schedule A.
1.1.8 "Personnel" shall mean those individuals assigned by Cunningham
to perform Services related to Confirms or Client Statements at
the Print Shop, as further described in Schedule B.
1.1.9 "Print Shop" shall mean a section of the 8th floor, 111 8th
Avenue, New York, N.Y. as detailed in the Sublease.
1.1.10 "Service Credits" shall mean the adjustments made to the fees
otherwise due to Cunningham in the amounts stated and upon the
occurrence of the events described in Schedule A.
1.1.11 "Service Criteria" shall mean the detailed specifications
included in Schedule A.
1.1.12 "Sales Agreement" shall mean the Asset Sales Agreement executed
by the parties contemporaneously with this Agreement, and
addressing the sale of certain materials by Goldman Sachs to
Cunningham.
1.1.13 "Sublease" shall mean the Agreement of Sublease executed by the
parties contemporaneosously with this Agreement, relating to the
Print Shop.
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1.1.14 "Term" shall mean the period from and including the Commencement
Date to and including December 30, 1999 and will continue
thereafter on a year to year basis; provided, that Cunningham
shall have given Goldman Sachs a minimum of 90 days notice of
impending renewal together with the proposed charges for the
renewal period and Goldman Sachs shall have 60 days from receipt
of such notice to give Cunningham notice of termination.
Section 2. TERMS OF AGREEMENT
2.1 Goldman Sachs hereby appoints Cunningham, with effect from the Commencement
Date, to supply the Services to Goldman Sachs, and Cunningham hereby accepts
such appointment on the terms and conditions set forth below.
2.2 The terms and conditions set forth below are the sole terms on which Goldman
Sachs shall purchase the Services from Cunningham and shall operate and prevail
to the entire exclusion of any terms set out on any documentation used or
presented by Cunningham or otherwise existing. No other express terms, written
or oral, shall be incorporated into the Agreement.
2.3 No alterations to any of the requirements indicated in Schedule A shall be
made except by agreement in writing between the parties and provided that in the
event that any alteration involves either an increase or a decrease in the level
of Services required by Goldman Sachs, Cunningham and Goldman Sachs shall agree
on any corresponding change in the pricing information contained in Schedule D.
Section 3. CUNNINGHAM'S OBLIGATIONS
3.1 Cunningham shall from the Commencement Date and throughout the Term provide
the Services in accordance with this Agreement and the Service Criteria.
3.2 Cunningham shall perform the Services at the location and with the resources
of its choosing. Notwithstanding the foregoing, in the absence of written
approval to the contrary by Goldman Sachs, Confirms or Client Statements may
only be printed at the Print Shop, and Cunningham shall not use the Print Shop
for purposes of printing similar materials of any other party without the
express written approval of Goldman Sachs.
3.3 Cunningham shall be responsible for providing any and all supplies required
to perform the Services, with the exception of those listed in Schedule C.
3.4 Cunningham shall insure the necessary level of staffing to provide the
Services in accordance with the Service Criteria.
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3.5 Cunningham shall conduct a background check of all Personnel at its own
expense, and shall ensure that all Personnel have appropriate backgrounds. The
background check shall include an interview, check of identification papers, and
telephone calls to the individual's last residence and last place of employment
to verify same. Such verification may be established by "Equifax" or another
equivalent security firm acceptable to Goldman Sachs.
3.6 Cunningham shall obtain Goldman Sachs' prior approval before assigning any
individual to perform the Services assigned to the Personnel. Thereafter,
Cunningham shall act promptly to replace any of the Personnel deemed by Goldman
Sachs to be unsuitable for any reason. A list of the Personnel shall be attached
hereto as Schedule B, and revisions to the list as may be required to keep it
current shall be provided by Cunningham.
Section 4. GOLDMAN SACHS' OBLIGATIONS
4.1 Goldman Sachs shall provide Cunningham with material to be printed,
fulfilled, or otherwise produced in a timely manner. Such material shall be
delivered in hard copy, electronic format, on disk, or as otherwise agreed by
the parties. Goldman Sachs shall also provide the paper to be used for printing
of Confirms or Client Statements.
4.2 Goldman Sachs shall, at its election and in addition to the check conducted
by Cunningham, conduct a background check of the Personnel, including a court
inquiry credit check and fingerprinting, drug screen or other checking or
testing in connection with the performance of Services under this Agreement.
Cunningham agrees to indemnify Goldman Sachs, its partners, employees and agents
against all liability, damage, loss, claims, demands and actions arising from
such checking or testing and the use and reporting of the results thereof.
4.3 Goldman Sachs shall provide the telecommunications services described in
Schedule C which shall enable electronic communications between Goldman Sachs
and Cunningham.
4.4 Goldman Sachs shall provide the printing supplies specified in Schedule C.
Section 5. CHARGES
The Services shall be provided by Cunningham to Goldman Sachs at the prices set
forth in Schedule D, and, except as provided therein, such prices shall be fixed
for the Term.
Section 6. PAYMENT
6.1 Cunningham will submit weekly invoices in arrears
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throughout the Term in accordance with the prices contained in Schedule D, and
in the format required by Goldman Sachs, the first such invoice to be issued in
respect of the calendar month which includes the Commencement Date. All
non-disputed monies shall be paid within ten (10) days of receipt of the
relevant invoice. The parties will use their best efforts to resolve any
disputed invoices within thirty (30) days. Goldman Sachs shall pre-pay postage
as invoiced by Cunningham.
6.2 Any sales, retailer's, occupation, service occupation, value added, use or
other similar tax imposed on the transactions contemplated by this Agreement,
excluding taxes based on the net income of Cunningham, will be paid by Goldman
Sachs. A charge for any such taxes will be included on Cunningham's invoices.
Cunningham shall cooperate with Goldman Sachs' lawful efforts to minimize its
sales tax liability.
6.3 Goldman Sachs shall off-set against payment owed to Cunningham the amounts
owed to Goldman Sachs by Cunningham in relation to the Sales Agreement and the
Sublease, as well as the amount due Goldman Sachs from Cunningham as a result of
the Service Credits. The amount of the monthly off-set shall be * , with
regard to the Sales Agreement. The amount of the monthly off-set with regard to
the Sublease is * for base rent, porter wage and sprinkler, and *
for monthly utility fees, inclusive of electric, steam and water.
Notwithstanding the foregoing, these off-sets may be adjusted to reflect the
fees owed in relation to the Sale Agreement and the Sublease, the terms of which
govern the parties' obligation thereunder.
6.4 Payment obligations of Goldman Sachs shall also be reduced by the amount of
Service Credits owed by Cunningham as described in Schedule A.
Section 7. INSURANCE AND INDEMNITIES
7.1 During the Term of this Agreement, Cunningham and Goldman Sachs each will
carry and maintain the following insurance coverage (a) with respect to their
respective employees: (i) Workers Compensation Insurance as prescribed by the
law of the state or other jurisdiction in which work is to be performed, (ii)
Employers Liability Insurance with limits of at least $500,000 per occurrence;
and (b) Comprehensive General Liability Insurance, including contractual
liability, and Comprehensive Automobile Liability Insurance, if the use of motor
vehicles is required, each with combined single limits of at least $1,000,000
per occurrence for bodily injury and property damage, and each of Cunningham and
Goldman Sachs will also carry fire, sprinkler leakage and extended coverage
insurance, subject to the usual exclusions, limitations and conditions of such
policies on all of its property located on the other party's
* Confidential treatment requested- portion has been omitted and filed
separately with the Commission.
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premises. Each such policy will include provisions generally considered standard
for the type of insurance involved, including the loss payable and waiver of
subrogation clauses and deductible amounts. Each of Cunningham and Goldman Sachs
agree to waive rights of subrogation in advance of the loss against each other.
7.2 Each party will, upon request, furnish the other with a certificate of
insurance showing coverage in such amounts with a minimum thirty (30) days
notification clause to the other in the event the policies are to be cancelled,
renewed or changed. Failure to comply with this Section 7.2 shall be deemed a
Material Breach.
7.3 Cunningham agrees to defend, indemnify and hold Goldman Sachs harmless from
and against any and all liabilities, damages, costs, losses and expenses,
including court costs and reasonable attorneys' fees (collectively "Losses"),
which arise out of: (a) the acts or omissions during the Term of this Agreement
of Cunningham's employees, resulting in injury or death to persons (including
invitees) or damage to or theft of property of Goldman Sachs, and property of
third parties located on the premises of Goldman Sachs; and (b) the performance
of the Services.
7.4 Goldman Sachs agrees to defend, indemnify and hold Cunningham harmless from
and against any and all Losses to the extent arising out of: (a) the acts or
omissions during the Term of this Agreement of Goldman Sachs' employees,
resulting in injury or death to persons (including invitees) or damage to or
theft of property of Cunningham, and property of third parties located on the
premises of Cunningham; and (b) the content of material reproduced or otherwise
handled by Cunningham at the request of and in accordance with the instructions
of Goldman Sachs or its employees, including libel, defamation, invasion of
privacy, copyright, trademark or other proprietary rights infringement or unfair
competition.
7.5 Cunningham and Goldman Sachs agree to notify the other promptly of any
claims or demands for which the other party may be responsible hereunder.
Section 8. CONFIDENTIALITY
8.1 Except as provided in Section 8.2 below, neither party shall use, divulge,
communicate or allow to be divulged to any person, without the other party's
prior written consent, any Confidential Information which such party may in the
performance of this Agreement, and in whatever capacity, have received or
obtained.
8.2 Each party shall limit the use of and access to the Confidential Information
to those of its employees, servants or agents whose use thereof or access
thereto is necessary to effect
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<PAGE>
the performance of its obligations under this Agreement.
8.3 Each party shall use all reasonable endeavors to protect the confidentiality
of the Confidential Information and to assist the other party in identifying and
preventing any unauthorized use or disclosure of any of that Confidential
Information.
8.4 Without limitation of the foregoing, each party shall advise the other
immediately in the event that it learns or has reason to believe that any person
who has had access to the Confidential Information has violated or intends to
violate the terms of this Agreement or any related non-disclosure agreement and
such party will co-operate with the other in seeking injunctive or other
equitable relief in the name of the other party or itself against any such
person.
8.5 Upon the termination of this Agreement (or earlier if requested by either
party) each party shall at its own cost return to the other all copies of
documents, papers or other material which may contain or be derived from the
Confidential Information (excluding for purposes of this Section 8.5, this
Agreement) which are in its possession or control, together, if requested by
such party, with a certificate signed by such party in form and substance
satisfactory to the other party, to the effect that all the Confidential
Information has been returned.
8.6 Confidential Information shall not include information which is:
8.6.1 in or becomes part of the public domain other than by disclosure
by Cunningham or Goldman Sachs, as appropriate, in violation of
this Agreement;
8.6.2 demonstrably known to Cunningham or Goldman Sachs, as
appropriate, previously, without a duty of confidentiality;
8.6.3 independently developed by Cunningham or Goldman Sachs, as
appropriate, outside of this Agreement;
8.6.4 rightfully obtained by Cunningham or Goldman Sachs, as
appropriate, from third parties without a duty of
confidentiality; or
8.6.5 which is required to be disclosed by law, statute or regulation.
8.7 Cunningham hereby irrevocably assigns to Goldman Sachs, its successors and
assigns, and Goldman Sachs shall have, exclusive ownership rights, including,
without limitation, all patent, copyright and trade secret rights, with respect
to any
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<PAGE>
work including, but not limited to, any invention, discoveries, concepts, ideas
or information conceived by Cunningham in the course of rendering Services to
Goldman Sachs in response to a specific assignment of work, and all documents,
data and other information of any kind including, incorporating, based upon or
derived from the foregoing, including reports and notes prepared by Cunningham,
customized work produced by Cunningham in the course of performing the Services,
and such works shall be Confidential Information. Cunningham will cooperate
fully with Goldman Sachs to establish, protect or confirm Goldman Sachs'
exclusive rights in such work or to enable it to transfer legal title together
with any patents that may be issued. A certificate evidencing compliance with
this provision shall, if requested, be provided to Goldman Sachs.
8.8 Cunningham will procure that the Personnel will enter into the
Non-Disclosure agreement in the form attached as Schedule E.
8.9 Cunningham shall undertake the establishment and maintenance of security
procedures to assure that any Confidential Information in its possession shall
not be improperly disclosed. Such procedures shall be subject to review by
Goldman Sachs upon request.
8.10 It is understood and agreed that in the event of a breach of this Section
8, damages may not be an adequate remedy and each Cunningham and Goldman Sachs,
as appropriate, shall be entitled to injunctive relief to restrain any such
breach, threatened or actual.
Section 9. NO PROMOTION
9.1 Cunningham agrees that it will not, without the prior written consent of
Goldman Sachs in each instance,
9.1.1 use in advertising, publicity, or otherwise the name of Goldman
Sachs, or any Affiliate or any partner or employee of Goldman
Sachs, nor any trade name, trademark, trade device, service mark,
symbol or any abbreviation, contraction or simulation thereof
owned by Goldman Sachs or its affiliates; or
9.1.2 publish alone or in conjunction with any other person any
article, photograph or other illustration relating to Goldman
Sachs or to the Offices or any part thereof; or
9.1.3 represent, directly or indirectly, that any product or any
service provided by Cunningham has been approved or endorsed by
Goldman Sachs. This
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provision shall survive termination of the Agreement.
Section 10. WARRANTIES
10.1 Cunningham represents and warrants that:
10.1.1 it will perform the Services in accordance with the terms and
conditions contained herein, including, without limitation, in
accordance with the Service Criteria;
10.1.2 it will perform the obligations undertaken by Cunningham under
this Agreement in accordance with applicable laws and
regulations;
10.1.3 it will perform the Services in a timely, diligent and
professional manner, by appropriately skilled and qualified
personnel, having due regard to Goldman Sachs' business
operations;
10.1.4 it has all necessary rights, authorizations and/or licenses to
provide the Services to Goldman Sachs under this Agreement;
10.1.5 it is generally aware of the provisions of the copyright laws and
in connection therewith it shall, as soon as is reasonably
practicable, alert the Goldman Sachs Legal Department where it
suspects that any requests, for the copying or production of
works may result in copyright infringement and shall obtain the
permission of appropriate Goldman Sachs management personnel
prior to making any copies or productions of such works.
10.1.6 is shall insure that the Services related to Client Statements and
Confirms are only provided by the Personnel.
10.2 EXCEPT AS SET FORTH IN SECTION 10.1 ABOVE, Cunningham MAKES NO OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Section 11. FORCE MAJEURE
11.1 Neither party will be in breach of this Agreement by reason of any delay in
the performance or non-performance on its part of its obligations hereunder (and
shall not be liable for any costs or damage caused thereby) where the same is
occasioned by any circumstance whatsoever beyond its reasonable control.
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<PAGE>
11.2 If either party claims that any delay or non-performance is occasioned by
such circumstance as is described in Clause 11.1 that party shall:-
11.2.1 as soon as practicable give notice to the other of the occurrence
of the circumstance, such notice to include as much information
as possible;
11.2.2 consult with the other as to the effects of such delay or
non-performance and the best way of mitigating such effects; and
11.2.3 proceed with diligence and at its own expense to take such steps
as would be taken by a reasonable and prudent person to end the
delay or non-performance as soon as possible.
11.3 If any such circumstance as is described in Clause 11.1 prevents either
party from performing all of its obligations hereunder for a period in excess of
thirty (30) days, either party may terminate this Agreement by notice in
writing.
Section 12. TERM, TERMINATION AND PERFORMANCE REVIEW
12.1 Subject to Sections 11 above and this Section 12, this Agreement shall
commence on the Commencement Date and shall continue in force for the Term.
12.2 Without prejudice to any other rights or remedies which it may have, either
party shall be entitled to terminate this Agreement forthwith by notice if:
12.2.1 the other party shall be in Material Breach of any provision
of this Agreement on its part to be observed or performed
and either such Material Breach is incapable of remedy or
the Material Breach shall continue for thirty (30) days
after notice specifying the Material Breach and requiring
the same to be remedied has been given to such party by the
party not in Material Breach; or
12.2.2 if a party shall be in Material Breach, whether or not such
Material Breach has been cured, if such Material Breach has
occurred within thirty (30) days of any other Material
Breach or if there has been more than two (2) Material
Breaches in any six (6) month period; or
12.2.3 if Cunningham has availed itself of, or been subjected to by
any third party, a proceeding in bankruptcy in which
Cunningham is the named
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<PAGE>
debtor, an assignment by Cunningham for the benefit of its
creditors, the appointment of a receiver for Cunningham, or
any other proceeding involving insolvency or the protection
of, or from, creditors, and appointment of a receiver for
Cunningham, or any other proceeding involving insolvency or
the protection of, or from creditors, and same has not been
discharged or terminated without any prejudice to
Cunningham's rights or interests under this Agreement within
sixty (60) days;
12.3 Failure to meet the Minimum Commitment shall be considered a
Material Breach of this Agreement.
12.4 Goldman Sachs reserves the right to conduct a performance review three (3)
months after the Commencement Date, and regularly at the discretion of Goldman
Sachs thereafter, recommending improvements as necessary. Non-compliance with
any clearly documented recommended improvements with respect to performance and
compliance issues will entitle Goldman Sachs to terminate this Agreement
pursuant to Section 12.2.1.
12.5 Notwithstanding the foregoing, Goldman Sachs reserves the right to
terminate this Agreement on ninety (90) days notice, without cause. In the event
of such termination, Goldman Sachs' liability shall be limited to the following:
12.5.1 If the termination occurs within the first 12 months following
the Commencement Date, Goldman Sachs shall pay Cunningham
* as compensation for costs incurred in preparing the
Print Shop for use by Cunningham, moving expenses, and other
miscellaneous costs incurred; if the termination occurs after the
twelfth month following the Commencement Date, Goldman Sachs
shall pay Cunningham an amount equal to * for each month
remaining in the term, measured from the date the termination
becomes effective until .
12.5.2 The remedies available to Cunningham arising in relation to a termination
as described in this Section 12.5 shall be limited to those specified in section
12.5.1. Goldman Sachs shall have no further liability for any damages arising
from such termination, whether direct, indirect, consequential or otherwise.
Damages arising from such termination in respect to the Sales Agreement and the
Sublease are addressed in each of those agreements.
12.6 In the event the landlord of the premises on which the Print Shop is
located denies the request to sublet the Print Shop
* Confidential treatment requested-portion has been omitted and filed
separately with the Commission.
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premises to Cunningham, either party may elect to terminate this Agreement
within 30 days of receipt of notice of such denial. The exercise of such right
by either party shall not be considered either a material breach or a
termination without cause, but shall instead have the same impact as though this
Agreement had been completed at the end of the Term, and the rights and
obligations of the parties shall be defined accordingly.
Section 13. CONSEQUENCES OF TERMINATION
13.1 Following service of a notice pursuant to Section 11, or 12 terminating
this Agreement, each party shall continue to abide by the terms and conditions
of this Agreement and comply fully with its obligations hereunder and it shall
not in any way hinder or interrupt the performance of this Agreement during any
period between the date of service of a termination notice pursuant to Section
11 or 12 and the date of actual termination.
13.2 On termination of this Agreement for whatever reason:
13.2.1 Cunningham shall be entitled to render an invoice in respect
of any Services performed since the date of the last invoice
issued; and
13.2.2 Goldman Sachs will make payment in settlement of such
invoice in accordance with Section 6 subject to offset to
reflect any liability of Cunningham.
13.3 Termination shall be without prejudice to any rights or remedies either
party may have against the other in respect of any antecedent breach of the
terms of this Agreement; PROVIDED THAT, in no event shall Goldman Sachs be
liable for any claim for loss of profit or loss of contract in respect of any
unexpired residue of the Term.
Section 14. INSPECTION OF BOOKS
14.1 Cunningham shall keep detailed accounts and records of all activities
carried out, and all costs and expenses incurred, in the performance of its
obligations under this Agreement and will on request, and subject to the
restrictions on Confidential Information set forth in Section 8, allow
inspection of such accounts and records as may be required in connection with
activities related to and costs and expenses incurred under this Agreement by
Goldman Sachs or its authorized representative, upon reasonable notice. If any
such inspection reveals that any invoice or payment shall not have been rendered
or made in accordance with the terms of this Agreement, or that any statement
rendered or payment made by Cunningham is inaccurate, then Cunningham shall pay
the reasonable cost of such inspection without prejudice to any other remedies
or claims of Goldman
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<PAGE>
Sachs.
14.2 Goldman Sachs shall keep detailed accounts and records of those activities
related to the Minimum Commitments described herein, and will on request, and
subject to the restrictions on Confidential Information set forth in Section 8,
allow inspection of such accounts and records as may be required in connection
with such activities. If any such inspection reveals that the Minimum
Commitments level has not been maintined, then Goldman Sachs shall pay the
reasonable cost of such inspection without prejudice to any other remedies or
claims of Cunningham.
Section 15. INDEPENDENT CONTRACTOR
15.1 Cunningham is, and shall at all time be, an independent contractor
hereunder and not an agent of Goldman Sachs; and neither any thing contained in
this Agreement nor any actions taken by or arrangements entered into between the
parties to this Agreement in accordance with the provisions hereof shall be
construed as or deemed to create as to such parties any partnership or joint
venture. It is further agreed that Cunningham shall not have authority to commit
Goldman Sachs contractually or otherwise to any obligations whatsoever to third
parties.
15.2 The individuals supplied by Cunningham to provide the Services described
herein, including the Personnel, are not Goldman Sachs employees or agents, and
Cunningham assumes full responsibility for their acts. Cunninham shall be solely
responsible for the payment of compensation of such persons, each of whom shall
be informed that they are not entitled to the provision of any Goldman Sachs
employment benefits. Goldman Sachs shall not be responsible for payment of
workman's compensation insurance, disability benefits, unemployment insurance,
or for withholding any payment or employment taxes for such persons, but such
responsibilty shall be solely that of Cunningham.
Section 16. NOTICES
Any notice required or permitted to be given under this Agreement shall be given
in writing and shall be effective from the date sent by registered or certified
mail, by hand, facsimile or overnight courier to the addresses set forth on the
first page of this Agreement with a copy sent to the General Counsel of Goldman
Sachs, also at the address appearing above. Notice to Cunningham shall be sent
in duplicate to Robert Margulies, Margulies, Wind, Herrington & Knopf 15
Exchange Place, Suite 510, Jersey City, New Jersey 07302-3912.
Section 17. LIMITATION OF LIABILITY
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NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, IN NO
EVENT WILL CUNNINGHAM OR GOLDMAN SACHS BE LIABLE TO THE OTHER FOR ANY SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST
BUSINESS OR PROFITS. DIRECT DAMAGES SUFFERED BY THE AFFILIATES SHALL NOT BE
CONSIDERED CONSEQUENTIAL DAMAGES BUT ARE DIRECT DAMAGES FOR PURPOSES OF THIS
PROVISION.
Section 18. MICROFICHE SERVICES
18.1 Cunningham has agreed to provide Goldman Sachs with the right to use a
portion of the Print Shop for purposes of operating certain equipment (the
"Microfiche Equipment"), currently located at that site, subject to the terms of
a separate agreement.
18.2 The Microfiche Equipment will not be operated by Cunningham, but will be
operated, maintained and supported by Goldman Sachs. Goldman Sachs shall be
responsible for obtaining any licenses, permits, or other approvals required to
operate the Microfiche Equipment.
18.3 Cunningham shall perform the Services and otherwise use the Print Shop in
such a way as to avoid any interruption or interference with Goldman Sachs' use
of the Microfiche Equipment.
Section 19. USE OF SUBCONTRACTORS
Cunningham may delegate or subcontract its responsibilities under this Agreement
without the express written consent of Goldman Sachs, provided, however, that it
may not subcontract or otherwise cause to be performed by third parties, any
printing or fulfillment services related to Confirms or Client Statements. Such
approval shall not release Cunningham from responsibility for the work of its
subcontractors. Without limitation, Cunningham shall assume liability for any
delay, default, or breach caused by its subcontractors, and failure of such
subcontractors to comply with the terms of this Agreement, including those terms
addressing confidentiality.
Section 20. ACKNOWLEDGEMENT AS TO AFFILIATES
Cunningham and Goldman Sachs hereby specifically acknowledge and agree that it
is their intention i) that all of the products and/or Services contemplated by
this Agreement be made available to the Affiliates, ii) that the Affiliates be
entitled to enforce this Agreement, and iii) that the Affiliates be third party
beneficiaries of this Agreement.
Section 21. GENERAL
21.1 This Agreement and the attached Schedules supersede all
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<PAGE>
prior agreements and understanding between the parties for performance of the
Services, and constitute the complete agreement and understanding between the
parties unless modified in a writing, signed by both parties.
21.2 This Agreement is not assignable in whole or in part by either party
without the prior written consent of the other party, which consent shall not be
unreasonably withheld, and any attempt to make such assignment shall be void.
Notwithstanding the foregoing, (i) Goldman Sachs may assign this Agreement to
any entity which controls, is controlled by or under common control with Goldman
Sachs or (ii) to any entity which succeeds to all or substantially all of
Goldman Sachs' assets or business.
21.3 If any provision of this Agreement (or any portion thereof) is determined
to be invalid or unenforceable the remaining provisions of this Agreement shall
not be affected thereby and shall be binding upon Goldman Sachs and Cunningham
and shall be enforceable as though said invalid or unenforceable provision (or
portion thereto) were not contained in this Agreement.
21.4 The failure by either Goldman Sachs or Cunningham to insist upon strict
performance of any of the provisions contained in this Agreement shall in no way
constitute a waiver of its rights as set forth in this Agreement, at law or in
equity, or a waiver of any other provisions or subsequent default by the other
party in the performance or compliance with any of the terms and conditions set
forth in this Agreement.
21.5 The following Sections shall survive termination of this Agreement: 4.2, 7,
8, 9, 13, 14, 16, 17, 20, and 21.7.
21.6 The headings and captions used in this Agreement are used for convenience
only and are not to be considered in construing or interpreting this Agreement.
All references in this Agreement to Sections or Schedules shall, unless
otherwise provided, refer to Sections hereof or Schedule attached hereto, all of
which are incorporated herein by this reference.
21.7 This Agreement is deemed entered into in New York, New York and shall be
governed and construed in all respects by the laws of the State of New York
without giving effect to principles of conflict of laws. The parties consent to
personal jurisdiction of and venue in the state and federal courts within that
county.
IN WITNESS WHEREOF, the parties hereto, each acting under due and proper
authority, have executed this Agreement as of the date written above.
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<PAGE>
CUNNINGHAM GRAPHICS, INC. GOLDMAN, SACHS & CO.
on behalf of itself and the
Affiliates
By: /s/ Michael R. Cunningham By:
--------------------------- -------------------------------
Name: Michael R. Cunningham Name:
-------------------------- -----------------------------
Title: Pres Title:
------------------------- ----------------------------
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<PAGE>
Schedule A
I. Description Of Services:
The Services shall include the items listed below:
A. Offset printing services including non-heat set web printing and multi-color
sheet fed printing related to the production of research reports and
miscellaneous printing.
B. On Demand network printing services related to the production of documents
with short run lengths.
C. Mainframe printing and fulfillment services related to the production of
Goldman Sachs Daily and Monthly Client Statements, in a timely manner to satisfy
the Schedules described herein.
D. Dedicated Customer Service Representatives to facilitate Goldman Sachs user
requests for assistance through different phases of the document production
process including: job estimating and scheduling and quality assurance.
E. Labeling and addressing capabilities for distribution of documents to
destinations worldwide as designated by Goldman Sachs.
F. General fulfillment services including automated and manual inserting,
folding, saddle stitching, perfect binding and in-line glue binding, three hole
punching, shrink wrapping and package assembly.
G. Comprehensive job tracking systems with direct, read-only accessibility by
key Goldman Sachs users. Systems will have the capacity to extract and print out
various metrics and production reports (specified in Schedule A, Section II.D.),
on a regular and ad hoc basis.
H. Quality assurance programs designed to monitor the production process and
easily and quickly confirm compliance with customer specifications, service
requirements, performance standards, and the Service Criteria set by Goldman
Sachs.
I. Ongoing user study programs and reporting systems.
J. Pick-up and delivery service at designated times specified by Goldman Sachs
between 85 Broad Street, 1 NY Plaza, and the Print Shop and Cunningham's
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other locations.
K. At the request of Goldman Sachs, Cunningham will attend review meetings to
monitor and review performance by Cunningham of the Services.
L. To deal with obligation to meet mail stream deadlines consistent with
established pick-up times of Goldman Sachs selected mail stream service
providers.
II. Service Criteria:
Cunningham shall meet the following Service Criteria in its performance of
the Services:
A. Operating Hours for the Print Shop:
Monday - Saturday 24 hours (Monday 5:00 am -
Saturday 8:00 am)
All other hours scheduled as needed to satisfy the requirments contained herein.
(During the production process of Monthly Client Statements, designated
statement teams will work in consecutive shifts until statements are completed.
In the event that statement production must occur over a weekend or holiday,
Cunningham is required to provide hours of operation beyond those stated above
at no additional cost to Goldman Sachs in order to prepare materials for pick-up
by 8:00 am on the next business day).
B. Turnaround Time:*
1. Web Printing:
Saddle Stitched Books:
- - Priority Plus Within * (1)
- - Priority Within *
- - Standard Within *
Perfect Bound Books:
- - Priority Plus Within *
- - Priority Within *
- - Standard Within *
*Turnaround Times for reports are from point of receipt of files and include
pre-press preparations, printing and binding. Inserting, labeling (if required)
and preparations for delivery, all of which must be completed within the times
specified, or as needed to meet overnight delivery in the United States and
Europe and two day delivery for Asia and Australia.
- -------------
(1) Up to 32 pages of text, self covered.
* Confidential treatment requested-portion has been omitted and filed
separately with the Commission.
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To the extent specified completion times would result in job completion prior to
the earliest scheduled delivery for the next day's delivery of finished reports,
the completion time will be extended to the first regularly scheduled delivery
time, unless Goldman Sachs specifically requests earlier delivery. Cunningham is
not responsible for delays due to third party courier services or otherwise
covered by the Agreement's Force Majeure provisions.
The following reports occur weekly with pre-existing delivery schedules:
Report Day To Print Day Clients Must Receive*
Asian Weekly Analyst * *
Japan Research Viewpoint * *
Weekly Analyst * *
US Research Viewpoint * *
Japan Economics Analyst * *
UK Weekly Analyst * *
US Economics Analyst * *
Fixed Income Weekly * *
Mortgage Weekly * *
The following reports occur biweekly and on the same day with pre-existing
delivery schedules:
Report Day To Print Day Clients Must Receive*
Latin America Viewpoint * *
Asia Viewpoint * *
Emerging Debt Markets * *
The following reports occur monthly with pre-existing delivery schedules:
Report Day To Print Day Clients Must Receive*
Int'l Economics Analyst * *
UK Economics Analyst * *
Monthly Fund Update(MFU) * *
Bank Fund Update(BFU) * *
TCU * *
* To US. Domestic Locations
2. Mainframe Printing:
The following documents occur daily with pre existing delivery schedules:
* Confidential treatment requested-portion has been omitted and filed
separately with the Commission.
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<TABLE>
<CAPTION>
Document Schedule
<S> <C>
GS&Co. and GSI Confirms of Trade Printing begins late pm each business day Monday - Friday; inserted,
metered and ready for pick-up by appropriate delivery services
by *
Chicagos, Futures, Micros and Prime Printed after GS&Co. and GSI Confirms and inserted *
Broker Statements
</TABLE>
The following documents occur biweekly with pre existing delivery schedules:
<TABLE>
<CAPTION>
Document Schedule
<S> <C>
T&E's To be agreed upon by the parties
</TABLE>
The following documents occur monthly with pre existing delivery schedules:
<TABLE>
<CAPTION>
Document Schedule
<S> <C>
Month End Client Statements Printed, inserted, labeled (if required), metered and made ready
for pick-up by appropriate delivery services within * of
receipt of GS "check-out"
Chicagos, Futures, Micros, Prime Brokers,
Dividend Checks, and PCS Statements Printed, inserted, labeled (if required), metered and made ready for
pick-up by appropriate delivery services following Client Statements
</TABLE>
The following documents occur quarterly with pre existing delivery schedules:
<TABLE>
<CAPTION>
Document Schedule
<S> <C>
J. Arons To be agreed upon by the parties
</TABLE>
The following documents occur annually with pre existing delivery schedules:
<TABLE>
<CAPTION>
Document Schedule
<S> <C>
1099's and 1040's To be agreed upon by the parties
</TABLE>
3. Sheetfed Printing:
Document Schedule
Krome Kote Covers Within *
(Quantities up to 200, 1 - 4 colors,
single side)
Invitations Within *
(Quantities up to 200, 1 - 4 colors,
single side and standard GS&Co.
return address envelopes)
* Confidential treatment requested-portion has been omitted and filed
separately with the Commission.
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All other sheetfed printing services will be provided as needed on an individual
basis.
4. Miscellaneous Printing:
Document Schedule
Tip-Ons/FYI Cards
(Quantities up to 500, *
1 color, single sided)
Buck Slip Note pads
(Quantities of 40 pads/order, *
1 color, single sided)
NCR Forms (2-5 parts) *
(Quantities of 500 to 2500.
1 color, one side.)
5. Delivery Services
Regular delivery service by truck or van is required between Goldman Sachs
locations (85 Broad Street and One New York Plaza) and Cunningham premises (111
Eighth Avenue and Jersey City, NJ). The following schedule is to be maintained
each business day, Monday - Friday (Saturday upon request at an additional
charge in an amount no greater than the cost incurred by Cunningham in relation
to such services), at a minimum:
Arrives at 85 Broad St/1 NY Plaza: Departs 85 Broad St/1 NY Plaza:
9:30 am *
11:30 am *
2:30 pm *
4:30 pm *
6:30 pm *
Supplemental pick - ups and deliveries will be made available upon request.
D. Comprehensive Job Tracking System
Cunningham is required to provide a management information system (MIS) with
data collection, job tracking, management reporting and inventory functions.
Within 60 days of the Commencement Date, Goldman Sachs user requirements,
invoice formats and management reporting procedures will be agreed upon by
Goldman Sachs and Cunningham.
Cunningham must provide Goldman Sachs with various management reports which are
specified below. All reports are to be submitted to the Goldman Sachs Contract
Administrator and/or Goldman Sachs designated user interface by the specific
time and day mutually agreed upon by Goldman Sachs and Cunningham. All reports
must be available in a PC-readable electronic format. Additionally, Cunningham
is to provide read only access to its MIS system, updated every quarter hour
during regular business hours and periodically thereafter, for the purpose of
key Goldman Sachs users viewing projects in various stages of the production
process. For billing purposes, Goldman Sachs may require the integration of the
vendor's management information system with Goldman Sachs' Accounts Payable
System and will specify data items to be captured as well as data formats and
network protocols.
1. Reports to be Submitted to the Goldman Sachs Contract Administrator and or
Purchasing
* Confidential treatment requested-portion has been omitted and filed
separately with the Commission.
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Department:
Late/Error Job Report - Daily
This report details those jobs that were delivered outside of the
user's specifications, a brief description as to why the lateness or
error occurred and Cunningham's recommendations or actions to prevent
further occurrences. This report is submitted to the Contract
Administrator.
Goldman Sachs Supplied Inventory Report - Monthly
This report lists the Goldman Sachs consumables and supplies held in
stock by Cunningham and a list of all Goldman Sachs purchase order
requests submitted during the period. The report is printed on or
about the first of every month and submitted to the Goldman Sachs
Purchasing department.
Chargeback Report - Weekly
This report details all production expenses generated off of pre-set
pricing grids as stated in Schedule C. This report is contingent to
the billing invoice for the same period and provides greater detail
for chargebacks to the user departments based on actual production.
This report is submitted weekly to the Contract Administrator and
Purchasing department for auditing purposes.
Summary Chargeback Report - Monthly
This report is a summary of the weekly Chargeback Reports and is
submitted to the Contract Administrator and Purchasing department
along with the month-end invoice.
The Internal Mailing List Activity Report - As Needed
This report details all lists that are currently archived and have
been active within the last year, the number of times each list had
been utilized and date of last update. Access to this report is
restricted to the Contract Administrator, Department Heads and
Administrators and is printed at their request.
2. Reports to be Submitted to Key User Groups:
Active Job Report - AM and PM Daily
Lists all active jobs, their priority and status in the production
cycle. The list is generated twice each business day: at the start of
first shift (@ 8:00 am), and at the start of second shift (@ 4:00 pm).
The lists are made available to the key users by the stated times via
direct access.
Late/Error Job Report - Daily
This report details those jobs that were delivered outside of the
user's specifications, a brief description as to why the lateness or
error occurred and the vendor's recommendations or actions to prevent
further occurrences. This report is specific to key user
department/division and is submitted to the designated contact within
that area.
Various Production and Cost Reports - As Needed
Detail to Come
E. Quality Assurance Programs and Document Specifications
Web Printing
The following is a list of report titles and corresponding colors designated for
use on report covers, (samples attached).
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Title Bar
Ink Color *
Bell Grey 430
Commodity Research Pantone Purple
Convertible Research Green 326
Corporate Bond Research Orange 021
Credit Department Research Red 193
Economic Research Green 356
Emerging Debt Markets Research Green 356
Energy Futures And Options Custom Red
Equity Derivatives Red 485
Fixed Income Research Custom Red
FT- Actuaries World Indices Green 326
Fund Group Black
Fund Group Purple 260
Fund Group Blue 300
Insurance Research Group Red 200
INTL Equities Strategies Gold 871
INV Mgmt Resource Group Brown 159
Investment Research Process Blue
Mortgage Securities Research Custom Red
Municipal Market Research Custom Red
Portfolio Strategy Process Blue
Quantitative Strategy Yellow 108
Real Estate Research Red 193
Research Brief Process Blue
Strategy Brief Process Blue
Goldman Sachs reserves the right to change the color of printed items, as may be
specified in writing, and to the extent such changes are made, Cunningham shall
modify the related printing accordingly.
* All colors for use with uncoated paper stocks unless specifically instructed
to print on coated stocks.
F. Minimum Commitment levels
For the period commencing as of the Commencement Date and continuing to and
including December 31, 1999, Goldman Sachs shall meet the following Minimum
Commitments with respect to the printing of United States Equity and Fixed
Income Research reports (the "Reports"), to the extent such printing is not
performed by entities which are Affiliates of Goldman Sachs:
(i) no less than * of the volume of the Reports shall be printed by
Cunningham, and
(ii) no less than * of the total amount of monies paid for the printing
of the Reports shall be paid to Cunningham.
The volume of printing shall be based on the number of Reports printed and not
on the actual page volume of the Report.
* Confidential treatment requested-portion has been omitted and filed
separately with the Commission.
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III. Service Credits
A. In the event that printing services are not completed as scheduled,
Cunningham shall provide for the delivery of the printed materials by means
capable of reaching the intended recipients in accordance with the schedule that
would have been met had the printing been completed on time. If such arrangement
cannot be made, Cunningham shall provide Goldman Sachs with a refund of *
percent of the cost of the printing and fulfillment services performed by
Cunningham in relation to that portion of the assignment that was not delivered
on time.
B. Cunningham shall reprint any materials that do not meet required
specifications for printed materials at no additional cost to Goldman Sachs. If
the delivery of the printed materials is delayed due to problems with the
quality of the printed material, Cunningham shall provide Goldman Sachs with a
refund of * percent of the cost of the printing and fulfillment services
performed by Cunningham in relation to the delayed delivery.
C. If an assignment for the performance of printing services is deemed unfit
for distribution by Goldman Sachs due to deficiencies in the Services provided
by Cunningham, there shall be no fee owed to Cunningham for the related
Services. Additionally, Goldman Sachs shall be entitled to a credit equal to *
percent of the value of such Services.
D. Cunningham shall keep a record of the Service Credits accumulated during
the Term. The Service Credits shall be off-set against the invoices submitted to
Goldman Sachs on a monthly basis.
* Confidential treatment requested-portion has been omitted and filed
separately with the Commission.
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Schedule B
The Personnel shall include the following:
Name Date of Birth
25
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Schedule C
Goldman Sachs Obligations
Provide adequate supply of paper and related envelopes, for support of
Confirms or Client Statements.
Provide telecommunications links to interface with Goldman Sachs from both
the Print Shop and a second location designated by Cunningham.
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Schedule D
PRICING
In addition to the pricing proposal materials included with Cunningham's
proposal dated January 8, 1996, pricing for the Services shall be as follows:
Price increases may not exceed * to reflect increased costs to Cunningham for
expenses other than paper. As relates to * , the only available increase
relates to the * .
Volume Discounts
Based on the information in the RFP dated October 1995 we estimate the annual
research report web impressions to be approximately * impressions.
This includes all the current work that is being out-sourced.
We propose the following on an annual basis during the life of the contract:
*
The discounts for the period of time from the Commencement Date to the end
of the first calendar year of the Term shall be applied on a pro rata basis. The
stated discounts are not cumulative but apply to that volume of printing beyond
the stated threshold.
Paper Pricing
* for 1st six months then * above average weighted cost for prior *
for every * thereafter during the life of the contract.
* Confidential treatment requested-portion has been omitted and filed
separately with the Commission.
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Schedule E
NON-DISCLOSURE AGREEMENT
I. Non-Disclosure
In connection with services now or in the future performed by the
undersigned for Goldman, Sachs & Co. or for any subsidiary or affiliate of
Goldman, Sachs & Co. (collectively called "Goldman Sachs"), the undersigned
may have access to non-public information or materials describing or
relating to Goldman Sachs or its clients, or third parties to whom Goldman
Sachs has a duty of confidentiality, including materials describing or
relating to the business affairs, policies or procedures of Goldman Sachs
or its clients or such third parties; formulas; strategies; methods;
processes; computer materials including source or object codes, data files,
computer listings, computer programs, and other computer materials
(regardless of the medium in which they are stored); or other information
("Confidential Information"). With respect to such Confidential
Information, the undersigned acknowledges and agrees as follows:
1. The undersigned will hold Confidential Information in strict confidence
and will not, nor will it permit any agent, servant or employee to, copy,
reproduce, sell, assign, license, market, transfer or otherwise dispose of, give
or disclose Confidential Information to any person, firm or corporation
including any partner or employee of Goldman Sachs who does not have a need to
know the Confidential Information.
2. Upon the termination of the services to be performed by the undersigned
(or earlier if requested by Goldman Sachs), the undersigned shall return to
Goldman Sachs all copies of documents, papers or other material relating to
Goldman Sachs or obtained or developed in the course of performing services for
Goldman Sachs, or containing or derived from Confidential Information which are
in the undersigned's possession, together, if requested by Goldman Sachs, with a
certificate signed by the undersigned, in form and substance satisfactory to
Goldman Sachs, to the effect that all such Confidential Information has been
returned.
II. Non-Promotion
The undersigned agrees that the undersigned will not, without the prior
written consent of Goldman Sachs in each instance: (a) use in advertising,
publicity or otherwise the name of Goldman Sachs or any trade name,
trademark, trade device, servicemark, symbol or any abbreviation,
contraction or simulation thereof owned by Goldman Sachs; or (b) represent,
directly or indirectly, that any product or any service provided by the
undersigned has been approved or endorsed by Goldman Sachs.
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III. Non-Employment
The undersigned affirms that the undersigned is not an employee of Goldman
Sachs for any purpose and that the undersigned is not entitled to exercise
any rights, or seek any benefit, accruing to the regular employees of
Goldman Sachs by virtue of the services rendered by the undersigned to
Goldman Sachs or otherwise. The undersigned agrees to provide any
assistance necessary to Goldman Sachs in investigating any illegal or
fraudulent activities, security breaches or similar situations.
IV. Background Check and Testing
The undersigned agrees that in connection with performing the services
contemplated by this Agreement, he or she may be subject to a background
check, including employers, education, credit, criminal public record, drug
screen or other checking or testing, and the undersigned consents to the
foregoing. The undersigned hereby releases Goldman Sachs, its employees and
agents from any and all liability or claims arising from such checking and
testing and the use and reporting of the results thereof except for those
arising due to the negligence of Goldman Sachs.
The obligations created by this Agreement shall survive the termination of
the services of the undersigned. The undersigned acknowledges that any
violation, breach or other failure on the undersigned's part to strictly comply
with this Agreement could materially adversely affect Goldman Sachs and its
business, thus giving rise to suit for monetary damages and/or injunctive relief
for such violation, breach or other failure.
/s/ Michael R. Cunningham
-----------------------------------
(Signature)
Michael R. Cunningham
-----------------------------------
(Print Name)
-----------------------------------
(Date)
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ADDENDUM NO. 1
<TABLE>
<CAPTION>
Reference is made to the Printing Services Agreement dated as of July 12,
1996 (the "Agreement") between CUNNINGHAM GRAPHICS, INC. ("Cunningham") and
GOLDMAN, SACHS & CO. ("Goldman Sachs"), to which this Addendum No. 1 is attached
and of which it is made a part, which Agreement is hereby amended and
supplemented as follows:
1. Defined Terms. All terms defined in the Agreement, except as otherwise
defined herein, shall have the same meanings where used herein.
2. Charges. The Agreement is amended to reflect the following charges:
8 1/2" x 11" per side on 20# white DP or equivalent stock
* uncollated
* corner stitched
* saddle stitch
* tape bind
<S> <C> <C>
9 x 12 insertion charges and the additional insert charges for Goldman
Sachs Research Print Jobs (excluding per bound books). * /M
All other Goldman Sachs jobs to be inserted into 9 x 12 envelopes * /M
3. General.
(a) The Agreement together with the Exhibits and this Addendum replaces
and supersedes all other agreements, written or oral with respect to
its subject matter.
(b) Except as expressly amended and supplemented hereby, the Agreement
remains in full force and effect.
(c) In the event of any conflict between the terms of this Addendum and
the terms of the Agreement, the terms of this Addendum shall prevail.
</TABLE>
IN WITNESS WHEREOF, the parties hereto have caused this Addendum No. 1 to be
signed as of ______________________________________________, 1996
CUNNINGHAM GRAPHICS, INC. GOLDMAN, SACHS & CO.
By: /s/ Michael R. Cunningham By:
__________________________________ __________________________________
President
______________________________________ _____________________________________
Name and Title Name and Title
* Confidential treatment requested-portion has been omitted and filed
separately with the Commission.
