As filed with the Securities and Exchange Commission on September 1, 1999
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)
5 Burma Road, Jersey City, New Jersey 07305
(Address of principal executive offices) (Zip Code)
Employee Stock Purchase Plan
(Full title of the plan)
Mr. Michael R. Cunningham
Chairman, President and Chief Executive Officer
5 Burma Road
Jersey City, New Jersey 07305
(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
Calculation of Registration Fee
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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)
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Common Stock, no par
value per share 300,000 $14.375 $4,312,500 $1,199
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(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 August 24, 1999.
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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 Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
(2) The description of the Company's common stock, no par value per share
(the "Common Stock"), contained in Registration Statement No.
000-24021 on Form 8-A filed with the Commission on April 13, 1998; and
(3) All other reports filed by the Company pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by the
Annual Report on Form 10-K referred to in (1) above.
In addition, 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 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,
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the ability of the Company 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 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
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4.1 Employee Stock Purchase Plan
4.2 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)
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4.3 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, a
Professional Corporation
23.1 Consent of Ernst & Young LLP
23.2 Consent of Ernst & Young Chartered Accountants
23.3 Consent of PricewaterhouseCoopers
23.4 Consent of H.R. Margolis Company
23.5 Consent of Gibbons, Del Deo, Dolan, Griffinger & Vecchione, a
Professional Corporation (included in Exhibit 5.1)
24.1 Power 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.
(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.
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(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 1st day of
September, 1999.
CUNNINGHAM GRAPHICS INTERNATIONAL, INC.
By: /s/ Michael R. Cunningham
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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.
Signature Title Date
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/s/ Michael R. Cunningham Chairman, President and Chief September 1, 1999
- --------------------------- Executive Officer
Michael R. Cunningham (Principal Executive Officer)
/s/ Robert M. Okin Senior Vice President, Chief September 1, 1999
- --------------------------- Financial Officer and Treasurer
Robert M. Okin (Principal Financial and
Accounting Officer)
*/s/ James J. Cunningham Director September 1, 1999
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James J. Cunningham
*/s/ Gordon Mays Director September 1, 1999
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Gordon Mays
*/s/ Arnold Spinner Director September 1, 1999
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Arnold Spinner
*/s/ Laurence Gerber Director September 1, 1999
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Laurence Gerber
*/s/ Stanley J. Moss Director September 1, 1999
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Stanley J. Moss
*By: /s/ Michael R. Cunningham
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Michael R. Cunningham
Attorney-in-Fact
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EXHIBIT INDEX
No. Description Method of Filing
4.1 Employee Stock Purchase Plan Filed with this Registration
Statement
4.2 The Company's Certificate of Filed by reference to Exhibit 3.1 to
Incorporation the Company's Registration Statement
on Form S-1 (File No. 333-46541)
filed February 19, 1998
4.3 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, a Statement
Professional Corporation
23.1 Consent of Ernst & Young LLP Filed with this Registration Statement
23.2 Consent of Ernst & Young Chartered Filed with this Registration Statement
Accountants
23.3 Consent of PricewaterhouseCoopers Filed with this Registration Statement
23.4 Consent of H.R. Margolis Company Filed with this Registration Statement
23.5 Consent of Gibbons, Del Deo, Dolan, Included in Exhibit 5.1
Griffinger & Vecchione, a
Professional Corporation
24.1 Power of Attorney Filed with this Registration Statement
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Exhibit 5.1
September 1, 1999
Cunningham Graphics International, Inc.
5 Burma Road
Jersey City, New Jersey 07305
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
the Employee Stock Purchase Plan (the "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. The 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 Plan
has been duly authorized;
4. When the shares of Common Stock are issued upon the due exercise of
stock options granted in accordance with the 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
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Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Employee Stock Purchase Plan of Cunningham Graphics
International, Inc. of our report dated February 3, 1999 with respect to the
consolidated financial statements and schedule of Cunningham Graphics
International, Inc. included in its Annual Report (Form 10-K) for the year ended
December 31, 1998, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
MetroPark, New Jersey
August 30, 1999
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Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Employee Stock Purchase Plan of Cunningham Graphics
International, Inc. of our report dated February 11, 1999 with respect to the
consolidated financial statements of Roda Limited and Roda Print Concepts
Limited (Predecessor) included in the Registration Statement on Form S-1 of
Cunningham Graphics International, Inc., filed with the Securities and Exchange
Commission.
/s/ Ernst & Young Chartered Accountants
Ernst & Young Chartered Accountants
London, England
August 30, 1999
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Employee Stock Purchase Plan of Cunningham Graphics
International, Inc. of our reports dated February 19, 1999 with respect to the
financial statements of Workable Company Limited and Plainduty Limited included
in the Form 8-K/A of Cunningham Graphics International, Inc. filed with the
Securities and Exchange Commission on March 29, 1999.
/s/ PricewaterhouseCoopers
Hong Kong
August 30, 1999
Exhibit 23.4
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Employee Stock Purchase Plan of Cunningham Graphics
International, Inc. of our report dated February 3, 1999 with respect to the
financial statements of Boston Towne Press, Inc. included in the Form 8-K/A of
Cunningham Graphics International, Inc. filed with the Securities and Exchange
Commission on March 29, 1999.
/s/ H.R. Margolis Company
Philadelphia, Pennsylvania
August 30, 1999
Exhibit 24.1
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 the Cunningham
Graphics International, Inc. Employee Stock Purchase 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
September 1, 1999.
/s/ Gordon Mays /s/ Laurence Gerber
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Gordon Mays Laurence Gerber
/s/ Arnold Spinner /s/ Stanley J. Moss
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Arnold Spinner Stanley J. Moss
/s/ James J. Cunningham
- ------------------------------
James J. Cunningham
