-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PsM2w2FwdK3GJWK+PSHp05iS/reQYhQ4Yn0I/xAJw1DxJUxojxN9PwFc1UuAFBKH 2cwh2TByzqBtFKZjG6ioJQ== /in/edgar/work/20000601/0000950142-00-000502/0000950142-00-000502.txt : 20000919 0000950142-00-000502.hdr.sgml : 20000919 ACCESSION NUMBER: 0000950142-00-000502 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000601 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CUNNINGHAM GRAPHICS INTERNATIONAL INC CENTRAL INDEX KEY: 0001053949 STANDARD INDUSTRIAL CLASSIFICATION: [2750 ] IRS NUMBER: 223561164 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A SEC ACT: SEC FILE NUMBER: 005-55215 FILM NUMBER: 647923 BUSINESS ADDRESS: STREET 1: 100 BURMA RD CITY: JERSEY CITY STATE: NJ ZIP: 07305 BUSINESS PHONE: 2012171990 MAIL ADDRESS: STREET 1: 629 GROVE STREET CITY: JERSEY CITY STATE: NJ ZIP: 07310 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: AUTOMATIC DATA PROCESSING INC CENTRAL INDEX KEY: 0000008670 STANDARD INDUSTRIAL CLASSIFICATION: [7374 ] IRS NUMBER: 221467904 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC TO-T/A BUSINESS ADDRESS: STREET 1: ONE ADP BOULVARD CITY: ROSELAND STATE: NJ ZIP: 07068 BUSINESS PHONE: 2019945000 MAIL ADDRESS: STREET 1: ONE ADP BOULEVARD CITY: ROSELAND STATE: NJ ZIP: 07068 SC TO-T/A 1 0001.txt AMENDMENT NO. 2 TO SCHEDULE TO SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ SCHEDULE TO/A (RULE 14d-100) TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 AMENDMENT NO. 2 CUNNINGHAM GRAPHICS INTERNATIONAL, INC. (Name of Subject Company (Issuer)) AUTOMATIC DATA PROCESSING, INC. and FIS ACQUISITION CORP. (Names of Filing Persons (Offerors)) Common Stock, No Par Value (Title of Class of Securities) 231157108 (CUSIP Number of Class of Securities) James B. Benson, Esq. Automatic Data Processing, Inc. One ADP Boulevard Roseland, New Jersey 07068 (973) 974-5000 Copies to: Douglas A. Cifu, Esq. Paul, Weiss, Rifkind, Wharton & Garrison 1285 Avenue of the Americas New York, NY 10019 (212) 373-3000 (Name, Address and Telephone Numbers of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons) CALCULATION OF FILING FEE - ----------------------------------- ------------------------------ Transaction valuation* $135,625,578 Amount of Filing Fee** $27,125 - ----------------------------------- ------------------------------ * For purposes of calculating the filing fee pursuant to Rule 0-11(d), the Transaction Valuation was calculated on the basis of (i) 5,757,606 shares of common stock, no par value, of Cunningham Graphics International, Inc., (ii) the tender offer price of $22.00 per share, and (iii) 407,193 options to acquire shares with an aggregate value of $3,257,544. ** The filing fee, calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, is 1/50th of one percent of the aggregate Transaction Valuation. [X] Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. Amount Previously Paid: $27,125 Form or Registration No.: Schedule TO Filing Party: Automatic Data Processing, Inc. Date Filed: May 11, 2000 [ ] Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. Check the appropriate boxes below to designate any transactions to which the statement relates: [X] third-party tender offer subject to Rule 14d-1. [ ] issuer tender offer subject to Rule 13e-4. [ ] going-private transaction subject to Rule 13e-3. [ ] amendment to Schedule 13D under Rule 13d-2. Check the following box if the filing is a final amendment reporting the results of the tender offer: [ ] - --------------------- --------------------- CUSIP No. 231157108 Page 2 of 7 Pages - --------------------- --------------------- This Amendment No. 2 ("Amendment No. 2") amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission (the "Commission") on May 11, 2000 (the "Schedule TO") by Automatic Data Processing, Inc., a Delaware corporation ("Parent"), and FIS Acquisition Corp., a New Jersey corporation and a wholly owned subsidiary of ADP (the "Purchaser"), as amended by Amendment No. 1 to the Schedule TO filed with the Commission on May 18, 2000 by Parent and the Purchaser ("Amendment No. 1"). The Schedule TO and Amendment No. 1 relate to the offer by the Purchaser to purchase all the outstanding shares of common stock, no par value (the "Shares"), of Cunningham Graphics International, Inc., a New Jersey corporation (the "Company"), at a purchase price of $22.00 per Share, net to the seller in cash, without interest thereon, upon the terms and subject to the conditions set forth in the Offer to Purchase dated May 11, 2000 (the "Offer to Purchase") and in the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the "Offer") which are annexed to and filed with the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively. This Amendment No. 2 is being filed on behalf of Purchaser and Parent. Any capitalized term used and not otherwise defined herein shall have the meaning ascribed to such term in the Offer to Purchase, the Schedule TO and Amendment No. 1. ITEM 2. SUBJECT COMPANY INFORMATION. Item 2 of the Schedule TO is hereby amended and supplemented to include the following information: Set forth below is certain selected consolidated financial information with respect to the Company and its subsidiaries excerpted from the information contained in the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2000 (the "Company 10-Q"). More comprehensive financial information is included in the Company 10-Q, the Company 10-K and other documents filed by the Company with the Commission, and the following summary is qualified in its entirety by reference to such information. The Company 10-Q, the Company 10-K and such other documents should be available for inspection and copies thereof should be obtainable in the manner set forth in Section 8 of the Offer of Purchase under "Available Information." CUNNINGHAM GRAPHICS INTERNATIONAL, INC. SELECTED FINANCIAL INFORMATION (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) Three Months Ended (unaudited) March 31, March 31, 2000 1999 ------------- ------------- Operating Information: - --------------------- Net sales....................................... $42,994 $18,301 Cost of production.............................. 29,296 12,251 Selling, general and administrative expenses.... 7,161 2,965 Depreciation and amortization................... 1,660 762 Operating income................................ 4,877 2,323 Interest income (expense)....................... (1,325) (42) Other income.................................... 130 13 Income before income taxes...................... 3,682 2,294 Income tax provision............................ 1,223 899 Net income...................................... $2,459 $1,395 - --------------------- --------------------- CUSIP No. 231157108 Page 3 of 7 Pages - --------------------- --------------------- Three Months Ended (unaudited) March 31, March 31, 2000 1999 ------------- ------------- Basic earnings per share........................ $0.43 $0.25 Diluted earnings per share...................... $0.42 $0.25 At At March 31, 2000 December 31, 1999 -------------- ----------------- (unaudited) Balance Sheet Information: - ------------------------- Current assets.................................. $ 44,431 $ 37,151 Total assets.................................... 140,853 132,372 ========= ========= Current liabilities............................. $ 31,865 $ 31,109 Long-term debt, net of current portion.......... 7,117 7,844 Revolving line of credit, net of current portion 44,211 38,419 Obligations under capital leases, net of current portion......................................... 5,651 5,689 Deferred income taxes........................... 3,175 3,176 Common stock.................................... 36,332 36,003 Accumulated other comprehensive income (loss).......................................... 380 469 Retained earnings............................... 12,122 9,663 --------- --------- Stockholders' equity............................ $ 48,834 $ 46,135 --------- --------- $ 140,853 $ 132,372 ========= ========= ITEM 4. TERMS OF THE TRANSACTION. Item 4 of the Schedule TO is hereby amended and supplemented to include the following information: The Purchaser acknowledges, and will comply with, the Commission's view that all conditions to the Offer, other than required regulatory approvals, must be satisfied or waived on or before the Expiration Date. ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS. Item 5 of the Schedule TO is hereby amended and supplemented to include the following information: In connection with the execution of the MOU described below, on June 1, 2000, Parent, Purchaser and the Company amended the Merger Agreement to reduce the aggregate amount of the Termination Fee payable under the circumstances described in Section 12 of the Offer to Purchase under "The Merger Agreement--Fees and Expenses" by reducing the "termination fee" from $4,000,000 to $2,500,000 and by reducing the amount of the limit on the fees and expenses of Parent and Purchaser related to the Offer, the Merger Agreement and the transactions contemplated thereby that may be reimbursed by the Company from $1,000,000 to $750,000. - --------------------- --------------------- CUSIP No. 231157108 Page 4 of 7 Pages - --------------------- --------------------- Reference is made to the description of the proposed divestiture of the Designated Business in Section 12 of the Offer to Purchase under "The Merger Agreement--Designated Business." The Designated Business is Bengal Graphics, Inc. The proposed acquirors of the Designated Business are its former owners who sold the Designated Business to the Company in 1999. None of the proposed acquirors is an officer, director or affiliate of the Company. However, one of the proposed acquirors (who is a former owner of the Designated Business) is currently employed as Senior Vice President of the Designated Business. In addition, no officer, director or affiliate of the Company will receive a personal benefit, directly or indirectly, from the sale of the Designated Business pursuant to the Subsidiary Agreement. ITEM 11. ADDITIONAL INFORMATION. Item 11 of the Schedule TO is hereby amended and supplemented to include the following information: On June 1, 2000, Parent, Purchaser and the parties to the Actions entered into a Memorandum of Understanding (the "MOU") which sets forth their agreement in principle providing for the settlement of the Actions on the terms and subject to the conditions set forth therein, which conditions include (i) court approval, (ii) the execution of an appropriate stipulation of settlement and (iii) the closing of the Merger. The MOU provides for, among other things, the amendment of the Merger Agreement and the disclosure by Parent of certain information, each to the extent set forth elsewhere in this Amendment No. 2. Parent and Purchaser have also agreed in the MOU not to oppose the application by plaintiff's counsel in the Actions for fees of up to $390,000. ITEM 12. EXHIBITS. (a)(5)(C) Form of Memorandum of Understanding signed by Kenneth Sherman, Nat Orme, Michael R. Cunningham, Gordon Mays, Laurence Gerber, James J. Cunningham, Arnold Spinner, Stanley Moss, Cunningham Graphics International, Inc., Automatic Data Processing, Inc. and FIS Acquisition Corp. (d)(11) First Amendment, dated as of June 1, 2000, to the Agreement and Plan of Merger, dated as of May 2, 2000, by and among Automatic Data Processing, Inc., FIS Acquisition Corp. and Cunningham Graphics International, Inc. - --------------------- --------------------- CUSIP No. 231157108 Page 5 of 7 Pages - --------------------- --------------------- SIGNATURE After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: June 1, 2000 AUTOMATIC DATA PROCESSING, INC. By: /s/ James B. Benson ------------------- Name: James B. Benson Title: Corporate Vice President FIS ACQUISITION CORP. By: /s/ James B. Benson ------------------- Name: James B. Benson Title: President - --------------------- --------------------- CUSIP No. 231157108 Page 6 of 7 Pages - --------------------- --------------------- INDEX TO EXHIBITS Exhibit Number Description - -------------- ----------- *(a)(1)(A) Offer to Purchase, dated as of May 11, 2000 *(a)(1)(B) Form of Letter of Transmittal *(a)(1)(C) Form of Notice of Guaranteed Delivery *(a)(1)(D) Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees *(a)(1)(E) Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees *(a)(1)(F) Guidelines for Certification of taxpayer Identification Number on Substitute Form W-9 *(a)(1)(G) Text of press release issued by Automatic Data Processing, Inc. on May 3, 2000 *(a)(1)(H) Summary Advertisement, published May 11, 2000 *(a)(5)(A) Complaint of Kenneth Sherman against Michael R. Cunningham, Gordon Mays, Laurence Gerber, James J. Cunningham, Arnold Spinner, Stanley Moss and Cunningham Graphics International, Inc., filed in the Chancery Division of the Superior Court of New Jersey for Hudson County on May 5, 2000 *(a)(5)(B) Complaint of Nat Orme against Michael R. Cunningham, Gordon Mays, Laurence Gerber, James J. Cunningham, Arnold Spinner, Stanley Moss and Cunningham Graphics International, Inc., filed in the Chancery Division of the Superior Court of New Jersey for Hudson County on May 5, 2000 (a)(5)(C) Form of Memorandum of Understanding signed by Kenneth Sherman, Nat Orme, Michael R. Cunningham, Gordon Mays, Laurence Gerber, James J. Cunningham, Arnold Spinner, Stanley Moss, Cunningham Graphics International, Inc., Automatic Data Processing, Inc. and FIS Acquisition Corp. *(d)(1) Agreement and Plan of Merger, dated as of May 2, 2000, among Automatic Data Processing, Inc., FIS Acquisition Corp. and Cunningham Graphics International, Inc. *(d)(2) Voting and Tender Agreement, dated as of May 2, 2000 among Automatic Data Processing, Inc., FIS Acquisition Corp. and the Shareholders listed therein *(d)(3) Confidentiality Agreement, dated as of January 5, 2000, between Prudential Securities Incorporated, as agent for Cunningham Graphics International, Inc., and ADP Financial Information Services, Inc. *(d)(4) Employment Agreement, dated as of May 2, 2000, between ADP Financial Information Services, Inc., Cunningham Graphics International, Inc., Cunningham Graphics Inc. and Gerald (L.J.) Baillargeon - -------------------- * Previously filed - --------------------- --------------------- CUSIP No. 231157108 Page 7 of 7 Pages - --------------------- --------------------- *(d)(5) Employment Agreement, dated as of May 2, 2000, between ADP Financial Information Services, Inc., Cunningham Graphics International, Inc., Cunningham Graphics Inc. and Michael R. Cunningham *(d)(6) Employment Agreement, dated as of May 2, 2000, between ADP Financial Information Services, Inc., Cunningham Graphics International, Inc., Cunningham Graphics Inc. and Ned Hood *(d)(7) Employment Agreement, dated as of May 2, 2000, between ADP Financial Information Services, Inc., Cunningham Graphics International, Inc., Cunningham Graphics Inc. and Ioannis Lykogiannis *(d)(8) Employment Agreement, dated as of May 2, 2000, between ADP Financial Information Services, Inc., Cunningham Graphics International, Inc., Cunningham Graphics Inc. and Gordon Mays *(d)(9) Employment Agreement, dated as of May 2, 2000, between ADP Financial Information Services, Inc., Cunningham Graphics International, Inc., Cunningham Graphics Inc. and Timothy Mays *(d)(10) Employment Agreement, dated as of May 2, 2000, between ADP Financial Information Services, Inc., Cunningham Graphics International, Inc., Cunningham Graphics Inc. and Robert Needle (d)(11) First Amendment, dated as of June 1, 2000, to the Agreement and Plan of Merger, dated as of May 2, 2000, by and among Automatic Data Processing, Inc., FIS Acquisition Corp. and Cunningham Graphics International, Inc. - -------------------- * Previously filed EX-1 2 0002.txt EXHIBIT (A)(5)(C) .........................................................x KENNETH SHERMAN : : Plaintiff, : SUPERIOR COURT OF : NEW JERSEY v. : CHANCERY DIVISION : HUDSON COUNTY MICHAEL R. CUNNINGHAM, GORDON MAYS, : LAURENCE GERBER, JAMES J. CUNNINGHAM, : DOCKET NO. C-67-00 ARNOLD SPINNER, STANLEY MOSS and : CUNNINGHAM GRAPHICS INTERNATIONAL INC. : CLASS ACTION : Defendants. : .........................................................x NAT ORME, : : Plaintiff, : SUPERIOR COURT OF : NEW JERSEY v. : CHANCERY DIVISION : HUDSON COUNTY MICHAEL R. CUNNINGHAM, GORDON MAYS, : LAURENCE GERBER, JAMES J. CUNNINGHAM, : DOCKET NO. C-69-00 ARNOLD SPINNER, STANLEY MOSS and : CUNNINGHAM GRAPHICS INTERNATIONAL INC. : CLASS ACTION : Defendants. : .........................................................x MEMORANDUM OF UNDERSTANDING The parties to the actions entitled Sherman v. Cunningham, et al., Docket No. C-67-00, and Orme v. Cunningham, et al., Docket No. C-69-00, pending in the Superior Court of the State of New Jersey, Chancery Division, County of Hudson (the "Actions"), Automatic Data Processing, Inc. ("ADP") and FIS Acquisition Corp. ("Acquisition") (collectively, the "Parties"), by their respective attorneys, have reached an agreement in principle providing for the settlement of the Actions on the terms and subject to the conditions set forth below: 1. As a result of the negotiations between the undersigned attorneys for the Parties, the following measures shall be taken in connection with the proposed merger (the "Merger"') provided for in the Agreement and Plan of Merger dated as of May 2, 2000 (the "Merger Agreement') among ADP, Acquisition, and Cunningham Graphics International, Inc. ("Cunningham" or the "Company"): a. Cunningham, ADP, and Acquisition shall cause Section 8.03 of the Merger Agreement to be amended to (i) reduce the termination fee set forth in subparagraph (b) of Section 8.03 from $4,000,000 to $2,500,000; and (ii) reduce the expense reimbursement limit set forth in subparagraph (b) of Section 8.03 from $1,000,000 to $750,000; and b. As promptly as practicable, ADP and Acquisition shall file with the Securities and Exchange Commission (the "SEC") an amendment (the "Amendment") to the Schedule TO filed by them with the SEC in connection with the tender offer contemplated by the Merger Agreement (the "Tender Offer") which describes the following in a manner reasonably acceptable to counsel for all Parties: (i) the amendments to the Merger Agreement set forth in paragraph 1(a) of this Memorandum; 2 (ii) additional facts relating to the divestiture of the "Designated Business" (as defined in Item 4(b)(i) on page 5 of the Company's SC 14D-9 filed on May 11, 2000) including but not limited to the identity of the "Designated Business," the relationship, if any, between Cunningham and the entity to which the Designated Business is being sold, and whether any Cunningham officers or directors will benefit either directly or indirectly from the divestiture; and (iii) Cunningham's Results of Operations for the fiscal first quarter ended March 31, 2000. 2. Subject to such reasonable and appropriate confirmatory discovery as the Parties' counsel determines is satisfactory, the parties will attempt in good faith to agree upon and execute a Stipulation of Settlement and such other documentation as may be required in order to obtain the approval of the Superior Court of the State of New Jersey of the settlement and the dismissal of the Actions upon the terms set forth in this Memorandum of Understanding. The Stipulation of Settlement will expressly provide, inter alia, that Defendants in the Actions (as well as ADP and Acquisition) have denied, and continue to deny, that they have committed or have threatened to commit any violations of law and that they are entering into the Stipulation because the proposed settlement would eliminate the burden, risk and expense of further litigation. The Stipulation will also acknowledge that plaintiffs' actions have caused the amendments to the Merger Agreement and the supplemental disclosures described herein. 3 3. The Parties will present the Settlement to the Superior Court of the State of New Jersey for final approval following appropriate notice to the class members on whose behalf the Actions were instituted (the "Class"), and will use their best efforts to obtain final court approval of the settlement, and the dismissal with prejudice of the Actions, as against the named plaintiffs and the Class. 4. The Stipulation of Settlement will also provide as follows: a. for the complete discharge, dismissal with prejudice, settlement and release of, and an injunction barring, all claims, demands, rights, actions or causes of action, rights, liabilities, damages, losses, obligations, judgments, suits, matters and issues of any kind or nature whatsoever, better known or unknown, contingent or absolute, suspected or unsuspected, disclosed or undisclosed, hidden or concealed, matured or unmatured, that have been, could have been, or in the future can or might be asserted in the Actions or in any court, tribunal or proceeding (including, but not limited to, any claims arising under federal or state law relating to alleged fraud, breach of any duty, negligence, violations of the federal securities laws or otherwise) by or on behalf of any member of the Class, whether individual, class, derivative, representative, legal, equitable or any other type or in any other capacity against the Parties or any or all of their respective past, present or future officers, directors, stockholders, representatives, families, parent entities, associates, 4 affiliates, subsidiaries, employees, financial or investment advisors, consultants, accountants, attorneys, investment bankers, engineers, advisors or agents, heirs, executors, trustees, general or limited partners or partnerships, personal representatives, estates, administrators, predecessors, successors, and assigns (collectively, the "Released Persons") which have arisen, could have arisen, arise now or hereafter arise out of, or relate in any manner to, the allegations, facts, events, transactions, acts, occurrences, statements, representations, misrepresentations, omissions or any other matter, thing or cause whatsoever, or any series thereof, embraced, involved, set forth or otherwise related, directly or indirectly, to any of the complaints filed at any time in the Actions, to the Merger, to the Merger Agreement, to the Tender Offer or to any offering or proxy material, public filings or statements (including, but not limited to, public statements) by any of the defendants in the Actions or any other Released Persons in connection with the Merger, the Merger Agreement or the Tender Offer (collectively, the "Settled Claims"); and b. subject to the Order of the Court, pending final determination of whether the Settlement provided for in the Stipulation of Settlement should be approved, that plaintiffs and all members of the Class, or any of them, are barred and enjoined from commencing, prosecuting, 5 instigating, or in any way participating in the commencement or prosecution of any action asserting any Settled Claims, either directly, representatively, derivatively, or in any other capacity, against any Released Persons which have been or could have been asserted, or which arise out of or relate in any way to any of the transactions or events described in any complaint in the Actions, to the Merger, to the Merger Agreement or to the Tender Offer. 5. The consummation of the Settlement is subject to the drafting and execution of an appropriate Stipulation of Settlement and such other documentation as may be required to obtain final court approval of the settlement and the dismissal of the Actions with prejudice as to all claims asserted therein as against the named Defendants and their affiliates without costs to any party (except as provided for in paragraph 7 below). 6. The Settlement contemplated by this Memorandum of Understanding is binding upon all Parties, but it is understood that it is subject to (a) court approval; (b) the good faith documentation and execution of an appropriate Stipulation of Settlement; and (c) the closing of the Merger. This Memorandum of Understanding shall be null and void and of no force and effect should any of these conditions not be met and, in that event, this Memorandum of Understanding shall not be admissible in any proceeding or be deemed to prejudice any of the positions of the parties with respect to any action. 7. Plaintiffs' Counsel in the Actions intend to apply to the Superior Court of the State of New Jersey for an award of attorneys' fees and reasonable out-of-pocket disbursements (together, the "Fees") in an aggregate amount not to exceed $390,000.00. 6 Subject to the terms and conditions of this Memorandum of Understanding and the Stipulation of Settlement contemplated hereby, ADP, Acquisition and/or their successors in interest will pay Plaintiffs' Counsel the Fees, up to such amount of $390,000.00 as may be awarded by the Superior Court of the State of New Jersey. ADP and Acquisition and/or their successors in interest agree not to oppose Plaintiffs' Counsel's application for Fees up to the amount of $390,000.00. 8. Pending negotiation, execution and Court approval of the Settlement, the plaintiffs in the Actions agree to stay any discovery and to stay any and all other proceedings other than those incident to the Settlement itself. The Parties also agree to use their best efforts to prevent, stay or seek dismissal of or oppose entry of any interim or final relief in favor of any member of the Class in any other litigation against any of the Parties to the Memorandum which challenges the Settlement or otherwise involves a Settled Claim. 9. The Parties shall agree to extensions of time with respect to pleadings and other court filings as are appropriate in the context of this agreement. 10. This Memorandum of Understanding may be executed in any number of counterparts with the same effect as if all Parties hereto had executed the same document. All such counterparts shall be construed together and shall constitute one instrument. 11. This Memorandum of Understanding constitutes the entire agreement among the Parties with respect to the subject matter hereof, and may not be amended nor any of its provisions waived except by a writing signed by all of the signatories hereto. 7 12. This Memorandum of Understanding and the Settlement contemplated by it shall be governed by, and construed in accordance with, the laws of the State of New Jersey, without regard to conflict of laws principles. 13. The Plaintiffs and Plaintiffs' counsel in the Actions represent and warrant that none of Plaintiffs' claims or causes of action referred to in any complaint in the Actions or in this Memorandum of Understanding, including any Settled Claims, have been assigned, encumbered or in any manner transferred in whole or in part. Dated: ---------------------- William J. Pinilis, Esquire 237 South Street Morristown, NJ 07960 (973) 401-1111 Co-Counsel for Plaintiffs and the Class SCHIFFRIN & BARROWAY, LLP By: ----------------- Marc A. Topaz, Esquire 3 Bala Plaza East, Suite 400 Bala Cynwyd, PA (610) 667-7706 Co-Counsel for Plaintiffs and the Class CAULEY & GELLER, LLP By: --------------- Paul Geller, Esquire 7200 West Camino Real, Suite 203 Boca Raton, FL 33433 (561) 740-3000 Co-Counsel for Plaintiffs and the Class 8 PAUL, WEISS, RIFKIND, WHARTON & GARRISON By: ------------------ Allan J. Arffa, Esquire 1285 Avenue of the Americas New York, NY 10019 (212) 373-3000 Counsel for Automatic Data Processing, Inc. and FIS Acquisition Corp. CLEARY, GOTTLIEB, STEEN & HAMILTON By: ----------------------- Daniel S. Sternberg, Esquire One Liberty Plaza New York, NY 10006 (212) 225-2000 GIBBONS, DEL DEO, DOLAN, GRIFFINGER & VECCHIONE By: -------------------- Brian J. McMahon One Riverfront Plaza Newark, New Jersey 07102-5497 (973) 596-4500 Counsel for Defendants Cunningham Graphics International, Inc., Michael R. Cunningham, and other Individual Defendants 9 EX-2 3 0003.txt EXHIBIT (D)(11) FIRST AMENDMENT TO MERGER AGREEMENT FIRST AMENDMENT, dated as of June 1, 2000 (this "First Amendment"), to the Agreement and Plan of Merger, dated as of May 2, 2000 (the "Merger Agreement"), by and among Automatic Data Processing, Inc., a Delaware corporation ("Parent"), FIS Acquisition Corp., a New Jersey corporation and a wholly owned subsidiary of Parent ("Purchaser"), and Cunningham Graphics International, Inc., a New Jersey corporation (the "Company"). Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Merger Agreement. WHEREAS, pursuant to, and subject to the limitations set forth in, Section 8.04 of the Merger Agreement, the Merger Agreement may be amended by action taken by or on behalf of the Boards of Directors of the Company, Parent and Purchaser by an instrument in writing signed on behalf of each of the parties thereto; and WHEREAS, the parties hereto wish to amend the Merger Agreement as set forth below. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows: 1. Amendment. Section 8.03(b) of the Merger Agreement is hereby amended by (a) deleting the phrase "Four Million U.S. Dollars ($4,000,000)" and replacing it with the phrase "Two Million Five Hundred Thousand U.S. Dollars ($2,500,000)" and (b) deleting the phrase "One Million U.S. Dollars ($1,000,000)" and replacing it with the phrase "Seven Hundred Fifty Thousand U.S. Dollars ($750,000)." 2. Miscellaneous. (a) Governing Law. This First Amendment shall be governed by and construed in accordance with the laws of the State of New Jersey except insofar as mandatory provisions of the Securities Act and the Exchange Act apply to the Offer. (b) Counterparts. This First Amendment may be executed in counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same instrument. (c) Continued Force and Effect. Except as expressly amended or modified herein, the provisions of the Merger Agreement are and shall remain in full force and effect. 2 IN WITNESS WHEREOF, the undersigned has executed, or has caused to be executed, this First Amendment on the date first written above. AUTOMATIC DATA PROCESSING, INC. By: /s/ James B. Benson ------------------- Name: James B. Benson Title: Corporate Vice President FIS ACQUISITION CORP. By: /s/ James B. Benson ------------------- Name: James B. Benson Title: President CUNNINGHAM GRAPHICS INTERNATIONAL, INC. By: /s/ Michael Cunningham ---------------------- Name: Michael Cunningham Title: President -----END PRIVACY-ENHANCED MESSAGE-----