1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 18, 1999
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
CENTURY BUSINESS SERVICES, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 7389 22-2769024
(State or Other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation or Classification Code Number) Identification Number)
Organization)
6480 ROCKSIDE WOODS BOULEVARD, SOUTH
SUITE 330
CLEVELAND, OHIO 44131
(216) 447-9000
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
---------------------
FRED M. WINKLER
PRESIDENT AND CHIEF OPERATING OFFICER
6480 ROCKSIDE WOODS BOULEVARD, SOUTH
SUITE 330
CLEVELAND, OHIO 44131
(216) 447-9000
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
---------------------
With copy to:
ALAN M. UTAY
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
1700 PACIFIC AVENUE, SUITE 4100
DALLAS, TEXAS 75201-4675
(214) 969-2800
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after the effective date of this Registration Statement.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, 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(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. [ ]
---------------------
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE(1)
- -------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 per
share............................ 15,000,000 shares $11.6875 $175,312,500 $48,737
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 457(c) of the Securities Act of 1933, the registration fee
is calculated based on the average of the high and low prices for the Common
Stock, as reported on the Nasdaq National Market on June 15, 1999.
---------------------
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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
2
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED JUNE 18, 1999
PROSPECTUS
15,000,000 SHARES
CENTURY BUSINESS SERVICES, INC.
6480 ROCKSIDE WOODS BOULEVARD, SOUTH
SUITE 330
CLEVELAND, OHIO 44131
(216) 447-9000
COMMON STOCK
We will offer and sell, from time to time, in one or more offerings, shares
of our common stock to acquire assets, businesses or securities or when holders
of our convertible securities that we have issued to acquire assets, businesses
or securities convert them or are due an interest payment thereon.
We will negotiate the terms of these acquisitions with the persons who own
or control the assets, businesses or securities that we wish to acquire. The
shares of our common stock that we issue in these acquisitions will be valued at
prices reasonably related to the market price of our common stock at either the
time we enter into the agreement for the acquisition or the time we issue and
deliver the shares. No person will pay underwriting discounts or commissions
when we issue our common stock in these acquisitions. But in certain
acquisitions, finder's fees may be paid. Any person receiving these fees may be
deemed an "underwriter" under the Securities Act of 1933. Also, if that person
sells for a profit shares of our common stock purchased by that person, that
profit may be deemed to be underwriting commissions or discounts under the
Securities Act.
Our common stock trades on the Nasdaq National Market under the symbol
"CBIZ." On June 17, 1999, the last reported sale price of our common stock on
the Nasdaq National Market was $11.4688 per share.
---------------------
CONSIDER CAREFULLY THE RISK FACTORS BEGINNING ON PAGE 1 OF THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is , 1999.
3
TABLE OF CONTENTS
PAGE
----
Risk Factors................................................ 1
Uncertainty of Forward-Looking Statements................... 1
About this Prospectus....................................... 1
Century Business Services, Inc.............................. 2
Description of Capital Stock................................ 3
Legal Matters............................................... 4
Experts..................................................... 4
Where You Can Find More Information......................... 4
This prospectus incorporates important business and financial information
about us that is not included or delivered with this prospectus. Stockholders
may obtain this information from us without charge upon written or oral request
to the following:
Century Business Services, Inc.
6480 Rockside Woods Boulevard, South
Suite 330
Cleveland, Ohio 44131
Attn: Investor Relations
(216) 447-9000
If you would like to request documents from us, please do so by no later
than five business days before the date you must make your investment decision.
If you request any incorporated documents, we will mail them to you by first
class mail or other equally prompt means as soon as practicable after we receive
your request.
(i)
4
RISK FACTORS
Before acquiring our common stock, you should carefully consider all of the
information in this prospectus, any prospectus supplement, and the documents and
risk factors incorporated by reference herein.
UNCERTAINTY OF FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement and the documents incorporated
by reference herein may contain forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934. When used in this prospectus, words such as "anticipate,"
"believe," "estimate," "expect," "intend," "predict," "project," and similar
expressions, as they relate to us or our management, identify forward-looking
statements. These forward-looking statements are based on the beliefs of our
management as well as assumptions made by and information currently available to
us. These forward-looking statements are subject to certain risks, uncertainties
and assumptions, including those risks, uncertainties and assumptions discussed
in this prospectus and in our filings under the Exchange Act and those related
to the following:
- the impact of general economic conditions in the United States;
- industry conditions, including competition;
- capital expenditure requirements;
- legislative or regulatory requirements;
- taxes; and
- access to capital markets.
Should one or more of these risks or uncertainties materialize, or should
underlying assumptions prove incorrect, actual results may vary materially from
those anticipated, expected or projected. Such forward-looking statements
reflect our current views with respect to future events and are subject to these
and other risks, uncertainties and assumptions relating to our operations,
results of operations, growth strategy and liquidity. All subsequent written and
oral forward-looking statements attributable to us or individuals acting on our
behalf are expressly qualified in their entirety by this paragraph. You should
specifically consider the various factors identified in this prospectus, any
prospectus supplement and the documents incorporated by reference herein which
could cause actual results to differ.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission utilizing a "shelf registration" process.
Under this shelf process, we may offer and sell, from time to time, in one or
more offerings, shares of our common stock to acquire assets, businesses or
securities or when holders of our convertible securities that we have issued to
acquire assets, businesses or securities convert them or are due an interest
payment thereon. We may sell through these offerings up to a total of 15,000,000
shares of our common stock.
We will negotiate the terms of these acquisitions with the persons who own
or control the assets, businesses or securities that we wish to acquire. The
shares of our common stock that we issue in these acquisitions will be valued at
prices reasonably related to the market price of our common stock at either the
time we enter into the agreement for the acquisition or the time we issue and
deliver the shares. No person will pay underwriting discounts or commissions
when we issue our common stock in these acquisitions. But in certain
acquisitions, finder's fees may be paid. Any person receiving these fees may be
deemed an "underwriter" under the Securities Act of 1933. Also, if that person
sells for a profit shares of our common stock purchased by that person, that
profit may be deemed to be underwriting commissions or discounts under the
Securities Act.
1
5
You should read both this prospectus and any prospectus supplement together
with additional information described under the heading "Where You Can Find More
Information."
CENTURY BUSINESS SERVICES, INC.
We are a diversified services company that, acting through our
subsidiaries, provides professional outsourced business services primarily to
small and medium-sized businesses, as well as individuals, governmental
entities, and not-for-profit enterprises throughout the United States.
We offer integrated services in the following areas:
- accounting, tax, valuation, and advisory services;
- benefits administration and insurance services;
- human resources and payroll services;
- performance consulting services;
- information technology services; and
- specialty insurance.
We provide these services through a network of more than 200 offices in 36
states, plus approximately 650 Century Small Business Solutions franchisee
offices in 47 states. As of June 1, 1999, we served more than 100,000 business
clients, of which approximately 54,000 are served through the Century Small
Business Solutions franchisee network. Management estimates that our clients
have more than 2.4 million employees including approximately 400,000 employed by
clients of the Century Small Business Solutions franchisee network.
Our clients typically have fewer than 500 employees and prefer to focus
their resources on the operation of their core business while allowing us to
provide non-core administrative functions. In many instances, outsourcing
non-core administrative functions allows clients to enhance productivity, reduce
costs and improve service, quality and efficiency with regard to their core
business without the distraction of performing non-core administrative
functions.
Our goal is to be the nation's leading provider of outsourced business
services to small and medium-sized companies. Our strategies to achieve this
include:
- continuing to provide clients with a broad range of high quality products
and services;
- continuing to expand locally through internal growth by:
- increasing the number of clients we serve, and
- increasing the number of products and services we provide to existing
clients; and
- continuing to expand nationally through acquisitions.
We recently established a new division, CBIZ Interactive, to provide and
enhance our information technology services. Through CBIZ Interactive, we offer
a wide range of information technology services, from creating strategic
technology plans to developing and implementing software and hardware solutions.
We have also acquired Bratch Innovation, Inc., a privately-held internet
solutions company. By acquiring Bratch, which is operated as part of CBIZ
Interactive, we have enhanced our information technology services by providing
internet-based solutions for our clients' operational, marketing and e-commerce
needs. Specifically, we now license software to our customers to speed up their
web site development process and allow them to update their web sites without
technical expertise. Also, we provide digital branding and direct hit marketing,
network performance analysis, strategic consulting services and ongoing support
services for our on-line solutions, from content maintenance to site
administration application development and site log analysis.
2
6
In addition, we have determined that our risk-bearing specialty insurance
segment is no longer part of our strategic long-term growth objectives. As a
result, in April 1999, we adopted a formal plan to divest of this segment. We
expect to complete this divestiture before December 31, 1999.
We are incorporated under the laws of the State of Delaware. The address of
our principal executive offices is 6480 Rockside Woods Boulevard, South, Suite
330, Cleveland, Ohio 44131, and our telephone number is (216) 447-9000.
Additional information concerning us and our subsidiaries is included in
the company reports and other documents incorporated by reference in this
prospectus.
DESCRIPTION OF CAPITAL STOCK
Our Board of Directors has the authority to issue up to 250,000,000 shares
of our common stock. As of June 10, 1999, 81,317,395 shares of our common stock
were outstanding. Our stockholders are entitled to one vote per share on all
matters submitted to a vote of stockholders. In addition, our stockholders may
receive dividends, if any, on a pro rata basis that our Board of Directors may
declare from time to time from legally available funds. Upon our liquidation,
dissolution or winding up, our stockholders would be entitled to share ratably
in any assets available for distribution to them after payment of all our
obligations then outstanding. Our stockholders do not have cumulative voting
rights or preemptive or other rights to acquire or subscribe to additional,
unissued or treasury shares. The shares of our common stock currently
outstanding are validly issued, fully paid and nonassessable.
Our Board of Directors is authorized without further stockholder approval
to issue from time to time shares of our common stock in one or more series and,
except for the rights and restrictions discussed above, to fix or alter the
relative, participant, optional or special rights and any qualifications,
limitations or restrictions of the shares of each such series. The issuance of
any new series of our common stock may have the effect of delaying, deferring or
preventing a change in control of our management without further action by our
stockholders and may adversely affect the voting and other rights of our common
stockholders. The issuance of any new series of our common stock with voting and
conversion rights may adversely affect the voting power of our common
stockholders, including the loss of voting control to others. We have no present
plans to issue any new series of our common stock.
We have the following provisions in our bylaws which could be considered
"anti-takeover" provisions: (i) a bylaw requiring that, to remove a director, a
majority of shares of our then outstanding common stock or two-thirds of the
other directors must vote to remove that director and (ii) a bylaw providing
that, unless otherwise provided by law, only our Board of Directors or our
President may call special meetings of stockholders. These bylaws may delay
stockholder actions on certain business combinations and on electing new members
to our Board of Directors. These potential delays may discourage a stockholder
who desires to participate in a business combination or to elect a new director
from purchasing our common stock on the open market.
We are also subject to Section 203 of the Delaware General Corporation Law,
which regulates corporate acquisitions. In general, Section 203 prohibits a
publicly held Delaware corporation from engaging in a "business combination"
with an "interested stockholder" for a period of three years following the date
the person became an interested stockholder, unless:
- the board of directors approved the transaction in which such stockholder
became an interested stockholder before the date the interested
stockholder attained such status;
- upon consummation of the transaction that resulted in the stockholder
becoming an interested stockholder, such stockholder owned at least 85%
of the corporation's voting stock outstanding at the time the transaction
commenced, excluding shares owned by persons who are directors and also
officers; or
- on or after such date the business combination is approved by the board
of directors and authorized at an annual or special meeting of
stockholders.
3
7
A "business combination" generally includes a merger, asset or stock sale, or
other transaction resulting in a financial benefit to the interested
stockholder. In general, an "interested stockholder" is a person who, together
with affiliates and associates, owns, or within three years before the
determination of interested stockholder status, did own, 15% or more of a
corporation's voting stock.
LEGAL MATTERS
Akin, Gump, Strauss, Hauer & Feld, L.L.P. is passing on the validity of the
shares of our common stock to be offered hereby. Mr. Rick L. Burdick, a partner
of Akin, Gump, Strauss, Hauer & Feld, L.L.P., is a director of Century and, as
of June 1, 1999, owned 3,500 shares of our common stock, warrants to purchase
5,534 shares of our common stock, and options to purchase 50,000 shares of our
common stock.
EXPERTS
Our consolidated and combined financial statements and schedules as of
December 31, 1998 and 1997, and for each of the years in the three year period
ended December 31, 1998 are incorporated by reference herein and in the
registration statement of which this prospectus is a part in reliance upon the
report of KPMG LLP, independent certified public accountants, incorporated by
reference herein, upon the authority of said firm as experts in accounting and
auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
any document that we file with the SEC at its public reference rooms in
Washington, D.C., New York, New York, and Chicago, Illinois. You may also call
the SEC at 1-800-SEC-0330 for further information on the public reference rooms.
Our SEC filings are also available to you free of charge at the SEC's web site
at http://www.sec.gov. In addition, you may read and copy our reports, proxy
statements and other information at the offices of the National Association of
Securities Dealers, Inc., Reports Section, 1735 K Street, N.W., Washington, D.C.
20006.
We filed a registration statement on Form S-4 to register with the SEC the
shares of our common stock to be offered hereby. This prospectus is a part of
that registration statement. As allowed by SEC rules, this prospectus does not
contain all of the information you can find in the registration statement or the
exhibits to the registration statement.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is considered to be part of this prospectus, and
information that we file later with the SEC will automatically update and
supersede previously filed information, including information contained in this
document.
We incorporate by reference the documents listed below and any future
filings we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act until this offering has been completed:
- Century's Annual Report on Form 10-K for the year ended December 31,
1998;
- Century's Quarterly Report on Form 10-Q for the three months ended March
31, 1999;
- Century's Proxy Statement dated March 24, 1999 regarding the annual
meeting of stockholders;
- Century's Current Report on Form 8-K filed on January 12, 1999;
- Century's Current Report on Form 8-K filed on April 9, 1999; and
- Century's Current Report on Form 8-K filed on April 22, 1999.
4
8
You may request free copies of these filings by writing or telephoning us
at the following address:
Century Business Services, Inc.
6480 Rockside Woods Boulevard, South
Suite 330
Cleveland, Ohio 44131
Attn: Investor Relations
(216) 447-9000
You should rely on the information incorporated by reference or provided in
this prospectus or any prospectus supplement. We have authorized no one to
provide you different information. We are not making an offer of these
securities in any state where the offer is not permitted. You should not assume
that the information in this prospectus or any prospectus supplement is accurate
as of any date other than the date on the front of the document.
5
9
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
15,000,000 SHARES
CENTURY BUSINESS SERVICES, INC.
COMMON STOCK
--------------------
PROSPECTUS
--------------------
, 1999
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
10
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20 -- INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") empowers a Delaware corporation to indemnify any person who was or is a
party, or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. The indemnity may include
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, provided that such person acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful. A Delaware corporation may indemnify past or present officers and
directors of such corporation or of another corporation or other enterprise at
the former corporation's request, in an action by or in the right of the
corporation to procure an enterprise at the former corporation's request, in an
action by or in the right of the corporation to procure a judgment in its favor
under the same conditions, except that no indemnification is permitted without
judicial approval if the officer or director is adjudged to be liable to the
corporation. Where an officer or director is successful on the merits or
otherwise in defense of any action referred to above, or in defense of any
claim, issue or matter therein, the corporation must indemnify such person
against the expenses (including attorneys' fees) that such person actually and
reasonably incurred in connection therewith. Section 145 further provides that
any indemnification shall be made by the corporation only as authorized in each
specific case upon a determination that indemnification of such person is proper
because he has met the applicable standard of conduct set forth by:
- the stockholders;
- the board of directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding;
- a committee of directors who are not parties to such action, suit or
proceeding designated by majority vote by such disinterested directors
even if less than a quorum; or
- an independent legal counsel in a written opinion, if there are no such
disinterested directors, or if such disinterested directors so direct.
Section 145 further provides that indemnification pursuant to its
provisions is not exclusive of other rights of indemnification to which a person
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
The Amended and Restated Certificate of Incorporation, as amended, of
Century Business Services, Inc. (the "Company") entitles its Board of Directors
to provide for indemnification of directors and officers to the fullest extent
provided by law, except for liability for:
- any breach of director's duty of loyalty to the Company or its
stockholders;
- acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
- unlawful payments of dividends;
- unlawful stock purchases or redemptions; or
- any transaction from which the director derived an improper personal
benefit.
II-1
11
Article VII of the Amended and Restated Bylaws of the Company (the
"Bylaws") provides that to the fullest extent and in the manner permitted by the
laws of the State of Delaware and specifically as is permitted under Section 145
of the DGCL, the Company shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
other than an action by or in the right of the Company, by reason of the fact
that such person is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with such action, suit, or proceeding if such person acted in good
faith and in a manner he reasonably believed to be in and not opposed to the
best interests of the Company and with respect to any criminal action or
proceeding, such person had no reasonable cause to believe his conduct was
unlawful. Determination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent shall
not, of itself, create a presumption that a person did not act in good faith and
in a manner such person reasonably believed to be in and not opposed to the best
interests of the Company, and with respect to any criminal action or proceeding,
had reasonable cause to believe his conduct was lawful.
The Bylaws provide that any decision as to indemnification shall be made:
- by the Board of Directors of the Company by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or
proceeding;
- if such a quorum is not obtainable, or even if obtainable, if a quorum of
disinterested directors so directs, by independent legal counsel in a
written opinion; or
- by the stockholders.
The Board of Directors of the Company may authorize indemnification of
expenses incurred by an officer or director in defending a civil or criminal
action, suit or proceeding in advance of the final disposition of such action,
suit or proceeding. Indemnification pursuant to these provisions is not
exclusive of any other rights to which those seeking indemnification may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise and shall continue as to a person who has ceased to be a
director or officer. The Company may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of the
Company.
Further, the Bylaws provide that the indemnity provided will be extended to
the directors, officers, employees and agents of any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger that, if its separate existence has continued, would have had the power
and authority to indemnify its directors, officers, and employees or agents so
that any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under the provisions of the Bylaws with respect to the resulting or
surviving corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
The Company currently maintains a separate insurance policy relating to its
directors and officers, under which policy such directors and officers are
insured, within the limits and subject to the limitations of the policy, against
certain expenses in connection with the defense of certain claims, actions,
suits or proceedings, and certain liabilities which might be imposed as a result
of such claims, actions, suits or proceedings, which may be brought against them
by reason of being or having been such directors or officers.
The Securities and Exchange Commission has issued a policy statement that
the indemnification of officers and directors for liabilities under the
Securities Act of 1933 is against public policy as expressed in the Act, and is,
therefore, unenforceable.
II-2
12
ITEM 21 -- EXHIBITS
The following Exhibits are filed as part of this Registration Statement:
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
3.1 -- Amended and Restated Certificate of Incorporation of the
Company (filed as Exhibit 3.1 to the Registration
Statement on Form 10, Commission File No. 000-25890 and
incorporated herein by reference).
3.2 -- Certificate of Amendment to the Amended and Restated
Certificate of Incorporation of the Company dated October
18, 1996 (filed as Exhibit 3.2 to the Annual Report on
Form 10-K for the fiscal year ended December 31, 1996 and
incorporated herein by reference).
3.3 -- Certificate of Amendment to the Amended and Restated
Certificate of Incorporation of the Company effective
December 23, 1997 (filed as Exhibit 3.3 to the Annual
Report on Form 10-K for the fiscal year ended December
31, 1997 and incorporated herein by reference).
3.4 -- Certificate of Amendment to the Amended and Restated
Certificate of Incorporation of the Company dated
September 10, 1998 (filed as Exhibit 3.4 to the
Registration Statement on Form S-3 dated September 23,
1998, Commission File No. 333-64109, and incorporated
herein by reference).
3.5 -- Amended and Restated Bylaws of the Company (filed as
Exhibit 3.2 to the Registration Statement on Form 10,
Commission File No. 000-25890 and incorporated herein by
reference).
4.1 -- Form of Stock Certificate of Common Stock of the Company
(filed as Exhibit 4.1 to the Registration Statement on
Form S-3 dated September 23, 1998, Commission File No.
333-64109, and incorporated herein by reference).
5.1* -- Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
21.1* -- Subsidiaries of the Registrant.
23.1* -- Consent of KPMG LLP.
23.2* -- Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
(included in its opinion filed as Exhibit 5.1 hereto)
24.1* -- Power of Attorney (included on the signature page of this
Registration Statement)
- ---------------
* Filed herewith
ITEM 22 -- UNDERTAKINGS
The undersigned company hereby undertakes:
(A) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(1) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(2) to reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) that, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Securities and Exchange Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than
a 20% change in the
II-3
13
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement; and
(3) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in the Registration Statement;
(B) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(C) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of this Registration Statement.
The undersigned company hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the company's annual
report pursuant to Section 13(a) or section 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the company
pursuant to the foregoing provisions, or otherwise, the company has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act 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 and will be governed by the final
adjudication of such issue.
The undersigned company hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11, or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
The undersigned company hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-4
14
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-4 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cleveland, State of Ohio, on June 17, 1999.
CENTURY BUSINESS SERVICES, INC.
By: /s/ FRED M. WINKLER
----------------------------------
Fred M. Winkler
President and Chief Operating
Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Michael G. DeGroote and Fred M. Winkler,
and each of them, with full power to act without the other, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him in any and all capacities, to sign any amendments to
this Registration Statement, (including post-effective amendments and amendments
thereto) and any registration statement relating to the same offering as this
Registration Statement that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act of 1933, as amended, and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that each attorney-in-fact and
agents, or either of them, or their substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
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 indicated on June 17, 1999.
SIGNATURE TITLE
--------- -----
/s/ MICHAEL G. DEGROOTE Chief Executive Officer and Chairman of the
- ----------------------------------------------------- Board (Principal Executive Officer)
Michael G. DeGroote
/s/ FRED M. WINKLER President and Chief Operating Officer and
- ----------------------------------------------------- Director
Fred M.Winkler
/s/ CHARLES D. HAMM, JR. Senior Vice President and Chief Financial
- ----------------------------------------------------- Officer (Principal Accounting and Financial
Charles D. Hamm, Jr. Officer)
/s/ RICK L. BURDICK Director
- -----------------------------------------------------
Rick L. Burdick
/s/ JOSEPH S. DIMARTINO Director
- -----------------------------------------------------
Joseph S. DiMartino
/s/ HARVE A. FERRILL Director
- -----------------------------------------------------
Harve A. Ferrill
Director
- -----------------------------------------------------
Hugh P. Lowenstein
/s/ RICHARD C. ROCHON Director
- -----------------------------------------------------
Richard C. Rochon
II-5
15
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
3.1 -- Amended and Restated Certificate of Incorporation of the
Company (filed as Exhibit 3.1 to the Registration
Statement on Form 10, Commission File No. 000-25890 and
incorporated herein by reference).
3.2 -- Certificate of Amendment to the Amended and Restated
Certificate of Incorporation of the Company dated October
18, 1996 (filed as Exhibit 3.2 to the Annual Report on
Form 10-K for the fiscal year ended December 31, 1996 and
incorporated herein by reference).
3.3 -- Certificate of Amendment to the Amended and Restated
Certificate of Incorporation of the Company effective
December 23, 1997 (filed as Exhibit 3.3 to the Annual
Report on Form 10-K for the fiscal year ended December
31, 1997 and incorporated herein by reference).
3.4 -- Certificate of Amendment to the Amended and Restated
Certificate of Incorporation of the Company dated
September 10, 1998 (filed as Exhibit 3.4 to the
Registration Statement on Form S-3 dated September 23,
1998, Commission File No. 333-64109, and incorporated
herein by reference).
3.5 -- Amended and Restated Bylaws of the Company (filed as
Exhibit 3.2 to the Registration Statement on Form 10,
Commission File No. 000-25890 and incorporated herein by
reference).
4.1 -- Form of Stock Certificate of Common Stock of the Company
(filed as Exhibit 4.1 to the Registration Statement on
Form S-3 dated September 23, 1998, Commission File No.
333-64109, and incorporated herein by reference).
5.1* -- Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
21.1* -- Subsidiaries of the Registrant.
23.1* -- Consent of KPMG LLP.
23.2* -- Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
(included in its opinion filed as Exhibit 5.1 hereto)
24.1* -- Power of Attorney (included on the signature page of this
Registration Statement)
- ---------------
*Filed herewith
1
EXHIBIT 5.1
[AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.]
June 18, 1999
Century Business Services, Inc.
6480 Rockside Woods Boulevard, South
Suite 330
Cleveland, Ohio 44131
Ladies and Gentlemen:
We have acted as counsel to Century Business Services, Inc., a
Delaware corporation (the "COMPANY"), in connection with the filing of a
registration statement on Form S-4 (as amended, the "REGISTRATION STATEMENT")
with the Securities and Exchange Commission pursuant to the Securities Act of
1933, as amended (the "SECURITIES ACT"), and the rules and regulations
promulgated thereunder. The Registration Statement relates to an aggregate of
up to 15,000,000 shares (the "SHARES") of common stock, par value $0.01 per
share ("COMMON STOCK"), of the Company, which may be issued by the Company from
time to time in the future on the completion of acquisitions of assets,
businesses or securities ("ACQUISITIONS") or the conversion of or payment of
interest on convertible securities issued by the Company in connection with
such acquisitions of other assets, businesses or securities.
We have, as counsel, examined originals or copies, certified or
otherwise identified to our satisfaction, of such corporate records,
agreements, documents and other instruments, and such certificates or
comparable documents of public officials and of officers and representatives of
the Company, and have made such inquiries of such officers and representatives,
and reviewed such questions of law as we have deemed relevant, necessary or
appropriate as a basis for the opinion hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to original documents of documents submitted to us as certified or
photostatic copies and the authenticity of the originals of such latter
documents. As to all questions of fact material to this opinion, we have
relied upon representations of the Company.
Based upon such examination and representations, we advise you that,
in our opinion, when the Registration Statement becomes effective under the
Securities Act, and the Shares are
2
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
Century Business Services, Inc.
June 18, 1999
Page 2
issued in connection with the Acquisitions, the Shares will be validly issued,
fully paid and non-assessable.
In connection with the opinion expressed above, we have assumed that,
at or prior to the time of the delivery of any Shares, (i) the Board of
Directors of the Company (and, to the extent required by applicable law, the
stockholders of the Company) shall have duly authorized and approved the
Acquisition pursuant to which such Shares are being issued and shall have duly
authorized and approved the issuance of such Shares pursuant to such
Acquisition and such authorizations shall not have been modified or rescinded,
(ii) there are sufficient authorized and unissued shares of Common Stock to
satisfy such issuance, (iii) the Registration Statement shall have been
declared effective and such effectiveness shall not have been terminated or
rescinded, (iv) there shall not have occurred any change in law affecting the
validity or enforceability of such Shares and (v) there shall not have occurred
any change in the Certificate of Incorporation or Bylaws of the Company. We
have also assumed that the consideration received by the Company for such
Shares in any such Acquisition is lawful consideration and equals or exceeds in
value the aggregate par value of the Shares issued and that neither the
issuance or delivery of such Shares, nor the compliance by the Company with the
terms of such Shares, will violate any applicable law or will result in a
violation of any provision of any instrument or agreement then binding upon the
Company, or any restriction imposed by any court or governmental body having
jurisdiction over the Company.
The foregoing opinion is limited to the corporate laws of the State of
Delaware and the Federal laws of the United States of America, and we express
no opinion as to the effect on the matters covered by this letter of any other
law.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In addition, we consent to the reference to us under
the caption "Legal Matters" in the prospectus forming a part of the
Registration Statement.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose.
Sincerely yours,
/S/ AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
1
Exhibit 21.1
SUBSIDIARY COMPANIES OF CENTURY BUSINESS SERVICES, INC.
AS OF JUNE 1, 1999
1. CBSI Management Co. (Ohio)
2. Contract Operations Planning, Incorporated (Ohio)
3. Contract Surety Reinsurance Corp. (Ohio)
4. Commercial Surety Agency, Inc. d.b.a. Century Surety Underwriters (Ohio)
5. Century Surety Underwriters, Inc. (Indiana)
6. Century Surety Company (Ohio)
7. American Inspection and Audit Services, Inc. (Ohio)
8. Continental Heritage Insurance Company (Ohio)
9. CSC Insurance Agency, Inc. (Ohio)
10. Evergreen National Indemnity Company (Ohio)
11. SMR & Co. Business Services (Ohio)
12. Millisor Firm Co., Inc. (Ohio)
13. The Benefits Group Agency, Inc. (Ohio)
14. TBG Investment Advisors Agency, Inc. (Ohio)
15. Next Risk Management, Inc. (Ohio)
16. Surety Associates II, Inc. (Connecticut)
17. Connecticut Escrow, Inc. (Ohio)
18. Marvel Consultants, Inc. (Ohio)
19. ERIC Agency, Inc. (Colorado)
20. ZA Business Services, Inc. (Ohio)
21. St. James General Agency, Inc. (Texas)
22. Century Payroll, Inc. (Ohio)
23. BMS Employee Benefits, Inc. (Virginia)
24. Valuation Counselors Group, Inc. (Ohio)
25. Century Small Business Solutions, Inc. (Ohio)
26. Funds Administration Services, Inc. (Ohio)
27. Tanker & Associates, Inc. (Ohio)
28. CKS Business Services, Inc. (Ohio)
29. Trilogy Associates, Inc. (Ohio)
30. National Benefit Systems of Arizona, Inc. (Arizona)
31. SR Business Services, Inc. (Ohio)
32. SKB Business Services, Inc. (Ohio)
33. Century Capital Group, Inc. (Ohio)
34. Health Administration Services, Inc. (Ohio)
35. Bass Consultants of Ohio, Inc. (Ohio)
36. Rootberg Business Services, Inc. (Ohio)
37. Robert D. O'Byrne & Associates, Inc. (Missouri)
38. The Grant Nelson Group, Inc. (Missouri)
39. BCC Business Services, Inc. (Ohio)
2
40. Kaufman Davis Business Services, Inc. (Ohio)
41. Continuous Learning Group, Inc. (Ohio)
42. Envision Development Group, Inc. (Ohio)
43. Multi-Dimensional International Consultants, Inc. (Ohio)
44. Employers Select Plan Agency of Ohio, Inc. (Ohio)
45. M. T. Donahoe and Associates, Inc. (Ohio)
46. National Retirement Planning, Inc. (Pennsylvania)
47. Business Valuation Services, Inc. (Ohio)
48. Love Insurance Agency, Inc. (Ohio)
49. BA Business Services, Inc. (Ohio)
50. Managed Care Solutions, Inc. (Illinois)
51. SK&B Business Services, Inc. (Ohio)
52. Varney Business Services, Inc. (Ohio)
53. Ross Gordon & Associates, Inc. (California)
54. S & S Business Services, Inc. (Ohio)
55. CBIZ Technologies, Inc.
56. KA Consulting Services, Inc. (Ohio)
57. Moore, Tyler & Company, Inc. (Ohio)
58. MRC Business Services, Inc. (Ohio)
59. S&L Business Services, Inc. (Georgia)
60. Sloan and Letson Investment Advisors, Inc. (Georgia)
61. Rosemont Business Services, Inc. (California)
62. Highwood Associates, Inc. (Illinois)
63. BVKT Business Services, Inc. (Ohio)
64. SLW Business Services, Inc. (Ohio)
65. Century Retirement & Wealth Management Services, Inc. (Ohio)
66. DP & Co. Business Services, Inc. (Ohio)
67. RS & A Business Services, Inc. (Colorado)
68. Southern Ohio Benefits Agency, Inc. (Ohio)
69. Cornerstone Broker Insurance Services Agency, Ltd. (Ohio)
70. Gibraltor Real Estate Services Corporation (Illinois)
71. Century Risk Services Company (Ohio)
72. Century Surety Services Group, Inc. (Ohio)
73. Century Agency Management Group, Inc. (Ohio)
74. MHM Business Services, Inc. (Ohio)
75. G&C Business Services, Inc. (Ohio)
76. Beall, Garner, Screen and Geare, Inc. (Maryland)
77. Niederhoffer-Henkel & Company, Inc. (Ohio)
78. RRSS & Company Business Services, Inc. (Ohio)
79. MRP Business Solutions Group, Inc. (Ohio)
80. Beatty Satchell Business Services, Inc. (Maryland)
81. PDA Business Services, Inc. (Ohio)
82. Duitch, Franklin & Company, LLP (Ohio)
83. The Weiss Group, Inc. (Ohio)
84. Devon Tax Group, LLC (California)
3
85. Medical Management Professionals, Inc. (Ohio)
86. B & S Business Services, Inc. (Ohio)
87. David & Samson Business Services, Inc. (Virginia)
88. McClain & Company Business Services, Inc. (Ohio)
89. Information Technology Advisors and Consultants, Inc. (Ohio)
90. TC Business Services, Inc. (Ohio)
91. Norman Barken Associates, Inc. (Ohio)
92. S & B Business Services, Inc. (Ohio)
93. Century Payroll Solutions, Inc.
94. Jones, Heyward, & Lenzi Business Services, Inc. (Ohio)
95. SLP Business Services, Inc. (Ohio)
96. WC & M Business Services, Inc. (Ohio)
97. Shilling & Kenyon/SK Consulting, Inc.
98. AVTAX, Inc. (Ohio)
99. Automation Experts Business Services, Inc. (Ohio)
100. Parks Palmer Business Services, Inc. (Ohio)
101. Miller, Wagner Business Services, Inc. (Ohio)
102. FPG Business Services, Inc. (Ohio)
103. Waidler & Associates, P.C. (Colorado)
104. Sustman Business Services, Inc. (Texas)
105. Bedell & Associates, P.C. (Colorado)
106. HHMR&S Business Services, Inc. (Ohio)
107. Conrad Business Services, Inc. (Ohio)
108. Riggleman, Smyth & Associates Business Services, Inc. (Ohio)
109. CBI Business Services, Inc. (Ohio)
110. JF Consulting Services, Inc. (Ohio)
111. Mobius Tech, Inc. (Ohio)
112. Bratch Innovation Inc. (Ontario, Canada)
113. Hunt & Associates Business Services, Inc. (Ohio)
114. AH Business Services, Inc. (Ohio)
115. EDG Business Services, Inc. (Ohio)
1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Century Business Services, Inc.
We consent to the use of our reports incorporated herein by reference
in this Registration Statement on Form S-4 and to the reference to our firm
under the heading "Experts" in such Registration Statement.
/s/ KPMG LLP
----------------------------------------
KPMG LLP
Cleveland, Ohio
June 18, 1999
