<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 24, 2000
REGISTRATION NO. 333--90749
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------------------------
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
---------------------------------------------
CENTURY BUSINESS SERVICES, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 22-2769024
(State or Other Jurisdiction of (IRS Employer Identification
Incorporation or Organization) Number)
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)
---------------------------------------------
<TABLE>
<S> <C>
FRED M. WINKLER With a copy to:
PRESIDENT AND CHIEF OPERATING OFFICER
6480 ROCKSIDE WOODS BOULEVARD SOUTH ALAN M. UTAY
SUITE 330 AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
CLEVELAND, OHIO 44131 1700 PACIFIC AVENUE, SUITE 4100
(216) 447-9000 DALLAS, TEXAS 75201
(Name, Address, Including Zip Code, and Telephone Number, (214) 969-2800
Including
Area Code, of Agent for Service)
</TABLE>
------------------------------------
Approximate date of commencement of proposed sale
to the public: FROM TIME TO TIME AFTER THE EFFECTIVE
DATE OF THIS REGISTRATION STATEMENT.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
|_| ________________________________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.
|_| ___________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
TITLE OF SHARES TO BE REGISTERED AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
REGISTERED(1) AGGREGATE PRICE PER SHARE AGGREGATE OFFERING PRICE REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per share 6,058,626 shares (2) $56,970,267(3) $15,840(4)
====================================================================================================================================
</TABLE>
(1) Pursuant to Amendment No. 1 to this registration statement, the Registrant
is increasing the number of shares of Common Stock to be registered
pursuant to this registration statement by 1,240,000 shares.
(2) Estimated pursuant to Rule 457(c) solely for the purpose of calculating the
amount of the registration fee based on the average of the high and low
prices of the Common Stock as reported by the Nasdaq National Market on
(i) November 8, 1999 with respect to the 4,818,626 shares included in the
initial filing of this registration statement, which such average price was
$9.8125, and (ii) January 20, 2000 with respect to the additional 1,240,000
shares included in Amendment No. 1 to this registration statement, which
such average price was $7.8125.
(3) The Proposed Maximum Aggregate Offering Price equals the sum of: (i) an
amount equal to (a) 4,818,626 shares included in the initial filing of this
registration statement, multiplied by (b) $9.8125, the Proposed Maximum
Aggregate Price Per Share with respect to such shares, and (ii) an amount
equal to (x) 1,240,000 additional shares included in Amendment No. 1 to
this registration statement, multiplied by (y) $7.8125, the Proposed
Maximum Aggregate Price Per Share with respect to such shares.
(4) A registration fee of $13,145 was previously paid upon the initial filing
of this registration statement and the balance of the registration fee is
being paid in connection with Amendment No. 1 to this registration
statement.
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, AS AMENDED, 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.
================================================================================
<PAGE> 2
SUBJECT TO COMPLETION, DATED JANUARY 24, 2000
PROSPECTUS
6,058,626 SHARES
CENTURY BUSINESS SERVICES, INC.
COMMON STOCK
--------------
The shares covered by this prospectus may be sold, from time to time,
by the selling stockholders.
Our common stock is traded on the Nasdaq National Market under the
symbol "CBIZ." On January 20, 2000, the last reported sale price of our common
stock on the Nasdaq National Market was $7.59375 per share.
INVESTING IN OUR COMMON STOCK INVOLVES CERTAIN RISKS. THEREFORE, YOU
SHOULD CAREFULLY CONSIDER THE RISK FACTORS INCORPORATED BY REFERENCE FROM OUR
ANNUAL REPORT ON FORM 10-K INTO THIS PROSPECTUS. FOR ADDITIONAL INFORMATION ON
RISK FACTORS, SEE PAGE 2.
--------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED 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 , 2000.
The information in this prospectus is not complete and may be changed. We may
not sell these securities with the registration statement filed with Securities
and Exchange Commission is effective. This prospectus is not an offer to self
these securities and its is not soliciting an offer to by these securities in
any state where the offer or sale is not permitted.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
CENTURY BUSINESS SERVICES, INC.................................................................................1
RISK FACTORS...................................................................................................2
UNCERTAINTY OF FORWARD-LOOKING STATEMENTS......................................................................2
ABOUT THIS PROSPECTUS..........................................................................................2
USE OF PROCEEDS................................................................................................3
SELLING STOCKHOLDERS...........................................................................................3
DESCRIPTION OF COMMON STOCK....................................................................................4
PLAN OF DISTRIBUTION...........................................................................................5
LEGAL MATTERS..................................................................................................5
EXPERTS........................................................................................................5
WHERE YOU CAN FIND MORE INFORMATION............................................................................6
</TABLE>
(i)
<PAGE> 4
CENTURY BUSINESS SERVICES, INC.
We are a diversified services company which, 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 37
states, plus approximately 600 Century Small Business Solutions franchisee
offices in 47 states. As of September 30, 1999, we served more than 110,000
business clients, of which approximately 54,000 are serviced through the Century
Small Business Solutions franchisee network. Management estimates that its
clients have more than 2.4 million employees including 400,000 employed by
clients of the Century Small Business Solutions 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 primary
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 service 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.
1
<PAGE> 5
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 enter into a definitive agreement, subject to regulatory approval,
before March 31, 2000.
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.
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 herein by reference.
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
SEC utilizing a "shelf registration" process. Under this shelf process, the
selling stockholders, or their pledgees, donees, transferees or other
successors-
2
<PAGE> 6
in-interest may, from time to time, sell our common stock described in this
prospectus. You should read both this prospectus and any prospectus supplement
together with additional information described under the heading "Where You Can
Find More Information."
USE OF PROCEEDS
We will not receive any of the money from the sale of our common stock
offered by the selling stockholders.
SELLING STOCKHOLDERS
The following table sets forth the name of each selling stockholder,
the number of shares of our common stock beneficially owned by each selling
stockholder immediately before the date of this prospectus, the number of shares
covered by this prospectus, the number of shares of our common stock to be
beneficially owned by each selling stockholder upon completion of this offering,
and the percentage of shares to be owned by each selling stockholder upon
completion of the offering. However, because the selling stockholders may offer
all or a portion of the shares covered by this prospectus at any time and from
time to time hereafter, the exact number of shares that each selling stockholder
may retain after completion of the offering cannot be determined at this time.
The last two columns of this table assume that all shares covered by this
prospectus will be sold by the selling stockholders and that no additional
shares of our common stock are bought or sold by the selling stockholders.
<TABLE>
<CAPTION>
PERCENTAGE
BENEFICIAL OF SHARES
OWNERSHIP NUMBER OF NUMBER OF TO BE
OF SHARES SHARES SHARES TO BE OWNED
PRIOR TO COVERED BY OWNED AFTER AFTER
NAME OFFERING THIS PROSPECTUS OFFERING(1) OFFERING
---- -------- --------------- ----------- --------
<S> <C> <C> <C> <C>
Apex Investment Fund III, L.P. (2) 217,607 217,607 -0- -0-
Argentum Capital Partners, L.P. 65,282 65,282 -0- -0-
Boyer, Brian 4,352 4,352 -0- -0-
Braden, James E. 300,000(3) 300,000(3) -0- -0-
Brownlie, III, Smith A. 700,000(4) 700,000(4) -0- -0-
Dameron, H.K. (Dick) 50,742 40,594 10,148 *
Environmental Private Equity Fund 435,214 435,214 -0- -0-
II, L.P.(2)
Goodrich, I. Michael 120,000(5) 120,000(5) -0- -0-
Gordon, Ross 166,505(6) 50,000 116,505 (6) *
Hauge, Roger I. 468,116 468,116 -0- -0-
Koulogeorge, Mark(2) 17,410 17,410 -0- -0-
Magidson, Clay C. 22,379 22,379 -0- -0-
Magidson, Guerry P. (7) 484,541 484,541 -0- -0-
Magidson, Guerry P. as Custodian for
John C. Magidson U/GA/UGMA(7) 22,379 22,379 -0- -0-
Magidson, Guerry P. as Custodian for
Martha L. Magidson U/GA/UGMA(7) 22,379 22,379 -0- -0-
Magidson, Guerry P., Jr. 22,379 22,379 -0- -0-
Magidson, Laurie P. 22,379 22,379 -0- -0-
Magidson, Melvin C., Jr.(8) 252,331 252,331 -0- -0-
Magidson, Melvin C., Jr. as Custodian for
Christopher G. Magidson U/GA/UGMA(8) 22,379 22,379 -0- -0-
Magidson, Melvin C., Sr. 463,395 463,395 -0- -0-
Parrish, R. David 70,000(9) 70,000(9) -0- -0-
Poore, Gary L. 50,742 40,594 10,148 *
Reisinger, Jr., Walter C. 50,000(10) 50,000(10) -0- -0-
Shasta Enterprises, Ltd. 232,005 232,005 -0- -0-
The Productivity Fund III, L.P.(2) 326,412 326,412 -0- -0-
Tri-Tek Holdings, Inc. 1,332,734 1,332,734 -0- -0-
Unisource Holdings, Ltd. 232,005 232,005 -0- -0-
Venture Capital Management 21,760 21,760 -0- -0-
Total 6,058,626
- ---------------------------------
</TABLE>
* Less than one percent.
(1) All or a portion of these shares may have been registered for sale under
other registration statements, may be transferable under Rule 144 of the
Securities Act of 1933, or may otherwise be transferable with limited or no
restrictions.
(2) Mr. Koulogeorge may be deemed to beneficially own the 979,233 shares
directly held in the aggregate by Apex Investment Fund III, L.P.,
Environmental Private Equity Fund II, L.P., and The Productivity Fund III,
L.P. in addition to the 17,410 shares directly held by him by virtue of his
position as either a member or officer of entities that control or may
control such Funds.
(3) Includes 30,000 shares currently held in escrow subject to the fulfillment
of performance objectives.
(4) Includes 70,000 shares currently held in escrow subject to the fulfillment
of performance objectives.
(5) Includes 12,000 shares currently held in escrow subject to the fulfillment
of performance objectives.
(6) Includes 2,240 shares issuable upon exercise of vested options or options
that will vest within 60 days of the date hereof.
(7) Mr. Guerry P. Magidson is the beneficial owner of the 44,758 shares
of his minor children in addition to the 484,541 shares directly held by
him.
(8) Mr. Melvin C. Magidson, Jr. is the beneficial owner of the 22,379
shares of his minor child in addition to the 252,331 shares directly held
by him.
(9) Includes 7,000 shares currently held in escrow subject to the fulfillment
of performance objectives.
(10) Includes 5,000 shares currently held in escrow subject to the fulfillment
of performance objectives.
3
<PAGE> 7
DESCRIPTION OF COMMON STOCK
Our Board of Directors has the authority to issue up to 250,000,000
shares of our common stock. As of October 31, 1999, 91,278,979 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.
4
<PAGE> 8
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.
PLAN OF DISTRIBUTION
The selling stockholders, or their pledgees, donees, transferees or
other successors-in-interest, may from time to time, offer and sell the shares
on one or more exchanges or in the over-the-counter market, or otherwise. They
may sell the shares through the following transactions, among others:
- ordinary brokerage transactions;
- block transactions;
- privately negotiated transactions;
- put or call option transactions;
- short sales; or
- Rule 144.
Those transactions may or may not involve brokers or dealers. If the
transactions do include brokers, the selling stockholders expect to pay
customary brokerage commissions and charges. We will pay all expenses other than
underwriting discounts, selling commissions and fees, and legal and accounting
fees incurred by the selling stockholders incident to the offering and sale of
the shares. The selling stockholders are not obligated to sell any of the
shares. Each of the selling stockholders reserves the right to accept and to
reject in whole or in part any proposed purchase of the shares.
To the extent required, a supplement to this prospectus or a
post-effective amendment to the registration statement of which this prospectus
is a part will set forth the aggregate principal amount of the shares to be
sold, the names of the selling stockholders, the purchase price, the name of any
agent, dealer or underwriter and any applicable commission with respect to a
particular offer. The selling stockholders and any agents, broker-dealers or
underwriters that participate with the selling stockholders in the distribution
of the shares may be deemed to be "underwriters" within the meaning of the
Securities Act of 1933. In that event, any discounts, commissions or concessions
received by such broker-dealers, agents or underwriters and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
discounts or commissions under the Securities Act.
LEGAL MATTERS
Akin, Gump, Strauss, Hauer & Feld, L.L.P., Dallas, Texas, 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 August 10, 1999, was the beneficial owner of 9,034 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
reports of KPMG LLP, independent certified public accountants, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing.
5
<PAGE> 9
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-3 to register with the SEC
the shares of our common stock to be offered hereby. This prospectus is part of
that registration statement. As allowed by SEC rules, this prospectus does not
contain all of the information you can find in a 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, all filings we
make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 after the date we file with the SEC the Amendment No. 1 to
the registration statement on Form S-3 of which this prospectus is a part, which
such date was January 24, 2000, and before the date and time such registration
statement is declared effective by the SEC, and any future filings we will make
with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date and time the SEC declares such registration statement effective until
this offering has been completed:
- Our Annual Report on Form 10-K for the year ended December 31,
1998, as amended by our Forms 10-K/A on September 24, 1999 and on
December 30, 1999;
- Our Quarterly Report on Form 10-Q for the three months ended
September 30, 1999;
- Our Quarterly Report on Form 10-Q for the three months ended June
30, 1999;
- Our Quarterly Report on Form 10-Q for the three months ended
March 31, 1999, as amended by our Form 10-Q/A on September 24,
1999;
- Our Proxy Statement dated March 24, 1999 regarding the annual
meeting of stockholders;
- Our Current Report on Form 8-K filed on January 12, 1999;
- Our Current Report on Form 8-K filed on April 9, 1999;
- Our Current Report on Form 8-K filed on April 22, 1999;
- Our Current Report on Form 8-K filed on June 22, 1999;
- Our Current Report on Form 8-K filed on September 20, 1999;
- Our Current Report on Form 8-K filed on October 7, 1999;
- Our Current Report on Form 8-K filed on December 29, 1999; and
- Our Current Report on Form 8-K filed on December 30, 1999.
6
<PAGE> 10
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
(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.
7
<PAGE> 11
6,058,626 SHARES
CENTURY BUSINESS SERVICES, INC.
COMMON STOCK
--------------------------
PROSPECTUS
--------------------------
, 2000
<PAGE> 12
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14 -- OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses, other than
underwriting discounts and commissions, payable by the Registrant in connection
with the issuance and distribution of the securities being registered hereby.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee.................. $ 15,840
Printing and Engraving Expenses...................................... 2,000
Legal Fees and Expenses.............................................. 15,000
Miscellaneous Fees and Expenses...................................... 2,160
--------
Total....................................................... $ 35,000
========
</TABLE>
ITEM 15 -- 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.
<PAGE> 13
The Amended and Restated Certificate of Incorporation, as amended, of
the Company entitles the 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.
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
<PAGE> 14
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.
<PAGE> 15
ITEM 16 -- 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 Registration Statement on Form 10,
Commission File No. 0-25890 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 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 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 effective September 10, 1998
(filed as Exhibit 3.4 to 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 Registration Statement on Form 10, Commission File No. 0-25890
and incorporated herein by reference)
4.1 Form of Stock Certificate of Common Stock of the Company (filed
as Exhibit 4.1 to 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.
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
- -------------------
*Filed herewith
**Previously filed
<PAGE> 16
ITEM 17 - 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
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.
<PAGE> 17
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-3 and has duly caused this
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Cleveland, Ohio, on January 24, 2000.
CENTURY BUSINESS SERVICES, INC.
By: /S/ FRED M. WINKLER
--------------------------------------
Fred M. Winkler
President and Chief Operating Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 1 to the Registration Statement has been signed by the
following persons in the capacities indicated on January 24, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------- -----
<S> <C>
/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 Officer)
Charles D. Hamm, Jr.
/S/ RICK L. BURDICK* Director
- -----------------------------------------------------------
Rick L. Burdick
Director
- -----------------------------------------------------------
Joseph S. DiMartino
/S/ HARVE A. FERRILL* Director
- -----------------------------------------------------------
Harve A. Ferrill
/S/ HUGH P. LOWENSTEIN* Director
- -----------------------------------------------------------
Hugh P. Lowenstein
/S/ RICHARD C. ROCHON* Director
- -----------------------------------------------------------
Richard C. Rochon
</TABLE>
*By: /s/ Charles D. Hamm, Jr.
------------------------
Charles D. Hamm, Jr.
Attorney-in-Fact
<PAGE> 1
Exhibit 5.1
[AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. LETTERHEAD]
January 24, 2000
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-3, File No. 333-90749 (as amended, the "REGISTRATION
STATEMENT"), with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder, for the registration of the sale from time to time of an aggregate
of 6,058,626 shares (the "SHARES") of common stock, par value $0.01 per share
("COMMON STOCK"), of the Company.
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 as we have deemed
relevant and necessary 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. In
addition, we have assumed that the Shares have been issued for at least the par
value thereof. As to all questions of fact material to this opinion that have
not been independently established, we have relied upon certificates or
comparable documents of officers and representatives of the Company.
<PAGE> 2
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
Century Business Services, Inc.
January 24, 2000
Page 2
Based upon such examination and representations, we advise you that, in
our opinion, the Shares have been duly and validly authorized and are validly
issued, fully paid and non-assessable.
The foregoing opinion is limited to the corporate laws of the State of
Delaware 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 or
relied upon by or furnished to any other person without our prior written
consent.
Sincerely yours,
/S/ AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
<PAGE> 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 Amendment No. 1 to the Registration Statement (No. 333-90749) on Form
S-3 and to the reference to our firm under the heading "Experts" in such
Amendment No. 1 to the Registration Statement.
/S/ KPMG LLP
---------------------
KPMG LLP
Cleveland, Ohio
January 24, 2000
