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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 18, 1999
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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CENTURY BUSINESS SERVICES, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 22-2769024
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
6480 ROCKSIDE WOODS BOULEVARD SOUTH
SUITE 330
CLEVELAND, OHIO 44131
(Address of principal executive offices)
(Zip Code)
BEALL, GARNER, SCREEN & GEARE, INC.
EMPLOYEE SAVINGS AND STOCK OWNERSHIP PLAN
(Full title of the plan)
MICHAEL G. DEGROOTE
CHIEF EXECUTIVE OFFICER, PRESIDENT AND CHAIRMAN OF THE BOARD
6480 Rockside Woods Boulevard South, Suite 330
Cleveland, Ohio 44131
(216) 447-9000
(Name and address, including zip code, and
telephone number of agent for service)
Copies to:
ALAN M. UTAY, ESQ.
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P
1700 PACIFIC AVENUE
SUITE 4100
DALLAS, TEXAS 75201-4675
(214) 969-2800
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CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) SHARE (2) PRICE (1) FEE
Common Stock, $0.01 par value per share 500,000 $9.9065 $4,953,250 $1,378
(1) The number of shares of Common Stock set forth is the maximum aggregate
number of shares that it is anticipated will be purchased under the Plan.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
(2) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(c) and (h). The calculation of the proposed maximum offering
price is based upon the average of the high and low sales prices of the
Common Stock of Century Business Services, Inc. on March 17, 1999, as
reported by the Nasdaq National Market.
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PART I
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INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
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ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the registration statement in accordance with
Rule 428 under the Securities Act of 1933 and the Note to Part I of
Form S-8.
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PART II
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been filed by Century Business Services,
Inc. (the "Registrant") with the Securities and Exchange Commission and are
incorporated herein by reference:
(a) The description of the Registrant's Common Stock, $.01 par
value per share (the "Common Stock") contained in the
Registrant's registration statement on Form S-3
(No. 333-40331) filed with the Commission on November 14,
1997, as amended by Amendment #1 thereto filed with the
Commission on December 9, 1997.
(b) The Annual Report on Form 10-K filed by the Registrant with
the Securities and Exchange Commission for the Registrant's
fiscal year ended December 31, 1998.
(c) All other reports filed by the Registrant pursuant to
Section 13 or 15(b) of the Exchange Act since
December 31, 1998.
(d) All documents filed by the Registrant pursuant to Section
13(a), 13(c), 14, or 15(d) of the Exchange Act after the date
hereof and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a
part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
to the extent that a statement contained in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such prior statement. The documents required to be so
modified or superseded shall not be deemed to constitute a part of this
Registration Statement, except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES
A description of the Registrant's Common Stock has been incorporated by
reference into this Registration Statement. See Item 3(a), above.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the Shares offered hereby will be passed upon for the
Company by Akin, Gump, Strauss, Hauer & Feld, L.L.P. Rick L. Burdick, a partner
of Akin, Gump, Strauss, Hauer & Feld, L.L.P., is a director of the Company and
is the beneficial owner of 59,034 shares of Common Stock (including options and
warrants to purchase Common Stock).
ITEM 6. 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 an officer or director 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 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) which such person actually and reasonably
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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 by:
- the stockholders;
- board of directors by a majority vote of a quorum consisting
of directors who were not parties to such action, suit or
proceeding;
- 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
- independent legal counsel, 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
the Registrant 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 Registrant or
its stockholders;
- acts or omissions not in good faith or which 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 Registrant
(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 Registrant 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 Registrant, by reason of the fact that such person is or
was a director, officer, employee or agent of the Registrant, or is or was
serving at the request of the Registrant 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 Registrant and with respect to any criminal
action or proceeding, such person had no reasonable cause to believe his
conduct was unlawful. Determination of an 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 Registrant, and with
respect to any criminal action or proceeding, had reasonable cause to
believe his conduct was lawful.
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The Bylaws provide that any decision as to indemnification shall be
made:
- by the Board of Directors of the Registrant by a majority vote
of a quorum consisting of directors who were not parties to
such action, suit or proceeding; or
- 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 Registrant 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 Registrant 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 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 Registrant 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 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
See Index to Exhibits, attached hereto and incorporated herein by
reference. The undersigned Registrant hereby undertakes to submit the Plan and
any amendments thereto to the Internal Revenue Service in a timely manner and
to make all changes required by the Internal Revenue Service in order to
qualify the Plan under Section 401(a) and Section 401(k) of the Internal
Revenue Code.
ITEM 9. UNDERTAKINGS
A. RULE 415 OFFERING. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
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PROVIDED, HOWEVER, that paragraphs (1)(i) and
(1)(ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY
REFERENCE. The undersigned Registrant hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
C. SECURITIES AND EXCHANGE COMMISSION POSITION ON INDEMNIFICATION.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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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-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Hamilton, Bermuda on March 18, 1999.
CENTURY BUSINESS SERVICES, INC.
By: /s/ Michael G. DeGroote
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Michael G. DeGroote
Chief Executive Officer, President and
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Michael G. DeGroote and Charles D.
Hamm, Jr., and each of them, with full power to act without the other, his true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in all capacities
(until revoked in writing), to sign any and all amendments (including, without
limitation, post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting to each
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that each attorney-in-fact and
agent, or his 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 the date indicated above.
SIGNATURE TITLE
/s/ Michael G. DeGroote
__________________________________ President, Chief Executive Officer, Chairman of the
Michael G. DeGroote Board and Director (Principal Executive Officer)
/s/ Charles D. Hamm, Jr.
__________________________________ Senior Vice President and Chief Financial Officer
Charles D. Hamm, Jr. (Principal Accounting and Financial 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
/s/ Hugh P. Lowenstein
__________________________________ Director
Hugh P. Lowenstein
/s/ Richard C. Rochon
__________________________________ Director
Richard C. Rochon
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Pursuant to the requirements of the Securities Act of 1933, as
amended, the trustees (or other persons who administer the employee benefit
plan) have duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Cumberland,
State of Maryland, on March 18, 1999.
BEALL, GARNER, SCREEN & GEARE, INC.
EMPLOYEE SAVINGS AND STOCK OWNERSHIP
PLAN
By: /s/ Robert H. Garner
______________________________________
Robert H. Garner
Trustee
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INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION OF EXHIBITS
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4.1 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)
4.2 Certificate of Amendment to the Certificate of Incorporation of the Company
dated October 18, 1996 (filed as Exhibit 3.2 to the Company's Annual Report
on Form 10-K for the year ended December 31, 1996, and incorporated herein
by reference)
4.3 Certificate of Amendment to the Certificate of Incorporation of the Company
effective December 23, 1997 (filed as Exhibit 3.3 to Annual Report on Form
10-K for the year ended December 31, 1997, and incorporated herein by
reference)
4.4 Certificate of Amendment to the Certificate of Incorporation of the Company
effective September 10, 1998 (filed as Exhibit 3.4 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1998, and incorporated
herein by reference)
4.5 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)
4.6 Form of Stock Certificate of Common Stock of the Company (filed as Exhibit
4.1 to the Company's Annual Report on Form 10-K for the year ended
December 31, 1998, and incorporated herein by reference)
4.7* Beall, Garner, Screen & Geare, Inc. Employee Savings and Stock Ownership
Plan, effective as amended and restated as of January 1, 1997
5.1* Opinion of Counsel Regarding the Legality of the Shares of Common Stock
23.1* Consent of KPMG LLP
23.2* Consent of Akin, Gump, Strauss, Haver & Feld, L.L.P. (included
in Exhibit 5.1)
25.1* Power of Attorney (included on the signature page of this Registration
Statement)
* Filed herewith
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