Registration of Securities to be Offered to Employees Pursuant to an Employee Benefit Plan — Form S-8
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-8 Registration of Securities to be Offered to 9 43K
Employees Pursuant to an Employee
Benefit Plan
2: EX-4.1 Amended & Restated Certificate of Incorporation 6 25K
3: EX-4.4 Employee Stock Investment Plan 10 40K
4: EX-5.1 Opinion of Akin, Gump, Strauss, Hauer & Feld, LLP 2 9K
5: EX-23.1 Consent of Kpmg LLP 1 7K
S-8 — Registration of Securities to be Offered to Employees Pursuant to an Employee Benefit Plan
Document Table of Contents
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 1, 2001
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, including zip code, of Registrant's principal executive offices)
CENTURY BUSINESS SERVICES, INC.
EMPLOYEE STOCK INVESTMENT PLAN
(Full title of the plan)
MICHAEL G. DEGROOTE
CHAIRMAN OF THE BOARD
6480 ROCKSIDE WOODS BOULEVARD
SOUTH, SUITE 330
CLEVELAND, OHIO 44131
(216) 447-9000
(Name, address and telephone number of agent for service)
Copies to:
ALAN M. UTAY
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
1700 PACIFIC AVENUE, SUITE 4100
DALLAS, TEXAS 75201
(214) 969-2800
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CALCULATION OF REGISTRATION FEE
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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 (2) FEE
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Common Stock, $0.01 par value 1,000,000 $3.52 $3,520,000 $880
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(1) Pursuant to Rule 416, this Registration Statement also includes an
indeterminate number of additional shares that may hereafter become
issuable as a result of the adjustment provisions of the Plan.
(2) Computed in accordance with Rule 457(c) and (h) solely for the purpose of
computing the registration fee based on the average of the high and low
sales prices of common stock of Century Business Services, Inc. on May
31, 2001, as reported on the Nasdaq National Market.
================================================================================
CENTURY BUSINESS SERVICES, INC.
REGISTRATION STATEMENT ON FORM S-8
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents constituting Part I of this registration statement will
be sent or given to employees, directors and consultants of Century Business
Services, Inc., also referred to as CBIZ, as specified by Rule 428(b)(1)
promulgated under the Securities Act of 1933, as amended.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents and information previously filed by CBIZ with
the Securities and Exchange Commission are hereby incorporated by reference in
this registration statement:
(a) CBIZ's Annual Report on Form 10-K (File No. 000-25890) for the
fiscal year ended December 31, 2000 filed on April 2, 2001.
(b) CBIZ's Definitive Proxy Statement (File No. 000-25890) filed
on April 2, 2001.
(c) CBIZ's Current Report on Form 8-K (File No. 000-25890) filed
on February 14, 2001.
(d) The description of CBIZ's Common Stock as contained in its
Registration Statement on Form S-4 (File No. 333-81039) filed
on February 1, 2000, including any amendment or report filed
for the purpose of updating such description.
All documents filed by CBIZ pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934 on or after the date of this
registration statement, 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 in this registration statement and to be part hereof from the date of
filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware, or
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,
1
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:
o the stockholders;
o the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such action,
suit or proceeding;
o the board 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
o 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
CBIZ entitles its board of directors to provide for indemnification of directors
and officers to the fullest extent provided by law, except for liability for:
o any breach of a director's duty of loyalty to CBIZ or its
stockholders;
o acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law;
o unlawful payments of dividends;
o unlawful stock purchases or redemptions; or
o any transaction from which the director derived an improper
personal benefit.
Article VII of the Amended and Restated Bylaws of CBIZ, or 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, CBIZ 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 CBIZ, by reason of the fact that such person is
or was a director, officer, employee or agent of CBIZ, or is or was serving at
the request of CBIZ 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
2
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 CBIZ 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 CBIZ, 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:
o by the board of directors of CBIZ by a majority vote of a
quorum consisting of directors who were not parties to such
action, suit or proceeding;
o 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
o by the stockholders.
The board of directors of CBIZ 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. CBIZ may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of CBIZ.
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.
CBIZ 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,
therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
3
ITEM 8. EXHIBITS
Exhibit
Number Document
4.1* Amended and Restated Certificate of Incorporation of
Century Business Services, Inc.
4.2 Amended and Restated Bylaws of Century Business
Services, Inc. (filed as Exhibit 3.2 to the
Registration Statement on Form 10, Commission File No.
000-25890 and incorporated herein by reference).
4.3 Form of Stock Certificate of Common Stock of Century
Business Services, Inc. (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).
4.4* Century Business Services, Inc. Employee Stock
Investment Plan.
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 (included on the signature page of
this Registration Statement).
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*Filed herewith.
ITEM 9. UNDERTAKINGS
(a) 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. 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 20 percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective 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;
4
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the 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) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
CBIZ's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of CBIZ pursuant to the foregoing provisions, or otherwise, CBIZ has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by CBIZ of
expenses incurred or paid by a director, officer or controlling person of CBIZ
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, CBIZ will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 the City of Cleveland, State of Ohio, on this 1st day of June,
2001.
CENTURY BUSINESS SERVICES, INC.
By: WARE H. GROVE
----------------------------------
Ware H. Grove
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jerome P. Grisko, Jr. and Michael W.
Gleespen, and each of them, as 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 any and all capacities, to sign any and all amendments
(including 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 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
connection therewith, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their 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, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
--------- ----- ----
STEVEN L. GIRARD Chief Executive Officer and Director June 1, 2001
------------------------------------ (Principal Executive Officer)
Steven L. Girard
WARE H. GROVE Chief Financial Officer (Principal Financial June 1, 2001
------------------------------------ and Accounting Officer)
Ware H. Grove
MICHAEL G. DEGROOTE Chairman of the Board June 1, 2001
------------------------------------
Michael G. DeGroote
RICK L. BURDICK Director June 1, 2001
------------------------------------
Rick L. Burdick
JOSEPH S. DIMARTINO Director June 1, 2001
------------------------------------
Joseph S. DiMartino
S-1
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/s/ HARVE A. FERRILL Director June 1, 2001
------------------------------------
Harve A. Ferrill
Director June 1, 2001
------------------------------------
Richard C. Rochon
S-2
INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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4.1* Amended and Restated Certificate of Incorporation of
Century Business Services, Inc.
4.2 Amended and Restated Bylaws of Century Business
Services, Inc. (filed as Exhibit 3.2 to the Registration
Statement on Form 10, Commission File No. 000-25890 and
incorporated herein by reference).
4.3 Form of Stock Certificate of Common Stock of Century
Business Services, Inc. (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).
4.4* Century Business Services, Inc. Employee Stock
Investment Plan.
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 (included on the signature page of
this Registration Statement).
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*Filed herewith.
I-1
Dates Referenced Herein and Documents Incorporated by Reference
4 Subsequent Filings that Reference this Filing
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