UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
13D
(Amendment
No.4)*
Under the
Securities Exchange Act of 1934
CBIZ, INC.
(Name of
Issuer)
Common Stock, $0.01 par
value
(Title of
Class of Securities)
124805102
(CUSIP
Number)
Malcolm
Ross
Dickstein
Shapiro LLP
1633
Broadway
New
York, N.Y. 10019
(212)
277-6500
(Name,
Address, and Telephone Number of Person Authorized to Receive Notices and
Communications)
September
14, 2010
(Date of
Event Which Requires Filing of this Statement)
If the
filing person has previously filed a statement on Schedule 13G to report the
acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f), or 13d-1(g), check the following
box o.
Note: Schedules filed in paper
format shall include a signed original and five copies of the schedule,
including all exhibits. See Rule 13d-7 for other parties to whom
copies are to be sent.
* The
remainder of this cover page shall be filled out for a reporting person’s
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The
information required on the remainder of this cover page shall not be deemed to
be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934
(“Act”) or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see the
Notes).
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CUSIP
No. 124805102
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|
1
|
Name
of Reporting Persons
|
|
| Westbury (Bermuda) Ltd. | ||
|
2
|
Check
the Appropriate Box if Member of a Group
|
|
|
(a)
o
|
||
|
(b)
o
|
||
|
3
|
SEC
Use Only
|
|
|
4
|
Source
of Funds*
|
|
| WC | ||
|
5
|
Check
box if disclosure of legal proceedings is required pursuant to Item 2(d)
or 2(e)
|
|
|
o
|
||
|
6
|
Citizenship
or Place of Organization
|
|
| Bermuda |
|
7
|
Sole
Voting Power
|
|
| 7,716,669 | ||
|
Number
of
|
8
|
Shared
Voting Power
|
|
Shares
|
||
|
Beneficially
|
-0- | |
|
Owned
by
|
9
|
Sole
Dispositive Power
|
|
Each
Reporting
|
||
|
Person
With
|
-0- | |
|
10
|
Shared
Dispositive Power
|
|
| 7,716,669 |
|
11
|
Aggregate Amount Beneficially Owned by Each
Reporting Person.
|
|
| 7,716,669 | ||
|
12
|
Check
Box if the Aggregate Amount in Row (11) Excludes Certain shares (see
instructions).
|
|
|
o
|
||
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13
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Percent
of Class Represented by Amount in Row (11):
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|
|
12.5%
(1)
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||
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14
|
Type
of Reporting Person (see instructions):
|
|
| CO |
(1) Based
on 61,701,191 shares of common stock outstanding as of July 31, 2010, as
reported by Issuer in its Form 10-Q filed on August 9, 2010.
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1
|
Name
of Reporting Persons
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|
|
Westbury
Trust
|
||
|
2
|
Check
the Appropriate Box if Member of a Group
|
|
|
(a)
o
|
||
|
(b)
o
|
||
|
3
|
SEC
Use Only
|
|
|
4
|
Source
of Funds
|
|
| OO (1) | ||
|
5
|
Check
box if disclosure of legal proceedings is required pursuant to items 2(d)
or 2(e)
|
|
|
o
|
||
|
6
|
Citizenship
or Place of Organization
|
|
|
Bermuda
|
|
7
|
Sole
Voting Power
|
|
| 7,716,669 (2) | ||
|
Number
of
|
8
|
Shared
Voting Power
|
|
Shares
|
||
|
Beneficially
|
-0- | |
|
Owned
by
|
9
|
Sole
Dispositive Power
|
|
Each
Reporting
|
||
|
Person
With
|
-0- | |
|
10
|
Shared
Dispositive Power
|
|
| 7,716,669 (2) |
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11
|
Aggregate
Amount Beneficially Owned by Each Reporting Person.
|
|
| 7,716,669 | ||
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12
|
Check
Box if the Aggregate Amount in Row (11) Excludes Certain shares (see
instructions).
|
|
|
o
|
||
|
13
|
Percent
of Class Represented by Amount in Row (11):
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|
|
12.5%
(3)
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||
|
14
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Type
of Reporting Person (see instructions):
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|
| OO |
(1)
Working capital of Westbury (Bermuda) Ltd.
(2)
Securities are owned directly by Westbury (Bermuda) Ltd., which is 100% owned by
Westbury Trust. Westbury Trust is an indirect beneficial owner of the reported
securities.
(3) Based
on 61,701,191 shares of common stock outstanding as of July 31, 2010, as
reported by Issuer in its Form 10-Q filed on August 9, 2010.
AMENDMENT
NO. 4 TO SCHEDULE 13D
This
Amendment No. 4 amends and supplements the Schedule 13D (the “Schedule 13D”)
filed with the Securities and Exchange Commission (the “ SEC ” or “ Commission
”) on November 4, 1996 by Michael G. DeGroote (“DeGroote”) and MGD Holdings
Ltd., a Bermuda corporation, as amended by Amendment No. 1 filed with the SEC on
June 4, 1997 by DeGroote and Westbury (Bermuda) Ltd., a Bermuda limited
corporation (“Westbury ”) (as successor-in-interest to MGD Holdings Ltd.),
Amendment No. 2 filed with the SEC on May 15, 1998 by DeGroote and Westbury, and
Amendment No. 3 filed with the SEC on February, 12, 2010 by DeGroote, Westbury,
and Westbury Trust, a Bermuda trust which owns 100% of the stock of Westbury,
relating to the common stock, par value $0.01 per share, of CBIZ, Inc., a
Delaware corporation (the “ Issuer ”).
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ITEM
5.
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INTEREST
IN SECURITIES OF THE ISSUER:
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Paragraphs
(a) and (b) of Item 5 are amended and restated as
follows:
(a) and
(b) Items 7 through 11 and 13 of each of the cover pages of this Amendment No. 4
are incorporated herein by reference. Such information is based on 61,701,191
shares of common stock outstanding as of July 31, 2010, as reported by Issuer in
its Form 10-Q filed on August 9, 2010. The Reporting Persons share
the power to dispose of the shares with the Issuer pursuant to the terms of the
Option granted to the Issuer by Westbury (as further described in Item 6
below).
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ITEM
6.
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CONTRACTS,
ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES
OF THE ISSUER:
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Item 6 is
hereby amended and restated in its entirety as follows:
On
September 14, 2010, the Issuer, Westbury, Westbury Trust and DeGroote entered
into a Stock and Option Purchase Agreement (“Agreement”). The
Agreement provides for the purchase by the Issuer of (i) 7,716,669 shares of the
Issuer held by Westbury at a price per share of $6.25 in cash, or an aggregate
of $48,229,181.25 (the “Stock Purchase”), and (ii) an option, acquired for
$5,000,000, to purchase the remaining 7,716,669 shares of the Issuer held by
Westbury (the “Option”) at an exercise price per share of $7.25 in cash (subject
to adjustment for stock splits and stock dividends and
distributions). The Stock Purchase closed September 15,
2010. The Option is exercisable by the Issuer in whole or in part at
any time after the closing of the Agreement until September 30,
2013. The shares of the Issuer subject to the Option are held in a
custody account pursuant to the terms of a Custody Agreement dated September 14,
2010, by and among Westbury, Westbury Trust, DeGroote, the Issuer and JPMorgan
Chase Bank, N.A., as Custodian (the “Custody Agreement”). The
descriptions of the Agreement and the Custody Agreement are qualified in their
entirety by reference to the copies of each of them, which agreements are
incorporated herein by reference and attached hereto as Exhibits 10.1 and
10.2.
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ITEM
7.
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MATERIALS
TO BE FILED AS EXHIBITS
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Item 7 is
hereby amended and supplemented to add the following as an exhibit
hereto:
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Exhibit
10.1: Stock and Option Purchase
Agreement
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Exhibit
10.2: Custody Agreement
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SIGNATURE
After reasonable inquiry and to the
best of our knowledge and belief, each of the undersigned certify that the
information set forth in this statement is true, complete and
correct.
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Dated:
September 15, 2010
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WESTBURY
(BERMUDA) LTD.
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/s/ Jim Watt | |
| Name: Jim Watt | ||
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Title: President
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||
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Dated:
September 15, 2010
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WESTBURY
TRUST
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| /s/ Jim Watt | ||
| Name: Jim Watt | ||
|
Title: Trustee
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||
Exhibit
10.1
STOCK
AND OPTION PURCHASE AGREEMENT
THIS
STOCK AND OPTION PURCHASE AGREEMENT (this “Agreement”),
dated September 14, 2010, by and among Westbury (Bermuda) Ltd., a Bermuda
exempted company (“Westbury
Ltd.”), Westbury Trust, a Bermuda trust (“Westbury
Trust” and, together with Westbury Ltd., the “Seller”)
and Michael G. DeGroote, a resident of Bermuda (“DeGroote”)
on the one hand, and CBIZ, Inc., a Delaware corporation (“Purchaser”
or the “Company”),
on the other hand.
RECITAL
Seller
beneficially owns 15,433,338 shares of common stock of the Company, par value
$0.01 per share (the “Common
Stock”) and Seller hereby desires to (a) sell to Purchaser seven million, seven hundred sixteen
thousand, six hundred sixty-nine (7,716,669) shares of Common Stock at
$6.25 per share (the “Purchased
Shares”),
and (b) grant to Purchaser an
irrevocable option (the “Option”) to purchase seven million, seven hundred
sixteen thousand, six hundred sixty-nine (7,716,669) shares of Common Stock (the “Remaining
Shares”), and
Purchaser desires to purchase the Purchased Shares and the Option from Seller,
upon and subject to the terms of this Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the premises, the respective representations,
warranties, covenants and agreements contained in this Agreement, and other good
and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, Seller and Purchaser, intending to be legally bound, hereby agree
as follows:
1. Purchase
and Sale of the Purchased Shares and the Option. Upon the
terms and subject to the conditions set forth in this Agreement, and in reliance
upon the representations and warranties herein made by each party to the other,
Seller agrees to sell and grant, and Purchaser agrees to purchase from Seller,
at the Closing, the Purchased Shares and the Option. Seller will
deliver to Purchaser at the Closing (a) a certificate or certificates
representing a portion of the Purchased Shares with duly executed stock powers
attached thereto and (b) confirmation of book entry transfer of the remaining
Purchased Shares into a Depository Trust Company account of the Purchaser as may
be designated by the Purchaser.
2. Purchase Price.
(a) As the
purchase price for the Purchased Shares, Purchaser will pay, or cause to be
paid, to Seller at the Closing in immediately available funds the sum of forty-eight million, two hundred
twenty-nine thousand, one hundred eighty-one dollars and twenty-five cents
($48,229,181.25).
(b) As the
purchase price for the Option, Purchaser will pay, or cause to be paid, to
Seller at the Closing in immediately available funds the sum of five million
dollars ($5,000,000.00).
3. Option.
(a) At the
Closing, upon receipt of the purchase price described in Section 2(b), Seller
shall grant to Purchaser the Option to purchase from Seller, in whole or in
part, at any time and from time to time after the date of the Closing (the
“Grant
Date”) and on or before September 30, 2013 (the “Exercise
Period”), the Remaining Shares at an exercise price of $7.25 per share,
subject to adjustment as provided in Section 3(c) (the “Exercise
Price”). The Exercise Price and the shares purchasable upon exercise of
this Option at any given time (the “Option
Shares”) shall be subject to adjustment from time to time pursuant
to the provisions of Section 3(c).
(b) This
Option may be exercised in whole or in part from time to time during the
Exercise Period by Purchaser’s notice in writing delivered to the Seller and
Purchaser’s payment to the Seller of an amount of cash equal to the product of
the Exercise Price times the applicable
number of Option Shares by wire transfer of immediately available lawful money
of the United States against the delivery to Purchaser by the release from the
Custody Account (as defined in Section 4 below) of the number of the Option
Shares to which such exercise applies.
(c) The
Option Shares and the Exercise Price shall be subject to adjustment from time to
time as follows:
(i) If
the Company shall at any time after the Grant Date and while this
Option remains outstanding and unexpired in whole or in part, effect a
subdivision (by any stock split or otherwise) of the outstanding shares of
Common Stock into a greater number of shares, the Exercise Price in effect
immediately before that subdivision shall be proportionately decreased and the
number of Option Shares obtainable upon exercise of this Option shall be
proportionately increased. Conversely, if the Company shall at
any time or from time to time after the Grant Date combine (by reverse stock
split or otherwise) the outstanding shares of Common Stock into a smaller number
of shares, the Exercise Price in effect immediately before the combination shall
be proportionately increased and the number of shares of Common Stock obtainable
upon exercise of this Option shall be proportionately
decreased. Any adjustment under this paragraph shall become effective
at the close of business on the date the subdivision or combination becomes
effective.
(ii) In the
event the Company at any time, or from time to time after the Grant Date and
while this Option remains outstanding and unexpired in whole or in part, shall
make or issue, or fix a record date for the determination of holders of Common
Stock entitled to receive, a dividend or other distribution payable in
additional shares of Common Stock, then and in each such event the Exercise
Price then in effect immediately before such event shall be decreased as of the
time of such issuance or, in the event such a record date shall have been fixed,
as of the close of business on such record date, by multiplying the Exercise
Price then in effect by a fraction:
A. the
numerator of which shall be the total number of shares of Common Stock issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date; and
B. the
denominator of which shall be the total number of shares of Common Stock issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date plus the number of shares of Common Stock issuable
in payment of such dividend or distribution;
provided, however, that if such record
date shall have been fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed therefor, the Exercise Price
shall be recomputed accordingly as of the close of business on such record date
and thereafter the Exercise Price shall be adjusted pursuant to this paragraph
as of the time of actual payment of such dividends or
distributions.
(iii) If at any
time after the Grant Date and while this Option remains outstanding and
unexpired in whole or in part, the Option Shares are changed into the same or a
different number of shares of any class or classes of stock, this Option will
thereafter represent the right to acquire such number and kind of
securities into which the Option Shares are changed.
4. Custody
Account.
(a) At the Closing, the
Remaining Shares will be placed in a custody account (“Custody
Account”) and
will, during the Exercise Period, be subject to a custody agreement in
substantially the form attached hereto as Annex A (the “Custody
Agreement”). Purchaser may, subject to its compliance
with Section 3(b), exercise the Option and cause the Remaining Shares to be
released from the Custody Account in one or any number of blocks, at any one or
more times throughout the Exercise Period, as Purchaser may choose in its sole
discretion. During the Exercise
Period, (i) any and all dividends or distributions (in cash or in kind)
declared, paid or payable on any Remaining Shares held in the Custody Account
shall be paid or distributed to Seller, (ii) the Remaining Shares may not be sold to
any party other than Purchaser or a Permitted Transferee, providedthat (x) such Permitted Transferee shall
agree to be subject to the terms of this Agreement and the Custody Agreement and
deliver to the Company a written acknowledgment in form and substance reasonably
satisfactory to the Company to that effect and (y) the Remaining Shares
transferred to a Permitted Transferee shall remain subject to the Custody
Agreement, and (iii) only Seller or a
Permitted Transferee, as applicable, shall have the right to exercise the voting
rights associated with the Remaining Shares, it being understood that Seller and
Permitted Transferee, as applicable, shall maintain and not transfer full
discretion over the voting of the Remaining Shares or the manner in which the
Remaining Shares are voted. Notwithstanding the foregoing, Seller or
a Permitted Transferee, as applicable, may within its absolute discretion,
execute and deliver any proxy solicited by management or any other person except
for an irrevocable proxy in connection with any vote or solicitation of consents
from the Company’s stockholders.
(b) “Permitted
Transferee” means DeGroote or any DeGroote Family Member.
(i) “DeGroote Family
Member” means (A) any spouse or surviving spouse of DeGroote, (B) any
brother, sister, child, adopted child, step child, grandchild, adopted
grandchild or other issue of DeGroote, (C) any spouse or surviving spouse of any
Person referred to in clause (B) of this definition, (D) the executor,
administrator or other personal representative of the estate of any of the
foregoing Persons, (E) any DeGroote Entity or (F) any DeGroote
Trust.
(ii) “DeGroote
Entity” means any partnership, corporation, limited liability company or
other entity in which all or substantially all of the equity interests are owned
directly or indirectly by one or more DeGroote Family Members.
(iii) “DeGroote
Trust” means any trust of which all or substantially all of the
beneficiaries are, or in which all or substantially all of the beneficial
interests are held by, one or more DeGroote Family Members.
5. Closing. The
transfer and sale provided for in this Agreement (the “Closing”)
will take place at the offices of Akin Gump Strauss Hauer & Feld LLP, One
Bryant Park, New York, NY 10036, at 10:00 am Eastern Time, on no later than
September 16, 2010 or on such other date as may be fixed for the Closing by
written agreement between Seller and Purchaser (the “Closing
Date”).
6. Representations
and Warranties.
(a) Representations
and Warranties of Seller and DeGroote. Seller and DeGroote
hereby represent and warrant to Purchaser as follows:
(i) Westbury
Ltd. is an exempted company duly organized, validly existing and in good
standing under the laws of Bermuda. Westbury Trust is a trust duly
formed, validly existing and in good standing under the laws of
Bermuda.
(ii) Seller
has all requisite power and authority to execute and deliver into this Agreement
and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by Seller and the consummation by Seller of the
transactions contemplated hereby have been duly authorized by all necessary
action on the part of Seller.
(iii) This
Agreement has been duly executed and delivered by Seller and DeGroote and
constitutes a valid and binding obligation of Seller and DeGroote, enforceable
in accordance with its terms, except as enforceability may be subject to the
effects of bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting the rights of creditors or general principles of
equity.
(iv) The
execution and delivery of this Agreement by Seller and DeGroote and the
consummation by Seller and DeGroote of the transactions contemplated hereby will
not (A) violate any provision of any existing law, statute, rule, regulation or
ordinance applicable to Seller or DeGroote or (B) conflict with, result in any
breach of or constitute a default under (1) the Memorandum of Association or
By-laws of Westbury Ltd. and the trust deed of Westbury Trust, (2) any order,
writ, judgment, award or decree of any court, governmental authority, bureau or
agency to which Seller or DeGroote is a party or by which Seller or DeGroote may
be bound or (3) any contract or other agreement or undertaking to which Seller
or DeGroote is a party or by which Seller or DeGroote may be bound.
(v) No
consent, approval, order or authorization of, or registration, declaration or
filing with, any court, administrative agency or commission or other
governmental authority or instrumentality, is required by or with respect to
Seller or DeGroote in connection with the execution and delivery of this
Agreement or the consummation by Seller and DeGroote of the transactions
contemplated hereby, except for any filings required under Schedule 13D under
the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) or Section 16 of the Exchange Act.
(vi) Seller
has, and upon transfer by Seller of the Purchased Shares and the Remaining
Shares hereunder Seller will deliver to Purchaser, good and marketable title to
the Purchased Shares and the Remaining Shares, free and clear of any claims,
liens, encumbrances, security interests, restrictions and adverse claims of any
kind or nature whatsoever. There are no outstanding subscriptions,
options, warrants, rights, contracts, understandings or agreements to purchase
or otherwise acquire the Purchased Shares or the Remaining Shares other than as
provided for herein.
(b) Representations
and Warranties of Purchaser. Purchaser represents and warrants
to Seller and DeGroote as follows:
(i) Purchaser
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware.
(ii) Purchaser
has all requisite power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by Purchaser and the consummation by Purchaser of the
transactions contemplated hereby have been duly authorized by all necessary
action on the part of the Purchaser.
(iii) This
Agreement has been duly executed and delivered by Purchaser and constitutes a
valid and binding obligation of Purchaser, enforceable in accordance with its
terms except as enforceability may be subject to the effects of bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or affecting
the rights of creditors or general principles of equity.
(iv) The
execution and delivery of this Agreement by Purchaser and the consummation by
Purchaser of the transactions contemplated hereby will not (A) violate any
provision of any existing law, statute, rule, regulation or ordinance applicable
to Purchaser or (B) conflict with, result in any breach of or constitute a
default under (1) the Certificate of Incorporation or By-laws of Purchaser, (2)
any order, writ, judgment, award or decree of any court, governmental authority,
bureau or agency to which Purchaser is a party or by which it may be bound or
(3) any contract or other agreement or undertaking to which Purchaser is a party
or by which Purchaser may be bound.
(v) No
consent, approval, order or authorization of, or registration, declaration or
filing with, any court, administrative agency or commission or other
governmental authority or instrumentality, is required by or with respect to
Purchaser in connection with the execution and delivery of this Agreement or the
consummation by Purchaser of the transactions contemplated hereby, except for
the filing of a Current Report on Form 8-K in accordance with the Exchange
Act.
7. Closing
Conditions.
(a) Conditions
to Each Party’s Obligations. The obligation of Purchaser to
purchase the Purchased Shares and the Option at the Closing and the obligation
of Seller to sell the Purchased Shares and the Option at the Closing are subject
to the fulfillment at or prior to the Closing of the following
conditions:
(i) No
preliminary or permanent injunction or other order shall have been issued by any
court of competent jurisdiction or by any governmental or regulatory body, nor
shall any statute, rule, regulation or executive order have been promulgated or
enacted by any governmental authority which prevents the consummation of the
transactions contemplated by this Agreement.
(ii) No action
or proceeding before any court or any governmental or regulatory authority shall
have been commenced by any governmental or regulatory body and shall be pending
against any of the parties hereto or any of their respective affiliates,
associates, officers or directors seeking to prevent or delay the transactions
contemplated by this Agreement.
(b) Conditions
to Obligation of Purchaser. The obligation of Purchaser to
purchase the Purchased Shares and the Option at the Closing is subject to the
fulfillment at or prior to the Closing of the following conditions:
(i) The
representations and warranties of Seller and DeGroote contained in this
Agreement shall have been true and correct when made and shall be true and
correct in all material respects at and as of the Closing Date with the same
force and effect as though such representations and warranties were made at and
as of the Closing Date.
(ii) Seller
and DeGroote shall have performed and complied in all material respects with all
agreements, obligations and conditions required by this Agreement to be
performed or complied with by Seller and DeGroote at or prior to the
Closing.
(c) Conditions
to Obligation of Seller. The obligation of Seller to sell the
Purchased Shares and the Option at the Closing is subject to the fulfillment at
or prior to the Closing of the following conditions:
(i) The
representations and warranties of Purchaser contained in this Agreement shall
have been true and correct when made and shall be true and correct in all
material respects at and as of the Closing Date with the same force and effect
as though such representations and warranties were made at and as of the Closing
Date.
(ii) Purchaser
shall have performed and complied in all material respects with all agreements,
obligations and conditions required by this Agreement to be performed or
complied with by Purchaser at or prior to the Closing.
8. Miscellaneous.
(a) No
Brokers. Seller and DeGroote, on the one hand, and Purchaser,
on the other hand, each represent to the other that neither it nor any of its
respective affiliates have employed any broker or finder or incurred any
liability for any brokerage or finder’s fees or commissions or expenses related
thereto in connection with the negotiation, execution or consummation of this
Agreement or any of the transactions contemplated hereby and respectively agree
to indemnify and hold the other harmless from and against any and all claims,
liabilities or obligations with respect to any such fees, commissions or
expenses asserted by any person on the basis of any act or statement alleged to
have been made by such party or any of its affiliates.
(b) Entire
Agreement. This Agreement constitutes the entire agreement and
understanding of the parties in respect of the subject matter hereof and
supersedes all prior understandings, agreements or representations by or between
the parties, written or oral, to the extent they relate in any way to the
subject matter hereof.
(c) Assignment;
Binding Effect; Third Party Beneficiaries. No party may assign
either this Agreement or any of its rights, interests or obligations hereunder
without the prior written approval of the other party. All of the
terms, agreements, covenants, representations, warranties and conditions of this
Agreement are binding upon and inure to the benefit of and are enforceable by,
the parties and their respective successors and permitted
assigns. There are no third party beneficiaries having rights under
or with respect to this Agreement.
(d) Further
Assurances. If any further action is necessary or reasonably
desirable to carry out this Agreement’s purposes, each party will take such
further action (including executing and delivering any further instruments and
documents and providing any reasonably requested information) as the other party
reasonably may request.
(e) Survival of Representations,
Warranties and Covenants. Each representation, warranty,
covenant and obligation in this Agreement will survive for a period of one year
after the execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement, and will not be affected by any
investigation by or on behalf of the other party to this Agreement.
(f) Indemnification. Seller
and DeGroote, on the one hand, and Purchaser, on the other hand, respectively,
will each indemnify and hold harmless the other from and against any and all
losses, claims, damages, liabilities and expenses (including, without
limitation, legal fees and expenses) suffered or incurred by any such
indemnified party to the extent arising from any breach of any representation or
warranty of the indemnifying party contained in this Agreement or any breach by
the indemnifying party, or failure by the indemnifying party to perform, any
covenant or agreement contained herein.
(g) Notices. All
notices, requests and other communications provided for or permitted to be given
under this Agreement must be in writing and given by personal delivery, by
certified or registered United States mail (postage prepaid, return receipt
requested), by a nationally recognized overnight delivery service for next day
delivery, or by facsimile transmission, as follows (or to such other address as
any party may give in a notice given in accordance with the provisions
hereof):
If to
Purchaser:
6050 Oak
Tree Blvd., South, Suite 500
Cleveland,
OH 44131
Attention: Michael
W. Gleespen
Facsimile: 216-447-9007
with a
copy (which will not constitute notice) to:
Akin Gump
Strauss Hauer & Feld LLP
One
Bryant Park
New York,
NY 10036
Attention: Mark
Zvonkovic
Facsimile: (212)
872-1002
If to
Seller or DeGroote:
Victoria
Hall
11
Victoria Street
Hamilton,
HMEX Bermuda
Attention: James
Watt
Facsimile: (441)
292 9485
with a
copy (which will not constitute notice) to:
Dickstein
Shapiro LLP
1633
Broadway 10019-6708
Attention: Malcolm
I. Ross, Esq.
Facsimile: (212)
277-6501
All
notices, requests or other communications will be effective and deemed given
only as follows: (i) if given by personal delivery, upon such
personal delivery, (ii) if sent by certified or registered mail, on the fifth
business day after being deposited in the United States mail, (iii) if sent for
next day delivery by overnight delivery service, on the date of delivery as
confirmed by written confirmation of delivery, (iv) if sent by facsimile, upon
the transmitter’s confirmation of receipt of such facsimile transmission, except
that if such confirmation is received after 5:00 p.m. (in the recipient’s time
zone) on a business day, or is received on a day that is not a business day,
then such notice, request or communication will not be deemed effective or given
until the next succeeding business day. Notices, requests and other
communications sent in any other manner, including by electronic mail, will not
be effective.
(h) Specific
Performance; Remedies. Each party acknowledges and agrees that
the other party would be damaged irreparably if any provision of this Agreement
were not performed in accordance with its specific terms or were otherwise
breached. Accordingly, the parties will be entitled to an injunction
or injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically this Agreement and its provisions in addition to any other
remedy to which they may be entitled, at law or in equity. Except as
expressly provided herein, the rights, obligations and remedies created by this
Agreement are cumulative and in addition to any other rights, obligations or
remedies otherwise available at law or in equity. Except as expressly
provided herein, nothing herein will be considered an election of
remedies.
(i) Headings. The
article and section headings contained in this Agreement are inserted for
convenience only and will not affect in any way the meaning or interpretation of
this Agreement.
(j) Governing
Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
choice of law principles.
(k) Amendment. This
Agreement may not be amended or modified except by a writing signed by all of
the parties.
(l) Extensions;
Waivers. Any party may, for itself only, (a) extend the time
for the performance of any of the obligations of any other party under this
Agreement, (b) waive any inaccuracies in the representations and warranties of
any other party contained herein or in any document delivered pursuant hereto
and (c) waive compliance with any of the agreements or conditions for the
benefit of such party contained herein. Any such extension or waiver
will be valid only if set forth in a writing signed by the party to be bound
thereby. No waiver by any party of any default, misrepresentation or
breach of warranty or covenant hereunder, whether intentional or not, may be
deemed to extend to any prior or subsequent default, misrepresentation or breach
of warranty or covenant hereunder or affect in any way any rights arising
because of any prior or subsequent such occurrence. Neither the
failure nor any delay on the party of any party to exercise any right or remedy
under this Agreement will operate as a waiver thereof, nor will any single or
partial exercise of any right or remedy preclude any other or further exercise
of the same or of any other right or remedy.
(m) Expenses. Each
party will bear its own costs and expenses incurred in connection with the
preparation, execution and performance of this Agreement and the transactions
contemplated hereby, including all fees and expenses of agents, representatives,
financial advisors, legal counsel and accountants.
(n) Counterparts;
Effectiveness. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original but all of which together
will constitute one and the same instrument. This Agreement will
become effective when one or more counterparts have been signed by each of the
parties and delivered to the other party, which delivery may be made by exchange
of copies of the signature page by facsimile transmission.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the date first above written.
| CBIZ, Inc. | |||
|
By:
|
|||
| Name: Jerome P. Grisko, Jr. | |||
| Title: President | |||
| Westbury (Bermuda) Ltd. | |||
|
By:
|
|||
| Name: Jim Watt | |||
|
Title: President
|
|||
| Westbury Trust | |||
|
By:
|
|||
| Name: Jim Watt | |||
| Title: Trustee | |||
| Michael G. DeGroote | |||
Annex A
CUSTODY
AGREEMENT
Exhibit
10.2
CUSTODY
AGREEMENT
THIS CUSTODY AGREEMENT (as the same may
be amended or modified from time to time pursuant hereto, this “Agreement”) is
made and entered into as of September 14, 2010, by and among Westbury (Bermuda)
Ltd., a Bermuda exempted company, and Westbury Trust, a Bermuda trust
(collectively, “Seller”), Michael G. DeGroote (“DeGroote”), CBIZ, Inc., a
Delaware corporation (“Company”), and JPMorgan Chase Bank, N.A. (the
“Custodian”).
WHEREAS, Company, Seller and
DeGroote are desirous of appointing the Custodian as its agent to hold 7,716,669
shares of common stock of the Company (the “Shares”) subject to the terms and
conditions set forth herein.
NOW THEREFORE, in
consideration of the foregoing and of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Appointment. Company,
Seller and DeGroote hereby appoint the Custodian as the custodian for the
purposes set forth herein, and the Custodian hereby accepts such appointment
under the terms and conditions set forth herein.
2. Custody
Account. The Custodian will establish and maintain one or more
custody accounts as required (the "Accounts") in the name of Seller for the
purpose of holding the Shares that shall be deposited with the
Custodian.
3. Disposition and
Termination. The Custodian shall release all or a portion of
the Shares deposited in the Accounts to Company upon, and pursuant to, the joint
written instructions of Company, Seller and DeGroote in the form of Annex A
hereto and in accordance with the security procedures set forth in Section 12
below. This Agreement shall terminate at the earlier of (a) the mutual agreement
of Seller, DeGroote and Company, (b) September 30, 2013, (c) upon receipt of a
written notice from Seller, DeGroote and Company stating that the Underlying
Agreement (as defined below) has been terminated by its terms, and (d) the date
on which the final release of all of the Shares has been made hereunder in
accordance with the terms hereof. Any Shares remaining in the Accounts upon
termination of this Agreement shall be returned by the Custodian to Seller
(together with all instruments of assignment executed in connection with such
remaining Shares) or to whoever may be lawfully entitled to receive the same or
as a court of competent jurisdiction shall direct.
4. Use of Depositories; Nominee
Name.
(a) The Custodian may
deposit the Shares with, and hold securities in, any securities depository,
settlement system, dematerialized book entry system or similar system (together
a "Securities Depository") on such terms as such systems customarily operate and
Company, Seller and DeGroote will provide the Custodian with such documentation
or acknowledgements that the Custodian may require to hold the Shares in such
systems. The Custodian is not responsible for the selection or
monitoring of any Securities Depository and will have no responsibility for any
act or omission by (or the insolvency of) any Securities
Depository. In the event Company, Seller or DeGroote incur a loss due
to the negligence, willful misconduct, or insolvency of a Securities Depository,
the Custodian will make reasonable endeavors, to seek recovery from the
Securities Depository, but Custodian will not be obligated to institute legal
proceedings, file proofs of claim in any insolvency proceeding, or take any
similar action. The Securities Depository must be acceptable and
approved by the Custodian, as an operating system compatible with the
Custodian’s bank systems.
|
|
(b)
|
The Custodian will identify in its books that
the Shares credited
to the Accounts belong to Seller (except as otherwise may be agreed by all
parties hereto).
|
|
|
(c)
|
The Custodian is
authorized:
|
(i)
to hold securities in or deposit
securities with any Securities Depository or settlement system,
acceptable to the
Custodian; and
(ii) to register in the name of Seller, the
Custodian, a Securities Depository, or their respective nominees, such
securities as are customarily held in registered form.
5. Entitlements. With
respect to all Shares held in the Accounts, the Custodian by itself, or through
the use of the book entry system or the appropriate Securities Depository,
shall, unless otherwise instructed in writing to the contrary by Company, Seller
and DeGroote: (a) collect all income and other payments reflecting
dividends and other distributions on the Shares in the Accounts and disburse
such amounts to Seller; (b) forward to Seller copies of all information or
documents that it may receive from the Company which, in the opinion of the
Custodian, are intended for the beneficial owner of the Shares including,
without limitation, all proxies and other authorizations properly executed and
all proxy statements, notices and reports; and (c) hold directly, or through the
book entry system or Securities Depository, all rights issued with respect to
the Shares held by the Custodian hereunder.
6. Custodian. (a) The Custodian shall have
only those duties as are specifically and expressly provided herein, which shall
be deemed purely ministerial in nature, and no other duties shall be
implied. The Custodian shall neither be responsible for, nor
chargeable with, knowledge of, nor have any requirements to comply with, the
terms and conditions of any other agreement, instrument or document between
Company, Seller, DeGroote and any other party, in connection herewith, if any,
including without limitation that certain Stock and Option Purchase
Agreement among
Company, Seller and DeGroote (the “Underlying Agreement”), nor shall the
Custodian be required to determine if any person or entity has complied with any
Underlying Agreement, nor shall any additional obligations of the Custodian be
inferred from the terms of any Underlying Agreement, even though reference
thereto may be made in this Agreement. In the event of any conflict
between the terms and provisions of this Agreement, those of the
Underlying Agreement, any schedule or exhibit attached to this
Agreement, or any other agreement
with Company, Seller and DeGroote, the terms and conditions of this Agreement
shall control. The Custodian may rely upon and shall
not be liable for acting or refraining from acting upon any written notice,
document, instruction or request furnished to it hereunder and believed by it to
be genuine and to have been signed or presented by Company, Seller and DeGroote
without inquiry and without requiring substantiating evidence of any
kind. The Custodian shall not be liable to Company, Seller, DeGroote,
any beneficiary or other person for refraining from acting upon any instruction
setting forth the release of Shares in the Accounts, unless such instruction
shall have been delivered to the Custodian in accordance with Section 12 below
and the Custodian has been able to satisfy any applicable security procedures as
may be required thereunder. The Custodian shall be under no duty to inquire into
or investigate the validity, accuracy or content of any such document, notice,
instruction or request. The Custodian shall have no duty to solicit
any payments which may be due to it or the Accounts nor shall the Custodian
have any duty or obligation to
confirm or verify the accuracy or correctness of any amounts deposited with it
hereunder.
(b) The Custodian shall not
be liable for any action taken, suffered or omitted to be taken by it except to
the extent that a final adjudication of a court of competent jurisdiction
determines that the Custodian's gross negligence or willful misconduct was the
primary cause of any loss to Company, Seller or DeGroote. The Custodian may execute
any of its powers and perform any of its duties hereunder directly or through
affiliates or agents. The Custodian may consult with counsel,
accountants and other skilled persons to be selected and retained by
it. The Custodian shall not be
liable for any action taken, suffered or omitted to be taken by it in accordance
with, or in reliance upon, the advice or opinion of any such counsel,
accountants or other skilled persons. In the event that the Custodian
shall be uncertain or believe there is some ambiguity as to its duties or rights
hereunder or shall receive instructions, claims or demands from any party hereto
which, in its opinion, conflict with any of the provisions of this Agreement, it
shall be entitled to refrain from taking any action and its sole obligation
shall be to keep safely all property held in escrow until it shall be given a
joint direction in writing by Company, Seller and DeGroote which eliminates such ambiguity or
uncertainty to the satisfaction of Custodian or by a final and non-appealable
order or judgment of a court of competent jurisdiction. Company,
Seller and DeGroote agree to pursue any redress or recourse in connection with
any dispute without making the Custodian a party to the
same. Anything in this Agreement to the contrary notwithstanding, in
no event shall the Custodian be liable for special, incidental, punitive,
indirect or consequential loss or damage of any kind whatsoever (including but
not limited to lost profits), even if the Custodian has been advised of the
likelihood of such loss or damage and regardless of the form of
action.
7. Succession. The Custodian may
resign and be discharged from its duties or obligations hereunder by giving
thirty (30) days advance
notice in writing of such resignation to Company, Seller and DeGroote specifying
a date when such resignation shall take effect. Company, Seller and
DeGroote shall have the right at any time by written agreement to remove the
Custodian and appoint a successor by giving the Custodian thirty (30)
days advance notice in writing of
such replacement and instructions to deliver the Shares to such successor
custodian. The Custodian shall have the right to withhold an amount
equal to any amount due and owing to the Custodian, plus any costs and expenses
the Custodian shall reasonably believe may be incurred by the Custodian in
connection with the termination of this Agreement. Any entity into
which the Custodian may be merged or converted or with which it may be
consolidated, or any entity to which all or substantially all the escrow
business may be transferred, shall be the Custodian under this Agreement without
further act. Custodian’s sole responsibility after such thirty-day
notice period expires shall be to hold the Shares in the Accounts (without any
obligation to reinvest the same) and to deliver the same to a designated
substitute custodian, if any, or in accordance with the directions of a final
order or judgment of a court of competent jurisdiction, at which time of
delivery Custodian’s obligations hereunder shall cease and terminate,
subject to the provisions of Section 9(b).
8. Compensation
and Reimbursement. Company agrees (a) to pay
the Custodian upon execution of this Agreement and from time to time thereafter
reasonable compensation for the services to be rendered hereunder, along with
any fees or charges for accounts, including those levied by any governmental
authority which the Custodian may impose, charge or pass-through, which unless
otherwise agreed in writing shall be as described in Schedule 2 attached hereto,
and (b) to pay or reimburse the Custodian upon request for all reasonable
out-of-pocket expenses, disbursements and advances, including, without
limitation reasonable attorney's
fees and expenses, incurred or made by it in connection with the performance of
this Agreement. The obligations contained in this Section 8 shall
survive the termination of this Agreement and the resignation, replacement or
removal of the Custodian.
9. Indemnity. (a) Seller, DeGroote, and
Company shall jointly and severally indemnify, defend and save
harmless the Custodian and its affiliates and their respective successors,
assigns, directors, agents and employees (the “Indemnitees”) from and against
any and all losses, damages, claims, liabilities, penalties, judgments,
settlements, litigation, investigations, costs or expenses (including, without
limitation, the reasonable fees and expenses of outside counsel and experts and
their staffs and all expense of document location, duplication and shipment)
(collectively “Losses”) arising out of or in connection with (i) the Custodian's
execution and performance of this Agreement, tax reporting or withholding, the
enforcement of any rights or remedies under or in connection with this
Agreement, or as may arise by reason of any act, omission or error of the
Indemnitee, except in the case of any Indemnitee to the extent that such Losses
are finally adjudicated by a court of competent jurisdiction to have been
primarily caused by the gross negligence or willful misconduct of such
Indemnitee, or (ii) its following any joint instructions or other directions
from the Company, Seller and DeGroote, except to the extent that its following
any such instruction or direction is expressly forbidden by the terms
hereof. The indemnity obligations set forth in this Section 9(a)
shall survive the resignation, replacement or removal of the Custodian or the
termination of this Agreement.
(b) Seller hereby grants the Custodian a
lien on, right of set-off against and security interest in, the Accounts for the
payment of any claim for indemnification, fees, expenses and amounts due to the
Custodian or an Indemnitee. In furtherance of the foregoing, the
Custodian is expressly authorized and directed, but shall not be obligated, to
charge against, liquidate sufficient assets and withdraw the proceeds of such
from the Accounts for its own account or for the account of an Indemnitee any
amounts due to the Custodian or to an Indemnitee under either Sections 7, 8 or
9(a).
10. Account Opening Information/Taxpayer
Identification Number/Tax Reporting.
(a) Patriot Act
Disclosure. Section 326 of the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (“USA PATRIOT Act”) requires the Custodian to implement
reasonable procedures to verify the identity of any person that opens a new
account with it. Accordingly, the Parties acknowledge that Section
326 of the USA PATRIOT Act and the Custodian’s identity verification procedures
require the Custodian to obtain information which may be used to confirm
Seller’s and DeGroote’s identity including without limitation name, address and
organizational documents (“identifying information”). Seller and DeGroote agree to provide
the Custodian with and consents to the Custodian obtaining from third parties
any such identifying information required as a condition of opening an account
with or using any service provided by the Custodian.
(b) Certification
and Tax Reporting. Seller, DeGroote and Company
have provided the Custodian with thier fully executed Internal
Revenue Service (“IRS”) Forms W-8, or W-9 and/or other required
documentation. All interest or other income earned under this
Agreement shall be allocated Seller and reported, as and to the extent required
by law, by the Custodian to the IRS, or any other taxing authority, on IRS Form
1099 or 1042S (or other appropriate form) as income earned from the Accounts by
Seller whether or not said income has been distributed during such
year. Custodian shall withhold any taxes in the absence of proper tax
documentation, or as required by law, and shall remit such taxes to the
appropriate authorities.
11. Notices. All communications hereunder shall be
in writing and except for the joint instructions from Company, Seller and DeGroote setting
forth the release of Shares (which shall be specifically governed by Section 12
below), shall be deemed to be duly given after it has been received and the
receiving party has had a reasonable time to act upon such communication if it is sent or
served:
(a) by facsimile;
(b) by overnight courier;
or
(c) by prepaid registered mail, return
receipt requested;
to the appropriate notice address set
forth below or at such other address as any party hereto may have furnished
to the other parties in
writing by registered mail, return receipt requested.
|
If to
Company
|
6050
Oak Tree Blvd., South, Suite 500
|
Cleveland,
OH 44131
Attention: Michael W.
Gleespen
Tel No.:
(216) 447-9000
Fax No.:
(216) 447-9007
|
If to Seller or DeGroote
|
Victoria
Hall
|
11 Victoria Street
Hamilton, HMEX
Bermuda
Attention: James
Watt
Tel
No.: (441) 292 9480
Fax
No.: (441) 292 9485
with a
copy (which shall not constitute notice) to:
Dickstein
Shapiro LLP
1633
Broadway
New York,
NY 10019
Tel
No.: (212) 277-6525
Fax
No.: (212) 277-6501
|
If
to the Custodian
|
JPMorgan
Chase Bank, N.A.
|
Escrow
Services
4 New
York Plaza, 21st
Floor
New York,
N.Y. 10004
Attention: Florence
Hanley or Sal Lunetta
Fax No.:
212.623.6168
Notwithstanding the above, in the case of communications
delivered to the Custodian, such communications shall be deemed to have been
given on the date received by an officer of the Custodian or any employee of the
Custodian who reports directly to any such officer at the above-referenced office. In the
event that the Custodian, in its sole discretion, shall determine that an
emergency exists, the Custodian may use such other means of communication as the
Custodian deems appropriate.
12. Security
Procedures. Notwithstanding anything to the contrary as set forth in
Section 11, the joint instructions in the form of Annex A hereto setting forth
the release of Shares, may be given to the Custodian only by confirmed facsimile
and no instruction for or related to the release of Shares in the Accounts, shall be deemed
delivered and effective unless the Custodian actually shall have received such
instruction by facsimile at the number provided to the Company, Seller and
DeGroote by the Custodian in accordance with Section 11 and as further evidenced by a confirmed
transmittal to that number.
(a) The Custodian is authorized to seek
confirmation of the joint instructions by telephone call-back to the person or
persons designated on Schedule 1 hereto, and the Custodian may rely upon the
confirmation of anyone
purporting to be the person or persons so designated. The persons and
telephone numbers for call-backs may be changed only in a writing actually
received and acknowledged by the Custodian. If the Custodian is unable to
contact any of the authorized representatives
identified in Schedule 1, the Custodian is hereby authorized both to receive
written instructions from and seek confirmation of such instructions by
telephone call-back to any one or more, as the case may be, of each of
the Company’s and Seller’s executive officers ("Executive
Officers"), which shall include the titles of President, Chief Financial Officer
or Treasurer in the case of the Company and President in the case of Seller as
the Custodian may select. Such Executive Officer shall deliver to the Custodian a
fully executed incumbency certificate, and the Custodian may rely upon the
confirmation of anyone purporting to be any such officer.
(b) Company, Seller and
DeGroote acknowledge that the security procedures set forth in this Section 12 are commercially
reasonable.
13. Compliance with Court
Orders. In the
event that any of the Shares deposited hereunder shall be attached, garnished or
levied upon by any court order, or the delivery thereof shall be stayed or
enjoined by an order of a
court, or any order, judgment or decree shall be made or entered by any court
order affecting the Shares deposited under this Agreement, (a) the Custodian
shall provide a copy or written notice of the same to each of Company, Seller,
and DeGroote as soon as practicable and
at most within five (5) Business Days of the Custodian’s receipt of the same, and (b) the
Custodian is hereby expressly authorized, in its sole discretion, to obey and
comply with all writs, orders or decrees so entered or issued, which it is advised by
legal counsel of its own choosing is binding upon it, whether with or without
jurisdiction, and in the event that the Custodian obeys or complies with any
such writ, order or decree it shall not be liable to Company, Seller, DeGroote or to any other person,
entity, firm or corporation, by reason of such compliance notwithstanding such
writ, order or decree be subsequently reversed, modified, annulled, set aside or
vacated. "Business Day" shall mean any day
other than a Saturday,
Sunday or any other day on which the Custodian located at the notice address set
forth above is authorized or required by law or executive order to remain
closed.
14. Miscellaneous. Except for changes to the joint
instructions as provided in Section 12, the provisions of this Agreement may be
waived, altered, amended or supplemented, in whole or in part, only by a writing
signed by all parties to this Agreement. Neither this Agreement nor
any right or interest hereunder may be assigned in whole or in part by any party to this
Agreement, except as provided in Section 7, without the prior consent of all
parties hereto. This Agreement shall be governed by and construed
under the laws of the State of New York. Each party irrevocably
waives any objection on the grounds of venue, forum
non-conveniens or any similar grounds and irrevocably consents to service of
process by mail or in any other manner permitted by applicable law and consents
to the jurisdiction of the courts located in the State of New York. To the extent that in any
jurisdiction Company, Seller or DeGroote may now or hereafter be entitled to
claim for itself or its assets, immunity from suit, execution attachment (before
or after judgment), or other legal process, Company, Seller and DeGroote shall not claim, and each hereby
irrevocably waives, such immunity. Each party further hereby waives any right to
a trial by jury with respect to any lawsuit or judicial proceeding arising or
relating to this Agreement. No party to this Agreement is liable to any other party for losses
due to, or if it is unable to perform its obligations under the terms of this
Agreement because of, acts of God, fire, war, terrorism, floods, strikes,
electrical outages, equipment or transmission failure, or other causes reasonably beyond its
control. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. All signatures of the parties to this
Agreement may be transmitted by facsimile or
email, and such facsimile or email will, for all purposes, be deemed to be the
original signature of such party whose signature it reproduces, and will be
binding upon such party. If any provision of this
Agreement is determined to
be prohibited or unenforceable by reason of any applicable law of a
jurisdiction, then such provision shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions thereof, and any such
prohibition or unenforceability in such jurisdiction shall not invalidate or
render unenforceable such provisions in any other
jurisdiction. Where, however, the conflicting provisions of any such
applicable law may be waived, they are hereby irrevocably waived
by the parties hereto to the fullest extent permitted by law, to the end that
this Agreement shall be enforced as written. Except as expressly
provided in Section 9 above, nothing in this Agreement, whether express
or implied, shall be construed to give to
any person or entity other than the parties hereto any legal or equitable right,
remedy, interest or claim under or in respect of this Agreement or any Shares in
the Accounts hereunder.
IN WITNESS
WHEREOF, the parties hereto have executed this
Agreement as of the date set forth above.
|
CBIZ, INC.
|
|||||
| Signature: |
|
||||
| Printed Name: |
|
||||
|
WESTBURY (BERMUDA)
LTD.
|
|||||
| Signature: |
|
||||
| Printed Name: |
|
||||
|
WESTBURY
TRUST
|
|||||
| Signature: |
|
||||
| Printed Name: |
|
||||
|
MICHAEL G.
DEGROOTE
|
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| Signature: |
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| Printed Name: |
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JPMORGAN CHASE BANK,
N.A.
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as
Custodian
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By:
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| Its: |
Vice
President
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Schedule 1
Telephone Number(s) and authorized
signature(s) for
Person(s)
Designated to give Share Release
Instructions
If from
Company:
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Name
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Telephone
Number
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Signature
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1.
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Jerome P.
Grisko
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(216)
447-9000
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2.
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Ware H.
Grove
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(216)
447-9000
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3.
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Kelly J.
Marek
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(216)
447-9000
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If from
Seller:
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Name
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Telephone
Number
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Signature
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1.
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James A.
Loatt
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(441) 292-9480
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Telephone Number(s) for Call-Backs
and
Person(s)
Designated to Confirm Share Release Instructions
If from Company:
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Name
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Telephone
Number
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1.
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Jerome P.
Grisko
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(216)
447-9000
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2.
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Ware H.
Grove
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(216)
447-9000
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3.
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Kelly J.
Marek
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(216)
447-9000
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If from
Seller:
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Name
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Telephone
Number
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1.
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James A.
Watt
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(441) 292-9480
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All Share release instructions must
include the signature of
the person(s) authorizing said Share release.
Schedule 21
Based
upon our current understanding of your proposed transaction, our fee proposal is
as follows:
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Account Acceptance Fee
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. .
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$WAIVED
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Encompassing
review, negotiation and execution of governing documentation, opening of the
account, and completion of all due diligence documentation. Payable
upon closing.
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Annual Administration
Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.
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$2,500
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The
Administration Fee covers our usual and customary ministerial duties, including
record keeping, distributions, document compliance and such other duties and
responsibilities expressly set forth in the governing documents for each
transaction. Payable upon closing and annually in advance thereafter,
without pro-ration for partial years.
Extraordinary
Services and Out-of Pocket Expenses
Any
additional services beyond our standard services as specified above, and all
reasonable out-of-pocket expenses including attorney’s or accountant’s fees and
expenses will be considered extraordinary services for which related costs,
transaction charges, and additional fees will be billed at the Bank's then
standard rate. Disbursements, receipts, investments or tax reporting
exceeding 25 items per year may be treated as extraordinary services thereby
incurring additional charges. The Escrow
Agent may impose, charge, pass-through and modify fees and/or charges for any
account established and services provided by the Escrow Agent, including but not
limited to, transaction, maintenance, balance-deficiency, and service fees and
other charges, including those levied by any governmental
authority.
Disclosure
& Assumptions
|
·
|
Please note that the fees quoted
are based on a review of the transaction documents provided and an
internal due diligence review. JPMorgan reserves the right to revise,
modify, change and supplement the fees quoted herein if the assumptions
underlying the activity in the account, level of balances, market
volatility or conditions or other factors change from those used to set
our fees.
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The escrow deposit shall be continuously
invested in a JPMorgan Chase Bank money market deposit account
(“MMDA”) MMDA have rates of
compensation that may vary from time to time based upon market
conditions.
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·
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The Depositor acknowledges and
agrees that they are permitted by U.S. law to make up to six (6)
pre-authorized withdrawals or telephonic transfers from an MMDA per
calendar month or statement cycle or similar period. If
the MMDA can be accessed by checks, drafts, bills of exchange, notes and
other financial instruments (“Items”), then no more than three (3) of
these six (6) transfers may be made by an Item. The
Escrow Agent is required by U.S. law to reserve the right to require at
least seven (7) days notice prior to a withdrawal from a money
market deposit account.
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·
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Payment
of the invoice is due upon receipt.
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Compliance
To help the government fight the funding
of terrorism and money laundering activities, Federal law requires all financial
institutions to obtain, verify, and record information that identifies each
person or entity that opens an account. We may ask for information
that will enable us to meet the requirements of the Act.
Annex A
[Date]
VIA
FACSIMILE: _________
[Name and
Address of Custodian]
Re: Joint
Written Instructions on Release of Shares Pursuant to Option
Exercise
Ladies
and Gentlemen:
Reference is made to that
certain Custody Agreement, dated as of September __, 2010 (the “Agreement”), by
and among Westbury (Bermuda) Ltd., a Bermuda exempted company, and
Westbury Trust (collectively, “Seller”) and Michael G. DeGroote, CBIZ,
Inc. ( “Company”) and JPMorgan Chase Bank, N.A. (the “Custodian”). Capitalized
terms used but not defined herein shall have the meanings provided in the
Agreement.
Pursuant
to Sections 3 and 12 of the Agreement, Company hereby notifies the Custodian of,
and Seller and DeGroote acknowledge, exercise of the Option (as defined in the
Underlying Agreement) by Company in accordance with the terms of the Underlying
Agreement, and Seller, DeGroote and Company hereby instruct the Custodian to
release __________ Shares to Company.
| Very truly yours, | |||
| CBIZ, INC. | |||
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By:
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| Name: | |||
| Title: | |||
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WESTBURY
(BERMUDA) LTD.
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By:
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| Name: | |||
| Title: | |||
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WESTBURY
TRUST
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By:
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| Name: | |||
| Title: | |||
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MICHAEL
G. DEGROOTE
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