STOCK AND OPTION PURCHASE AGREEMENT
Exhibit
10.1
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 Xxxxxxx X. XxXxxxxx, a resident of Bermuda (“XxXxxxxx”)
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 XxXxxxxx or any XxXxxxxx Family Member.
(i) “XxXxxxxx Family
Member” means (A) any spouse or surviving spouse of XxXxxxxx, (B) any
brother, sister, child, adopted child, step child, grandchild, adopted
grandchild or other issue of XxXxxxxx, (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 XxXxxxxx Entity or (F) any XxXxxxxx
Trust.
(ii) “XxXxxxxx
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 XxXxxxxx Family Members.
(iii) “XxXxxxxx
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 Xxxxxxx Xxxxx & Xxxx LLP, Xxx
Xxxxxx Xxxx, Xxx Xxxx, XX 00000, 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 XxXxxxxx. Seller and XxXxxxxx
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 XxXxxxxx and
constitutes a valid and binding obligation of Seller and XxXxxxxx, 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 XxXxxxxx and the
consummation by Seller and XxXxxxxx of the transactions contemplated hereby will
not (A) violate any provision of any existing law, statute, rule, regulation or
ordinance applicable to Seller or XxXxxxxx 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 XxXxxxxx is a party or by which Seller or XxXxxxxx may
be bound or (3) any contract or other agreement or undertaking to which Seller
or XxXxxxxx is a party or by which Seller or XxXxxxxx 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 XxXxxxxx in connection with the execution and delivery of this
Agreement or the consummation by Seller and XxXxxxxx 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 XxXxxxxx 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 XxXxxxxx 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 XxXxxxxx 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 XxXxxxxx 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 XxXxxxxx, 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 XxXxxxxx, 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:
0000 Xxx
Xxxx Xxxx., Xxxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Attention: Xxxxxxx
X. Xxxxxxxx
Facsimile: 000-000-0000
with a
copy (which will not constitute notice) to:
Akin Gump
Xxxxxxx Xxxxx & Xxxx LLP
Xxx
Xxxxxx Xxxx
Xxx Xxxx,
XX 00000
Attention: Xxxx
Xxxxxxxxx
Facsimile: (000)
000-0000
If to
Seller or XxXxxxxx:
Xxxxxxxx
Xxxx
11
Xxxxxxxx Street
Hamilton,
HMEX Bermuda
Attention: Xxxxx
Xxxx
Facsimile: (000)
000 0000
with a
copy (which will not constitute notice) to:
Xxxxxxxxx
Xxxxxxx LLP
0000
Xxxxxxxx 10019-6708
Attention: Xxxxxxx
X. Xxxx, Esq.
Facsimile: (000)
000-0000
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: Xxxxxx X. Xxxxxx, Xx. | |||
| Title: President | |||
| Westbury (Bermuda) Ltd. | |||
|
By:
|
|||
| Name: Xxx Xxxx | |||
|
Title: President
|
|||
| Westbury Trust | |||
|
By:
|
|||
| Name: Xxx Xxxx | |||
| Title: Trustee | |||
| Xxxxxxx X. XxXxxxxx | |||
Annex A
CUSTODY
AGREEMENT
