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Exhibit 10.20
AGREEMENT
This Agreement (hereinafter "Agreement") is entered into this 15th
day of October 1997, by and among Conley, Canitano & Assoc., Inc., an Ohio
corporation (together with any predecessors or successors thereto, the
"Company"), Annette M. Canitano, Nicholas A. Canitano, Karen M. Conley, Kenneth
L. Conley, NAC Enterprises, Inc., CKCK Enterprises, Inc., Kenneth L. Conley
Charitable Remainder Trust, Karen M. Conley Charitable Remainder Trust
(collectively the "Shareholders" and individually a "Shareholder"), TA/Advent
VIII, L.P., Advent Atlantic and Pacific L.P., TA Venture Investors Limited
Partnership, Kenneth T. Schiciano, A. Bruce Johnston, McDonald & Company
Securities, Inc., McD Venture Capital Fund, L.P. and GHK Investments, L.L.C.
(together with their successors and assigns, collectively the "Investors," and
each individually an "Investor") and Joseph Minadeo ("Minadeo").
WHEREAS, Minadeo, the Company and certain of the Shareholders are party
to a certain Amended and Restated Share Redemption and Purchase Agreement, dated
July 1, 1997, as amended October 13, 1997 (the "Redemption Agreement");
WHEREAS, Minadeo has been advised that the Company, the Shareholders
and certain of the Investors have reached an agreement with respect to an
investment by certain of the Investors in the Company and a concurrent
redemption by the Company from the Shareholders of a portion of their capital
stock of the Company, which draft of such agreement is set out in further detail
in the Stock Purchase and Shareholders Agreement attached hereto as Exhibit A
(the "Purchase Agreement");
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WHEREAS, the consummation of the transactions contemplated by the
Purchase Agreement is conditioned upon the execution of this Agreement and the
consummation of the transactions contemplated hereby; and
WHEREAS, Minadeo has made an independent and informed decision that the
transactions contemplated by the Purchase Agreement and this Agreement are in
his best interests because (i) the transactions contemplated by the Purchase
Agreement will result in the acceleration of certain payments to Minadeo by the
Company and certain of the Shareholders and certain additional payments to
Minadeo by the Company pursuant to the terms of the Redemption Agreement and
(ii) the transactions contemplated by this Agreement will result in an
additional payment to Minadeo as set forth in paragraph 1 below.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company, Shareholders,
Investors and Minadeo agree as follows:
1. PAYMENT. Upon execution of this Agreement, the Company agrees to pay
to Minadeo or his designee the sum of five thousand dollars ($5,000).
2. RELEASE BY MINADEO
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For and in consideration of the $5,000 payment and the additional
covenants and promises set forth in this Agreement and the Redemption Agreement,
Minadeo and his successors, assigns, heirs and beneficiaries (the "Minadeo
Releasing Parties") hereby fully and finally release, acquit and forever
discharge the Company, the Shareholders, the Investors and each of their present
and former officers, directors, general partners, trustees, shareholders,
representatives, employees, partners, principals, agents, affiliates,
subsidiaries, predecessors, successors, assigns,
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beneficiaries, heirs, executors, insurers and attorneys (collectively, the
"Released Parties") from any and all actions, debts, claims, counterclaims,
demands, liabilities, damages, causes of action, costs, expenses, and
compensation of every kind and nature whatsoever, past, present, or future, in
law or in equity, whether known or unknown, which Minadeo had, has, or may have
had from the beginning of the world to the date of this Agreement against the
Released Parties, or any of them, including but not limited to any claims which
relate to or arise out of Minadeo's prior relationship with Company or stock
ownership in the Company. In executing this Release, Minadeo acknowledges that
he has been informed that the Company and the Investors may from time to time
enter into agreements for additional types of financing, including
recapitalizations and initial public offerings of common stock of the Company,
and also may pursue acquisitions or enter into agreements for the sale of the
Company or its assets, and that any and all claims arising from or relating to
such transactions (without limitation) are intended to be encompassed within the
scope of this release, and that the sole exception to the scope of this release
is for claims arising directly from a breach of this Agreement.
3. COVENANT NOT TO SUE
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Minadeo further agrees not to institute any litigation, lawsuit, claim
or action against the Company, the Shareholders or the Investors, or any of
them, which arises from, or is alleged to arise from, or relate to, or is based
on, or is in any way connected with, in whole or in part, Minadeo's prior
relationship with the Company or his ownership of stock in the Company,
excepting only claims arising directly from a breach of this Agreement.
4. NO RELIANCE ON REPRESENTATIONS BY THE RELEASED PARTIES
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Minadeo hereby represents and warrants that he and his counsel have
adequate information regarding the terms of this Agreement, the scope and effect
of the releases set forth herein, and all other matters encompassed by this
Agreement to make an informed and knowledgeable decision with regard to entering
into this Agreement, and that he has independently and without reliance upon the
Released Parties made his own analysis and decision to enter into this
Agreement. Minadeo acknowledges and hereby verifies that the Released Parties,
and each of them, have not made any representation or warranty and have no duty
or obligation to him, whether express or implied, of any kind or character,
except as expressly set forth herein.
5. INTERPRETATION
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This Agreement shall not be construed against the drafter hereof.
6. SUFFICIENCY OF CONSIDERATION
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The parties acknowledge that the covenants contained in this Agreement
provide good and sufficient consideration for every promise, duty, release,
obligation, agreement and right contained in this Agreement.
7. LAW GOVERNING AND CONSENT TO JURISDICTION
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This Agreement, and all claims and disputes arising in connection with
this Agreement or the transactions contemplated hereby, shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts. All
judicial proceedings brought with respect to this Agreement shall be brought in
the Massachusetts state courts or the United States District Court for the
District of Massachusetts.
8. MULTIPLE COUNTERPARTS
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This Agreement may be executed in a number of identical counterparts,
all of which shall constitute one agreement.
9. ENTIRE AGREEMENT
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This Agreement contains all of the representations and warranties,
express and implied, oral and written, between and among the parties hereto, and
the entire understanding and agreement between and among the parties with
respect to the subject matter hereof. No other agreements, covenants,
representations or warranties, express or implied, oral or written, have been
made by any party with respect to the subject matter of this Agreement. All
prior and contemporaneous conversations, negotiations, proposed agreements and
agreements, or representations, covenants and warranties with respect to the
subject matter hereof are merged herein, waived, superseded and replaced in
total by this Agreement. This is an integrated agreement and it may not be
altered and modified except by a writing signed by all parties in interest at
the time of the authorization and modification.
[Signatures on following pages]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed under seal in several counterparts, and each is an original as of the
first date written above.
JOSEPH MINADEO
/s/ Joseph Minadeo
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COMPANY:
CONLEY, CANITANO & ASSOC., INC.
By: /s/ Karen Conley
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Name: Karen M. Conley
Title: Ssecretary-Treasurer
SHAREHOLDERS:
/s/ Annette M. Canitano
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Annette M. Canitano
/s/ Nicholas A. Canitano
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Nicholas A. Canitano
/s/ Karen M. Conley
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Karen M. Conley
/s/ Kenneth L. Conley
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Kenneth L. Conley
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NAC Enterprises, Inc.
By: /s/ Annette M. Canitano
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Name: Annette M. Canitano
Title: Secretary
CKCK Enterprises, Inc.
By: /s/ Kenneth L. Conley
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Name: Kenneth L. Conley
Title: President
Karen M. Conley Charitable Remainder Trust
By: /s/ Karen M. Conley
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Name: Karen M. Conley
Title: Trustee
Kenneth L. Conley Charitable Remainder Trust
By: /s/ Kenneth L. Conley
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Name: Kenneth L. Conley
Title: Trustee
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INVESTORS:
TA INVESTORS:
TA/ADVENT VIII L.P.
By: TA Associates VIII L.P.,
its General Partner
By: TA Associates, Inc.,
its General Partner
*
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Name:
Title:
ADVENT ATLANTIC AND PACIFIC III L.P.
By: TA Associates AAP III Partners,
its General Partner
By: TA Associates, Inc.,
its General Partner
*
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Name:
Title:
TA VENTURE INVESTORS LIMITED
PARTNERSHIP
*
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Name:
Title:
/s/ Kenneth T. Schiciano
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Kenneth T. Schiciano
/s/ A. Bruce Johnston
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A. Bruce Johnston
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MCDONALD INVESTORS:
McDONALD & COMPANY SECURITIES, INC.
By: /s/ Ralph M. Della Ratta, Jr.
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Name: Ralph M. Della Ratta, Jr.
Title: Senior Managing Director
McD VENTURE CAPITAL FUND, L.P.
By: /s/ Ralph M. Della Ratta, Jr.
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Name: Ralph M. Della Ratta, Jr.
Title: General Partner
GHK INVESTMENTS, L.L.C.
By: /s/ William R. Koehler
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Name: William R. Koehler
Title: Agent
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