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Exhibit 10.23
STOCK REDEMPTION AGREEMENT
This STOCK REDEMPTION AGREEMENT (the "Agreement") is made as of October
15, 1997, by and between Conley, Canitano & Assoc., Inc. an Ohio corporation
(the "Corporation"), and Kenneth L. Conley Charitable Remainder Trust
("Transferor").
RECITALS
WHEREAS, Transferor owns 3,250 common shares, without par value, of the
Corporation's capital stock ("Common Stock");
WHEREAS, the Board of Directors of the Corporation has approved an
investment in the Corporation by a group of funds affiliated with TA Associates,
Inc. (collectively, "TA Associates") whereby TA Associates propose to invest an
aggregate of $17,500,000 in the Corporation in exchange for issuance by the
Corporation to TA Associates of shares of the Corporation's Convertible
Redeemable Preferred Stock, par value $.01 per share (the "TA Transaction"); and
WHEREAS, as a condition to the closing of the TA Transaction, the Board
of Directors has agreed to repurchase an aggregate of $15,877,284 of the
Corporation's outstanding equity securities from existing shareholders of the
Corporation; and
WHEREAS, the Corporation desires to purchase 3,250 shares (the
"Transferred Stock") of such Common Stock from Transferor for an aggregate price
of $382,232.50.
NOW, THEREFORE, IT IS AGREED THAT:
1. TRANSFER. Transferor hereby transfers the Transferred Stock to the
Corporation, and the Corporation hereby accepts the Transferred Stock, in
exchange for payment by the Corporation to the Transferor in the amount of
$382,232.50 (the "Stock Payment"). Payment shall be made by check, wire transfer
or such other form as shall be mutually agreed upon by the parties.
2. DELIVERY AND PAYMENT. Upon the signing of this Agreement, (a) the
Corporation shall deliver to transferor (i) a signed copy of this Agreement;
(ii) the Stock Payment; (iii) a new stock certificate representing the balance
of the Corporation's Common Stock owned by Transferor and not subject to
transfer to the Corporation hereunder; and (b) Transferor shall deliver to the
Corporation (i) a copy of this Agreement signed by the Transferor, duly endorsed
for transfer in accordance with the terms hereof; and (ii) a stock certificate
representing the Transferred Stock.
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3. CONSENT OF SPOUSE. If the Transferor is married on the date of this
Agreement, the Transferor's spouse shall execute a Consent of Spouse in the form
of EXHIBIT A hereto, effective on the date hereof. Such consent shall not be
deemed to confer or convey to the spouse any rights in the Transferred Stock
that do not otherwise exist by operation of law or the agreement of the parties.
If the Transferor should marry or remarry subsequent to the date of this
Agreement, the Transferor shall within thirty (30) days thereafter obtain his
new spouse's acknowledgment of and consent to the existence and binding effect
of all restrictions contained in this Agreement by signing an additional Consent
of Spouse in the form of EXHIBIT A.
4. TRANSFEROR'S REPRESENTATIONS AND WARRANTIES. Transferor represents
and warrants to the Corporation as follows:
(a) VALID TITLE. Transferor now has and will have on the date
hereof valid record and beneficial ownership of and title to the
Transferred Stock, free and clear of any pledge, lien, security
interest, encumbrance, claim or equitable interest. Transferor has full
right, power and authority to sell, assign, transfer and deliver such
Transferred Stock.
(b) REQUISITE POWER AND AUTHORITY. Transferor has all
necessary power and authority under all applicable provisions of law to
execute and deliver this Agreement and to carry out its provisions. All
action required on Transferor's part for the lawful execution and
delivery of this Agreement has been or will be effectively taken prior
to the date hereof. Upon its execution and delivery, this Agreement
will be a valid and binding obligation of Transferor, enforceable in
accordance with its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general
application affecting enforcement of creditor's rights and by general
principles of equity that restrict the availability of equitable
remedies.
(c) NO CONFLICTS. The performance of this Agreement and the
consummation of the transactions herein contemplated will not result in
a breach of, or default under, any bond, debenture, note or other
evidence of indebtedness, or any contract, indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
Transferor is a party or by which Transferor or any Transferred Stock
hereunder may be bound or, to Transferor's best knowledge, result in
any violation of any law, order, rule, regulation, writ, injunction or
decree of any court or governmental agency or body.
5. FURTHER INSTRUMENTS. The parties agree to execute such further
instruments and to take such further action as may reasonably be necessary to
carry out the intent of this Agreement.
6. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
the successors and assigns of the Corporation and be binding upon the
Transferor, his heirs, executors, administrators, successors and assigns.
7. ENTIRE AGREEMENT; AMENDMENTS. This Agreement, together with Exhibit
A hereto constitutes the full and entire understanding and agreement of the
parties with regard to the specific subject matter hereof and supersedes all
prior and contemporaneous written or oral
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agreements, and no amendment or addition hereto shall be deemed effective unless
agreed to in writing by the parties hereto.
8. GOVERNING LAW. This Agreement shall be governed by Ohio laws without
giving effect to conflicts of law principles. Any action arising out of this
Agreement must be brought in either the Superior Court of the State of Ohio or
the United States District Court for the Northern District of Ohio, as permitted
by law, which together shall have exclusive jurisdiction over disputes arising
out of this Agreement.
9. SEPARABILITY. If any provisions of this Agreement is held by a court
of competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions shall nevertheless continue in full force and effect without being
impaired or invalidated in any way and shall be construed in accordance with the
purposes and tenor and effect of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
CORPORATION: TRANSFEROR:
CONLEY, CANITANO & KENNETH L. CONLEY CHARITABLE
ASSOC., INC. REMAINDER TRUST
By:/s/ Karen M. Conley By: /s/ Kenneth L. Conley
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Name: Karen M. Conley Name: Kenneth L. Conley
Title: Secretary Title: Trustee