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Exhibit 10.19
AMENDED AND RESTATED SHARE REDEMPTION AND PURCHASE AGREEMENT
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THIS AMENDED AND RESTATED SHARE REDEMPTION AND PURCHASE
AGREEMENT (this "Agreement"), dated as of July 1, 1997, among Conley, Canitano &
Associates, Inc., an Ohio corporation ("CCAI"), Joseph Minadeo ("Minadeo"), and
Karen Conley, Nicholas A. Canitano ("Nick Canitano"), and Annette Canitano
(collectively, the "Management Shareholders") amends and restates in its
entirety the Share Redemption and Purchase Agreement, dated July 1, 1997.
BACKGROUND INFORMATION
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A. CCAI has 114 common shares, without par value, issued and
outstanding (the "CCAI Shares"). Minadeo is the owner of fourteen (14) CCAI
Shares (the "Minadeo CCAI Shares").
B. Minadeo desires to transfer all of the Minadeo CCAI Shares
to CCAI and the Management Shareholders on the terms and conditions herein set
forth.
C. CCAI will redeem eight (8) of the Minadeo CCAI Shares (the
"CCAI Share Redemption") and the Management Shareholders will purchase the
remaining six (6) Minadeo CCAI Shares (the "CCAI Share Purchase," and,
collectively with the CCAI Share Redemption, the "CCAI Share Transfer").
D. Minadeo desires to effect the CCAI Share Transfer despite
his knowledge of the Management Shareholders' present intention to (i) effect a
sale of all or a majority of the capital stock of CCAI (or substantially all of
its assets) to a third party purchaser (a "Sale of the Company"), or (ii) obtain
a third party equity investment in CCAI in the form of a leveraged
recapitalization or otherwise (a "Recapitalization", and together with a Sale of
the Company, the "Change of Control").
STATEMENT OF AGREEMENT
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Acknowledging the accuracy of the foregoing Background
Information, and subject to the terms and conditions set forth herein, Minadeo,
CCAI and the Management Shareholders hereby agree as follows:
1. REDEMPTION AND PURCHASE AND SALE OF CERTAIN CCAI SHARES. On
the Closing Date (as hereinafter defined), Minadeo will (a) tender to CCAI for
redemption, and CCAI will redeem, eight (8) CCAI Shares, and (b) sell to the
Management Shareholders, and the Management Shareholders will purchase from
Minadeo, six (6) CCAI Shares.
2. REDEMPTION PRICE; PURCHASE PRICE. (a) The purchase price to
be paid by the Management Shareholders in the
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CCAI Share Purchase, and the redemption price to be paid by CCAI in the CCAI
Share Redemption, will equal $21,428.57 per CCAI Share, or $300,000 in the
aggregate, for the Minadeo CCAI Shares (the "CCAI Share Transfer Price").
(b) The CCAI Share Transfer will be effected by Minadeo's delivery at
the Closing of (i) a certificate representing eight (8) Minadeo CCAI Shares to
CCAI, (ii) a certificate representing three (3) Minadeo CCAI Share to Nicholas
A. Canitano and Annette M. Canitano, JT TEN, and (iii) a certificate
representing three (3) Minadeo CCAI Shares to Karen Conley, in each case duly
endorsed in blank for transfer or accompanied by share transfer powers duly
endorsed in blank.
(c) As partial payment of the CCAI Share Transfer Price, and against
delivery of the certificates representing the Minadeo CCAI Shares, at the
Closing, CCAI and the Management Shareholders will deliver $40,000 and their pro
rata share of $20,000, respectively, to Minadeo by wire transfer of immediately
available funds to an account designated by Minadeo, or, at Minadeo's election,
by certified or bank check.
(d) The remaining $240,000 of the CCAI Share Transfer Price will be
paid in twenty-four (24) equal monthly installments of $10,000 each (the "CCAI
Installment Payments") to be paid ($6,667 by CCAI and $3,333 pro rata by the
Management Shareholders) to Minadeo on the 30th day of each month commencing on
August 30, 1997 by certified or bank check.
(e) Upon the consummation of any Sale of the Company prior to June 30,
1998, the Management Shareholders (or any third party purchaser, as the case may
be) shall pay Minadeo an amount equal to an aggregate of $200,000 in the same
form of consideration as paid out in such sale at the time of the closing of
such sale. Upon consummation of any Recapitalization prior to June 30, 1998, the
Management Shareholders (or any third party investor, as the case may be) shall
pay Minadeo an amount equal to an aggregate of $200,000 multiplied by a fraction
representing the aggregate fractional interest in CCAI purchased by any third
party investor(s) in such Recapitalization at the time of the closing
thereof.
(f) Notwithstanding any other provision of this Agreement, all unpaid
CCAI Installment Payments shall be accelerated and shall become immediately due
and payable concurrent with the consummation of any Change of Control.
3. CLOSING. The closing of the CCAI Share Transfer (the
"Closing") will take place at the offices of CCAI at 10:00 a.m. on August 1,
1997 or at such other place and at such other date and time as CCAI, Minadeo and
the Management Shareholders may mutually agree (such date and time of the
Closing being herein called the "Closing Date").
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4. REPRESENTATIONS AND WARRANTIES OF CCAI. CCAI represents and
warrants as of the date hereof and as of the Closing Date as follows:
(a) This Agreement has been duly executed and delivered by CCAI. This
Agreement is the legal, valid and binding obligation of CCAI, enforceable
against CCAI in accordance with its terms, except as the enforceability hereof
may be limited by laws relating to or affecting creditors' rights generally.
(b) Neither the execution, delivery and performance of this Agreement
by CCAI, nor the consummation by it of the CCAI Share Transfer, nor compliance
by it with any of the provisions of this Agreement, will (i) violate, conflict
with, or result in a breach of any provisions of, or constitute a default (or an
event which, with notice or lapse of time or both, would constitute a default)
under, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, deed of trust, license, lease, assignment or other instrument or
obligation to which CCAI is a party or by which CCAI may be bound, or to which
CCAI or the properties or assets of CCAI may be subject or (ii) violate any
judgment, ruling, order, writ, injunction, decree, statute, rule or regulation
applicable to CCAI or to the properties or assets of CCAI.
(c) No notice to, filing with, authorization of, exemption by, or
consent or approval of, any regulatory authority is necessary for the
consummation by CCAI of the CCAI Share Transfer.
5. REPRESENTATIONS AND WARRANTIES OF MINADEO. Minadeo
represents and warrants as of the date hereof and as of the Closing Date as
follows:
(a) This Agreement has been duly executed and delivered by Minadeo and
no other action on his part is necessary to authorize this Agreement and the
CCAI Share Transfer.
(b) Neither the execution, delivery and performance of this Agreement
by Minadeo nor the consummation by him of the CCAI Share Transfer, nor
compliance by him with any of the provisions hereof, will (i) violate, conflict
with, or result in a breach of any provisions of, or constitute a default (or an
event which, with notice or lapse of time or both, would constitute a default)
under, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, deed of trust, license, lease, assignment or other instrument or
obligation to which Minadeo is a party or by which Minadeo may be bound, or to
which Minadeo or the properties or assets of Minadeo may be subject or (ii)
violate any judgment, ruling, order, writ, injunction, decree, statute, rule or
resolution applicable to him or to his properties or assets.
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(c) Minadeo has good and unencumbered title to the Minadeo CCAI Shares,
and upon the CCAI Share Transfer, CCAI or the Management Shareholders, as the
case may be, will acquire and own the Minadeo CCAI Shares, free and clear of all
liens, claims, charges, restrictions and encumbrances whatsoever, except those
arising under this Agreement.
(d) Minadeo is a party to no contract or agreement with respect to the
Minadeo CCAI Shares other than this Agreement. There are no outstanding options,
warrants, puts or calls or preemptive, come-along or tag-along rights with
respect to, or rights of first refusal or first offer, or other rights to
purchase or otherwise acquire title to, or cause the transfer of, any or all of
the Minadeo CCAI Shares or any other rights or restrictions in favor of any
third party with respect to the voting of, or transfer of title to, the Minadeo
CCAI Shares.
(e) Minadeo and his representatives, if any, have had a reasonable
opportunity to ask questions of, and receive answers from, CCAI and the
Management Shareholders (or a person or persons acting on their behalf, as the
case may be) concerning the terms and conditions of the CCAI Share Transfer. All
such questions have been answered to the full satisfaction of Minadeo. The
Management Shareholders have also appraised Minadeo of the details of their
efforts to effect a Change of Control which efforts may, if successfully
consummated, significantly increase the value of the CCAI Shares in the near
future. Minadeo and his representatives, if any, have also had a reasonable
opportunity to ask questions of, and receive answers from, CCAI and the
Management Shareholders (or a person or persons acting on their behalf, as the
case may be) concerning the terms and conditions of any such Change of Control
and all such questions have been answered to the full satisfaction of Minadeo.
(f) No notice to, filing with, authorization of, exemption by, or
consent or approval of, any regulatory authority is necessary for the
consummation by Minadeo of the CCAI Share Transfer.
6. REPRESENTATIONS AND WARRANTIES OF THE MANAGEMENT
SHAREHOLDERS. Each Management Shareholder represents and warrants as of the date
hereof and as of the Closing Date as follows:
(a) This Agreement has been duly executed and delivered by such
Management Shareholder and is the legal, valid and binding obligation of such
Management Shareholder, enforceable against such shareholder in accordance with
its terms, except as enforceability hereof may be limited by laws relating to or
affecting creditors' rights generally.
(b) Neither the execution, delivery and performance of this Agreement
by such Management Shareholder, nor the consummation by such Management
Shareholder of the CCAI Share Transfer, nor
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compliance by such Management Shareholder with any of the provisions of this
Agreement, will (i) violate, conflict with, or result in a breach of any
provisions of, or constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under, any of the terms, conditions
or provisions of any note, bond, mortgage, indenture, deed of trust, license,
lease, assignment or other instrument or obligation to which such Management
Shareholder is a party or by which such Shareholder may be bound, or to which
such Management Shareholder or the properties or assets of such Management
Shareholder may be subject or (ii) violate any judgment, ruling, order, writ,
injunction, decree, statute, rule or regulation applicable to such Management
Shareholder or to the properties or assets of such Management Shareholder.
(c) No notice to, filing with, authorization of, exemption by, or
consent or approval of, any regulatory authority is necessary for the
consummation by such Management Shareholder of the CCAI Share Transfer.
7. FURTHER ASSURANCES. From time to time after the execution
hereof at the request of any party hereto and without further consideration, any
party hereto, as the case may be, will execute and deliver such other and
further instruments, and take such other action as any such other party may
reasonably request for the more effective consummation of the transactions
contemplated hereby.
8. GOVERNING LAW. This Agreement shall be governed by the
internal substantive laws of the State of Ohio.
9. SEVERABILITY. If any provision of this Agreement shall be
held invalid or unenforceable by any court of competent jurisdiction, such
holding shall not invalidate or render unenforceable any other provision
thereof.
10. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute one and the same instrument.
11. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION. The
representations and warranties contained in Sections 4, 5 and 6 of this
Agreement will survive the Closing. Each party will indemnify, defend and hold
harmless each other party from and against any damages, dues, penalties, fines,
costs, amounts paid in settlement, losses and expenses affecting any such other
party as a result of or relating to any inaccuracy in any representations or
warranties contained in this Agreement;
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provided, however, the amount of such indemnification obligation shall not
exceed the CCAI Share Transfer Price.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.
CONLEY, CANITANO & ASSOCIATES, INC.
By: /s/ Nicholas A. Canitano
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Title: President
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/s/ Karen Conley
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Karen Conley
/s/ Nicholas A. Canitano
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Nicholas A. Canitano
/s/ Annette Canitano
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Annette Canitano
/s/ Joseph Minadeo
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Joseph Minadeo