Preview
Date Filed 4/4/2023 1:28 PM
Superior Court - Middlesex
Docket Number 2081CV02967
56
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. Superior Court Department
Of The Trial Court
ELIZABETH GRADY FACE FIRST INC.
D/B/A THE ELIZABETH GRADY
COMPANY,
Plaintiff,
Vv. C. A. No. 2018-CV-02967
CYNOSURE, INC., KEVIN THORNAL, AND
RECEIVED
BLAKE AHITOW,
4/4/2023
Defendants.
JOINT MOTION FOR ENTRY OF FINAL JUDGMENT
Plaintiff Elizabeth Grady Face First, Inc., d/b/a The Elizabeth Grady Company (“Elizabeth
Grady”), through its assignee John P. Walsh, Jr. (“Walsh”), and Defendants Cynosure, LLC, Kevin
Thornal, and Blake Ahitow (collectively, the “Defendants” or the “Cynosure Defendants”), hereby
jointly move for the entry of final Judgment pursuant to Mass. R. Civ. P. 58(a).
Walsh, as the assignee of Elizabeth Grady’s claims pursuant to an Agreement for
Assignment of Claims, dated October 1, 2021 (the “Assignment”), recently reached a settlement
with the Cynosure Defendants to end the litigation. However, notwithstanding Elizabeth Grady’s
obligations under the Assignment to cooperate and execute any further documents in connection
with the litigation, Elizabeth Grady has refused to cooperate in the execution of documentation to
effectuate the final settlement. Rather, Elizabeth Grady steadfastly has refused to satisfy its
contractual obligations without the payment of additional cash or cash equivalents. As explained
in greater detail below, the parties now jointly request that a short order of notice issue for
Elizabeth Grady to show cause why final Judgment should not enter, and that the Court enter the
SR
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Docket Number 2081CV02967
Agreement for Judgment (attached hereto at Exhibit A) as the final Judgment in this matter,
pursuant to Mass. R. Civ. P. 58(a).' In support of this Joint Motion, the parties state as follows:
1 On December 8, 2020, Elizabeth Grady filed this lawsuit against Cynosure and its
former President, Kevin Thornal (the “Litigation”).? At the time, Walsh was the sole owner of
Elizabeth Grady.>
2. The Litigation arose from a January 10, 2019 Product Lease Agreement (the “PLA”)
between Elizabeth Grady and Cynosure pursuant to which Elizabeth Grady leased two types of
body contouring laser machines manufactured by Cynosure, respectively known as “SculpSure”
and “Icon,” for a three-year term. Under the PLA, one of each type of machine initially was placed
in each of Elizabeth Grady’s company-owned and franchised stores (at the time, twenty-four stores
in total). The PLA also provided that Cynosure would deliver twelve of each type of machine to
the School of Esthetics and Massage Therapy owned and operated by Elizabeth Grady.
3 On November 1, 2021, two years into the term of the PLA, Walsh sold the business
operations of Elizabeth Grady to its then-existing Chief Financial Officer, Kathy DeNicola. The
parties accomplished the sale through a Stock Purchase Agreement, dated September 8, 2021
(which became effective as of November 1, 2021) (the “SPA”), and related documents.
4 Pursuant to the SPA, Ms. Denicola acquired 100% of the operational entity of
Elizabeth Grady (EGFF Holding Corp.). Importantly, however, the SPA included a number of
! The parties jointly request a hearing, on short order of notice, on the motion for entry of Judgment, which is permitted
by Rule 58(a). Jd. (“The court, on motion, may allow a hearing on the form of the judgment.”), A hearing and action
by the Court (as opposed to the clerk) is necessary, because the proposed Agreement for Judgment is not simply for a
sum certain; rather, the Judgment must be considered and approved by the Court under Rule 58(a)(2), as it also affects
title to tangible property. See Fall River Housing Joint Tenants Council, Inc. v. Fall River Housing Authority, 15 Mass.
App. Ct. 992 (1983) (recognizing that judgment including “other relief,” and not simply a sum certain, could not
become the “judgment” of the court unless the court approved it pursuant to Rule 58(a)(2)).
2 The Complaint alleges causes of action for fraud and violation of Chapter 93A, including that the Cynosure
Defendants fraudulently induced Elizabeth Grady to enter into the PLA. The Defendants deny any wrongdoing.
3 Elizabeth Grady subsequently amended the Complaint, first to particularize the facts supporting the claims, and then
later to add Blake Ahitow as a defendant.
2
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Docket Number 2081CV02967
carve-outs, including all right, title and interest in all claims that Elizabeth Grady had under the
PLA, including claims asserted in the Litigation and all of the proceeds thereof, which would be
retained by Walsh.
5 The carve-out regarding the PLA was part of the SPA and further documented in
the Assignment. Because as of October 1, 2021, Walsh was both the sole owner of the business
and the assignee of the claims, Walsh executed the Assignment in his individual capacity and as
the sole officer of Elizabeth Grady. Ms. DeNicola was aware of the Assignment, dated October 1,
2021. A true and accurate copy of the Assignment is attached hereto at Exhibit B. Indeed, Ms.
DeNicola confirmed this fact under oath in her September 15, 2022 deposition in this case. See
Exhibit C attached hereto (true and accurate copy of Kathy Denicola Deposition Transcript, pp.
666 — 668) (“Q: And if I understood your testimony earlier, Ms. DeNicola, you said that Mr.
Walsh has an agreement with the company whereby effectively he will retain personally any
recovery that might result from this litigation. Is that correct? A: I believe so.”)
6 Under the Assignment, Walsh retained all “strategic and other decisions” related to
the Litigation, including “any decision to settle the Cynosure Litigation.” Ex. C, at | 2.0. In
addition, it assigns to Walsh the proceeds of any settlement or judgment. /d., at 41.0.
7 Under the Assignment, Elizabeth Grady has a continuing obligation of cooperation.
This includes, without limitation: (a) “making its employees and officers available to counsel, as
may be required, providing information (including documents) as required, testifying as
necessary”; and (b) “the execution and delivery by Elizabeth Grady . . . of any further assignments,
instruments of transfer, bills of sale or conveyance that may be necessary » Id., at ]3.0.
8 During the Litigation, an additional dispute arose concerning the end date of the
PLA and Walsh’s related rights to purchase the SculpSure and Icon machines. Cynosure took the
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Docket Number 2081CV02967
position that it had terminated the PLA for cause, and that therefore Elizabeth Grady had no right
to any of the machines. Walsh, on the other hand, took the position that he was entitled to
possession and title to all of the machines, pursuant to the terms of the PLA that allowed Elizabeth
Grady to take title to the Equipment at the end of the three-year term at their depreciated book
value (which was $0.00).
9. In January of 2023, Walsh and the Cynosure Defendants mediated the Litigation
and their contractual dispute and arrived at a settlement. The Cynosure Defendants agreed to pay
Walsh a sum certain (the “Settlement Amount”), and in lieu of paying Walsh additional money
demanded above that amount, agreed to transfer to Walsh or his designee all right, title, and interest
in the Equipment Elizabeth Grady had leased under the PLA.
10. Pursuant to the cooperation clause in the Assignment, Walsh requested Elizabeth
Grady’s signature on a document confirming the terms of the settlement as applied to Elizabeth
Grady (hereafter, the “Release Agreement”). Walsh offered to assign to Elizabeth Grady all of the
Equipment that was initially installed in each of Elizabeth Grady’s stores that are presently open
and operating and its esthetician school, in exchange for Elizabeth Grady’s signature on a
document confirming the terms of the settlement between Walsh and the Cynosure Defendants.
Ms. DeNicola refused. A true and accurate copy of the Release Agreement is attached hereto at
Exhibit D.
11. Thereafter, Walsh asked Elizabeth Grady to sign either a power of attorney or a
release, so that the settlement and Litigation could be concluded. Ms. Denicola again refused, this
time asserting that Elizabeth Grady will not agree to the settlement unless it receives additional
consideration of cash or cash equivalents. A true and accurate copy of the Durable Power of
Attorney is attached hereto at Exhibit E.
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Docket Number 2081CV02967
12. Elizabeth Grady’s current position and refusal to agree to the settlement is directly
contrary to the Assignment, which gives Walsh the complete right to direct and settle the Litigation.
Pursuant to the Assignment, Walsh, not Elizabeth Grady, has personally paid for all of the costs
and expenses of the Litigation. Accordingly, the parties are jointly requesting that the Court issue
a short order of notice for Elizabeth Grady to show cause why Judgment in the form of Exhibit A
should not immediately enter.‘
13. Walsh and the Cynosure Defendants have resolved their disputes and now desire
for the Litigation to be fully and finally concluded. The Agreement for Judgment attached at
Exhibit A effectuates the parties’ bargained for, arms-length negotiations and final agreement to
end the Litigation. A final Judgment in this form will accomplish the ends of justice, protect the
parties’ rights, and serve the convenience of the litigants and the Court. No justifiable reason exists
to further delay and prolong the Litigation, especially where the parties in interest have resolved
all issues and desire that the case be finally concluded.
WHEREFORE, Plaintiff Elizabeth Grady Face First, Inc., by and through its assignee John
P. Walsh, Jr., and Defendants Cynosure, LLC, Kevin Thornal, and Blake Ahitow, respectfully
request that after a hearing on the short order of notice, this Joint Motion be allowed, and that the
+ A copy of this Joint Motion is being served on Elizabeth Grady and its counsel.
5
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Docket Number 2081CV02967
Court enter a final Judgment in the form attached hereto as Exhibit A.*
Respectfully requested,
JOHN P. WALSH, JR., AS DULY
AUTHORIZED ASSIGNEE OF
ELIZABETH GRADY FACE FIRST, INC
D/B/A THE ELIZABETH GRADY
COMPANY,
By his attorneys,
{ A
tl
William A. Zucker, Esq., BBO No. 541240
David Ianelli, Esq., BBO No. 567274
Nicholas W. Allen, Esq., BBO No. 663409
McCarter & English, LLP
265 Franklin Street
Boston, MA 02110-3113
617.449.6500
wzucker@mcecarter.com
dianelli@mccarter.com
nallen@mecarter.com
DEFENDANT,
CYNOSURE, LLC
By its attorneys,
/s/ Michael J. Pineault
Michael J. Pineault (BBO No. 555314)
ANDERSON & KREIGER LLP
50 Milk Street, 21st Floor
Boston, MA 02109
T: +1 617.621.6578
F: +1 617.621.6619
mpineault@andersonkreiger.com
5 Defendants join in this motion because they share the same interest as Mr. Walsh in effectuating settlement and
obtaining final resolution of the litigation. It is Defendants’ position that the release of claims by the named plaintiff,
Elizabeth Grady, is an essential term of the settlement. Defendants have reviewed the documents attached this motion
but do not have personal knowledge about the business dealings between Mr. Walsh and Ms. Denicola and therefore
take no position as to any of those matters or disputes at this time.
6
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Docket Number 2081CV02967
ARNOLD & PORTER KAYE SCHOLER LLP
Daniel Pariser (pro hac vice)
Jocelyn Wiesner (pro hac vice)
601 Massachusetts Ave., NW
Washington, DC 20001-3743
T: +1 202.942.5000
F: +1 202.942.5999
Daniel.Pariser@arnoldporter.com
Jocelyn.Wiesner@arnoldporter.com
- AND -
DEFENDANTS KEVIN THORNAL AND
BLAKE AHITOW,
By their attorneys,
/s/ Daniel Tighe
Daniel Patrick Tighe (BBO No. 556583)
Peter Erich Gelhaar (BBO No. 188310)
DONNELLY, CONROY & GELHAAR, LLP
260 Franklin Street, Suite 1600
Boston, MA 02110
T: +1 617.720.2880
dpt@deglaw.com
peg@dceglaw.com
April 4, 2023
Date Filed 4/4/2023 1:28 PM
Superior Court - Middlesex
Docket Number 2081CV02967
CERTIFICATE OF SERVICE
I hereby certify that on this 4th day of April, 2023, a true copy of the above document was
served upon: (i) counsel of record for Defendants, pursuant to and in compliance with the
applicable Supreme Judicial Court Order in re: COVID-19 (coronavirus) Pandemic, concerning
email service in cases under Rule 5(b) of Mass. Rules Civil Procedure; ii) Elizabeth Grady Face
First, Inc., by email and in-hand delivery to its corporate office, and (iii) counsel for Elizabeth
Grady Face First, Inc., by email and FedEx overnight delivery. Service upon Elizabeth Grady and
its counsel is being completed at the following addresses:
Gregory N. Eaton, Esq.
Oakley, O’Sullivan & Eaton, P.C.
857 Turnpike Street
North Andover, MA 01845
geaton@ooelegal.com
Elizabeth Grady Face First, Inc. d/b/a
The Elizabeth Grady Company
222 Boston Avenue
Medford MA 02155
kdenicola@elizabethgrady.com
20 a”)
Nicholas W. Allen
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Superior Court - Middlesex
Docket Number 2081CV02967
EXHIBIT A
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Superior Court - Middlesex
Docket Number 2081CV02967
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. Superior Court Department
Of The Trial Court
ELIZABETH GRADY FACE FIRST INC.
D/B/A THE ELIZABETH GRADY
COMPANY,
Plaintiff,
Vv. C. A. No. 2018-CV-02967
CYNOSURE, INC., KEVIN THORNAL, AND
BLAKE AHITOW,
Defendants.
AGREEMENT FOR JUDGMENT
The parties to the above-captioned matter, plaintiff Elizabeth Grady Face First, Inc., d/b/a
The Elizabeth Grady Company (“Elizabeth Grady”), by and through its assignee John P. Walsh,
Jr. (“Walsh”), and defendants Cynosure, LLC (“Cynosure”), Kevin Thornal, and Blake Ahitow
(with the defendants hereafter collectively referred to as the “Cynosure Parties”), have moved for
entry of Judgment pursuant to Mass. R. Civ. P. 58(a). Upon consideration of the parties’ Motion,
the Court allows the Motion and enters JUDGMENT as follows:
1 Cynosure shall pay to John P. Walsh, Jr. or his designee the Settlement Amount by
wire transfer within ten (10) days after this Judgment becomes final.
Cynosure shall transfer to Walsh or his designee within ten (10) days after this
Judgment becomes final all rights, title and interest in all of the Cynosure SculpSure
and Icon machines (the “Equipment”) previously provided to Elizabeth Grady
pursuant to the January 10, 2019 Product Lease Agreement (the “PLA”), which
agreement has been terminated by Cynosure. Title to the Equipment shall be
transferred unencumbered and shall be accompanied by appropriate title
documentation. The Equipment shall be transferred on an “AS IS” basis.
Cynosure shall not in bad faith refuse to respond to reasonable requests to service
the Equipment at the request and expense of Walsh or his designees and at
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Cynosure’s then prevailing rates for labor, travel, transportation, service and
materials, and Cynosure shall make PAC keys available to Walsh or his designees
at Cynosure’s then-current pricing. This Judgment does not release any future
claims with regard to breach of this paragraph, to the extent any exist, provided that
any such claims shall not affect the validity of this Judgment or the releases
hereunder.
Elizabeth Grady and its affiliates, and Walsh, both in his personal capacity and
capacity as assignee and authorized representative of Elizabeth Grady, and, to the
extent they are acting or purporting to act on their behalf, their respective servants,
employees, insurers, officers, directors, members, affiliates, parents and
subsidiaries, past and present, and each of their legal representatives, successors,
predecessors, and assigns, hereby release, remit, and forever discharge the
Cynosure Parties and Hologic, Inc. (“Hologic”), and their respective servants,
employees, insurers, officers, directors, members, affiliates, parents and
subsidiaries, past and present, and each of their legal representatives, successors,
predecessors, and assigns from and against any and all claims, charges, complaints,
demands, actions, causes of action, suits, rights, debts, sums of money, costs,
accounts, covenants, contracts, agreements, promises, damages, obligations,
liabilities, and expenses (including attorneys’ fees and costs) of every kind or nature,
whether known or unknown, suspected or unsuspected, arising at any time before
the date hereof, that were or could have been asserted in this Action or that arise
from or relate to the PLA or its negotiation or implementation.
The Cynosure Parties hereby release, remit, and forever discharge Elizabeth Grady,
and Walsh, both in his personal capacity and capacity as assignee and authorized
representative of Elizabeth Grady, and their respective servants, employees,
insurers, officers, directors, members, affiliates, parents and subsidiaries, past and
present, and each of their legal representatives, successors, predecessors, and
assigns from and against any and all claims, charges, complaints, demands, actions,
causes of action, suits, rights, debts, sums of money, costs, accounts, covenants,
contracts, agreements, promises, damages, obligations, liabilities, and expenses
(including attorneys’ fees and costs) of every kind or nature, whether known or
unknown, suspected or unsuspected, arising at any time before the date hereof, that
were or could have been asserted in this Action or that arise from or relate to the
PLA or its negotiation or implementation.
Walsh and Elizabeth Grady will not encourage, fund, aid, or cooperate with any
person asserting a claim against any of the defendants to the litigation by any
Elizabeth Grady franchisees. In addition, the parties to the litigation agree not to
make any disparaging public statements about each other relating to the facts and
circumstances at issue in this action.
The clerk will mark the docket as closed pursuant to this Judgment. This Judgment
shall have the same effect as a judgment on the merits for purposes of preclusion,
and shall be with prejudice to and preclusive to the filing of any other action to the
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full extent permitted by law. This Court shall retain jurisdiction to enforce this
Judgment. The parties waive all rights of appeal and all costs. The parties further
waive any motions to challenge this Judgment.
SO ORDERED:
Date:
Justice of the Superior Court
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Docket Number 2081CV02967
EXHIBIT B
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Docket Number 2081CV02967
AGREEMENT FOR ASSIGNMENT OF CLAIMS
This Agreement for Assignment of Claims (the “Agreement”) is entered into this Ist day
of October, 2021 (the “Effective Date”), by Elizbeth Grady Face First, Inc. (“Elizabeth Grady”)
and John P. Walsh (“Walsh”). Elizabeth Grady and Walsh shall be referred to collectively as the
“Parties” herein.
RECITALS
Whereas, on or about February 22, 2021, Elizabeth Grady filed an amended complaint in
Middlesex Superior Court, C. A. No. 2081CV02967 against Cynosure, Inc. (“Cynosure”)
and Kevin Thornal (“Thornal”) (jointly together with other officers and directors of
Cynosure as well as Cynosure’s former parent corporation Hologic, Inc., the “Cynosure
Defendants”) for specific economic damages arising from misrepresentations and violation
of Chapter 93A as alleged therein that induced Elizabeth Grady to enter into a contract with
Cynosure (the “Cynosure Litigation”).
Whereas, pursuant to that certain Agreement for Stock Purchase dated as of September 8,
2021 (“ASP”), John Walsh has agreed to sell his interest in Elizabeth Grady at a
substantially reduced valuation as a result of misconduct alleged in the Cynosure Litigation
but specifically excluded from the sale and retained the right to any proceeds received from
the Cynosure Litigation as additional consideration therefor.
Whereas, Elizabeth Grady hereby confirms such retention by this assignment of all of
Elizabeth Grady’s right, title and interest in all claims Elizabeth Grady now has or will
have against the Cynosure Defendants and the proceeds of such claims.
Whereas, Elizabeth Grady further desires and promises to cooperate with Walsh in Walsh’s
pursuit of claims against the Cynosure Defendants.
THEREFORE, in consideration of the recitals set forth above and the promises and
covenants contained in this Agreement and for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged by Elizabeth Grady and Walsh, including the Closing
of the transactions contemplated by the ASP, the Parties hereto, intending to be legally bound,
hereby agree as follows:
1.0 ELIZABETH GRADY ASSIGNMENT OF ITS RIGHTS TO WALSH
Elizabeth Grady hereby assigns, grants, bargains, sells, conveys, transfers, sets over and
delivers to Walsh all of Elizabeth Grady’s right, title and interest in all claims, actions, causes of
action, debts, demands, suits, dues, sum and sums of money, contracts, controversies, agreements,
promises, doings, omissions, damages, whatsoever of every name and nature belonging to
Elizabeth Grady against the Cynosure Defendants, both in law and in equity, including all claims
in the Cynosure Litigation and the proceeds thereof. Furthermore, whether or not any part of this
assignment is deemed unenforceable for any reason, Elizabeth Grady hereby agrees to pursue the
Cynosure Litigation as Walsh shall direct and to assign the proceeds of any settlement with the
Assignment of Claims
10.1.2021
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Cynosure Defendants or any judgment or execution against the Cynosure Defendants to Walsh.
Walsh shall have the right to continue to pursue the Cynosure Litigation under Elizabeth Grady’s
name without substituting or adding his name to the pleading as the intent is for Elizabeth Grady
to continue as plaintiff but for Walsh to receive all funds or other proceeds or consideration that
may result from the Cynosure Litigation, including any award of costs, experts’ fees, and
attorneys’ fees.
2.0 WALSH WILL FUND AND CONTROL THE CYNOSURE LITIGATION.
Walsh hereby agrees to pay the legal fees and costs incurred to date and to be incurred in
the future, by Walsh and Elizabeth Grady in the Cynosure Litigation, including the prosecution
and defense of all claims. While Elizabeth Grady will have the option of providing Walsh with its
views regarding the strategic course of the Cynosure Litigation, Elizabeth Grady agrees that Walsh
shall, along with counsel, make the strategic and other decisions for Elizabeth Grady, and Walsh
with respect to the Litigation, including but not limited to, any decision to settle the Cynosure
Litigation. The Parties agree that any award of costs, experts’ fees, and attorneys’ fees shall belong
to Walsh.
3.0 COOPERATION BY ELIZABETH GRADY WITH WALSH
Elizabeth Grady agrees that it will cooperate fully with any and all efforts of Walsh and
counsel so that Walsh may proceed to litigate fully all causes of action in the Cynosure Litigation.
For this purpose, Elizabeth Grady shall retain the same counsel as Walsh as part of the Parties’
joint prosecution agreement set forth herein. Elizabeth Grady’s cooperation with Walsh will
include, without limitation, making its employees and officers available to counsel, as may be
required, providing information (including documents) as required, testifying as necessary and the
execution and delivery by Elizabeth Grady and its agents, representatives, and employees of any
further assignments, instruments of transfer, bills of sale or conveyance that may be necessary, or
that may be deemed necessary by Walsh, to fully vest in Walsh all right, title and interest to the
causes of action in the Cynosure Litigation or to enable Walsh to collect on the causes of action,
except that all out-of-pocket collection costs shall be borne by Walsh, and Elizabeth Grady (subject
to paragraph 12 below) shall not incur any further legal fees or expenses in connection with such
Litigations. In addition, Walsh may, at his sole discretion and expense, enforce any injunctions,
attachments and similar positions of security and advantage obtained by Elizabeth Grady in any
case against the Cynosure Defendants.
4.0 WARRANTY OF AUTHORIZATION
Each person whose signature appears hereon warrants and guarantees that he has been duly
authorized and has full authority as of the Effective Date to execute this Agreement on behalf of
the entity or person on whose behalf this Agreement is executed.
5.0 WARRANTIES; NO ASSIGNMENT OF CLAIMS TO THIRD PARTIES
Elizabeth Grady hereby represents and warrants that its interest in the Cynosure Litigation
and the claims described in this Agreement are free from encumbrances; that Elizabeth Grady has
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Docket Number 2081CV02967
not compromised or settled any of said causes of action; and that Elizabeth Grady has not assigned
or transferred, or purported to assign or transfer, to any person or entity any causes of action, or
any portion of any cause of action assigned hereunder.
6.0 ENTIRE AGREEMENT
This Agreement constitutes and contains the entire Agreement and understanding between
the Parties with respect to the subject matter hereof. This Agreement supersedes and replaces all
prior negotiations and all agreements, proposed or otherwise, whether written or oral, concerning
the subject matter hereof. This is a fully integrated document.
7.0 GOVERNING LAW
This Agreement shall be governed by the laws of the Commonwealth of Massachusetts.
8.0 COOPERATIVE DRAFTING AND CONSTRUCTION
Each party has cooperated in the drafting and preparation of this Agreement. Hence, this
Agreement shall not be construed against any party on the basis that that party was the drafter. The
headings are for the convenience of the Parties and are not to be used in construing the meaning
of any provision of this Agreement.
9.0 EXECUTION IN COUNTERPARTS
Each party has cooperated in the drafting and preparation of this Agreement. Hence, this
Agreement shall have the efficacy of a signed original. True and correct copies of signed
counterparts may be used in place of the originals for any purpose.
10.0 NO WAIVER OF BREACH
No waiver of any breach of any term or provision of this Agreement shall be construed to
be, nor shall be, a waiver of any other breach of this Agreement. No waiver shall be binding unless
in writing and signed by the party waiving the breach.
12.0 INDEPENDENT LEGAL ADVICE/WAIVER OF CONFLICT
The Parties acknowledge that they have each been advised that they may obtain their own
independently selected counsel and other advisors in connection with this Agreement and that each
has had the opportunity to do so. The Parties acknowledge that McCarter & English, LLP is
counsel for both parties in the Cynosure Litigation but does not represent either party with respect
to this Agreement although it has reviewed and commented on this Agreement for purposes of its
representation in the Cynosure Litigation. The Parties enter into this Agreement on the basis of
their own independent investigation of all of the facts, laws and circumstances material to this
Agreement or any provision thereof, and not in any manner or to any degree based upon any
statement or omission by any other party and/or counsel. With respect to the Cynosure Litigation,
the Parties expressly waive any conflict of interest or potential conflict of interest. The Parties also
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Docket Number 2081CV02967
each recognize and agree that if McCarter & English, LLP becomes aware of a future conflict of
interest with respect to the Cynosure Litigation, McCarter & English, LLP shall notify the Parties
(or vice versa) of such conflict. In the case of such a conflict, Elizabeth Grady hereby expressly
consents to McCarter & English, LLP’s continued representation of Walsh with its full
acknowledgement and understanding that, at the occurrence of such a conflict, Elizabeth Grady
would have to obtain its own counsel at its own cost consistent with the assignment of Elizabeth
Grady’s rights under this Agreement.
13.0 NOTICES
Any notice made by either party shall be considered proper and effective if mailed by
overnight mail addressed as shown below with delivery confirmed, or delivered in person and in
writing. All Parties agree to notify promptly each other party to this Agreement of any address
changes.
If to Walsh: John P. Walsh
17 Commonwealth Avenue
Boston, MA 02116
If to Elizabeth Grady: Elizabeth Grady Face First, Inc.
222 Boston Avenue
Medford, MA 02155
Or to such changed address as shall have been designated by notice.
BY EXECUTING THIS AGREEMENT UNDER SEAL, EACH OF THE PARTIES
ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND UNDERSTANDS ITS
TERMS AND PROVISIONS.
Dated: October 1, 2021 John P. Walsh
Cote 2 Wabeh,
John P. Walsh
Dated: October 1, 2021 ELIZABETH GRADY FACE FIRST, INC.
Cote P. Walsh,
By: John P. Walsh, President
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Docket Number 2081CV02967
EXHIBIT C
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Docket Number 2081CV02967
Page 297
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS. SUPERIOR COURT DIVISION
HR KK KR ERE R ERK ERK E ARERR EERE
ELIZABETH GRADY FACE FIRST, INC.,
d/b/a THE ELIZABETH GRADY COMPANY,
Plaintiff
VS. CA NO. 2081-CV-02967
10 CYNOSURE, INC., and
KEVIN THORNAL,
11
Defendants
12
TR FOR I RR Rk dR dk oe dk a dk ae kok oe k
13
14
15 VIDEOTAPED DEPOSITION OF:
16 KATHLEEN DE NICOLA
17 ANDERSON & KREIGER LLP
18 50 Milk Street
19 Boston, Massachusetts
20 September 15, 2022 9:30 a.m.
21 Volume II
22
23
24 Darlene M. Coppola, RMR, CRR
Veritext Legal Solutions
215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830
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Docket Number 2081CV02967
Page 298
APPEARANCES:
Representing the Plaintiff:
MC CARTER & ENGLISH
265 Franklin Street
Boston, MA 02110
BY: DAVID M. IANELLI, ESQUIRE
NICHOLAS W. ALLEN, ESQUIRE
T 617.449.6500
E dianelli@mccarter.com
10 nallen@mccarter.com
11
12 Representing the Defendant Kevin Thornal:
13 DONNELLY, CONROY & GELHAAR LLP
14 260 Franklin Street
15 Suite 1600
16 Boston, MA 02110
17 BY: DANIEL P. TIGHE, ESQUIRE
18 T 617.720.2880
19 E dpt@dcglaw.com
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Veritext Legal Solutions
215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830
Date Filed 4/4/2023 1:28 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Page 299
APPEARANCES (Continued):
Representing the Defendant Cynosure, Inc.:
ARNOLD & PORTER
250 West 55th Street
New York, NY 10019
BY: JOCELYN WIESNER, ESQUIRE
DANIEL PARISER, ESQUIRE
T 212.836.8000
E jocelyn.wiesner@arnoldporter.com
10 daniel.pariser@arnoldporter.com
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14 Shawn Budd, videographer
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Preview
Date Filed 4/4/2023 1:28 PM Superior Court - Middlesex Docket Number 2081CV02967 56 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. Superior Court Department Of The Trial Court ELIZABETH GRADY FACE FIRST INC. D/B/A THE ELIZABETH GRADY COMPANY, Plaintiff, Vv. C. A. No. 2018-CV-02967 CYNOSURE, INC., KEVIN THORNAL, AND RECEIVED BLAKE AHITOW, 4/4/2023 Defendants. JOINT MOTION FOR ENTRY OF FINAL JUDGMENT Plaintiff Elizabeth Grady Face First, Inc., d/b/a The Elizabeth Grady Company (“Elizabeth Grady”), through its assignee John P. Walsh, Jr. (“Walsh”), and Defendants Cynosure, LLC, Kevin Thornal, and Blake Ahitow (collectively, the “Defendants” or the “Cynosure Defendants”), hereby jointly move for the entry of final Judgment pursuant to Mass. R. Civ. P. 58(a). Walsh, as the assignee of Elizabeth Grady’s claims pursuant to an Agreement for Assignment of Claims, dated October 1, 2021 (the “Assignment”), recently reached a settlement with the Cynosure Defendants to end the litigation. However, notwithstanding Elizabeth Grady’s obligations under the Assignment to cooperate and execute any further documents in connection with the litigation, Elizabeth Grady has refused to cooperate in the execution of documentation to effectuate the final settlement. Rather, Elizabeth Grady steadfastly has refused to satisfy its contractual obligations without the payment of additional cash or cash equivalents. As explained in greater detail below, the parties now jointly request that a short order of notice issue for Elizabeth Grady to show cause why final Judgment should not enter, and that the Court enter the SR Date Filed 4/4/2023 1:28 PM Superior Court - Middlesex Docket Number 2081CV02967 Agreement for Judgment (attached hereto at Exhibit A) as the final Judgment in this matter, pursuant to Mass. R. Civ. P. 58(a).' In support of this Joint Motion, the parties state as follows: 1 On December 8, 2020, Elizabeth Grady filed this lawsuit against Cynosure and its former President, Kevin Thornal (the “Litigation”).? At the time, Walsh was the sole owner of Elizabeth Grady.> 2. The Litigation arose from a January 10, 2019 Product Lease Agreement (the “PLA”) between Elizabeth Grady and Cynosure pursuant to which Elizabeth Grady leased two types of body contouring laser machines manufactured by Cynosure, respectively known as “SculpSure” and “Icon,” for a three-year term. Under the PLA, one of each type of machine initially was placed in each of Elizabeth Grady’s company-owned and franchised stores (at the time, twenty-four stores in total). The PLA also provided that Cynosure would deliver twelve of each type of machine to the School of Esthetics and Massage Therapy owned and operated by Elizabeth Grady. 3 On November 1, 2021, two years into the term of the PLA, Walsh sold the business operations of Elizabeth Grady to its then-existing Chief Financial Officer, Kathy DeNicola. The parties accomplished the sale through a Stock Purchase Agreement, dated September 8, 2021 (which became effective as of November 1, 2021) (the “SPA”), and related documents. 4 Pursuant to the SPA, Ms. Denicola acquired 100% of the operational entity of Elizabeth Grady (EGFF Holding Corp.). Importantly, however, the SPA included a number of ! The parties jointly request a hearing, on short order of notice, on the motion for entry of Judgment, which is permitted by Rule 58(a). Jd. (“The court, on motion, may allow a hearing on the form of the judgment.”), A hearing and action by the Court (as opposed to the clerk) is necessary, because the proposed Agreement for Judgment is not simply for a sum certain; rather, the Judgment must be considered and approved by the Court under Rule 58(a)(2), as it also affects title to tangible property. See Fall River Housing Joint Tenants Council, Inc. v. Fall River Housing Authority, 15 Mass. App. Ct. 992 (1983) (recognizing that judgment including “other relief,” and not simply a sum certain, could not become the “judgment” of the court unless the court approved it pursuant to Rule 58(a)(2)). 2 The Complaint alleges causes of action for fraud and violation of Chapter 93A, including that the Cynosure Defendants fraudulently induced Elizabeth Grady to enter into the PLA. The Defendants deny any wrongdoing. 3 Elizabeth Grady subsequently amended the Complaint, first to particularize the facts supporting the claims, and then later to add Blake Ahitow as a defendant. 2 Date Filed 4/4/2023 1:28 PM Superior Court - Middlesex Docket Number 2081CV02967 carve-outs, including all right, title and interest in all claims that Elizabeth Grady had under the PLA, including claims asserted in the Litigation and all of the proceeds thereof, which would be retained by Walsh. 5 The carve-out regarding the PLA was part of the SPA and further documented in the Assignment. Because as of October 1, 2021, Walsh was both the sole owner of the business and the assignee of the claims, Walsh executed the Assignment in his individual capacity and as the sole officer of Elizabeth Grady. Ms. DeNicola was aware of the Assignment, dated October 1, 2021. A true and accurate copy of the Assignment is attached hereto at Exhibit B. Indeed, Ms. DeNicola confirmed this fact under oath in her September 15, 2022 deposition in this case. See Exhibit C attached hereto (true and accurate copy of Kathy Denicola Deposition Transcript, pp. 666 — 668) (“Q: And if I understood your testimony earlier, Ms. DeNicola, you said that Mr. Walsh has an agreement with the company whereby effectively he will retain personally any recovery that might result from this litigation. Is that correct? A: I believe so.”) 6 Under the Assignment, Walsh retained all “strategic and other decisions” related to the Litigation, including “any decision to settle the Cynosure Litigation.” Ex. C, at | 2.0. In addition, it assigns to Walsh the proceeds of any settlement or judgment. /d., at 41.0. 7 Under the Assignment, Elizabeth Grady has a continuing obligation of cooperation. This includes, without limitation: (a) “making its employees and officers available to counsel, as may be required, providing information (including documents) as required, testifying as necessary”; and (b) “the execution and delivery by Elizabeth Grady . . . of any further assignments, instruments of transfer, bills of sale or conveyance that may be necessary » Id., at ]3.0. 8 During the Litigation, an additional dispute arose concerning the end date of the PLA and Walsh’s related rights to purchase the SculpSure and Icon machines. Cynosure took the Date Filed 4/4/2023 1:28 PM Superior Court - Middlesex Docket Number 2081CV02967 position that it had terminated the PLA for cause, and that therefore Elizabeth Grady had no right to any of the machines. Walsh, on the other hand, took the position that he was entitled to possession and title to all of the machines, pursuant to the terms of the PLA that allowed Elizabeth Grady to take title to the Equipment at the end of the three-year term at their depreciated book value (which was $0.00). 9. In January of 2023, Walsh and the Cynosure Defendants mediated the Litigation and their contractual dispute and arrived at a settlement. The Cynosure Defendants agreed to pay Walsh a sum certain (the “Settlement Amount”), and in lieu of paying Walsh additional money demanded above that amount, agreed to transfer to Walsh or his designee all right, title, and interest in the Equipment Elizabeth Grady had leased under the PLA. 10. Pursuant to the cooperation clause in the Assignment, Walsh requested Elizabeth Grady’s signature on a document confirming the terms of the settlement as applied to Elizabeth Grady (hereafter, the “Release Agreement”). Walsh offered to assign to Elizabeth Grady all of the Equipment that was initially installed in each of Elizabeth Grady’s stores that are presently open and operating and its esthetician school, in exchange for Elizabeth Grady’s signature on a document confirming the terms of the settlement between Walsh and the Cynosure Defendants. Ms. DeNicola refused. A true and accurate copy of the Release Agreement is attached hereto at Exhibit D. 11. Thereafter, Walsh asked Elizabeth Grady to sign either a power of attorney or a release, so that the settlement and Litigation could be concluded. Ms. Denicola again refused, this time asserting that Elizabeth Grady will not agree to the settlement unless it receives additional consideration of cash or cash equivalents. A true and accurate copy of the Durable Power of Attorney is attached hereto at Exhibit E. Date Filed 4/4/2023 1:28 PM Superior Court - Middlesex Docket Number 2081CV02967 12. Elizabeth Grady’s current position and refusal to agree to the settlement is directly contrary to the Assignment, which gives Walsh the complete right to direct and settle the Litigation. Pursuant to the Assignment, Walsh, not Elizabeth Grady, has personally paid for all of the costs and expenses of the Litigation. Accordingly, the parties are jointly requesting that the Court issue a short order of notice for Elizabeth Grady to show cause why Judgment in the form of Exhibit A should not immediately enter.‘ 13. Walsh and the Cynosure Defendants have resolved their disputes and now desire for the Litigation to be fully and finally concluded. The Agreement for Judgment attached at Exhibit A effectuates the parties’ bargained for, arms-length negotiations and final agreement to end the Litigation. A final Judgment in this form will accomplish the ends of justice, protect the parties’ rights, and serve the convenience of the litigants and the Court. No justifiable reason exists to further delay and prolong the Litigation, especially where the parties in interest have resolved all issues and desire that the case be finally concluded. WHEREFORE, Plaintiff Elizabeth Grady Face First, Inc., by and through its assignee John P. Walsh, Jr., and Defendants Cynosure, LLC, Kevin Thornal, and Blake Ahitow, respectfully request that after a hearing on the short order of notice, this Joint Motion be allowed, and that the + A copy of this Joint Motion is being served on Elizabeth Grady and its counsel. 5 Date Filed 4/4/2023 1:28 PM Superior Court - Middlesex Docket Number 2081CV02967 Court enter a final Judgment in the form attached hereto as Exhibit A.* Respectfully requested, JOHN P. WALSH, JR., AS DULY AUTHORIZED ASSIGNEE OF ELIZABETH GRADY FACE FIRST, INC D/B/A THE ELIZABETH GRADY COMPANY, By his attorneys, { A tl William A. Zucker, Esq., BBO No. 541240 David Ianelli, Esq., BBO No. 567274 Nicholas W. Allen, Esq., BBO No. 663409 McCarter & English, LLP 265 Franklin Street Boston, MA 02110-3113 617.449.6500 wzucker@mcecarter.com dianelli@mccarter.com nallen@mecarter.com DEFENDANT, CYNOSURE, LLC By its attorneys, /s/ Michael J. Pineault Michael J. Pineault (BBO No. 555314) ANDERSON & KREIGER LLP 50 Milk Street, 21st Floor Boston, MA 02109 T: +1 617.621.6578 F: +1 617.621.6619 mpineault@andersonkreiger.com 5 Defendants join in this motion because they share the same interest as Mr. Walsh in effectuating settlement and obtaining final resolution of the litigation. It is Defendants’ position that the release of claims by the named plaintiff, Elizabeth Grady, is an essential term of the settlement. Defendants have reviewed the documents attached this motion but do not have personal knowledge about the business dealings between Mr. Walsh and Ms. Denicola and therefore take no position as to any of those matters or disputes at this time. 6 Date Filed 4/4/2023 1:28 PM Superior Court - Middlesex Docket Number 2081CV02967 ARNOLD & PORTER KAYE SCHOLER LLP Daniel Pariser (pro hac vice) Jocelyn Wiesner (pro hac vice) 601 Massachusetts Ave., NW Washington, DC 20001-3743 T: +1 202.942.5000 F: +1 202.942.5999 Daniel.Pariser@arnoldporter.com Jocelyn.Wiesner@arnoldporter.com - AND - DEFENDANTS KEVIN THORNAL AND BLAKE AHITOW, By their attorneys, /s/ Daniel Tighe Daniel Patrick Tighe (BBO No. 556583) Peter Erich Gelhaar (BBO No. 188310) DONNELLY, CONROY & GELHAAR, LLP 260 Franklin Street, Suite 1600 Boston, MA 02110 T: +1 617.720.2880 dpt@deglaw.com peg@dceglaw.com April 4, 2023 Date Filed 4/4/2023 1:28 PM Superior Court - Middlesex Docket Number 2081CV02967 CERTIFICATE OF SERVICE I hereby certify that on this 4th day of April, 2023, a true copy of the above document was served upon: (i) counsel of record for Defendants, pursuant to and in compliance with the applicable Supreme Judicial Court Order in re: COVID-19 (coronavirus) Pandemic, concerning email service in cases under Rule 5(b) of Mass. Rules Civil Procedure; ii) Elizabeth Grady Face First, Inc., by email and in-hand delivery to its corporate office, and (iii) counsel for Elizabeth Grady Face First, Inc., by email and FedEx overnight delivery. Service upon Elizabeth Grady and its counsel is being completed at the following addresses: Gregory N. Eaton, Esq. Oakley, O’Sullivan & Eaton, P.C. 857 Turnpike Street North Andover, MA 01845 geaton@ooelegal.com Elizabeth Grady Face First, Inc. d/b/a The Elizabeth Grady Company 222 Boston Avenue Medford MA 02155 kdenicola@elizabethgrady.com 20 a”) Nicholas W. Allen Date Filed 4/4/2023 1:28 PM Superior Court - Middlesex Docket Number 2081CV02967 EXHIBIT A Date Filed 4/4/2023 1:28 PM Superior Court - Middlesex Docket Number 2081CV02967 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. Superior Court Department Of The Trial Court ELIZABETH GRADY FACE FIRST INC. D/B/A THE ELIZABETH GRADY COMPANY, Plaintiff, Vv. C. A. No. 2018-CV-02967 CYNOSURE, INC., KEVIN THORNAL, AND BLAKE AHITOW, Defendants. AGREEMENT FOR JUDGMENT The parties to the above-captioned matter, plaintiff Elizabeth Grady Face First, Inc., d/b/a The Elizabeth Grady Company (“Elizabeth Grady”), by and through its assignee John P. Walsh, Jr. (“Walsh”), and defendants Cynosure, LLC (“Cynosure”), Kevin Thornal, and Blake Ahitow (with the defendants hereafter collectively referred to as the “Cynosure Parties”), have moved for entry of Judgment pursuant to Mass. R. Civ. P. 58(a). Upon consideration of the parties’ Motion, the Court allows the Motion and enters JUDGMENT as follows: 1 Cynosure shall pay to John P. Walsh, Jr. or his designee the Settlement Amount by wire transfer within ten (10) days after this Judgment becomes final. Cynosure shall transfer to Walsh or his designee within ten (10) days after this Judgment becomes final all rights, title and interest in all of the Cynosure SculpSure and Icon machines (the “Equipment”) previously provided to Elizabeth Grady pursuant to the January 10, 2019 Product Lease Agreement (the “PLA”), which agreement has been terminated by Cynosure. Title to the Equipment shall be transferred unencumbered and shall be accompanied by appropriate title documentation. The Equipment shall be transferred on an “AS IS” basis. Cynosure shall not in bad faith refuse to respond to reasonable requests to service the Equipment at the request and expense of Walsh or his designees and at 10 Date Filed 4/4/2023 1:28 PM Superior Court - Middlesex Docket Number 2081CV02967 Cynosure’s then prevailing rates for labor, travel, transportation, service and materials, and Cynosure shall make PAC keys available to Walsh or his designees at Cynosure’s then-current pricing. This Judgment does not release any future claims with regard to breach of this paragraph, to the extent any exist, provided that any such claims shall not affect the validity of this Judgment or the releases hereunder. Elizabeth Grady and its affiliates, and Walsh, both in his personal capacity and capacity as assignee and authorized representative of Elizabeth Grady, and, to the extent they are acting or purporting to act on their behalf, their respective servants, employees, insurers, officers, directors, members, affiliates, parents and subsidiaries, past and present, and each of their legal representatives, successors, predecessors, and assigns, hereby release, remit, and forever discharge the Cynosure Parties and Hologic, Inc. (“Hologic”), and their respective servants, employees, insurers, officers, directors, members, affiliates, parents and subsidiaries, past and present, and each of their legal representatives, successors, predecessors, and assigns from and against any and all claims, charges, complaints, demands, actions, causes of action, suits, rights, debts, sums of money, costs, accounts, covenants, contracts, agreements, promises, damages, obligations, liabilities, and expenses (including attorneys’ fees and costs) of every kind or nature, whether known or unknown, suspected or unsuspected, arising at any time before the date hereof, that were or could have been asserted in this Action or that arise from or relate to the PLA or its negotiation or implementation. The Cynosure Parties hereby release, remit, and forever discharge Elizabeth Grady, and Walsh, both in his personal capacity and capacity as assignee and authorized representative of Elizabeth Grady, and their respective servants, employees, insurers, officers, directors, members, affiliates, parents and subsidiaries, past and present, and each of their legal representatives, successors, predecessors, and assigns from and against any and all claims, charges, complaints, demands, actions, causes of action, suits, rights, debts, sums of money, costs, accounts, covenants, contracts, agreements, promises, damages, obligations, liabilities, and expenses (including attorneys’ fees and costs) of every kind or nature, whether known or unknown, suspected or unsuspected, arising at any time before the date hereof, that were or could have been asserted in this Action or that arise from or relate to the PLA or its negotiation or implementation. Walsh and Elizabeth Grady will not encourage, fund, aid, or cooperate with any person asserting a claim against any of the defendants to the litigation by any Elizabeth Grady franchisees. In addition, the parties to the litigation agree not to make any disparaging public statements about each other relating to the facts and circumstances at issue in this action. The clerk will mark the docket as closed pursuant to this Judgment. This Judgment shall have the same effect as a judgment on the merits for purposes of preclusion, and shall be with prejudice to and preclusive to the filing of any other action to the 11 Date Filed 4/4/2023 1:28 PM Superior Court - Middlesex Docket Number 2081CV02967 full extent permitted by law. This Court shall retain jurisdiction to enforce this Judgment. The parties waive all rights of appeal and all costs. The parties further waive any motions to challenge this Judgment. SO ORDERED: Date: Justice of the Superior Court 12 Date Filed 4/4/2023 1:28 PM Superior Court - Middlesex Docket Number 2081CV02967 EXHIBIT B Date Filed 4/4/2023 1:28 PM Superior Court - Middlesex Docket Number 2081CV02967 AGREEMENT FOR ASSIGNMENT OF CLAIMS This Agreement for Assignment of Claims (the “Agreement”) is entered into this Ist day of October, 2021 (the “Effective Date”), by Elizbeth Grady Face First, Inc. (“Elizabeth Grady”) and John P. Walsh (“Walsh”). Elizabeth Grady and Walsh shall be referred to collectively as the “Parties” herein. RECITALS Whereas, on or about February 22, 2021, Elizabeth Grady filed an amended complaint in Middlesex Superior Court, C. A. No. 2081CV02967 against Cynosure, Inc. (“Cynosure”) and Kevin Thornal (“Thornal”) (jointly together with other officers and directors of Cynosure as well as Cynosure’s former parent corporation Hologic, Inc., the “Cynosure Defendants”) for specific economic damages arising from misrepresentations and violation of Chapter 93A as alleged therein that induced Elizabeth Grady to enter into a contract with Cynosure (the “Cynosure Litigation”). Whereas, pursuant to that certain Agreement for Stock Purchase dated as of September 8, 2021 (“ASP”), John Walsh has agreed to sell his interest in Elizabeth Grady at a substantially reduced valuation as a result of misconduct alleged in the Cynosure Litigation but specifically excluded from the sale and retained the right to any proceeds received from the Cynosure Litigation as additional consideration therefor. Whereas, Elizabeth Grady hereby confirms such retention by this assignment of all of Elizabeth Grady’s right, title and interest in all claims Elizabeth Grady now has or will have against the Cynosure Defendants and the proceeds of such claims. Whereas, Elizabeth Grady further desires and promises to cooperate with Walsh in Walsh’s pursuit of claims against the Cynosure Defendants. THEREFORE, in consideration of the recitals set forth above and the promises and covenants contained in this Agreement and for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged by Elizabeth Grady and Walsh, including the Closing of the transactions contemplated by the ASP, the Parties hereto, intending to be legally bound, hereby agree as follows: 1.0 ELIZABETH GRADY ASSIGNMENT OF ITS RIGHTS TO WALSH Elizabeth Grady hereby assigns, grants, bargains, sells, conveys, transfers, sets over and delivers to Walsh all of Elizabeth Grady’s right, title and interest in all claims, actions, causes of action, debts, demands, suits, dues, sum and sums of money, contracts, controversies, agreements, promises, doings, omissions, damages, whatsoever of every name and nature belonging to Elizabeth Grady against the Cynosure Defendants, both in law and in equity, including all claims in the Cynosure Litigation and the proceeds thereof. Furthermore, whether or not any part of this assignment is deemed unenforceable for any reason, Elizabeth Grady hereby agrees to pursue the Cynosure Litigation as Walsh shall direct and to assign the proceeds of any settlement with the Assignment of Claims 10.1.2021 Date Filed 4/4/2023 1:28 PM Superior Court - Middlesex Docket Number 2081CV02967 Cynosure Defendants or any judgment or execution against the Cynosure Defendants to Walsh. Walsh shall have the right to continue to pursue the Cynosure Litigation under Elizabeth Grady’s name without substituting or adding his name to the pleading as the intent is for Elizabeth Grady to continue as plaintiff but for Walsh to receive all funds or other proceeds or consideration that may result from the Cynosure Litigation, including any award of costs, experts’ fees, and attorneys’ fees. 2.0 WALSH WILL FUND AND CONTROL THE CYNOSURE LITIGATION. Walsh hereby agrees to pay the legal fees and costs incurred to date and to be incurred in the future, by Walsh and Elizabeth Grady in the Cynosure Litigation, including the prosecution and defense of all claims. While Elizabeth Grady will have the option of providing Walsh with its views regarding the strategic course of the Cynosure Litigation, Elizabeth Grady agrees that Walsh shall, along with counsel, make the strategic and other decisions for Elizabeth Grady, and Walsh with respect to the Litigation, including but not limited to, any decision to settle the Cynosure Litigation. The Parties agree that any award of costs, experts’ fees, and attorneys’ fees shall belong to Walsh. 3.0 COOPERATION BY ELIZABETH GRADY WITH WALSH Elizabeth Grady agrees that it will cooperate fully with any and all efforts of Walsh and counsel so that Walsh may proceed to litigate fully all causes of action in the Cynosure Litigation. For this purpose, Elizabeth Grady shall retain the same counsel as Walsh as part of the Parties’ joint prosecution agreement set forth herein. Elizabeth Grady’s cooperation with Walsh will include, without limitation, making its employees and officers available to counsel, as may be required, providing information (including documents) as required, testifying as necessary and the execution and delivery by Elizabeth Grady and its agents, representatives, and employees of any further assignments, instruments of transfer, bills of sale or conveyance that may be necessary, or that may be deemed necessary by Walsh, to fully vest in Walsh all right, title and interest to the causes of action in the Cynosure Litigation or to enable Walsh to collect on the causes of action, except that all out-of-pocket collection costs shall be borne by Walsh, and Elizabeth Grady (subject to paragraph 12 below) shall not incur any further legal fees or expenses in connection with such Litigations. In addition, Walsh may, at his sole discretion and expense, enforce any injunctions, attachments and similar positions of security and advantage obtained by Elizabeth Grady in any case against the Cynosure Defendants. 4.0 WARRANTY OF AUTHORIZATION Each person whose signature appears hereon warrants and guarantees that he has been duly authorized and has full authority as of the Effective Date to execute this Agreement on behalf of the entity or person on whose behalf this Agreement is executed. 5.0 WARRANTIES; NO ASSIGNMENT OF CLAIMS TO THIRD PARTIES Elizabeth Grady hereby represents and warrants that its interest in the Cynosure Litigation and the claims described in this Agreement are free from encumbrances; that Elizabeth Grady has Date Filed 4/4/2023 1:28 PM Superior Court - Middlesex Docket Number 2081CV02967 not compromised or settled any of said causes of action; and that Elizabeth Grady has not assigned or transferred, or purported to assign or transfer, to any person or entity any causes of action, or any portion of any cause of action assigned hereunder. 6.0 ENTIRE AGREEMENT This Agreement constitutes and contains the entire Agreement and understanding between the Parties with respect to the subject matter hereof. This Agreement supersedes and replaces all prior negotiations and all agreements, proposed or otherwise, whether written or oral, concerning the subject matter hereof. This is a fully integrated document. 7.0 GOVERNING LAW This Agreement shall be governed by the laws of the Commonwealth of Massachusetts. 8.0 COOPERATIVE DRAFTING AND CONSTRUCTION Each party has cooperated in the drafting and preparation of this Agreement. Hence, this Agreement shall not be construed against any party on the basis that that party was the drafter. The headings are for the convenience of the Parties and are not to be used in construing the meaning of any provision of this Agreement. 9.0 EXECUTION IN COUNTERPARTS Each party has cooperated in the drafting and preparation of this Agreement. Hence, this Agreement shall have the efficacy of a signed original. True and correct copies of signed counterparts may be used in place of the originals for any purpose. 10.0 NO WAIVER OF BREACH No waiver of any breach of any term or provision of this Agreement shall be construed to be, nor shall be, a waiver of any other breach of this Agreement. No waiver shall be binding unless in writing and signed by the party waiving the breach. 12.0 INDEPENDENT LEGAL ADVICE/WAIVER OF CONFLICT The Parties acknowledge that they have each been advised that they may obtain their own independently selected counsel and other advisors in connection with this Agreement and that each has had the opportunity to do so. The Parties acknowledge that McCarter & English, LLP is counsel for both parties in the Cynosure Litigation but does not represent either party with respect to this Agreement although it has reviewed and commented on this Agreement for purposes of its representation in the Cynosure Litigation. The Parties enter into this Agreement on the basis of their own independent investigation of all of the facts, laws and circumstances material to this Agreement or any provision thereof, and not in any manner or to any degree based upon any statement or omission by any other party and/or counsel. With respect to the Cynosure Litigation, the Parties expressly waive any conflict of interest or potential conflict of interest. The Parties also Date Filed 4/4/2023 1:28 PM Superior Court - Middlesex Docket Number 2081CV02967 each recognize and agree that if McCarter & English, LLP becomes aware of a future conflict of interest with respect to the Cynosure Litigation, McCarter & English, LLP shall notify the Parties (or vice versa) of such conflict. In the case of such a conflict, Elizabeth Grady hereby expressly consents to McCarter & English, LLP’s continued representation of Walsh with its full acknowledgement and understanding that, at the occurrence of such a conflict, Elizabeth Grady would have to obtain its own counsel at its own cost consistent with the assignment of Elizabeth Grady’s rights under this Agreement. 13.0 NOTICES Any notice made by either party shall be considered proper and effective if mailed by overnight mail addressed as shown below with delivery confirmed, or delivered in person and in writing. All Parties agree to notify promptly each other party to this Agreement of any address changes. If to Walsh: John P. Walsh 17 Commonwealth Avenue Boston, MA 02116 If to Elizabeth Grady: Elizabeth Grady Face First, Inc. 222 Boston Avenue Medford, MA 02155 Or to such changed address as shall have been designated by notice. BY EXECUTING THIS AGREEMENT UNDER SEAL, EACH OF THE PARTIES ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND UNDERSTANDS ITS TERMS AND PROVISIONS. Dated: October 1, 2021 John P. Walsh Cote 2 Wabeh, John P. Walsh Dated: October 1, 2021 ELIZABETH GRADY FACE FIRST, INC. Cote P. Walsh, By: John P. Walsh, President Date Filed 4/4/2023 1:28 PM Superior Court - Middlesex Docket Number 2081CV02967 EXHIBIT C Date Filed 4/4/2023 1:28 PM Superior Court - Middlesex Docket Number 2081CV02967 Page 297 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, SS. SUPERIOR COURT DIVISION HR KK KR ERE R ERK ERK E ARERR EERE ELIZABETH GRADY FACE FIRST, INC., d/b/a THE ELIZABETH GRADY COMPANY, Plaintiff VS. CA NO. 2081-CV-02967 10 CYNOSURE, INC., and KEVIN THORNAL, 11 Defendants 12 TR FOR I RR Rk dR dk oe dk a dk ae kok oe k 13 14 15 VIDEOTAPED DEPOSITION OF: 16 KATHLEEN DE NICOLA 17 ANDERSON & KREIGER LLP 18 50 Milk Street 19 Boston, Massachusetts 20 September 15, 2022 9:30 a.m. 21 Volume II 22 23 24 Darlene M. Coppola, RMR, CRR Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Date Filed 4/4/2023 1:28 PM Superior Court - Middlesex Docket Number 2081CV02967 Page 298 APPEARANCES: Representing the Plaintiff: MC CARTER & ENGLISH 265 Franklin Street Boston, MA 02110 BY: DAVID M. IANELLI, ESQUIRE NICHOLAS W. ALLEN, ESQUIRE T 617.449.6500 E dianelli@mccarter.com 10 nallen@mccarter.com 11 12 Representing the Defendant Kevin Thornal: 13 DONNELLY, CONROY & GELHAAR LLP 14 260 Franklin Street 15 Suite 1600 16 Boston, MA 02110 17 BY: DANIEL P. TIGHE, ESQUIRE 18 T 617.720.2880 19 E dpt@dcglaw.com 20 21 (Continued on next page) 22 23 24 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Date Filed 4/4/2023 1:28 PM Superior Court - Middlesex Docket Number 2081CV02967 Page 299 APPEARANCES (Continued): Representing the Defendant Cynosure, Inc.: ARNOLD & PORTER 250 West 55th Street New York, NY 10019 BY: JOCELYN WIESNER, ESQUIRE DANIEL PARISER, ESQUIRE T 212.836.8000 E jocelyn.wiesner@arnoldporter.com 10 daniel.pariser@arnoldporter.com 11 12 13 Also Present: 14 Shawn Budd, videographer 15 16 17 18 19 20 21 22 23 24