EXHIBIT 4.5
STOCK RESTRICTION AND CLOSE CORPORATION AGREEMENT
THIS STOCK RESTRICTION AND CLOSE CORPORATION AGREEMENT (the "Agreement")
is made effective the 9th day of February, 1998, by and among Safe Auto Group,
Inc., an Ohio corporation (the "Company"), Ari and Xxx Xxxxx (the "Deshe
Family"), Xxx X. and Xxxxx Xxxxxxx (the "Diamond Family"), Xxx and Xxxxxx
Xxxxxxxxxxxxx (the "Xxxxxxxxxxxxx Family"), Safe Auto Insurance Agency, Inc.,
its successors or assigns (the "Agency"), Xxx Xxxxx, individually, and the GAS
Trust.
Capitalized terms used in this Agreement have the particular meanings
assigned herein.
BACKGROUND INFORMATION
A. The Shareholders are the record and beneficial owner of the number
of Shares set forth opposite their or its name:
Deshe Family 129 Shares
Diamond Family 129 Shares
Schottenstein Family 27 Shares
Agency 15 Shares
Xxx Xxxxx 30 Shares
B. The Shareholders and the Company executed a certain Shareholders'
and Close Corporation Agreement on April 19, 1993, which set forth certain
agreements and imposed certain restrictions upon the transfer of Shareholders'
Shares (the "Previous Agreement").
C. The parties desire to amend and restate the Previous Agreement to
incorporate additional agreements.
PROVISIONS
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
and covenants set forth herein, the parties hereto agree as follows:
1. Definitions.
(a) Ari. "Ari" shall mean Xxx Xxxxx, individually.
(b) Book Value. "Book Value" shall mean the Company's total assets minus
its total liabilities as determined in accordance with generally
accepted accounting principles (GAAP), divided by the number of
Shares outstanding.
(c) Business Day. "Business Day" shall mean any day of the week from and
including Monday through and including Friday; provided, that any
day that is (i) declared a legal holiday by either the federal or
state government or (ii) a Jewish high holiday shall not be
considered a Business Day.
(d) Deshe Family Subgroup. "Deshe Family Subgroup" shall mean the
Agency, Ari, Xxx Xxxxx, their estates, lineal descendants, and any
trusts for the benefit of any of the foregoing individuals, provided
that all decisions regarding voting and disposition of Shares held
by such trusts are controlled by one or more of the foregoing
individuals.
(e) Diamond Family Subgroup. "Diamond Family Subgroup" shall mean Xxx,
Xxxxx Xxxxxxx, their estates, lineal descendants, and any trusts for
the benefit of any of the foregoing individuals, provided that all
decisions regarding voting and disposition of Shares held by such
trusts are controlled by one or more of the foregoing individuals.
(f) Family Representative. "Family Representative" shall mean the member
of each Family Subgroup that is appointed by the Family Subgroup's
members to be their Family Representative and for whom written
notice of such appointment has been delivered to the Company. The
initial Family Representatives shall be as follows: with respect to
the Deshe Family Subgroup, Ari; with respect to the Diamond Family
Subgroup, Xxx; and with respect to the Schottenstein Family
Subgroup, Xxx Xxxxxxxxxxxxx.
(g) Xxx. "Xxx" shall mean Xxx X. Xxxxxxx, individually.
(h) Offering Shareholder. "Offering Shareholder" shall mean any
Shareholder whose Shares are likely to become the subject of a
Transfer due to any event, voluntary or involuntary ("voluntary"
being defined as an event which is to occur by reason of the
Shareholder's current voluntary act).
(i) Schottenstein Family Subgroup. "Schottenstein Family Subgroup" shall
mean Xxx Xxxxxxxxxxxxx, Xxxxxx Xxxxxxxxxxxxx, their estates, lineal
descendants, and any trusts for the benefit of any of the foregoing
individuals, provided that all decisions regarding voting and
disposition of Shares held by such trusts are controlled by one or
more of the foregoing individuals.
(j) Shareholder. "Shareholder" shall mean, individually, the Deshe
Family, the Diamond Family, the Schottenstein Family, the Agency,
and any holder of common stock of the Company that has become a
party to this Agreement.
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(k) Shares. "Shares" shall mean any shares of common stock of the
Company or any interest in such shares.
(l) Transfer. "Transfer" shall mean any gift, sale, transfer,
alienation, pledge, encumbrance or other manner of disposal of any
Shares or any interest therein, voluntarily, involuntarily, by
operation of law or otherwise. Provided, however, that any gift,
sale, transfer, or other manner of disposal of any Shares or any
interest therein by:
(i) a member of the Deshe Family Subgroup to a member or members
of the Deshe Family Subgroup; or
(ii) a member of the Diamond Family Subgroup to a member or members
of the Diamond Family Subgroup; or
(iii) a member of the Schottenstein Family Subgroup to a member or
members of the Schottenstein Family Subgroup;
shall not be a Transfer.
(m) Trust. "Trust" means Ari and Xxx, or their successors in trust, as
co-trustees of the GAS Trust created by written trust agreement
dated February 9, 1998.
2. Restrictions on Transfer of Shares.
(a) Transfers Prohibited. A Shareholder shall not Transfer any Shares of
the Company or any interest therein, except as specifically
authorized under this Agreement. Any Transfer or attempted Transfer
in contravention of the terms and conditions of this Agreement shall
be null and void and of no force or effect, and the violating or
noncomplying Shareholder shall offer his Shares to the Company at
the price and on the terms contained in Section 3.
This paragraph and the requirement of the Shareholder to offer
Shares contained herein shall be binding upon the Shareholder and
any transferee, pledgee or other person to whom the Shares are
attempted to be transferred either voluntarily or involuntarily,
including but not limited to any executor, administrator, receiver,
the trustee or custodian in bankruptcy, or other personal or legal
representative of the Shareholder, pledgee and/or the transferee or
purchaser of Shares sold or transferred by court order or on
execution or at any judicial or creditor sale.
(b) Conditions to Transfer. A Transfer shall be subject to prior
exercise, or termination unexercised, of the rights of refusal
granted under Section 3 of this Agreement.
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3. Rights of Refusal. Prior to any Transfer of Shares by a Shareholder, such
Shareholder shall offer to sell such Shares pursuant to this Section 3.
(a) Notice of Intent to Transfer. An Offering Shareholder shall give
prior written notice to the Company and to all other Shareholders of
any event, voluntary or involuntary, by which the Shares are likely
to become the subject of a Transfer. Such notice shall give all
particulars of the event, and (if applicable) shall specifically
identify (i) the Shares proposed to be Transferred, (ii) the date of
the proposed Transfer, (iii) the price and terms of the proposed
Transfer, (iv) the identity and mailing address of the proposed
transferee, and shall be given at least forty (40) Business Days
prior to the proposed effective date of any Transfer. The Offering
Shareholder shall attach to said notice true and correct copies of
all existing documents respecting such proposed Transfer. Said
notice shall constitute the Shareholder's representation that the
terms of said proposed Transfer are bona fide.
(b) Rights of First Refusal. The Company shall have the right of refusal
to purchase all, or any portion of, the Shares which were the
subject of the notice given in accordance with Section 3(a).
Such rights may be exercised by written notice of exercise delivered
or mailed to the Offering Shareholder and all other interested
parties disclosed by said notice no later than the close of business
of the twentieth (20th) Business Day prior to the proposed effective
date of any Transfer. Such notice of exercise shall specify the
number of Shares which the Company is willing to purchase pursuant
to this Section 3(b). Such notice of exercise shall irrevocably
obligate the Company to purchase that number of such Shares.
(c) Price and Terms of Purchase. If the notice given to the Company in
accordance with Section 3(a) constitutes an intended voluntary sale
and provides the price thereof, the Company shall purchase such
Shares for the same per share price. If the notice constitutes an
intended voluntary pledge or encumbrance, the Company shall purchase
such shares for the sum intended to be secured by such pledge or
encumbrance, provided said sum does not exceed the Book Value
hereinbefore defined. In the case of any other Transfer, voluntary
or involuntary, the purchase price shall be the greater of:
(i) the Book Value of the Shares as of the month-end immediately
preceding the date on which the notice under Section 3(a) was
given; or
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(ii) the amount for which the Shares subject to the proposed
Transfer were originally issued by the Company.
The terms of the sale of the Shares to the Company upon exercise of
its option as aforesaid shall be as follows:
(i) Unless otherwise mutually agreed by the affected parties, the
closing of such Transfer shall take place at the principal
offices of the Company at 10:00 a.m. on the tenth (10th)
Business Day after the last day for exercise of the Company's
rights of refusal.
(ii) Payment of the purchase price shall be made at the closing in
any combination of the following, as determined in the sole
discretion of the Company:
(A) Cash or other immediately available funds; or
(B) A negotiable promissory note, which (i) is payable to
the order of Offering Shareholder, (ii) provides for all
principal and accrued interest to be due and payable at
a maturity date which is not more than five (5) years
after the date of the closing, and (iii) bears interest
from the date of the closing at a variable rate equal to
the sum of the prime rate as announced from time to time
by the Company's primary state or federally chartered
banking institution and one percent (1%) (with such
interest being calculated on the basis of a 360-day year
and the actual number of elapsed days and with changes
in such interest rate being effective on the effective
date of each change in such prime rate).
(d) Timely Transfer. If the Company shall not exercise its first right
of refusal as aforesaid, the Offering Shareholder shall be free to
Transfer said Shares, however, such Transfer shall be made solely
for the price, terms, or other consideration set forth in said
notice and in accordance with the documents attached thereto. The
Offering Shareholder shall provide reasonable evidence concerning
the Transfer upon request, from time to time. If the Transfer is not
so made, the Shares shall again be subject to all the restriction
contained in this Agreement.
(e) Stock Legend. All share certificates issued by the Company subject
to this Agreement shall bear the following legend:
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"The rights of a holder of this certificate are governed by the
Corporation's Articles of Incorporation, Code of Regulations and a
certain Stock Restriction Agreement and Close Corporation Agreement
dated February 9, 1998, which includes significant transfer
restrictions. Copies of such documents are on file at the
Corporation's office, and the Corporation will mail to the holder of
this certificate, a copy of such documents upon request therefor.
The holder of this certificate, by acceptance hereof, agrees to the
terms of the Articles of Incorporation, Code of Regulations and
Stock Restriction and Close Corporation Agreement."
4. Amendment to Agreement in Regards to New Shareholders. No person who shall
not have signed this Agreement shall be recognized, nor have any status, as a
Shareholder of the Company, nor have his interest registered on the books of the
Company, unless said person shall have received a Transfer of his Shares
pursuant to the terms of this Agreement and shall execute an amendment to this
Agreement by which act he shall agree to be bound by all the terms and
conditions hereof as if an original signatory. Each Shareholder hereby appoints
the Chief Executive Officer of the Company as his attorney-in-fact with full
power to execute said amendment on his behalf. Copies of said amendment shall be
mailed to all Shareholders.
5. Close Corporation Provisions.
(a) Close Corporation Agreement. This Agreement is to be governed by
Section 1701.591 of the Ohio Revised Code and is a "close
corporation agreement" as the term is defined in Section 1701.01(X)
of the Ohio Revised Code.
(b) Supersedes Certain Provisions of Chapter 1701 of the Ohio Revised
Code. This Agreement shall regulate certain aspects of the internal
affairs of the Company and the relations of shareholders among
themselves to the extent set forth herein. If any provision of
Chapter 1701 of the Ohio Revised Code, other than Section 1701.591,
is inconsistent with this Agreement, such inconsistent provisions
are hereby waived, to the extent waivable, to the maximum extent
necessary for carrying out the purposes of this Agreement. To the
extent not inconsistent with the provisions of this Agreement, the
other provisions of Chapter 1701 of the Ohio Revised Code shall
regulate aspects of the internal affairs of the Company and the
relations of the shareholders among themselves.
(c) Right of Inspection. Each party to this Agreement, or his designated
agent, or both, shall have the absolute right, without the necessity
of stating any purpose, to examine and copy, during the Company's
normal business hours, any of the Company's records or documents to
which reference is made in Ohio Revised Code Section 1701.37 or any
similar statute which may be in effect at the time.
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(d) Issuance of Additional Shares. Except as provided in Section 6(e),
no authorized unissued shares and no treasury shares of the Company
may be issued or sold without the affirmative vote or written
approval of the holders of at least sixty percent (60%) of the
outstanding voting shares of the Company.
(e) Record of Proceedings. The parties shall cause this Agreement and
the execution thereof by the corporate parties hereto to be
authorized by written resolution by consent without a meeting of the
directors and shareholders of each corporation.
(f) Directors and Officers. The directors of the Company shall include
Ari and three other directors nominated by Ari in writing
(representing the Deshe Family Subgroup), Xxx and one other director
nominated by Xxx in writing (representing the Diamond Family
Subgroup) and a director nominated by Xxx Xxxxxxxxxxxxx
(representing the Schottenstein Family Subgroup). In the event any
director representing a Subgroup is unable or unwilling to continue
to serve, his or her successor shall be named by his or her
respective Subgroup. The current officers of the Company shall be
Ari, Chairman of the Board and Chief Executive Officer, Xxx,
President and Secretary, and Xxxxxx X. Xxxxxxxx, Vice President and
Treasurer. The officers of the Company shall be chosen by the
directors and shall continue in office until their respective
successors have been duly elected and qualified.
(g) Chief Executive Officer. As long as Ari is employed on a full-time
basis by the Company, he shall hold the offices set forth in Section
5(f). If Ari shall be employed on a part-time basis, he shall remain
the Chairman of the Board and Xxx shall become the Chief Executive
Officer and President. If Ari shall cease being employed for any
reason, Xxx shall become the Chairman of the Board and Chief
Executive Officer with an immediate twenty-five percent (25%)
increase in his then current annual base salary. In addition, his
annual base salary for each subsequent fiscal year shall be
increased by a percentage equal to or greater than one hundred fifty
percent (150%) of the percentage increase in the consumer price
index for all urban consumers, U.S. city average, all items ("CPI")
reported by the U.S. Department of Labor for the previous calendar
year.
During the tenure of Ari or Xxx in such offices any of the following
transactions on behalf of the Company or any affiliate or subsidiary
must be approved by the Board of Directors:
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(i) (A) any proposed expenditure, incurrence of indebtedness or
other liability, capital acquisition, investment or
divestiture, or any other agreement or transaction, not in the
ordinary course of business, or (B) if in the ordinary course
of business, in excess of One Hundred Thousand Dollars
($100,000), which sum shall be adjusted annually by a factor
of two times the CPI, but not less than five percent, nor more
than ten percent;
(ii) any employment agreement or charitable contribution; or
(iii) any agreement with a member of the Deshe, Diamond or
Schottenstein Family Subgroups.
As soon as either Ari or Xxx xxxxx holding any of such offices, the
Chairman of the Board and Chief Executive Officer shall furnish
complete financial statements to the directors at least quarterly
each year, which statements shall itemize (A) all expenditures in
excess of Twenty Five Thousand Dollars ($25,000), and (B) all sums
expended by the Chairman of the Board and Chief Executive Officer
for business travel and transportation.
(h) Shareholder Meetings. The Shareholder meetings of the Company shall
be conducted at 0000 X. Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000.
(i) Conduct of Business. The day-to-day operations of the Company shall
be the responsibility of the Chief Executive Officer, subject to any
limitations on his authority as contained in this Agreement.
(j) Place of Business. The principal place of business of the Company
shall be 0000 X. Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 or such other
place of business as shall be determined by the Shareholders.
(k) Amendments. Amendments to the Articles of Incorporation of the
Company may only be adopted by the vote of the Deshe Family and
either the Diamond Family or the Schottenstein Family.
(l) Material Decisions. In addition to any other limitation herein
contained, the prior approval of the Family Representative of the
Deshe Family Subgroup and the approval of either the Family
Representative of the Diamond Family Subgroup or the Schottenstein
Family Subgroup shall be required for any of the following
transactions:
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(i) Any public offering of the shares of the Company;
(ii) Any change in the compensation of, or the granting of any loan
or fringe benefits to, Ari or Xxx or members of their
respective Family Subgroups;
(iii) The liquidation or dissolution of the Company for any reason;
(iv) The purchase or sales of assets other than those used in the
ordinary course of business; and
(v) The acquisition of any other company.
Provided, however, that upon exercise of the option hereinafter
granted to the Diamond Family Subgroup, said approval shall no
longer be required for items (i), (ii), (iv) and (v).
(m) Change in Executive Management. If Xxx shall cease being employed by
the Company for any reason (except his death), the Diamond Family
Subgroup shall have the following options:
(i) The Family Representative of the Diamond Family Subgroup shall
have the option, once the severance payments due Xxx under his
Executive Employment Agreement terminate (if any), to sell a
certain number of their Shares each year to the Company at the
price and in the amount as follows:
(A) The price per Share shall be its Book Value as of the
first day of the then current fiscal year of the Company
(the "Denominator"); and
(B) The amount of Shares shall be determined by dividing the
amount of Jon's annual base salary on the Severance
Date, adjusted by a percentage equal to one hundred
fifty percent (150%) of the percentage increase in CPI
since the Severance Date, by the Denominator.
The Company shall be obligated to purchase such tendered
Shares in accordance with this Section 5(m)(i).
(ii) All payments due the exercising members of the Diamond Family
under this Section 5(m) shall be made in cash or other
immediately available funds within thirty (30) days after
notice of exercise.
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(iii) If and when the Family Representative of the Diamond Family
Subgroup exercises the aforesaid option, the Company shall
have the option, at any time, and from time to time, to
purchase the remaining Shares held by the Diamond Family
Subgroup for the same price and in quantities not less than
those determined under the aforesaid formula.
(n) Termination of Certain Restrictions. Upon the disposition of all of
the Shares owned by either the Deshe Family Subgroup or the Diamond
Family Subgroup, this Section 5 (except for subsections (g) and (I)
in the event of the disposition of all of the Shares owned by the
Deshe Family Subgroup) shall no longer be in force or effect.
6. Life Insurance. The parties hereto acknowledge that the Trust is
contemplating the purchase of certain life insurance policies on the lives of
Ari and Xxx (the "Policies"). If the Trust purchases the Policies, upon the
death of Ari or Xxx, whichever occurs first:
(a) The Family Representative of the decedent's Family Subgroup and the
Family Representative of the Schottenstein Family Subgroup, on
behalf of all members of his respective Family Subgroup, shall have
the option, for a period of three (3) years after the Determination
Date (defined in Section 6(f) below), to tender for sale all, but
not less than all, of the Shares held by such Family Subgroup to the
Trust, the purchase price per share for which shall be the greater
of the (i) Book Value as of the Determination Date, or (ii) Insured
Value (defined in Section 6(g) below). If any such Family
Representative shall tender for sale less than all of the Shares
held by his Family Subgroup, such non-complying tender shall be null
and void and of no force or effect.
Upon notice by such Family Representative of his tender of the
Shares held by his Family Subgroup for sale to the Trust, and upon
delivery of appropriate stock certificates with stock powers duly
endorsed, the Trust shall purchase all of the tendered Shares;
provided, however, that the Trust's aggregate monetary obligation to
purchase Shares under this Section 6(a) shall not exceed the net
death benefit proceeds received under the Policies (the "Death
Proceeds").
(b) Upon the expiration of such three (3) year period (the "Expiration
Date"), the Trust shall retain any Death Proceeds which remain and
any rights the members of the decedent's Family Subgroup and the
Schottenstein Family Subgroup may have to tender Shares for sale to
the Trust shall immediately terminate.
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(c) If the Book Value of the Shares held by members of the decedent's
Family Subgroup and the Schottenstein Family Subgroup as of the
Determination Date is greater than the Insured Value:
(i) The Trust shall only be obligated to purchase an aggregate
number of Shares determined by the quotient of (A) the Death
Proceeds, divided by (B) the Book Value as of the
Determination Date, not to exceed the number of Shares
tendered.
(ii) The Shares purchased by the Trust in accordance with Section
6(c)(i) shall be allocated among the tendering Shareholders in
proportion to the number of Shares owned by each of them as of
the Determination Date.
(iii) The decedent's Family Subgroup and the Schottenstein Family
Subgroup shall have the option to sell a certain remaining
number of Shares retained by such Shareholders under Section
6(c)(i) each year to the Company at the price and in the
amount as follows:
(A) The price per Share shall be its Book Value as of the
first day of the then current fiscal year of the
Company.
(B) The amount of Shares shall be determined by dividing the
amount of the decedent's annual base salary on the date
of his death, adjusted by a percentage equal to one
hundred fifty percent (150%) of the percentage increase
in CPI since the date of his death, by the number
calculated in accordance with Section 6(c)(i).
(C) The Company shall be obligated to purchase such tendered
Shares in accordance with this Section 6(c)(iii).
(D) All payments due the decedent's Family Subgroup and the
Schottenstein Family Subgroup under this Section
6(c)(iii) shall be made in cash or other immediately
available funds within thirty (30) days after notice of
exercise.
(iv) The Company shall have the option to purchase any number of
the remaining Shares retained by the decedent's Family
Subgroup and the Schottenstein Family Subgroup under Section
6(c)(i) in accordance with the following:
(A) The price per Share shall be its Book Value as of the
first day of the then current fiscal year of the
Company.
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(B) The decedent's Family Subgroup and the Schottenstein Family
Subgroup shall be obligated to sell such Shares in accordance
with this Section 6(c)(iv).
(C) All payments due the decedent's Family Subgroup and the
Schottenstein Family Subgroup under this Section 6(c)(iv)
shall be made in cash or other immediately available funds
within thirty (30) days after receipt of notice of exercise
from the Company.
(d) If Ari shall predecease Xxx:
(i) And the Family Representative of the Deshe Family Subgroup does not
exercise the option under Section 6(a):
(A) The Family Representative of the Diamond Family Subgroup, on
behalf of all members of his Family Subgroup, shall have the
option, for a period of one (1) year after the Expiration
Date, to tender for sale all, but not less than all, of the
Shares held by such Family Subgroup to the Trust, the purchase
price per share for which shall be the greater of the (i) Book
Value as of the Determination Date, or (ii) Insured Value.
Upon notice by such Family Representative of his tender of the
Shares held by his Family Subgroup to the Trust, and upon
delivery of appropriate stock certificates with stock powers
duly endorsed, the Trust shall purchase all of the tendered
Shares; provided, however, the Trust's aggregate monetary
obligation to purchase Shares under this Section 6(d) shall
not exceed the Death Proceeds which remain after any exercise
by the Schottenstein Family Representative of the option set
forth in Section 6(a). The Trust shall deliver payment of the
purchase price in cash or other immediately available funds
within ten (10) Business Days after its receipt of the notice.
(B) Upon the expiration of such one (1) year period, the Trust
shall retain the Death Proceeds which remain after the
exercise of the options set forth in Sections 6(a) and
6(d)(i)(A) and any rights the members of the Diamond Family
Subgroup may have to tender Shares for sale to the Trust shall
immediately terminate.
(C) If the Book Value of the Shares held by members of the Diamond
Family Subgroup and the Schottenstein Family
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Subgroup as of the Determination Date is greater than the
Insured Value:
(1) The Trust shall only be obligated to purchase an
aggregate number of Shares determined by the quotient of
(A) the Death Proceeds which remain after the exercise
of the option set forth in Section 6(a), divided by (B)
the Book Value as of the Determination Date, not to
exceed the number of Shares tendered.
(2) The Shares purchased by the Trust in accordance with
Section 6(d)(i)(C)(1) shall be allocated among the
tendering Shareholders in proportion to the number of
Shares owned by each of them as of the Determination
Date.
(3) The decedent's Family Subgroup and the Schottenstein
Family Subgroup shall have the option to sell a certain
number of remaining Shares retained by such Shareholders
under Section 6(d)(i)(C)(1) each year to the Company at
the price and in the amount as follows:
(I) The price per Share shall be its Book Value as of
the first day of the then current fiscal year of
the Company.
(II) The amount of Shares shall be determined by
dividing the amount of the decedent's annual base
salary on the date of his death, adjusted by a
percentage equal to one hundred fifty percent
(150%) of the percentage increase in CPI since the
date of his death, by the number calculated in
accordance with Section 6(d)(i)(C)(1).
(III) The Company shall be obligated to purchase such
tendered Shares in accordance with this Section
6(d)(i)(C).
(IV) All payments due the decedent's Family Subgroup
and the Schottenstein Family Subgroup under this
Section 6(d)(i)(C) shall be made in cash or other
immediately available funds within thirty (30)
days after notice of exercise.
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(ii) [Intentionally left blank]
(e) If any Death Proceeds remain in the Trust after exercise or
expiration of the options hereinbefore granted, the Trust shall
purchase and the Company shall sell such number of original issuance
shares of common stock of the Company as shall equal the said
remaining Death Proceeds divided by the Book Value as of the first
of the month following such exercise or expiration.
(f) The "Determination Date" shall be (i) for the purposes of Section
6(a), the last day of the month immediately preceding the decedent's
death, and (ii) for the purposes of Section 6(d), the Expiration
Date.
(g) The "Insured Value" of each of the Company's Shares shall be
determined by the quotient of (i) Six Million Dollars ($6,000,000)
divided by (ii) the number of Shares held by the decedent's Family
Subgroup and the Schottenstein Family Subgroup.
7. Miscellaneous.
(a) Construction. Wherever the context so permits, the use of words in
this Agreement in the masculine, feminine or neuter gender shall be
construed to include all of said genders. All references to
articles, sections, subsections, or subparagraphs are to provisions
of this Agreement unless the context dictates otherwise.
(b) Attorneys Fees. Each of the parties hereby agrees that if any party
violates any of the covenants set forth herein, such party shall
indemnify all other parties from and against any loss or liability
(including without limitation reasonable attorney fees and expenses)
which such other parties may incur or suffer, directly or
indirectly, by reason of the enforcement of the covenants set forth
herein.
(c) Entire Agreement. This Agreement sets forth the entire agreement and
understanding among the parties as to the subject matter hereof and
merges and supersedes all prior discussions, agreements and
undertakings of every kind and nature between them with respect to
the subject matter hereof, including the Previous Agreement. This
Agreement may be executed in one or more counterparts, which shall
together constitute a single agreement. In the event of execution of
more than one counterpart of this Agreement, the Company is
expressly authorized to remove the signature pages from each such
counterpart and attach all such signature pages to a single
counterpart of this Agreement; provided, however, the Company shall
promptly thereafter provide a complete and accurate copy of such
single counterpart to each party.
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(d) Further Assurances. Each of the parties agrees, at any time and from
time to time, upon the reasonable request of any other party, to do,
execute, acknowledge and deliver, or cause to be done, executed,
acknowledged and delivered, all such further acts, documents and
instruments as may be required to effect any of the transactions
contemplated by this Agreement.
(e) Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective heirs, executors and
permitted assigns.
(f) Governing Law Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio
(regardless of the laws that might be applicable under principles of
conflicts of laws) as to all matters, including but not limited to
matters of validity, construction, effect and performance. Any
controversy or claim arising out of or relating to this contract
shall be determined by arbitration by three arbitrators in Columbus,
Ohio in accordance with the Commercial Arbitration Rules of the
American Arbitration Association and judgment upon the award
rendered by the arbitrators may be entered in any court having
jurisdiction thereof. Provided, however, that any claim for purely
equitable relief, such as injunction, may be brought in the Franklin
County Common Pleas Court, to the jurisdiction and venue of which
the parties hereby consent.
(g) Notices. All notices permitted or required to be given pursuant to
this Agreement by any party, shall be in writing and shall be mailed
by certified United States mail, postage prepaid, return receipt
requested, to the Shareholder at the address set forth below his
signature and to the Company at the following address:
Safe Auto Group, Inc.
0000 X. Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: Chief Executive Officer
All such notices shall be deemed given upon receipt or upon refusal
of the addressee to receive the same as evidenced on the return
receipt. Any party may designate a different address by notice given
hereunder.
(h) Invalidity. In the event that this Agreement becomes invalid
pursuant to the provisions of Ohio Revised Code Section 1701.591, or
if it or any of its provisions is held invalid by the decision of
any court of competent jurisdiction from which no appeal is or can
be taken, this Agreement shall be deemed to be void in its entirety.
(i) Amendment of Agreement. This Agreement shall not be modified or.
amended except only by a writing signed by the holders, then parties
to this Agreement, of all the issued and outstanding Shares.
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(j) Headings. The headings used in this Agreement are for convenience
only and shall be ignored in interpreting this Agreement.
(k) Waiver. No failure by any party to insist upon the strict
performance of any covenant, duty, agreement, or condition of this
Agreement or to exercise any right or remedy consequent upon a
breach thereof shall constitute waiver of any breach or any other
covenant, duty, agreement, or condition.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
COMPANY: DESHE FAMILY:
SAFE AUTO GROUP, INC.,
an Ohio corporation
By: /s/ Xxx Xxxxx /s/ Xxx Xxxxx
----------------------------------- ------------------------------
Xxx Xxxxx, Chief Executive Officer Xxx Xxxxx
/s/ Xxx Xxxxx
------------------------------
Xxx Xxxxx
Address: 000 X. Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
AGENCY:
SAFE AUTO INSURANCE AGENCY, INC.
an Ohio corporation
By: /s/ Xxx Xxxxx
------------------------------
Xxx Xxxxx, President
DIAMOND FAMILY: SCHOTTENSTEIN FAMILY:
/s/ Xxx X. Xxxxxxx /s/ Xxx Xxxxxxxxxxxxx
------------------------------- -------------------------------
Xxx X. Xxxxxxx Xxx Xxxxxxxxxxxxx
/s/ Xxxxx Xxxxxxx /s/ Xxxxxx Xxxxxxxxxxxxx
----------------------------- --------------------------------
Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxxxxxx
Address: 000 X. Xxxxxxxx Xxxxxx Address: 000 X. Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000 Xxxxxxxx, Xxxx 00000
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TRUST: XXX XXXXX:
THE GAS TRUST
By: /s/ Xxx Xxxxx /s/ Xxx Xxxxx
--------------------------------- ----------------------------
Xxx Xxxxx, Co-Trustee Xxx Xxxxx, Individually
By: /s/ Xxx X. Xxxxxxx
---------------------------------
Xxx X. Xxxxxxx, Co-Trustee
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