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SCHEDULE 10.20
FIRST AMENDMENT
TO
MELVIN AND IRVING SCHOTTENSTEIN
FAMILY AGREEMENT
THIS FIRST AMENDMENT TO THE MELVIN AND IRVING SCHOTTENSTEIN FAMILY
AGREEMENT (the "First Amendment") is made and entered into as of the 17th day of
March, 1997, among the parties to the Melvin and Irving Schottenstein Family
Agreement dated as of October 11, 1993 (the "Family Agreement"), including, for
the limited purposes set forth therein, M/I Schottenstein Homes, Inc., an Ohio
corporation (the "M/I Ohio").
Capitalized terms used in this First Amendment shall have the meanings
assigned thereto in the Family Agreement.
RECITAL
WHEREAS, in order to fully accommodate, and in connection with, M/I
Ohio's repurchase of 500,000 COMMON SHARES from certain of MEL'S FAMILY
SHAREHOLDERS and LENORE'S resignation from the Board of Directors of M/I Ohio,
the parties hereto desire to amend the Family Agreement;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties do hereby agree as
follows:
Section 1. AMENDMENT OF SECTION 3.3.4 OF THE FAMILY AGREEMENT. Section
3.3.4 of the Family Agreement is hereby amended to delete the text of subsection
(a) therein and to replace such text with the words: "[INTENTIONALLY OMITTED]."
Notwithstanding the foregoing, the parties hereto acknowledge and agree that the
provisions of subsections (b), (c), (d) and (e) of Section 3.3.4 shall remain in
full force and effect and shall continue to be binding upon the parties to the
Family Agreement.
Section 2. AMENDMENT OF THE FAMILY AGREEMENT TO DELETE SECTION 3.5. The
Family Agreement is hereby amended to delete Section 3.5 therein in its
entirety. The parties hereto acknowledge and agree that LENORE'S seat on the
Executive Committee of the Board of Directors of the Company shall be filled by
the Board of Directors without regard to the Family Agreement. The parties
hereto further acknowledge and agree that the Board of Directors may (i)
constitute any committee of the Board of Directors, (ii) reconstitute any
committee of the Board of Directors, (iii) appoint the directors of the various
committees and/or (iv) remove one or more directors from a committee of the
Board of Directors, in each case, as the Board of Directors may determine in its
sole discretion without regard to the Family Agreement and subject only to the
provisions of M/I Ohio's Amended and Restated Articles of Incorporation and
Regulations and to applicable law.
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Section 3. FACILITATION OF COMMON SHARE REPURCHASE. Each of the parties
hereto agree that, notwithstanding anything in the Family Agreement to the
contrary, M/I Ohio may repurchase from MEL'S FAMILY SHAREHOLDERS, and MEL'S
FAMILY SHAREHOLDERS may sell to M/I Ohio, up to 500,000 COMMON SHARES on the
date hereof at a repurchase price of $10.50 per COMMON SHARE.
Section 4. WAIVER OF RIGHTS OF FIRST AND SECOND REFUSAL. Each of the
parties hereto waives any and all rights of first and second refusal, and notice
thereof, pursuant to Section 6 of the Family Agreement on a one time basis,
solely in connection with the repurchase by M/I Ohio of COMMON SHARES from one
or more of MEL'S FAMILY SHAREHOLDERS as contemplated by Section 3 of this First
Amendment. The parties hereto acknowledge and agree that, except as set forth in
the immediately preceding sentence, nothing herein shall constitute, or shall be
deemed to constitute, a waiver by any party to the Family Agreement of its
rights of first and second refusal pursuant to Section 6 of the Family
Agreement.
Section 5. SECURITIES LAWS COMPLIANCE. It is the intention of the
parties hereto that the repurchase of COMMON SHARES from one or more of MEL'S
FAMILY SHAREHOLDERS contemplated by Section 3 of this First Amendment comply
with all applicable federal and state securities laws, and each of the parties
hereto, including for such purpose M/I Ohio, agrees to take all actions
reasonably necessary and to cooperate in good faith to ensure such compliance to
make any all filings required under all applicable federal and state securities
laws.
Section 6. FURTHER ASSURANCES. Each of the parties hereto agrees, at
any time and from time to time, upon the reasonable request of any other party
hereto, 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 First
Amendment.
Section 7. BINDING EFFECT. This First Amendment shall be binding upon
and inure to the benefit of the PARTIES and their respective heirs, executors
and permitted assigns.
Section 8. JOINT PREPARATION. This First Amendment shall be deemed to
have been prepared jointly by the parties hereto, and any uncertainty or
ambiguity existing herein shall not be interpreted against any PARTY, but shall
be interpreted according to the rules for the interpretation of arm's length
agreements.
Section 9. GOVERNING LAW; VENUE. This First Amendment shall be
construed in accordance with Ohio law. The parties hereto agree that any action
concerning, relating to, or involving this First Amendment must be venued in
Franklin County, Ohio, and the parties hereto irrevocably consent to the
jurisdiction of the courts in Franklin County, Ohio.
Section 10. COUNTERPARTS. This First Amendment may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the FAMILY REPRESENTATIVES, on behalf of the
PARTIES, have entered into this First Amendment pursuant to Section 10.2.1 of
the Family Agreement as of the date and year first above written.
/s/ IRVING E. SCHOTTENSTEIN /s/ Lenore S. Sagner
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Irving E. Schottenstein Lenore S. Sagner
Family Representative Family Representative
Acknowledged and agreed:
M/I SCHOTTENSTEIN HOMES, INC.
By: /s/ IRVING E. SCHOTTENSTEIN
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Irving E. Schottenstein
Chief Executive Officer
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