LLC Interest Purchase Agreement

Exhibit 10.1


LLC INTEREST PURCHASE AGREEMENT

by and among

ALFA CORPORATION

and


JOHN CHARLES RUSSELL,


CAROL LYNN RUSSELL,


THE TRUSTS IDENTIFIED ON EXHIBIT A HERETO,


THE COMMUNITY FOUNDATION OF MIDDLE TENNESSEE, INC.


and


THE VISION INSURANCE GROUP, LLC


Dated as of August 30, 2004

TABLE OF CONTENTS


ARTICLE 1 DEFINITIONS 5

SECTION 1.1 CERTAIN DEFINITIONS 5

SECTION 1.2 INDEX OF CERTAIN DEFINED TERMS 10

ARTICLE 2 PURCHASE AND SALE OF INTERESTS 12

SECTION 2.1 PURCHASE AND SALE OF INTERESTS 12

SECTION 2.2 PURCHASE PRICE 12

SECTION 2.3 EARNOUT PAYMENTS 13

SECTION 2.4 ACCOUNTS RECEIVABLE 15

SECTION 2.5 CLOSING DATE AND POST-CLOSING NET EQUITY SETTLEMENT 17

SECTION 2.6 PLACE AND DATE OF CLOSING; CLOSING DELIVERIES 19

SECTION 2.7 WIRE TRANSFERS; WITHHOLDING TAXES 20

ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLERS AND VISION 20

SECTION 3.1 ORGANIZATION, STANDING AND POWER 20

SECTION 3.2 AUTHORITY 21

SECTION 3.3 GOVERNMENTAL AUTHORIZATION 21

SECTION 3.4 NON-CONTRAVENTION 21

SECTION 3.5 OWNERSHIP OF INTERESTS 22

SECTION 3.6 CAPITALIZATION OF TEXAS MGA 22

SECTION 3.7 FINANCIAL STATEMENTS; ABSENCE OF UNDISCLOSED LIABILITIES 22

SECTION 3.8 ABSENCE OF CERTAIN CHANGES 23

SECTION 3.9 MATERIAL CONTRACTS 24

SECTION 3.10 LITIGATION 25

SECTION 3.11 COMPLIANCE WITH LAWS; INSURANCE MATTERS 25

SECTION 3.12 ENVIRONMENTAL COMPLIANCE 27

SECTION 3.13 PERSONAL PROPERTY 27

SECTION 3.14 REAL PROPERTY 27

SECTION 3.15 INTELLECTUAL PROPERTY 28

SECTION 3.16 EMPLOYEE BENEFIT PLANS; ERISA 29

SECTION 3.17 LABOR AND EMPLOYMENT MATTERS 31

SECTION 3.18 TAX MATTERS 32

SECTION 3.19 OPERATIONS INSURANCE 33

SECTION 3.20 BROKER, FINANCIAL ADVISER 34

SECTION 3.21 DISCLOSURE 34

SECTION 3.22 FOUNDATION' S REPRESENTATIONS 34

ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF BUYER 35

SECTION 4.1 ORGANIZATION, STANDING AND POWER 35

SECTION 4.2 AUTHORITY 35

SECTION 4.3 GOVERNMENTAL AUTHORIZATION 35

SECTION 4.4 NON-CONTRAVENTION 35

SECTION 4.5 INVESTMENT INTENT 36

SECTION 4.6 SUFFICIENT FUNDS 36

SECTION 4.7 BUYER SHARES 36

SECTION 4.8 BUYER SEC FILINGS 36

ARTICLE 5 COVENANTS 37

SECTION 5.1 CONDUCT OF BUSINESS 37

SECTION 5.2 EXCLUSIVITY 38

SECTION 5.3 COOPERATION 38 SECTION 5.4 POST-CLOSING ACCESS 39

SECTION 5.5 FILING; OTHER ACTIONS; NOTIFICATIONS 39

SECTION 5.6 FURTHER ASSURANCES 40

SECTION 5.7 EXPENSES 40

SECTION 5.8 TAX MATTERS 40

SECTION 5.9 DISCLOSURE SUPPLEMENTS 42

SECTION 5.10 CERTAIN EMPLOYEE MATTERS 42

SECTION 5.11 PRESS RELEASES AND PUBLIC ANNOUNCEMENTS 44

SECTION 5.12 EARNOUT FRUSTRATION 44

SECTION 5.13 BUYER NONRECRUITMENT COVENANT 44

SECTION 5.14 JOHN RUSSELL NONRECRUITMENT, NONSOLICITATION AND NONCOMPETITION 45

SECTION 5.15 DORINCO REINSURANCE SETTLEMENT; PERSONAL GUARANTEES 46

ARTICLE 6 CONDITIONS TO CLOSING 47

SECTION 6.1 CONDITIONS TO OBLIGATIONS OF SELLERS 47

SECTION 6.2 CONDITIONS TO OBLIGATIONS OF BUYER 48

ARTICLE 7 TERMINATION 49

SECTION 7.1 TERMINATION BY MUTUAL CONSENT 49

SECTION 7.2 TERMINATION BY EITHER SELLERS OR BUYER 49

SECTION 7.3 TERMINATION BY SELLERS 49

SECTION 7.4 TERMINATION BY BUYER 50

SECTION 7.5 EFFECT OF TERMINATION AND ABANDONMENT 50

ARTICLE 8 INDEMNIFICATION 50

SECTION 8.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS 50

SECTION 8.2 OBLIGATION OF SELLERS TO INDEMNIFY 51

SECTION 8.3 OBLIGATION OF BUYER TO INDEMNIFY 52

SECTION 8.4 PROCEDURE FOR INDEMNIFICATION CLAIMS 53

SECTION 8.5 INSURANCE; SUBROGATION 54

SECTION 8.6 BUYER' S RIGHTS OF SETOFF 55

SECTION 8.7 SOLE REMEDY 55

ARTICLE 9 MISCELLANEOUS 55

SECTION 9.1 ARBITRATION 55

SECTION 9.2 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES 56

SECTION 9.3 AMENDMENTS 56

SECTION 9.4 WAIVERS 56

SECTION 9.5 ASSIGNMENT 57

SECTION 9.6 NOTICES 57

SECTION 9.7 GOVERNING LAW 59

SECTION 9.8 COUNTERPARTS 59

SECTION 9.9 CAPTIONS 59

SECTION 9.10 INTERPRETATIONS 59

SECTION 9.11 SEVERABILITY 59

SECTION 9.12 SELLERS REPRESENTATIVE 60

EXHIBITS

Exhibit A Vision' s Members Exhibit B Revenue Earnout Payment Formula and Terms Exhibit C EBITDA Earnout Payment Formula and Terms Exhibit D Monthly Treaty Reports Exhibit E Form of Subscription Agreement Exhibit F Form of John Russell Employment Agreement Exhibit G Form of Thomas Russell Employment Agreement Exhibit H Form of David Tetzlaff Employment Agreement Exhibit I Form of Litigation Indemnification Agreement Exhibit J Certain Dispositions and Assignments Exhibit K Bonus Agreements SELLERS DISCLOSURE MEMORANDUM Section 3.1 Vision Qualifications to do Business Section 3.3 Governmental Authorizations Section 3.4 Non-Contravention Section 3.5 Ownership of Interests Section 3.7(a) Vision Financial Statements Section 3.7(b) Undisclosed Liabilities Section 3.8 Changes Since December 31, 2003 Section 3.9 Material Contracts Section 3.10 Litigation Section 3.11 Permits; Insurance Matters Section 3.13 Personal Property Section 3.14 Real Property Section 3.15 Intellectual Property Section 3.16 Employee Benefit Plans Section 3.17 Labor Matters Section 3.18 Tax Matters Section 3.19 Operations Insurance Section 3.20 Broker, Financial Advisor Section 5.10 Personal Leave Policy Section 5.15 Personal Guarantees Section 6.2(j) Consents Section 8.2 Certain Litigation

LLC INTEREST PURCHASE AGREEMENT

THIS LLC INTEREST PURCHASE AGREEMENT (this " Agreement" ), dated as of August 30, 2004, is entered into by and among ALFA CORPORATION, a Delaware corporation (" Buyer" ), JOHN CHARLES RUSSELL, an individual resident of the State of Tennessee (" John Russell" ), CAROL LYNN RUSSELL, an individual resident of the State of Tennessee (" Carol Russell" ), THE TRUSTS IDENTIFIED ON EXHIBIT A HERETO (the " Seller Trusts" ), THE COMMUNITY FOUNDATION OF MIDDLE TENNESSEE, INC., a Tennessee not-for-profit corporation (the " Foundation" ) (John Russell, Carol Russell, the Seller Trusts and the Foundation are, collectively, " Sellers" ), and THE VISION INSURANCE GROUP, LLC, a Tennessee limited liability company (" Vision" ).


BACKGROUND


Sellers collectively own 100% of the limited liability company interests of Vision (the " Interests" ), with their respective membership percentages being set forth on Exhibit A hereto. In addition, John Russell owns 100% of the issued and outstanding capital stock of Vision MGA of Texas, Inc., a Texas corporation (" Texas MGA" ), which was formed solely for the purpose of performing Vision' s business in Texas pursuant to regulatory requirements. The parties desire that John Russell cause Texas MGA to be merged with and into Vision prior to the Closing contemplated by this Agreement. The parties also desire that Sellers sell to Buyer, and Buyer purchase from Sellers, the Interests at Closing in accordance with the terms and conditions of this Agreement.


AGREEMENT


NOW, THEREFORE , in consideration of the mutual promises and covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:

ARTICLE 1

DEFINITIONS


Section 1.1 Certain Definitions . The following capitalized terms have the respective meanings set forth below:

" Affiliate" means, with respect to a specified Person, any other Person controlling, controlled by or under common control with the specified Person.


" American Safety Agreement" means that certain Program Management and Underwriting Agreement for Personal Lines Private Passenger Automobile Insurance, dated March 1, 2000, by and between American Safety Casualty Insurance Company and Vision.


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" Annual Statement" means the form of annual statement for property and casualty insurance companies prescribed by the National Association of Insurance Commissioners, or such comparable form that the applicable insurance carrier is required to use in lieu thereof by the insurance regulatory authority in the state of such insurance carrier' s domicile.


" Average Buyer Share Price" means the average per share closing price of Buyer Common Stock on the Nasdaq National Market for the ten Business Days ending on the third Business Day preceding (and not counting) the Closing Date.

" AVIC" means Alfa Vision Insurance Corporation, an Alabama corporation and wholly owned subsidiary of Buyer, which was formed for the purpose of engaging in the Business with Vision after the Closing.

" AVIC Licenses" means certificates of authority for AVIC to engage in the business of automobile insurance in the following states: Arkansas, Florida, Indiana, Kentucky, Missouri, Ohio, Tennessee and Virginia; and qualification to transact business as a reinsurer in the state of Texas.


" Business" means the business of marketing, underwriting and administering insurance policies as conducted by Vision and Texas MGA, including the services performed by Vision and Texas MGA on behalf of insurance carriers.

" Business Day" means any day other than a Saturday, a Sunday, a day on which banking institutions in the State of Delaware are permitted or obligated by Law to be closed, or a day on which the Nasdaq National Market is not open for trading.

" Buyer Common Stock" means Buyer' s Common Stock, $1.00 par value per share.

" Buyer Material Adverse Effect" means any change, effect, matter, event, occurrence or circumstance, individually or collectively, that has or would reasonably be expected to have a material adverse effect on (i) the business, assets or properties (including intangible assets or properties), liabilities, results of operations or financial condition of Buyer and its Affiliates taken as a whole or (ii) the ability of Buyer to perform its obligations under this Agreement, other than such changes, effects, matters, events, occurrences or circumstances generally affecting the United States economy.


" Closing" means the consummation of the transactions contemplated by this Agreement.

" Closing Date" means the date on which the Closing actually occurs.


" Closing Date Employee" means each individual who is employed by Vision immediately prior to the Closing, after any terminations required pursuant to Section 5.10(a).


" Code" means the Internal Revenue Code of 1986, as amended. Any citation to a provision of the Code includes a citation to any successor provision.

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" Contract" means any written or oral agreement, arrangement, commitment, contract, indenture, instrument, lease or obligation of any kind or character to which any Person is a party or that is binding on any Person or its assets or business.


" Corporate Overhead" means any corporate overhead or expenses of Buyer, including legal and accounting fees, allocated or charged to Vision, other than charges for services that are actually used by Vision. By way of example, and not by limitation, Corporate Overhead will not include reasonable charges to Vision for services performed by employees of Alfa Mutual Insurance Company who were employees of Vision prior to the Closing, or reasonable charges to Vision for financial accounting and audit services to the extent that Vision receives these services from or through Buyer rather than Vision purchasing them from unaffiliated sources. The intent of the parties is that Corporate Overhead will not include charges that Vision pays to Buyer or its other Affiliates for services that Vision would have performed for itself or purchased from other sources had Vision not been acquired by Buyer.


" Environmental Laws" means any federal, state or local laws, rules or regulations, and any orders or decrees, relating to the regulation or protection of the natural environment or to releases or threatened releases of Hazardous Materials into the soil, land surface or subsurface strata, surface waters (including navigable waters, ocean waters, streams, ponds, drainage basins, and wetlands), ground waters, drinking water supply, stream sediments, ambient air (including indoor air) and any other environmental medium or natural resource.


" ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and all final and temporary regulations thereunder.


" Exchange Act" means the Securities Exchange Act of 1934, as amended.

" GAAP" means United States generally accepted accounting principles as in effect from time to time, consistently applied for all relevant time periods, applying accrual basis accounting.

" Governmental Authority" means any federal, state, county, local, foreign or other governmental or public agency, instrumentality, commission, authority, board or body.


" Hazardous Materials" means any waste or other substance that is listed, defined, designated or classified as, or otherwise determined to be, hazardous, radioactive or toxic or a pollutant or a contaminant under or pursuant to any Environmental Law, including any admixture or solution thereof, and specifically including petroleum and all derivatives thereof or synthetic substitutes therefor and asbestos or asbestos-containing materials.

" Interests" means 100% of the limited liability company membership interests of Vision.


" Knowledge" means, with respect to Sellers, those facts that are known or should reasonably have been known after due inquiry by each of the following individuals: John Russell, Carol Russell, Thomas Russell, David Tetzlaff, Joel Wit and Shannon Balmer.


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" Law" means any domestic or foreign federal, state or local statute, law, ordinance, rule, administrative interpretation, regulation, order, judgment or decree applicable to the parties hereto.

" Lien" means any claim, charge, conditional sale agreement, default of title, easement, encroachment, encumbrance, hypothecation, infringement, lien, mortgage, pledge, reservation, security interest or other security arrangement, on or with respect to any asset or property.

" Litigation" means all suits, actions, causes of action (whether in law or at equity), arbitrations, claims, complaints, administrative and similar proceedings, and criminal prosecutions and investigations.


" Loss" means any loss, damage, liability, claim, cost or expense, including, but not limited to, reasonable attorneys' fees.


" MSC" means Mutual Service Casualty Insurance Company and its Affiliates, including Modern Service Insurance Company.


" MSC Agreement" means that certain Automobile Insurance Service Agreement dated October 13, 1999, by and between Vision and MSC, as amended on October 10, 2001.

" 90-Day Treasury Rate" means the annual yield rate on the Closing Date of actively traded U.S. Treasury securities having a remaining duration to maturity of three months, as such rate is published under " Treasury Constant Maturities" in Federal Reserve Statistical Release H.15(519).


" Order" means any administrative decision or award, decree, injunction, judgment, order, quasi-judicial decision or award, ruling, or writ of any Governmental Authority, or any binding determination pursuant to arbitration or other similar alternative dispute resolution forum.

" Permits" means all licenses, permits, orders, approvals, registrations, authorizations, qualifications and filings with and under all federal, state, local or foreign Laws or Governmental Authorities.

" Permitted Liens" means (i) Liens for Taxes not yet due and payable, (ii) any minor imperfection of title that does not materially interfere with the present use or the continuation of such present use in the Business, (iii) materialmen' s or similar liens or obligations arising in the ordinary course of business securing accrued obligations not yet due and payable, (iv) purchase money Liens arising in the ordinary course of business, and (v) Liens reflected in the Vision Audited Statements.

" Person" means any individual, corporation, partnership, limited liability company, firm, joint venture, association, joint-stock company, trust, estate, unincorporated organization, governmental, judicial or regulatory body, business unit, division or other entity.


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" SAP" means the statutory accounting practices prescribed or permitted by the insurance regulatory authority in the state of domicile of the applicable insurance carrier, consistently applied for all relevant time periods.

" Securities Act" means the Securities Act of 1933, as amended.


" SEC" means the United States Securities and Exchange Commission.

" Sellers Disclosure Memorandum" means the written information entitled " Sellers Disclosure Memorandum" delivered to Buyer prior to the date of this Agreement and referencing specific Sections of this Agreement. Any matter disclosed by Sellers therein with respect to one Section shall be deemed disclosed with respect to all other Sections, provided that the relevance to the Section from which any such matter is omitted is apparent from the disclosure with respect to the Section for which such matter is included.

" Sellers Material Adverse Effect" means any change, effect, matter, event, occurrence or circumstance, individually or collectively, that has or would reasonably be expected to have a material adverse effect on (i) the business, assets or properties (including intangible assets or properties), liabilities, results of operations or financial condition of Vision and Texas MGA taken as a whole or (ii) the ability of Sellers to perform their obligations under this Agreement, other than such changes, effects, matters, events, occurrences or circumstances specifically referred to in Sellers Disclosure Memorandum or generally affecting the United States economy.

" Sellers Representative" means John Russell. In the event of John Russell' s death or a disability that prevents him from serving as Sellers Representative, his estate or legal representative shall on a timely basis select one individual, reasonably acceptable to Buyer, to serve as Sellers Representative.


" Tax" means any federal, state, county, local or foreign tax, charge, fee, levy, impost, duty or other assessment, including income, gross receipts, premium, employment, payroll, withholding, excise, sales, gains, transfer, recording, license, real and personal property, use and occupation, capital stock, franchise, registration, ad valorem, alternative or add-on minimum, estimated or other tax, assessment or governmental charge of any kind whatsoever, imposed or required to be withheld by and Governmental Authority, including any interest, penalties and additions imposed thereon or with respect thereto, and including liability for taxes of another person under Treas. Reg. Section 1.1502-6 or similar provision of state, local or foreign law, as a transferee or successor, by contract or otherwise.

" Tax Return" means any return, filing, questionnaire, information return or other document required to be filed, including requests for extensions of time, filings made with estimated tax payments, claims for refund and amended returns that may be filed, for any period with any taxing authority (whether domestic or foreign) in connection with any Tax (whether or not a payment is required to be made with respect to such filing).

" Texas MGA" means Vision MGA of Texas, Inc., a Texas corporation.


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" Underwriting Loss" means the amount (computed in accordance with SAP) includable on line 8 of the " Underwriting and Investment Exhibit Statement of Income" in the Annual Statement of AVIC or its applicable Affiliate calculated in a consistent manner, to the extent such amounts are directly related to the insurance policies sold by Vision or an agent under contract with Vision, and to the extent such amount is a negative number.

" Vision EBITDA" means, for each applicable time period, (i) Vision Fee Income, less (ii) all of Vision' s expenses other than Corporate Overhead, and before reductions for interest, income taxes, depreciation and amortization, computed in accordance with GAAP, and plus or minus (iii) the net underwriting gain or loss of AVIC or any of its Affiliates directly related to the insurance policies sold by Vision or an agent under contract with Vision, computed in accordance with SAP and includable within the amounts on line 8 of the " Underwriting and Investment Exhibit Statement of Income" in AVIC' s or its applicable Affiliate' s Annual Statement.


" Vision Fee Income" means, for each applicable time period, all net commissions and fees due and payable to Vision in the ordinary course of its business of the type that have generally been included in the Vision Audited Statements as " Commission and fee income from managing general agent services, net of estimated return commissions," including, but not limited to, service fees, renewal fees, installment fees, filing fees, reinstatement fees, NSF fees, " convenience" fees, late fees, " theft prevention" fees, endorsement fees, cancellation fees, policy fees, agent' s fee PIP, re-write fees, credit card usage fees, and motorists protection plan income, all as computed in accordance with GAAP.


" Vision Revenues" means the sum of (i) Vision Fee Income excluding all commissions plus (ii) the direct premiums written by AVIC or any of its Affiliates, or any other insurance carriers doing business with Vision, for the applicable time period that are derived solely from insurance policies sold by Vision or an agent under contract with Vision, computed in accordance with SAP and includable within the amounts on line 34, column 1 of the " Underwriting and Investment Exhibit, Part 1B Premiums Written" in the applicable insurance carrier' s Annual Statement.

Section 1.2 Index of Certain Defined Terms . The capitalized terms set forth below are defined in the referenced sections:

Term

Section Acquisition/Marketing Transaction 5.2 Actuarial Reports 3.11(e) Agreement 1 st Paragraph Alfa Companies 5.14(a) Allocation Schedule 2.2(d) Annual Earnout Schedule 2.3(g)(i) Asserted Liability 8.4(a) Bonus Agreements 5.10(d) Broker Agreement 5.7(b) Business Activities 5.14(c)


10 Business Employees 3.17 Buyer 1 st Paragraph Buyer Indemnitees 8.2(a) Buyer SEC Documents 4.8 Buyer Shares 2.2(b)(ii) Carol Russell 1 st Paragraph Cash Portion 2.2(b)(i) Claims Notice 8.4(a) Closing Balance Sheet 2.5(b)(i) Closing Interim Statements 2.5(a) Contest Notice 8.4(b) David Tetzlaff Employment Agreement 2.6(b)(vi) Earnout Payments 2.3(b) Earnout Period 2.3(a) EBITDA Earnout Payment 2.3(b) ERISA Affiliate 3.16(b) Existing A/R LOC 2.4(a) Existing A/R 2.4(a) Final Net Members' Equity 2.5(b)(v) Foundation 1 st Paragraph Future Claims LOC 2.4(b)(ii) Indemnified Party 8.4(a) Indemnifying Party 8.4(a) Initial Purchase Price 2.2(a) Intellectual Property 3.15 Interim Net Members' Equity 2.5(a) Interim Statements 2.5(a) John Russell 1 st Paragraph John Russell Employment Agreement 2.6(b)(iv) June 30 Statements 3.7(a) Leased Real Property 3.14(b) Litigation Indemnification Agreement 2.6(b)(vii) Material Contracts 3.9(a) MSC and American Safety Claims 2.4(b)(iii)(1) MSC and American Safety Reimbursements 2.4(b)(iii)(1) Monthly Treaty Reports 2.4(b)(i) Owned Personal Property 3.13(b) Personal Guarantees 5.15(b) Personal Property Leases 3.13(a) Pre-Closing Tax Returns 5.8(a) Real Property Leases 3.14(b) Restricted Area 5.14(c) Revenue Earnout Payment 2.3(b) Seller Indemnitees 8.3(a) Seller Indemnitors 8.2(a) Sellers 1 st Paragraph


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Seller Trusts 1 st Paragraph

Special Bonuses 5.10(d)

Straddle Period Tax Returns 5.8(b)(i)

Subscription Agreement 2.6(b)(iii)

Termination Date 7.2

Termination Fee 7.5(a)

Texas Merger 5.1(a)

Thomas Russell Employment Agreement 2.6(b)(v)

Umpire 9.1(a)

Vision 1 st Paragraph

Vision Audited Statements 3.7(a)

Vision Benefit Plans 3.16(b)

Vision ERISA Plan 3.16(b)

Vision Financial Statements 3.7(a)


ARTICLE 2

PURCHASE AND SALE OF INTERESTS

Section 2.1 Purchase and Sale of Interests . On the Closing Date, Sellers shall sell to Buyer, and Buyer shall purchase from Sellers, the Interests, free and clear of all Liens.


Section 2.2 Purchase Price .


(a) Amount . The aggregate consideration for the Interests shall be the sum of (i) Twenty Million Dollars ($20,000,000), subject to adjustment as provided in Section 2.5, payable at Closing (the " Initial Purchase Price" ), plus (ii) the amount of Earnout Payments, if any, that may be payable after Closing in accordance with Section 2.3.


(b) Payment of Initial Purchase Price . Buyer shall pay the Initial Purchase Price to Sellers on the Closing Date as follows:


(i) Cash . Fifteen Million Dollars ($15,000,000), subject to adjustment as provided in Section 2.5, shall be paid in cash (the " Cash Portion" ).


(ii) Stock . Five Million Dollars ($5,000,000) shall be paid by Buyer' s delivery to Sellers of that aggregate number of shares of Buyer Common Stock equal to $5,000,000 divided by the Average Buyer Share Price (the " Buyer Shares" ). Notwithstanding the foregoing, if the Average Buyer Share Price is less than Thirteen Dollars ($13.00), Buyer may elect to pay Sellers all or any portion of the $5,000,000 in cash at Closing in lieu of delivering that amount of Buyer Shares.


(c) Allocation of Payments Among Sellers . The Initial Purchase Price, and any Earnout Payments that may become due, shall be paid to Sellers in accordance with the allocations set forth on Exhibit A .

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(d) Allocation of Purchase Price for Tax Purposes . All amounts constituting consideration within the meaning of, and for the purposes of, Section 1060 of the Code and the regulations thereunder shall be allocated among the assets of Vision, including the assets acquired from Texas MGA, and any other rights acquired by Buyer hereunder, as applicable, in the manner required by Section 1060 of the Code and the regulations thereunder and all other applicable Laws. Within sixty calendar days after the Closing Date, Buyer shall provide Sellers with the schedule allocating all such amounts as provided herein (the " Allocation Schedule" ). Buyer will revise the Allocation Schedule and deliver it to Sellers to the extent necessary to reflect the Earnout Payments and any other post-Closing payments made pursuant to or in connection with this Agreement. Each of the parties hereto agrees to report consistently with the Allocation Schedule for all Tax purposes, and not take any position inconsistent with the Allocation Schedule for any Tax purposes.

Section 2.3 Earnout Payments .

(a) Earnout Period . The " Earnout Period" shall commence on the Closing Date and end on December 31, ...