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EXHIBIT 10.9
DOMINION TITLE OF DALLAS, L.L.C.
MEMBERS' AGREEMENT
THIS
AGREEMENT, dated JANUARY 21, 2000, is among STEWART TITLE
DALLAS,
INC., a Texas corporation ("STEWART") and ASHTON DALLAS
RESIDENTIAL, L.L.C., a
Texas limited liability company ("ASHTON") (all hereinafter
sometimes
collectively called the "Members" and singly called "Member"), and
DOMINION
TITLE OF DALLAS, L.L.C., a Texas limited liability company (the
"Company").
WHEREAS,
the Members are the owners of all of the outstanding ownership
interests ("Membership Interest") of the Company, as follows :
<TABLE>
<CAPTION>
Member
Membership Interest
----------
-------------------
<S>
<C>
STEWART
51%
ASHTON
49%
</TABLE>
WHEREAS,
the Members desire to enter into certain agreements relating to
the ownership, voting and transferability of the Membership
Interest;
NOW,
THEREFORE, in consideration of the mutual promises and other
valuable
considerations, the Members and the Company agree as follows:
ARTICLE I.
RESTRICTIONS ON TRANSFERABILITY
1.1
General Restrictions on Transferability of Membership Interest.
The
following restrictions shall apply to all Membership Interests of
the Company.
These restrictions are in addition to any restrictions in the
Regulations
("Regulations") of the Company.
1.2
Specific Restriction on Transferability. Except as hereinafter
provided in this Agreement and the Regulations, no Member may make,
cause or
allow any transfer, sale, passage, assignment, gift, exchange,
distribution,
transfer, pledge, mortgage, encumbrance or any other disposition of
its
Membership Interest whatsoever, whether voluntarily or
involuntarily or directly
or indirectly, except with the written consent of the Company and
all other
Members. If such consent is given, it shall also be deemed to
constitute a vote
of all of the remaining Members to continue the business of the
Company.
Provided, however, that each of Stewart and Ashton shall have the
right to
transfer its Membership Interest to its parent company, or to any
subsidiary or
affiliated company which is controlled by Stewart and/or its parent
company, or
Ashton and/or its parent company, respectively, without
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triggering any of the provisions of this Agreement as long as such
transferee
corporation executes and agrees to be bound by the provisions of
this Member's
Agreement. Notwithstanding the foregoing, in the event:
(a)
a Member
receives a bona fide offer in writing to purchase any
Membership Interest owned by such Member or any part thereof
which
such Member is willing to accept;
(b)
a Member entity
is dissolved, liquidated or merged where the Member
entity is not the surviving entity;
(c)
the controlling
shareholder(s) or member(s) of a Member changes;
(d)
any Membership
Interest owned by a Member becomes subject to an
involuntary disposition, including, without limitation, any
disposition pursuant to or by reason of or under judicial
order,
legal or equitable process, execution, attachment or enforcement
of
a pledge, trust or other security interest or encumbrance; or
(e)
a Member (i)
files an application for, or consents to, the
appointment of a trustee of such Member's assets, (ii) files a
voluntary petition in bankruptcy or files a pleading in any court
of
record admitting in writing such Member's inability to pay debts
as
they come due, (iii) makes a general assignment for the benefit
of
creditors, (iv) files an answer admitting the material
allegations
of, consents to, or defaults in answering a bankruptcy petition
filed against such Member in any bankruptcy proceeding or (v) has
an
order, judgment or decree by any court of competent
jurisdiction
entered against such Member adjudicating such Member as bankrupt
or
appointing a trustee of such Member's assets and such order,
judgment or decree is not dismissed within ninety (90) days
after
its
issuance;
and all the remaining Members consent to continue the business of
the Company,
then, unless the Company and the other Members agree in writing
otherwise, all
of the Membership Interest owned by such Member, or that portion of
the
Membership Interest so affected, shall be automatically subject to
the purchase
options as provided in this Agreement, any written notification
requirement is
waived, and there is an automatic requirement to offer to sell such
Membership
Interest upon the happening of the above described events. Failure
to send any
written notification does not terminate or invalidate the automatic
requirement
to offer to sell such Membership Interest as provided in this
Agreement.
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1.3
Requirements of Offer. If any Member or its legal representative
is
required to extend the purchase option as provided in this
Agreement, such
Member or its legal representative (hereinafter referred to as the
"Offering
Member") shall offer in writing to sell such Membership Interest to
the Company
by notice to the Secretary of the Company.
1.4 Offer
to the Company. On or before the expiration of thirty (30) days
from the date of receipt by the Company of the aforesaid
notification, the
Secretary of the Company shall certify in writing to the Offering
Member the
percentage, if any, of such Offering Member's Membership Interest
which has been
elected to be purchased by the Company pursuant to the provisions
hereof, and
the Secretary shall deliver to the Offering Member the total
purchase price
thereof, at which time the sale of such Membership Interest and all
rights
incident to ownership thereof shall be deemed to occur. The
Secretary shall
thereupon cause proper notation to be made in the books and records
of the
Company.
1.5 Offer
to the Other Members. If the Company elects not to purchase all
or any part of the Membership Interest of the Offering Member in
accordance with
the terms of this Agreement, on or before thirty (30) days after
receipt of the
written offer, the Secretary of the Company shall, by writing
deposited in the
United States mails with postage prepaid, notify each of the other
Members
(other than the Offering Member) as of the date of the receipt of
notice by the
Secretary that the Offering Member has offered to sell some or all
of its
Membership Interest, pursuant to the provisions of this Agreement,
stating the
name of such Offering Member and the Membership Interest available
for purchase
by the other Members. The other Members shall have thirty (30) days
from the
date of mailing of such notification by the Secretary within which
to exercise
their right to purchase all or any part of the offered Membership
Interest that
they may purchase pursuant to the provisions of this Agreement.
1.6
Consummation of Sales. At the expiration of thirty (30) days from
the
date of sending the aforesaid notification to said Members, the
Secretary of the
Company shall then certify in writing to the Offering Member the
percentage, if
any, of such Offering Member's Membership Interest which has been
elected to be
purchased by the other Members pursuant to the provisions hereof,
and the
Secretary shall deliver to the Offering Member the total purchase
price thereof,
at which time the sale of said Membership Interest and all rights
incident to
ownership thereof shall deem to occur. The Secretary shall
thereupon cause
proper notation to be made in the books of the Company to reflect
such transfer.
1.7
Failure to Purchase Entire Membership Interest Offered. If,
upon
completion of the procedure described above, all of the Membership
Interest has
not been sold, the Offering Member shall
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have the right for a period of thirty (30) days after the
expiration of the time
periods heretofore described to transfer any remaining unsold
Membership
Interest that had theretofore been offered pursuant to the
provisions hereof.
Notwithstanding the preceding sentence, no sale, transfer, pledge,
assignment or
other disposition shall be effective unless and until the
transferee executes
and delivers to the Company an agreement in respect of the
Membership Interest
to be transferred to such transferee, which agreement shall be
substantially in
the form of this Agreement with such modifications as the Company
determines to
be appropriate. If the ownership of the offered Membership Interest
is not
transferred to a third party before the expiration of the thirty
(30) day
period, such Membership Interest shall again be subject to the
restrictions of
transferability provided in this Agreement.
ARTICLE II.
PURCHASE PRICE
2.1
Purchase Price Under Section 1.2(a) - Bona Fide Offers. In
connection
with any purchase of any Membership Interest owned by a Member
(hereinafter
called the "Selling Member") by the Company or any other Members
pursuant to
this Agreement as a result of an offer made to the Company or such
other Members
arising out of a bona fide offer in writing received by the Selling
Member (as
described in Section 1.2(a) hereof), the price which the Company or
such other
Members shall pay for such Membership Interest shall be the same
price that the
bona fide offeror for such Membership Interest shall have so
offered for such
Membership Interest. The purchase price determined pursuant to the
provisions of
this Section 2.1 shall be paid on the same terms as the bona fide
offer.
2.2
Purchase Price - Generally. In connection with any other purchase
of a
Membership Interest owned by any Selling Member, by the Company or
any other
Member under Sections 1.2(b)-(e), the purchase price
