EXHIBIT 10.9
DOMINION TITLE OF DALLAS, L.L.C.
MEMBERS' AGREEMENT
THIS AGREEMENT, dated JANUARY 21, 2000, is among XXXXXXX TITLE DALLAS,
INC., a Texas corporation ("XXXXXXX") 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 :
Member Membership Interest
---------- -------------------
XXXXXXX 51%
ASHTON 49%
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 Xxxxxxx 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 Xxxxxxx and/or its parent company, or
Ashton and/or its parent company, respectively, without
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.
2
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
3
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 per percentage of
Membership Interest for such Membership Interest shall be the Fair Value of such
Membership Interest as defined in Section 2.4 below.
2.3 Determination Date. As used herein, "Determination Date" means, in
connection with any offer or any event which causes an offer for sale of the
Membership Interest owned by a Selling Member pursuant to this Agreement, the
date upon which the Selling Member or its legal representative delivers to the
Secretary of the Company notice of its offer in writing of such Membership
Interest, or if no such notice is delivered, the date of occurrence of the event
or the determination by the Managers of the Company of the existence of the
condition which subjects the Selling Member's Membership Interest to such
offer, as the case may be.
4
2.4 Determination and Payment of Purchase Price.
(a) Except as otherwise provided in Section 2.1 hereof, the purchase price
to be paid for the purchase of a Membership Interest of the Company pursuant to
this Agreement shall be determined from unaudited financial statements of the
Company at the date and for the period indicated in the foregoing provisions
hereof, prepared by the Company's independent public accountants in accordance
with generally accepted accounting principles consistently applied. "Fair Value"
of each percentage of Membership Interest shall be determined by multiplying the
average Net Pre-Tax Earnings per percentage of Membership Interest of the
Company for the completed full five (5) fiscal years immediately preceding the
exercise of the right of first refusal, by four (4). If the purchase price has
to be determined pursuant to this Section 2.4(a) before the expiration of five
(5) full fiscal years of the Company, then the Net Pre-Tax Earnings of the
Company shall be determined by adding the Net Pre-Tax Earnings of the Company
for each year prior to the Determination Date and dividing the total by the
number of actual full fiscal years lapsed; provided, however, that if the
Company shall be in the third or forth quarter of its current fiscal year at the
time the purchase price has to be determined pursuant to this Section 2.4(a),
the Net Pre-Tax Earnings for such most recent fiscal year shall be determined
(and used as the amount for one fiscal year in the above calculation) by
dividing the amount of the Net Pre-Tax Earnings for the current fiscal year (up
to and including the last complete month) by the number of complete months of
such fiscal year and multiplying such amount by twelve.
(b) "Net Pre-Tax Earnings" shall be calculated in accordance with
generally accepted accounting principles, consistently applied.
(c) Except as provided in Section 2.1 hereof, such purchase price shall be
payable, at the election of the purchaser of such Membership Interest, in cash
upon consummation of such purchase, or at least ten percent (10%) in cash upon
consummation of such purchase and the balance thereof evidenced by a promissory
note of such purchaser, payable to the seller of such Membership Interest of
such principal amount. Such promissory note shall be payable, at the election of
such purchaser, in up to five (5) equal annual installments of principal which
shall be due and payable on the succeeding anniversary dates of the making
thereof, and shall bear interest at the prime rate of interest published in the
Wall Street Journal, Southwest Edition, in effect on the applicable
Determination Date. Such promissory note, or any portion thereof, may be prepaid
without penalty.
5
ARTICLE III.
MAJOR DECISIONS
Subject to the additional requirements in Subsection (c) below, the
Company shall not undertake the following actions without an affirmative vote of
seventy percent (70%) or more of the Membership Interest of the Company:
(a) Distributions. Except as hereinafter provided in this Paragraph (a),
make any distribution, either directly or indirectly, and whether in
cash or property or an obligation of the Company. Notwithstanding the
foregoing, from time to time (but at least once each calendar month),
the Managers shall determine in their reasonable judgment to what
extent the Company's cash on hand exceeds its current and anticipated
needs, including, without limitation, for operating expenses for
thirty days, debt service, immediate capital expenditures and
reasonable contingency reserves. If such an excess exists, the
Mangers shall cause the Company to distribute to the members in the
same ratio as profits and losses of the Company, an amount in cash
equal to that excess. From time to time, the Managers also may cause
property of the Company other than cash to be distributed to the
members, which distribution must be made, in the same ratio as
profits and losses of the Company, and may be made subject to
existing liabilities and obligations. Immediately prior to such a
distribution, the capital accounts of the members shall be adjusted
as provided in Treas. Reg. Section. 1.704-1(b)(2)(iv)(f).
(b) Prohibition of Mergers, Sales of Assets, Etc. The Company will not,
and will not cause or permit any subsidiary to, (i) merge or
consolidate with another entity, (ii) sell, lease, exchange or
otherwise dispose of all or substantially all of its assets or (iii)
enter into or effect a recapitalization or reorganization.
(c) Amendment to Corporate Documents. The Company shall not amend its
Articles of Organization, Regulations or this Member's Agreement.
Provided, however, that amendments of Sections 5.4 (Additional
Contributions), 5.8 (Transfer and Assignability of Membership
Interest), 5.9 (Resignation of Member) and Article XI (Amendments)
of the Regulations and of Sections 1.1 (General Restrictions on
Transferability of Membership Interest) and 1.2 (Specific
Restriction) of this Members, Agreement require the consent of all
Members.
6
(d) Incurring Debt. The Company shall not borrow, mortgage any Company
assets, enter into any financing and/or credit facility agreement,
excluding trade accounts payable incurred in the ordinary course of
business, for an amount equal or superior to FIFTY THOUSAND AND
NO/100 DOLLARS ($50,000.00) in the aggregate in any one (1) year.
(e) Member Loans. The Company shall not borrow any funds from a Member
except pursuant to Section 5.5(a) of the Regulations.
(f) Underwriter. The Company shall not use any title underwriter other
than Xxxxxxx Title Guaranty Company.
(g) Title Examination Fee Agreements. The Company shall not enter into,
modify or terminate any title examination fee agreements with
Xxxxxxx or with any other title agents.
ARTICLE IV.
COVENANTS OF THE MEMBERS
The Members agree that for as long hereafter as any Member shall own a
Membership Interest:
(a) Access to Information. The Company shall give to each Member, such
Member's counsel, accountants and other representatives, access at
reasonable times during normal business hours to all of the
properties, books and records of the Company, and shall furnish each
such Member with such information concerning the Company as such
Member may reasonably request.
(b) Financial Statements and Budgets. The Company shall complete the
financial statements for each month within five (5) business days
after the end of such month and shall furnish them within fifteen
(15) business days after the end of each month to each member. The
financial statements shall be reviewed by the members on a quarterly
basis. The Company shall also prepare, and furnish to the members,
an annual budget, which shall be updated quarterly with regard to
the Company's progress against the budget.
(c) Business With Members. The Company shall be permitted to transact
business with any Member, provided the transaction is competitive
within the industry, and the Member receives no preferential
benefit.
7
ARTICLE V.
VOTING AGREEMENT
The Members agree to vote their membership interest in favor of:
(a) the election of a number of persons designated by Ashton equal to at
least 40% of the total number of managers of the Company; and
(b) The election of a number of persons designated by Xxxxxxx equal to the
remaining number of managers of the Company.
ARTICLE VI.
DISSOLUTION AND NON-COMPETITION
6.1 Dissolution. In addition to the events of dissolution set forth in
Section 10.1 of the Regulations of the Company, any Member may cause the
dissolution of the Company for any reason, after the Company has been in
existence for at least nine (9) months, by giving ninety (90) days' written
notice to the other Members at the addresses set forth below.
6.2 Non-Competition.
(a) Margin Below 20%. If Ashton elects to dissolve the Company as set
forth in Section 6.1 above and the Margin (as defined below) has been below
twenty percent (20%) for any four (4) of the immediately preceding eight (8)
consecutive months before the notice of dissolution is given, Ashton agrees not
to invest, directly or indirectly, in any title insurance company or title agent
in the Dallas - Fort Worth Metroplex for three (3) months after the dissolution
of the Company.
(b) Generally. If Ashton elects to dissolve the Company pursuant to
Section 6.1 and subsection 6.2(a) does not apply, Ashton agrees not to invest,
directly or indirectly, in any title insurance company or title agent in the
Dallas - Fort Worth Metroplex for three (3) months after the dissolution of the
Company.
(c) Dissolution by Xxxxxxx. The foregoing non-compete provisions shall not
apply in the event Xxxxxxx elects to cause the dissolution pursuant to Section
6.1 above.
(d) Definition of Margin. The term "Margin" shall mean pre-tax income
divided by the net revenues of the Company.
8
6.3 Rights to Name. The parties hereby acknowledge that
(a) in the event the Company is dissolved, Xxxxxxx shall not have the
right to use the word "Dominion" in the corporate name of any
title insurance company or title agent, which is doing business in
the Dallas - Fort Worth Metroplex and is controlled by Xxxxxxx, for
a period of two (2) years from the date the Articles of Dissolution
of the Company are filed in the Secretary of State's office; and
(b) as long as Ashton (or an affiliate or parent company) is a member of
the Company and for a period of two (2) years after a dissolution of
the Company, neither Ashton nor any entity controlling Ashton, or
controlled by, or affiliated with, Ashton shall have the right to
organize, form, participate or otherwise become, directly or
indirectly, involved with any title insurance company or title agent
with the name "Dominion Title, L.L.C." or a deceptively similar name
(as defined by the Secretary of State of Texas) in the Dallas - Fort
Worth Metroplex.
ARTICLE VII.
MISCELLANEOUS
7.1 Conflict with Regulations. In case of a conflict of a provision of
this Agreement with any provision set forth in the Regulations of the Company,
the provisions of this Agreement shall prevail.
7.2 Specific Performance; Attorneys' Fees. Should any Member fail or
refuse to comply with any of the terms and provisions of this Agreement, the
same may be enforced by specific performance. Should it be necessary to retain
legal counsel to enforce the terms and provisions hereof, the defaulting Member
shall be charged with all responsibility for legal fees, arbitration expense,
court costs and litigation expenses incurred in the enforcement of this
Agreement.
7.3 Benefit. This Agreement shall be binding upon and shall operate for
the benefit of the Member and their respective executors, administrators,
successors and assigns.
7.4 Entire Agreement and Amendments. This Agreement contains the entire
Agreement between the parties with respect to the subject matter hereunder and
no waiver, alteration or modification of any of the provisions hereof shall be
binding unless it is in writing and consented to by the Members as set forth in
Subsection 3(c) above.
9
7.5 Governing Law. This Agreement shall be governed by the laws of the
State of Texas. Any suits arising under this Agreement shall be brought in
Dallas County, Texas.
7.6 Severability. In case any term, phrase, clause, paragraph, section
restriction, covenant or agreement contained in this Agreement shall be held to
be invalid or unenforceable, the same shall be deemed and it is hereby agreed
that the same is meant to be severable, and shall not defeat or impair the
remaining provisions hereof.
7.7 Waiver. The waiver by any party of a breach of any provision of this
Agreement by any other party shall not operate or be construed as a waiver of
any subsequent or continuing breach of this Agreement by such other party.
7.8 Assignability. This Agreement shall not be assigned by any party
without the prior consent of all other parties.
7.9 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been delivered on the
date personally delivered or on the date mailed, by registered or certified
mail (return receipt requested, postage prepaid, if addressed to the parties at
the addresses set forth opposite their respective signatures at the end of this
Agreement. Any party hereto may designate a different address by providing
notice of such new address to the other parties hereto.
7.10 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement is executed by the parties hereto on
the date and year first above written.
THE COMPANY:
DOMINION TITLE OF DALLAS, L.L.C.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Printed Name: Xxxx X. Xxxxxxx
Title: President
Address: ________________________
________________________
10
THE MEMBERS:
XXXXXXX TITLE DALLAS, INC.
By: /s/ Xxxx X. XxXxxx
------------------------------
Printed Name: Xxxx X. XxXxxx
Title: Executive Vice President
Address: _________________________
________________________
ASHTON DALLAS RESIDENTIAL, L.L.C.
By: /s/ Xxxxxxxxx XxxXxxx
------------------------------
Printed Name: Xxxxxxxxx XxxXxxx
Title: _______________________
Address: _______________________
_______________________
11
