Exhibit 10.10
BORSCHOW AGREEMENT
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THIS AGREEMENT (the "Borschow Agreement") is effective as of October 2,
2001, among Xxxxx X. Xxxxxxxx ("Borschow"), U.S. Home Systems, Inc., a Delaware
corporation ("Parent") and Corporate Stock Transfer, Denver, Colorado ("Escrow
Agent").
RECITALS
WHEREAS, the Company and the Shareholders, Parent and Home Credit
Acquisition Inc. (the "Sub") have entered into an Agreement and Plan of Merger
relating to the merger of Sub with and into the Company with the Company
remaining as the Surviving Company (the "Merger Agreement").
WHEREAS, capitalized terms in this Agreement shall have the same
meaning as defined in the Merger Agreement and Escrow Agreement unless otherwise
noted in this Agreement.
WHEREAS, the Company, Shareholders, Parent and Escrow Agent have agreed
that Escrow Agent will hold and disburse the Escrowed Shares in accordance with
the provisions of the Escrow Agreement and the Merger Agreement.
WHEREAS, Borschow and Parent have agreed if Borschow becomes obligated
to indemnify Parent, the Surviving Company or other Indemnitee with respect to a
claim for indemnification pursuant to Section 8.2(a)(i)(D) of the Merger
Agreement arising from a claim made by Xxxxx X. Xxxxxxxx relating to any
transactions between Borschow and his former spouse, Xxxxx X. Xxxxxxxx,
involving the securities of the Company, its predecessors and successors, or as
a result of the Merger and the transactions contemplated by the Merger Agreement
(a "Borschow Claim").
NOW, THEREFORE, for and in consideration of the foregoing and the
mutual covenants set forth herein, the parties agree as follows:
AGREEMENT
1. The Parent and Borschow appoint Escrow Agent as their escrow agent
and Escrow Agent agrees to serve as Escrow Agent in accordance with the
provisions hereof.
2. On the Closing Date of the Merger Agreement, Parent shall issue
and deliver Parent's Shares to the Shareholders in accordance with the Merger
Agreement. On the Closing Date, the Shareholders shall deliver to the Escrow
Agent stock certificates registered in the name of the Shareholders representing
the number of shares of Parent's Common Stock equal to 20% of Parent's Shares
issued to the Shareholders (the "Escrowed Shares"). The Escrowed Shares
represent an aggregate of 194,286 shares of Parent's Common Stock. In addition
to the Escrowed Shares, Borschow shall deliver to the Escrow Agent certificates
evidencing 91,431 of Parent's Shares that he received pursuant to the Merger
with a fair market value equal to $320,000, as determined pursuant to Section
2.5(a) of the Merger Agreement (the "Borschow Shares") which shall be held by
Escrow Agent pursuant to the terms of this Agreement.
BORSCHOW AGREEMENT - Page 1
3. Borschow's aggregate liability for indemnification for a Borschow
Claim under the Merger Agreement shall be limited to $640,000, the fair market
value of the Borschow Shares and his Shareholder Percentage of the Escrowed
Shares as calculated at Closing. Borschow's individual liability for
indemnification for Borschow Claims under the Merger Agreement shall not exceed
the Borschow Shares and his Shareholder Percentage of Escrowed Shares set forth
beside his name on Schedule A of the Escrow Agreement. Borschow's liability for
payment of any Borschow Claim shall be limited exclusively to Parent's right to
receive for cancellation an appropriate number of Borschow Shares pursuant to
Section 4 of this Agreement. If the Borschow Shares are inadequate to cover the
Borschow Claims under this Agreement, then Parent shall be entitled, to the
extent necessary, to receive for cancellation an appropriate number of
Borschow's Shareholder Percentage of the Escrowed Shares. Notwithstanding any
other provision of the Merger Agreement, this Agreement, or any other agreement
or document, under no circumstances shall Borschow be required to make any cash
payment to Parent or Sub for a Borschow Claim or otherwise.
4. If Borschow becomes obligated to indemnify Parent, the Surviving
Company or other Indemnitee with respect to a Borschow Claim pursuant to the
Merger Agreement and the amount of liability with respect thereto shall have
been finally determined, the Escrow Agent shall release to Parent for
cancellation an aggregate number of Borschow Shares, the fair market value of
which shall be equal to the amount of the Borschow Claim; provided, however,
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that Borschow shall be entitled to satisfy the Borschow Claim by paying the full
amount of the Borschow Claim in cash to Parent within ten (10) calendar days
after the final determination of the Borschow Claim. The fair market value per
share of Borschow's Shares to be delivered to Parent for cancellation shall be
the Average Closing Price or if applicable, the Adjusted Average Closing Price
as calculated at Closing pursuant to Section 2.5(a) of the Merger Agreement.
Escrow Agent shall only be required to deliver such Borschow's Shares to Parent
for cancellation after receipt of written instructions signed by both Parent and
Borschow directing Escrow Agent to deliver the designated number of Borschow
Shares to Parent as payment for the Borschow Claims.
Upon satisfaction of all Borschow Claims, whether through the release
of Borschow Shares or the payment in cash, the Escrow Agent shall deliver to
Borschow, within ten (10) business days after the receipt of written
instructions signed by Parent and Borschow, the Borschow Shares then on deposit
with Escrow Agent.
5. A Borschow Claim must first be asserted in writing within two (2)
years from the Closing Date of the Merger Agreement. Any Borschow Claim that is
not asserted within the two-year period shall be forever barred. If two (2)
years after the Closing Date (the "Termination Date") the Escrow Agent has not
received notice from the Parent that there is a pending Borschow Claim, Escrow
Agent shall deliver to Borschow, within ten (10) business days after the second
anniversary of the Closing Date, without requiring any written instructions from
Parent, the Borschow Shares then on deposit with Escrow Agent. If on the
Termination Date there exists any unresolved Borschow Claim, Escrow Agent shall
retain the number of Borschow Shares (or cash if Borschow elects to deliver the
amount of cash for such claim to Escrow Agent) as designated in writing by
Borschow and Parent, which they collectively agree are necessary to indemnify
such Borschow Claim. The remaining Borschow Shares shall then be released and
delivered to Borschow. This Agreement will continue after the Termination Date
BORSCHOW AGREEMENT - Page 2
until all pending Borschow Claims are paid or resolved in accordance with this
Agreement and the Merger Agreement. Upon the payment or resolution of all
Borschow Claims after the Termination Date, the remaining Borschow Shares, if
any, shall be released and delivered to Borschow within ten (10) business days
after receipt by Escrow Agent of written instructions signed by Borschow and
Parent.
Prior to the Termination Date, provided there are no Borschow Claims,
the Escrow Agent shall release to Borschow all Borschow Shares then on deposit
within ten (10) business days after receipt by Escrow Agent of written
instructions signed by Parent and Borschow that any of the following events have
occurred:
(a) a transaction occurs so that the Surviving Company is no
longer a wholly owned subsidiary of Parent;
(b) Surviving Company sells all or substantially all of its
assets; or
(c) the termination by the Company of the employment of Xxxxx X.
Xxxxxxxx other than for "Just Cause" as defined in the Employment
Agreement.
If during the first year of this Agreement there is a transfer in a
single transaction of the right to control twenty-five percent (25%) or more of
the Parent's voting securities ("Change in Control") on the first anniversary
date of this Agreement the Escrow Agent shall release to Borschow fifty percent
(50%) of the Borschow Shares provided there are no Borschow Claims on the first
anniversary date under the Escrow Agreement or this Agreement. If during the
second year of this Agreement there is a Change in Control, the Escrow Agent
shall release to Borschow within ten (10) business days after receipt by Escrow
Agent of written instructions signed by Parent and Borschow all of the Borschow
Shares, provided there are no Borschow Claims under this Agreement or the Escrow
Agreement.
6. The following shall govern disputes arising under this Agreement:
(a) Should any controversy arise between or among the parties, or
with any other person, firm or entity, with respect to this Agreement,
the Borschow Shares or the right of any party or other person to
receive the Borschow Shares, or should the parties fail to designate
another Escrow Agent as provided in paragraph 7(b) hereof, or if Escrow
Agent should be in doubt as to what action to take, Escrow Agent shall
have the right (but not the obligation) to (a) withhold delivery of the
Borschow Shares until the controversy is resolved, the conflicting
demands are withdrawn or its doubt is resolved, and/or (b) institute a
xxxx of interpleader in any court of competent jurisdiction in Dallas
County, Texas to determine the rights of the parties hereto.
(b) The parties agree that any controversy arising out of this
Agreement shall be resolved in accordance with Article IX of the Merger
Agreement.
(c) The parties agree that, in the event of a party's intentional
refusal to sign written instructions to the Escrow Agent after
liability under Section 5 or a release event under Section 6 has been
finally determined (the "Breaching Party"), the other party may, in
addition to any remedy which they may have at law or in equity, apply
to court of
BORSCHOW AGREEMENT - Page 3
competent jurisdiction for an entry of an immediate order to
specifically enforce the terms of this Agreement.
(d) The Breaching Party shall be liable for any and all
consequential damages arising from the failure to sign written
instructions. Parent expressly acknowledges that, if it is the
Breaching Party, any damages arising from its actions shall not be
subject to the Parent's and Sub's Liability Limit set forth in the
Merger Agreement.
(e) The parties expressly agree that a claim for a material breach
of this Agreement by Parent shall constitute a defense to the
enforcement of Borschow's covenants contained in Sections 5.2(f) and
5.2(g) of the Merger Agreement and Section 6 of the Employment
Agreement between Borschow and the Surviving Company. A "material
breach" for purposes of this Agreement shall be deemed to include any
event or circumstance which could reasonably be expected to result in a
liability to a party hereto in excess of $50,000 individually or in the
aggregate.
7. The following shall govern the rights, privileges, immunities
and liabilities of Escrow Agent:
(a) In performing any of its duties hereunder, Escrow Agent shall
not incur any liability to any of the parties hereto for any damages,
losses or expenses, unless caused by Escrow Agent's gross negligence or
willful default, and it shall, accordingly, not incur any such
liability with respect to:
(i) any action taken or omitted in good faith upon advice of
counsel for Escrow Agent given with respect to any questions
relating to the duties and responsibilities of Escrow Agent under
this Escrow Agreement; or
(ii) any action taken or omitted in reliance upon any notice
or other instrument furnished to Escrow Agent by any of the parties
pursuant hereto, not only as to its due execution, but also as to
the truth and accuracy of any information contained therein, which
Escrow Agent shall in good faith believe to be genuine, to have
been signed or presented by a proper person or persons, and to
conform with the provisions of this Escrow Agreement
(b) Escrow Agent may resign at any time upon ten (10) days written
notice to all parties, in which event it shall be succeeded by such
person or institution as Borschow and Parent may select;
(c) The parties hereby agree to indemnify and hold Escrow Agent
harmless from and against any and all losses, claims, damages,
liabilities and expenses ("Claims"), including reasonable costs of
investigation, counsel fees and disbursements, which may be incurred by
Escrow Agent in connection with its acceptance of appointment as Escrow
Agent hereunder or the performance of its duties hereunder, and any
arbitration, litigation or other proceedings arising from this Escrow
Agreement or involving the subject matter hereof.
BORSCHOW AGREEMENT - Page 4
8. Delivery of the Borschow Shares to Borschow as provided herein and
any notice given pursuant to this Agreement must be in writing and may be given
by registered or certified mail, and if given by registered or certified mail,
shall be deemed to have been given and received when a registered or certified
letter containing such notice, properly addressed with postage prepaid, is
deposited in the United States mails; and if given otherwise than by registered
or certified mail, it shall be deemed to have been given when delivered to and
received by the party to whom addressed. Delivery of the Borschow Shares and
such notices shall be given to Borschow and Parent at the addresses set forth in
the Merger Agreement, which addresses may be changed by written notice to the
other parties in accordance with this paragraph.
9. THIS AGREEMENT IS TO BE PERFORMED IN THE STATE OF TEXAS, COUNTY OF
DALLAS, AND SHALL BE INTERPRETED AND CONSTRUED IN ACCORDANCE WITH AND SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICT OF LAW
RULES. ANY JUDICIAL PROCEEDINGS BROUGHT BY OR AGAINST ANY PARTY WITH RESPECT TO
ANY DISPUTE ARISING OUT OF THIS AGREEMENT SHALL BE BROUGHT IN THE STATE OR
FEDERAL COURTS WHICH HAVE JURISDICTION WITHIN DALLAS COUNTY, TEXAS.
10. This Agreement may be executed by the parties in counterparts, each
of which shall be deemed an original document but all of which together shall
constitute one agreement.
11. This Agreement may be amended, modified or waived only by a written
agreement signed by Borschow, Parent and Escrow Agent. With regard to any power,
remedy or right provided in this Agreement or otherwise available to any party,
(i) no waiver or extension of time shall be effective unless expressly contained
in a writing signed by the waiving party, (ii) no alteration, modification or
impairment shall be implied by reason of any previous waiver, extension of time,
delay or omission in exercise or other indulgence, and (iii) waiver by any party
of the time for performance of any act or condition hereunder does not
constitute a waiver of the act or condition itself.
12. This Agreement shall be binding upon and shall inure to the benefit
of the parties and their respective assigns, heirs, successors and legal
representatives.
13. The Escrow Agent shall receive an annual fee of $1,000 for its
services hereunder. The initial fee shall be paid to Escrow Agent by Parent on
the execution date of this Agreement. On the annual anniversary date of this
Agreement, if this Agreement is in effect, Parent shall pay Escrow Agent the
$1,000 annual fee.
14. The parties hereby agree that this Agreement is intended to provide
additional indemnification to Parent, the Surviving Company and any other
Indemnitees by Borschow with respect to a Borschow Claim and nothing herein
shall be construed to limit the rights of Parent, the Surviving Company and any
other Indemnitee to indemnification under the Merger Agreement and Escrow
Agreement.
BORSCHOW AGREEMENT - Page 5
This Agreement is executed and delivered by the parties hereto as of
the date set forth below.
/s/ Xxxxx X. Xxxxxxxx
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Dated: October 2, 2001 Xxxxx X. Xxxxxxxx
0000 Xxxxxxxxx
Xxxxxx, Xxxxx 00000
PARENT:
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U.S. HOME SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxx
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Dated: October 2, 0000 Xxxxxx Xxxxx, President
ESCROW AGENT:
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CORPORATE STOCK TRANSFER
By: /s/ Xxxxxxx Xxxx
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Dated: October 2, 2001 Xxxxxxx Xxxx, President
BORSCHOW AGREEMENT - Page 6
SCHEDULE A
TO
BORSCHOW AGREEMENT
Shareholder Escrowed Shares
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Xxxxx X. Xxxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000 91,431
SS ####-##-####
