EXHIBIT 10.8
ESCROW AGREEMENT
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THIS ESCROW AGREEMENT (this "Agreement") is effective as of October 2,
2001, among First Consumer Credit, Inc., a Texas corporation (the "Company") and
all of the former shareholders of the Company as identified on the signature
page herein (the "Shareholders"), 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 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 this Agreement and the Merger Agreement.
WHEREAS, the Company, Shareholders and Parent have agreed if the
Shareholders become obligated to indemnify Parent, the Surviving Company or
other Indemnitee with respect to any claim for indemnification pursuant to the
Merger Agreement, the Escrowed Shares will provide for the payment of the
Shareholders' obligations under Article VIII of the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties and covenants contained herein, the parties agree as
follows:
AGREEMENT
1. The Company, Parent and the Shareholders 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. 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"). Set forth on Schedule A attached hereto is the name and
address of each Shareholder and the amount and percentage of Escrowed Shares
owned by each Shareholder. The Escrowed Shares represent an aggregate of 194,286
shares of Parent's Common Stock.
ESCROW AGREEMENT - Page 1
3. The Shareholders' aggregate liability for indemnification hereunder
and under the Merger Agreement shall be limited to $680,000, the fair market
value of the Escrowed Shares as calculated at Closing. Each Shareholder's
individual liability for indemnification under the Merger Agreement shall not
exceed the percentage of Escrowed Shares set forth beside their name on Schedule
A. The Shareholders' liability for payment of Indemnifiable Claims under the
Merger Agreement shall be limited exclusively to Parent's right to receive for
cancellation an appropriate number of Escrowed Shares pursuant to Section 8.4 of
the Merger Agreement and Section 4 of this Agreement. Notwithstanding any other
provision of the Merger Agreement, this Agreement, or any other agreement or
document, under no circumstances shall a Shareholder be required to make any
cash payment to Parent or Sub for an Indemnifiable Claim or otherwise.
4. If the Shareholders become obligated to indemnify Parent, the
Surviving Company or other Indemnitee with respect to an Indemnifiable 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 Escrowed Shares, the fair market
value of which shall be equal to the amount of the Indemnifiable Claim;
provided, however, that the Shareholders shall be entitled to satisfy the
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Indemnifiable Claim by paying the full amount of the Indemnifiable Claim in cash
to Parent within ten (10) calendar days after final determination of an
Indemnifiable Claim. If Shareholders elect to pay the Indemnifiable Claim in
cash, Escrow Agent shall release to the Shareholders the number of Escrowed
Shares equal in fair market value to the amount of cash paid by the
Shareholders. The fair market value per share of the Escrowed Shares to be
delivered to Parent for cancellation, or released to Shareholders if they pay an
Indemnifiable Claim in cash, 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. The release of Escrowed Shares
pursuant to this Section 4 shall be borne pro rata by the Shareholders and
following any such release, the Shareholders shall continue to own the same
Shareholder Percentage of any remaining Escrowed Shares. Escrow Agent shall only
be required to deliver such Escrowed Shares to Parent for cancellation after
receipt of written instructions signed by both Parent and the Shareholders
directing Escrow Agent to deliver the designated number of Escrowed Shares to
Parent as payment for the Indemnifiable Claims.
5. An Indemnifiable Claim must first be asserted in writing within two
(2) years from the Closing Date. Any Indemnifiable 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 Indemnifiable Claim, Escrow Agent shall
deliver to the Shareholders, within ten (10) business days after the second
anniversary of the Closing Date, without requiring any written instructions from
Parent, the Escrowed Shares then on deposit with Escrow Agent. If on the
Termination Date there exists any unresolved Indemnifiable Claims, Escrow Agent
shall retain the number of Escrowed Shares (or cash if the Shareholders elects
to deliver the amount of cash for such claim to Escrow Agent) as designated in
writing by the Shareholders and Parent, which they collectively agree are
necessary to indemnify such Indemnifiable Claim. The remaining Escrowed Shares
shall then be released and delivered to the Shareholders. This Agreement will
continue after the Termination Date until all Indemnifiable Claims are paid or
resolved in accordance with this Agreement and the Merger Agreement. Upon the
payment or resolution of all Indemnifiable Claims after the
ESCROW AGREEMENT - Page 2
Termination Date, the remaining Escrowed Shares, if any, shall be released and
delivered to the Shareholders within ten (10) business days after receipt by
Escrow Agent of written instructions signed by the Shareholders and Parent.
Prior to the Termination Date, provided there are no Indemnifiable Claims,
the Escrow Agent shall release to the Shareholders all Escrowed Shares then on
deposit within ten (10) business days after receipt by Escrow Agent of written
instructions signed by Parent and the Shareholders 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 the Escrow 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 the Escrow Agreement the Escrow Agent shall release to the Shareholders
pro rata based on their Shareholder's Percentage fifty percent (50%) of the
Escrowed Shares provided there are no Indemnifiable Claims on the first
anniversary date. If during the second year of the Escrow Agreement there is a
Change in Control, the Escrow Agent shall release to the Shareholders within ten
(10) business days after receipt by Escrow Agent of written instructions signed
by Parent and the Shareholders all of the Escrowed Shares, provided there is no
Indemnifiable Claims.
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 Escrow
Agreement, the Escrowed Shares or the right of any party or other person to
receive the Escrowed 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 Escrowed
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 4 or a release event under Section 5 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 competent
jurisdiction in Dallas County, Texas for an entry of an immediate order to
specifically enforce the terms of this Agreement.
ESCROW AGREEMENT - Page 3
(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 enforcement of the
Shareholders' covenants contained in sections 5.2(f) and 5.2(g) of the
Merger Agreement and Section 6 of the Employment Agreement between Xxxxx X.
Xxxxxxxx and the Surviving Company. For purposes of this Agreement, a
"material breach" shall 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 and 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 the Shareholders 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.
8. Delivery of the Escrowed Shares to the Shareholders 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
ESCROW AGREEMENT - Page 4
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 Escrowed Shares and such notices shall be given to
the Shareholders 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 ESCROW 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 Escrow 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 the Shareholders, 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
ESCROW AGREEMENT - Page 5
This Escrow Agreement is executed and delivered by the parties hereto as of
the date set forth below.
THE COMPANY:
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FIRST CONSUMER CREDIT, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Dated: October 2, 2001 Xxxxx X. Xxxxxxxx, President
THE SHAREHOLDERS:
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/s/ Xxxxx X. Xxxxxxxx
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Dated: October 2, 2001 Xxxxx X. Xxxxxxxx
0000 Xxxxxxxxx
Xxxxxx, Xxxxx 00000
/s/ Xxxxxxx Xxxxxxxx
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Dated: October 2, 2001 Xxxxxxx Xxxxxxxx
0000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
First Savings Bank, F.S.B.
By: /s/ Xxxxxxx Xxxxxxxx
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Dated: October 2, 2001 Its: President
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
ESCROW AGREEMENT - Page 6
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
ESCROW AGREEMENT - Page 7
SCHEDULE A
TO
ESCROW AGREEMENT
Shareholder Escrowed Shares
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Xxxxx X. Xxxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
SS ####-##-#### 91,431
Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000 11,424
SS# ###-##-####
First Savings Bank, FSB
000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
Tax ID# 00-0000000 91,431
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Total Escrowed Shares 194,286
