EXHIBIT 10.4
ESCROW AGREEMENT
This Escrow Agreement (this "Agreement") is made and entered into as of
May 12, 1997 by and among Core Laboratories N.V., a Netherlands public limited
liability company ("Acquiror"), each of the shareholders of Saybolt
International B.V., a Netherlands private limited liability company (the
"Company"), signatory hereto (the "Shareholders") and Chase Manhattan Bank (the
"Escrow Agent").
WHEREAS, Acquiror, the Company and the Shareholders are parties to that
certain Stock Purchase Agreement, dated as of April 16, 1997 (the "Stock
Purchase Agreement");
WHEREAS, Article VIII of the Stock Purchase Agreement provides that
Acquiror and its directors, officers, employees, consultants, affiliates and
controlling persons (hereinafter, including the Company and its subsidiaries
after the Closing (as defined in the Stock Purchase Agreement), collectively,
the "Acquiror Indemnified Parties") shall be indemnified and held harmless from
and against certain matters, as more particularly set forth in the Stock
Purchase Agreement;
WHEREAS, Acquiror, on behalf of itself and the Acquiror Indemnified
Parties, and the Shareholders desire to establish an escrow for the
indemnification obligations of the Shareholders pursuant to the terms and
conditions of the Stock Purchase Agreement and this Agreement; and
WHEREAS, the Escrow Agent is willing to act as escrow agent hereunder;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements herein contained, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have the meanings ascribed to them in the Stock Purchase Agreement.
2. APPOINTMENT OF ESCROW AGENT. Acquiror and the Shareholders hereby
appoint the Escrow Agent to act as escrow agent hereunder, and the Escrow Agent
hereby accepts such appointment for the purpose of receiving and disbursing the
Escrow Funds (as defined below) in accordance with the terms and conditions set
forth herein.
3. ESTABLISHMENT OF ESCROW; INVESTMENT.
(a) On the date of this Agreement (the "Closing Date"), Acquiror
shall deliver to the Escrow Agent the sum of U.S. $6 million in cash pursuant to
Section 1.03 of the Stock Purchase Agreement (the "Escrow Amount"). Acquiror and
the Shareholders hereby direct the Escrow Agent to invest and reinvest such
Escrow Amount and the income therefrom in savings or money market accounts with,
repurchase agreements with, or certificates of deposit (with maturities
of not more than three months) issued by banks or trust companies located in the
United States of America, the actual value of the assets of which is at least
$100,000,000 in excess of its liabilities, or in United States Treasury Bills
(with maturities of not more than three months) or mutual funds backed by United
States Treasury Bills or as otherwise directed in writing by Acquiror and
Stanley Roth, as the representative of the Shareholders (the "Shareholder
Representative").
(b) Unless otherwise directed, the Escrow Agent may use a
broker-dealer of its own selection, including a broker-dealer owned by or
affiliated with the Escrow Agent or any of its affiliates. All brokerage costs
and related expenses incurred hereunder shall be paid from the Escrow Funds. The
Escrow Amount together with all amounts so earned from such investments and
reinvestments ("Escrow Income") are collectively referred to herein as the
"Escrow Funds." The Escrow Funds shall be held by Escrow Agent subject to the
terms and conditions hereinafter set forth.
(c) The Escrow Agent shall have the right to liquidate any
investments held, in order to provide funds necessary to make required payments
under this Escrow Agreement. The Escrow Agent in its capacity as escrow agent
hereunder shall not have any liability for any loss sustained as a result of any
investment made pursuant to the instructions of the parties hereto or as a
result of any liquidation of any investment prior to its maturity or for the
failure of the parties to give the Escrow Agent instructions to invest or
reinvest the Escrow Funds or any earnings thereon.
4. USE OF ESCROW FUNDS; DISTRIBUTIONS OF ESCROW INCOME.
4.1 USE OF ESCROW FUNDS. The Escrow Funds shall be used, to the
extent required, to satisfy in full or in part the indemnification obligations
of the Shareholders as set forth in Article VIII of the Stock Purchase Agreement
("Indemnification Obligations"). Notwithstanding the foregoing, the use of
Escrow Funds to satisfy Indemnification Obligations shall be limited to $6
million in the aggregate.
4.2 CLAIM NOTICES. If at any time up to and including the second
anniversary of the Closing Date, a Claim (as defined in Section 8.01 of the
Stock Purchase Agreement) has been asserted against, resulted from, imposed upon
or incurred by Acquiror or any Acquiror Indemnified Party, directly or
indirectly, by reason of, arising out of or resulting from the matters set forth
in Sections 8.01(a), (b), (d) or (e) of the Stock Purchase Agreement that
Acquiror in good faith believes gives rise to an Indemnification Obligation,
Acquiror may provide the Escrow Agent and the Shareholder Representative with
written notice with respect to such Claim (a "Claim Notice"). Such Claim Notice
shall (a) specify in reasonable detail the basis for each individual
Indemnification Obligation with respect to such Claim in accordance with the
provisions of the Stock Purchase Agreement and this Agreement, (b) include the
amount (with supporting calculations and documents), if any, that Acquiror
believes in good faith should be distributed from the Escrow Funds for each
individual Indemnification Obligation at such time in accordance with the
provisions of the Stock Purchase Agreement and this Agreement and (c) provide
instructions with respect to the distribution of such amount, if any, including
the recipients thereof and the amount to be distributed to each recipient. Each
Claim Notice shall be executed by an authorized officer of Acquiror, and the
Escrow Agent shall be entitled to rely on such Claim Notice as being duly
authorized and executed by Acquiror on behalf of either itself or another
Acquiror Indemnified Party.
4.3 DISTRIBUTION NOTICES. If (a) a Claim has been asserted against,
resulted from, imposed upon or incurred by Acquiror or any Acquiror Indemnified
Party, directly or indirectly, by reason of, arising out of or resulting from
the matters set forth in (i) a Claim Notice previously delivered pursuant to
Section 4.2 of this Agreement or (ii) Section 8.01(c) of the Stock Purchase
Agreement and (b) Acquiror believes in good faith that such Claim gives rise to
an Indemnification Obligation (or, in the case of clause (a)(i) above, an
additional Indemnification Obligation) from the Escrow Funds in accordance with
the provisions of the Stock Purchase Agreement and this Agreement as a result of
such Claim, then Acquiror may provide the Escrow Agent and the Shareholder
Representative with written notice (a "Distribution Notice") at any time
thereafter. Such Distribution Notice shall (a) specify in reasonable detail the
basis for each individual Indemnification Obligation with respect to such Claim
in accordance with the provisions of the Stock Purchase Agreement and this
Agreement, (b) include the amount (with supporting calculations and documents)
that Acquiror believes in good faith should be distributed from the Escrow Funds
for each individual Indemnification Obligation at such time in accordance with
the provisions of the Stock Purchase Agreement and this Agreement and (c)
provide instructions with respect to the distribution of such amount, including
the recipients thereof and the amount to be distributed to each recipient. Each
Distribution Notice shall be executed by an authorized officer of Acquiror, and
the Escrow Agent shall be entitled to rely on such Distribution Notice as being
duly authorized and executed by Acquiror on behalf of either itself or another
Acquiror Indemnified Party.
4.4 INTEREST EXPENSE. Acquiror may from time to time submit to the
Escrow Agent and the Shareholder Representative a notice, together with
supporting documents, that requests payment of any due but previously unpaid
Interest Expense (an "Interest Notice"). For purposes of this Section 4.4, the
term "Interest Expense" means the amount of interest Acquiror would incur if it
had borrowed the funds it used to pay any amounts for which it or any other
Acquiror Indemnified Party is eventually indemnified pursuant to this Agreement
for the period from the date of payment of such amount by Acquiror or any other
Acquiror Indemnified Party to the receipt by Acquiror of indemnification
pursuant to this Agreement. For purposes of such calculation, the marginal
interest rate in effect under Acquiror's revolving credit facility during such
period shall be used. Notwithstanding the foregoing, the aggregate amount of
payments to Acquiror at any time pursuant to this Section 4.4 shall not exceed
the aggregate amount of Escrow Income at such time. To the extent that Acquiror
has submitted one or more Interest Notices that request payment of due but
previously unpaid Interest Expense in excess of the aggregate amount of Escrow
Income at such time, the Escrow Agent shall, subject to Section 4.6, pay such
unpaid Interest Expense to the extent of available Escrow Income and thereafter
upon receipt of additional Escrow Income, shall, subject to Section 4.6 pay,
such Escrow Income to Acquiror pursuant to the terms of such outstanding
Interest Notices until such time as all such unpaid Interest Expense has been
paid.
4.5 DISTRIBUTIONS. If, within 20 days of the Notice Receipt Date (as
hereinafter defined) for a Claim Notice, a Distribution Notice or an Interest
Notice, Acquiror and the Escrow Agent are not in receipt of a Notice of
Disagreement (as hereinafter defined) with respect to such Claim Notice,
Distribution Notice or Interest Notice, then on the next Business Day thereafter
the
Escrow Agent shall pay from the Escrow Funds by wire transfer of immediately
available funds the amount, if any, set forth in such Claim Notice, Distribution
Notice or Interest Notice in accordance with the terms of such Claim Notice,
Distribution Notice or Interest Notice. Acquiror shall not be entitled to any
distributions of Escrow Funds with respect to a particular matter or for
Interest Expense unless Acquiror has delivered a Claim Notice, a Distribution
Notice or Interest Notice, as appropriate.
4.6 NOTICE OF DISAGREEMENT. If ,upon receipt of a Claim Notice, a
Distribution Notice or an Interest Notice, the Shareholder Representative
believes in good faith that the Acquiror Indemnified Parties are not entitled to
all or part of the indemnification or Interest Expense, as applicable, described
therein, then the Shareholder Representative may provide Acquiror and the Escrow
Agent with written notice of such disagreement (a "Notice of Disagreement").
Such Notice of Disagreement shall specify in reasonable detail the basis for
such disagreement and such Notice of Disagreement shall be received by Acquiror
and the Escrow Agent within 20 days of the Notice Receipt Date for the Claim
Notice, Distribution Notice or Interest Notice, as appropriate, with respect to
which such Notice of Disagreement is being provided. Each Notice of Disagreement
shall be executed by the Shareholder Representative, and the Escrow Agent shall
be entitled to rely on such Notice of Disagreement as being duly authorized and
executed by the Shareholder Representative.
4.7 RESOLUTION OF DISAGREEMENTS. Each of the parties hereto agrees
to cause its representatives to negotiate in good faith and use all reasonable
efforts to resolve any matters set forth in an effective Notice of Disagreement
until the earlier of (a) the receipt by the Escrow Agent of a Resolution Notice
(as hereinafter defined) with respect to such matters and (b) 20 days from the
date of receipt by Acquiror of such Notice of Disagreement. If the matters set
forth in a Notice of Disagreement are resolved by the parties hereto, within two
Business Days of such resolution Acquiror and the Shareholders (or the
Shareholder Representative on behalf of the Shareholders) shall deliver a notice
to the Escrow Agent (a "Resolution Notice") that sets forth the amount, if any,
that should be distributed from the Escrow Funds and instructions with respect
to the distribution of such amount, if any, including the recipients thereof and
the amount to be distributed to each recipient. The Escrow Agent shall pay from
the Escrow Funds by wire transfer of immediately available funds the amount, if
any, set forth in such Resolution Notice in accordance with the instructions set
forth therein within two Business Days of receipt of such Resolution Notice.
Each Resolution Notice shall be executed by an authorized officer of Acquiror
and the Shareholder Representative, and the Escrow Agent shall be entitled to
rely on such Resolution Notice as being duly authorized and executed by Acquiror
and the Shareholder Representative.
4.8 ARBITRATION.At any time after the expiration of the 20-day
period referred to in clause (a) of Section 4.7 with respect to any unresolved
matters set forth in an effective Notice of Disagreement, Acquiror may elect to,
and, upon such election, Acquiror and the Shareholders shall, submit such
unresolved matters to final and binding arbitration in accordance with the
arbitration procedures of the American Arbitration Association, such arbitration
proceedings to be held in New York City or in such other place as may be agreed
to in writing by Acquiror and the Shareholder Representative. Judgment upon the
award rendered by the arbitrator may be entered in any court having jurisdiction
thereof. In connection with such arbitration proceedings, each of the
Shareholder Representative and Acquiror shall submit to the arbitrator the
amount that the Shareholders would agree to distribute from the Escrow Funds, if
any, or that Acquiror would agree to accept, respectively, to settle the
unresolved matter. Notwithstanding anything herein to the contrary, the award
rendered by the arbitrator shall be either the amount submitted by Acquiror or
the amount submitted by the Shareholder Representative, and the arbitrator
shall, in addition, award the prevailing party the reasonable costs and expenses
incurred by such prevailing party in connection with such arbitration
proceedings. The non-prevailing party in such arbitration proceeding agrees to
indemnify the prevailing party from and against all reasonable costs and
expenses of the arbitration proceeding. No costs and expenses of arbitration
awarded or payable pursuant to this Section 4.8 shall be paid from the Escrow
Funds. Except as otherwise expressly provided herein, in reaching his or her
decision, the arbitrator shall have no authority or jurisdiction to change or
modify any provision of this Agreement or to award punitive damages nor shall
such provisions be modified or punitive damages be awarded in any other forum.
The parties agree that if, pursuant to the award of the arbitrator, the Acquiror
Indemnified Parties are to receive any payments from the Escrow Funds, the
Escrow Agent shall make such payment within two Business Days of receipt from
(a) such arbitrator of written notice, executed by such arbitrator, of such
arbitrator's award and (b) written instructions from Acquiror (executed by a
duly authorized officer of Acquiror) with respect to the distribution of such
award, including the recipients thereof and the amount to be distributed, by
wire transfer of immediately available funds in accordance with such written
instructions. The Escrow Agent shall be entitled to rely on (i) the notice from
the arbitrator as being duly authorized and executed by such arbitrator and (ii)
the written instructions from Acquiror as being duly authorized and executed by
Acquiror.
4.9 CERTAIN DEFINITIONS. For purposes of this Section 4:
(a) With respect to a particular Claim Notice, Distribution Notice
or Interest Notice, the term "Notice Receipt Date" shall mean the date indicated
as such in a certificate delivered by Acquiror to the Escrow Agent. Such
certificate shall be executed by an authorized officer of Acquiror and shall
certify that Acquiror is in possession of confirmation, as provided in Section
7.5 of this Agreement, that such Claim Notice, Distribution Notice or Interest
Notice has been received by the Shareholder Representative. The Escrow Agent
shall be entitled to rely on such certificate as being duly authorized and
executed by Acquiror.
(b) The term "Business Day" shall mean any day on which commercial
banks are not authorized or required to close in New York City.
5. TERMINATION OF ESCROW. The escrow provided for hereunder shall
terminate (the "Escrow Termination Date") upon the earlier of (i) distribution
of $6 million to the Acquiror Indemnified Parties by the Escrow Agent for
Indemnification Obligations in accordance with Section 4.5 hereof and the
satisfaction or resolution of each Interest Notice delivered by Acquiror
pursuant to Section 4.4, (ii) the receipt of written notification ("a
Termination Notice") from Acquiror to the Escrow Agent, which Termination Notice
shall be provided promptly upon the later of (a) such time as all matters
described in Claim Notices that relate to Section 8.01(a), (b) or (d) of the
Stock Purchase Agreement have been fully resolved, (b) the matters described in
Section 8.01(c) of the Stock Purchase Agreement have been fully resolved and (c)
the second anniversary of the
Closing Date, and (iii) the sixth anniversary of the Closing Date. Subject to
any unpaid distributions required pursuant to Section 4, all Escrow Funds
remaining on the Escrow Termination Date shall be distributed by the Escrow
Agent to the Shareholders upon written instructions from the Shareholder
Representative. Such distribution of Escrow Funds shall be made in the same
manner, using the same percentages, as the distribution of the Closing Purchase
Price to such Shareholders in connection with the Acquisition as directed in
writing by the Shareholder Representative.
6. ESCROW AGENT.
6.1 DUTIES. The Escrow Agent's obligations and duties in connection
herewith are purely ministerial and are confined to those specifically
enumerated in this Agreement. The Escrow Agent shall not be liable or
responsible for the sufficiency, correctness, genuineness or validity of any
instrument deposited with it or with reference to the form of execution thereof,
or the identity, authority or rights of any person executing or depositing same,
and the Escrow Agent shall not be liable for any loss that may occur by reason
of forgery, false representation or the exercise of its discretion in any
particular manner or for any other reason, except for its own gross negligence,
bad faith or willful misconduct. The Escrow Agent is not a principal,
participant or beneficiary in any transaction underlying this Agreement and
shall have no duty to inquire beyond the terms and provisions hereof. The Escrow
Agent shall never be required to use, advance or risk its own funds or otherwise
incur financial liability in the performance of any of its duties or the
exercise of any of its rights and powers hereunder.
6.2 RELIANCE; LIABILITY. The Escrow Agent may rely and shall not be
liable for acting or refraining from acting in good faith upon any written
notice, instruction or request or other paper furnished to it hereunder and
reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties. The Escrow Agent shall be responsible for holding
and distributing the Escrow Funds pursuant to this Agreement, but in no event
shall be liable for any special, indirect, exemplary or consequential losses or
damages of any kind whatsoever (including, but not limited to, lost profits)
even if the Escrow Agent has been advised of the likelihood of such loss or
damage and regardless of the form of action. The Escrow Agent is not responsible
or liable in any manner whatever for the sufficiency, correctness, genuineness
or validity of the subject matter of this Agreement or any part hereof or for
the form or execution hereof, or for the identity or authority of any person
executing or depositing the same. The Escrow Agent shall have no liability for
any loss arising from any cause beyond its control, including, but not limited
to, the following: (a) the act, failure or neglect of any other party hereto or
any agent or correspondent prudently selected by the Escrow Agent for the
remittance of the Escrow Funds; (b) any delay, error, omission or default of any
mail, courier, telegraph, cable or wireless agency or operator; (c) the acts or
edicts of any government or governmental agency or other group or entity
exercising governmental powers; or (d) acts of God, FORCE MAJEURE, including,
without limitation, war (whether or not declared or existing), revolution,
insurrection, riot, civil commotion, accident, fire, explosion, stoppage of
labor and strike.
6.3 INDEMNIFICATION. Except in instances of the Escrow Agent's own
gross negligence, bad faith or willful misconduct, Acquiror and the
Shareholders, jointly and severally, shall indemnify, defend and hold harmless
the Escrow Agent, its officers, employees, agents and
counsel against any and all costs, losses, claims, damages, liabilities,
expenses, including reasonable costs of investigation, court costs and
reasonable attorneys' fees, and disbursements that may be imposed upon the
Escrow Agent in connection with its acceptance of appointment as the Escrow
Agent and the exercise of, or failure to exercise, its rights and duties
hereunder, including any litigation arising from this Agreement involving the
subject matter hereof, and all such costs, expenses and disbursements shall be
for the account of and shall be borne and paid by Acquiror and the Shareholders
as a condition to termination of this Agreement. Such costs, losses, claims,
damages, liabilities, expenses and disbursements shall be paid according to the
fee schedule attached as Exhibit A hereto. To the extent the foregoing indemnity
contemplates indemnification of the Escrow Agent for its own negligent acts or
omissions under certain circumstances, that is the express intent of the parties
hereto. The terms and provisions of this Section 6.3 shall survive the
termination of this Agreement.
6.4 DISPUTES; UNCERTAINTY; CONFLICTS. In the event of a dispute
between the parties or any other person, firm or entity with respect to this
Agreement or the Escrow Funds, such dispute shall be resolved only by means of
the provisions of Section 4.8, if applicable, or final and binding arbitration
in accordance with the arbitration procedures of the American Arbitration
Association, such arbitration proceedings to be held in New York City or in such
other place as may be agreed to in writing by Acquiror and the Shareholder
Representative. Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. In the event that the Escrow
Agent shall be uncertain as to its duties or rights hereunder or shall receive
instructions, claims or demands from any party hereto which, in its opinion,
conflict with any of the provisions of this Agreement, it shall be entitled to
refrain from taking any action and its sole obligation shall be to keep safely
all property held in escrow until it shall be directed otherwise in writing by
all of the other parties hereto or by a final order or judgment of a court of
competent jurisdiction.
6.5 FEES. The Escrow Agent shall be compensated in accordance with
the fee schedule attached as Exhibit A hereto. All such fees and expenses shall
be paid first from the Escrow Funds as available, then in the absence of
availability, jointly and severally by the parties hereto.
6.6 RESIGNATION AND SUCCESSOR. The Escrow Agent may resign and be
discharged of its duties and obligations under this Agreement by written notice
provided to Acquiror and the Shareholder Representative not less than 15 days
before the date when such resignation is to take effect. A successor escrow
agent shall be selected by Acquiror and the Shareholder Representative. Any
successor escrow agent shall execute, acknowledge and deliver to Acquiror and
the Shareholder Representative an instrument accepting such duties and
obligations hereunder; and thereupon such successor escrow agent, without any
further act, deed or conveyance, shall become fully vested with all rights,
duties and obligations of its predecessor under this Agreement, with like effect
as if originally named Escrow Agent. The Escrow Agent, ceasing to act hereunder,
shall turn over to the successor escrow agent the Escrow Funds. If Acquiror and
the Shareholder Representative fail to designate a substitute escrow agent
within 30 days after the giving of such notice, the Escrow Agent may institute a
bill of interpleader with any court of competent jurisdiction. The Escrow
Agent's sole responsibility after the notice period expires shall be to keep
safely the Escrow Funds and to deliver the same to a designated substitute
escrow agent, if any, or in accordance with the directions
of a final order or judgment of a court of competent jurisdiction, at which time
the Escrow Agent's obligations hereunder shall cease and terminate. Subject to
the Escrow Agent's right to institute a bill of interpleader, the Escrow Agent
may not resign until a successor escrow agent has been appointed and accepts
such function as provided in this Section 6.6.
6.7 CONSULTATION WITH LEGAL COUNSEL. The Escrow Agent may consult
with its counsel or other counsel satisfactory to it concerning any question
relating to its duties and responsibilities hereunder or otherwise in connection
herewith and shall not be liable for any action taken, suffered or omitted by it
in good faith upon the advice of such counsel.
6.8 RECEIPT OF ESCROW AMOUNT. By its execution and delivery of this
Agreement, the Escrow Agent acknowledges receipt from Acquiror of the Escrow
Amount. Receipt, investment and reinvestment of the Escrow Funds shall be
confirmed by the Escrow Agent as soon as practicable by account statement, and
any discrepancies in any such account statement will be noted by Acquiror and
the Shareholder Representative to the Escrow Agent within 30 days after receipt
thereof. Failure to inform the Escrow Agent in writing of any discrepancies in
any such account statement within said 30-day period shall conclusively be
deemed confirmation of such account statement in its entirety. Each account
statement shall have been deemed to have been received by the party to whom
directed on the earlier of (i) actual receipt thereof and (ii) ten Business Days
after the deposit thereof in the United States Mail, postage prepaid.
6.9 MERGER, CONSOLIDATION, ETC. OF THE ESCROW AGENT. Any corporation
into which the Escrow Agent in its individual capacity may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Escrow Agent in its
individual capacity shall be a party, or any corporation to which substantially
all the corporate trust business of the Escrow Agent in its individual capacity
may be transferred, shall be the Escrow Agent under this Escrow Agreement
without further act.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the Stock
Purchase Agreement constitute the entire agreement between Acquiror and the
Shareholders with respect to the subject matter hereof. No amendment,
modification or alteration of the terms or provisions of this Agreement shall be
binding unless the same shall be in writing and duly executed by the parties
hereto.
7.2 BINDING EFFECT. This Agreement shall inure to the benefit of and
shall be binding upon each of Acquiror, the Company, the Shareholders and the
Escrow Agent and their respective successors, executors, beneficiaries,
administrators, heirs, personal representatives and assigns.
7.3 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without regard to its
principles of conflicts of laws and any action brought hereunder shall be
brought in the courts of the State of New York, located in the County of New
York. Each party hereto irrevocably waives any objection on the
grounds of venue, forum noncoveniens or any similar grounds and irrevocably
consents to service of process by mail or in any other manner permitted by
applicable law and consents to the jurisdiction of said courts..
7.4 HEADINGS. The headings of the Sections of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction hereof.
7.5 NOTICES. All notices, requests, demands, claims and other
communications that are required to be or may be given under this Agreement
shall be in writing and (i) delivered in person or by courier, (ii) sent by
telecopy or facsimile transmission, or (iii) mailed, certified first class mail,
postage prepaid, return receipt requested, to the appropriate party at the
following addresses:
if to Acquiror:
Core Laboratories N.V.
Herengracht 424
1017 BZ Amsterdam
The Netherlands
Telecopy: (011) 31-20-627-9886
Attention: Managing Director
with copies to:
Core Laboratories, Inc.
5295 Hollister Road
Houston, Texas 77040
Telecopy: (713) 690-3947
Attention: John D. Denson
Vinson & Elkins L.L.P.
2300 First City Tower
1001 Fannin Street
Houston, Texas 77002-6760
Telecopy: (713) 615-5531
Attention: T. Mark Kelly
if to the Escrow Agent:
Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Telecopy: (212) 946-8156
Attention: Escrow Administration, 15th Floor
if to the Shareholder Representative:
Stanley Roth
North American Capital Corp.
510 Broad Hollow Road
Melville, New York 11747-3665
Telecopy: (516) 752-9618
with copies to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022-6069
Telecopy: (212) 848-7179
Attention: John A. Marzulli, Jr.
Stibbe Simont Monahan Dehot
P. O. Box 75460
1070 AP Amsterdam
The Netherlands
Telecopy: (011) 31-20-546-0733
Attention: Hector W. L. de Beaufort
or to such other address as the parties set forth above shall have furnished to
the other parties set forth above by notice given in accordance with this
Section 7.5. Such notices shall be effective (i) if delivered in person or by
courier, upon actual receipt by the intended recipient, (ii) if sent by telecopy
or facsimile transmission, when the sender receives telecopier confirmation that
such notice was received at the telecopier number of the addressee, or (iii) if
mailed, upon the earlier of 10 days after deposit in the mail and the date of
delivery as shown by the return receipt therefor.
7.6 TAX MATTERS. Acquiror and each of the Shareholders shall provide
the Escrow Agent with an appropriately completed Form W-8 or form W-9, as
applicable, as soon as reasonably practicable after the execution of this Escrow
Agreement. Failure so to provide such forms may prevent or delay disbursements
from the Escrow Funds and may also result in the assessment of a penalty and the
Escrow Agent's being required to withhold tax on any interest or other income
earned on the Escrow Funds. Any payments of income shall be subject to
applicable withholding regulations then in force in the United States or any
other jurisdiction, as applicable.
7.7 ASSIGNMENT. This Escrow Agreement shall not be assigned by
Acquiror or any of the Shareholders without the prior written consent of the
Escrow Agent.
7.8 SEVERABILITY. If any term or provision of this Agreement is held
by a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms and provisions of this Agreement shall continue in full
force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon such
determination that any term, provision, covenant or restriction is invalid, void
or unenforceable, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that the transactions contemplated
hereby are fulfilled to the extent possible.
7.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, Acquiror, each of the Shareholders and Escrow Agent
have each caused this Agreement to be executed on its behalf by its officer
thereunto duly authorized, all as of the date first above written.
ACQUIROR:
CORE LABORATORIES N.V.
By: Core Laboratories International B.V.,
its sole managing director
By: ____________________________
Jacobus Schouten
Managing Director
SHAREHOLDERS:
______________________________________
Frerik Pluimers
ALPINVEST HOLDING N.V.
By: __________________________________
Name:
Title:
HEMERA II & CIE S.C.A
By: __________________________________
Name:
Title:
EUROFRANDEV S.A.
By: __________________________________
Name:
Title:
SHAREHOLDERS:
PARINDEV PME SA
By: __________________________________
Name:
Title:
STICHTING PARTICIPATIE SAYBOLT
INTERNATIONAL B.V.
By: __________________________________
Name:
Title:
ABN AMRO PARTICIPATIES B.V.
By: __________________________________
Name:
Title:
CITICORP CAPITAL INVESTORS
EUROPE LTD.
By: __________________________________
Name:
Title:
EUROPENTERPRISE '92 CURACAO N.V.
By: __________________________________
Name:
Title:
SHAREHOLDERS:
______________________________________
Rolly Louis Rudolph Jules van Rappard
______________________________________
Maarten Ruijs
______________________________________
Michael David Cook Smith
______________________________________
Alexander Donald MacKenzie
______________________________________
Corinne Ingeborg Beatrice Koltes-Sulzer
THE ESCROW AGENT:
CHASE MANHATTAN BANK
By: __________________________________
Name:
Title:
EXHIBIT A
$5,000 per annum or any part thereof without proration for partial years
(includes investment in a Chase Manhattan Bank Money Market Account, The Chase
Manhattan Bank Mutual Fund known as the Vista Fund or the Cash Escrow).
$75 per investment (excludes Money Market, Vista Fund or Cash Escrow
investments).