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EXHIBIT 10.1
ESCROW AGREEMENT
This Escrow Agreement, dated as of June 20, 1997, is among ▇▇▇▇▇▇
Petroleum Services Corp., a Delaware corporation ("Buyer"), and the
shareholders and warrantholders of Air Drilling International, Inc., a Delaware
corporation (the "Company"), each listed on Exhibit A hereto (such shareholders
and warrantholders are referred to herein individually as a "Shareholder" and
collectively as the "Shareholders", and ▇▇▇▇▇▇ ▇. ▇▇▇▇, III is sometimes
referred to herein as the "Shareholder Representative") and U.S. Trust Company
of Texas, N.A. (the "Escrow Agent");
W I T N E S S E T H :
WHEREAS, Buyer, the Company and the Shareholders have entered into a
Stock Purchase and Sale Agreement dated May 8, 1997 (the "Purchase Agreement"),
which provides, among other things, for the purchase (the "Purchase") of all of
the outstanding capital stock of the Company and all of the outstanding
preferred stock of ADS by Buyer; and
WHEREAS, the parties hereto desire, pursuant to Section 1.1(a) of the
Purchase Agreement, to set aside a portion of the consideration to be paid to
the Shareholders in connection with the Purchase, subject to the terms and
conditions set forth herein; and
WHEREAS, the parties hereto have agreed upon and wish to set forth
herein the terms and conditions relating to the escrow of the portion of the
consideration for the Purchase to be so delivered to and held by the Escrow
Agent;
NOW, THEREFORE, in consideration of the premises and of other good and
valuable consideration, the parties hereto hereby agree as follows:
1. Definitions. Except as otherwise defined herein, capitalized
terms used in this Escrow Agreement will have the meanings set forth in the
Purchase Agreement.
2. Appointment of Escrow Agent. U.S. Trust Company of Texas,
N.A. is hereby appointed as Escrow Agent for the purposes set forth herein and
the Escrow Agent hereby accepts such appointment on the terms herein provided.
3. Deposit of Escrow Fund for Claims. For the purposes herein
set forth, Buyer, together with the delivery of this Escrow Agreement, deposits
with the Escrow Agent the sum of $3,000,000 in cash. However, in the event a
Clean Phase II Event occurs prior to the Closing, the amount deposited with the
Escrow Agent shall be $2,000,000 in cash. The sum so deposited with the Escrow
Agent, together with all income earned thereon pursuant to Section 8 hereof,
less payments made for costs and expenses in connection with this Escrow
Agreement pursuant to
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Sections 4.f, 11 and 12 hereof, is herein called the "Escrow Fund". The Escrow
Fund will be held, invested, reinvested and disbursed by the Escrow Agent in
accordance with the terms hereof.
4. Satisfaction of Claims with Escrow Fund. The Escrow Fund will
be retained by the Escrow Agent and shall be distributed at any time, or from
time to time, for the purpose of paying Claims as follows:
a. If Buyer has made a Claim with respect to which funds
from the Escrow Fund may be applied pursuant to the Purchase
Agreement, Buyer may advise the Shareholder Representative in writing
of such Claim (an "Asserted Claim"), describing such Asserted Claim
(to the extent known) in reasonable detail and shall transmit a copy
of such notice to the Escrow Agent, and in the event such Claim is a
Third Party Claim, such notice shall comply with the provisions of
Section 9.5(a) of the Purchase Agreement relating to Third Party
Claims, provided however, that failure to provide such notice within
an applicable time period shall not affect the Buyer's right to
payment hereunder except to the extent the Shareholder Representative
and the Shareholders have been materially prejudiced as a result of
such failure to provide timely notice;
b. The amount of any Asserted Claim (the "Asserted
Amount") and the amount of Escrow Funds, if any, requested to be
delivered to Buyer pursuant to Section 4.d hereof shall be
simultaneously certified in the notice to be provided in Section 4.a
above to the Escrow Agent and the Shareholder Representative in
writing by Buyer;
c. In connection with any Asserted Claim, Buyer will, or
will cause the Company to, make available to the Shareholder
Representative, counsel thereto and accountants therefor such records
pertaining to the Asserted Claim (to the extent such Asserted Claim is
a Third Party Claim) in accordance with Section 9.5(a) of the Purchase
Agreement, provided however, that failure to provide such records
within an applicable time period shall not affect the Buyer's right to
payment hereunder except to the extent the Shareholder Representative
and the Shareholders have been materially prejudiced as a result of
such failure to timely provide such records;
d. On the 31st day following receipt of the
certification pursuant to the provisions of Section 4.b hereof (or
pursuant to Section 6 hereof as to the certification of a final
Asserted Claim on account of a Third Party Claim) of the Asserted
Amount of any Asserted Claim, subject to Sections 4.e and 4.f hereof,
such Asserted Amount shall be distributed to Buyer in respect of such
Asserted Claim pursuant to Section 4(g) hereof and the other terms of
this Escrow Agreement; provided, however, that, if within 30 days
following receipt of such certification, the Shareholder
Representative delivers a statement of specific objections thereto to
Buyer and the Escrow Agent (which written notification shall
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be received by the Escrow Agent within such 30-day period following
the receipt by it of the above-referenced certification by Buyer) that
he intends to challenge Buyer's certification of its Asserted Claim or
a specified part thereof (the "Contested Amount"), then the Contested
Amount shall, notwithstanding the provisions of this Section 4, remain
in escrow with the Escrow Agent until a final resolution (by a written
agreement of Buyer and the Shareholder Representative or pursuant to
the arbitration provisions hereof, or to the extent applicable, the
determination of a court of competent jurisdiction to the extent the
Claim arises from a Third Party Claim subject to such court's
jurisdiction) of the dispute as to such matters (the amount, if any,
so resolved is herein called the "Resolved Amount");
e. Upon the 31st day following such receipt of a
certificate in accordance with Section 4.b hereof (or upon resolution
of a Contested Amount as provided herein if such a certification shall
be challenged), subject to Section 4.f hereof, the Escrow Agent shall
pay to Buyer the lesser of (i) the Asserted Amount less the Contested
Amount with respect to that Asserted Claim, if such certification
shall have been challenged and such challenge shall not have been
resolved, or the Resolved Amount, if any, if such certification is
challenged and resolved and (ii) the amount then held in the Escrow
Fund.
f. At any time following the notice of challenge to an
Asserted Claim (other than with respect to Sections 5.4 or 5.5 of the
Purchase Agreement) as provided for by Section 4.d hereof, either
Buyer or the Shareholder Representative may refer the matter to final
and binding arbitration in accordance with the applicable provisions
of the Purchase Agreement. The arbitration shall be conducted before
a single arbitrator in Houston, Texas to be appointed (in the absence
of agreement by the parties as to such appointment) by the American
Arbitration Association ("AAA") and shall be conducted in accordance
with the Commercial Arbitration Rules of the AAA. Such arbitrator
shall, upon completion of such arbitration proceedings, certify the
results of the arbitration to the Escrow Agent, including his decision
with respect to the existence of a Claim and the Resolved Amount
thereof, if any, and the Escrow Agent shall be entitled to rely and
act accordingly with respect to payments to Buyer hereunder, if any,
on the basis of the decision of such arbitrator as so certified. This
arbitration provision is expressly made pursuant to and shall be
governed by the Federal Arbitration Act, 9 U.S.C. Sections 1 - 14 (the
"Arbitration Act"). The parties hereto agree that pursuant to Section
9 of the Arbitration Act that a judgment of the United States District
Court for the Southern District of Texas shall be entered upon the
award made pursuant to the arbitration. The fees, costs and expenses
of the arbitrator shall be borne by the parties in inverse proportion
as they may prevail on the matters resolved by the arbitrator, which
proportionate allocation shall be determined by the arbitrator at the
time the determination is rendered by the arbitrator on the merits of
the matters submitted. All fees, costs and expenses of
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the arbitrator borne by the Shareholders, as determined by the
arbitrator, shall be paid from the Escrow Fund. If the arbitrator
decides in Buyer's favor with respect to any Asserted Claim, Buyer's
reasonable legal fees and related expenses in connection with such
arbitration (as determined by the arbitrator) shall be included in the
Resolved Amount.
5. Procedures for Application of Escrow Funds.
a. In the event notice to remedy or cure an Unclean
Event is provided to Buyer pursuant to Section 4.7 of the Agreement,
the Buyer and the Shareholder Representative shall each provide a copy
of each notice to the Escrow Agent with a statement as to agreement or
any disagreements with respect to such notice. In the event of any
disagreements, Buyer and the Shareholder Representative shall
negotiate in good faith to resolve such differences. If the parties
have not resolved their differences within 10 business days from the
date such notice is provided to the Escrow Agent, then the arbitration
provisions of Section 4.f. shall be followed. Following resolutions
of the dispute, the Escrow Agent shall pay to the Environmental
Consultant the amount of specified in the notice (or determined upon
resolution of the dispute) upon presentment of the invoice relating to
the procedures to be performed, or already performed by, such
Environmental Consultant, which invoice shall be agreed to by the
Buyer and the Shareholder Representative. Upon the occurrence of a
Clean Phase II Event following the Closing, Buyer and the Shareholder
Representative shall certify such occurrence to the Escrow Agent, and
upon such certification, the Escrow Agent shall release to the
Shareholders in accordance with Section 7 hereof an amount of Escrow
Funds equal to the lesser of (i) $1,000,000 less any amounts paid from
the Escrow Fund to the Environmental Consultant and less any amounts
paid from the Escrow Fund relating to Claims under Section 9.2(a)(iv)
or of the Agreement relating to the representations and warranties
contained in Section 2.18 of the Agreement, or (ii) the balance of the
Escrow Fund.
b. On the date that is three years from the Closing Date
(the "Final Expiration Date"), and after all distributions (x) to
Buyer in respect of any Asserted Claims and the payment of any other
amounts under Section 4.f, (y) to the Shareholder Representative of
the fees and expenses of the Shareholder Representative provided for
by Section 11 hereof and (z) to the Escrow Agent of all expenses paid
or reasonably established to be incurred by the Escrow Agent in
connection with this Escrow Agreement pursuant to Section 12 hereof,
the balance of the Escrow Funds shall be distributed to the
Shareholders on a pro rata basis as provided in Section 7 hereof;
provided that the amount so distributed to the Shareholders shall be
reduced by the aggregate amount of Asserted Claims then unpaid or
unresolved, and by all fees and expenses incurred or reasonably
expected to be incurred pursuant to Section 4.f or Section 11 (which
fees and expenses shall be paid from the Escrow Fund upon the
direction of the Shareholder Representative
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and Buyer, which direction from Buyer will not be unreasonably
withheld) and that have not been paid.
c. As to any amounts held under the Escrow Agreement
after the Final Expiration Date on account of the existence of
unresolved or unpaid Asserted Claims on the Final Expiration Date,
such amounts shall be distributed from time to time to Buyer or to the
Shareholders on a pro rata basis, in accordance with Section 7 hereof,
as such Asserted Claims are resolved; provided that the amount
distributable to the Shareholders shall be reduced by all fees and
expenses incurred or reasonably expected to be incurred by the
Shareholder Representative that have not been paid pursuant to Section
4.f or Section 11 (which fees and expenses shall be paid from the
Escrow Fund upon the direction of the Shareholder Representative and
Buyer, which direction from Buyer will not be unreasonably withheld).
6. Special procedures with respect to claims made against the
Company as to which liability, and amount thereof is uncertain. If a Third
Party Claim is made against the Buyer or the Company that Buyer believes
constitutes, or may (upon final resolution) constitute, a Claim hereunder, then
Buyer shall certify such matter to the Escrow Agent and the Shareholder
Representative as an Asserted Claim in accordance with Section 4.b hereof even
though such claim against the Buyer or the Company is at the time uncertain or
unresolved and even though the exact amount of any loss, liability, cost or
expense on account thereof may be unknown at the time of such certification
and, therefore, even though it is unknown whether such matter may (upon final
resolution) constitute a Claim hereunder. In making such certification, Buyer
may make a good faith estimate the maximum amount of exposure with respect
thereto and such estimated amount shall constitute a Contested Amount for
purposes of Section 4.d hereof. The Buyer, or the Company at the Buyer's
election, shall take exclusive control over all matters relating to any Claim
that constitutes a Third Party Claim. The Shareholders Representative shall
have the right (which expenses shall be paid by the Shareholders to the
Shareholders Representative and which shall not be paid from the Escrow Fund)
to appoint counsel of its choice to represent the interests of the Shareholders
and to participate in the defense, negotiation and/or settlement of the Third
Party Claim. Counsel employed by the Shareholder Representative shall act in an
advisory capacity only with respect to the defense provided by the Buyer or the
Company, as applicable. The Buyer or the Company, as applicable, shall in good
faith defend each such claim with counsel selected by the Buyer or the Company,
as applicable, and reasonably acceptable to the Shareholder Representative.
The Buyer or the Company, as applicable, shall keep the Shareholder
Representative fully informed at all times of the status of the Third Party
Claim. The Buyer or the Company, as applicable, shall cooperate with the
Shareholder Representative in order to insure the proper and adequate defense
of the Third Party Claim which assistance shall include, without limitation,
making available to the other party all pertinent information under its control
as to the claim and making appropriate personnel reasonably available for any
discovery or trial. The Buyer or the Company, as applicable, shall notify the
Shareholder Representative prior to settling or compromising any Third Party
Claim.
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The provisions hereof with respect to arbitration shall,
notwithstanding any other provision hereof, be held in abeyance until such time
as Buyer or the Company, as applicable, certifies to the Shareholder
Representative and the Escrow Agent that the uncertainties as to such Third
Party Claim have been resolved or developed in such manner that Buyer believes
a Claim exists on account thereof and thus that it is certifying a final
Asserted Claim with respect thereto. The amount of such final Asserted Claim
shall thereafter constitute the Contested Amount for purposes of Section 4.d
hereof. If there is a disagreement between the parties with respect thereto,
then the procedure for arbitration provided for by Section 4 hereof shall be
followed.
7. Matters Pertaining to Distributions to Shareholders. Amounts
to be distributed to Shareholders shall be distributed in accordance with the
percentages set forth on Exhibit A hereto. The right of a Shareholder to
receive any amounts under this Section 7 may not be transferred or otherwise
assigned by the Shareholder to any party, unless such transfer or assignment
occurs by will or by operation of law. From time to time the Escrow Agent
shall provide Buyer and the Shareholder Representative with any changes of
address or similar changes that it may receive with respect to the
Shareholders. In connection with any distribution to be made to Shareholders,
Buyer and the Shareholder Representative shall provide a schedule to the Escrow
Agent setting forth the names, addresses and, to the extent available thereto,
the tax identification numbers of the Shareholders and the amounts to which
each such Shareholder is entitled under this Section 7. The Escrow Agent shall
distribute such amounts in accordance with such instructions as promptly as
practicable after its receipt of such instructions. After 120 days following
the furnishing of such instructions, Shareholder Representative shall be
entitled to require the Escrow Agent to deliver to it any funds (including any
interest received with respect thereto) that the Escrow Agent is unable to, or
does not, disburse to a Shareholder pursuant to this Section 7, and thereafter
such Shareholder shall be entitled to look to Shareholder Representative
(subject to abandoned property, escheat or other similar laws) only as a
general creditor thereof with respect to the cash payable to such Shareholder
pursuant to this Escrow Agreement.
8. Investment of Cash Portion of Escrow Fund. The Escrow Agent
will invest the Escrow Fund in readily marketable securities of the United
States Government or its lawful agencies or in securities guaranteed by the
full faith and credit of the United States, which securities, in either case,
shall have maturities of less than one year, or in shares of investment
companies that, by their charter, invest solely in such securities. In
investing and reinvesting the Escrow Fund, the Escrow Agent will seek to obtain
the best yield consistent with safety of principal, ready marketability and
liquidity that may be necessary to pay Asserted Claims and to make
distributions hereunder. The Escrow Agent will have the authority to sell
investments that it has made from time to time as it deems appropriate. All
income earned on the cash portion of the Escrow Fund, after payment of expenses
incurred in connection therewith, will be held, invested, reinvested and
released with, and shall be deemed to be a part of, the Escrow Fund. All
income earned on the cash portion of the Escrow Fund, after payment of expenses
incurred in connection therewith, will be held, invested, reinvested and
released with, and shall be deemed to be a part of, the Escrow Fund. Neither
Buyer, the Company, the Shareholder Representative, the Shareholders nor the
Escrow Agent shall be liable or responsible for any loss resulting from any
investment or reinvestment made pursuant to this Section 8. All income earned
on the Escrow
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Fund shall be deemed income of Buyer and not of the Escrow Fund for federal
income tax purposes, and Buyer shall pay any federal income taxes attributable
to such income, it being agreed by the parties that the Escrow Fund will be
treated as a grantor trust for federal income tax purposes. Similarly, Buyer
shall be entitled to any deduction available to the Escrow Fund for federal
income tax purposes on account of any expenses contemplated by this Escrow
Agreement to be paid from the Escrow Fund. Further, it is recognized by the
parties that distributions from the Escrow Fund to the Shareholders, if any,
will be taxable in part as interest income to the Shareholders under provisions
of the Internal Revenue Code of 1986 relating to the imputation of interest and
original issue discount, and Buyer will be entitled to any deduction available
for federal income tax purposes on account of the interest income so taxable to
the Shareholders.
9. Liability of Escrow Agent. The duties of the Escrow Agent
hereunder will be limited to the observance of the express provisions of this
Escrow Agreement. The Escrow Agent will not be subject to, or be obliged to
recognize, any other agreement between the parties hereto or directions or
instructions not specifically set forth as provided for herein. The Escrow
Agent will not make any payment or disbursement from or out of the Escrow Fund
that is not expressly authorized pursuant to this Escrow Agreement. The Escrow
Agent may rely upon and act upon any instrument received by it pursuant to the
provisions of this Escrow Agreement that it reasonably believes to be genuine
and in conformity with the requirements of this Escrow Agreement. The Escrow
Agent undertakes to use the same degree of care and skill in performing its
services hereunder as an ordinary prudent person would do or use under the
circumstances in the conduct of his or her own affairs. The Escrow Agent will
not be liable for any error of judgment or any act done or any step taken by it
in good faith or for any mistake of fact or law or for anything that it might
do or refrain from doing in connection with this Escrow Agreement, except to
the extent such actions shall be proved to constitute a material breach of the
Escrow Agent's obligations hereunder, gross negligence or willful misconduct on
the part of the Escrow Agent.
10. Indemnification of Escrow Agent. The Shareholders and Buyer
will severally, but not jointly, indemnify and hold the Escrow Agent harmless
from and against any and all losses, costs, damages or expenses (including, but
not limited to, reasonable attorneys' fees) it may sustain by reason of its
service as Escrow Agent hereunder but only to the extent such losses, costs,
damages or expenses exceed the amount of the funds available in the Escrow
Fund, and except such losses, costs, damages or expenses (including, but not
limited to, reasonable attorneys' fees) incurred by reason of such acts or
omissions for which the Escrow Agent is liable or responsible under the last
sentence of Section 9 hereof. The foregoing indemnification shall survive the
resignation of the Escrow Agent or the termination of this Escrow Agreement.
11. Release of Shareholder Representative; Successor Shareholder
Representative; Fees and Expenses of Shareholder Representative. Each
Shareholder, by accepting amounts paid pursuant to the Purchase Agreement, and
by becoming a beneficiary of this Escrow Agreement, appoints the Shareholder
Representative as such Shareholder's sole and exclusive agent to represent such
Shareholder's interests as a beneficiary of this Escrow Agreement, releases the
Shareholder Representative from liability for any action taken or not taken by
the Shareholder
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Representative under the terms hereof, and agrees that all such action taken or
not taken by the Shareholder Representative shall be binding upon the interests
of such Shareholder in all respects as if such Shareholder had taken or not
taken such action in the absence of the Shareholder Representative's gross
negligence or willful misconduct. Should ▇▇▇▇▇▇ ▇. ▇▇▇▇ III cease to act as
the Shareholder Representative for any reason, the Shareholders shall appoint
an individual from among the Shareholders as the Shareholder Representative.
Any person so appointed as Shareholder Representative shall sign a counterpart
of this Escrow Agreement in such capacity. For services as Shareholder
Representative, the Shareholder Representative will be paid annually from the
Escrow Fund an aggregate fee of $200 per month, pro rated for actual service in
such capacity in any year (with the aggregate amount to be split as they may
agree among persons who may be jointly acting as the Shareholder
Representative), provided that such fee shall not in the aggregate exceed the
aggregate interest income earned by the Escrow Fund less the fees and expenses
of the Escrow Agent provided for by Section 12 hereof.
12. Fees and Expenses of the Escrow Agent. Except as provided in
Section 17 hereof, all fees of the Escrow Agent for its service hereunder,
together with any expenses reasonably incurred by the Escrow Agent in
connection with this Escrow Agreement, shall be paid from the cash portion of
the Escrow Fund. The Escrow Agent is authorized to pay such fees and expenses
in advance and on the anniversary date of such advance payment thereafter. The
fees and expenses for services hereunder shall be calculated pursuant to the
terms and conditions set forth in the letter attached hereto as Exhibit B.
13. Designees for Instructions. Buyer, may, by notice to the
Escrow Agent, designate one or more persons who will execute notices and from
whom the Escrow Agent may take instructions hereunder. Such designations may
be changed from time to time upon notice to the Escrow Agent from Buyer. Until
further notice, ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇ are each designated as
the respective designees of Buyer to give notices and instructions to the
Escrow Agent. The Escrow Agent will be entitled to rely conclusively on any
notices or instructions from any person so designated by Buyer.
14. Resignation of Escrow Agent. The Escrow Agent may resign from
its duties hereunder by giving each of the Buyer and the Shareholder
Representative written notice of the effective date of such resignation (which
effective date shall be at least 60 days after the date of such notice is
given). If on or before the effective date of such resignation, the Escrow
Agent has not received joint written instructions from Buyer and the
Shareholder Representative regarding the transfer of the Escrow Fund, it will
thereupon deposit the Escrow Fund into the registry of a court of competent
jurisdiction. The parties hereto intend that a substitute Escrow Agent will be
appointed to fulfill the duties of the Escrow Agent hereunder for the remaining
term of this Escrow Agreement in the event of the Escrow Agent's resignation
and agree reasonably to cooperate to make such appointment.
15. Notices. All notices, requests, instructions and demands that
may be given by any party hereto to any other party in the course of the
transactions herein contemplated will be in
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writing and will be deemed given when posted in the United States mail,
certified return receipt requested, addressed to the respective parties as
follows, or when received, if earlier, by other written or electronic
communication as follows:
(a) If to Buyer or the Company:
▇▇▇▇▇▇ Petroleum Services Corp.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Tel: 281/▇▇▇-▇▇▇▇
Fax: 409/▇▇▇-▇▇▇▇
with a copy to:
Fulbright & ▇▇▇▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Tel: 713/▇▇▇-▇▇▇▇
Fax: 713/▇▇▇-▇▇▇▇
(b) If to the Escrow Agent:
U.S. Trust Company of Texas, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ATTN: Corporate Trust
Tel: 214/▇▇▇-▇▇▇▇
Fax: 214/▇▇▇-▇▇▇▇
(d) If to the Shareholder Representative:
▇▇▇▇▇▇ ▇. ▇▇▇▇, III
c/o Quest Capital Corp.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: 404/▇▇▇-▇▇▇▇
Fax: 404/▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: 404/▇▇▇-▇▇▇▇
Fax: 404/▇▇▇-▇▇▇▇
16. Binding Effect. This Escrow Agreement will be binding upon
and inure to the benefit of the parties hereto and their permitted assigns.
17. Amendment and Termination. This Escrow Agreement may be
amended before the Effective Time by and upon written notice to the Escrow
Agent, given jointly by Buyer, the Shareholder Representative, and the Company,
but the duties and responsibilities of the Escrow Agent may not be increased
without its written consent. This Escrow Agreement may be amended or canceled
by and upon written notice to the Escrow Agent given jointly by Buyer and the
Shareholder Representative, but the duties and responsibilities of the Escrow
Agent may not be increased without its written consent. This Escrow Agreement
will terminate on the date on which no amounts remain in the Escrow Fund;
provided, however, that Buyer shall pay the Escrow Agent all reasonable fees
and expenses incurred by it and remaining unpaid on the date of such
termination; and provided further that this Escrow Agreement shall not
terminate until the final resolution of all Asserted Claims.
18. Applicable Law. THIS ESCROW AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING
EFFECT TO CONFLICTS OF LAW PRINCIPLES.
19. Counterparts. This Escrow Agreement may be executed in one or
more counterparts, each of which will be deemed an original, but all of which
together will constitute but one and the same instrument.
20. Captions and Paragraph Headings. Captions and paragraph
headings used herein are for convenience only and are not part of this Escrow
Agreement and will not be used in construing it.
SIGNATURES BEGIN ON THE FOLLOWING PAGE
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the day and year first above written.
▇▇▇▇▇▇ PETROLEUM SERVICES CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
President and Chief Executive Officer
SHAREHOLDER REPRESENTATIVE
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, III
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, III
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Title:
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SHAREHOLDERS
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ REVOCABLE TRUST
By: *
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Name:
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Title:
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/s/ ▇▇▇▇▇ ▇. RAMSAY
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
A-11
12
**
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
*
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▇▇▇▇ ▇▇▇▇▇▇
*
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▇▇▇ ▇▇▇▇▇
*
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
**
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▇▇▇▇▇▇ ▇▇▇
**
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▇▇▇▇▇▇▇ ▇▇▇▇
**
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇
**
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
A-12
13
*
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
*
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▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
*
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▇▇▇▇▇▇▇ ▇▇▇▇
*
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▇▇▇▇▇ ▇▇▇▇
*
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▇. ▇. ▇▇▇▇
MALHOTRA ENTERPRISES LTD.
By: /s/ CHAMEN MALHATRA
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
WIND RIVER ASSOCIATES, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, III
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
▇-▇▇
▇▇
▇▇▇▇ ONE CAPITAL PARTNERS L.P.
By: BOCP Corporation
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Authorized Signer
FIRST COMMERCE CAPITAL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇,
Senior Vice President
A-14
15
*By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Attorney-in-Fact
Pursuant to Power of Attorney
**By: /s/ ▇▇▇▇▇ ▇. RAMSAY
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Attorney-in-Fact
Pursuant to Power of Attorney
A-15
16
U.S. TRUST COMPANY OF TEXAS, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Title: Vice President
------------------------------------
A-16
17
EXHIBIT A
NAME PERCENTAGE
--------------------------------- ----------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 4.010
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Revocable Trust 2.874
▇▇▇▇▇ ▇. Ramsay 1.110
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ .557
▇▇▇▇ ▇▇▇▇▇▇ .472
▇▇▇ ▇▇▇▇▇ .472
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ .377
▇▇▇▇▇▇ ▇▇▇ .341
▇▇▇▇▇▇▇ ▇▇▇▇▇ .307
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ .273
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ .▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ .▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ .118
▇▇▇▇▇▇▇ ▇▇▇▇ .118
▇▇▇▇▇ ▇▇▇▇ .118
▇. ▇. ▇▇▇▇ .118
Malhotra Enterprises Ltd. .118
Wind River Associates, LLC 70.640
Banc One Capital Partners LP 11.200
First Commerce Capital, Inc. 6.400
------
100%
======
A-17