1
Exhibit 4.5
ESCROW AGREEMENT
ESCROW AGREEMENT ("Escrow Agreement"), dated as of this 31st day of
March, 1998, by and among (i) SuperShuttle International, Inc., a Delaware
corporation ("SuperShuttle"); (ii) SuperShuttle Acquisition Co. II, an Arizona
corporation ("Merger Sub"); (iii) Tamarack Transportation, Inc., a California
corporation ("Tamarack"), (iv) Xxxx Xxxxx (the "Shareholder") and (v) Xxxxxx
Xxxxxxxx (the "Escrow Agent").
W I T N E S S E T H
WHEREAS, (i) SuperShuttle, Merger Sub, Tamarack and the Shareholder are
parties to a certain Amended and Restated Agreement and Plan of Reorganization
and Merger (the "Merger Agreement"), pursuant to which SuperShuttle is acquiring
all of the outstanding capital stock of Tamarack (the "Tamarack Shares") in
consideration for, among other things, shares of common stock of SuperShuttle
(the "SuperShuttle Shares");
WHEREAS, the Tamarack Shares and the SuperShuttle Shares are to be placed
in escrow with the Escrow Agent to secure the rights of the parties in
accordance with the terms of the Merger Agreement, and the Tamarack Shares and
the SuperShuttle Shares are to be released in accordance with the terms and
conditions of this Escrow Agreement; and
WHEREAS, SuperShuttle, Merger Sub, Tamarack and the Shareholder are
desirous of having the Escrow Agent serve as the escrow agent for the Tamarack
Shares and the SuperShuttle Shares, and the Escrow Agent is desirous of serving
in such capacity, in accordance with the terms and conditions contained
hereinafter.
NOW, THEREFORE, in consideration of the mutual premises set forth herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Establishment and Termination of Escrow. The parties hereto hereby
agree that the Tamarack Shares will be delivered by the Shareholder and the
SuperShuttle Shares will be delivered by SuperShuttle to the Escrow Agent in
accordance with the terms and conditions of the Merger Agreement, and the Escrow
Agent shall hold said Tamarack Shares and SuperShuttle Shares in accordance with
the terms and conditions set forth hereinafter. The Escrow Agent is hereby
appointed escrow agent for the purpose of receiving the Tamarack Shares and the
SuperShuttle Shares. This Escrow Agreement shall automatically terminate in
accordance with its terms upon the release of all of the Tamarack Shares and the
SuperShuttle Shares from escrow as provided herein.
2. Release of Shares.
A. The Tamarack Shares shall be released as follows:
(i) to the Shareholder, in accordance with the terms and
conditions set forth in the Merger Agreement and Schedule A attached
hereto, if SuperShuttle
2
does not consummate an initial public offering of SuperShuttle
Common Stock within 130 days after the date of this Agreement, and
the Shareholder exercises his right to repurchase, at fair market
value, the Tamarack Common Stock transferred to SuperShuttle;
(ii) if Tamarack exercises the repurchase right set forth in
A(i) above, then the SuperShuttle Shares shall be released to
SuperShuttle.
B. The SuperShuttle Shares shall be released as follows:
(i) to SuperShuttle, in accordance with the terms and
conditions of the Merger Agreement, (a) if Tamarack fails to obtain,
by July 31, 1998, the written approval, acceptable to SuperShuttle,
of the California Public Utilities Commission to the change in
ownership of Tamarack to SuperShuttle; or (b) if Tamarack fails to
obtain, by July 31, 1998, all consents necessary by reason of any
change of control provisions in any license, permit or third party
contract material to the business of Tamarack, and SuperShuttle
exercises its right within thirty (30) days following the applicable
target date referenced herein to repurchase, at fair market value,
the SuperShuttle Common Stock transferred to Tamarack;
(ii) if SuperShuttle exercises the repurchase right set forth
in B(i) above, then the Tamarack Shares shall be released to
Tamarack.
C. If the Shareholder does not exercise the repurchase right set
forth in A(i) in accordance with any of the applicable target dates set
forth therein, and SuperShuttle does not exercise the repurchase right
set forth in B(i) in accordance with the applicable target date set forth
therein, then the Tamarack Shares shall be released to SuperShuttle and
the SuperShuttle Shares shall be released to Tamarack.
3. Rights, Duties and Responsibilities of Escrow Agent. The parties
hereto hereby acknowledge and agree that the duties of the Escrow Agent
hereunder are purely ministerial in nature. The parties hereto further agree
that:
A. During the term of the Escrow Agreement, the Escrow Agent
shall vote the SuperShuttle Shares as directed by the Shareholder and
shall vote the Tamarack Shares as directed by SuperShuttle.
B. The Escrow Agent shall not be responsible for the performance
by any party of its respective obligations under the Merger Agreement.
C. The Escrow Agent shall have the right to act in reliance upon
any document, instrument or signature reasonably believed by it to be
genuine and to assume that any person purporting to give any notice or
instructions in accordance with this Escrow Agreement or in connection
with any transaction to which this Escrow Agreement relates has been duly
authorized to do so.
2
3
D. In the event that the Escrow Agent shall be uncertain as to its
duties or rights hereunder or shall receive instructions with respect to
the Tamarack Shares or the SuperShuttle Shares, which, in its sole
opinion, are in conflict with either other instructions received by it or
any provision of this Escrow Agreement, it shall be entitled to hold the
Tamarack Shares or the SuperShuttle Shares, in escrow, pending the
resolution of such uncertainty to the Escrow Agent's sole satisfaction,
by written confirmation of an agreement among SuperShuttle, Tamarack and
the Shareholder, or by final judgment of a court or courts of competent
jurisdiction; or the Escrow Agent, at its option, may deposit the
SuperShuttle Shares or the Tamarack Shares, into the registry of a United
States court of competent jurisdiction in a proceeding to which all
parties in interest are joined. Notwithstanding anything contained herein
to the contrary, in the event of any dispute among the parties hereto,
the parties hereto hereby agree that the Escrow Agent shall not be deemed
to have a conflict with the representation of Tamarack and the
Shareholder.
4. Amendment; Resignation. This Escrow Agreement may be modified or
amended only in writing and with the written consent of all of the parties
hereto. Should the parties herein attempt to change this Escrow Agreement in a
manner which, in the Escrow Agent's sole opinion, is undesirable, the Escrow
Agent may resign as Escrow Agent upon three days' written notice to the other
parties hereto; otherwise, it may resign as Escrow Agent at any time upon five
days' written notice to the parties hereto. In the case of the Escrow Agent's
resignation its only duty shall be to hold and dispose of the SuperShuttle
Shares and the Tamarack Shares in accordance with the original provisions of
this Escrow Agreement until a successor escrow agent shall be appointed and
written notice of the name and address of such successor escrow agent shall be
given to the Escrow Agent by SuperShuttle and/or Tamarack and the Shareholder;
whereupon the Escrow Agent's only duty shall be to deliver to the successor
escrow agent the SuperShuttle Shares and the Tamarack Shares. Any successor
escrow agent shall be appointed hereunder by SuperShuttle subject to the
approval of the Shareholder, which approval shall not be unreasonably withheld.
5. Expenses. The Escrow Agent shall be reimbursed by SuperShuttle and the
Shareholder for any and all reasonable expenses incurred in connection with this
Escrow Agreement. Any expenses to be reimbursed hereunder shall be due and
payable upon receipt of an invoice describing the same.
6. Indemnification. SuperShuttle, Tamarack and the Shareholder (the
"Indemnitors"), hereby agree to indemnify, jointly and severally, the Escrow
Agent against, and hold it harmless of and from, any and all loss, liability,
cost, damage and expense, including, without limitation, reasonable legal
counsel fees and court costs, which the Escrow Agent may suffer or incur by
reason of any action, claim, investigation, or proceeding brought against the
Escrow Agent, arising out of or relating in any way to this Escrow Agreement or
any transaction to which this Escrow Agreement related, other than any action,
claim or proceeding resulting from the gross negligence or willful misconduct of
the Escrow Agent. The indemnification provisions herein shall survive the
termination of this Escrow Agreement. SuperShuttle, Tamarack and the
Shareholder, further agree hereunder that in the event of any required
indemnification hereunder of the Escrow Agent, in the event said indemnification
is the result
3
4
of any action or claim brought or asserted by either SuperShuttle, Tamarack or
the Shareholder, the prevailing party (either SuperShuttle, Tamarack and/or the
Shareholder) shall be entitled to be reimbursed in full for any damages or loss
suffered as a result of this indemnification provision and as a consequence of
the other party hereto (either SuperShuttle, Tamarack and/or the Shareholder)
bringing such action or asserting such claim against the Escrow Agent.
7. Miscellaneous.
A. No Waiver. Neither the failure nor any delay on the part of any
party to exercise any right, remedy, power or privilege under this Escrow
Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any
other or further exercise of the same or of any other right, remedy,
power or privilege, nor shall any waiver of any right, remedy, power or
privilege with respect to any occurrence be construed as a waiver of such
right, remedy, power or privilege with respect to any other occurrence.
No waiver shall be effective unless it is in writing and is signed by the
party asserted to have granted such waiver.
B. Controlling Law. This Escrow Agreement shall be governed by the
laws of the State of Arizona, without regard to the principles of
conflict of laws thereof.
C. Notices. All notices, requests, demands and other communications
required or permitted under this Escrow Agreement shall be in writing and
shall be deemed to have been duly given, made and received only when
personally delivered, on the day received by certified mail, return
receipt requested or by overnight courier, as evidenced by the signature
on any receipt with respect to the foregoing, addressed to the addresses
set forth below, unless notice of a change in address was previously
given as aforesaid.
If to SuperShuttle: SuperShuttle International, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
Attn: R. Xxxxx Xxxx, President and CEO
With a copy to: Squire, Xxxxxxx & Xxxxxxx L.L.P.
Two Renaissance Square
00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
FAX: (000) 000-0000
Attn: Xxxxxxxxxxx X. Xxxxxxx, Esq.
4
5
If to Tamarack or
the Shareholder: Tamarack Transportation, Inc.
000 Xxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
With a copy to: Petillon & Xxxxxx
1260 Union Bank Tower
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attn: Xxx Xxxx
D. Binding Nature of Agreement; No Assignment. This Escrow Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective heirs, personal representatives, successors and assigns,
except that no party may assign or transfer its rights under this
Agreement without the prior written consent of the other parties hereto.
E. Provisions Separable. The provisions of this Escrow Agreement are
independent of and separable from each other, and no provision shall be
affected or rendered invalid or unenforceable by virtue of the fact that
for any reason any other or others of them may be invalid or
unenforceable in whole or in part.
F. Section Headings. The section headings in this Escrow Agreement
are for convenience only; they form no part of this Escrow Agreement and
shall not affect its interpretation.
G. Exhibits and Schedules. All Exhibits and Schedules attached
hereto are hereby incorporated by reference into, and made a part of,
this Escrow Agreement.
H. No Third-Party Beneficiaries. This Escrow Agreement shall not
confer any rights or remedies upon any person other than the parties and
their respective heirs, personal representatives, successors and
permitted assigns.
I. Entire Agreement; Amendments. This Escrow Agreement (including
the documents referred to herein) constitutes the entire agreement among
the parties and supersedes any prior understandings, agreements, or
representations by or among the parties, written or oral, that may have
related in any way to the subject matter hereof. This Escrow Agreement
may not be amended, supplemented or modified in whole or in part except
by an instrument executed by all of the parties hereto.
J. Construction. Any reference to any federal, state, local or
foreign statute or law shall be deemed also to refer to the rules and
regulations promulgated thereunder, unless the context requires
otherwise. This Escrow Agreement shall be
5
6
neither construed against nor in favor of any of the parties hereto, but
rather in accordance with the fair meaning of its content.
K. Expenses. The parties hereto hereby agree that each party shall
bear its own legal and accounting expenses incurred in the preparation of
this Agreement and the consummation of the transactions hereunder.
IN WITNESS WHEREOF, the parties have executed and delivered this Escrow
Agreement on the date first above written.
SUPERSHUTTLE INTERNATIONAL, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. XxXxx
-----------------------------------
Name: Xxxxxx X. XxXxx
Title: Secretary, CFO
SUPERSHUTTLE ACQUISITION CO. II INC.,
an Arizona corporation
By: /s/ Xxxxxx X. XxXxx
-----------------------------------
Name: Xxxxxx X. XxXxx
Title: Secretary
TAMARACK TRANSPORTATION, INC.
a California corporation
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: President
6
7
SHAREHOLDER
/s/ Xxxx Xxxxx
-----------------------------------------
Xxxx Xxxxx
ESCROW AGENT
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Xxxxxx Xxxxxxxx
7
8
SCHEDULE A
ALLOCATION OF TAMARACK SHARES FOR
DISTRIBUTION AMONG SHAREHOLDER UPON EXERCISE OF REPURCHASE RIGHT
Xxxx Xxxxx 100%
8
