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EXHIBIT 4.7
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) Southern Shuttle Services, Inc. ("Southern
Shuttle") AAA Wheelchair Wagon Services, Inc. ("Wheelchair Wagon"); Wheelchair
Ambulance of Hollywood, Inc. ("Wheelchair Ambulance"); Limousines of South
Florida, Inc. ("Limousines"); and A1A Snowbird Leasing, Inc. ("Snowbird")
(Southern Shuttle, Wheelchair Wagon, Wheelchair Ambulance, Limousines and
Snowbird are collectively referred to as the "Companies"); (iii) Xxxx Xxxxxx,
Xxxxx Xxxxxx and Xxxxxx Xxxxxxxxx (Xxxx Xxxxxx, Xxxxx Xxxxxx and Xxxxxx
Xxxxxxxxx are hereinafter collectively referred to as the "Sellers"), and (iv)
Akerman, Senterfitt & Xxxxxx, P.A. (the "Escrow Agent").
W I T N E S S E T H:
WHEREAS, (i) SuperShuttle, Southern Shuttle, and the Sellers are
parties to a certain Stock Purchase Agreement, (ii) SuperShuttle, Wheelchair
Wagon, Wheelchair Ambulance, Limousines, Snowbird and Xxxxxx are parties to a
certain Stock Purchase Agreement, and (iii) SuperShuttle and the Sellers are
parties to a certain Letter Agreement, all dated the date hereof (collectively
the "Purchase Documents"), pursuant to which SuperShuttle is acquiring all of
the outstanding capital stock of the Companies (the "Sellers' Shares") in
consideration for, among other things, shares of common stock of SuperShuttle
(the "SuperShuttle Shares");
WHEREAS, the Sellers' 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 Purchase Documents, and the Sellers' Shares and
the SuperShuttle Shares are to be released in accordance with the terms and
conditions of this Escrow Agreement; and
WHEREAS, SuperShuttle, the Companies and the Sellers are desirous of
having the Escrow Agent serve as the escrow agent for the Sellers' 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 Sellers' Shares will be delivered by the Sellers and the
SuperShuttle Shares will be delivered by SuperShuttle to the Escrow Agent in
accordance with the terms and conditions of the Purchase Documents, and the
Escrow Agent shall hold said Sellers' Shares and SuperShuttle Shares in
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accordance with the terms and conditions set forth hereinafter. This Escrow
Agreement shall automatically terminate in accordance with its terms upon the
release of all of the Sellers' Shares and the SuperShuttle Shares from escrow as
provided herein.
2. Release of Shares.
(a) The Sellers' Shares shall be released as follows:
(i) to the Sellers, in accordance with Schedule
A hereof, upon the occurrence of any one of
the following events (collectively the
"Rescission Events") (i) if SuperShuttle
does not file a registration statement for
an initial public offering on Form S-1 with
the Securities and Exchange Commission (the
"SEC") by May 31, 1998 to register for sale
shares of SuperShuttle Common Stock (the
"S-1"); (ii) if the SEC does not declare
such registration statement effective by
July 31, 1998; (iii) if the underwritten
initial registration statement for an
initial public offering on a firm commitment
basis does not occur by August 10, 1998,
providing a per share offering price to the
public of at least $6.50; or (iv) if
Southern fails to obtain the written
approval, acceptable to SuperShuttle, of the
Aviation Department of Dade County to the
change in ownership of Southern to
SuperShuttle prior to the effective date of
the S-1;
(ii) to SuperShuttle in the event that an initial
public offering of SuperShuttle Common Stock
providing a per share offering price to the
public of at least $6.50 is completed prior
to the occurrence of any Rescission Event.
(b) The SuperShuttle Shares shall be released as follows:
(i) to SuperShuttle upon a Rescission Event;
(ii) to Sellers in the event that an initial
public offering of SuperShuttle Common Stock
providing a per share offering price to the
public of at least $6.50 is completed prior
to the occurrence of a Rescission Event;
provided however, that 25,000 of the
SuperShuttle Shares (the "Consent Shares")
shall be retained by the Escrow Agent in
accordance with Schedule B hereto if
Limousines has not received the Consent (as
defined in the Letter Agreement) at the time
of the initial public offering, and the
Consent Shares shall be delivered to Sellers
in accordance with Schedule B hereto upon
the delivery of the Consent to SuperShuttle
provided such Consent is obtained on or
before April 30, 1999. If the Consent is not
obtained on or before April
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30, 1999, Escrow Agent shall deliver the
Consent Shares to SuperShuttle.
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 shares of SuperShuttle as directed by the Sellers and shall vote
the Sellers' 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 Purchase
Documents.
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.
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
Sellers' 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 Sellers' 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
between SuperShuttle, the Companies and the Sellers, 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 Sellers' 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 the Companies and the Sellers.
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 Sellers' 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 the Companies and the Sellers;
whereupon the Escrow Agent's only duty
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shall be to deliver to the successor escrow agent the SuperShuttle Shares and
the Sellers' Shares. Any successor escrow agent shall be appointed hereunder by
SuperShuttle subject to the approval of two of the Sellers, which approval shall
not be unreasonably withheld.
5. Expenses. The Escrow Agent shall be reimbursed by SuperShuttle and
the Sellers 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. Any Escrow Agent which
is a law firm or accounting firm shall be entitled to its normal hourly fees for
its services rendered as Escrow Agent, which fees shall be paid equally by
SuperShuttle and the Sellers.
6. Indemnification. SuperShuttle, the Companies and the Sellers (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 relates, 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, the Companies and the
Sellers, further agree hereunder that in the event of any required
indemnification hereunder of the Escrow Agent, in the event said indemnification
is the result of any action or claim brought or asserted by either SuperShuttle,
the Companies and the Sellers, the prevailing party (either SuperShuttle, the
Companies and/or the Sellers) 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, the Companies and/or
the Sellers) 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
either 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 Florida, without application to the principals of
conflicts of laws.
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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, or 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
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.
If to Southern or the Shareholders: Southern Shuttle Services,
Inc.
0000 XX 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
Attn: Xxxx Xxxxxx
With a copy to: Akerman, Senterfitt &
Xxxxxx
Sun Trust International
Center
Xxx X.X. Xxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
PH: (000) 000-0000
FAX: (000) 000-0000
Attn: Xxxxxxxx X. Xxxxx
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.
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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 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/ Xxx XxXxx
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Name:
-----------------------------------
Title: C.F.O.
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SOUTHERN SHUTTLE SERVICES, INC., a Florida
corporation
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By: /s/ Xxxx Xxxxxx
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Name:
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Title:
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AAA WHEELCHAIR WAGON SERVICES, INC.
By: /s/ Xxxxx Xxxxxx
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Name:
-----------------------------------
Title:
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WHEELCHAIR AMBULANCE OF HOLLYWOOD, INC.
By: /s/ Xxxxx Xxxxxx
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Name:
-----------------------------------
Title:
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LIMOUSINES OF SOUTH FLORIDA, INC.
By: /s/ Xxxxx Xxxxxx
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Name:
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Title:
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A1A SNOWBIRD LEASING, INC.
By: /s/ Xxxxx Xxxxxx
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Name:
-----------------------------------
Title:
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/s/ Xxxx Xxxxxx
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XXXX XXXXXX
/s/ Xxxxx Xxxxxx
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XXXXX XXXXXX
/s/ Xxxxxx Xxxxxxxxx
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XXXXXX XXXXXXXXX
AKERMAN, SENTERFITT & XXXXXX, P.A.
By /s/ X.X. Xxxxx
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XXXXXXXX X. XXXXX
For the Firm
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SCHEDULE A
ALLOCATION OF SOUTHERN SHUTTLE SHARES FOR
DISTRIBUTION AMONG SELLERS UPON RESCISSION EVENT
Xxxx Xxxxxx 00
Xxxxx Xxxxxx 4.81
Xxxxxx Xxxxxxxxx 36.19
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SCHEDULE B
ALLOCATION OF CONSENT SHARES AMONG SELLERS
Xxxx Xxxxxx 8,334 Shares
Xxxxx Xxxxxx 8,333 Shares
Xxxxxx Xxxxxxxxx 8,333 Shares
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