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Exhibit 2.2
AMENDED AND RESTATED
AGREEMENT AND PLAN OF REORGANIZATION AND MERGER
AMONG
SUPERSHUTTLE INTERNATIONAL, INC.,
SUPERSHUTTLE ACQUISITION COMPANY II,
TAMARACK TRANSPORTATION, INC.
AND
THE SHAREHOLDERS LISTED ON SCHEDULE 1
MARCH 31, 1998
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AMENDED AND RESTATED
AGREEMENT AND PLAN OF REORGANIZATION AND MERGER
ARTICLE 1
THE MERGER.......................................................... 1
1.1 The Merger, Incidental Transactions............................ 1
1.2 Effect of the Merger........................................... 2
1.3 Consummation of the Merger..................................... 2
1.4 Articles of Incorporation and Bylaws; Directors and Officers... 3
1.5 Conversion of Securities....................................... 3
1.6 No Fractional Shares........................................... 3
1.7 Exchange for Merger Consideration.............................. 4
1.8 Closing of Tamarack Transfer Books............................. 4
1.9 Dissenter's Rights............................................. 4
1.10 Lost, Stolen or Destroyed Certificates......................... 5
1.11 Taking of Necessary Action; Further Action..................... 5
1.12 Escrow......................................................... 5
1.13 Effective Date; Closing........................................ 5
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SUPERSHUTTLE
AND MERGER SUB...................................................... 5
2.1 Organization and Qualification................................. 5
2.2 Authority Relative to This Agreement........................... 6
2.3 Capitalization................................................. 6
2.4 Financial Statements........................................... 7
2.5 Subsidiaries; Merger Sub....................................... 7
2.6 Absence of Undisclosed Liabilities............................. 7
2.7 No Material Adverse Changes.................................... 7
2.8 Absence of Certain Developments................................ 7
2.9 Title to and Condition of Properties........................... 8
2.10 Environmental Matters.......................................... 8
2.11 Accounts Receivable............................................ 9
2.12 Tax Matters.................................................... 9
2.13 Contracts and Commitments...................................... 9
2.14 Restrictions on Business Activities............................ 10
2.15 Intellectual Property Rights................................... 10
2.16 Litigation..................................................... 11
2.17 Brokers' Fees.................................................. 11
2.18 Compliance With Laws; Permits; Certain Operations.............. 11
2.19 Disclosure..................................................... 12
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF TAMARACK
AND THE SHAREHOLDERS..................................................... 12
3.1 Organization and Qualification...................................... 12
3.2 Authority Relative to This Agreement................................ 12
3.3 Capitalization...................................................... 13
3.4 Financial Statements................................................ 13
3.5 Subsidiaries........................................................ 14
3.6 Absence of Undisclosed Liabilities.................................. 14
3.7 No Material Adverse Changes......................................... 14
3.8 Absence of Certain Developments..................................... 14
3.9 Title to and Condition of Properties................................ 16
3.10 Environmental Matters............................................... 17
3.11 Accounts Receivable................................................. 17
3.12 Tax Matters......................................................... 17
3.13 Contracts and Commitments........................................... 18
3.14 Restrictions on Business Activities................................. 19
3.15 Intellectual Property Rights........................................ 19
3.16 Litigation.......................................................... 20
3.17 Brokers' Fees....................................................... 20
3.18 Employment.......................................................... 20
3.19 Employee Benefit Plans.............................................. 20
3.20 Insurance........................................................... 21
3.21 Insider Transactions................................................ 22
3.22 Compliance With Laws; Permits; Certain Operations................... 22
3.23 Disclosure.......................................................... 22
3.24 Minute Books........................................................ 22
ARTICLE 4
ADDITIONAL REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS................ 23
4.1 Organization, Standing and Authority of Shareholders................. 23
4.2 Execution and Delivery; No Conflicts................................. 23
4.3 Consents and Approvals............................................... 23
4.4 Brokers.............................................................. 23
4.5 Securities Laws Compliance........................................... 24
4.6 Shareholder Experience and Investment Representations................ 24
ARTICLE 5
CONDUCT PENDING AND SUBSEQUENT TO THE MERGER............................. 25
5.1 Conduct of Business Pending the Merger............................... 25
5.2 Conduct Subsequent to the Merger..................................... 26
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ARTICLE 6
ADDITIONAL AGREEMENTS.................................................... 27
6.1 Shareholders' Meeting............................................... 27
6.2 Expenses............................................................ 28
6.3 No Negotiations..................................................... 28
6.4 Notification of Certain Matters..................................... 28
6.5 Access to Information; Confidentiality.............................. 28
6.6 Consents; Approvals................................................. 28
6.7 Supplements to Disclosure Schedules................................. 29
6.8 Non-Solicitation of Employees....................................... 29
6.9 Election of Directors............................................... 29
6.10 Confidential Information and Covenant Not To Compete................ 29
ARTICLE 7
CONDITIONS............................................................... 31
7.1 Conditions to Obligations of Each Party to Effect the Merger......... 31
7.2 Additional Conditions to Obligations of SuperShuttle and Merger Sub.. 32
7.3 Additional Conditions to Obligations of Tamarack..................... 33
7.4 Conditions Subsequent to the Merger.................................. 34
ARTICLE 8
TERMINATION, AMENDMENT AND WAIVER........................................ 35
8.1 Termination.......................................................... 35
8.2 Effect of Termination................................................ 35
8.3 Amendment............................................................ 35
8.4 Waiver............................................................... 36
ARTICLE 9
GENERAL PROVISIONS....................................................... 36
9.1 Survival of Representations and Warranties.......................... 36
9.2 Public Announcements................................................ 36
9.3 Notices............................................................. 36
9.4 Interpretation...................................................... 37
9.5 Schedules and Exhibits.............................................. 37
9.6 Severability........................................................ 37
9.7 Jurisdiction; Venue; Service of Process............................. 37
9.8 Waiver of Jury Trial................................................ 38
9.9 Miscellaneous....................................................... 38
SIGNATURE PAGE........................................................... 39
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INDEX OF EXHIBITS AND SCHEDULES
Exhibit "A" Articles of Incorporation of the Surviving Corporation
Exhibit "B" Bylaws of the Surviving Corporation
Exhibit "C" Designated Officers and Directors of the Surviving Corporation
Exhibit "D" Employment Agreement
Exhibit "E" Registration Rights Agreement
Exhibit "F" Escrow Agreement
Exhibit "1.1" Agreement and Plan of Merger
Schedule "1" Tamarack Shareholders and Common Stock Ownership
Schedule "1.1" List of Assets and Method of Transfer
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AMENDED AND RESTATED
AGREEMENT AND PLAN OF REORGANIZATION AND MERGER
This AMENDED AND RESTATED AGREEMENT AND PLAN OF REORGANIZATION AND
MERGER (the "Agreement") is made as of March 31, 1998 by and among SUPERSHUTTLE
INTERNATIONAL, INC., a Delaware corporation ("SuperShuttle"); SUPERSHUTTLE
ACQUISITION COMPANY II, an Arizona corporation and a wholly owned subsidiary of
SuperShuttle ("Merger Sub"); TAMARACK TRANSPORTATION, INC., a California
corporation ("Tamarack"); and those Tamarack shareholders listed on Schedule "1"
hereto (collectively, the "Shareholders" and, individually, a "Shareholder").
RECITALS
A. SuperShuttle and Tamarack are parties to a letter agreement dated
March 2, 1998 (the "Letter of Intent"), which contemplates the acquisition by
SuperShuttle of all of the outstanding capital stock of Tamarack.
B. SuperShuttle has caused the formation of Merger Sub for the purpose
of effecting the acquisition through a reverse triangular merger with and into
Tamarack.
C. The Shareholders currently and collectively own all of the issued
and outstanding shares of capital stock of Tamarack, with each Shareholder
owning the number of shares set forth opposite such Shareholder's name on
Schedule 1.
D. The Shareholders are joined herein for purposes of affirming the
representations and warranties made in Article 3, and to otherwise be bound
hereto for the obligations of Tamarack for which they are jointly and severally
liable.
E. The parties have determined that it is in their respective interests
to merge Merger Sub with and into Tamarack (the "Merger") and to undertake such
other actions described herein, all on the terms and subject to the conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, the parties agree as follows:
ARTICLE 1
THE MERGER
The respective boards of directors of SuperShuttle, Merger Sub and
Tamarack have, by resolutions duly adopted, approved the following provisions of
this Article 1 as the plan/agreement of merger required by Section 1108 of the
California Corporations Code, as amended (the "California Law") and Section
10-1107 of the Arizona Business Corporation Act, as amended (the "Arizona Law")
(collectively, the "Merger Statutes"), in connection with the Merger:
1.1 The Merger, Incidental Transactions. At the Effective Time (as
defined in Section
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1.3), in accordance with this Agreement, the Agreement and Plan of Merger
attached hereto as Exhibit "1.1" and the Merger Statutes, Merger Sub shall be
merged with and into Tamarack. The separate corporate existence of Merger Sub
(except as such existence may be continued by operation of law) shall cease, and
Tamarack shall continue as the surviving corporation. Tamarack, in its capacity
as the corporation surviving the Merger, sometimes is referred to herein as the
"Surviving Corporation." The parties shall use their reasonable best efforts to
undertake a corporate name change for the Surviving Corporation with the
California Secretary of State to "SuperShuttle Los Angeles, Inc." when expedient
to do so considering the California Public Utilities Commission (the "PUC")
process, among other factors.
As an incident to the Merger transactions and as a predicate
and condition to them, certain assets are required to be transferred into
Tamarack or other accommodations made in order to effect the purpose of allowing
the Surviving Corporation to operate the business of Tamarack as presently
conducted. In this regard, the assets described on Schedule 1.1 attached hereto
and incorporated by reference herein shall be transferred in the manner
contemplated by Schedule 1.1 immediately prior to the Effective Time. It is
acknowledged by the parties hereto that any and all radio frequencies, real
estate interests, permits, and similar assets necessary to the conduct of the
business of Tamarack immediately prior to the Effective Time shall be and become
the property of the Surviving Corporation effective upon the Merger through the
processes described on Schedule 1.1 without any further form of consideration or
payment owing to Tamarack or any of the Shareholders. The transactions
contemplated by Schedule 1.1 are a fundamental part of this Agreement and the
consummation of those transactions is a condition to the effectiveness of the
Merger.
1.2 Effect of the Merger. At the Effective Time, the Surviving
Corporation shall possess all the rights, privileges, immunities and franchises
of each of Merger Sub and Tamarack (collectively, the "Constituent
Corporations"); all property, real, personal and mixed, and all debts,
liabilities and duties due on whatever account, and all and every other interest
of or belonging to or due to each of the Constituent Corporations shall be taken
and deemed to be transferred to and vested in the Surviving Corporation without
further act or deed; and the Surviving Corporation shall be responsible and
liable for liabilities and obligations of each of the Constituent Corporations,
in each case in accordance with the Merger Statutes.
1.3 Consummation of the Merger. As soon as is practicable after the
satisfaction or waiver of the conditions set forth in Sections 7.1, 7.2 and 7.3
of Article 7, the parties hereto shall cause the Agreement and Articles of
Merger to be delivered to the Arizona Corporation Commission of the State of
Arizona and the Agreement and officers' certificates of each Constituent
Corporation to be delivered to the Secretary of State of the State of
California, in such form as required by and executed in accordance with the
Arizona Law and the California Law, respectively. The Merger shall be effective
at such time as such documents are duly filed with (i) the Arizona Corporation
Commission of the State of Arizona, and (ii) the Secretary of State of the State
of California, which filings shall be made reasonably simultaneously. The date
and time when the Merger shall become effective is referred to as the "Effective
Time." It is contemplated that the conditions to consummation of the Merger will
be satisfied, if at all, on or before March 31, 1998, and that the Effective
Time shall be as soon as practicable following the satisfaction of the
conditions set forth in Sections 7.1, 7.2 and 7.3 of Article 7 hereof on or
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before March 31, 1998.
1.4 Articles of Incorporation and Bylaws; Directors and Officers. The
Articles of Incorporation and the Bylaws of the Surviving Corporation shall be
restated in the forms of Exhibits "A" and "B" hereto and incorporated herein.
The persons identified on Exhibit "C" shall be the directors and officers of the
Surviving Corporation at the Effective Time.
1.5 Conversion of Securities. At the Effective Time, by virtue of the
Merger and without any action on the part of Merger Sub, Tamarack or the holders
of any of the following securities:
(a) Each share of Common Stock, no par value, of Tamarack (the
"Tamarack Common Stock") issued and outstanding immediately prior to
the Effective Time shall, by virtue of the Merger and without any
action on the part of the holders thereof, automatically be canceled
and extinguished and the total number of outstanding shares of Tamarack
Common Stock shall be converted into and become a right to receive
731,621 shares of Common Stock, $0.01 par value per share, of
SuperShuttle (the "SuperShuttle Common Stock") (the "Exchange Ratio"),
payable to the Shareholders pro rata to their Tamarack Common Stock
ownership as reflected on Schedule 1. The aggregate number of shares of
SuperShuttle Common Stock to be issued in order to give effect to this
provision will represent approximately eleven percent (11%) of the
total number of outstanding shares of SuperShuttle Common Stock when
issued.
(b) Each share of Tamarack Common Stock issued and outstanding
immediately prior to the Effective Time and held in the treasury of
Tamarack shall automatically be canceled and extinguished and no
payment shall be made with respect thereto.
(c) Each share of Common Stock, par value $0.01 per share, of
Merger Sub issued and outstanding immediately prior to the Effective
Time shall automatically be converted into and become one validly
issued, fully paid and nonassessable share of Common Stock, no par
value per share, of the Surviving Corporation. Each stock certificate
of Merger Sub evidencing ownership of any such shares shall continue to
evidence ownership of such shares of capital stock of the Surviving
Corporation.
(d) The Exchange Ratio shall be adjusted to reflect fully the
effect of any stock split, reverse split, stock dividend (including any
dividend or distribution of securities convertible into SuperShuttle
Common Stock or Tamarack Common Stock), reorganization,
recapitalization or other like change with respect to SuperShuttle
Common Stock or Tamarack Common Stock occurring after the date hereof
and prior to the Effective Time, but shall not be adjusted for the
exercise or conversion of any outstanding SuperShuttle securities
convertible into SuperShuttle Common Stock.
1.6 No Fractional Shares. No fractional shares of SuperShuttle Common
Stock shall be issued. Fractional shares of such stock shall be rounded to the
nearest whole share.
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1.7 Exchange for Merger Consideration. At the Effective Time, each of the
Shareholders shall surrender the certificate or certificates representing shares
of Tamarack Common Stock to SuperShuttle. Promptly following surrender,
SuperShuttle shall issue the SuperShuttle Common Stock payable to the
Shareholders pursuant to Section 1.5. The certificates of Tamarack Common Stock
surrendered to SuperShuttle shall be duly endorsed and otherwise in proper form
for transfer as SuperShuttle may require. SuperShuttle shall not be obligated to
deliver the consideration to which any Shareholder is entitled as a result of
the Merger until such Shareholder surrenders his or her certificate or
certificates representing the shares of Tamarack Common Stock to be exchanged.
After the Effective Time, each outstanding certificate or certificates that
represented shares of Tamarack Common Stock as of the Effective Time shall be
deemed for all corporate purposes to evidence only the right of the holder
thereof to receive such person's share of the consideration calculated pursuant
to Section 1.5 in exchange therefor. No interest shall be paid or accrued on any
consideration payable upon the surrender of the certificates.
1.8 Closing of Tamarack Transfer Books. At the Effective Time, the
stock transfer books of Tamarack shall be closed and no transfer of shares of
Tamarack Common Stock issued and outstanding immediately prior to the Effective
Time shall thereafter be made (except as provided for or contemplated in Section
1.5 above).
1.9 Dissenter's Rights. Subject to Section 7.2(e):
(a) Any shares of capital stock of Tamarack held by a holder
who has exercised dissenters' rights for such shares in accordance with
Chapter 13 of the California Corporations Code and who, as of the
Effective Time, has not effectively withdrawn or lost (through failure
to perfect or otherwise) such dissenters' rights ("Dissenting Shares"),
shall not be converted into or represent a right to receive
SuperShuttle Common Stock pursuant to Section 1.5 but the holder
thereof shall only be entitled to such rights as are granted by
applicable corporate law.
(b) Notwithstanding the provisions of subsection (a), if any
holder of Dissenting Shares shall effectively withdraw or lose his
dissenters' rights, then, as of the later of the Effective Time or the
occurrence of such event, such holder's shares shall automatically be
converted into and represent only the right to receive the Merger
consideration set forth in Section 1.5, without interest thereon, upon
surrender of the certificate or certificates representing such
Dissenting Shares.
(c) Tamarack shall give SuperShuttle (i) prompt notice of any
written demands received by Tamarack to require Tamarack to purchase
shares of capital stock of Tamarack, withdrawals of such demands, and
any other instruments served pursuant to Chapter 13 of the California
Corporations Code and received by Tamarack and (ii) the opportunity to
participate in all negotiations and proceedings with respect to such
demands. Tamarack shall not, except with the prior written consent of
SuperShuttle, voluntarily make any payment with respect to any such
demands or offer to settle or settle any such demands.
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1.10 Lost, Stolen or Destroyed Certificates. In the event any
certificates representing shares of Tamarack Common Stock shall have been lost,
stolen or destroyed, SuperShuttle shall issue in exchange for such lost, stolen
or destroyed certificates, upon the making of an affidavit of that fact by the
holder thereof, such shares of SuperShuttle Common Stock as required pursuant to
Sections 1.5 and 1.6; provided, however, that SuperShuttle may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificates to deliver an indemnity
agreement in such form as SuperShuttle may reasonably direct as indemnity
against any claim that may be made against SuperShuttle with respect to the
certificates alleged to have been lost, stolen or destroyed.
1.11 Taking of Necessary Action; Further Action. SuperShuttle and
Merger Sub, on the one hand, and Tamarack on the other hand, shall use
reasonable best efforts to take all such actions (including, without limitation,
actions to cause the satisfaction of the conditions of the other to effect the
Merger) as may be necessary or appropriate in order to effectuate the Merger as
promptly as possible. If, at any time after the Effective Time, any further
action is necessary or desirable to carry out the purposes of this Agreement and
to vest the Surviving Corporation with full possession of all the rights,
privileges, immunities and franchises of the Constituent Corporations, or fully
subject the Surviving Corporation to all liabilities and obligations of the
Constituent Corporations, the officers and directors of the Surviving
Corporation are fully authorized in the name of the Constituent Corporations or
otherwise to take, and shall take, all such lawful and necessary actions.
1.12 Escrow. Concurrent with the filing of the Articles, officers'
certificates and Agreement of Merger as set forth in Section 1.3 above, the
parties shall deliver the stock certificates of SuperShuttle and Tamarack to be
exchanged to an escrow agent (the "Escrow Agent") to hold in escrow pending the
Closing (as defined in Section 1.13), subject to the terms of the Escrow
Agreement, a copy of which is attached hereto as Exhibit "F."
1.13 Effective Date; Closing. The Effective Date of this Agreement
shall be March 31, 1998. The Closing of the transactions contemplated by this
Agreement shall occur upon the satisfaction of the conditions set forth in
Article 7 of this Agreement, all of which conditions shall be satisfied on or
before the Closing Date or such other date as required by the applicable
conditions, and the escrow is broken.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SUPERSHUTTLE
AND MERGER SUB
SuperShuttle and Merger Sub hereby represent and warrant to Tamarack as
of the date hereof, and again at the Effective Time (subject to any changes
permitted or contemplated hereby), each of the following, except to the extent
set forth in the disclosure schedule that has been delivered to Tamarack
hereunder (the "SuperShuttle Disclosure Schedule"):
2.1 Organization and Qualification. Each of SuperShuttle and Merger Sub
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and the State of Arizona, respectively, and has
the requisite corporate power and
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authority to own and operate its properties and to carry on its business as now
conducted in every jurisdiction where the failure to do so would have a material
adverse effect on its business, properties or ability to conduct the business
currently conducted by it. The copies of the Certificate of Incorporation,
Articles of Incorporation and Bylaws of SuperShuttle and Merger Sub previously
furnished to Tamarack are correct and complete and reflect all amendments
thereto.
2.2 Authority Relative to This Agreement. Each of SuperShuttle and
Merger Sub has the requisite corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder. The execution and delivery
of this Agreement by SuperShuttle and Merger Sub and the consummation by
SuperShuttle and Merger Sub of the transactions contemplated hereby have been
duly authorized by SuperShuttle and Merger Sub, and no other corporate
proceedings on the part of SuperShuttle or Merger Sub are necessary to authorize
this Agreement and such transactions. This Agreement has been duly executed and
delivered by SuperShuttle and Merger Sub and, assuming the due authorization,
execution and delivery by Tamarack, constitutes a valid and binding obligation
of each, enforceable in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or other
similar laws relating to the enforcement of creditors' rights generally and by
general principles of equity. Except as set forth in the SuperShuttle Disclosure
Schedule, neither SuperShuttle nor Merger Sub is subject to, or obligated under,
any provision of (a) its Articles or Certificate of Incorporation or Bylaws, (b)
any material agreement, arrangement or understanding, (c) any material license,
franchise or permit, or (d) any law, regulation, order, judgment or decree,
which would be breached or violated, or in respect of which a right of
termination or acceleration would arise or any encumbrance on any of its or any
of its subsidiaries' assets would be created, by its execution, delivery and
performance of this Agreement and the consummation by it of the transactions
contemplated hereby. Except for such filings to be made pursuant to the Merger
Statutes in order to effect the Merger, no authorization, consent or approval
of, or filing with, any public body, court or authority is necessary on the part
of SuperShuttle or Merger Sub for the consummation by SuperShuttle and Merger
Sub of the transactions contemplated by this Agreement.
2.3 Capitalization. The authorized equity capitalization of
SuperShuttle consists of 20,000,000 shares of SuperShuttle Common Stock and
5,000,000 shares of Preferred Stock, $0.01 par value per share ("SuperShuttle
Preferred Stock"). As of March 31, 1998, 2,760,860 shares of SuperShuttle Common
Stock and 479,475 shares of SuperShuttle Preferred Stock are issued and
outstanding, all of which shares are validly issued, fully paid and
nonassessable. As of the date hereof, 1,000 shares of Common Stock, $0.01 par
value per share, of Merger Sub ("Merger Sub Common Stock") were issued and
outstanding, all of which shares are validly issued, fully paid and
nonassessable and owned by SuperShuttle.
There are no obligations, contingent or otherwise, of SuperShuttle or
any of its subsidiaries to repurchase, redeem or otherwise acquire any shares of
SuperShuttle Common Stock or the capital stock of any subsidiary or to provide
funds to or make any investment (in the form of a loan, capital contribution or
otherwise) in any such subsidiary or any other entity. All of the outstanding
shares of capital stock of each of SuperShuttle's subsidiaries are duly
authorized, validly issued, fully paid and nonassessable and, except as
disclosed in the
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SuperShuttle Disclosure Schedule, all such shares are owned by SuperShuttle free
and clear of all security interests, liens, claims, pledges, agreements,
limitations in SuperShuttle's voting rights, charges or other encumbrances of
any nature whatsoever.
2.4 Financial Statements. SuperShuttle has delivered a balance sheet
dated as of January 31, 1998, and other financial statements for the years ended
September 30, 1997 and September 30, 1996 to Tamarack (collectively, the
"SuperShuttle Financial Statements.") The SuperShuttle Financial Statements were
prepared in accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods involved and present fairly the
consolidated financial position, results of operations, and cash flows of
SuperShuttle and its consolidated subsidiaries as of the dates and for the
periods indicated therein, subject, in the case of unaudited interim statements,
to normal year-end accounting adjustments and the absence of complete footnote
disclosure.
2.5 Subsidiaries; Merger Sub. Except as set forth in the SuperShuttle
Disclosure Schedule, SuperShuttle does not have any subsidiaries and does not
otherwise own any stock, partnership interest, joint venture interest, or any
other security issued by or equity interest in any other corporation,
organization or entity. For purposes hereof, the term "subsidiary" means any
corporation of which securities having a majority of the ordinary voting power
in electing directors are owned directly or indirectly by a party. Merger Sub is
not subject to any liabilities, obligations or claims, whether absolute or
contingent, liquidated or unliquidated. Merger Sub was formed solely for the
purpose of consummating the transactions contemplated by this Agreement and has
not engaged in any business or other activities for any other purpose. Unless
the context requires otherwise, the term "SuperShuttle" shall hereafter refer to
SuperShuttle and/or its Subsidiaries.
2.6 Absence of Undisclosed Liabilities. SuperShuttle has no obligations
or liabilities (whether accrued, absolute, contingent, liquidated, unliquidated
or otherwise, whether due or to become due and regardless of when asserted),
except (a) obligations under contracts or commitments described in Section 2.6
of the SuperShuttle Disclosure Schedule; (b) liabilities reflected on the
balance sheet of SuperShuttle as of January 31, 1998 (the "January 31, 1998
SuperShuttle Balance Sheet") included in the SuperShuttle Financial Statements;
(c) liabilities which have arisen in the ordinary course of business after
December 31, 1997 (none of which is an uninsured liability for breach of
contract, breach of warranty, tort, infringement, claim or lawsuit); and (d)
liabilities which are not material in scope or amount.
2.7 No Material Adverse Changes. Except as set forth in the
SuperShuttle Disclosure Schedule, since December 31, 1997, there has not been
any material adverse change in the assets, financial condition or operating
results of SuperShuttle, other than the effect of the businesses acquired since
that date.
2.8 Absence of Certain Developments. Except as set forth in the
SuperShuttle Disclosure Schedule or except as contemplated in this Agreement,
since December 31, 1997, SuperShuttle has not:
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(a) changed its accounting methods or practices (including any
change in depreciation or amortization policies or rates) or revalued
any of its assets;
(b) borrowed any amount under existing lines of credit or
otherwise or incurred or become subject to any indebtedness, except as
reasonably necessary for the ordinary operation of SuperShuttle's
business and in a manner and in amounts that are in keeping with the
historical practice of SuperShuttle;
(c) discharged or satisfied any lien or encumbrance or paid
any liability, other than current liabilities and related liens (or
current installments due on intermediate or long-term liabilities) paid
or satisfied in the ordinary course of business;
(d) materially changed the pricing or royalties set or charged
by SuperShuttle to its customers or licensees or agreed to any material
change in the pricing or royalties set or charged by persons who have
licensed Intellectual Property Rights (as described in Section 2.15) to
SuperShuttle; or
(e) suffered any material theft, damage, destruction or loss
of or to any property or properties owned or used by it, whether or not
covered by insurance.
2.9 Title to and Condition of Properties. SuperShuttle owns good and
marketable title to the properties and assets reflected on the December 31, 1997
SuperShuttle Balance Sheet or acquired since the date thereof, free and clear of
all liens and encumbrances, except for (A) liens for current taxes not yet due
and payable, (B) liens described in Section 2.6 of the SuperShuttle Disclosure
Schedule, (C) the properties subject to the leases set forth in Section 2.9 of
the SuperShuttle Disclosure Schedule, and (D) assets disposed of since December
31, 1997, in the ordinary course of business.
2.10 Environmental Matters. Except as set forth in the SuperShuttle
Disclosure Schedule, SuperShuttle (i) has obtained all applicable permits,
licenses and other authorizations (a list of which is set forth in the
SuperShuttle Disclosure Schedule) which are required under federal, state or
local laws relating to pollution or protection of the environment, including
laws relating to emissions, discharges, releases or threatened releases of
pollutants, contaminants, or hazardous or toxic materials or wastes into ambient
air, surface water, ground water, or land or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants or hazardous or toxic
materials or wastes by SuperShuttle (or its agents); (ii) is in compliance with
all terms and conditions of any required permits, licenses and authorizations,
and with all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules and timetables contained in
such laws or in any regulation, code, plan, order, decree, judgment, notice or
demand letter issued, entered, promulgated or approved thereunder; (iii) is not
aware of nor has it received notice of any event, condition, circumstance,
activity, practice, incident, action or plan which is reasonably likely to
interfere with or prevent continued compliance with or which would give rise to
any common law or statutory liability, or otherwise form the basis of any claim,
action, suit or proceeding, based on or resulting from SuperShuttle's (or any
agent's) manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling, or the
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emission, discharge, or release into the environment, of any pollutant,
contaminant, or hazardous or toxic material or waste; (iv) has taken all actions
necessary under applicable requirements of such federal, state or local laws,
rules or regulations to register any products or materials required to be
registered by SuperShuttle (or its agents) thereunder; and (v) has neither
disposed of nor handled any hazardous substance.
2.11 Accounts Receivable. SuperShuttle's notes and accounts receivable
recorded on the January 31, 1998 SuperShuttle Balance Sheet arose in the
ordinary course of business and are carried at values determined in accordance
with generally accepted accounting principles consistently applied.
2.12 Tax Matters. Except as set forth in the SuperShuttle Disclosure
Schedule, SuperShuttle has filed all federal, foreign, state, county and local
income, excise, property, sales and other tax returns which are required to be
filed by it for all periods prior to the Effective Time, and all such returns
are true and correct; all taxes due and payable by SuperShuttle (whether or not
shown on any tax return) for all periods prior to the Effective Time have been
paid; SuperShuttle's reserves and provisions for taxes on the balance sheets
included in the SuperShuttle Financial Statements are sufficient for all accrued
and unpaid taxes as of the dates of such balance sheets; SuperShuttle has paid
all taxes due and payable by it or which it is obligated to withhold from
amounts owing to any employee, creditor, or third party; SuperShuttle has not
waived any statute of limitations in respect of taxes or agreed to any extension
of time with respect to a tax assessment or deficiency; to the best knowledge of
SuperShuttle, the assessment of any additional taxes relating to SuperShuttle
for periods for which returns have been filed is not expected; and SuperShuttle
has not received notice of any unresolved questions or claims concerning the tax
liability of SuperShuttle. SuperShuttle has not filed any consent agreement
under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code
apply to any disposition of a "subsection (f) asset" as defined in Section
341(f)(4) of the Code) owned by SuperShuttle. SuperShuttle (i) is not and has
not been a member of an affiliated group filing a consolidated federal income
tax return (other than an affiliated group the common parent of which was
SuperShuttle) and (ii) does not have any liability for taxes of any person
(other than SuperShuttle) under Treasury Regulation Section 1.1502-6 (or any
similar provision of state, local or foreign law) as a transferee or successor
by contract or otherwise. SuperShuttle is not a party to a tax sharing or
allocation agreement nor does SuperShuttle owe any amount under any such
agreement. SuperShuttle is not obligated to make any payments and is not a party
to any agreement that under certain circumstances could obligate it to make any
payments that, either in whole or in part, would be nondeductible under Sections
280G or 162 of the Code. SuperShuttle has not been a "United States real
property holding corporation" (within the meaning of Section 897(c)(2) of the
Code) at any time within the applicable period specified in Section
897(c)(1)(A)(ii) of the Code.
2.13 Contracts and Commitments.
(a) Except as set forth in the SuperShuttle Disclosure
Schedule, SuperShuttle is not a party to any agreement, contract, plan
or guaranty as set forth herein that is material to the conduct of its
business as a whole. The condition of materiality underlies each of the
following items: (i) collective bargaining agreement or contract with
any
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labor union; (ii) bonus, pension, profit sharing, retirement, or other
form of deferred compensation plan; (iii) medical insurance or similar
plan or practice, whether formal or informal; (iv) contract for the
employment of any officer, employee, or other person on a full-time or
consulting basis or relative to severance pay or change-in-control
benefits for any such person; (v) agreement or indenture relating to
the borrowing of money in excess of $100,000 or to mortgaging, pledging
or otherwise placing a lien on any assets of SuperShuttle which has a
fair market value in excess of $100,000 in the aggregate; (vi) guaranty
of any obligation for borrowed money or otherwise, other than
endorsements made for collection; (vii) lease or agreement under which
it is lessor of, or permits any third party to hold or operate, any
property, real or personal; (viii) contract or group of related
contracts with the same party for the purchase of products or services,
under which the undelivered balance of such products and services has a
purchase price in excess of $100,000; (ix) contract or group of related
contracts with the same party for the sale of products or services
under which the undelivered balance of such products or services has a
sales price in excess of $100,000; (x) other contract or group of
related contracts with the same party continuing over a period of more
than twelve (12) months from the date or dates thereof or involving
more than $100,000; (xi) material contract relating to the distribution
of SuperShuttle's products; (xii) franchise agreement; or (xiii) other
agreement material to SuperShuttle's business or not entered into in
the ordinary course of business.
(b) Except as specifically disclosed in the SuperShuttle
Disclosure Schedule: (i) SuperShuttle's relations with customers and
suppliers are current and good; (ii) since the date of the December 31,
1997 SuperShuttle Balance Sheet, no significant customer or supplier
has indicated that it will stop or materially decrease the rate of
business done with SuperShuttle, except for changes in the ordinary
course of SuperShuttle's business; (iii) SuperShuttle has performed all
material obligations required to be performed by it in connection with
the contracts or commitments described herein and SuperShuttle has not
been advised of or received any claim of default under any such
contract or commitment; (iv) SuperShuttle has no present expectation or
intention of not fully performing any obligation pursuant to any
contract or commitment; and (v) SuperShuttle has no knowledge of any
breach or anticipated breach by any other party to any contract or
commitment.
2.14 Restrictions on Business Activities. Except as set forth in the
SuperShuttle Disclosure Schedule, there is no agreement (noncompete or
otherwise), commitment, judgment, injunction, order or decree to which
SuperShuttle is a party or otherwise binding on SuperShuttle which has or
reasonably could be expected to have the effect of prohibiting or impairing any
business practice of SuperShuttle.
2.15 Intellectual Property Rights.
(a) The SuperShuttle Disclosure Schedule lists all of
SuperShuttle's federal, state and foreign registrations of trademarks,
service marks and other marks, trade names or other trade rights, and
all pending applications for any such registrations, all other
trademarks and other marks, trade names and other trade rights, or in
which SuperShuttle
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has any interest whatsoever, and all other trade secrets and other
intellectual property rights, whether or not registered, created or
used by or on behalf of SuperShuttle, in each case relating to its
business (collectively, "Intellectual Property Rights"). The
Intellectual Property Rights listed in the SuperShuttle Disclosure
Schedule are all those used by SuperShuttle in connection with its
business.
(b) No person has a right to receive a royalty or similar
payment in respect of any Intellectual Property Rights. SuperShuttle
has no licenses granted, sold or otherwise transferred by or to it or
other agreements to which it is a party, relating in whole or in part
to any of the Intellectual Property Rights, except as set forth in the
SuperShuttle Disclosure Schedule.
(c) SuperShuttle owns and has the sole right to use each of
the Intellectual Property Rights. None of the Intellectual Property
Rights is involved in any pending or threatened litigation.
SuperShuttle has not received any notice of invalidity or infringement
of any rights of others with respect to such Intellectual Property
Rights. SuperShuttle has taken all reasonable and prudent steps to
protect the Intellectual Property Rights from infringement by any other
firm, corporation, association or person. SuperShuttle's use of the
Intellectual Property Rights is not infringing upon or otherwise
violating the rights of any third party in or to such Intellectual
Property Rights, nor has such infringement been alleged by any third
party. All of the Intellectual Property Rights are valid and
enforceable rights of SuperShuttle and will not cease to be valid and
in full force and effect by reason of the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated by this Agreement.
2.16 Litigation. Except as set forth in the SuperShuttle Disclosure
Schedule or the SuperShuttle Financial Statements, there are no actions, suits,
proceedings, orders or investigations pending or, to the knowledge of
SuperShuttle, threatened against SuperShuttle, at law or in equity, or before or
by any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, and there is no
basis known to SuperShuttle for any of the foregoing. Except as set forth in the
SuperShuttle Disclosure Schedule, SuperShuttle has not received any opinion or
legal advice to the effect that SuperShuttle is exposed from a legal standpoint
to any material liability. No governmental entity has at any time challenged or
questioned the legal right of SuperShuttle to offer or provide any of its
services in the present manner or style thereof.
2.17 Brokers' Fees. SuperShuttle is not liable for any brokerage
commissions, finders' fees or similar compensation in connection with the
transactions contemplated by this Agreement.
2.18 Compliance With Laws; Permits; Certain Operations. SuperShuttle
and its officers, directors, agents and employees have complied in all material
respects with all applicable laws and regulations of foreign, federal, state and
local governments and all agencies thereof which affect the business or any
owned or leased properties of SuperShuttle and to which SuperShuttle may be
subject, and no claims have been filed against SuperShuttle alleging a violation
of any such law or regulation, except as set forth in the SuperShuttle
Disclosure
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Schedule. Without limiting the generality of the foregoing, SuperShuttle has not
violated, or received a notice or charge asserting any violation of, the
Occupational Safety and Health Act of 1970, or any other state or federal acts
(including rules and regulations thereunder) regulating or otherwise affecting
employee health and safety. SuperShuttle has not given or agreed to give any
money, gift or similar benefit (other than incidental gifts of articles of
nominal value) to any actual or potential customer, governmental employee or any
other person in a position to assist or hinder SuperShuttle in connection with
any actual or proposed transaction. SuperShuttle holds all material permits,
licenses, certificates and other authorizations of foreign, federal, state and
local governmental agencies required for the conduct of its business.
2.19 Disclosure. Neither this Agreement nor any of the schedules or
exhibits hereto contains any untrue statement of a material fact or omits a
material fact necessary to make the statements contained herein or therein, in
light of the circumstances in which they were made, not misleading, and there is
no fact which has not been disclosed to Tamarack that materially affects
adversely or could reasonably be anticipated to materially affect adversely the
assets, financial condition or operating results, customer, employee or supplier
relations, business condition or prospects, or financing arrangements of
SuperShuttle.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF TAMARACK
AND THE SHAREHOLDERS
Tamarack and the Shareholders hereby represent and warrant to
SuperShuttle and Merger Sub as of the date hereof, and again at the Effective
Time (subject to any changes permitted or contemplated hereby), each of the
following, all of which are made jointly and severally by Tamarack and the
Shareholders who agree to be bound to and liable for the representations and
warranties set forth below and all other obligations of Tamarack under this
Agreement. Each of the following representations and warranties are qualified to
the extent set forth in the disclosure schedule that has been delivered to
SuperShuttle simultaneously with the execution and delivery of this Agreement
(the "Tamarack Disclosure Schedule"). The Tamarack Disclosure Schedule describes
exceptions to each applicable representation below by section numbers
corresponding to the section number of the applicable qualified representation.
3.1 Organization and Qualification. Tamarack is a corporation duly
organized, validly existing and in good standing under the laws of the State of
California, and has the requisite corporate power and authority to own and
operate its properties and to carry on its business as now conducted in every
jurisdiction where the failure to do so would have a material adverse effect on
its business, properties or ability to conduct the business currently conducted
by it. The copies of the Articles of Incorporation and Bylaws of Tamarack
previously furnished to SuperShuttle are correct and complete and reflect all
amendments thereto.
3.2 Authority Relative to This Agreement. Tamarack has the requisite
corporate power and authority to enter into this Agreement and to carry out its
obligations hereunder. The execution and delivery of this Agreement by Tamarack
and the consummation by Tamarack of the transactions contemplated hereby have
been duly authorized by Tamarack, and no other corporate proceedings on the part
of Tamarack are necessary to authorize this Agreement and
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such transactions (other than the approval of the Shareholders). This Agreement
has been duly executed and delivered by Tamarack and, assuming the due
authorization and delivery thereof by SuperShuttle and Merger Sub, constitutes a
valid and binding obligation of Tamarack, enforceable in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws relating to the enforcement of
creditors' rights generally and by general principles of equity. Except as set
forth in the Tamarack Disclosure Schedule, Tamarack is not subject to, or
obligated under, any provision of (a) its Articles of Incorporation or Bylaws,
(b) any material agreement, arrangement or understanding, (c) any material
license, franchise or permit, or (d) any law, regulation, order, judgment or
decree, which would be breached or violated, or in respect of which a right of
termination or acceleration would arise or any encumbrance on any of its or its
subsidiaries' assets would be created, by Tamarack's execution, delivery and
performance of this Agreement and the consummation by it of the transactions
contemplated hereby. Except for such filings to be made pursuant to the Merger
Statutes in order to effect the Merger, no authorization, consent or approval
of, or filing with, any public body, court or authority is necessary on the part
of Tamarack for the consummation by Tamarack of the transactions contemplated by
this Agreement.
3.3 Capitalization. The authorized equity capitalization of Tamarack
consists of 100,000 shares of Common Stock. As of the date hereof, 5,000 shares
of Common Stock are issued and outstanding, all of which shares are validly
issued, fully paid and nonassessable. All of the issued and outstanding shares
of Common Stock of Tamarack are owned by the Shareholders. Except as set forth
in Section 3.3 of the Tamarack Disclosure Schedule, there are no options,
warrants, conversion privileges or other rights, agreements, arrangements or
commitments obligating Tamarack to issue or sell any shares of capital stock or
securities or obligations of any kind convertible into or exchangeable for any
shares of capital stock thereof or of any other corporation, nor are there any
stock appreciation, phantom stock or similar rights outstanding based upon the
book value or any other attribute of Tamarack. No holders of outstanding shares
of Tamarack Common Stock are entitled to any preemptive or other similar rights.
There are no obligations, contingent or otherwise, of Tamarack to repurchase,
redeem or otherwise acquire any shares of Tamarack or to provide funds to or
make any investment (in the form of a loan, capital contribution or otherwise)
in any entity other than guarantees of bank obligations of subsidiaries entered
into in the ordinary course of business. Upon consummation of the Merger,
SuperShuttle will own, directly or indirectly, the entire equity interest in
Tamarack, and there will be no options, warrants, conversion privileges or other
rights, agreements, arrangements or commitments obligating Tamarack to issue or
sell any shares of capital stock of Tamarack or any other corporation.
3.4 Financial Statements. The consolidated financial statements of
Tamarack for the fiscal years ended December 31, 1995, 1996 and 1997, and for
the interim period ended February 28, 1998, (the "Tamarack Financial
Statements") have been delivered to SuperShuttle and were prepared in accordance
with generally accepted accounting principles applied on a consistent basis
throughout the periods involved and present fairly and accurately the
consolidated financial position, results of operations, and cash flows of
Tamarack as of the dates and for the periods indicated therein, subject, in the
case of unaudited interim statements, to normal year-end accounting adjustments.
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3.5 Subsidiaries. Except as set forth in the Tamarack Disclosure
Schedule, Tamarack does not have any Subsidiaries and does not otherwise own any
stock, partnership interest, joint venture interest, or any other security
issued by or equity interest in any other corporation, organization or entity.
3.6 Absence of Undisclosed Liabilities. Tamarack has no obligations or
liabilities (whether accrued, absolute, contingent, liquidated, unliquidated or
otherwise, whether due or to become due and regardless of when asserted), except
(a) obligations under contracts or commitments described in Section 3.6 of the
Tamarack Disclosure Schedule; (b) liabilities reflected on the balance sheet of
Tamarack as of February 28, 1998 (the "February 28, 1998 Tamarack Balance
Sheet") included in the Tamarack Financial Statements; (c) liabilities which
have arisen in the ordinary course of business after December 31, 1997 (none of
which is an uninsured liability for breach of contract, breach of warranty,
tort, infringement, claim or lawsuit); and (d) liabilities which are not
material in scope or amount.
3.7 No Material Adverse Changes. Except as set forth in the Tamarack
Disclosure Schedule, since December 31, 1997, there has not been any material
adverse change in the assets, financial condition or operating results of
Tamarack, taken as a whole.
3.8 Absence of Certain Developments. Except as set forth in the
Tamarack Disclosure Schedule or except as contemplated in this Agreement, since
December 31, 1997, Tamarack has not:
(a) changed its accounting methods or practices (including any
change in depreciation or amortization policies or rates) or revalued
any of its assets;
(b) redeemed or purchased, directly or indirectly, any shares
of its capital stock, or declared or paid any dividends or
distributions with respect to any shares of its capital stock;
(c) issued or sold any equity securities of it, securities
convertible into or exchangeable for equity securities of it, warrants,
options or other rights to acquire equity securities of it, or bonds or
other securities of it;
(d) borrowed any amount under existing lines of credit or
otherwise or incurred or become subject to any indebtedness, except as
reasonably necessary for the ordinary operation of Tamarack's business
and in a manner and in amounts that are in keeping with the historical
practice of Tamarack;
(e) discharged or satisfied any lien or encumbrance or paid
any liability, other than current liabilities and related liens (or
current installments due on intermediate or long-term liabilities) paid
or satisfied in the ordinary course of business;
(f) mortgaged, pledged or subjected to any lien, charge or
other encumbrance, any assets of Tamarack with a fair market value in
excess of $25,000 in the aggregate, except liens for current property
taxes not yet due and payable;
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(g) sold, assigned or transferred (including, without
limitation, transfers to any employees, shareholders or affiliates of
Tamarack) any tangible assets, except in the ordinary course of
business;
(h) sold, assigned or transferred (including, without
limitation, transfers to any employees, shareholders or affiliates of
Tamarack) any patents, trademarks, trade names, copyrights, trade
secrets or other intangible assets, or disclosed any proprietary or
confidential information, to any person other than SuperShuttle or
Merger Sub, except in the ordinary course of business;
(i) materially changed the pricing or royalties set or charged
by Tamarack to its customers or licensees or agreed to any material
change in the pricing or royalties set or charged by persons who have
licensed Intellectual Property Rights (as described in Section 3.15) to
Tamarack;
(j) canceled, waived or compromised any right, claim or debt,
other than the write-off or compromise of any account receivable in the
ordinary course of business and consistent with past practice;
(k) suffered any material theft, damage, destruction or loss
of or to any property or properties owned or used by it, whether or not
covered by insurance;
(l) increased the annualized level of compensation of or
granted any extraordinary bonuses, benefits or other forms of direct or
indirect compensation to any employee, officer, director or consultant,
or terminated, amended or otherwise modified any plans for the benefit
of employees, except in the ordinary course of business and consistent
with historical adjustments to such compensation and benefits;
(m) made any capital expenditures or commitments therefor,
that aggregate in excess of $25,000;
(n) made any loans or advances to, or guarantees for the
benefit of, any persons (other than advances to sales personnel in the
ordinary course of business);
(o) engaged or agreed to engage in any extraordinary
transactions or distributions, or, except in the ordinary course of
business, entered into any contract, written or oral, that involves
consideration or performance by Tamarack of a value exceeding $25,000
or a term exceeding twelve (12) months; or
(p) taken any other action or entered into any other
transaction other than in the ordinary course of business and in
accordance with past custom and practice, or entered into any
transaction with any Insider (as defined in Section 3.21).
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3.9 Title to and Condition of Properties.
(a) Tamarack owns good and marketable title to the properties
and assets reflected on the December 31, 1997 Tamarack Balance Sheet or
acquired since the date thereof, free and clear of all liens and
encumbrances, except for (A) liens for current taxes not yet due and
payable, (B) liens described in Section 3.6 of the Tamarack Disclosure
Schedule, (C) the properties subject to the leases set forth in Section
3.9(a) of the Tamarack Disclosure Schedule, and (D) assets disposed of
since December 31, 1997, in the ordinary course of business.
(b) (i) Tamarack does not own any real estate; (ii) the
properties subject to the real property leases described in Section
3.9(b) of the Tamarack Disclosure Schedule constitute all of the real
estate used or occupied by Tamarack (the "Tamarack Real Estate"), and
(iii) Tamarack Real Estate has access, sufficient for the conduct of
Tamarack's business, to public roads and to all utilities, including
electricity, sanitary and storm sewer, potable water, natural gas and
other utilities, used in the operations of Tamarack.
(c) The real property leases described in Section 3.9(c) of
the Tamarack Disclosure Schedule are in full force and effect, and
Tamarack has a valid and existing leasehold interest under each such
lease for the term set forth therein. Tamarack has delivered to
SuperShuttle complete and accurate copies of each of the leases and
none of such leases has been modified in any respect, except to the
extent that such modifications are disclosed by the copies delivered to
SuperShuttle. Tamarack is not in default, and no circumstances exist
which could result in such default, under any of such leases, nor, to
the knowledge of Tamarack, is any other party to any of such leases in
default.
(d) All of the buildings, machinery, equipment and other
tangible assets necessary for the conduct of Tamarack's business are in
good condition and repair, ordinary wear and tear excepted, and are
usable in the ordinary course of business. A complete list of all items
of machinery and equipment used in the business of Tamarack is included
as Section 3.9(d) of the Tamarack Disclosure Schedule. Tamarack owns or
leases under valid leases, all buildings, machinery, equipment and
other tangible assets necessary for the conduct of its business.
Tamarack has delivered to SuperShuttle complete and accurate copies of
all equipment leases and such leases are listed in the Tamarack
Disclosure Schedule. None of such equipment leases has been modified in
any respect, except to the extent that such modifications are disclosed
by the copies delivered to SuperShuttle. Tamarack is not in default,
and no circumstances exist which could result in such default, under
any of such equipment leases, nor, to the knowledge of Tamarack, is any
other party to any of such equipment leases in default.
(e) Tamarack is not in any material respect in violation of
any applicable zoning ordinance or other law, regulation or requirement
relating to the operation of any properties used in the operation of
its business, and Tamarack has not received any notice of any such
violation, or of the existence of any condemnation proceeding with
respect to any properties owned or leased by Tamarack.
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3.10 Environmental Matters. Except as set forth in the Tamarack
Disclosure Schedule, Tamarack (i) has obtained all applicable permits, licenses
and other authorizations (a list of which is set forth in the Tamarack
Disclosure Schedule) which are required under federal, state or local laws
relating to pollution or protection of the environment, including laws relating
to emissions, discharges, releases or threatened releases of pollutants,
contaminants, or hazardous or toxic materials or wastes into ambient air,
surface water, ground water, or land or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants or hazardous or toxic materials or wastes
by Tamarack (or its agents); (ii) is in compliance with all terms and conditions
of any required permits, licenses and authorizations, and with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in such laws or in any
regulation, code, plan, order, decree, judgment, notice or demand letter issued,
entered, promulgated or approved thereunder; (iii) is not aware of nor has it
received notice of any event, condition, circumstance, activity, practice,
incident, action or plan which is reasonably likely to interfere with or prevent
continued compliance with or which would give rise to any common law or
statutory liability, or otherwise form the basis of any claim, action, suit or
proceeding, based on or resulting from Tamarack's (or any agent's) manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling, or the emission, discharge, or release into the environment, of any
pollutant, contaminant, or hazardous or toxic material or waste; (iv) has taken
all actions necessary under applicable requirements of such federal, state or
local laws, rules or regulations to register any products or materials required
to be registered by Tamarack (or its agents) thereunder; and (v) has neither
disposed of nor handled any hazardous substance.
3.11 Accounts Receivable. Tamarack's notes and accounts receivable
recorded on the February 28, 1998 Tamarack Balance Sheet and those arising since
the date thereof are valid and collectible in accordance with their terms,
subject to no valid counterclaims or setoffs, other than to the extent of the
reserves set forth on the books and records of Tamarack or as disclosed in the
Tamarack Disclosure Schedule. All such accounts receivable of Tamarack arose in
the ordinary course of business and are carried at values determined in
accordance with generally accepted accounting principles consistently applied.
3.12 Tax Matters. Except as set forth in the Tamarack Disclosure
Schedule, Tamarack has filed all federal, foreign, state, county and local
income, excise, property, sales and other tax returns which are required to be
filed by it for all periods prior to the Effective Time, and all such returns
are true and correct; all taxes due and payable by Tamarack (whether or not
shown on any tax return) for all periods prior to the Effective Time have been
paid; Tamarack's reserves and provisions for taxes on the balance sheets
included in the Tamarack Financial Statements are sufficient for all accrued and
unpaid taxes as of the dates of such balance sheets; Tamarack has paid all taxes
due and payable by it or which it is obligated to withhold from amounts owing to
any employee, creditor, or third party; Tamarack has not waived any statute of
limitations in respect of taxes or agreed to any extension of time with respect
to a tax assessment or deficiency; to the best knowledge of Tamarack, the
assessment of any additional taxes relating to Tamarack for periods for which
returns have been filed is not expected; and Tamarack has not received notice of
any unresolved questions or claims concerning the tax liability of Tamarack.
Tamarack has not filed any consent agreement under Section 341(f) of
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the Code or agreed to have Section 341(f)(2) of the Code apply to any
disposition of a "subsection (f) asset" as defined in Section 341(f)(4) of the
Code) owned by Tamarack. Tamarack (i) is not and has not been a member of an
affiliated group filing a consolidated federal income tax return (other than an
affiliated group the common parent of which was Tamarack) and (ii) does not have
any liability for taxes of any person (other than Tamarack) under Treasury
Regulation Section 1.1502-6 (or any similar provision of state, local or foreign
law) as a transferee or successor by contract or otherwise. Tamarack is not a
party to a tax sharing or allocation agreement nor does Tamarack owe any amount
under any such agreement. Tamarack is not obligated to make any payments and is
not a party to any agreement that under certain circumstances could obligate it
to make any payments that, either in whole or in part, would be nondeductible
under Sections 280G or 162 of the Code. Tamarack has not been a "United States
real property holding corporation" (within the meaning of Section 897(c)(2) of
the Code) at any time within the applicable period specified in Section
897(c)(1)(A)(ii) of the Code.
3.13 Contracts and Commitments.
(a) Except as set forth in the Tamarack Disclosure Schedule,
Tamarack is not a party to any: (i) collective bargaining agreement or
contract with any labor union; (ii) bonus, pension, profit sharing,
retirement, or other form of deferred compensation plan; (iii) medical
insurance or similar plan or practice, whether formal or informal; (iv)
contract for the employment of any officer, employee, or other person
on a full-time or consulting basis or relative to severance pay or
change-in-control benefits for any such person; (v) agreement or
indenture relating to the borrowing of money in excess of $25,000 or to
mortgaging, pledging or otherwise placing a lien on any assets of
Tamarack which has a fair market value in excess of $25,000 in the
aggregate; (vi) guaranty of any obligation for borrowed money or
otherwise, other than endorsements made for collection; (vii) lease or
agreement under which it is lessor of, or permits any third party to
hold or operate, any property, real or personal; (viii) contract or
group of related contracts with the same party for the purchase of
products or services, under which the undelivered balance of such
products and services has a purchase price in excess of $25,000; (ix)
contract or group of related contracts with the same party for the sale
of products or services under which the undelivered balance of such
products or services has a sales price in excess of $25,000; (x) other
contract or group of related contracts with the same party continuing
over a period of more than twelve (12) months from the date or dates
thereof or involving more than $25,000; (xi) material contract relating
to the distribution of Tamarack's products; (xii) franchise agreement;
or (xiii) other agreement material to Tamarack's business or not
entered into in the ordinary course of business.
(b) Tamarack has attached to the Tamarack Disclosure Schedule
or otherwise furnished to SuperShuttle a true and correct copy of each
written contract or commitment, and a written description of each oral
contract or commitment, referred to in this Section 3.13, together with
all amendments, waivers or other changes thereto.
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(c) Except as specifically disclosed in the Tamarack
Disclosure Schedule: (i) Tamarack's relations with customers and
suppliers are current and good; (ii) since the date of the December 31,
1997 Tamarack Balance Sheet, no significant customer or supplier has
indicated that it will stop or materially decrease the rate of business
done with Tamarack, except for changes in the ordinary course of
Tamarack's business; (iii) Tamarack has performed all material
obligations required to be performed by it in connection with the
contracts or commitments described herein and Tamarack has not been
advised of or received any claim of default under any such contract or
commitment; (iv) Tamarack has no present expectation or intention of
not fully performing any obligation pursuant to any contract or
commitment; and (v) Tamarack has no knowledge of any breach or
anticipated breach by any other party to any contract or commitment.
3.14 Restrictions on Business Activities. Except as set forth in the
Tamarack Disclosure Schedule, there is no agreement (noncompete or otherwise),
commitment, judgment, injunction, order or decree to which Tamarack is a party
or otherwise binding on Tamarack which has or reasonably could be expected to
have the effect of prohibiting or impairing any business practice of Tamarack.
3.15 Intellectual Property Rights.
(a) The Tamarack Disclosure Schedule lists all of Tamarack's
federal, state and foreign registrations of trademarks, service marks
and other marks, trade names or other trade rights, and all pending
applications for any such registrations, all other trademarks and other
marks, trade names and other trade rights, or in which Tamarack has any
interest whatsoever, and all other trade secrets and other intellectual
property rights, whether or not registered, created or used by or on
behalf of Tamarack, in each case relating to its business
(collectively, "Intellectual Property Rights"). The Intellectual
Property Rights listed in the Tamarack Disclosure Schedule are all
those used by Tamarack in connection with its business.
(b) No person has a right to receive a royalty or similar
payment in respect of any Intellectual Property Rights. Tamarack has no
licenses granted, sold or otherwise transferred by or to it or other
agreements to which it is a party, relating in whole or in part to any
of the Intellectual Property Rights, except as set forth in the
Tamarack Disclosure Schedule.
(c) Tamarack owns and has the sole right to use each of the
Intellectual Property Rights. None of the Intellectual Property Rights
is involved in any pending or threatened litigation. Tamarack has not
received any notice of invalidity or infringement of any rights of
others with respect to such Intellectual Property Rights. Tamarack has
taken all reasonable and prudent steps to protect the Intellectual
Property Rights from infringement by any other firm, corporation,
association or person. Tamarack's use of the Intellectual Property
Rights is not infringing upon or otherwise violating the rights of any
third party in or to such Intellectual Property Rights, nor has such
infringement been alleged by any third party. All of the Intellectual
Property Rights are valid and enforceable rights of Tamarack and will
not cease to be valid and in full force and effect
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by reason of the execution, delivery and performance of this Agreement
or the consummation of the transactions contemplated by this Agreement.
3.16 Litigation. Except as set forth in the Tamarack Disclosure
Schedule, there are no actions, suits, proceedings, orders or investigations
pending or, to the knowledge of Tamarack, threatened against Tamarack, at law or
in equity, or before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, and there is no basis known to Tamarack for any of the foregoing.
Except as set forth in the Tamarack Disclosure Schedule, Tamarack has not
received any opinion or legal advice to the effect that Tamarack is exposed from
a legal standpoint to any material liability. No governmental entity has at any
time challenged or questioned the legal right of Tamarack to offer or provide
any of its services in the present manner or style thereof.
3.17 Brokers' Fees. Tamarack is not liable for any brokerage
commissions, finders' fees or similar compensation in connection with the
transactions contemplated by this Agreement.
3.18 Employment. Except as set forth in the Tamarack Disclosure
Schedule: (i) no key executive employee of Tamarack and no group of Tamarack's
other employees has any plans to terminate his, her or its employment; (ii)
Tamarack has no material labor relations problems pending; and (iii) its labor
relations are satisfactory in all material respects. Tamarack has complied in
all material respects with all laws relating to the employment of labor,
including provisions thereof relating to wages, hours, equal opportunity and
collective bargaining, and has paid all social security and other similar taxes.
3.19 Employee Benefit Plans.
(a) With respect to the employees and former employees of
Tamarack, except as set forth in the Tamarack Disclosure Schedule,
Tamarack does not presently maintain, contribute to or have any
liability (including current or potential multi-employer plan
withdrawal liability under ERISA) under any (i) nonqualified deferred
compensation or retirement plan or arrangement which is an "employee
pension benefit plan" as such term is defined in Section 3(2) of ERISA,
(ii) defined contribution retirement plan or arrangement designed to
satisfy the requirements of Section 401(a) of the Code, which is an
employee pension benefit plan, (iii) defined benefit pension plan or
arrangement designed to satisfy the requirements of Section 401(a) of
the Code, which is an employee pension benefit plan, (iv)
"multi-employer plan" as such term is defined in Section 3(37) of
ERISA, (v) unfunded or funded medical, health or life insurance plan or
arrangement for present or future retirees or present or future
terminated employees which is an "employee welfare benefit plan" as
such term is defined in Section 3(1) of ERISA, except as required by
Section 4980B of the Code or Section s 601 through 609 of ERISA, or
(vi) any other employee welfare benefit plan.
(b) With respect to each of the employee benefit plans listed
in the Tamarack Disclosure Schedule, Tamarack has furnished to
SuperShuttle true and complete copies of (i) the plan documents
(including any related trust agreements), (ii) the most recent
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determination letter received from the Internal Revenue Service, (iii)
the latest actuarial valuation, (iv) the latest financial statement,
(v) the last Form 5500 Annual Report, and (vi) all related trust
agreements, insurance contracts or other funding agreements which
implement such employee benefit plan. Neither Tamarack nor any of its
directors, officers, employees or any other "fiduciary," as such term
is defined in Section 3(21) of ERISA, has any liability for failure to
comply with ERISA or the Code for any action or failure to act in
connection with the administration or investment of such plans.
(c) With respect to each plan listed in the Tamarack
Disclosure Schedule: (i) Tamarack has performed in all material
respects all obligations required to be performed by it under each such
plan and each such plan has been established and maintained in all
material respects in accordance with its terms and in compliance with
all applicable laws, statutes, rules, and regulations, including but
not limited to the Code and ERISA; (ii) there are no actions, suits or
claims pending or, to the knowledge of Tamarack, threatened (other than
routine claims for benefits) against any such plan; (iii) each such
plan can be amended or terminated after the Effective Time in
accordance with its terms, without liability to Tamarack; and (iv)
there are no inquiries or proceedings pending or, to the knowledge of
Tamarack, threatened by the Internal Revenue Service or the Department
of Labor with respect to any such plan.
(d) With respect to the insurance contracts or funding
agreements which implement any of the employee benefit plans listed in
the Tamarack Disclosure Schedule, such insurance contracts or funding
agreements are fully insured or the reserves under such contracts are
sufficient to pay claims incurred.
(e) Each plan listed in the Tamarack Disclosure Schedule that
is intended to be qualified under Section 401(a) of the Code has been
determined by the Internal Revenue Service to so qualify and each trust
created thereunder has been determined by the Internal Revenue Service
to be exempt from tax under Section 501(a) of the Code and, to the
knowledge of Tamarack, nothing has occurred since the date of the most
recent determination that would be reasonably likely to cause any such
plan or trust to fail to qualify under Section 401(a) of the Code.
3.20 Insurance. The Tamarack Disclosure Schedule lists and briefly
describes each insurance policy and fidelity bond currently maintained by
Tamarack as well as each such policy and bond maintained by it for the five
years prior to the date of this Agreement, with respect to its properties,
assets, employees and officers and directors and sets forth the date of
expiration of each insurance policy. All insurance policies listed as currently
maintained are in full force and effect and Tamarack is not in default with
respect to its obligations under any of such insurance policies. All premiums
have been paid and there is no retroactive premium adjustment obligation of any
kind or character. There is no claim of Tamarack pending under any of such
policies or bonds as to which coverage has been questioned, denied or disputed
by the underwriters of such policies or bonds. Tamarack has no knowledge of any
threatened termination of, or material premium increase with respect to, any
such policies. To its knowledge, the insurance coverage of Tamarack is customary
for corporations of similar size engaged in similar lines of businesses.
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3.21 Insider Transactions. Except as set forth herein or in the
Tamarack Disclosure Schedule, no officer, director or shareholder of Tamarack or
any member of the immediate family of any such officer, director or shareholder,
or any entity in which any of such persons owns any beneficial interest (other
than a publicly-held corporation whose stock is traded on a national securities
exchange or in the over-the-counter market and less than 5% of the stock of
which is beneficially owned by any of such persons) (collectively "Insiders"),
has any agreement with Tamarack or any interest in any property, real, personal
or mixed, tangible or intangible, used in or pertaining to the business of
Tamarack nor has had any such agreement or interest for the five years prior to
the date of this Agreement. For purposes of the preceding sentence, the members
of the immediate family of an officer, director or shareholder shall consist of
the spouse, parents, children, siblings, mothers- and fathers-in-law, sons- and
daughters-in-law, and brothers- and sisters-in-law of such officer, director or
shareholder. A list of all payments made to or for the benefit of any Insiders
during the prior five years is included within Section 3.21 of the Tamarack
Disclosure Schedule.
3.22 Compliance With Laws; Permits; Certain Operations. Tamarack and
its officers, directors, agents and employees have complied in all material
respects with all applicable laws and regulations of foreign, federal, state and
local governments and all agencies thereof which affect the business or any
owned or leased properties of Tamarack and to which Tamarack may be subject, and
no claims have been filed against Tamarack alleging a violation of any such law
or regulation, except as set forth in the Tamarack Disclosure Schedule. Without
limiting the generality of the foregoing, Tamarack has not violated, or received
a notice or charge asserting any violation of, the Occupational Safety and
Health Act of 1970, or any other state or federal acts (including rules and
regulations thereunder) regulating or otherwise affecting employee health and
safety. Tamarack has not given or agreed to give any money, gift or similar
benefit (other than incidental gifts of articles of nominal value) to any actual
or potential customer, supplier, governmental employee or any other person in a
position to assist or hinder Tamarack in connection with any actual or proposed
transaction. Tamarack holds all permits, licenses, certificates and other
authorizations of foreign, federal, state and local governmental agencies
required for the conduct of its business, including specifically the permits,
licenses, certificates and other authorizations described in Section 3.22 of the
Tamarack Disclosure Schedule.
3.23 Disclosure. Neither this Agreement nor any of the schedules or
exhibits hereto contains any untrue statement of a material fact or omits a
material fact necessary to make the statements contained herein or therein, in
light of the circumstances in which they were made, not misleading, and there is
no fact which has not been disclosed to SuperShuttle that materially affects
adversely or could reasonably be anticipated to materially affect adversely the
assets, financial condition or operating results, customer, employee or supplier
relations, business condition or prospects, or financing arrangements of
Tamarack.
3.24 Minute Books. The minute books of Tamarack shall be made available
to counsel for SuperShuttle and those delivered shall be the only minute books
of Tamarack and shall contain an accurate summary of all meetings of directors
(or committees thereof) and shareholders or actions by written consent since the
time of incorporation of Tamarack.
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ARTICLE 4
ADDITIONAL REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
Each of the Shareholders hereby represents and warrants to SuperShuttle
and Merger Sub as of the date hereof, and again at the Effective Time, with
respect to itself each of the following:
4.1 Organization, Standing and Authority of Shareholders. The
Shareholder has all requisite power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby.
4.2 Execution and Delivery; No Conflicts.
(a) This Agreement has been duly executed and delivered by
Shareholder and the agreements of Shareholder contained herein
constitute the valid and binding obligations of the Shareholder,
enforceable against Shareholder in accordance with their terms, except
as the same may be limited by bankruptcy, insolvency, reorganization,
moratorium, other laws affecting generally the enforcement of
creditors' rights, or by public policy related to the availability of
equitable remedies.
(b) The execution, delivery and performance of this Agreement
by Shareholder and the consummation of the transactions contemplated
hereby (i) have been duly and validly authorized by all necessary
action on the part of the Shareholder; and (ii) are not prohibited by,
do not violate any provision of, and will not result in the breach of,
or accelerate or permit the acceleration of the performance required by
the terms of any applicable law, rule, regulation, judgment, decree,
order or other requirement of the United States or any state of the
United States, or any court, authority, department, commission, board,
bureau, agency or instrumentality of either thereof, in a manner which
would have a material adverse affect on the ability of the Shareholder
to enter into and consummate this Agreement, or any material contract,
indenture, agreement or commitment to which Shareholder is a party or
is bound in a manner which would have a material adverse affect on
Shareholder.
4.3 Consents and Approvals. The execution, delivery and performance by
Shareholder of this Agreement and the consummation by Shareholder of the
transactions contemplated hereby do not require Shareholder to obtain any
consent, approval or action of, or make any filing with or give any notice to,
any corporation, person or firm or any public, governmental or judicial
authority except: (a) such as have been duly obtained or made, as the case may
be, and are in full force and effect on the date hereof; and (b) those which the
failure to obtain would have no material adverse affect on the transactions
contemplated hereby.
4.4 Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by Shareholder directly
with the other parties hereto, without the intervention of any person on behalf
of Shareholder in such manner as to give rise to any claim by any person against
the Company, Tamarack or Shareholders for a finder's fee, brokerage commission
or similar payment.
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4.5 Securities Laws Compliance. The securities to be acquired by
Shareholders under the terms of this Agreement will be acquired for
Shareholder's own account for the purpose of investment and not with the present
intention of public resale or public distribution of all or any part of the
securities. Each Shareholder agrees that he/she will refrain from transferring
or otherwise disposing of any of the securities, or any interest therein, in
such manner as to violate the Securities Act of 1933 (the "Securities Act"), as
amended, or of any applicable state securities law regulating the disposition
thereof. Shareholder agrees that the certificates representing the securities
shall bear legends to the effect that such securities have not been registered
under the Securities Act or any applicable state securities laws and that no
interest therein may be transferred or otherwise disposed of in violation of the
provisions thereof or of the rules and regulations issued thereunder.
4.6 Shareholder Experience and Investment Representations.
(a) The Shareholder is able to bear the economic risk of an
investment in the securities acquired by it pursuant to this Agreement
and can afford to sustain a total loss on such investment.
(b) The Shareholder is an experienced and sophisticated
investor and has such knowledge and experience in financial and
business matters that it is capable of evaluating the risks and merits
of acquiring the SuperShuttle securities. The Shareholder has not been
formed or organized for the specific purpose of acquiring the
securities. The Shareholder has had, during the course of this
transaction and prior to its acquisition of the SuperShuttle
securities, the opportunity to ask questions of, and receive answers
from, SuperShuttle and its management concerning SuperShuttle and the
terms and conditions of this Agreement. The Shareholder hereby
acknowledges that it or its representatives has received all such
information as it considers necessary for evaluating the risks and
merits of acquiring the securities and for verifying the accuracy of
any information furnished to it or to which it had access. The
Shareholder represents and warrants that the nature and amount of the
securities it is purchasing is consistent with its investment
objectives, abilities and resources.
(c) The Shareholder, by reason of its business or financial
experience and the business or financial experience of its professional
advisors (who are unaffiliated with and who are not compensated by the
Company or any affiliate or selling agent of the Company, directly or
indirectly), has the capacity to protect its own interest in connection
with the purchase of the securities. The Shareholder has consulted with
counsel of its own choosing in making an informed decision with respect
to the Merger consideration and the terms of this Agreement.
(d) The Shareholder is an "accredited investor" as defined in
and for purposes of Rule 501 and Regulation D promulgated by the
Securities and Exchange Commission ("SEC") under the Securities Act.
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ARTICLE 5
CONDUCT PENDING AND SUBSEQUENT TO THE MERGER
5.1 Conduct of Business Pending the Merger. Tamarack covenants and
agrees that, prior to the Effective Time, unless SuperShuttle shall otherwise
agree in writing or as otherwise expressly contemplated or permitted by this
Agreement:
(a) Tamarack (i) shall conduct its business only in the
ordinary course, on an arm's length basis and in accordance with all
applicable laws, rules and regulations and past custom and practice;
(ii) shall maintain its facilities in good operating condition,
ordinary wear and tear excepted; and (iii) shall use its reasonable
best efforts to preserve intact its business organization and goodwill,
keep available the services of its officers and employees as a group
and maintain satisfactory relationships with suppliers, distributors,
customers and others having business relationships with it;
(b) Tamarack (i) shall confer on a regular basis and upon
demand with representatives of SuperShuttle and report operational
matters and the general status of ongoing operations; (ii) shall notify
SuperShuttle of any emergency or other change in the normal course of
its business or in the operation of its properties and of any
governmental or third party complaints, investigations or hearings (or
communications indicating that the same may be contemplated); and (iii)
shall not take any action which would render, or which reasonably may
be expected to render, any representation or warranty made by it in
this Agreement untrue at, or at any time prior to, the Effective Time;
(c) Tamarack shall not, directly or indirectly, do or permit
to occur any of the following: (i) amend or propose to amend its
Articles of Incorporation or Bylaws; (ii) issue, sell, pledge, dispose
of or encumber (A) any additional shares of, or any options, warrants,
conversion privileges or rights of any kind to acquire any shares of,
any of its capital stock (other than pursuant to the exercise of
previously granted options) or (B) any of its assets, except in the
ordinary course of business consistent with past practices; (iii)
split, combine or reclassify any of its outstanding shares, or declare,
set aside or pay any dividend or other distribution payable in cash,
stock, property or otherwise with respect to any shares of its capital
stock; (iv) redeem, purchase or acquire or offer to acquire any shares
of its capital stock; (v) acquire (by merger, exchange, consolidation,
acquisition of stock or assets or otherwise) any corporation,
partnership, joint venture or other business organization or division
or material assets thereof or any interest therein; (vi) incur any
indebtedness for borrowed money or issue any debt securities (other
than in the ordinary course of business and in amounts consistent with
past practices); (vii) make any loans (except for advances to sales
personnel in the ordinary course of business and consistent with past
practice); (viii) enter into any Insider transactions; or (ix) enter
into or propose to enter into, or modify or propose to modify, any
agreement, arrangement or understanding with respect to any of the
matters set forth in this Section 5.1(c);
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(d) Tamarack shall not, directly or indirectly, enter into or
modify any contract, agreement or understanding, written or oral, that
involves consideration or performance of Tamarack, as the case may be,
of a value exceeding $25,000 or a term exceeding twelve months, except
in the ordinary course of business and consistent with past practice;
(e) Tamarack shall not enter into or modify any employment,
severance or similar agreements or arrangements with, or grant any
bonuses, salary increases, or severance or termination pay to, any
officers, directors, employees or consultants other than in the
ordinary course of business and consistent with past practice;
(f) Tamarack shall not adopt or amend in any material respect
any bonus, profit sharing, compensation, stock option, pension,
retirement, deferred compensation, employment or other benefit plan,
trust, fund or group arrangement for the benefit or welfare of any
officers, directors or employees; and
(g) Tamarack shall not allow its current insurance policies to
be canceled or terminated or any of the coverage thereunder to lapse,
unless simultaneous with such termination, cancellation or lapse,
replacement policies providing coverage equal to or greater than the
coverage under the canceled, terminated or lapsed policies for
substantially similar premiums are in full force and effect.
5.2 Conduct Subsequent to the Merger.
(a) SuperShuttle agrees and covenants to use its best efforts
to consummate an initial public offering of SuperShuttle Common Stock
within a reasonable period of time, which shall not exceed 130 days
from the date of this Agreement. If SuperShuttle does not consummate an
initial public offering of SuperShuttle Common Stock within such
period, the Shareholders shall have the right to repurchase, at fair
market value, all of the shares of Tamarack Common Stock transferred to
SuperShuttle. Tamarack will be responsible for payment of its own and
its Shareholders' fees and expenses in connection with the exercise of
such repurchase right. Each of SuperShuttle and Tamarack agree that if
the Shareholders exercise the repurchase right referenced above, the
exchange of Tamarack's SuperShuttle Common Stock for Tamarack Common
Stock will occur with no liability on the part of SuperShuttle as to
the condition of Tamarack during the time SuperShuttle was in
possession of the Tamarack Common Stock.
(b) Until the earlier of (a) an underwritten public offering
by SuperShuttle of its common stock pursuant to an effective
registration statement under the Securities Act, or (b) 60 days after
July 31, 1998, SuperShuttle shall (i) not cause the Surviving
Corporation to make any material changes in its business, operations,
facilities or personnel unless such change is approved by the holders
of a majority of the stock issued pursuant to Section 1.5(a), (ii)
shall use its best efforts to preserve intact the business organization
and goodwill of the Surviving Corporation, (iii) will not cause the
Surviving Corporation to take any of the actions described in Section
5.1(c) and (iv) shall devote reasonable financial and personnel
resources to the Surviving Corporation.
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(c) Each of SuperShuttle and Tamarack covenant and agree that
SuperShuttle shall have the right (for thirty (30) days following the
applicable target date) to repurchase, at fair market value, all of the
SuperShuttle Common Stock to be transferred to Tamarack in connection
with the Merger, if either of the conditions in Section 7.4 are not
satisfied. SuperShuttle will be responsible for payment of its own fees
and expenses in connection with the exercise of such repurchase right.
(d) The parties intend to effect the Merger as a tax-free
reorganization. SuperShuttle undertakes to do all things reasonably
necessary to effect the transaction in a tax-free manner as requested
by Tamarack, provided such actions do not affect the underlying
economics of the transaction for SuperShuttle. However, SuperShuttle
shall not be responsible for any set of circumstances that affects the
tax-free nature of the transaction.
(e) SuperShuttle agrees to undertake to remove the
Shareholders as personal guarantors of any and all loans and leases of
the Surviving Corporation and to replace the Shareholders as the
guarantors of such obligations, provided that there has been no
personal wrongdoing or misrepresentation on the part of the
Shareholders in connection with such obligations. This assumption of
personal guarantees will take effect upon the later of (a) an
underwritten public offering by SuperShuttle of its common stock
pursuant to an effective registration statement under the Securities
Act or (b) 60 days after July 31, 1998. Unless and until such personal
guarantees of Shareholders have been removed, SuperShuttle agrees to
indemnify, defend and hold harmless the Shareholders from and against
any and all claims, damages and expenses arising from or related to
such personal guarantees.
ARTICLE 6
ADDITIONAL AGREEMENTS
6.1 Shareholders' Meeting. Tamarack shall promptly after the date
hereof, take all action necessary in accordance with California Law and its
Articles of Incorporation and Bylaws to convene a meeting of the Shareholders to
consider the Merger (the "Tamarack Shareholders Meeting") (or solicit the
written consent of the Shareholders to the Merger). Tamarack shall consult
SuperShuttle as to the date of the Tamarack Shareholders Meeting (or the date
written consents are expected to be requested) and shall not postpone or adjourn
(other than for the absence of a quorum) the Tamarack Shareholders Meeting
without the consent of SuperShuttle. Tamarack shall use its reasonable best
efforts to secure the vote (or consent) of the Shareholders required by
California Law to effect the Merger. Tamarack has received irrevocable consents
from the Shareholders executing this Agreement to approve the Merger and by
their signatures below the Shareholders agree to all acts and things necessary
to effect the Merger on the terms hereof.
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6.2 Expenses. Each of SuperShuttle, the Shareholders and Tamarack shall
bear their own legal and accounting fees and other expenses relating to this
transaction. In addition, Tamarack will bear the expenses associated with the
conduct of the required accounting audit of its books and records relating to
this transaction.
6.3 No Negotiations. Until March 31, 1998, or such later date as the
parties may mutually agree, Tamarack and the Shareholders agree that neither
they nor Tamarack's directors, officers, employees or agents (i) shall solicit,
negotiate or accept any offers for the sale of Tamarack or any substantial
portion thereof (whether by merger or sale of stock or assets or otherwise) or
provide any non-public information with respect thereto, or (ii) shall solicit,
negotiate, or accept any offers for the acquisition of any material business.
Tamarack shall promptly notify SuperShuttle if it (or to its knowledge any of
the other enumerated persons or any Shareholder) is approached by any person
interested in acquiring the assets or capital stock of Tamarack.
6.4 Notification of Certain Matters. SuperShuttle and Tamarack shall
give prompt notice to each other of (i) the occurrence or failure to occur of
any event, which occurrence or failure would be likely to cause any
representation or warranty on its part contained in this Agreement to be untrue
or inaccurate at, or at any time prior to, the Effective Time, and (ii) any
material failure of such party, or any officer, director, shareholder, employee
or agent thereof, to comply with or satisfy any covenant, condition or agreement
to be complied with or satisfied by it hereunder.
6.5 Access to Information; Confidentiality.
(a) Until March 31, 1998, or the Effective Time each of
SuperShuttle and Merger Sub shall have the opportunity to make a
complete review of the books, records, business and affairs of
Tamarack. Such review may be conducted at any and all reasonable times
by such persons as SuperShuttle designates. To facilitate such review,
Tamarack shall provide to SuperShuttle and its agents complete access
to all of its records and documents, shall provide the other party with
personal, bank and professional references, and shall use reasonable
efforts to make available for consultation customers, employees,
suppliers and distribution channels.
(b) Each of SuperShuttle, Merger Sub and Tamarack agrees that
all non-public information provided to the other enumerated parties
will be treated as confidential, and if this Agreement is terminated,
will return to such other parties all confidential documents (and all
copies thereof) in its possession, or will certify to the other parties
that all such documents not returned have been destroyed. Further,
regardless of whether this Agreement is terminated, each party shall
continue to hold all confidential information of the other in strictest
confidence in accordance with the Letter of Intent entered into by
SuperShuttle and Tamarack on March 2, 1998.
6.6 Consents; Approvals. SuperShuttle, Merger Sub and Tamarack shall
each use their reasonable best efforts to obtain all consents, waivers,
approvals, authorizations or orders, and each such party shall make all filings
required in connection with the authorization,
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execution and delivery of this Agreement by such party and the consummation by
them of the transactions contemplated hereby. Each of SuperShuttle, Merger Sub
and Tamarack shall furnish all information required to be included for any
application or filing to be made pursuant to the rules and regulations of any
applicable governmental body in connection with the transactions contemplated by
this Agreement.
6.7 Supplements to Disclosure Schedules. From time to time prior to the
Effective Time, SuperShuttle and Tamarack will each promptly supplement or amend
their respective Disclosure Schedules with respect to any matter hereafter
arising which, if existing or occurring at the date of this Agreement, would
have been required to be set forth or described in any such Disclosure Schedule
or which is necessary to correct any information in any such Disclosure Schedule
which has been rendered inaccurate thereby. No supplement or amendment to any
such Disclosure Schedule shall have any effect for the purpose of determining
satisfaction of the conditions set forth in Sections 7.2 or 7.3 of this
Agreement, as the case may be, except as otherwise provided in Sections 7.2(a)
and 7.3(a).
6.8 Non-Solicitation of Employees. For a period of one year from the
date hereof, no party shall solicit, negotiate with or hire any employee of the
other party.
6.9 Election of Directors. SuperShuttle shall promptly after the date
hereof take all action necessary in accordance with Delaware Law and its
Certificate of Incorporation and Bylaws to (i) increase, effective as of the
Effective Time, the number of directors serving on the SuperShuttle Board of
Directors to accommodate the election of one (1) designee of Tamarack and (ii)
elect, effective as of the Effective Time, the one designee of Tamarack to
SuperShuttle's Board of Directors.
6.10 Confidential Information and Covenant Not To Compete. Each of the
Shareholders hereby covenants and agrees as follows:
(a) that until the later of a period of three years following
the consummation of the Merger transactions or following the
termination of the employment agreement referenced in Section 7.1(d),
the Shareholder shall not use or disclose, directly or indirectly, for
any reason whatsoever or in any way any confidential information or
trade secrets of Tamarack, SuperShuttle or Merger Sub, including by way
of example, names or descriptions of customers, financial statements,
product or service pricing or other information, contract proposals and
bidding information, and any other information of a proprietary or
confidential character;
(b) that until the later of a period of three years following
the consummation of the Merger transactions or following the
termination of the employment agreement referenced in Section 7.1(d),
the Shareholder shall not, directly or indirectly, either as an
employee, employer, consultant, agent, principal, partner, stockholder,
corporate officer, director or in any other capacity whatsoever, engage
or participate in any businesses in competition in any manner
whatsoever with the business of Tamarack, SuperShuttle or any affiliate
of either of them as such business is presently conducted in either
Orange, Los Angeles, Riverside or San Diego counties or any county
contiguous
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thereto (the "Applicable Counties"). Not limiting the generality of the
foregoing, the business of Tamarack and SuperShuttle shall be deemed to
consist of the transportation, over land, of passengers for hire,
including, by way of example, transportation to and from airports,
ports or stations of embarkation for travel, but excluding the
operation of taxis;
(c) that until the later of a period of three years following
the consummation of the Merger transactions or following the
termination of the employment agreement referenced in Section 7.1(d),
the Shareholder shall not solicit or negotiate any contract or
agreement that constitutes or would constitute engaging in competition
with the business of Tamarack or SuperShuttle in the Applicable
Counties; and
(d) each of the Shareholders by execution of this Agreement
grants to Tamarack a fully paid irrevocable license to use any and all
rights and interests in the business concept employed by Tamarack to
the extent that they have any interest therein, and in any name under
which such businesses may have been conducted, and agree not to
undertake to conduct business employing any such name at any place at
which SuperShuttle or any of its affiliates conduct business. To the
extent that any business concept employed by a Shareholder would
involve the conduct of any form of shared ride transportation business,
the license granted to SuperShuttle shall be deemed exclusive to
SuperShuttle.
In connection with the limitation protections afforded to SuperShuttle
by the covenants set forth above in this Section 6.10, the Shareholders
recognize that SuperShuttle has a need for the covenants and that need is based
upon the following:
(i) SuperShuttle's expenditure of substantial time, money and
effort in developing its business and the valuable list of customers
and information about the requirements and needs associated with the
business, including the business of Tamarack being acquired through the
Merger;
(ii) Shareholder through the course of his or her relationship
with Tamarack has been or may have been entrusted with or exposed to
certain trade secrets and other confidential information, the
confidentiality of which is critical to the ongoing business of
SuperShuttle, including the business to be acquired through the Merger
of Tamarack into Merger Sub;
(iii) SuperShuttle provides and will provide services
throughout the Applicable Counties; and
(iv) SuperShuttle would suffer great loss and irreparable harm
if the Shareholders were to violate the foregoing covenants.
The Shareholders hereby specifically acknowledge and agree that the
temporal, geographical and other restrictions contained in this Section 6.10 are
reasonable and necessary to protect the business and prospects of Tamarack and
SuperShuttle and that the enforcement of
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the provisions of this Section 6.10 will not work an undue hardship on the
Shareholders. Shareholders further agree that in the event that either the
temporal, geographical or any other restrictions, or a portion thereof, set
forth in this Section 6.10 is determined to be overly restrictive and
nonenforceable, the covenants set forth shall be reduced and modified to those
which are reasonable and enforceable under the circumstances to the fullest
extent permitted under applicable law in the judgment of the applicable court.
The Shareholders acknowledge and agree that SuperShuttle does not have an
adequate remedy at law for the breach or threatened breach of the covenants
contained in this Section 6.10 and the Shareholders therefore specifically agree
that SuperShuttle may, in addition to any other remedies which may be available
hereunder or as a matter of law or in equity, file a suit in equity to enjoin
the Shareholder from the breach or threatened breach.
If the provisions of this Section 6.10 are held to be invalid or
unenforceable as against public policy, the remaining provisions of this
Agreement shall not be affected thereby.
ARTICLE 7
CONDITIONS
7.1 Conditions to Obligations of Each Party to Effect the Merger. The
respective obligations of each party to effect the Merger shall be subject to
the fulfillment at or prior to the Effective Time of the following conditions:
(a) this Agreement and the Merger with respect to Tamarack,
and the issuance of the SuperShuttle Common Stock, shall have been
approved and/or adopted, as required by applicable law and the parties'
Certificate/Articles of Incorporation and Bylaws, by the requisite vote
of the Shareholders and/or the boards of directors of SuperShuttle and
Tamarack;
(b) no temporary restraining order, preliminary or permanent
injunction or other order issued by any court of competent jurisdiction
or other legal restraint or prohibition preventing the consummation of
the Merger shall be in effect, nor shall any proceeding brought by an
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign, seeking any of the foregoing be
pending; and there shall not be any action taken, or any statute, rule,
regulation or order enacted, entered, enforced or deemed applicable to
the Merger, which makes the consummation of the Merger illegal;
(c) no party hereto shall have terminated this Agreement as
permitted herein;
(d) SuperShuttle and Xxxx Xxxxx shall have entered into an
Employment Agreement substantially in the form attached hereto as
Exhibit "D";
(e) SuperShuttle agrees to grant the Shareholders piggyback
and demand registration rights pursuant to the terms of the
registration rights agreement, a form of which is attached hereto as
Exhibit "E";
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(f) the Registration Rights Agreement and the Escrow Agreement
shall be executed and delivered by the parties on or before April 22,
1998; and
(g) all associated documents that are referenced in this
Agreement, including, but not limited to, the Employment Agreement, the
Disclosure Schedules referenced in Article 2 and Article 3, Schedule
1.1 and the Opinion Letter referenced in Section 7.2 (k) that are not
in final form when this Agreement is signed, shall be completed in form
and substance satisfactory to the parties as soon as possible
thereafter but no later than April 22, 1998.
7.2 Additional Conditions to Obligations of SuperShuttle and Merger
Sub. The obligations of SuperShuttle and Merger Sub to effect the Merger are
also subject to the fulfillment at or prior to the Effective Time of the
following conditions:
(a) the representations and warranties of Tamarack and the
Shareholders in this Agreement shall be true and correct in all
material respects as of the Effective Time as if made at and as of the
Effective Time (subject to any changes permitted or contemplated hereby
and except for the updating or correction of the disclosures in the
Tamarack Disclosure Schedule which do not reflect any change that is
reasonably likely to have a material adverse effect on the assets,
liabilities, business, results of operations, financial condition or
prospects of Tamarack); and Tamarack shall in all material respects
have performed each obligation and agreement and complied with each
covenant to be performed and complied with by it hereunder at or prior
to the Effective Time;
(b) Tamarack and the Shareholders shall have furnished to
SuperShuttle a certificate in which Tamarack shall certify that the
conditions set forth in Section 7.2(a) have been fulfilled;
(c) Tamarack shall have furnished to SuperShuttle (i) a copy
of the text of the resolutions by which the corporate action on the
part of Tamarack necessary to approve this Agreement and the Merger
were taken and (ii) certificates executed on behalf of Tamarack
certifying to SuperShuttle that such copy is a true, correct and
complete copy of such resolutions and that such resolutions were duly
adopted and have not been amended or rescinded;
(d) Tamarack shall have furnished to SuperShuttle (i) a
balance sheet dated a date not more than thirty days prior to the
Effective Time (the "Current Balance Sheet") and (ii) an income
statement for the period from January 1, 1998, to the date of the
Current Balance Sheet;
(e) no Shareholder shall have exercised dissenter's rights;
(f) there shall have been no material adverse change in the
business, assets, properties, financial condition or operating results
of Tamarack;
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(g) Tamarack shall have obtained each consent and approval
necessary in order that the Merger and the transactions contemplated
herein not constitute a breach or violation of, or result in a right of
termination or acceleration or any encumbrance on any of Tamarack's
assets pursuant to the provisions of any material agreement,
arrangement or understanding or any material license, franchise or
permit;
(h) there shall have been no damage, destruction or loss of or
to any property or properties owned or used by Tamarack, whether or not
covered by insurance, which in the aggregate has had or is reasonably
likely to have a material adverse effect on Tamarack;
(i) there shall not have been instituted, pending or
threatened any action or proceeding (or any investigation or other
inquiry that might result in such an action or proceeding) by any
governmental authority or administrative agency before any governmental
authority, administrative agency or court of competent jurisdiction,
nor shall there be in effect any judgment, decree or order of any
governmental authority, administrative agency or court of competent
jurisdiction, in either case, seeking to prohibit or limit SuperShuttle
from exercising the material rights and privileges pertaining to its
ownership of the Surviving Corporation or the ownership or operation by
SuperShuttle or any of its subsidiaries of all or a material portion of
the business or assets of SuperShuttle or any of its subsidiaries, or
seeking to compel SuperShuttle or any of its subsidiaries to dispose of
or hold separate all or any material portion of the business or assets
of SuperShuttle or any of its subsidiaries, as a result of the Merger
or the transactions contemplated by this Agreement;
(j) SuperShuttle shall have otherwise been reasonably
satisfied with all of its due diligence;
(k) SuperShuttle shall have received an opinion of counsel of
Tamarack in form and substance reasonably acceptable to SuperShuttle;
and
(l) All of the transactions contemplated by Schedule 1.1 shall
have been consummated or shall be simultaneously consummated with the
Effective Time in a manner reasonably acceptable to SuperShuttle and as
contemplated by Schedule 1.1.
Notwithstanding the failure of any condition in this Section 7.2, SuperShuttle
may conditionally waive the failed condition and consummate the transaction, but
shall be entitled to pursue adequate and appropriate reimbursement for all
costs, damages and liabilities in connection with the failed condition and may
withhold such of the Merger consideration as SuperShuttle deems reasonably
appropriate to assure payment of the costs, damages and liabilities associated
with the failed condition.
7.3 Additional Conditions to Obligations of Tamarack. The obligation of
Tamarack to effect the Merger is also subject to the fulfillment at or prior to
the Effective Time of the following conditions:
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(a) the representations and warranties of SuperShuttle and
Merger Sub set forth in Article 2 shall be true and correct in all
material respects as of the Effective Time as if made at and as of the
Effective Time (subject to any changes permitted or contemplated hereby
and except for the updating or correction of the disclosures in the
SuperShuttle Disclosure Schedule which do not reflect any change that
is reasonably likely to have a material adverse effect on the assets,
liabilities, business, results of operations, financial condition or
prospects of SuperShuttle and its subsidiaries, taken as a whole) and
each of SuperShuttle and Merger Sub shall in all material respects have
performed each obligation and agreement and complied with each covenant
to be performed and complied with by it hereunder at or prior to the
Effective Time;
(b) SuperShuttle shall have furnished to Tamarack a
certificate in which SuperShuttle and Merger Sub shall certify that the
conditions set forth in Section 7.3(a) have been fulfilled;
(c) SuperShuttle shall have furnished to Tamarack (i) a copy
of the text of the resolutions by which the corporate actions on the
part of SuperShuttle and Merger Sub necessary to approve this Agreement
and the Merger were taken and (ii) certificates executed on behalf of
SuperShuttle and Merger Sub by their respective corporate secretaries
or one of their respective assistant corporate secretaries certifying
to Tamarack, in each case, that such copy is a true, correct and
complete copy of such resolutions and that such resolutions were duly
adopted and have not been amended or rescinded;
(d) SuperShuttle shall have obtained each consent and approval
necessary in order that the Merger and the transactions contemplated
herein not constitute a breach or violation of, or result in a right of
termination or acceleration or any encumbrance on any of SuperShuttle's
assets pursuant to the provisions of any material agreement,
arrangement or understanding or any material license, franchise or
permit; and
(e) all corporate action necessary by SuperShuttle to elect,
as of the Effective Time and as contemplated by Section 6.9 hereof, the
one designee of Tamarack to SuperShuttle's Board of Directors, shall
have been duly and validly taken.
7.4 Conditions Subsequent to the Merger. The following are conditions
subsequent to the Merger. In the event that these conditions are not satisfied,
SuperShuttle shall, at its discretion, have the right to exercise the repurchase
right set forth at Section 5.2(c).
(a) the obtaining, by July 31, 1998, of 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
(b) the approval of the PUC of the change of control of
Tamarack by July 31, 1998, in a manner reasonably acceptable to
SuperShuttle.
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ARTICLE 8
TERMINATION, AMENDMENT AND WAIVER
8.1 Termination. This Agreement may be terminated at any time prior to
the Effective Time:
(a) by mutual written consent of a duly authorized officer of
SuperShuttle and Tamarack;
(b) by either party if the other party breaches any of its
material representations, warranties or covenants contained herein and,
if such breach is curable, such breach is not cured on or prior to 10
days after notice;
(c) by either SuperShuttle or Tamarack if a court of competent
jurisdiction or governmental, regulatory or administrative agency or
commission shall have issued an order, decree or ruling or taken any
other action, in each case having the effect of permanently
restraining, enjoining or otherwise prohibiting the Merger;
(d) by either SuperShuttle or Tamarack if the Merger shall not
have been consummated on or before March 31, 1998, or such later date
as may be mutually agreed upon by the parties;
(e) by SuperShuttle, if the conditions set forth in Section
7.2 hereof shall have not been complied with or performed and such
noncompliance or nonperformance shall not have been cured or eliminated
(or by its nature cannot be cured or eliminated) by Tamarack on or
before March 31, 1998; or
(f) by Tamarack, if the conditions set forth in Section 7.3
hereof shall not have been complied with or performed and such
noncompliance or nonperformance shall not have been cured or eliminated
(or by its nature cannot be cured or eliminated) by SuperShuttle and/or
Merger Sub on or before March 31, 1998;
provided, however, that no party shall have the right to terminate this
Agreement unilaterally if the event giving rise to such right shall be primarily
attributable to such party or to any affiliated party.
8.2 Effect of Termination. In the event of termination of this
Agreement as provided in Section 8.1, this Agreement shall become void and there
shall be no liability or further obligation hereunder on the part of
SuperShuttle, Merger Sub, Tamarack or their respective shareholders, officers or
directors, except as set forth in Sections 6.2, 6.5(b), or 6.8 hereof.
8.3 Amendment. This Agreement may not be amended except by an
instrument in writing approved by the parties to this Agreement and signed on
behalf of each of the parties hereto.
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8.4 Waiver. At any time prior to the Effective Time, any party hereto
may (a) extend the time for the performance of any of the obligations or other
acts of any other party hereto or (b) waive compliance with any of the
agreements of any other party or with any conditions to its own obligations, in
each case only to the extent such obligations, agreements and conditions are
intended for its benefit.
ARTICLE 9
GENERAL PROVISIONS
9.1 Survival of Representations and Warranties. All representations and
warranties made by SuperShuttle, Merger Sub, Tamarack and the Shareholders in
this Agreement shall terminate as of the Effective Time or upon termination of
this Agreement as provided in Section 8.1, as the case may be.
9.2 Public Announcements. SuperShuttle and Tamarack shall consult with
each other upon an agreed form of press release and before issuing any such
press release or otherwise making any public statements with respect to the
Merger or this Agreement. Neither SuperShuttle nor Tamarack shall issue any such
press release or make any such public statement without the prior consent of the
other party, which shall not be unreasonably withheld.
9.3 Notices. All notices and other communications hereunder shall be in
writing and shall be sufficiently given if made by hand delivery, by telecopier,
or by registered or certified mail (postage prepaid and return receipt
requested) to the parties at the following addresses (or if such other address
for a party as shall be specified by it by like notice):
If to SuperShuttle or SuperShuttle International, Inc.
Merger Sub: 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 Tamarack or Tamarack Transportation, Inc.
the Shareholders: dba SuperShuttle Los Angeles
000 Xxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
FAX: _______________
Attn: Xxxx Xxxxx
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With a copy to: Petillon & Xxxxxx
1260 Union Bank Tower
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
PH: (310) 543-0500
FAX: (000) 000-0000
Attn: Xxxxxxx Xxxx
All such notices and other communications shall be deemed to have been
duly given: (i) when delivered by hand, if personally delivered; (ii) three
business days after being deposited in the mail, postage prepaid, if delivered
by mail; and (iii) when receipt is acknowledged, if telecopied.
9.4 Interpretation. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. References to Sections and Articles refer to
sections and articles of this Agreement unless otherwise stated. Words such as
"herein," "hereinafter," "hereof," "hereto," "hereby" and "hereunder," and words
of like import, unless the context requires otherwise, refer to this Agreement
(including the exhibits and attachments hereto). As used in this Agreement, the
masculine, feminine and neuter genders shall be deemed to include the others if
the context requires. The rule of construction that an agreement is construed in
favor of the nondrafting party shall not apply to this Agreement. This Agreement
shall be deemed to have been mutually drafted by the parties.
9.5 Schedules and Exhibits. All schedules and exhibits attached hereto
or referred to herein are hereby incorporated in and made a part of this
Agreement as set forth in full herein. Information set forth in any section to
the SuperShuttle Disclosure Schedule or the Tamarack Disclosure Schedule is
deemed to be set forth in all other sections of such Disclosure Schedule.
Disclosure of any fact or item in any schedule or exhibit hereto referenced by a
particular paragraph or section in this Agreement shall, should the existence of
the fact or item or its contents be relevant to any other paragraph or section,
be deemed to be disclosed with respect to that other paragraph or schedule
whether or not a specific cross reference appears. Disclosure of any fact or
item in any schedule or exhibit hereto shall not necessarily mean that such item
or fact individually is material to a party.
9.6 Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated and the court shall modify the
Agreement or, in the absence thereof, the parties shall negotiate in good faith
to modify this Agreement to preserve each party's anticipated benefits under
this Agreement.
9.7 Jurisdiction; Venue; Service of Process. The parties expressly
agree that any controversy, dispute, litigation or claim arising out of the
subject matter of this Agreement and the transactions contemplated hereby shall
be brought or commenced only in a federal or state court located in Maricopa
County, Arizona. The parties agree to be subject to the personal
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jurisdiction of the federal and/or state courts situated in Maricopa County,
Arizona and agree that a claim of forum non-conveniens shall not be a defense to
an action initiated in such venues. The parties agree to the service of process
of any such courts in any such action or proceeding by registered or certified
mail, postage prepaid, return receipt requested, to the addresses listed in this
Agreement and agree that such service shall become effective thirty (30) days
after such mailing.
9.8 Waiver of Jury Trial. EACH OF SUPERSHUTTLE, MERGER SUB AND TAMARACK
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OF THE TRANSACTIONS CONTEMPLATED HEREBY.
9.9 Miscellaneous. This Agreement (together with all other documents
and instruments referred to herein): (a) constitutes the entire agreement, and
supersedes all other prior agreements, representations, warranties and
undertakings, both written and oral, among the parties, with respect to the
subject matter hereof; (b) is not intended to confer upon any other person any
rights or remedies hereunder; (c) shall not be assigned by any party, except
that Merger Sub may assign all or any portion of its rights under this Agreement
to any wholly owned subsidiary of SuperShuttle, but no such assignment shall
relieve SuperShuttle of its obligations hereunder; and (d) shall be governed in
all respects, including validity, interpretation and effect, by the internal
laws of the State of Arizona, without giving effect to the principles of
conflict of laws thereof; provided, however, that the Merger shall be governed
by the Arizona Law and California Law, as appropriate. Each certificate,
agreement or other document making reference to the Agreement and Plan of
Reorganization and Merger among SuperShuttle International, Inc., SuperShuttle
Acquisition Co. II, Tamarack Transportation, Inc. ("Tamarack") and the
shareholders of Tamarack, dated as of March 31, 1998, shall be deemed to refer
to this Amended and Restated Agreement and Plan of Reorganization and Merger.
This Agreement may be executed in two or more counterparts, which together shall
constitute a single agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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AMENDED AND RESTATED
AGREEMENT AND PLAN OF REORGANIZATION AND MERGER
SIGNATURE PAGE
IN WITNESS WHEREOF, SuperShuttle, Merger Sub, Tamarack and the
Shareholders have caused this Agreement to be executed on the date first written
above by their respective officers thereunder duly authorized.
SUPERSHUTTLE INTERNATIONAL
INC., a Delaware corporation
By /s/ Xxxxxx X. XxXxx
--------------------------------
Xxxxxx XxXxx, Secretary and CFO
SUPERSHUTTLE ACQUISITION CO. II,
an Arizona corporation
By /s/ Xxxxxx X. XxXxx
--------------------------------
Secretary
TAMARACK TRANSPORTATION, INC.,
a California corporation
By /s/ Xxxx Xxxxx
---------------------------------
Xxxx Xxxxx, President
SHAREHOLDERS OF TAMARACK
/s/ Xxxx Xxxxx
------------------------------------
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