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Exhibit 2.4
AMENDED AND RESTATED
STOCK PURCHASE AGREEMENT
AMONG
SUPERSHUTTLE INTERNATIONAL, INC.,
SOUTHERN SHUTTLE SERVICES, INC.
AND
THE SHAREHOLDERS LISTED ON SCHEDULE 1
April 30, 1998
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AMENDED AND RESTATED
STOCK PURCHASE AGREEMENT
ARTICLE 1
THE STOCK PURCHASE ...............................................................................................1
1.1 Basic Transaction...............................................................................1
1.2 Effective Time; Closing Date....................................................................2
1.3 Articles of Incorporation and Bylaws............................................................3
1.4 Deliveries at the Effective Time................................................................3
1.5 Closing of Southern Transfer Books..............................................................3
1.6 Lost, Stolen or Destroyed Certificates..........................................................3
1.7 Taking of Necessary Action; Further Action......................................................3
1.8 Tax Treatment...................................................................................3
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SUPERSHUTTLE....................................................................4
2.1 Organization and Qualification..................................................................4
2.2 Authority Relative to This Agreement............................................................4
2.3 Capitalization.................................................................................4
2.4 Financial Statements............................................................................5
2.5 Subsidiaries....................................................................................5
2.6 Litigation......................................................................................5
2.7 Brokers' Fees...................................................................................6
2.8 Compliance With Laws; Permits; Certain Operations...............................................6
2.9 Absence of Undisclosed Liabilities..............................................................6
2.10 No Material Adverse Changes.....................................................................7
2.11 Other Agreements................................................................................7
2.12 Disclosure......................................................................................7
2.13 Liens...........................................................................................7
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SOUTHERN AND THE SHAREHOLDERS...................................................7
3.1 Organization and Qualification..................................................................8
3.2 Authority Relative to This Agreement............................................................8
3.3 Capitalization..................................................................................8
3.4 Financial Statements............................................................................9
3.5 Subsidiaries....................................................................................9
3.6 Absence of Undisclosed Liabilities..............................................................9
3.7 No Material Adverse Changes....................................................................10
3.8 Absence of Certain Developments................................................................10
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3.9 Title to and Condition of Properties...........................................................11
3.10 Environmental Matters..........................................................................12
3.11 Accounts Receivable............................................................................13
3.12 Tax Matters....................................................................................13
3.13 Contracts and Commitments......................................................................14
3.14 Restrictions on Business Activities............................................................14
3.15 Intellectual Property Rights...................................................................15
3.16 Litigation.....................................................................................15
3.17 Brokers' Fees..................................................................................15
3.18 Employment.....................................................................................16
3.19 Employee Benefit Plans.........................................................................16
3.20 Insurance......................................................................................16
3.21 Insider Transactions...........................................................................16
3.22 Compliance With Laws; Permits; Certain Operations..............................................16
3.23 Disclosure.....................................................................................17
3.24 Minute Books...................................................................................17
3.25 Compensation...................................................................................17
3.26 Medicaid and Other Third Party Payor Matters...................................................17
ARTICLE 4
ADDITIONAL REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS........................................................17
4.1 Organization, Standing and Authority of Shareholders...........................................18
4.2 Execution and Delivery; No Conflicts...........................................................18
4.3 Consents and Approvals.........................................................................18
4.4 Brokers........................................................................................18
4.5 Securities Laws Compliance.....................................................................18
4.6 Shareholder Experience and Investment Representations..........................................19
ARTICLE 5
CONDUCT PENDING AND SUBSEQUENT TO THE EXCHANGE...................................................................19
5.1 Conduct of Business Pending the Exchange.......................................................19
5.2 Conduct Subsequent to the Exchange.............................................................21
5.3 SuperShuttle Recision Right ...................................................................22
5.4 Conduct by SuperShuttle........................................................................22
ARTICLE 6
ADDITIONAL AGREEMENTS............................................................................................23
6.1 Expenses.......................................................................................23
6.2 No Negotiations................................................................................23
6.3 Notification of Certain Matters................................................................23
6.4 Access to Information; Confidentiality.........................................................23
6.5 Consents; Approvals............................................................................24
6.6 Supplements to Disclosure Schedules............................................................24
6.7 Non-Solicitation of Employees..................................................................24
6.8 Election of Directors..........................................................................24
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6.9 Confidential Information and Covenant Not To Compete...........................................24
6.10 Collateral and/or Guarantees for Certain Southern Loans........................................26
6.11 Shareholder Loans..............................................................................26
6.12 Tax Treatment..................................................................................26
ARTICLE 7
CONDITIONS.......................................................................................................26
7.1 Conditions to Obligations of Each Party to Effect the Exchange.................................26
7.2 Additional Conditions to Obligations of SuperShuttle...........................................27
7.3 Additional Conditions to Obligation of Southern................................................28
7.4 Conditions to the Closing......................................................................30
7.5 Other Deliveries...............................................................................30
ARTICLE 8
TERMINATION, AMENDMENT AND WAIVER................................................................................30
8.1 Termination....................................................................................30
8.2 Effect of Termination..........................................................................31
8.3 Amendment......................................................................................31
8.4 Waiver.........................................................................................31
ARTICLE 9
GENERAL PROVISIONS...............................................................................................31
9.1 Survival of Representations and Warranties.....................................................31
9.2 Public Announcements...........................................................................32
9.3 Notices........................................................................................32
9.4 Interpretation.................................................................................33
9.5 Schedules and Exhibits.........................................................................33
9.6 Severability...................................................................................33
9.7 Jurisdiction; Venue; Service of Process........................................................33
9.8 Waiver of Jury Trial...........................................................................34
9.9 Miscellaneous..................................................................................34
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INDEX OF EXHIBITS AND SCHEDULES
Exhibit "A" Registration Rights Agreement
Exhibit "B" Articles of Incorporation of Southern
Exhibit "C" Bylaws of Southern
Exhibit "D" Employment Agreement
Schedule "1" Southern Shareholders and Common Stock Ownership
Schedule "1.1(a)" List of Assets and Method of Transfer
Schedule "1.1(b)" List of Assets to be Transferred from Southern
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AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
This AMENDED AND RESTATED STOCK PURCHASE AGREEMENT (the "Agreement") is
made as of April 30, 1998 by and among SUPERSHUTTLE INTERNATIONAL, INC., a
Delaware corporation ("SuperShuttle"); SOUTHERN SHUTTLE SERVICES, INC., a
Florida corporation ("Southern"); and those Southern shareholders listed on
Schedule "1" hereto (collectively, the "Shareholders" and, individually, a
"Shareholder") and amends and restates in its entirety that certain Stock
Purchase Agreement dated March 31, 1998, by and among SuperShuttle, Southern and
the Shareholders.
RECITALS
A. SuperShuttle and Southern are parties to a letter agreement dated
February 25, 1998 (the "Letter of Intent"), and SuperShuttle, Southern and the
Shareholders are parties to that certain Stock Purchase Agreement dated March
31, 1998, which contemplates the acquisition by SuperShuttle of all of the
outstanding capital stock of Southern.
B. The Shareholders currently and collectively own all of the issued
and outstanding shares of capital stock of Southern, with each Shareholder
owning the number of shares set forth opposite such Shareholder's name on
Schedule 1.
C. 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 Southern for which they are jointly and severally
liable.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, the parties agree as follows:
ARTICLE 1
THE STOCK PURCHASE
1.1 Basic Transaction.
(a) On and subject to the terms and conditions of this
Agreement, SuperShuttle agrees to purchase from the Shareholders, and
each of the Shareholders agrees to sell to SuperShuttle, all of his or
her shares of capital stock of Southern (the "Southern Common Stock")
and the Shareholders agree to purchase from SuperShuttle, and
SuperShuttle agrees to sell to the Shareholders, 978,882 shares of
Common Stock, $0.01 par value per share, of SuperShuttle (the
"SuperShuttle Common Stock"), pro rata to their Southern Common Stock
ownership as reflected on Schedule 1 (hereinafter, the "Exchange"). The
aggregate number of shares of SuperShuttle Common Stock to be issued in
order to give effect to this provision will represent fifteen percent
(15%) on a fully-diluted basis of the total number of outstanding
shares of SuperShuttle Common Stock when issued (after giving effect to
any SuperShuttle Common Stock issued in connection with the
contemporaneous
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acquisitions of the Los Angeles and Orange County franchisees and AAA
Wheelchair Wagon Services, Inc., Wheelchair Ambulance of Hollywood,
Inc., Limousines of South Florida, Inc. and A1A Snowbird Leasing, Inc.
and the conversion of the currently outstanding shares of
SuperShuttle's Series B Convertible Preferred Stock into shares of
SuperShuttle Common Stock).
The number of shares of SuperShuttle Common Stock to be issued
to the Shareholders 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 Southern Common Stock), reorganization, recapitalization or
other like change with respect to SuperShuttle Common Stock or Southern
Common Stock occurring after the date hereof and prior to the Effective
Time, but shall not be adjusted for the exercise of any outstanding
SuperShuttle options or warrants convertible into SuperShuttle Common
Stock. No fractional shares of SuperShuttle Common Stock shall be
issued. Fractional shares of such stock shall be rounded up to the
nearest whole share.
(b) SuperShuttle agrees to grant the Shareholders registration
rights pursuant to the terms of the Registration Rights Agreement, a
form of is attached hereto as Exhibit "A."
(c) As an incident to the share exchange transactions and as a
predicate and condition to them, certain assets are required to be
transferred into Southern or other accommodations made in order to
effect the purpose of allowing Southern to operate the business of
Southern as presently conducted. In this regard, the assets described
on Schedule 1.1(a) attached hereto and incorporated by reference herein
shall be assigned to Southern 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 Southern immediately prior
to the Effective Time shall be and become the property of Southern
effective upon the Exchange through the processes described on Schedule
1.1(a) without any further form of consideration or payment owing to
Southern or any of the Shareholders. As an incident to the share
exchange transactions and as a predicate and condition to them, certain
assets are required to be transferred from Southern to third parties or
affiliates. In this regard, the assets described on Schedule 1.1(b)
attached hereto and incorporated by reference herein and any
indebtedness relating hereto shall be transferred to the party
identified therein on or before April 30, 1998. The transactions
contemplated by Schedules 1.1(a) and 1.1(b) are a fundamental part of
this Agreement and the consummation of those transactions is a
condition to the effectiveness of the Agreement.
1.2 Effective Time; Closing Date. The date and time when the share
exchange shall become effective, March 31, 1998, is referred to as the
"Effective Time." The closing of the transactions contemplated hereunder (the
"Closing") shall occur upon the earlier of (i) the
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satisfaction or waiver of the conditions provided at Article 7, or (ii) April
30, 1998 (the "Closing Date") at the offices of Shareholders' counsel, or such
other place as the parties may agree.
1.3 Articles of Incorporation and Bylaws. The Articles of Incorporation
and the Bylaws of Southern shall be restated in the forms of Exhibits "B" and
"C" hereto and incorporated herein.
1.4 Deliveries at the Effective Time. At the Effective Time, each of
the Shareholders shall surrender the certificate or certificates representing
shares of Southern Common Stock to the Escrow Agent. Promptly following
surrender, SuperShuttle shall issue the SuperShuttle Common Stock to the
Shareholders pursuant to Section 1.1. The certificates of Southern Common Stock
surrendered to the Escrow Agent shall be duly endorsed and otherwise in proper
form for transfer as SuperShuttle may require. Escrow Agent shall not be
obligated to deliver the consideration to which any Shareholder is entitled as a
result of the share exchange until such Shareholder surrenders his or her
certificate or certificates representing the shares of Southern Common Stock to
be exchanged.
1.5 Closing of Southern Transfer Books. At the Effective Time, the
stock transfer books of Southern shall be closed and no transfer of shares of
Southern Common Stock issued and outstanding immediately prior to the Effective
Time shall thereafter be made (except as provided for or contemplated in Section
1.1 above).
1.6 Lost, Stolen or Destroyed Certificates. In the event any
certificates representing shares of Southern 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
Section 1.1; 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.
1.7 Taking of Necessary Action; Further Action. SuperShuttle, on the
one hand, and Southern 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 share exchange) as may
be necessary or appropriate in order to effectuate the Exchange 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, the officers
and directors of the SuperShuttle are fully authorized in the name of Southern
or otherwise to take, and shall take, all such lawful and necessary actions.
1.8 Tax Treatment. The parties hereto acknowledge and agree that the
transactions contemplated hereby are intended to be a tax free reorganization
under Section 368(a)(1)(B) of the U.S. Internal Revenue Code of 1986, as amended
(the "Code").
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SUPERSHUTTLE
SuperShuttle hereby represents and warrants to Southern 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 Southern hereunder (the
"SuperShuttle Disclosure Schedule"):
2.1 Organization and Qualification. SuperShuttle is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware 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 Certificate of Incorporation and Bylaws of SuperShuttle
previously furnished to Southern are correct and complete and reflect all
amendments thereto.
2.2 Authority Relative to This Agreement. SuperShuttle 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 the consummation by SuperShuttle of the
transactions contemplated hereby have been duly authorized by SuperShuttle, and
no other corporate proceedings on the part of SuperShuttle are necessary to
authorize this Agreement and such transactions. This Agreement has been duly
executed and delivered by SuperShuttle and, assuming the due authorization,
execution and delivery by Southern, constitutes a valid and binding obligation
of SuperShuttle, 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, SuperShuttle is not subject to, or obligated under, any
provision of (a) its 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. No authorization, consent or approval of, or filing with,
any public body, court or authority is necessary on the part of SuperShuttle for
the consummation by SuperShuttle 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 duly authorized, validly issued, fully paid
and nonassessable. The SuperShuttle Common Stock when issued to the Shareholders
will be duly authorized, validly issued, fully paid and non-assessable shares of
SuperShuttle.
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Except as set forth in Section 2.3 of the SuperShuttle Disclosure
Schedule, there are no options, warrants, call, conversion privileges or other
rights, agreements, arrangements or commitments obligating SuperShuttle 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
SuperShuttle. No holders of outstanding shares of SuperShuttle Common Stock are
entitled to preemptive or other similar rights.
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 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 February 28, 1998, and other financial statements for the years
ended September 30, 1997 and September 30, 1996 audited by Deloitte & Touche LLP
to Southern (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. 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. Unless the context requires
otherwise, the term "SuperShuttle" shall hereafter refer to SuperShuttle and/or
its Subsidiaries.
2.6 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, which, if
determined adversely to SuperShuttle, would result in a material adverse effect
to SuperShuttle's operations and financial condition, and there is no basis
known to SuperShuttle for any of the foregoing.
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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.
2.7 Brokers' Fees. SuperShuttle is not liable for any brokerage
commissions, finders' fees or similar compensation in connection with the
transactions contemplated by this Agreement.
2.8 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 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, supplier,
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 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 2.8 of the SuperShuttle Disclosure Schedule.
2.9 Absence of Undisclosed Liabilities. SuperShuttle has no obligations
or liabilities whether accrued, absolute, contingent, liquidated or otherwise
whether due or to become due regardless of when asserted, except:
(a) To the extent reflected or taken into account in its
September 30, 1997 financial statement and not
heretofore paid or discharged,
(b) To the extent specifically set forth in or
incorporated by reference in the SuperShuttle
Disclosure Schedules,
(c) Liabilities incurred in the ordinary course of
business consistent with past practice since the date
of the September 30, 1997 financial statement (none
of which relates to breach of contract, breach of
warranty, tort, infringement or violation of law, or
which arose out of any action, suit, claim,
governmental investigation or arbitration
proceeding),
(d) Normal accruals, reclassifications, and audit
adjustments which would be reflected on an audited
financial statement,
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(e) Liabilities incurred in the ordinary course of
business, and
(f) Liabilities which are not material in scope or
amount.
2.10 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, taken as a whole.
2.11 Other Agreements. SuperShuttle has not entered or will enter into
any agreement with Tamarack Transportation, Inc., Preferred Transportation,
Inc., AAA Wheelchair Wagon Services, Inc., Wheelchair Ambulance of Hollywood,
Inc., Limousines of South Florida, Inc. or A1A Snowbird Leasing, Inc. (the
"Target Companies") or any shareholders of such Target Companies other than
share exchange agreements, merger agreements, registration rights agreements and
employment agreements. Such agreements contain terms no less favorable than
those set forth in this agreement, the registration rights agreement and the
employment agreements entered into by the Shareholders.
2.12 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 Southern 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.
2.13 Liens. SuperShuttle is not a party to any loan, indebtedness,
security agreement, loan agreement, guarantee or financing statement which shall
upon the Closing Date or thereafter subject the Transferred Assets (as defined
in Section 5.3) to a lien, pledge, charge or encumbrance.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SOUTHERN AND
THE SHAREHOLDERS
Southern and the Shareholders hereby represent and warrant to
SuperShuttle 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 Southern and the Shareholders who agree
to be bound to and liable for the representations and warranties set forth below
and all other obligations of Southern 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 "Southern
Disclosure Schedule"). The Southern Disclosure Schedule describes exceptions to
each applicable representation below by section numbers corresponding to the
section number of the applicable qualified representation.
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3.1 Organization and Qualification. Southern is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida, 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 Southern
previously furnished to SuperShuttle are correct and complete and reflect all
amendments thereto.
3.2 Authority Relative to This Agreement. Southern 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 Southern
and the consummation by Southern of the transactions contemplated hereby have
been duly authorized by Southern, and no other corporate proceedings on the part
of Southern are necessary to authorize this Agreement and such transactions
(other than the approval of the Shareholders). This Agreement has been duly
executed and delivered by Southern and, assuming the due authorization and
delivery thereof by SuperShuttle, constitutes a valid and binding obligation of
Southern, 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 Southern Disclosure
Schedule, Southern 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
Southern's execution, delivery and performance of this Agreement and the
consummation by it of the transactions contemplated hereby. No authorization,
consent or approval of, or filing with, any public body, court or authority is
necessary on the part of Southern for the consummation by Southern of the
transactions contemplated by this Agreement.
3.3 Capitalization. The authorized equity capitalization of Southern
consists of 500 shares of Common Stock. As of the date hereof, 75 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 Southern are owned by the Shareholders. Except as set forth in Section
3.3 of the Southern Disclosure Schedule, there are no options, warrants,
conversion privileges or other rights, agreements, arrangements or commitments
obligating Southern 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 Southern. No holders of outstanding shares of
Southern Common Stock are entitled to any preemptive or other similar rights.
There are no obligations, contingent or otherwise, of Southern to repurchase,
redeem or otherwise acquire any shares of Southern 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
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entered into in the ordinary course of business. Upon consummation of the
Exchange, SuperShuttle will own, directly or indirectly, the entire equity
interest in Southern, and there will be no options, warrants, conversion
privileges or other rights, agreements, arrangements or commitments obligating
Southern to issue or sell any shares of capital stock of Southern or any other
corporation.
3.4 Financial Statements. The consolidated financial statements of
Southern for the fiscal years ended December 31, 1996 and 1997, and for the
interim period ended February 28, 1998, (the "Southern 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 in all material respects the
consolidated financial position, results of operations, and cash flows of
Southern 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 and as set forth on the Southern
Disclosure Schedules.
3.5 Subsidiaries. Except as set forth in the Southern Disclosure
Schedule, Southern 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. Southern has no obligations or
liabilities (whether accrued, absolute, contingent, liquidated or otherwise,
whether due or to become due and regardless of when asserted), except:
(a) To the extent reflected or taken into account in its
December 31, 1997 financial statement and not
heretofore paid or discharged,
(b) To the extent specifically set forth in or
incorporated by reference in the Southern Disclosure
Schedules,
(c) Liabilities incurred in the ordinary course of
business consistent with past practice since the date
of the December 31, 1997 financial statement (none of
which relates to breach of contract, breach of
warranty, tort, infringement or violation of law, or
which arose out of any action, suit, claim,
governmental investigation or arbitration
proceeding),
(d) Normal accruals, reclassifications, and audit
adjustments which would be reflected on an audited
financial statement,
(e) Liabilities incurred in the ordinary course of
business, and
(f) Liabilities which are not material in scope or
amount.
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3.7 No Material Adverse Changes. Except as set forth in the Southern
Disclosure Schedule, since December 31, 1997, there has not been any material
adverse change in the assets, financial condition or operating results of
Southern, taken as a whole.
3.8 Absence of Certain Developments. Except as set forth in the
Southern Disclosure Schedule or except as contemplated in this Agreement, since
December 31, 1997, Southern 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 Southern's business
and in a manner and in amounts that are in keeping with the historical
practice of Southern;
(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 Southern with a fair market value in
excess of $25,000 in the aggregate, except in the ordinary course of
business or liens for current property taxes not yet due and payable;
(g) sold, assigned or transferred (including, without
limitation, transfers to any employees, shareholders or affiliates of
Southern) 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
Southern) 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, except
in the ordinary course of business;
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(i) materially changed the pricing or royalties set or charged
by Southern 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
Southern;
(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,
except for motor vehicles, that aggregate in excess of $25,000;
(n) acquire or make any commitments to acquire any motor
vehicles without the prior written approval of SuperShuttle;
(o) 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); or
(p) except in the ordinary course of business, entered into
any contract, written or oral, that involves consideration or
performance by Southern of a value exceeding $25,000 or a term
exceeding twelve (12) months.
3.9 Title to and Condition of Properties.
(a) Southern owns good and marketable title to the properties
and assets reflected on the December 31, 1997 Southern 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 Southern Disclosure
Schedule, (C) the properties subject to the leases set forth in Section
3.9(b) of the Southern Disclosure Schedule, and (D) assets disposed of
since December 31, 1997, in the ordinary course of business.
(b) (i) At the Effective Time, Southern will not own any real
estate; (ii) the properties subject to the real property leases
described in Section 3.9(b) of the Southern Disclosure Schedule
constitute all of the real estate used or occupied by Southern (the
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"Southern Real Estate"), and (iii) Southern Real Estate has access,
sufficient for the conduct of Southern'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 Southern.
(c) The real property leases described in Section 3.9(b) of
the Southern Disclosure Schedule are in full force and effect, and
Southern has a valid and existing leasehold interest under each such
lease for the term set forth therein. Southern 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. Southern is not in default, and to the knowledge of
Southern no circumstances exist which could result in such default,
under any of such leases.
(d) A complete list of all motor vehicles and computer
equipment used in the business of Southern is included as Section
3.9(d) of the Southern Disclosure Schedule. Southern owns or leases
under valid leases, all buildings, machinery, equipment and other
tangible assets necessary for the conduct of its business. Southern has
delivered to SuperShuttle complete and accurate copies of all equipment
leases and such leases are listed in the Southern 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. Southern is not in default, and to the
knowledge of Southern no circumstances exist which could result in such
default, under any of such equipment leases.
(e) To the knowledge of Southern, Southern 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 Southern 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 Southern.
3.10 Environmental Matters. Except as set forth in the Southern
Disclosure Schedule, Southern (i) has obtained all applicable permits, licenses
and other authorizations (a list of which is set forth in the Southern
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 Southern; (ii) is in material compliance with all terms and conditions of any
required permits, licenses and authorizations, and to its knowledge 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,
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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 based on or
resulting from Southern'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) to its knowledge 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
Southern thereunder; and (v) has neither disposed of nor handled any hazardous
substance.
3.11 Accounts Receivable. Southern's notes and accounts receivable
recorded on the February 28, 1998 Southern Balance Sheet and those arising since
the date thereof are to its knowledge 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 Southern or as
disclosed in the Southern Disclosure Schedule. All such accounts receivable of
Southern 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 Southern Disclosure
Schedule, Southern 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 Southern (whether or not
shown on any tax return) for all periods prior to December 31, 1997 have been
paid; Southern's reserves and provisions for taxes on the balance sheets
included in the Southern Financial Statements are sufficient for all accrued and
unpaid taxes as of the dates of such balance sheets; Southern 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; Southern 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; and Southern has not received notice of any
unresolved questions or claims concerning the tax liability of Southern.
Southern 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
Southern. Southern (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 Southern) and (ii) does not have any liability
for taxes of any person (other than Southern) 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. Southern is not a party to a
tax sharing or allocation agreement nor does Southern owe any amount under any
such agreement. Southern 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. Southern 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.
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3.13 Contracts and Commitments.
(a) Except as set forth in the Southern Disclosure Schedule,
Southern 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
Southern 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 Southern's products; (xii) franchise agreement;
or (xiii) other agreement material to Southern's business or not
entered into in the ordinary course of business.
(b) Southern has furnished or otherwise made available 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.
(c) Except as specifically disclosed in the Southern
Disclosure Schedule: (i) Southern's relations with customers and
suppliers are good; (ii) since the date of the December 31, 1997
Southern Balance Sheet, no significant customer or supplier has
indicated that it will stop or materially decrease the rate of business
done with Southern, except for changes in the ordinary course of
Southern's business; (iii) Southern has performed all material
obligations required to be performed by it in connection with the
contracts or commitments described herein and Southern has not been
advised of or received any claim of default under any such contract or
commitment; (iv) Southern has no present expectation or intention of
not fully performing any obligation pursuant to any contract or
commitment; and (v) Southern has no knowledge of any breach by any
other party to any contract or commitment.
3.14 Restrictions on Business Activities. Except as set forth in the
Southern Disclosure Schedule, there is no agreement (noncompete or otherwise),
commitment, judgment, injunction, order or decree to which Southern is a party
or otherwise binding on Southern which has or
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reasonably could be expected to have the effect of prohibiting or impairing any
business practice of Southern.
3.15 Intellectual Property Rights.
(a) The Southern Disclosure Schedule lists all of Southern'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 Southern 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 Southern, in each case relating to its business
(collectively, "Intellectual Property Rights"). The Intellectual
Property Rights listed in the Southern Disclosure Schedule are all
those used by Southern in connection with its business.
(b) Except as set forth on the Southern Disclosure Schedule,
Southern has full legal right, title and interest to the Intellectual
Property and has not granted any rights in or to the same to any third
party. To the knowledge Southern and except as set forth on the
Southern Disclosure Schedule, conduct of the business as presently
conducted and the conduct, use and exploitation of the Intellectual
Property does not infringe or misappropriate any rights held or
asserted by any person or entity and no person or entity is infringing
on the Intellectual Property. Except as set forth on the Southern
Disclosure Schedule, no payments are required for the continued use of
the Intellectual Property. None of the Intellectual Property has ever
been declared invalid or unenforceable or is the subject of any pending
or to the knowledge of Southern threatened action for opposition,
cancellation, declaration, infringement or invalidity, unenforceability
or misappropriation or like claim, action or proceeding.
3.16 Litigation. Except as set forth in the Southern Disclosure
Schedule, there are no actions, suits, proceedings, orders or investigations
pending or, to the knowledge of Southern, threatened against Southern, 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, which, if determined adversely to Southern, would result in a material
adverse effect to Southern's operations and financial condition and there is no
basis known to Southern for any of the foregoing. Except as set forth in the
Southern Disclosure Schedule, Southern has not received any opinion or legal
advice to the effect that Southern is exposed from a legal standpoint to any
material liability. No governmental entity has at any time challenged or
questioned the legal right of Southern to offer or provide any of its services
in the present manner or style thereof.
3.17 Brokers' Fees. Southern is not liable for any brokerage
commissions, finders' fees or similar compensation in connection with the
transactions contemplated by this Agreement.
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3.18 Employment. Except as set forth in the Southern Disclosure
Schedule, to the knowledge of Southern: (i) no key executive employee of
Southern and no group of Southern's other employees has any plans to terminate
his, her or its employment; (ii) Southern has no material labor relations
problems pending; and (iii) its labor relations are satisfactory in all material
respects.
3.19 Employee Benefit Plans. Southern has no employee benefit plans.
3.20 Insurance. The Southern Disclosure Schedule lists each insurance
policy and fidelity bond currently maintained by Southern 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 Southern 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 Southern 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. Southern has no
knowledge of any threatened termination of, or material premium increase with
respect to, any such policies.
3.21 Insider Transactions. Except as set forth herein or in the
Southern Disclosure Schedule, no officer, director or shareholder of Southern 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 Southern or any interest in any property, real, personal
or mixed, tangible or intangible, used in or pertaining to the business of
Southern. 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.
3.22 Compliance With Laws; Permits; Certain Operations. Southern and
its officers, directors, and to its knowledge 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 Southern and to which Southern may
be subject, and no claims have been filed against Southern alleging a violation
of any such law or regulation, except as set forth in the Southern Disclosure
Schedule. Without limiting the generality of the foregoing, Southern 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. Southern 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 Southern in connection with
any actual or proposed transaction. Southern holds all permits, licenses,
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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 Southern 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.
3.24 Minute Books. The minute books of Southern shall be made available
to counsel for SuperShuttle and those delivered shall be the only minute books
of Southern 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 Southern.
3.25 Compensation. Any amounts paid, if any, as compensation or
otherwise to the Shareholders following the Effective Time shall equal the fair
value for services provided by the Shareholders to Southern and/or to
SuperShuttle.
3.26 Medicaid and Other Third Party Payor Matters.
(a) To the best of Southern's knowledge, Southern has met and
continues to meet without material exception, all State and Federal
laws and regulations governing participation in the Third Party Payor
programs and plans, all of the terms and conditions set forth in the
Third Party Payor agreements and all of the terms and conditions for
participation in the health care plans described in the Third Party
Payor agreements. In addition, Southern has not received any notice
from any governmental or public body, agency or instrumentality
alleging that the operation of Southern is not in accordance with
regulations affecting its certifications or participation in any Third
Party Payor program.
(b) Except as otherwise set forth in the Southern Disclosure
Schedules, there is no claim, action, temporary restraining order,
injunction, suit, proceeding, inquiry or investigation, at law or in
equity, before or by an internal board or body of Southern, any
external board, body or entity chosen, retained or hired by Southern,
any judicial or administrative court, governmental agency, public board
or body, pending, contemplated or, to the best of Southern's knowledge,
threatened against Southern, nor is there any basis therefore wherein
an unfavorable decision, ruling or finding would in any way adversely
affect Southern's compensation and/or reimbursement under the Third
Party Payor agreements.
ARTICLE 4
ADDITIONAL REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
Each of the Shareholders hereby represents and warrants to SuperShuttle
as of the date hereof, and again at the Effective Time, with respect to himself
or herself each of the following:
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4.1 Organization, Standing and Authority of Shareholders. The
Shareholder has all requisite power and authority to execute and deliver this
Agreement, to perform his or her 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, or other laws affecting generally the enforcement of
creditors' rights.
(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, Southern or Shareholders for a finder's fee, brokerage commission
or similar payment.
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
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the Securities Act of 1933 (the "Securities Act") 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.
(b) The Shareholder is an experienced and sophisticated
investor in the shuttle transportation business and has such knowledge
and experience in such 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.
(c) The Shareholder has had the opportunity to consult with
financial advisers and counsel of its own choosing in making an
informed decision with respect to the Exchange consideration and has
consulted with counsel of its own choosing in making an informed
decision with respect to 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.
ARTICLE 5
CONDUCT PENDING AND SUBSEQUENT TO THE EXCHANGE
5.1 Conduct of Business Pending the Exchange. Southern 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) Southern (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
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employees as a group and maintain satisfactory relationships with
suppliers, distributors, customers and others having business
relationships with it;
(b) Southern (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
deliver to SuperShuttle monthly financial reports including balance
sheets and income statements prepared in accordance with generally
accepted accounting principles by the 20th day of the following month
during the period from March 31, 1998 until the expiration of the right
of Recision (as defined in Section 5.2) and shall deliver statements of
cash flows by July 30, 1998 for the first quarter; (iii) 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 (iv)
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) Southern 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);
(d) Southern shall not, directly or indirectly, enter into or
modify any contract, agreement or understanding, written or oral, that
involves consideration or performance of Southern, 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) Southern shall not enter into or modify any employment,
severance or similar agreements or arrangements with, or grant any
bonuses, salary increases, or
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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) Southern 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;
(g) Southern 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; and
(h) Southern shall promptly notify SuperShuttle if Southern
learns of any dispute between Southern and any governmental or
regulatory body which, if adversely determined, would have a material
adverse effect, (ii) any material change in the manner, method or
procedure of Medicaid reimbursement in the State of Florida, or notice
from any governmental or public body, agency or instrumentality that
Southern is proposed to be excluded, suspended or debarred from any
governmental health care program advising that Southern is not in
compliance with statutes or regulations affecting its operations,
including statutes and regulations under the Medicaid program.
5.2 Conduct Subsequent to the Exchange.
(a) The Share Exchange shall be rescinded automatically
without further notice (the "Recision") upon the occurrence of any of
the following events: (i) if SuperShuttle does not file a registration
statement for an initial public offering on Form S-1 with the SEC by
May 31, 1998 to register for sale shares of SuperShuttle Common Stock;
(ii) if the SEC does not declare such registration statement effective
by July 31, 1998, or (iii) if the underwritten initial registration
statement for an initial public offering on a firm commitment basis
does not close by August 10, 1998, providing a per share offering price
to the public of at least $6.50.
(b) As security for each party's rights of recision hereunder,
the parties designate Akerman, Senterfitt & Xxxxxx, P.A. as escrow
agent (the "Escrow Agent") to hold: (i) the stock certificates in
Southern formerly held by the Shareholders to be held for the benefit
of SuperShuttle; and (ii) the stock certificates in SuperShuttle issued
hereunder for the benefit of the Shareholders as their respective
interests may appear in accordance with Schedule 1. If this Agreement
is rescinded in accordance with Section 5.2(a), the Escrow Agent shall
immediately, and without any further action by any party, deliver (a)
to SuperShuttle the stock certificates of SuperShuttle, which
certificates shall be immediately canceled, and (b) to each Shareholder
the stock certificates of Southern delivered by each Shareholder to the
Escrow Agent. During the period in which the stock
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certificates as held in escrow, the Escrow Agent shall vote the
SuperShuttle Common Stock as directed by the Shareholders and shall
vote the Southern Common Stock as directed by SuperShuttle.
(c) If this Agreement is rescinded, the parties' rights and
obligations shall cease as if this Agreement never existed, except for
the indemnification provisions set forth in Section 5.2(d) below.
SuperShuttle, Southern and each Shareholder upon recision agrees to
treat this transaction as rescinded effective as of the Effective Time
and file all tax returns, reports or other statements consistent with
such agreement.
(d) In the event that the Share Exchange is rescinded,
SuperShuttle shall indemnify and hold the Shareholders and Southern
harmless from and against the aggregate of all expenses, losses, costs,
deficiencies, liabilities and damages, including, without limitation,
related counsel and paralegal fees and expenses incurred or suffered by
the Shareholders or Southern arising out of or resulting from a breach
by Super Shuttle of any covenant or agreement as set forth in Section
5.3 and a breach of the representation set forth in Section 2.13.
5.3 SuperShuttle Recision Right. SuperShuttle shall have the option to
rescind the Share Exchange if Southern has not received the written approval of
the Aviation Department for Dade County of the changes in ownership of Southern
to Supershuttle by the effective date of SuperShuttle's registration statement
on Form S-1.
5.4 Conduct by SuperShuttle. During the time from the Closing Date to
such time as the Share Exchange is rescinded or until the Recision rights expire
(the "Option Period"), SuperShuttle shall not take any action which could affect
the Recision rights and affect the ability of the Shareholders to then operate
Southern as if the exchange never occurred, including, but not limited to:
(a) Cancellation of any material contracts;
(b) Combining any operations, duties or tasks of Southern
with and into any operations of SuperShuttle or its
subsidiaries;
(c) Combining any employee benefit plans with the plans
of SuperShuttle;
(d) Pledging, encumbering or incurring any liens upon the
assets, properties, business or the shares of
Southern (the "Transferred Assets");
(e) Declaring any dividends in property or cash;
(f) Taking any of the actions contemplated by Section
5.1;
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(g) Using or allowing the use of the Transferred Assets
to satisfy any judgments or claims.
In addition, during the Option Period, the board of directors of Southern will
be comprised of three members: Xxxx Xxxxxx, Xxxxx X. Xxxxxx and a designee of
SuperShuttle and Xxxx Xxxxxx shall remain as President. If the Share Exchange is
rescinded, the SuperShuttle designee shall immediately resign from the board of
directors of Southern. Upon the expiration of the Recision rights, the board of
directors of Southern will be comprised of: R. Xxxxx Xxxx, Xxxxxx X. XxXxx and a
designee of the Shareholders.
ARTICLE 6
ADDITIONAL AGREEMENTS
6.1 Expenses. Each of SuperShuttle and Southern shall bear their own
legal and accounting fees and other expenses relating to this transaction. In
addition, Southern will bear the expenses associated with the conduct of the
required accounting audit of its books and records relating to this transaction.
6.2 No Negotiations. Until March 31, 1998, or such later date as the
parties may mutually agree, Southern and the Shareholders agree that neither
they nor Southern's directors, officers, employees or agents (i) shall solicit,
negotiate or accept any offers for the sale of Southern 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.
Southern 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 Southern.
6.3 Notification of Certain Matters. SuperShuttle and Southern 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.
6.4 Access to Information; Confidentiality.
(a) Until March 31, 1998, or the Effective Time each of
SuperShuttle and Southern shall have the opportunity to make a complete
review of the books, records, business and affairs of Southern or
SuperShuttle, as applicable. Such review may be conducted at any and
all reasonable times by such persons as SuperShuttle or Southern
designates. To facilitate such review, the parties shall provide to the
other party and its agents complete access to all of its records and
documents, shall provide the other party
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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 and Southern 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 Southern on February 25, 1998.
6.5 Consents; Approvals. SuperShuttle and Southern 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, execution and delivery of this Agreement by
such party and the consummation by them of the transactions contemplated hereby.
Each of SuperShuttle and Southern 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.
6.6 Supplements to Disclosure Schedules. From time to time prior to the
Effective Time, SuperShuttle and Southern 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).
6.7 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.
6.8 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 Southern
(designated collectively with AAA Wheelchair Wagon Service, Inc. and Limousines
of South Florida, Inc.); (ii) elect, effective as of the Effective Time, that
one designee to SuperShuttle's Board of Directors; and (iii) appoint such
designee to Supershuttle's "pricing committee" of the Board of Directors.
6.9 Confidential Information and Covenant Not To Compete. Each of the
Shareholders hereby covenants and agrees as follows:
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(a) at any time following execution of this Agreement and
consummation of the Exchange transactions, unless the Share Exchange
Agreement is rescinded 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 Southern or SuperShuttle,
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 and other
information of a proprietary or confidential character;
(b) that until the later of three (3) years following the
consummation of the Exchange transactions or 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 Southern, SuperShuttle or any affiliate of either of them
as such business is presently conducted (the "Business") in either
Dade, Palm Beach, Broward and Orange Counties, Florida (the "Applicable
Counties"). Not limiting the generality of the foregoing, the business
of Southern 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. In addition, until the expiration of five years
following the consummation of the Exchange transactions the
Shareholder, shall not enter into any agreement with a party currently
doing business with Southern, Super Shuttle or any affiliates of either
of them for the provision of services substantially similar to those
provided currently. Notwithstanding the foregoing the parties
acknowledge that Xxxxxx Xxxxxxxxx currently holds certain interests in
the taxi cab business, and such current interests and future expansion
of such business shall not be a violation of Subsections 6.9(b) and
(c).
(c) from and after the date of this Agreement, the Shareholder
shall not solicit or negotiate any contract or agreement that
constitutes or would constitute engaging in competition with the
Business of Southern or SuperShuttle in the Applicable Counties;
(d) each of the Shareholders by execution of this Agreement
assigns to Southern any and all rights and interests in the business
concept employed by Southern 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 or business concept at any place at which SuperShuttle or any
of its affiliates conduct business.
In the event that the Share Exchange Agreement is rescinded, this Section 6.9
shall be void and of no further effect and any employment agreement between
Southern and a Shareholder in effect shall be terminated and the non-competition
provisions hereof shall immediately terminate.
The Shareholders hereby specifically acknowledge and agree that the
temporal, geographical and other restrictions contained in this Section 6.9 are
reasonable and necessary to
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protect the business and prospects of Southern and SuperShuttle and that the
enforcement of the provisions of this Section 6.9 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 6.9 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 6.9 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 6.9 are held to be invalid or
unenforceable as against public policy, the remaining provisions of this
Agreement shall not be affected thereby.
6.10 Collateral and/or Guarantees for Certain Southern Loans. As soon
as practical after the expiration of the Recision rights, SuperShuttle shall
take such steps to replace (i) the personal guarantees of the Shareholders on
certain Southern loans and (ii) the cash collateral pledged by certain
Shareholders to secure certain bonds and letters of credit established on behalf
of Southern. Notwithstanding the foregoing, Southern may at its option, replace
such personal guaranties and cash collateral with such bonds as are acceptable
to the lender.
6.11 Shareholder Loans. The Shareholder loans reflected on the books of
Southern, which are listed on Schedule 6.11 hereto, shall be forgiven by
Southern.
6.12 Tax Treatment. The parties hereto will use their respective best
efforts to cause the Exchange to be a tax free reorganization under Section
368(a)(1)(B) of the Code and do not intend to take any action after the
Effective Date to cause the Exchange to lose its tax free status. All parties
hereto agree to file the Share Exchange Agreement with its respective Federal
Income Tax returns in the year in which the Exchange is effective and to comply
with the reporting requirements. The parties shall take no action with respect
to the Share Exchange to jeopardize such tax free status.
ARTICLE 7
CONDITIONS
7.1 Conditions to Obligations of Each Party to Effect the Exchange. The
respective obligations of each party to effect the Exchange shall be subject to
the fulfillment at or prior to the Effective Time of the following conditions:
(a) this Agreement and the Exchange with respect to Southern,
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
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requisite vote of the Shareholders, if any, and/or the boards of
directors of SuperShuttle and Southern;
(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 Exchange 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 Exchange, which makes the consummation of the Exchange illegal;
(c) no party hereto shall have terminated this Agreement as
permitted herein; and
(d) Southern and Xxxx Xxxxxx shall have entered into an
Employment Agreement substantially in the form attached hereto as
Exhibit "D".
7.2 Additional Conditions to Obligations of SuperShuttle. The
obligations of SuperShuttle to effect the Exchange are also subject to the
fulfillment at or prior to the Effective Time of the following conditions:
(a) the representations and warranties of Southern 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
Southern 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 Southern); and Southern 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) Southern and the Shareholders shall have furnished to
SuperShuttle a certificate in which Southern shall certify that the
conditions set forth in Section 7.2(a) have been fulfilled;
(c) Southern shall have furnished to SuperShuttle (i) a copy
of the text of the resolutions by which the corporate action on the
part of Southern necessary to approve this Agreement and the Exchange
were taken and (ii) certificates executed on behalf of Southern
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 recinded;
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(d) Southern 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) there shall have been no material adverse change in the
business, assets, properties, financial condition or operating results
of Southern;
(f) 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 Southern 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 Exchange or the
transactions contemplated by this Agreement;
(g) SuperShuttle shall have otherwise been reasonably
satisfied with all of its due diligence;
(h) All of the transactions contemplated by Schedule 1.1(a)
and Schedule 1.1(b) shall have been consummated or shall be
simultaneously consummated with the Effective Time and by the Closing
Date respectively in a manner reasonably acceptable to SuperShuttle and
as contemplated by Schedule 1.1(a) and Schedule 1.1(b).
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 Exchange 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 Obligation of Southern. The obligation of
Southern to effect the Exchange is also subject to the fulfillment at or prior
to the Effective Time of the following conditions:
(a) the representations and warranties of SuperShuttle 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
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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 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 Southern a
certificate in which SuperShuttle shall certify that the conditions set
forth in Section 7.3(a) have been fulfilled;
(c) SuperShuttle shall have furnished to Southern (i) a copy
of the text of the resolutions by which the corporate actions on the
part of SuperShuttle necessary to approve this Agreement and the
Exchange were taken and (ii) certificates executed on behalf of
SuperShuttle by its corporate secretary or one of its assistant
corporate secretaries certifying to Southern, 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
recinded;
(d) SuperShuttle shall have obtained each consent and approval
necessary in order that the Exchange 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;
(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 Southern to SuperShuttle's Board of Directors, shall
have been duly and validly taken;
(f) SuperShuttle shall have furnished to Southern (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;
(g) Southern shall have otherwise been reasonably satisfied
with its due diligence investigation;
(h) there shall have been no material adverse change in the
business, assets, properties, financial condition or operating results
of SuperShuttle; and
(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
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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 the Shareholders from
exercising the material rights and privileges pertaining to his or her
ownership of Southern or the ownership or operation by Southern of all
or a material portion of the business or assets of Southern, or seeking
to compel Southern or any of its subsidiaries to dispose of or hold
separate all or any material portion of the business or assets of
Southern or any of its subsidiaries, as a result of the Exchange or the
transactions contemplated by this Agreement;
7.4 Conditions to the Closing. The Closing shall occur upon the
fulfillment of the following conditions:
(a) SuperShuttle shall have closed the transactions
contemplated with Preferred Transportation, Inc. and Tamarack Transportation,
Inc.
(b) Southern shall have received written approval of the
Aviation Department for Dade County of the changes in ownership of Southern to
SuperShuttle; and
(c) Limousines of South Florida, Inc. ("LSF") shall have
received the written consent of Broward County to the change in ownership of LSF
to SuperShuttle.
7.5 Other Deliveries. Southern and SuperShuttle shall
cooperate after the Effective Time to complete the following:
(a) Southern shall deliver full and complete Southern
Disclosure Schedules to SuperShuttle on or before April 22, 1998; and
(b) Southern shall use its reasonable best efforts to receive
the written consent, in form reasonably acceptable to SuperShuttle, to
the transfer of the Southern Common Stock whenever required by the
terms of each material contract to which Southern is a party or where
required by federal, state or local law, on or before the Closing Date.
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 Southern;
(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;
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(c) by either SuperShuttle or Southern 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 Exchange;
(d) by either SuperShuttle or Southern if the Closing Date
shall not have occurred on or before April 30, 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 Southern on or
before April 30, 1998; or
(f) by Southern, 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 on or
before April 30, 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, Southern or their respective shareholders, officers or directors,
except as set forth in Sections 5.2, 6.2, 6.4(b), or 6.7 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.
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, Southern and the Shareholders in this Agreement
shall terminate as of the
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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 Southern 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
Exchange or this Agreement. Neither SuperShuttle nor Southern 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: SuperShuttle International, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
Attn: R. Xxxxx Xxxx
With a copy to: Squire, Xxxxxxx & Xxxxxxx L.L.P.
Two Renaissance Square
00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
FAX: (000) 000-0000
Attn: Xxxxxxxxxxx X. Xxxxxxx, Esq.
If to Southern or the Shareholders: Southern Shuttle Services, Inc.
0000 XX 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
Attn: Xxxx Xxxxxx
With a copy to: Akerman, Senterfitt & Xxxxxx
Sun Trust International Center
Xxx X.X. Xxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
PH: (000) 000-0000
FAX: (000) 000-0000
Attn: Xxxxxxxx X. Xxxxx
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
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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 Southern 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 Broward or
Dade County, Florida. The parties agree to be subject to the personal
jurisdiction of the federal and/or state courts situated in Broward or Dade
County, Florida 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.
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9.8 Waiver of Jury Trial. EACH OF SUPERSHUTTLE AND SOUTHERN 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) is not intended to confer upon any
other person any rights or remedies hereunder; (b) shall not be assigned by any
party; and (c) shall be governed in all respects, including validity,
interpretation and effect, by the internal laws of the State of Florida, without
giving effect to the principles of conflict of laws thereof. Each certificate,
agreement or other document making reference to the Stock Purchase Agreement
among SuperShuttle, Southern and the Shareholders, dated as of March 31, 1998,
shall be deemed to refer to this Amended and Restated Stock Purchase Agreement.
This Agreement may be executed in two or more counterparts, which together shall
constitute a single agreement.
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AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF, SuperShuttle, Southern 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 X. XxXxx, Chief Financial
Officer
SOUTHERN SHUTTLE SERVICES, INC.,
a Florida corporation
By: /s/ Xxxx Xxxxxx
-------------------------------------
Xxxx Xxxxxx, President
SHAREHOLDERS OF SOUTHERN
/s/ Xxxx Xxxxxx
----------------------------------------
Xxxx Xxxxxx
/s/ Xxxxx Xxxxxx
----------------------------------------
Xxxxx Xxxxxx
/s/ Xxxxxx Xxxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxxx
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SCHEDULE 1
OWNERSHIP OF SOUTHERN COMMON STOCK
Shareholder Name Number of Shares
---------------- ----------------
Xxxx Xxxxxx 00
Xxxxx Xxxxxx 4.81
Xxxxxx Xxxxxxxxx 36.19
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