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EXHIBIT 10.28
RESTATED AND AMENDED SHAREHOLDERS AGREEMENT
AMONG
WASHINGTON SHUTTLE, INC.
AND
ITS SHAREHOLDERS
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RESTATED AND AMENDED SHAREHOLDERS AGREEMENT
Among Washington Shuttle, Inc. and Its Shareholders
THIS RESTATED AND AMENDED SHAREHOLDERS AGREEMENT made this day of
March, 1997, by and among Barwood Operating Group, Inc., a Maryland
corporation, The Convention Store, Inc., a District of Columbia corporation,
Shuttle Express, Inc., a Maryland corporation, SuperShuttle Franchise
Corporation, Inc., a Delaware corporation, Transportation General, Inc., a
Virginia corporation, and The Union Labor Life Insurance Company, a Maryland
corporation, hereinafter referred to as the "Corporation".
WHEREAS, all of the parties to this Agreement, except for The Union Labor
Life Insurance Company (hereinafter "ULLICO"), have been shareholders of the
Corporation since the formation of the Corporation and are parties to an
Amended Shareholders Agreement among them and the Corporation, dated April 5,
1996 (hereinafter the "Prior Agreement"), which this Restated and Amended
Shareholders Agreement (hereinafter the "Agreement") is intended to replace in
its entirety; and
WHEREAS, there are currently 500,000 shares of common stock of the
Corporation issued and outstanding, of a total of one million shares of common
stock authorized to be issued by the Corporation; and
WHEREAS, the Corporation and its shareholders have agreed to issue to
ULLICO and ULLICO has agreed to purchase from the Corporation, upon certain
terms and conditions provided hereinbelow, authorized but unissued shares of
common stock of the Corporation representing, after issuance, sixteen percent
(16%) of the authorized and issued common stock of the Corporation, totaling
97,300 shares, for a total consideration of $1.5 million, or $15.42 per share,
payable in cash at the time of closing; and
WHEREAS, as a condition of the issuance of stock to ULLICO and the
purchase of the same by ULLICO, ULLICO is required and desires to become a
party to this Agreement and to nominate and have elected an additional member
of the Board of Directors of the Corporation; and
WHEREAS, in order to maintain the percentage ownership of the authorized
and issued shares of the Corporation of The Convention Store, Inc., at ten
percent (10%), as required by the terms of the Agreement, 10,808 additional
shares of stock of the Corporation are to be issued to The Convention Store,
Inc., as well, upon the terms and conditions set forth hereinbelow.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
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1. Ratification of Agreement for Sale and Issuance of Stock.
1.1 The Shareholders and Corporation hereby ratify and affirm the
separate agreement between the Corporation and ULLICO for the sale to ULLICO
and the purchase by ULLICO of 97,300 shares of common stock of the Corporation,
representing after issuance of said shares of stock, and the issuance of
additional stock to The Convention Store, Inc., as provided hereinbelow,
sixteen percent (16%) of the authorized, issued and outstanding shares of stock
of the Corporation, for a total purchase price of One Million Five Hundred
Thousand Dollars ($1,500,000.00), or $15.42 per share. The Shareholders, in
ratifying and affirming the issuance of stock to ULLICO, and The Convention
Store, Inc., as provided hereinbelow, hereby decline to exercise and, thus,
waive (in this instance only) their respective rights of first refusal, under
Provision "3. Future Stock Issuances." of the Agreement, to purchase the
aforesaid additional shares issued to ULLICO and The Convention Store, Inc.
1.2 The Shareholders and Corporation also agree to ratify and affirm
the issuance by the Corporation of 10,808 additional shares of common stock of
the Corporation to The Convention Store, Inc., by separate agreement between
the Corporation and The Convention Store, Inc., in order that the percentage
ownership interest of The Convention Store, Inc. of all of the issued and
outstanding shares of the Corporation will not be less than ten percent (10%),
as provided in the Agreement. The Corporation and Shareholders have determined
that since The Convention Store, Inc. is not receiving the same favorable
rights to receive additional shares of stock of the Corporation upon the
occurrence of certain events or conditions, as is ULLICO, as set forth
hereinbelow, the full and fair consideration for the issuance of the additional
stock to The Convention Store, Inc., is One Dollar ($1.00) per share, to be
paid by The Convention Store, Inc.
1.3 The Corporation and Shareholders further agree that, in the
event that the Corporation does not substantially meet 1998 profit projections,
consistent with the pro forma numbers for the years 1998 and 1999 that have
heretofore been provided to ULLICO by the Corporation, copies of which are
attached hereto as Exhibits 1 and 2, ULLICO shall be entitled to be issued by
the Corporation, at ULLICO's option, and at no cost to ULLICO, such additional
shares of stock of the Corporation as will give to ULLICO an additional two
percent (2.0%) of the authorized, issued and outstanding shares of stock of the
Corporation after such additional shares are issued. Likewise, in the event
that the Corporation does not meet 1999 profit projections, consistent with the
pro forma numbers, ULLICO shall be entitled to be issued by the Corporation, at
ULLICO's option, and at no cost to ULLICO, an additional two percent (2.0%) of
the authorized, issued and outstanding share of stock of the Corporation after
such additional shares are issued.
1.4 The Corporation has agreed by separate agreement with ULLICO to
pay to ULLICO at the time of the issuance of the shares of stock being
purchased by ULLICO a one-time placement fee of Twenty-two Thousand Five
Hundred Dollars ($22,500.00), and the Corporation and Shareholders hereby
ratify and affirm said separate agreement and the payment by the Corporation of
said fee.
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2. Restatement of Shareholders and Shares.
2.1. The Corporation is authorized to issue One Million (1,000,000)
shares of common stock, having a par value of One Dollar ($1.00) per share. The
parties hereby acknowledge and agree that the Shareholders of the Corporation
and the number of authorized and issued shares of common stock of the
Corporation are, upon issuance to ULLICO and The Convention Store, Inc., as
provided herein, are as indicated below:
Shareholder No. of Shares Percentage of Shares
----------- -------------- --------------------
ULLICO 97,300 Shares 16.0%
Barwood Operating
Group, Inc. 90,000 Shares 14.8%
Yellow Transportation 180,000 Shares 29.6%
SuperShuttle, Inc. 90,000 Shares 14.8%
The Convention Store, Inc. 60,808 Shares 10.0%
Transportation General, Inc. 90,000 Shares 14.8%
------------- ------
TOTAL 608,108 Shares 100.0%
3. Future Stock Issuances.
3.1. In the event the Board of Directors determines it is in the best
interests of the Corporation to issue additional authorized but unissued Shares
of stock of the Corporation, it may do so only upon an affirmative vote of a
majority of the Shares of the Corporation at a duly called meeting of the
Shareholders of the Corporation.
3.2. Any issuance of additional Shares of the Corporation shall first
be offered at the same price to the Shareholders in the same proportion as the
respective Shareholders' existing number of Shares bears to the total number of
Shares then issued and outstanding. In the event any one (or more) of the
Shareholders declines or fails to purchase its proportionate number of Shares
offered to it by the Corporation, then the remaining Shareholders shall have
the right to purchase the same, and if there is more than one Shareholder
exercising said right, said right to purchase shall be in the same proportion as
each said Shareholder's existing number of Shares bears to the total number of
Shares of the Shareholders exercising said right of purchase.
4. Management of the Corporation.
Shuttle Express, Inc. shall have the right and obligation to manage
and oversee the day-to-day
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operations of the business of the Corporation, subject to the control of the
Board of Directors as provided hereinbelow, including the employment of
management personnel, the acquisition of vehicles, machinery, equipment and
other assets to be used in said business, the implementation of policies and
procedures for the operation of the business, and to do and perform all of the
usual and customary acts and duties of oversight of the management of the
business of the Corporation. Shuttle Express, Inc. shall provide said management
and oversight services without salary or other compensation, except for such
reimbursements for reasonable and necessary expenses as are authorized by the
Board of Directors from time to time. Shuttle Express, Inc. shall not be held
responsible to the Corporation or the Shareholders for any loss or damage
resulting from any act or omission committed in the good faith performance of
its duties, except that loss or damage which is resulting from any fraud,
willful misconduct or the gross negligence of Shuttle Express, Inc. In further
consideration of the undertaking by Shuttle Express, Inc. to manage the
operation of the business, the Corporation agrees to indemnify and hold Shuttle
Express, Inc., and Xxxx X. Xxxxxx, individually, and all other agents and
employees of Shuttle Express, Inc., harmless from all costs, expenses, claims,
demands or legal proceedings which may be brought against it by reason of or
arising out of its management of the business except that which is caused by the
fraud, willful misconduct or gross negligence of Shuttle Express, Inc. or Xxxx
X. Xxxxxx.
5. Control of the Corporation.
5.1. Control of the affairs of the Corporation shall be vested in the
Board of Directors, which shall be comprised of six (6) Directors. Each of the
Shareholders shall have the right to nominate and have elected to the Board
one (1) of the Directors, and the Shareholders agree to vote their Shares to
elect the persons nominated by each of the Shareholders. In the event of a
vacancy on the Board of Directors, the Shareholder which nominated the Director
whose absence created the vacancy shall have the right to nominate his or her
successor, and the Shareholders agree to vote their Shares to elect the person
so nominated, who shall then serve out the remaining term of the Director who
created the vacancy.
5.2. Until the next annual election of the Board of Directors, the
Shareholders agree that the following persons, nominated as indicated
hereinbelow, shall serve as the initial Board of Directors:
Director Nominating Shareholder
Xxx Xxxxxx Barwood Operating Group, Inc.
Xxxx X. Xxxxxx Shuttle Express, Inc.
Xxxxxxxx X. Xxxxx SuperShuttle, Inc.
M. Xxxxxx Xxxx The Convention Store, Inc.
Xxxx X. Xxxxxxx Transportation General, Inc.
to be named by ULLICO ULLICO
6. Transfers of Shares.
6.1. No Shareholder may sell, transfer or in any manner convey all or
any part of its Shares of the Corporation except in accordance with the terms of
this Agreement. Each certificate for the shares
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issued or to be issued by the Corporation shall have affixed thereon a legend
indicating that it is issued subject to the restrictions of transfer set forth
herein.
6.2. In the event a Shareholder desires to sell, transfer or convey
in any manner all but not less than all of its Shares of the Corporation, it
may do so only after first offering to sell all but not less than all of its
Shares to the Corporation upon the same terms and conditions as set forth in
any bona fide written offer to purchase received by the Shareholder from any
third party. A copy of the bona fide written offer to purchase received by the
Shareholder from the third party shall be delivered by the Shareholder to the
President of the Corporation who shall promptly present the same to the Board
of Directors of the Corporation at a duly called meeting, and the Corporation
shall, for a period of sixty (60) days following delivery of the written offer
to the President of the Corporation, have the right of first refusal to
purchase the Shares upon said terms and conditions.
6.3. In the event the Corporation fails to exercise its right of first
refusal or earlier waives it right to exercise the same by affirmative action
of the Board of Directors, then each of the Shareholders shall have the same
right of first refusal, for a period of sixty (60) days following expiration of
the Corporation's sixty (60)-day period or earlier refusal or waiver, to
purchase all but not less than all of the Shares upon the same terms and
conditions. In the event more than one Shareholder exercises its right of first
refusal to purchase, each Shareholder electing to purchase shall have the right
to purchase that proportion in number of Shares being offered that the
Shareholder's existing number of Shares bears to the total number of existing
Shares held by those Shareholders exercising their right to purchase.
6.4. In the event neither the Corporation nor any Shareholder elects
to purchase the Shares being offered, the offering Shareholder shall be
entitled to complete the sale or transfer of its Shares to the bona fide third
party upon the same terms and conditions as set forth in the bona fide written
offer presented to the Corporation, provided such sale or transfer is completed
within sixty (60) days of the expiration of the Shareholders' rights of first
refusal. If the transfer or sale is not completed within said sixty (60) days,
the right of the Shareholder to sell or transfer its Shares shall lapse, and
the Shareholder may not thereafter sell or transfer its Shares to any third
party without again first offering the Shares to the Corporation and other
Shareholders as set forth above.
7. Notices.
All notices required under this Agreement shall be given to the
parties by certified mail, return receipt requested or hand delivery to the
individuals and at the addresses as follows:
Barwood Operating Group, Inc.: Xx. Xxx Xxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
The Convention Store, Inc.: Ms. M. Xxxxxx Xxxx
0000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
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Shuttle Express, Inc.: Xx. Xxxx X. Xxxxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
SuperShuttle, Inc. Xx. Xxxxxxxx X. Xxxxx
0000 Xxxxx 00xx Xxxxxx
Xxxxx 0
Xxxxxxx, Xxxxxxx 00000
Transportation General, Inc.: Xx. Xxxx X. Xxxxxxx
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Washington Shuttle, Inc.: Xx. Xxxx X. Xxxxxx
(the Corporation) c/o Yellow Transportation, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
The Union Labor Life Mr. Xxxxxx Xxxxxxx
Insurance Company (ULLICO) The Union Labor Life Insurance
Company
000 Xxxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
8. Amendment to Articles of Incorporation.
The Corporation and Shareholders agree to proceed forthwith to amend
the Articles of Incorporation of the Corporation to include a provision giving
to each shareholder of the Corporation the preemptive right to purchase or
subscribe for any unissued stock or any class or any additional shares of any
class to be issued by reason of any increase of the authorized capital stock of
the Corporation of any class, or bonds, certificates of indebtedness, debentures
or other securities convertible into stock of the Corporation, or carrying any
rights to purchase stock of any class, whether said unissued stock shall be
issued for cash, property, or any other lawful consideration.
9. Miscellaneous.
9.1. This Agreement shall be interpreted according to the laws of the
Commonwealth of Virginia.
9.2. This Agreement shall be binding upon each of the parties'
successors and permitted assigns.
9.3. This Agreement contains the complete and final understanding of
the parties with
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respect to the subject matter set forth herein.
9.4. This Agreement may be executed in several counterparts, each of
which shall be deemed an original and all of which together shall constitute
one and the same agreement.
IN WITNESS WHEREOF, the parties have set their signatures below.
Attest: Barwood Operating Group, Inc.
____________________________ By:_______________________________
Xxx Xxxxxx
Attest: Shuttle Express, Inc.
____________________________ By:_______________________________
Xxxx X. Xxxxxx
Attest: SuperShuttle, Inc.
____________________________ By:_______________________________
Xxxxxxxx X. Xxxxx
Attest: The Convention Store, Inc.
____________________________ By:_______________________________
M. Xxxxxx Xxxx
Attest: Transportation General, Inc.
____________________________ By:_______________________________
Xxxx X. Xxxxxxx
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Attest: The Union Labor Life Insurance Company
____________________________ By:___________________________________
Xxxxxx Xxxxxxx
Attest: Washington Shuttle, Inc.
____________________________ By:____________________________________
Xxxx X. Xxxxxx
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