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Exhibit 10.35
SHAREHOLDERS AGREEMENT
THIS SHAREHOLDERS AGREEMENT ("Agreement") is entered into effective as of
the 1st day of September, 1997, by and among SUPERSHUTTLE INTERNATIONAL, INC.,
a Delaware corporation (hereinafter referred to as "SSI"), SHUTTLE EXPRESS,
INC., a Maryland corporation (hereinafter referred to as the "Company"), and
YELLOW HOLDING, INC., a Maryland corporation (hereinafter referred to as
"Yellow"). SSI and Yellow are herein sometimes referred to collectively as the
"Shareholders", and each singly as "Shareholder".
WHEREAS, the Shareholders aggregately own all of the capital stock of the
Company (hereinafter referred to as "Shares"), and they and the Company wish to
restrict stock ownership of the Company to parties with whom they mutually
choose to deal to assure the continued ease of administration of the Company's
business.
WHEREAS, the parties desire to promote their individual interests and the
interests of the Company by imposing certain restrictions and obligations on
the Shareholders, the Company, and the Shares.
NOW, THEREFORE, in consideration of the foregoing premises and mutual
covenants hereinafter contained, and for other good and lawful consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
ARTICLE 1
RESTRICTION ON SALE OF SHARES
1.1 Endorsement of Stock. Upon the execution of this Agreement, the
certificates representing the Shares shall be surrendered to the Secretary of
the Company and endorsed as follows:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
SHAREHOLDERS AGREEMENT TO WHICH THE COMPANY IS A PARTY, AND NONE OF SUCH
SHARES, OR ANY INTEREST THEREIN, SHALL BE TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF EXCEPT AS PROVIDED IN SUCH AGREEMENT. A COPY OF
THE AGREEMENT IS ON FILE IN THE OFFICE OF THE COMPANY AND WILL BE MADE
AVAILABLE FOR INSPECTION TO ANY PROPERLY INTERESTED PERSON WITHOUT CHARGE
WITHIN FIVE (5) WORKING DAYS AFTER THE COMPANY'S RECEIPT OF A WRITTEN
REQUEST.
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A copy of this Agreement, together with any amendments thereto shall remain
on file with the Secretary of the Company and shall be available for inspection
to any properly interested person without charge within five (5) working days
after the Company's receipt of a written request therefor.
Subject to the terms of this Agreement, the Shareholders shall be entitled
to exercise all rights of ownership in the Shares.
No shares of any class of stock of the Company, other than the Shares, are
presently issued and outstanding. If the Company issues additional shares, the
Company shall cause all shares so issued to bear the above endorsement, and to
be subject to all the terms and conditions of this Agreement, and such shares
shall for all purposes be deemed "Shares" hereunder. Each person receiving such
issued shares shall automatically be deemed a "Shareholder" hereunder, and in
furtherance thereof, each such person shall execute and deliver to the parties
hereto an agreement in writing to be bound by this Agreement.
1.2 Restrictions on Transfer or Encumbrance. Except as otherwise set
forth in this Agreement, no Shareholder shall, without the prior written consent
of all other Shareholders, transfer, or permit the transfer of, all or any part
of the Shares, or any interest therein, whether legal or beneficial, now owned
or hereafter acquired by such Shareholder. Any attempted transaction not in
compliance with this Section 1.2 shall be void. As used in this Agreement, the
verb "transfer," in whatever form, number or tense, shall mean, as the case may
be, encumber or in any manner use as collateral, to transfer, or to sell or
otherwise to dispose of, or suffer disposition or encumbrance, voluntarily or
involuntarily.
ARTICLE II
SPECIFIC OPTIONS BETWEEN SSI AND YELLOW
2.1 Call and Put Options. SSI shall have a call option and Yellow shall
have a put option on the shares of stock of the Company owned by Yellow as
follows. SSI may exercise its call option at any time after the date thereof
through 5:00 p.m., Baltimore Time, June 1, 1999. Yellow may exercise its put
option only for the period between January 1, 1999 through 5:00 p.m., Baltimore
Time, June 1, 1999. The purchase price for either SSI's call option or Yellow's
put option shall be equal to 4.5 times the product of one-half (1/2) of the
Earnings Before Income Taxes ("EBIT") of the Company for the 12-month period
ending the calendar month immediately preceding the exercise of the put or call
option, but in no event for a price of less than One Million Dollars
($1,000,000.00) The EBIT of the Company for the relevant period shall be
determined by the accountant regularly employed by the Company at the time of
the triggering event, or if for any reason that accountant is then unable or
unwilling to act, or if there be no such accountant, then any certified public
accountant acceptable to the parties may be retained by for this purpose.
The payment of the purchase price in the event of the exercise of a put or
call option shall be paid, at the option of SSI, as follows:
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An initial payment in cash at the closing of such sale of twenty-five
percent (25%) of said price, with the balance payable in equal monthly
installments over a period of thirty-six (36) months. The balance shall be
evidenced by a promissory note bearing interest at the prime rate of
interest charged by the primary bank of the Company in effect at the time
of the closing. Yellow shall retain a security interest in the shares
transferred as security for performance of SSI's obligations under the
promissory note, and SSI agrees to execute and deliver such instruments
(including share certificates) and documents as shall be necessary to
create and perfect such security interest.
2.2 Rejection of Yellow's Put Option By SSI. The foregoing notwithstanding,
SSI may reject Yellow's exercise of its put option, in which event either party
may immediately market all but not less than all of the authorized, issued and
outstanding stock or assets of the Company, for a period of 12 months, to any
bona fide third party purchaser. Upon receipt of a bona fide offer from a third
party purchaser acceptable to the party obtaining the offer, the other party
shall not unreasonably withhold its consent to the sale of its stock (or
substantially all of the assets) of or in the Company to said third party
purchaser. The total consideration to be received for the sale of all of the
Company's outstanding stock or all of its assets shall be shared equally by SSI
and Yellow.
In addition, if SSI rejects the put option of Yellow then SSI shall cause
one of the directors of the Company who had been appointed by SSI to resign and
such director shall be replaced by the President of Yellow. SSI agrees to vote
its shares in such manner as to elect the President of Yellow as the fifth
director of the Company.
ARTICLE III
TRANSFERS TO THIRD PARTIES
3.1 Offering Notice; Non-Cash Consideration, Involuntary Transfers. Each
Shareholder hereby covenants, during the term of this Agreement, not to
transfer, or permit the transfer of, any Shares, or any interest therein,
whether legal or beneficial, to any third party until June 2, 1999, and then
only after first offering to transfer the same to or for the benefit of the
Company or the Shareholders as provided in this Article.
(a) The Offering Notice. Any Shareholder (the "Selling Shareholder") having
received a bona fide offer from a third party and desiring to accept the offer,
or desiring to transfer any Shares to a third party, shall before accepting the
offer or proposing the transfer submit the offer or proposal in writing to each
of the other Shareholders (individually called "Optionee" and collectively
called "Optionees") and to the Company. The offer or proposal (the "Offering
Notice") shall identify the number of Shares and the interest therein that the
Selling Shareholder proposes to transfer (the "Offered Shares"), and shall set
forth the consideration for which the Offered Shares are proposed to be
transferred, the identity and the address of the third party (the "Proposed
Purchaser"), and all other terms and conditions of the proposed transaction.
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(b) Non-Cash Consideration. In the event the Offering Notice sets forth a
cash value for non-cash consideration, the Company and each Optionee shall have
ten (10) days, beginning with the day following receipt of the Offering Notice
by the Company and all Optionees, to make written, good faith objections to the
cash value specified for all or any part of the non-cash consideration. If the
Company or any Optionee objects to the cash value specified in the Offering
Notice for all or any part of the non-cash consideration, each objecting party
shall notify the Selling Shareholder, the Secretary of the Company, and the
other Optionees, as the case may be, in writing setting forth the cash value he
or it would assign to the disputed non-cash consideration and the reason(s)
therefor. If after ten (10) days, beginning with the day following receipt of
each such notice of objection by the Selling Shareholder, the Company and all
Optionees, there remains any objection to the cash value of any item of non-cash
consideration, the dispute over the cash value of such items shall be submitted
for arbitration pursuant to Section 4.4(o) hereof.
(c) Involuntary Transfer. Any Shareholder who becomes aware that there is a
reasonable possibility Shares held by such Shareholder or any other Shareholder
may be transferred involuntarily in the reasonably foreseeable future shall
provide written notice to the Company and all other Shareholders describing in
reasonable detail the known circumstances concerning the possible transfer and
thereafter keep the Company and other Shareholders reasonably informed with
respect to the potential transfer. The date upon which an involuntary transfer
becomes effective shall be an "Involuntary Transfer Date" for purposes of this
Agreement. In the event of the occurrence of an Involuntary Transfer Date, any
person or entity who receives Shares as a result of the transfer that occurred
on the Involuntary Transfer Date shall be deemed to be a "Selling Shareholder"
for purposes of this Agreement, such Shares shall be deemed to be "Offered
Shares", and upon receipt of notice of such event, the Company shall send
written notice of such event identifying the number of Shares and the interest
therein held by the Selling Shareholder to all "Optionees," who shall consist
for this purpose of all Shareholders other than the Selling Shareholder and the
Shareholder, if any, from whom the Selling Shareholder acquired the Shares, and
such notice shall be deemed to be an "Offering Notice." Such Optionees and the
Company shall have the right to purchase such Shares pursuant to Section 3.2.
3.2 Options to Purchase.
(a) First Option. The Company shall have an option, continuing for thirty
(30) days, beginning with the day following receipt of the Offering Notice, to
elect to acquire all or any part of the Offered Shares on the terms set forth in
Section 3.4 hereof. If the Company elects to acquire all of the Offered Shares,
the Secretary of the Company shall, no later than the last day of the Company's
thirty (30) day option period, notify the Selling Shareholder and Optionees of
its decision in writing. (As used in this section and hereinafter in this
Agreement, the verb "acquire," in whatever form, number or tense, shall mean, as
the case may be, to take as security or as collateral, to accept a transfer, to
purchase, or otherwise to acquire.)
(b) Second Option. If the Company elects not to exercise its option under
the preceding subsection or elects to acquire less than all the Offered Shares,
the Secretary of the Company shall,
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no later than the last day of the Company's thirty (30) day option period,
notify the Selling Shareholder and Optionees of its decision in writing. Each
Optionee then shall have an option, continuing for a period of thirty (30)
days, beginning with the day following receipt of such notice by all Optionees,
to acquire, on the terms set forth in Section 3.4 hereof, all or any part of
the Offered Shares not acquired by the Company in the same ratio as the total
number of shares of the Company's capital stock owned by such Optionee bears to
the total number of shares of the capital stock of the Company then outstanding
and owned by all Optionees. Any Optionee desiring to acquire all or any part of
the Offered Shares not acquired by the Company shall deliver to the Secretary
of the Company within said thirty (30) day period a written election so to
acquire the Offered Shares or a specified portion thereof up to his
proportionate share.
(c) Subsequent Options. If any Optionee does not elect to acquire his or
its proportionate share, the Secretary of the Company shall give written notice
thereof to all Optionees who elected to exercise their options (the "Exercising
Optionees"), no later than five (5) days following the last day of the option
period of the last Optionee to receive notice. Each Exercising Optionee shall
then have a further option, continuing for five (5) days, beginning with the
day following receipt of such notice by all Exercising Optionees, to elect to
acquire the still unsold Offered Shares in the same ratio that the total number
of shares of the Company's capital stock owned by him or it bears to the total
number of shares of the capital stock of the Company then outstanding and owned
by all Exercising Optionees. Any Exercising Optionee desiring to acquire all or
any part of the Offered Shares not acquired by the Company or by any Optionee
shall deliver a written election during said five (5) days period. Such notices
and options shall continue to be given in the same manner and for the same
periods until election(s) to acquire all of the Offered Shares are made, or
until no Exercising Optionee is willing to exercise his or its option to
acquire the remaining Offered Shares. Only an Exercising Optionee who shall
have fully exercised his or its last option under this Section 3.2(c) shall be
deemed to be an Exercising Optionee for purposes of notice and exercise of the
next subsequent option, if any, under this Section 3.2(c).
3.3 Failure to Acquire All Offered Shares. To the extent the Company and
Optionees collectively do not elect pursuant to Section 3.2 to acquire all the
Offered Shares, then, if applicable, (i) the options granted hereunder to the
Company and Optionees shall, for purposes of the Offering Notice only, be
forfeited and the Selling Shareholder may complete the transaction with the
Proposed Purchaser, no later than the thirtieth (30th) day following the last
day of the last option period provided for herein, for the consideration per
Offered Share, for all, but not less than all the Offered Shares and upon all
the terms and conditions set forth in the Offering Notice, or (ii) with
respect to Offered Shares acquired upon an Involuntary Transfer Date, the
Company shall record the Selling Shareholder as the owner of record of such
Shares. The Offered Shares shall for all purposes remain subject to this
Agreement and the Proposed Purchaser, any person taking the Shares as
collateral pursuant to a pledge or other encumbrance, or any person holding
such Shares on account of the occurrence of an Involuntary Transfer Date
shall, upon completion of the transaction, immediately and automatically be
deemed a Shareholder hereunder and shall be bound by this Agreement. If
requested by the Company or any Shareholder, any such transferee shall, as a
condition to transfer, agree in writing to be bound by the terms of this
Agreement, including, in the case of a person taking
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Shares as collateral, the requirement that he or it provide notice of default
and/or foreclosure to the Shareholders and the Company pursuant to Section 3.1.
A person taking the Shares as collateral pursuant to a pledge or other
encumbrance shall not have the right to exercise any option under Section 3.2 by
virtue of his so holding such shares as collateral or following foreclosure. If
the transaction with the Proposed Purchaser is not consummated by such
thirtieth (30th) day pursuant to the exact terms and conditions set forth in
the Offering Notice, then all the provisions of this Agreement shall be deemed
to apply again to all the Offered Shares.
3.4 Election to Acquire Offered Shares. If the Company and/or the
Optionees elect to acquire Offered Shares pursuant to Section 3.2 hereof, the
Company and each Exercising Optionee shall be obligated to consummate his or
its election to acquire the Offered Shares pursuant to such election(s) no later
than the sixtieth (60th) day following the last exercise of an option, or the
sixtieth (60th) day following the determination of the Fair Market Value
pursuant to Section 3.5, if applicable (the "Closing").
The price to acquire each Offered Share shall be the price, if any, set
forth in the Offering Notice (computed on the basis of the cash value of all
consideration as determined under Section 3.1(b)), or otherwise the Fair Market
Value as defined in Section 3.5 hereof or. With respect to a transfer that is
not an involuntary transfer, the price shall be paid upon the terms set forth in
the Offering Notice. With respect to involuntary transfers, the price may be
paid by the Company and/or each Exercising Optionee, as they, in their sole
discretion elect, as follows:
(a) cash in full, payable at the time of the Closing; or
(b) (except in the event the Selling Shareholder proposes only pledge,
encumber or otherwise use the Offered Shares as collateral) an initial
payment in cash at the closing of twenty-five percent (25%) of said
price, with the balance payable in equal monthly installments over a
period of thirty-six (36) months. The balance shall be evidenced by a
promissory note bearing interest at the prime rate of interest charged
by the primary bank of the Company in effect at the time of the
closing. The Selling Shareholder shall retain a security interest in
the Offered Shares subject to the exercised option as security for
performance of the Company's and/or the Exercising Optionees
obligations under the promissory note, and the Exercising Optionee
and/or Company agree to execute and deliver such instruments
(including share certificates) and documents as shall be necessary to
create and perfect such security interest.
When the Offering Notice pertains to an offer to lend funds to the Selling
Shareholder, secured by Shares of the Company, the Exercising Optionees sole
option shall be to elect to lend the funds on the terms set forth in the
Offering Notice.
3.5 Fair Market Value.
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(a) The Fair Market Value of a Share of the capital stock of the Company
shall mean that value which is determined pursuant to this Section 3.5. The
Fair Market Value may be mutually agreed upon by the selling and acquiring
parties of the shares of Stock. If the parties do not mutually agree upon the
Fair Market Value of a share of Stock within ten (10) days after delivery of a
written notice of exercise of a purchase right or obligation under this
Agreement, then the Fair Market Value of a share of Stock shall be equal to the
fair market value of such share as determined as of the date of such notice
pursuant to Section 3.5(b) below.
(b) The net worth of the Company for purposes of this Agreements shall be
computed and determined as follows:
(1) The net worth of the Company shall be equal to 4.5 times the Earnings
Before Income Taxes ("EBIT") of the Company for the 12-month period ending the
calendar month immediately preceding the date of the notice of exercise. The
EBIT of the Company for the relevant period shall be determined by the
accountant regularly employed by the Company at the time of the notice of
exercise, or if for any reason that accountant is then unable or unwilling to
act, or if there be no such accountant, then any certified public accountant
acceptable to the parties may be retained by for this purpose. Any dispute in
the selection of an accountant which continues for more than thirty (30) days
shall be resolved by arbitration pursuant to Section 4.4(o) of this Agreement.
(3) The Fair Market Value of a share of stock of the Company shall be its
allocate portion of the Company's net worth so determined.
ARTICLE IV
GENERAL PROVISIONS
4.1 Termination. This Agreement shall terminate upon the occurrence of
either of the following events:
(a) Bankruptcy of the Company; or
(b) Voluntary agreement of the Company and all Shareholders.
(c) Upon ownership of all of the Company's outstanding capital stock being
vested in one person.
"Bankruptcy" shall mean the occurrence of any of the following events with
respect to the Company: if (1) it is dissolved; (2) it becomes insolvent or
fails or is unable or admits in writing its inability generally to pay its
debts as they become due; (3) it makes a general assignment, arrangement or
composition with or for the benefit of its creditors; (4) it institutes or has
instituted against it a proceeding seeking relief under any bankruptcy or
insolvency law or other similar law affecting creditors' rights, or a petition
is presented for the winding-up or liquidation of the Company and, in
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the case of any such proceeding or petition instituted or presented against
it, such proceeding or petition (A) results in a judgment of insolvency or
bankruptcy or the entry of an order for relief or the making of an order for
the winding-up or liquidation of the Company or (B) is not dismissed,
discharged, stayed or restrained in each case within 90 days of the institution
or presentation thereof, (5) it has a resolution passed for its winding-up or
liquidation; (6) it weeks or becomes subject to the appointment of an
administrator, receiver, trustee, custodian or other similar official for it
or for all or substantially all its assets; (7) any event occurs with respect
to the Company which, under the applicable laws of any jurisdiction, has an
analogous effect to any of the events specified in clauses (1) to (6)
inclusive; or (8) the Company takes any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the foregoing acts.
4.2 Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, their heirs, legal representatives, successors
and assigns; provided, however, that except as otherwise expressly provided in
this Agreement, no Shareholder shall assign any rights, obligations or interest
hereunder without the prior written consent of all other Shareholders.
4.3. Amendment. This Agreement may only be amended by a written agreement
approved by the Board of Directors of the Company and all the Shareholders. Any
agreement so approved shall be executed by the Company and the Shareholders and
filed with the corporate records.
4.4. General. Except to the extent inconsistent with the express language
of the foregoing provisions of this Agreement, the following provisions shall
govern the interpretation, application, construction and enforcement of this
Agreement.
(a) Notice. Any notice from one party to the other shall be deemed given
when delivered to, or on the day after being sent by a nationally recognized
overnight courier service addressed to, the person at the address listed below
or to such other person and/or address as may be designated from time to time
in writing:
To SSI: SuperShuttle International, Inc.
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇, President
With a copy to: Oman, ▇▇▇▇▇▇▇▇▇▇▇ & Politan, P.L.C.
▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
To Company: Shuttle Express, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
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With a copy to: Moldawer & ▇▇▇▇▇▇▇▇, P.C.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
To Yellow: Yellow Holding, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
With a copy to: Moldawer & ▇▇▇▇▇▇▇▇, P.C.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
(b) Additional Acts and Documents. Each party hereto agrees to do all such
things and take all such actions, and to make, execute and deliver such other
documents and instruments, as shall be reasonably requested to carry out the
provisions, intent and purpose of this Agreement.
(c) Authority. Each of the parties hereto represents and warrants to each
other party hereto that this Agreement has been duly authorized by all
necessary action and that this Agreement constitutes and will constitute a
binding obligation of each such party.
(d) Attorney Fees. If suit is brought or an attorney is retained by any
party to this Agreement to enforce the terms of this Agreement or to collect
any moneys due hereunder, or to collect money damages for breach hereof, or in
connection with any arbitration or action arising out of this Agreement, the
prevailing party shall be entitled to recover, in addition to any other remedy,
reimbursement for reasonable attorney fees, court costs, arbitration costs,
costs of investigation and other related expenses incurred in connection
therewith.
(e) Counterparts. This Agreement may be executed in any number of
counterparts, all such counterparts shall be deemed to constitute one and the
same instrument, and each of said counterparts shall be deemed an original
hereof.
(f) Time. Time is of the essence of this Agreement and each and every
provision hereof. Any extension of time granted for the performance of any duty
under this Agreement shall not be considered an extension of time for the
performance of any other duty under this Agreement.
(g) Waiver. Failure of any party to exercise any right or option arising
out of a breach of this Agreement shall not be deemed a waiver of any right or
option with respect to any subsequent or different breach, or the continuance
of any existing breach.
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(h) Integration Clause, Oral Modification. This Agreement represents the
entire agreement of the parties with respect to the subject matter hereof, and
all agreements entered into prior hereto are revoked and superseded by this
Agreement, and no representations, warranties, inducements or oral agreements
have been made by any of the parties except as expressly set forth herein, or
in other contemporaneous written agreements.
(i) Captions. Captions and sections headings used herein are for
convenience only, are not a part of this Agreement, shall not be deemed to
limit or alter any provisions hereof, and shall not be deemed relevant in
construing this Agreement.
(j) Governing Law. This Agreement shall be deemed to be made under, and
shall be construed in accordance with and shall be governed by , the laws of
the State of Maryland.
(k) Indemnity. Each party to this Agreement agrees to indemnity each other
party, and hold it harmless, for, from and against all claims, damages, costs
and expenses (including reasonable attorney fees) attributable, directly or
indirectly, to the breach by such indemnifying party of any obligation
hereunder.
(l) Interpretations. To the extent permitted by the context in which used,
(i) words in the singular number shall include the plural, (ii) words in the
masculine gender shall include the feminine and neuter, and vice versa, and
(iii) references to "persons" or "parties" in this Agreement shall be deemed to
refer to natural persons, corporations, general partnerships, limited
partnerships, trusts and all other entities.
(m) Interest on Overdue Amounts. To the extent any amount becomes due and
owing hereunder, the party to whom such amount is payable shall be entitled to
receive, in addition to such amount, interest thereon at the higher of 12% per
annum or the rate specified in Section 2.4 hereof, from and after the date on
which notice of delinquency is given to the party or parties owing the amount
so due.
(n) Specific Performance. In addition to such other remedies as may be
available under applicable law, the parties acknowledge that the remedies of
specific performance and/or injunctive relief shall be available and proper in
the event any party fails or refuses to perform its duties hereunder.
(o) Arbitration. In the event any dispute or controversy arising out of
this Agreement cannot be settled by the parties, such controversy or dispute
shall be submitted to arbitration in Baltimore, Maryland, and for this purpose
each party hereby expressly consents to arbitration in such place. In the event
the parties cannot mutually agree upon an arbitrator and procedure to settle
their dispute or controversy within fifteen (15) days after written demand by
one of the parties for arbitration, then the dispute or controversy shall be
arbitrated by a single arbitrator pursuant to the then-existing rules and
regulations of the American Arbitration Association governing commercial
transactions. The decision of the arbitrator shall be binding upon the parties
hereto for all purposes, and judgment to
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enforce any such binding decision may be entered in any court having
jurisdiction thereof. At the request of either party, arbitration proceedings
shall be conducted in the utmost secrecy. In such case, all documents,
testimony and records shall be received, heard and maintained by the arbitrator
in secrecy, available for inspection only by either party and by their
attorneys and experts who shall agree, in advance and in writing, to receive
all such information in secrecy. In all other respects, the arbitration shall
be conducted pursuant to the Uniform Arbitration Act as adopted and regulations
of the American Arbitration Association governing commercial transactions to
the extent such rules and regulations are not inconsistent with such Act or
this Agreement.
(p) Exhibits. Any Exhibit attached hereto shall be deemed to have been
incorporated herein by this reference, with the same force and effect as if
fully set forth in the body hereof.
(q) Invalidity. Notwithstanding any other term or provision of this
Agreement, if any right or interest created by or in connection with this
Agreement would be invalid or unenforceable if not subject to the terms
contained in this sentence, such interest or right shall terminate twenty (20)
years after the date of death of the last to die of the parties and the
children of the parties living at the time of creation of such right or
interest.
(r) Severability. If any provision of this Agreement is declared void or
unenforceable, such provision shall be deemed severed from this Agreement,
which shall otherwise remain in full force and effect.
(s) Business Day; Time for Performance. Any reference in this Agreement to
"business day" shall refer to a Monday, Tuesday, Wednesday, Thursday or Friday
on which a majority of the banks (by number) having their principal executive
offices in Baltimore, Maryland are generally open for business in that City. If
the date on which an act specified to occur or be performed under this
Agreement shall not be a business day, or if the last day on which an election,
notice or other act can be made or accomplished under this Agreement shall not
be a business day, then the same shall be timely if it occurs or is performed,
made or accomplished on the next following business day.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day, month and year first written above.
SHUTTLE EXPRESS, INC.
a Maryland corporation
By: [Signature Not Legible]
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Its: President
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12
YELLOW HOLDING, INC.
a Maryland corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Its: President
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SUPERSHUTTLE INTERNATIONAL, INC.
a Delaware corporation
By: /s/ ▇▇▇ ▇▇▇▇▇
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Its: CFO/Treasurer
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12
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ATTACHMENT "E"
CONSOLIDATED FINANCIAL STATEMENTS
for the years ended September 30, 1995, 1996 and 1997
