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EXHIBIT 2.1
AMENDED AND RESTATED
AGREEMENT AND PLAN OF REORGANIZATION AND MERGER
AMONG
SUPERSHUTTLE INTERNATIONAL, INC.,
SUPERSHUTTLE ACQUISITION COMPANY I,
PREFERRED TRANSPORTATION, INC.
AND
THE SHAREHOLDERS LISTED ON SCHEDULE 1
MARCH 31, 1998
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AMENDED AND RESTATED
AGREEMENT AND PLAN OF REORGANIZATION AND MERGER
ARTICLE 1
THE MERGER............................................................. 1
1.1 The Merger, Incidental Transactions.............................. 1
1.2 Effect of the Merger............................................. 2
1.3 Consummation of the Merger....................................... 2
1.4 Articles of Incorporation and Bylaws; Directors and Officers..... 3
1.5 Conversion of Securities......................................... 3
1.6 No Fractional Shares............................................. 3
1.7 Exchange for Merger Consideration................................ 4
1.8 Closing of PTI Transfer Books.................................... 4
1.9 Dissenter's Rights............................................... 4
1.10 Lost, Stolen or Destroyed Certificates........................... 5
1.11 Taking of Necessary Action; Further Action....................... 5
1.12 Escrow........................................................... 5
1.13 Effective Date; Closing.......................................... 5
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SUPERSHUTTLE
AND MERGER SUB......................................................... 5
2.1 Organization and Qualification................................... 5
2.2 Authority Relative to This Agreement............................. 6
2.3 Capitalization................................................... 6
2.4 Financial Statements............................................. 7
2.5 Subsidiaries; Merger Sub......................................... 7
2.6 Absence of Undisclosed Liabilities............................... 7
2.7 No Material Adverse Changes...................................... 7
2.8 Absence of Certain Developments.................................. 7
2.9 Title to and Condition of Properties............................. 8
2.10 Environmental Matters............................................ 8
2.11 Accounts Receivable.............................................. 9
2.12 Tax Matters...................................................... 9
2.13 Contracts and Commitments........................................ 9
2.14 Restrictions on Business Activities.............................. 10
2.15 Intellectual Property Rights..................................... 10
2.16 Litigation....................................................... 11
2.17 Brokers' Fees.................................................... 11
2.18 Compliance With Laws; Permits; Certain Operations................ 11
2.19 Disclosure....................................................... 12
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PTI AND THE
SHAREHOLDERS........................................................... 12
3.1 Organization and Qualification................................... 12
3.2 Authority Relative to This Agreement............................. 12
3.3 Capitalization................................................... 13
3.4 Financial Statements............................................. 13
3.5 Subsidiaries..................................................... 13
3.6 Absence of Undisclosed Liabilities............................... 14
3.7 No Material Adverse Changes...................................... 14
3.8 Absence of Certain Developments.................................. 14
3.9 Title to and Condition of Properties............................. 15
3.10 Environmental Matters............................................ 16
3.11 Accounts Receivable.............................................. 17
3.12 Tax Matters...................................................... 17
3.13 Contracts and Commitments........................................ 18
3.14 Restrictions on Business Activities.............................. 19
3.15 Intellectual Property Rights..................................... 19
3.16 Litigation....................................................... 19
3.17 Brokers' Fees.................................................... 20
3.18 Employment....................................................... 20
3.19 Employee Benefit Plans........................................... 20
3.20 Insurance........................................................ 21
3.21 Insider Transactions............................................. 21
3.22 Compliance With Laws; Permits; Certain Operations................ 22
3.23 Disclosure....................................................... 22
3.24 Minute Books..................................................... 22
ARTICLE 4
ADDITIONAL REPRESENTATIONS AND WARRANTIES OF
SHAREHOLDERS........................................................... 22
4.1 Organization, Standing and Authority of Shareholders............. 22
4.2 Execution and Delivery; No Conflicts............................. 23
4.3 Consents and Approvals........................................... 23
4.4 Brokers.......................................................... 23
4.5 Securities Laws Compliance....................................... 23
4.6 Shareholder Experience and Investment Representations............ 24
ARTICLE 5
CONDUCT PENDING AND SUBSEQUENT TO THE MERGER........................... 24
5.1 Conduct of Business Pending the Merger........................... 24
5.2 Conduct Subsequent to the Merger................................. 26
ARTICLE 6
ADDITIONAL AGREEMENTS.................................................. 27
6.1 Shareholders' Meeting............................................ 27
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6.2 Expenses......................................................... 27
6.3 No Negotiations.................................................. 27
6.4 Notification of Certain Matters.................................. 28
6.5 Access to Information; Confidentiality........................... 28
6.6 Consents; Approvals.............................................. 28
6.7 Supplements to Disclosure Schedules.............................. 28
6.8 Non-Solicitation of Employees.................................... 29
6.9 Election of Directors............................................ 29
6.10 Confidential Information and Covenant Not To Compete............. 29
ARTICLE 7
CONDITIONS............................................................. 31
7.1 Conditions to Obligations of Each Party to Effect the Merger..... 31
7.2 Additional Conditions to Obligations of SuperShuttle and Merger
Sub.............................................................. 32
7.3 Additional Conditions to Obligation of PTI....................... 33
7.4 Conditions Subsequent to the Merger.............................. 34
ARTICLE 8
TERMINATION, AMENDMENT AND WAIVER...................................... 34
8.1 Termination...................................................... 34
8.2 Effect of Termination............................................ 35
8.3 Amendment........................................................ 35
8.4 Waiver........................................................... 35
ARTICLE 9
GENERAL PROVISIONS..................................................... 35
9.1 Survival of Representations and Warranties....................... 35
9.2 Public Announcements............................................. 36
9.3 Notices.......................................................... 36
9.4 Interpretation................................................... 37
9.5 Schedules and Exhibits........................................... 37
9.6 Severability..................................................... 37
9.7 Jurisdiction; Venue; Service of Process.......................... 37
9.8 Waiver of Jury Trial............................................. 37
9.9 Miscellaneous.................................................... 38
SIGNATURE PAGE .............................................................. 39
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INDEX OF EXHIBITS AND SCHEDULES
Exhibit "A" Articles of Incorporation of the Surviving Corporation
Exhibit "B" Bylaws of the Surviving Corporation
Exhibit "C" Designated Officers and Directors of the Surviving Corporation
Exhibit "D" Employment Agreement
Exhibit "E" Registration Rights Agreement
Exhibit "F" Escrow Agreement
Exhibit "1.1" Agreement and Plan of Merger
Schedule "1" PTI Shareholders and Common Stock Ownership
Schedule "1.1" List of Assets and Method of Transfer
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AMENDED AND RESTATED
AGREEMENT AND PLAN OF REORGANIZATION AND MERGER
This AMENDED AND RESTATED AGREEMENT AND PLAN OF REORGANIZATION AND MERGER
(the "Agreement") is made as of March 31, 1998 by and among SUPERSHUTTLE
INTERNATIONAL, INC., a Delaware corporation ("SuperShuttle"); SUPERSHUTTLE
ACQUISITION COMPANY I, an Arizona corporation and a wholly owned subsidiary of
SuperShuttle ("Merger Sub"); PREFERRED TRANSPORTATION, INC., a California
corporation ("PTI"); and those PTI shareholders listed on Schedule "1" hereto
(collectively, the "Shareholders" and, individually, a "Shareholder").
RECITALS
A. SuperShuttle and PTI are parties to a letter agreement dated March 2,
1998 (the "Letter of Intent"), which contemplates the acquisition by
SuperShuttle of all of the outstanding capital stock of PTI.
B. SuperShuttle has caused the formation of Merger Sub for the purpose of
effecting the acquisition through a reverse triangular merger with and into PTI.
C. The Shareholders currently and collectively own all of the issued and
outstanding shares of capital stock of PTI, with each Shareholder owning the
number of shares set forth opposite such Shareholder's name on Schedule 1.
D. The Shareholders are joined herein for purposes of affirming the
representations and warranties made in Article 3, and to otherwise be bound
hereto for the obligations of PTI for which they are jointly and severally
liable.
E. The parties have determined that it is in their respective interests to
merge Merger Sub with and into PTI (the "Merger") and to undertake such other
actions described herein, all on the terms and subject to the conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, the parties agree as follows:
ARTICLE 1
THE MERGER
The respective boards of directors of SuperShuttle, Merger Sub and PTI
have, by resolutions duly adopted, approved the following provisions of this
Article 1 as the plan/agreement of merger required by Section 1108 of the
California Corporations Code, as amended (the "California Law") and Section
10-1107 of the Arizona Business Corporation Act, as amended (the "Arizona Law")
(collectively, the "Merger Statutes"), in connection with the Merger:
1.1 The Merger, Incidental Transactions. At the Effective Time (as defined
in Section
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1.3), in accordance with this Agreement, the Agreement and Plan of Merger
attached hereto as Exhibit "1.1" and the Merger Statutes, Merger Sub shall be
merged with and into PTI. The separate corporate existence of Merger Sub (except
as such existence may be continued by operation of law) shall cease, and PTI
shall continue as the surviving corporation. The parties shall use their
reasonable best efforts to undertake a corporate name change for the Surviving
Corporation with the California Secretary of State to "SuperShuttle Orange
County, Inc." when expedient to do so considering the California Public
Utilities Commission (the "PUC") process, among other factors. PTI, in its
capacity as the corporation surviving the Merger, sometimes is referred to
herein as the "Surviving Corporation."
As an incident to the Merger transactions and as a predicate and
condition to them, certain assets are required to be transferred into PTI or
other accommodations made in order to effect the purpose of allowing the
Surviving Corporation to operate the business of PTI as presently conducted. In
this regard, the assets described on Schedule 1.1 attached hereto and
incorporated by reference herein shall be transferred in the manner contemplated
by Schedule 1.1 immediately prior to the Effective Time. It is acknowledged by
the parties hereto that any and all radio frequencies, real estate interests,
permits, and similar assets necessary to the conduct of the business of PTI
immediately prior to the Effective Time shall be and become the property of the
Surviving Corporation effective upon the Merger through the processes described
on Schedule 1.1 without any further form of consideration or payment owing to
PTI or any of the Shareholders. The transactions contemplated by Schedule 1.1
are a fundamental part of this Agreement and the consummation of those
transactions is a condition to the effectiveness of the Merger.
1.2 Effect of the Merger. At the Effective Time, the Surviving Corporation
shall possess all the rights, privileges, immunities and franchises of each of
Merger Sub and PTI (collectively, the "Constituent Corporations"); all property,
real, personal and mixed, and all debts, liabilities and duties due on whatever
account, and all and every other interest of or belonging to or due to each of
the Constituent Corporations shall be taken and deemed to be transferred to and
vested in the Surviving Corporation without further act or deed; and the
Surviving Corporation shall be responsible and liable for liabilities and
obligations of each of the Constituent Corporations, in each case in accordance
with the Merger Statutes.
1.3 Consummation of the Merger. As soon as is practicable after the
satisfaction or waiver of the conditions set forth in Sections 7.1, 7.2 and 7.3
of Article 7, the parties hereto shall cause the Agreement and Articles of
Merger to be delivered to the Arizona Corporation Commission of the State of
Arizona and the Agreement and officers' certificates of each Constituent
Corporation to be delivered to the Secretary of State of the State of
California, in such form as required by and executed in accordance with the
Arizona Law and the California Law, respectively. The Merger shall be effective
at such time as such documents are duly filed with (i) the Arizona Corporation
Commission of the State of Arizona, and (ii) the Secretary of State of the State
of California, which filings shall be made reasonably simultaneously. The date
and time when the Merger shall become effective is referred to as the "Effective
Time." It is contemplated that the conditions to consummation of the Merger will
be satisfied, if at all, on or before March 31, 1998, and that the Effective
Time shall be as soon as practicable following the satisfaction of the
conditions set forth in Sections 7.1, 7.2 and 7.3 of Article 7 hereof on or
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before March 31, 1998.
1.4 Articles of Incorporation and Bylaws; Directors and Officers. The
Articles of Incorporation and the Bylaws of the Surviving Corporation shall be
restated in the forms of Exhibits "A" and "B" hereto and incorporated herein.
The persons identified on Exhibit "C" shall be the directors and officers of the
Surviving Corporation at the Effective Time.
1.5 Conversion of Securities. At the Effective Time, by virtue of the
Merger and without any action on the part of Merger Sub, PTI or the holders of
any of the following securities:
(a) Each share of Common Stock, no par value, of PTI (the "PTI
Common Stock") issued and outstanding immediately prior to the Effective
Time, other than shares owned by SuperShuttle which shall be converted
into shares of the Surviving Corporation, shall, by virtue of the Merger
and without any action on the part of the holders thereof, automatically
be canceled and extinguished and the total number of outstanding shares of
PTI Common Stock shall be converted into and become a right to receive
915,570 shares of Common Stock, $0.01 par value per share, of SuperShuttle
(the "SuperShuttle Common Stock") (the "Exchange Ratio"), payable to the
Shareholders pro rata to their PTI Common Stock ownership as reflected on
Schedule 1. The aggregate number of shares of SuperShuttle Common Stock to
be issued in order to give effect to this provision will represent
approximately fourteen percent (14%) of the total number of outstanding
shares of SuperShuttle Common Stock when issued.
(b) Each share of PTI Common Stock issued and outstanding
immediately prior to the Effective Time and held in the treasury of PTI
shall automatically be canceled and extinguished and no payment shall be
made with respect thereto.
(c) Each share of Common Stock, par value $0.01 per share, of Merger
Sub issued and outstanding immediately prior to the Effective Time shall
automatically be converted into and become one validly issued, fully paid
and nonassessable share of Common Stock, no par value per share, of the
Surviving Corporation. Each stock certificate of Merger Sub evidencing
ownership of any such shares shall continue to evidence ownership of such
shares of capital stock of the Surviving Corporation.
(d) The Exchange Ratio shall be adjusted to reflect fully the effect
of any stock split, reverse split, stock dividend (including any dividend
or distribution of securities convertible into SuperShuttle Common Stock
or PTI Common Stock), reorganization, recapitalization or other like
change with respect to SuperShuttle Common Stock or PTI Common Stock
occurring after the date hereof and prior to the Effective Time, but shall
not be adjusted for the exercise or conversion of any outstanding
SuperShuttle securities convertible into SuperShuttle Common Stock.
1.6 No Fractional Shares. No fractional shares of SuperShuttle Common
Stock shall be issued. Fractional shares of such stock shall be rounded to the
nearest whole share.
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1.7 Exchange for Merger Consideration. At the Effective Time, each of the
Shareholders shall surrender the certificate or certificates representing shares
of PTI Common Stock to SuperShuttle. Promptly following surrender, SuperShuttle
shall issue the SuperShuttle Common Stock payable to the Shareholders pursuant
to Section 1.5. The certificates of PTI Common Stock surrendered to SuperShuttle
shall be duly endorsed and otherwise in proper form for transfer as SuperShuttle
may require. SuperShuttle shall not be obligated to deliver the consideration to
which any Shareholder is entitled as a result of the Merger until such
Shareholder surrenders his or her certificate or certificates representing the
shares of PTI Common Stock to be exchanged. After the Effective Time, each
outstanding certificate or certificates that represented shares of PTI Common
Stock as of the Effective Time shall be deemed for all corporate purposes to
evidence only the right of the holder thereof to receive such person's share of
the consideration calculated pursuant to Section 1.5 in exchange therefor. No
interest shall be paid or accrued on any consideration payable upon the
surrender of the certificates.
1.8 Closing of PTI Transfer Books. At the Effective Time, the stock
transfer books of PTI shall be closed and no transfer of shares of PTI Common
Stock issued and outstanding immediately prior to the Effective Time shall
thereafter be made (except as provided for or contemplated in Section 1.5
above).
1.9 Dissenter's Rights. Subject to Section 7.2(e):
(a) Any shares of capital stock of PTI held by a holder who has
exercised dissenters' rights for such shares in accordance with Chapter 13
of the California Corporations Code and who, as of the Effective Time, has
not effectively withdrawn or lost (through failure to perfect or
otherwise) such dissenters' rights ("Dissenting Shares"), shall not be
converted into or represent a right to receive SuperShuttle Common Stock
pursuant to Section 1.5 but the holder thereof shall only be entitled to
such rights as are granted by applicable corporate law.
(b) Notwithstanding the provisions of subsection (a), if any holder
of Dissenting Shares shall effectively withdraw or lose his dissenters'
rights, then, as of the later of the Effective Time or the occurrence of
such event, such holder's shares shall automatically be converted into and
represent only the right to receive the Merger consideration set forth in
Section 1.5, without interest thereon, upon surrender of the certificate
or certificates representing such Dissenting Shares.
(c) PTI shall give SuperShuttle (i) prompt notice of any written
demands received by PTI to require PTI to purchase shares of capital stock
of PTI, withdrawals of such demands, and any other instruments served
pursuant to Chapter 13 of the California Corporations Code (Dissenters'
Rights) and received by PTI and (ii) the opportunity to participate in all
negotiations and proceedings with respect to such demands. PTI shall not,
except with the prior written consent of SuperShuttle, voluntarily make
any payment with respect to any such demands or offer to settle or settle
any such demands.
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1.10 Lost, Stolen or Destroyed Certificates. In the event any certificates
representing shares of PTI Common Stock shall have been lost, stolen or
destroyed, SuperShuttle shall issue in exchange for such lost, stolen or
destroyed certificates, upon the making of an affidavit of that fact by the
holder thereof, such shares of SuperShuttle Common Stock as required pursuant to
Sections 1.5 and 1.6; provided, however, that SuperShuttle may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificates to deliver an indemnity
agreement in such form as SuperShuttle may reasonably direct as indemnity
against any claim that may be made against SuperShuttle with respect to the
certificates alleged to have been lost, stolen or destroyed.
1.11 Taking of Necessary Action; Further Action. SuperShuttle and Merger
Sub, on the one hand, and PTI on the other hand, shall use reasonable best
efforts to take all such actions (including, without limitation, actions to
cause the satisfaction of the conditions of the other to effect the Merger) as
may be necessary or appropriate in order to effectuate the Merger as promptly as
possible. If, at any time after the Effective Time, any further action is
necessary or desirable to carry out the purposes of this Agreement and to vest
the Surviving Corporation with full possession of all the rights, privileges,
immunities and franchises of the Constituent Corporations, or fully subject the
Surviving Corporation to all liabilities and obligations of the Constituent
Corporations, the officers and directors of the Surviving Corporation are fully
authorized in the name of the Constituent Corporations or otherwise to take, and
shall take, all such lawful and necessary actions.
1.12 Escrow. Concurrent with the filing of the Articles, officers'
certificates and Agreement of Merger as set forth in Section 1.3 above, the
parties shall deliver the stock certificates of SuperShuttle and PTI to be
exchanged to an escrow agent (the "Escrow Agent") to hold in escrow pending the
Closing (as defined in Section 1.13), subject to the terms of the Escrow
Agreement, a copy of which is attached hereto as Exhibit "F."
1.13 Effective Date; Closing. The Effective Date of this Agreement shall
be March 31, 1998. The Closing of the transactions contemplated by this
Agreement shall occur upon the satisfaction of the conditions set forth in
Article 7 of this Agreement, all of which conditions shall be satisfied on or
before the Closing Date or such other date as required by the applicable
conditions, and the escrow is broken.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SUPERSHUTTLE
AND MERGER SUB
SuperShuttle and Merger Sub hereby represent and warrant to PTI 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 PTI hereunder (the
"SuperShuttle Disclosure Schedule"):
2.1 Organization and Qualification. Each of SuperShuttle and Merger Sub is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and the State of Arizona, respectively, and has
the requisite corporate power and
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authority to own and operate its properties and to carry on its business as now
conducted in every jurisdiction where the failure to do so would have a material
adverse effect on its business, properties or ability to conduct the business
currently conducted by it. The copies of the Certificate of Incorporation,
Articles of Incorporation and Bylaws of SuperShuttle and Merger Sub previously
furnished to PTI are correct and complete and reflect all amendments thereto.
2.2 Authority Relative to This Agreement. Each of SuperShuttle and Merger
Sub has the requisite corporate power and authority to enter into this Agreement
and to carry out its obligations hereunder. The execution and delivery of this
Agreement by SuperShuttle and Merger Sub and the consummation by SuperShuttle
and Merger Sub of the transactions contemplated hereby have been duly authorized
by SuperShuttle and Merger Sub, and no other corporate proceedings on the part
of SuperShuttle or Merger Sub are necessary to authorize this Agreement and such
transactions. This Agreement has been duly executed and delivered by
SuperShuttle and Merger Sub and, assuming the due authorization, execution and
delivery by PTI, constitutes a valid and binding obligation of each, enforceable
in accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization or other similar laws relating
to the enforcement of creditors' rights generally and by general principles of
equity. Except as set forth in the SuperShuttle Disclosure Schedule, neither
SuperShuttle nor Merger Sub is subject to, or obligated under, any provision of
(a) its Articles or Certificate of Incorporation or Bylaws, (b) any material
agreement, arrangement or understanding, (c) any material license, franchise or
permit, or (d) any law, regulation, order, judgment or decree, which would be
breached or violated, or in respect of which a right of termination or
acceleration would arise or any encumbrance on any of its or any of its
subsidiaries' assets would be created, by its execution, delivery and
performance of this Agreement and the consummation by it of the transactions
contemplated hereby. Except for such filings to be made pursuant to the Merger
Statutes in order to effect the Merger, no authorization, consent or approval
of, or filing with, any public body, court or authority is necessary on the part
of SuperShuttle or Merger Sub for the consummation by SuperShuttle and Merger
Sub of the transactions contemplated by this Agreement.
2.3 Capitalization. The authorized equity capitalization of SuperShuttle
consists of 20,000,000 shares of SuperShuttle Common Stock and 5,000,000 shares
of Preferred Stock, $0.01 par value per share ("SuperShuttle Preferred Stock").
As of March 31, 1998, 2,760,860 shares of SuperShuttle Common Stock and 479,475
shares of SuperShuttle Preferred Stock are issued and outstanding, all of which
shares are validly issued, fully paid and nonassessable. As of the date hereof,
1,000 shares of Common Stock, $0.01 par value per share, of Merger Sub ("Merger
Sub Common Stock") were issued and outstanding, all of which shares are validly
issued, fully paid and nonassessable and owned by SuperShuttle.
There are no obligations, contingent or otherwise, of SuperShuttle or any
of its subsidiaries to repurchase, redeem or otherwise acquire any shares of
SuperShuttle Common Stock or the capital stock of any subsidiary or to provide
funds to or make any investment (in the form of a loan, capital contribution or
otherwise) in any such subsidiary or any other entity. All of the outstanding
shares of capital stock of each of SuperShuttle's subsidiaries are duly
authorized, validly issued, fully paid and nonassessable and, except as
disclosed in the SuperShuttle Disclosure Schedule, all such shares are owned by
SuperShuttle free and clear of
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all security interests, liens, claims, pledges, agreements, limitations in
SuperShuttle's voting rights, charges or other encumbrances of any nature
whatsoever.
2.4 Financial Statements. SuperShuttle has delivered a balance sheet dated
as of January 31, 1998, and other financial statements for the years ended
September 30, 1997 and September 30, 1996 to PTI (collectively, the
"SuperShuttle Financial Statements.") The SuperShuttle Financial Statements were
prepared in accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods involved and present fairly the
consolidated financial position, results of operations, and cash flows of
SuperShuttle and its consolidated subsidiaries as of the dates and for the
periods indicated therein, subject, in the case of unaudited interim statements,
to normal year-end accounting adjustments and the absence of complete footnote
disclosure.
2.5 Subsidiaries; Merger Sub. Except as set forth in the SuperShuttle
Disclosure Schedule, SuperShuttle does not have any subsidiaries and does not
otherwise own any stock, partnership interest, joint venture interest, or any
other security issued by or equity interest in any other corporation,
organization or entity. For purposes hereof, the term "subsidiary" means any
corporation of which securities having a majority of the ordinary voting power
in electing directors are owned directly or indirectly by a party. Merger Sub is
not subject to any liabilities, obligations or claims, whether absolute or
contingent, liquidated or unliquidated. Merger Sub was formed solely for the
purpose of consummating the transactions contemplated by this Agreement and has
not engaged in any business or other activities for any other purpose. Unless
the context requires otherwise, the term "SuperShuttle" shall hereafter refer to
SuperShuttle and/or its Subsidiaries.
2.6 Absence of Undisclosed Liabilities. SuperShuttle has no obligations or
liabilities (whether accrued, absolute, contingent, liquidated, unliquidated or
otherwise, whether due or to become due and regardless of when asserted), except
(a) obligations under contracts or commitments described in Section 2.6 of the
SuperShuttle Disclosure Schedule; (b) liabilities reflected on the balance sheet
of SuperShuttle as of January 31, 1998 (the "January 31, 1998 SuperShuttle
Balance Sheet") included in the SuperShuttle Financial Statements; (c)
liabilities which have arisen in the ordinary course of business after December
31, 1997 (none of which is an uninsured liability for breach of contract, breach
of warranty, tort, infringement, claim or lawsuit); and (d) liabilities which
are not material in scope or amount.
2.7 No Material Adverse Changes. Except as set forth in the SuperShuttle
Disclosure Schedule, since December 31, 1997, there has not been any material
adverse change in the assets, financial condition or operating results of
SuperShuttle, other than the effect of the businesses acquired since that date.
2.8 Absence of Certain Developments. Except as set forth in the
SuperShuttle Disclosure Schedule or except as contemplated in this Agreement,
since December 31, 1997, SuperShuttle has not:
(a) changed its accounting methods or practices (including any
change in depreciation or amortization policies or rates) or revalued any
of its assets;
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(b) borrowed any amount under existing lines of credit or otherwise
or incurred or become subject to any indebtedness, except as reasonably
necessary for the ordinary operation of SuperShuttle's business and in a
manner and in amounts that are in keeping with the historical practice of
SuperShuttle;
(c) discharged or satisfied any lien or encumbrance or paid any
liability, other than current liabilities and related liens (or current
installments due on intermediate or long-term liabilities) paid or
satisfied in the ordinary course of business;
(d) materially changed the pricing or royalties set or charged by
SuperShuttle to its customers or licensees or agreed to any material
change in the pricing or royalties set or charged by persons who have
licensed Intellectual Property Rights (as described in Section 2.15) to
SuperShuttle; or
(e) suffered any material theft, damage, destruction or loss of or
to any property or properties owned or used by it, whether or not covered
by insurance.
2.9 Title to and Condition of Properties. SuperShuttle owns good and
marketable title to the properties and assets reflected on the December 31, 1997
SuperShuttle Balance Sheet or acquired since the date thereof, free and clear of
all liens and encumbrances, except for (A) liens for current taxes not yet due
and payable, (B) liens described in Section 2.6 of the SuperShuttle Disclosure
Schedule, (C) the properties subject to the leases set forth in Section 2.9 of
the SuperShuttle Disclosure Schedule, and (D) assets disposed of since December
31, 1997, in the ordinary course of business.
2.10 Environmental Matters. Except as set forth in the SuperShuttle
Disclosure Schedule, SuperShuttle (i) has obtained all applicable permits,
licenses and other authorizations (a list of which is set forth in the
SuperShuttle Disclosure Schedule) which are required under federal, state or
local laws relating to pollution or protection of the environment, including
laws relating to emissions, discharges, releases or threatened releases of
pollutants, contaminants, or hazardous or toxic materials or wastes into ambient
air, surface water, ground water, or land or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants or hazardous or toxic
materials or wastes by SuperShuttle (or its agents); (ii) is in compliance with
all terms and conditions of any required permits, licenses and authorizations,
and with all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules and timetables contained in
such laws or in any regulation, code, plan, order, decree, judgment, notice or
demand letter issued, entered, promulgated or approved thereunder; (iii) is not
aware of nor has it received notice of any event, condition, circumstance,
activity, practice, incident, action or plan which is reasonably likely to
interfere with or prevent continued compliance with or which would give rise to
any common law or statutory liability, or otherwise form the basis of any claim,
action, suit or proceeding, based on or resulting from SuperShuttle's (or any
agent's) manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling, or the emission, discharge, or release into
the environment, of any pollutant, contaminant, or hazardous or toxic material
or waste; (iv) has taken all actions necessary under applicable requirements of
such federal, state or local laws, rules or regulations to register any products
or materials
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required to be registered by SuperShuttle (or its agents) thereunder; and (v)
has neither disposed of nor handled any hazardous substance.
2.11 Accounts Receivable. SuperShuttle's notes and accounts receivable
recorded on the January 31, 1998 SuperShuttle Balance Sheet arose in the
ordinary course of business and are carried at values determined in accordance
with generally accepted accounting principles consistently applied.
2.12 Tax Matters. Except as set forth in the SuperShuttle Disclosure
Schedule, SuperShuttle has filed all federal, foreign, state, county and local
income, excise, property, sales and other tax returns which are required to be
filed by it for all periods prior to the Effective Time, and all such returns
are true and correct; all taxes due and payable by SuperShuttle (whether or not
shown on any tax return) for all periods prior to the Effective Time have been
paid; SuperShuttle's reserves and provisions for taxes on the balance sheets
included in the SuperShuttle Financial Statements are sufficient for all accrued
and unpaid taxes as of the dates of such balance sheets; SuperShuttle has paid
all taxes due and payable by it or which it is obligated to withhold from
amounts owing to any employee, creditor, or third party; SuperShuttle has not
waived any statute of limitations in respect of taxes or agreed to any extension
of time with respect to a tax assessment or deficiency; to the best knowledge of
SuperShuttle, the assessment of any additional taxes relating to SuperShuttle
for periods for which returns have been filed is not expected; and SuperShuttle
has not received notice of any unresolved questions or claims concerning the tax
liability of SuperShuttle. SuperShuttle has not filed any consent agreement
under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code
apply to any disposition of a "subsection (f) asset" as defined in Section
341(f)(4) of the Code) owned by SuperShuttle. SuperShuttle (i) is not and has
not been a member of an affiliated group filing a consolidated federal income
tax return (other than an affiliated group the common parent of which was
SuperShuttle) and (ii) does not have any liability for taxes of any person
(other than SuperShuttle) under Treasury Regulation Section 1.1502-6 (or any
similar provision of state, local or foreign law) as a transferee or successor
by contract or otherwise. SuperShuttle is not a party to a tax sharing or
allocation agreement nor does SuperShuttle owe any amount under any such
agreement. SuperShuttle is not obligated to make any payments and is not a party
to any agreement that under certain circumstances could obligate it to make any
payments that, either in whole or in part, would be nondeductible under Sections
280G or 162 of the Code. SuperShuttle has not been a "United States real
property holding corporation" (within the meaning of Section 897(c)(2) of the
Code) at any time within the applicable period specified in Section
897(c)(1)(A)(ii) of the Code.
2.13 Contracts and Commitments.
(a) Except as set forth in the SuperShuttle Disclosure Schedule,
SuperShuttle is not a party to any agreement, contract, plan or guaranty
as set forth herein that is material to the conduct of its business as a
whole. The condition of materiality underlies each of the following items:
(i) collective bargaining agreement or contract with any 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
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on a full-time or consulting basis or relative to severance pay or
change-in-control benefits for any such person; (v) agreement or indenture
relating to the borrowing of money in excess of $100,000 or to mortgaging,
pledging or otherwise placing a lien on any assets of SuperShuttle which
has a fair market value in excess of $100,000 in the aggregate; (vi)
guaranty of any obligation for borrowed money or otherwise, other than
endorsements made for collection; (vii) lease or agreement under which it
is lessor of, or permits any third party to hold or operate, any property,
real or personal; (viii) contract or group of related contracts with the
same party for the purchase of products or services, under which the
undelivered balance of such products and services has a purchase price in
excess of $100,000; (ix) contract or group of related contracts with the
same party for the sale of products or services under which the
undelivered balance of such products or services has a sales price in
excess of $100,000; (x) other contract or group of related contracts with
the same party continuing over a period of more than twelve (12) months
from the date or dates thereof or involving more than $100,000; (xi)
material contract relating to the distribution of SuperShuttle's products;
(xii) franchise agreement; or (xiii) other agreement material to
SuperShuttle's business or not entered into in the ordinary course of
business.
(b) Except as specifically disclosed in the SuperShuttle Disclosure
Schedule: (i) SuperShuttle's relations with customers and suppliers are
current and good; (ii) since the date of the December 31, 1997
SuperShuttle Balance Sheet, no significant customer or supplier has
indicated that it will stop or materially decrease the rate of business
done with SuperShuttle, except for changes in the ordinary course of
SuperShuttle's business; (iii) SuperShuttle has performed all material
obligations required to be performed by it in connection with the
contracts or commitments described herein and SuperShuttle has not been
advised of or received any claim of default under any such contract or
commitment; (iv) SuperShuttle has no present expectation or intention of
not fully performing any obligation pursuant to any contract or
commitment; and (v) SuperShuttle has no knowledge of any breach or
anticipated breach by any other party to any contract or commitment.
2.14 Restrictions on Business Activities. Except as set forth in the
SuperShuttle Disclosure Schedule, there is no agreement (noncompete or
otherwise), commitment, judgment, injunction, order or decree to which
SuperShuttle is a party or otherwise binding on SuperShuttle which has or
reasonably could be expected to have the effect of prohibiting or impairing any
business practice of SuperShuttle.
2.15 Intellectual Property Rights.
(a) The SuperShuttle Disclosure Schedule lists all of SuperShuttle's
federal, state and foreign registrations of trademarks, service marks and
other marks, trade names or other trade rights, and all pending
applications for any such registrations, all other trademarks and other
marks, trade names and other trade rights, or in which SuperShuttle has
any interest whatsoever, and all other trade secrets and other
intellectual property rights, whether or not registered, created or used
by or on behalf of SuperShuttle, in each case relating to its business
(collectively, "Intellectual Property Rights"). The
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Intellectual Property Rights listed in the SuperShuttle Disclosure
Schedule are all those used by SuperShuttle in connection with its
business.
(b) No person has a right to receive a royalty or similar payment in
respect of any Intellectual Property Rights. SuperShuttle has no licenses
granted, sold or otherwise transferred by or to it or other agreements to
which it is a party, relating in whole or in part to any of the
Intellectual Property Rights, except as set forth in the SuperShuttle
Disclosure Schedule.
(c) SuperShuttle owns and has the sole right to use each of the
Intellectual Property Rights. None of the Intellectual Property Rights is
involved in any pending or threatened litigation. SuperShuttle has not
received any notice of invalidity or infringement of any rights of others
with respect to such Intellectual Property Rights. SuperShuttle has taken
all reasonable and prudent steps to protect the Intellectual Property
Rights from infringement by any other firm, corporation, association or
person. SuperShuttle's use of the Intellectual Property Rights is not
infringing upon or otherwise violating the rights of any third party in or
to such Intellectual Property Rights, nor has such infringement been
alleged by any third party. All of the Intellectual Property Rights are
valid and enforceable rights of SuperShuttle and will not cease to be
valid and in full force and effect by reason of the execution, delivery
and performance of this Agreement or the consummation of the transactions
contemplated by this Agreement.
2.16 Litigation. Except as set forth in the SuperShuttle Disclosure
Schedule or the SuperShuttle Financial Statements, there are no actions, suits,
proceedings, orders or investigations pending or, to the knowledge of
SuperShuttle, threatened against SuperShuttle, at law or in equity, or before or
by any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, and there is no
basis known to SuperShuttle for any of the foregoing. Except as set forth in the
SuperShuttle Disclosure Schedule, SuperShuttle has not received any opinion or
legal advice to the effect that SuperShuttle is exposed from a legal standpoint
to any material liability. No governmental entity has at any time challenged or
questioned the legal right of SuperShuttle to offer or provide any of its
services in the present manner or style thereof.
2.17 Brokers' Fees. SuperShuttle is not liable for any brokerage
commissions, finders' fees or similar compensation in connection with the
transactions contemplated by this Agreement.
2.18 Compliance With Laws; Permits; Certain Operations. SuperShuttle and
its officers, directors, agents and employees have complied in all material
respects with all applicable laws and regulations of foreign, federal, state and
local governments and all agencies thereof which affect the business or any
owned or leased properties of SuperShuttle and to which SuperShuttle may be
subject, and no claims have been filed against SuperShuttle alleging a violation
of any such law or regulation, except as set forth in the SuperShuttle
Disclosure 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
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or otherwise affecting employee health and safety. SuperShuttle has not given or
agreed to give any money, gift or similar benefit (other than incidental gifts
of articles of nominal value) to any actual or potential customer, governmental
employee or any other person in a position to assist or hinder SuperShuttle in
connection with any actual or proposed transaction. SuperShuttle holds all
material permits, licenses, certificates and other authorizations of foreign,
federal, state and local governmental agencies required for the conduct of its
business.
2.19 Disclosure. Neither this Agreement nor any of the schedules or
exhibits hereto contains any untrue statement of a material fact or omits a
material fact necessary to make the statements contained herein or therein, in
light of the circumstances in which they were made, not misleading, and there is
no fact which has not been disclosed to PTI that materially affects adversely or
could reasonably be anticipated to materially affect adversely the assets,
financial condition or operating results, customer, employee or supplier
relations, business condition or prospects, or financing arrangements of
SuperShuttle.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PTI AND THE SHAREHOLDERS
PTI and the Shareholders hereby represent and warrant to SuperShuttle and
Merger Sub as of the date hereof, and again at the Effective Time (subject to
any changes permitted or contemplated hereby), each of the following, all of
which are made jointly and severally by PTI and the Shareholders who agree to be
bound to and liable for the representations and warranties set forth below and
all other obligations of PTI 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 "PTI Disclosure Schedule").
The PTI Disclosure Schedule describes exceptions to each applicable
representation below by section numbers corresponding to the section number of
the applicable qualified representation.
3.1 Organization and Qualification. PTI is a corporation duly organized,
validly existing and in good standing under the laws of the State of California,
and has the requisite corporate power and authority to own and operate its
properties and to carry on its business as now conducted in every jurisdiction
where the failure to do so would have a material adverse effect on its business,
properties or ability to conduct the business currently conducted by it. The
copies of the Articles of Incorporation and Bylaws of PTI previously furnished
to SuperShuttle are correct and complete and reflect all amendments thereto.
3.2 Authority Relative to This Agreement. PTI 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 PTI and
the consummation by PTI of the transactions contemplated hereby have been duly
authorized by PTI, and no other corporate proceedings on the part of PTI 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 PTI and, assuming the due authorization and delivery thereof by
SuperShuttle and Merger Sub, constitutes a valid and binding obligation of PTI,
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization
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or other similar laws relating to the enforcement of creditors' rights generally
and by general principles of equity. Except as set forth in the PTI Disclosure
Schedule, PTI 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 PTI's
execution, delivery and performance of this Agreement and the consummation by it
of the transactions contemplated hereby. Except for such filings to be made
pursuant to the Merger Statutes in order to effect the Merger, no authorization,
consent or approval of, or filing with, any public body, court or authority is
necessary on the part of PTI for the consummation by PTI of the transactions
contemplated by this Agreement.
3.3 Capitalization. The authorized equity capitalization of PTI consists
of 1,000,000 shares of Common Stock. As of the date hereof, 5,000 shares of
Common Stock are issued and outstanding, all of which shares are validly issued,
fully paid and nonassessable. All of the issued and outstanding shares of Common
Stock of PTI are owned by the Shareholders. Except as set forth in Section 3.3
of the PTI Disclosure Schedule, there are no options, warrants, conversion
privileges or other rights, agreements, arrangements or commitments obligating
PTI 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 PTI. No holders of outstanding shares of PTI Common Stock are
entitled to any preemptive or other similar rights. There are no obligations,
contingent or otherwise, of PTI to repurchase, redeem or otherwise acquire any
shares of PTI or to provide funds to or make any investment (in the form of a
loan, capital contribution or otherwise) in any entity other than guarantees of
bank obligations of subsidiaries entered into in the ordinary course of
business. Upon consummation of the Merger, SuperShuttle will own, directly or
indirectly, the entire equity interest in PTI, and there will be no options,
warrants, conversion privileges or other rights, agreements, arrangements or
commitments obligating PTI to issue or sell any shares of capital stock of PTI
or any other corporation.
3.4 Financial Statements. The consolidated financial statements of PTI for
the fiscal years ended December 31, 1995, 1996 and 1997, and for the interim
period ended February 28, 1998, (the "PTI Financial Statements") have been
delivered to SuperShuttle and were prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved and present fairly and accurately the consolidated financial
position, results of operations, and cash flows of PTI as of the dates and for
the periods indicated therein, subject, in the case of unaudited interim
statements, to normal year-end accounting adjustments.
3.5 Subsidiaries. Except as set forth in the PTI Disclosure Schedule, PTI
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.
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3.6 Absence of Undisclosed Liabilities. PTI has no obligations or
liabilities (whether accrued, absolute, contingent, liquidated, unliquidated or
otherwise, whether due or to become due and regardless of when asserted), except
(a) obligations under contracts or commitments described in Section 3.6 of the
PTI Disclosure Schedule; (b) liabilities reflected on the balance sheet of PTI
as of February 28, 1998 (the "February 28, 1998 PTI Balance Sheet") included in
the PTI Financial Statements; (c) liabilities which have arisen in the ordinary
course of business after December 31, 1997 (none of which is an uninsured
liability for breach of contract, breach of warranty, tort, infringement, claim
or lawsuit); and (d) liabilities which are not material in scope or amount.
3.7 No Material Adverse Changes. Except as set forth in the PTI Disclosure
Schedule, since December 31, 1997, there has not been any material adverse
change in the assets, financial condition or operating results of PTI, taken as
a whole.
3.8 Absence of Certain Developments. Except as set forth in the PTI
Disclosure Schedule or except as contemplated in this Agreement, since December
31, 1997, PTI 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 PTI's business and in a manner and
in amounts that are in keeping with the historical practice of PTI;
(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 PTI with a fair market value in excess of
$25,000 in the aggregate, except 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 PTI) any
tangible assets, except in the ordinary course of business;
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(h) sold, assigned or transferred (including, without limitation,
transfers to any employees, shareholders or affiliates of PTI) any
patents, trademarks, trade names, copyrights, trade secrets or other
intangible assets, or disclosed any proprietary or confidential
information, to any person other than SuperShuttle or Merger Sub, except
in the ordinary course of business;
(i) materially changed the pricing or royalties set or charged by
PTI 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 PTI;
(j) canceled, waived or compromised any right, claim or debt, other
than the write-off or compromise of any account receivable in the ordinary
course of business and consistent with past practice;
(k) suffered any material theft, damage, destruction or loss of or
to any property or properties owned or used by it, whether or not covered
by insurance;
(l) increased the annualized level of compensation of or granted any
extraordinary bonuses, benefits or other forms of direct or indirect
compensation to any employee, officer, director or consultant, or
terminated, amended or otherwise modified any plans for the benefit of
employees, except in the ordinary course of business and consistent with
historical adjustments to such compensation and benefits;
(m) made any capital expenditures or commitments therefor, that
aggregate in excess of $25,000;
(n) made any loans or advances to, or guarantees for the benefit of,
any persons (other than advances to sales personnel in the ordinary course
of business);
(o) engaged or agreed to engage in any extraordinary transactions or
distributions, or, except in the ordinary course of business, entered into
any contract, written or oral, that involves consideration or performance
by PTI of a value exceeding $25,000 or a term exceeding twelve (12)
months; or
(p) taken any other action or entered into any other transaction
other than in the ordinary course of business and in accordance with past
custom and practice, or entered into any transaction with any Insider (as
defined in Section 3.21).
3.9 Title to and Condition of Properties.
(a) PTI owns good and marketable title to the properties and assets
reflected on the December 31, 1997 PTI 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 PTI Disclosure Schedule, (C) the
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properties subject to the leases set forth in Section 3.9(a) of the PTI
Disclosure Schedule, and (D) assets disposed of since December 31, 1997,
in the ordinary course of business.
(b) (i) PTI does not own any real estate; (ii) the properties
subject to the real property leases described in Section 3.9(b) of the PTI
Disclosure Schedule constitute all of the real estate used or occupied by
PTI (the "PTI Real Estate"), and (iii) PTI Real Estate has access,
sufficient for the conduct of PTI'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 PTI.
(c) The real property leases described in Section 3.9(c) of the PTI
Disclosure Schedule are in full force and effect, and PTI has a valid and
existing leasehold interest under each such lease for the term set forth
therein. PTI 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. PTI is not in default, and no
circumstances exist which could result in such default, under any of such
leases, nor, to the knowledge of PTI, is any other party to any of such
leases in default.
(d) All of the buildings, machinery, equipment and other tangible
assets necessary for the conduct of PTI's business are in good condition
and repair, ordinary wear and tear excepted, and are usable in the
ordinary course of business. A complete list of all items of machinery and
equipment used in the business of PTI is included as Section 3.9(d) of the
PTI Disclosure Schedule. PTI owns or leases under valid leases, all
buildings, machinery, equipment and other tangible assets necessary for
the conduct of its business. PTI has delivered to SuperShuttle complete
and accurate copies of all equipment leases and such leases are listed in
the PTI 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. PTI is not in default,
and no circumstances exist which could result in such default, under any
of such equipment leases, nor, to the knowledge of PTI, is any other party
to any of such equipment leases in default.
(e) PTI 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 PTI 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 PTI.
3.10 Environmental Matters. Except as set forth in the PTI Disclosure
Schedule, PTI (i) has obtained all applicable permits, licenses and other
authorizations (a list of which is set forth in the PTI 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
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handling of pollutants, contaminants or hazardous or toxic materials or wastes
by PTI (or its agents); (ii) is in compliance with all terms and conditions of
any required permits, licenses and authorizations, and with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in such laws or in any
regulation, code, plan, order, decree, judgment, notice or demand letter issued,
entered, promulgated or approved thereunder; (iii) is not aware of nor has it
received notice of any event, condition, circumstance, activity, practice,
incident, action or plan which is reasonably likely to interfere with or prevent
continued compliance with or which would give rise to any common law or
statutory liability, or otherwise form the basis of any claim, action, suit or
proceeding, based on or resulting from PTI's (or any agent's) manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling, or the emission, discharge, or release into the environment, of any
pollutant, contaminant, or hazardous or toxic material or waste; and (iv) has
taken all actions necessary under applicable requirements of such federal, state
or local laws, rules or regulations to register any products or materials
required to be registered by PTI (or its agents) thereunder; and (v) has neither
disposed of nor handled any hazardous substance.
3.11 Accounts Receivable. PTI's notes and accounts receivable recorded on
the February 28, 1998 PTI Balance Sheet and those arising since the date thereof
are valid and collectible in accordance with their terms, subject to no valid
counterclaims or setoffs, other than to the extent of the reserves set forth on
the books and records of PTI or as disclosed in the PTI Disclosure Schedule. All
such accounts receivable of PTI 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 PTI Disclosure Schedule, PTI
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 PTI (whether or not shown on any tax
return) for all periods prior to the Effective Time have been paid; PTI's
reserves and provisions for taxes on the balance sheets included in the PTI
Financial Statements are sufficient for all accrued and unpaid taxes as of the
dates of such balance sheets; PTI 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; PTI has not waived any statute of limitations in respect of
taxes or agreed to any extension of time with respect to a tax assessment or
deficiency; to the best knowledge of PTI, the assessment of any additional taxes
relating to PTI for periods for which returns have been filed is not expected;
and PTI has not received notice of any unresolved questions or claims concerning
the tax liability of PTI. PTI 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 PTI. PTI (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 PTI) and (ii) does not have any liability
for taxes of any person (other than PTI) 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. PTI is not a party to a tax
sharing or allocation agreement nor does PTI owe any amount under any such
agreement. PTI 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
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that, either in whole or in part, would be nondeductible under Sections 280G or
162 of the Code. PTI has not been a "United States real property holding
corporation" (within the meaning of Section 897(c)(2) of the Code) at any time
within the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
3.13 Contracts and Commitments.
(a) Except as set forth in the PTI Disclosure Schedule, PTI 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 PTI 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 PTI's products; (xii)
franchise agreement; or (xiii) other agreement material to PTI's business
or not entered into in the ordinary course of business.
(b) PTI has attached to the PTI Disclosure Schedule or otherwise
furnished to SuperShuttle a true and correct copy of each written contract
or commitment, and a written description of each oral contract or
commitment, referred to in this Section 3.13, together with all
amendments, waivers or other changes thereto.
(c) Except as specifically disclosed in the PTI Disclosure Schedule:
(i) PTI's relations with customers and suppliers are current and good;
(ii) since the date of the December 31, 1997 PTI Balance Sheet, no
significant customer or supplier has indicated that it will stop or
materially decrease the rate of business done with PTI, except for changes
in the ordinary course of PTI's business; (iii) PTI has performed all
material obligations required to be performed by it in connection with the
contracts or commitments described herein and PTI has not been advised of
or received any claim of default under any such contract or commitment;
(iv) PTI has no present expectation or intention of not fully performing
any obligation pursuant to any contract or commitment; and (v) PTI has no
knowledge of any breach or anticipated breach by any other party to any
contract or commitment.
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3.14 Restrictions on Business Activities. Except as set forth in the PTI
Disclosure Schedule, there is no agreement (noncompete or otherwise),
commitment, judgment, injunction, order or decree to which PTI is a party or
otherwise binding on PTI which has or reasonably could be expected to have the
effect of prohibiting or impairing any business practice of PTI.
3.15 Intellectual Property Rights.
(a) The PTI Disclosure Schedule lists all of PTI'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 PTI 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 PTI, in each case relating
to its business (collectively, "Intellectual Property Rights"). The
Intellectual Property Rights listed in the PTI Disclosure Schedule are all
those used by PTI in connection with its business.
(b) No person has a right to receive a royalty or similar payment in
respect of any Intellectual Property Rights. PTI has no licenses granted,
sold or otherwise transferred by or to it or other agreements to which it
is a party, relating in whole or in part to any of the Intellectual
Property Rights, except as set forth in the PTI Disclosure Schedule.
(c) PTI owns and has the sole right to use each of the Intellectual
Property Rights. None of the Intellectual Property Rights is involved in
any pending or threatened litigation. PTI has not received any notice of
invalidity or infringement of any rights of others with respect to such
Intellectual Property Rights. PTI has taken all reasonable and prudent
steps to protect the Intellectual Property Rights from infringement by any
other firm, corporation, association or person. PTI's use of the
Intellectual Property Rights is not infringing upon or otherwise violating
the rights of any third party in or to such Intellectual Property Rights,
nor has such infringement been alleged by any third party. All of the
Intellectual Property Rights are valid and enforceable rights of PTI and
will not cease to be valid and in full force and effect by reason of the
execution, delivery and performance of this Agreement or the consummation
of the transactions contemplated by this Agreement.
3.16 Litigation. Except as set forth in the PTI Disclosure Schedule, there
are no actions, suits, proceedings, orders or investigations pending or, to the
knowledge of PTI, threatened against PTI, at law or in equity, or before or by
any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, and there is no
basis known to PTI for any of the foregoing. Except as set forth in the PTI
Disclosure Schedule, PTI has not received any opinion or legal advice to the
effect that PTI is exposed from a legal standpoint to any material liability. No
governmental entity has at any time challenged or questioned the legal right of
PTI to offer or provide any of its services in the present manner or style
thereof.
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3.17 Brokers' Fees. PTI is not liable for any brokerage commissions,
finders' fees or similar compensation in connection with the transactions
contemplated by this Agreement.
3.18 Employment. Except as set forth in the PTI Disclosure Schedule: (i)
no key executive employee of PTI and no group of PTI's other employees has any
plans to terminate his, her or its employment; (ii) PTI has no material labor
relations problems pending; and (iii) its labor relations are satisfactory in
all material respects. PTI has complied in all material respects with all laws
relating to the employment of labor, including provisions thereof relating to
wages, hours, equal opportunity and collective bargaining, and has paid all
social security and other similar taxes.
3.19 Employee Benefit Plans.
(a) With respect to the employees and former employees of PTI,
except as set forth in the PTI Disclosure Schedule, PTI does not presently
maintain, contribute to or have any liability (including current or
potential multi-employer plan withdrawal liability under ERISA) under any
(i) nonqualified deferred compensation or retirement plan or arrangement
which is an "employee pension benefit plan" as such term is defined in
Section 3(2) of ERISA, (ii) defined contribution retirement plan or
arrangement designed to satisfy the requirements of Section 401(a) of the
Code, which is an employee pension benefit plan, (iii) defined benefit
pension plan or arrangement designed to satisfy the requirements of
Section 401(a) of the Code, which is an employee pension benefit plan,
(iv) "multi-employer plan" as such term is defined in Section 3(37) of
ERISA, (v) unfunded or funded medical, health or life insurance plan or
arrangement for present or future retirees or present or future terminated
employees which is an "employee welfare benefit plan" as such term is
defined in Section 3(1) of ERISA, except as required by Section 4980B of
the Code or Sections 601 through 609 of ERISA, or (vi) any other employee
welfare benefit plan.
(b) With respect to each of the employee benefit plans listed in the
PTI Disclosure Schedule, PTI has furnished to SuperShuttle true and
complete copies of (i) the plan documents (including any related trust
agreements), (ii) the most recent determination letter received from the
Internal Revenue Service, (iii) the latest actuarial valuation, (iv) the
latest financial statement, (v) the last Form 5500 Annual Report, and (vi)
all related trust agreements, insurance contracts or other funding
agreements which implement such employee benefit plan. Neither PTI nor any
of its directors, officers, employees or any other "fiduciary," as such
term is defined in Section 3(21) of ERISA, has any liability for failure
to comply with ERISA or the Code for any action or failure to act in
connection with the administration or investment of such plans.
(c) With respect to each plan listed in the PTI Disclosure Schedule:
(i) PTI has performed in all material respects all obligations required to
be performed by it under each such plan and each such plan has been
established and maintained in all material respects in accordance with its
terms and in compliance with all applicable laws, statutes, rules, and
regulations, including but not limited to the Code and ERISA; (ii) there
are no actions, suits or claims pending or, to the knowledge of PTI,
threatened (other than
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routine claims for benefits) against any such plan; (iii) each such plan
can be amended or terminated after the Effective Time in accordance with
its terms, without liability to PTI; and (iv) there are no inquiries or
proceedings pending or, to the knowledge of PTI, threatened by the
Internal Revenue Service or the Department of Labor with respect to any
such plan.
(d) With respect to the insurance contracts or funding agreements
which implement any of the employee benefit plans listed in the PTI
Disclosure Schedule, such insurance contracts or funding agreements are
fully insured or the reserves under such contracts are sufficient to pay
claims incurred.
(e) Each plan listed in the PTI Disclosure Schedule that is intended
to be qualified under Section 401(a) of the Code has been determined by
the Internal Revenue Service to so qualify and each trust created
thereunder has been determined by the Internal Revenue Service to be
exempt from tax under Section 501(a) of the Code and, to the knowledge of
PTI, nothing has occurred since the date of the most recent determination
that would be reasonably likely to cause any such plan or trust to fail to
qualify under Section 401(a) of the Code.
3.20 Insurance. The PTI Disclosure Schedule lists and briefly describes
each insurance policy and fidelity bond currently maintained by PTI as well as
each such policy and bond maintained by it for the five years prior to the date
of this Agreement, with respect to its properties, assets, employees and
officers and directors and sets forth the date of expiration of each insurance
policy. All insurance policies listed as currently maintained are in full force
and effect and PTI 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 PTI 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. PTI has no knowledge of any threatened termination of, or material
premium increase with respect to, any such policies. To its knowledge, the
insurance coverage of PTI is customary for corporations of similar size engaged
in similar lines of businesses.
3.21 Insider Transactions. Except as set forth herein or in the PTI
Disclosure Schedule, no officer, director or shareholder of PTI 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 PTI or any interest in any property, real, personal or
mixed, tangible or intangible, used in or pertaining to the business of PTI nor
has had any such agreement or interest for the five years prior to the date of
this Agreement. For purposes of the preceding sentence, the members of the
immediate family of an officer, director or shareholder shall consist of the
spouse, parents, children, siblings, mothers- and fathers-in-law, sons- and
daughters-in-law, and brothers- and sisters-in-law of such officer, director or
shareholder. A list of all payments made to or for the
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benefit of any Insiders during the prior five years is included within Section
3.21 of the PTI Disclosure Schedule.
3.22 Compliance With Laws; Permits; Certain Operations. PTI 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 PTI and to which PTI may be subject, and no claims have
been filed against PTI alleging a violation of any such law or regulation,
except as set forth in the PTI Disclosure Schedule. Without limiting the
generality of the foregoing, PTI 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. PTI
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 PTI in connection with any actual or proposed transaction. PTI
holds all permits, licenses, certificates and other authorizations of foreign,
federal, state and local governmental agencies required for the conduct of its
business, including specifically the permits, licenses, certificates and other
authorizations described in Section 3.22 of the PTI Disclosure Schedule.
3.23 Disclosure. Neither this Agreement nor any of the schedules or
exhibits hereto contains any untrue statement of a material fact or omits a
material fact necessary to make the statements contained herein or therein, in
light of the circumstances in which they were made, not misleading, and there is
no fact which has not been disclosed to SuperShuttle that materially affects
adversely or could reasonably be anticipated to materially affect adversely the
assets, financial condition or operating results, customer, employee or supplier
relations, business condition or prospects, or financing arrangements of PTI.
3.24 Minute Books. The minute books of PTI shall be made available to
counsel for SuperShuttle and those delivered shall be the only minute books of
PTI 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 PTI.
ARTICLE 4
ADDITIONAL REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
Each of the Shareholders hereby represents and warrants to SuperShuttle
and Merger Sub as of the date hereof, and again at the Effective Time, with
respect to itself each of the following:
4.1 Organization, Standing and Authority of Shareholders. The Shareholder
has all requisite power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby.
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4.2 Execution and Delivery; No Conflicts.
(a) This Agreement has been duly executed and delivered by
Shareholder and the agreements of Shareholder contained herein constitute
the valid and binding obligations of the Shareholder, enforceable against
Shareholder in accordance with their terms, except as the same may be
limited by bankruptcy, insolvency, reorganization, moratorium, other laws
affecting generally the enforcement of creditors' rights, or by public
policy related to the availability of equitable remedies.
(b) The execution, delivery and performance of this Agreement by
Shareholder and the consummation of the transactions contemplated hereby
(i) have been duly and validly authorized by all necessary action on the
part of the Shareholder; and (ii) are not prohibited by, do not violate
any provision of, and will not result in the breach of, or accelerate or
permit the acceleration of the performance required by the terms of any
applicable law, rule, regulation, judgment, decree, order or other
requirement of the United States or any state of the United States, or any
court, authority, department, commission, board, bureau, agency or
instrumentality of either thereof, in a manner which would have a material
adverse affect on the ability of the Shareholder to enter into and
consummate this Agreement, or any material contract, indenture, agreement
or commitment to which Shareholder is a party or is bound in a manner
which would have a material adverse affect on Shareholder.
4.3 Consents and Approvals. The execution, delivery and performance by
Shareholder of this Agreement and the consummation by Shareholder of the
transactions contemplated hereby do not require Shareholder to obtain any
consent, approval or action of, or make any filing with or give any notice to,
any corporation, person or firm or any public, governmental or judicial
authority except: (a) such as have been duly obtained or made, as the case may
be, and are in full force and effect on the date hereof; and (b) those which the
failure to obtain would have no material adverse affect on the transactions
contemplated hereby.
4.4 Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by Shareholder directly
with the other parties hereto, without the intervention of any person on behalf
of Shareholder in such manner as to give rise to any claim by any person against
the Company, PTI 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 the Securities Act of 1933 (the "Securities Act"), as
amended, or of any applicable state securities law regulating the disposition
thereof. Shareholder agrees that the certificates representing the securities
shall bear legends to the effect that such securities have not been registered
under the Securities Act or any applicable state securities laws and that no
interest
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therein may be transferred or otherwise disposed of in violation of the
provisions thereof or of the rules and regulations issued thereunder.
4.6 Shareholder Experience and Investment Representations.
(a) The Shareholder is able to bear the economic risk of an
investment in the securities acquired by it pursuant to this Agreement and
can afford to sustain a total loss on such investment.
(b) The Shareholder is an experienced and sophisticated investor and
has such knowledge and experience in financial and business matters that
it is capable of evaluating the risks and merits of acquiring the
SuperShuttle securities. The Shareholder has not been formed or organized
for the specific purpose of acquiring the securities. The Shareholder has
had, during the course of this transaction and prior to its acquisition of
the SuperShuttle securities, the opportunity to ask questions of, and
receive answers from, SuperShuttle and its management concerning
SuperShuttle and the terms and conditions of this Agreement. The
Shareholder hereby acknowledges that it or its representatives has
received all such information as it considers necessary for evaluating the
risks and merits of acquiring the securities and for verifying the
accuracy of any information furnished to it or to which it had access. The
Shareholder represents and warrants that the nature and amount of the
securities it is purchasing is consistent with its investment objectives,
abilities and resources.
(c) The Shareholder, by reason of its business or financial
experience and the business or financial experience of its professional
advisors (who are unaffiliated with and who are not compensated by the
Company or any affiliate or selling agent of the Company, directly or
indirectly), has the capacity to protect its own interest in connection
with the purchase of the securities. The Shareholder has consulted with
counsel of its own choosing in making an informed decision with respect to
the Merger consideration and the terms of this Agreement.
(d) The Shareholder is an "accredited investor" as defined in and
for purposes of Rule 501 and Regulation D promulgated by the Securities
and Exchange Commission ("SEC") under the Securities Act.
ARTICLE 5
CONDUCT PENDING AND SUBSEQUENT TO THE MERGER
5.1 Conduct of Business Pending the Merger. PTI 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) PTI (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
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its business organization and goodwill, keep available the services of its
officers and employees as a group and maintain satisfactory relationships
with suppliers, distributors, customers and others having business
relationships with it;
(b) PTI (i) shall confer on a regular basis and upon demand with
representatives of SuperShuttle and report operational matters and the
general status of ongoing operations; (ii) shall notify SuperShuttle of
any emergency or other change in the normal course of its business or in
the operation of its properties and of any governmental or third party
complaints, investigations or hearings (or communications indicating that
the same may be contemplated); and (iii) shall not take any action which
would render, or which reasonably may be expected to render, any
representation or warranty made by it in this Agreement untrue at, or at
any time prior to, the Effective Time;
(c) PTI 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) PTI shall not, directly or indirectly, enter into or modify any
contract, agreement or understanding, written or oral, that involves
consideration or performance of PTI, 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) PTI shall not enter into or modify any employment, severance or
similar agreements or arrangements with, or grant any bonuses, salary
increases, or severance or termination pay to, any officers, directors,
employees or consultants other than in the ordinary course of business and
consistent with past practice;
(f) PTI shall not adopt or amend in any material respect any bonus,
profit sharing, compensation, stock option, pension, retirement, deferred
compensation,
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employment or other benefit plan, trust, fund or group arrangement for the
benefit or welfare of any officers, directors or employees; and
(g) PTI shall not allow its current insurance policies to be
canceled or terminated or any of the coverage thereunder to lapse, unless
simultaneous with such termination, cancellation or lapse, replacement
policies providing coverage equal to or greater than the coverage under
the canceled, terminated or lapsed policies for substantially similar
premiums are in full force and effect.
5.2 Conduct Subsequent to the Merger.
(a) SuperShuttle agrees and covenants to use its best efforts to
consummate an initial public offering of SuperShuttle Common Stock within
a reasonable period of time, which shall not exceed 130 days from the date
of this Agreement. If SuperShuttle does not consummate an initial public
offering of SuperShuttle Common Stock within such period, the Shareholders
shall have the right to repurchase, at fair market value, all of the
shares of PTI Common Stock transferred to SuperShuttle. PTI will be
responsible for payment of its own and its Shareholders' fees and expenses
in connection with the exercise of such repurchase right. Each of
SuperShuttle and PTI agree that if the Shareholders exercise the
repurchase right referenced above, the exchange of PTI's SuperShuttle
Common Stock for PTI Common Stock will occur with no liability on the part
of SuperShuttle as to the condition of PTI during the time SuperShuttle
was in possession of the PTI Common Stock.
(b) Until the earlier of (a) an underwritten public offering by
SuperShuttle of its common stock pursuant to an effective registration
statement under the Securities Act, or (b) 60 days after July 31, 1998,
SuperShuttle shall (i) not cause the Surviving Corporation to make any
material changes in its business, operations, facilities or personnel
unless such change is approved by the holders of a majority of the stock
issued pursuant to Section 1.5(a), (ii) shall use its best efforts to
preserve intact the business organization and goodwill of the Surviving
Corporation, (iii) will not cause the Surviving Corporation to take any of
the actions described in Section 5.1(c) and (iv) shall devote reasonable
financial and personnel resources to the Surviving Corporation.
(c) Each of SuperShuttle and PTI covenant and agree that
SuperShuttle shall have the right (for thirty (30) days following the
applicable target date) to repurchase, at fair market value, all of the
SuperShuttle Common Stock to be transferred to PTI in connection with the
Merger, if either of the conditions in Section 7.4 are not satisfied.
Supershuttle will be responsible for payment of its own fees and expenses
in connection with the exercise of such repurchase right.
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(d) The parties intend to effect the Merger as a tax-free
reorganization. SuperShuttle undertakes to do all things reasonably
necessary to effect the transaction in a tax-free manner as requested by
PTI, provided such actions do not affect the underlying economics of the
transaction for SuperShuttle. However, SuperShuttle shall not be
responsible for any set of circumstances that affect the tax-free nature
of the transaction.
(e) SuperShuttle agrees to undertake to remove the Shareholders as
personal guarantors of any and all loans and leases of the Surviving
Corporation and to replace the Shareholders as the guarantors of such
obligations, provided that there has been no personal wrongdoing or
misrepresentation on the part of the Shareholders in connection with such
obligations. This assumption of personal guarantees will take effect upon
the later of (a) an underwritten public offering by SuperShuttle of its
common stock pursuant to an effective registration statement under the
Securities Act or (b) 60 days after July 31, 1998. Unless and until such
personal guarantees of Shareholders have been removed, SuperShuttle agrees
to indemnify, defend and hold harmless the Shareholders from and against
any and all claims, damages and expenses arising from or related to such
personal guarantees.
ARTICLE 6
ADDITIONAL AGREEMENTS
6.1 Shareholders' Meeting. PTI shall promptly after the date hereof, take
all action necessary in accordance with California Law and its Articles of
Incorporation and Bylaws to convene a meeting of the Shareholders to consider
the Merger (the "PTI Shareholders Meeting") (or solicit the written consent of
the Shareholders to the Merger). PTI shall consult SuperShuttle as to the date
of the PTI Shareholders Meeting (or the date written consents are expected to be
requested) and shall not postpone or adjourn (other than for the absence of a
quorum) the PTI Shareholders Meeting without the consent of SuperShuttle. PTI
shall use its reasonable best efforts to secure the vote (or consent) of the
Shareholders required by California Law to effect the Merger. PTI has received
irrevocable consents from the Shareholders executing this Agreement to approve
the Merger and by their signatures below the Shareholders agree to all acts and
things necessary to effect the Merger on the terms hereof.
6.2 Expenses. Each of SuperShuttle, the Shareholders and PTI shall bear
their own legal and accounting fees and other expenses relating to this
transaction. In addition, PTI will bear the expenses associated with the conduct
of the required accounting audit of its books and records relating to this
transaction.
6.3 No Negotiations. Until March 31, 1998, or such later date as the
parties may mutually agree, PTI and the Shareholders agree that neither they nor
PTI's directors, officers, employees or agents (i) shall solicit, negotiate or
accept any offers for the sale of PTI 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. PTI 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 PTI.
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6.4 Notification of Certain Matters. SuperShuttle and PTI shall give
prompt notice to each other of (i) the occurrence or failure to occur of any
event, which occurrence or failure would be likely to cause any representation
or warranty on its part contained in this Agreement to be untrue or inaccurate
at, or at any time prior to, the Effective Time, and (ii) any material failure
of such party, or any officer, director, shareholder, employee or agent thereof,
to comply with or satisfy any covenant, condition or agreement to be complied
with or satisfied by it hereunder.
6.5 Access to Information; Confidentiality.
(a) Until March 31, 1998, or the Effective Time each of SuperShuttle
and Merger Sub shall have the opportunity to make a complete review of the
books, records, business and affairs of PTI. Such review may be conducted
at any and all reasonable times by such persons as SuperShuttle
designates. To facilitate such review, PTI shall provide to SuperShuttle
and its agents complete access to all of its records and documents, shall
provide the other party with personal, bank and professional references,
and shall use reasonable efforts to make available for consultation
customers, employees, suppliers and distribution channels.
(b) Each of SuperShuttle, Merger Sub and PTI 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 PTI
on March 2, 1998.
6.6 Consents; Approvals. SuperShuttle, Merger Sub and PTI 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, Merger Sub and PTI shall furnish all information required
to be included for any application or filing to be made pursuant to the rules
and regulations of any applicable governmental body in connection with the
transactions contemplated by this Agreement.
6.7 Supplements to Disclosure Schedules. From time to time prior to the
Effective Time, SuperShuttle and PTI 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).
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6.8 Non-Solicitation of Employees. For a period of one year from the date
hereof, no party shall solicit, negotiate with or hire any employee of the other
party.
6.9 Election of Directors. SuperShuttle shall promptly after the date
hereof take all action necessary in accordance with Delaware Law and its
Certificate of Incorporation and Bylaws to (i) increase, effective as of the
Effective Time, the number of directors serving on the SuperShuttle Board of
Directors to accommodate the election of one (1) designee of PTI and (ii) elect,
effective as of the Effective Time, the one designee of PTI to SuperShuttle's
Board of Directors.
6.10 Confidential Information and Covenant Not To Compete. Each of the
Shareholders hereby covenants and agrees as follows:
(a) that until the later of a period of three years following the
consummation of the Merger transactions or following the termination of
the employment agreement referenced in Section 7.1(d), the Shareholder
shall not use or disclose, directly or indirectly, for any reason
whatsoever or in any way any confidential information or trade secrets of
PTI, SuperShuttle or Merger Sub, including by way of example, names or
descriptions of customers, financial statements, product or service
pricing or other information, contract proposals and bidding information,
and any other information of a proprietary or confidential character;
(b) that until the later of a period of three years following the
consummation of the Merger transactions or following the termination of
the employment agreement referenced in Section 7.1(d), the Shareholder
shall not, directly or indirectly, either as an employee, employer,
consultant, agent, principal, partner, stockholder, corporate officer,
director or in any other capacity whatsoever, engage or participate in any
businesses in competition in any manner whatsoever with the business of
PTI, SuperShuttle or any affiliate of either of them as such business is
presently conducted in either Orange, Los Angeles, Riverside or San Diego
counties or any county contiguous thereto (the "Applicable Counties"). Not
limiting the generality of the foregoing, the business of PTI and
SuperShuttle shall be deemed to consist of the transportation, over land,
of passengers for hire, including, by way of example, transportation to
and from airports, ports or stations of embarkation for travel, but
excluding the operation of taxis. Notwithstanding the above, the business
of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as it is conducted upon the date of signature of this
Agreement is excluded from the restrictions contained in this paragraph
6.10(b) but not with respect to any business relating to shared ride
airport vans;
(c) that until the later of a period of three years following the
consummation of the Merger transactions or following the termination of
the employment agreement referenced in Section 7.1(d), the Shareholder
shall not solicit or negotiate any contract or agreement that constitutes
or would constitute engaging in competition with the business of PTI or
SuperShuttle in the Applicable Counties; and
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(d) each of the Shareholders by execution of this Agreement grants
to PTI a fully paid irrevocable license to use any and all rights and
interests in the business concept employed by PTI to the extent that they
have any interest therein, and in any name under which such businesses may
have been conducted, and agree not to undertake to conduct business
employing any such name at any place at which SuperShuttle or any of its
affiliates conduct business. To the extent that any business concept
employed by a Shareholder would involve the conduct of any form of shared
ride transportation business, the license granted to Supershuttle shall be
deemed exclusive to SuperShuttle.
In connection with the limitation protections afforded to SuperShuttle by
the covenants set forth above in this Section 6.10, the Shareholders recognize
that SuperShuttle has a need for the covenants and that need is based upon the
following:
(i) SuperShuttle's expenditure of substantial time, money and effort
in developing its business and the valuable list of customers and
information about the requirements and needs associated with the business,
including the business of PTI being acquired through the Merger;
(ii) Shareholder through the course of his or her relationship with
PTI has been or may have been entrusted with or exposed to certain trade
secrets and other confidential information, the confidentiality of which
is critical to the ongoing business of SuperShuttle, including the
business to be acquired through the Merger of PTI into Merger Sub;
(iii) SuperShuttle provides and will provide services throughout the
Applicable Counties; and
(iv) SuperShuttle would suffer great loss and irreparable harm if
the Shareholders were to violate the foregoing covenants.
The Shareholders hereby specifically acknowledge and agree that the
temporal, geographical and other restrictions contained in this Section 6.10 are
reasonable and necessary to protect the business and prospects of PTI and
SuperShuttle and that the enforcement of the provisions of this Section 6.10
will not work an undue hardship on the Shareholders. Shareholders further agree
that in the event that either the temporal, geographical or any other
restrictions, or a portion thereof, set forth in this Section 6.10 is determined
to be overly restrictive and nonenforceable, the covenants set forth shall be
reduced and modified to those which are reasonable and enforceable under the
circumstances to the fullest extent permitted under applicable law in the
judgment of the applicable court. The Shareholders acknowledge and agree that
SuperShuttle does not have an adequate remedy at law for the breach or
threatened breach of the covenants contained in this Section 6.10 and the
Shareholders therefore specifically agree that SuperShuttle may, in addition to
any other remedies which may be available hereunder or as a matter of law or in
equity, file a suit in equity to enjoin the Shareholder from the breach or
threatened breach.
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If the provisions of this Section 6.10 are held to be invalid or
unenforceable as against public policy, the remaining provisions of this
Agreement shall not be affected thereby.
ARTICLE 7
CONDITIONS
7.1 Conditions to Obligations of Each Party to Effect the Merger. The
respective obligations of each party to effect the Merger shall be subject to
the fulfillment at or prior to the Effective Time of the following conditions:
(a) this Agreement and the Merger with respect to PTI, and the
issuance of the SuperShuttle Common Stock, shall have been approved and/or
adopted, as required by applicable law and the parties'
Certificate/Articles of Incorporation and Bylaws, by the requisite vote of
the Shareholders and/or the boards of directors of SuperShuttle and PTI;
(b) no temporary restraining order, preliminary or permanent
injunction or other order issued by any court of competent jurisdiction or
other legal restraint or prohibition preventing the consummation of the
Merger shall be in effect, nor shall any proceeding brought by an
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign, seeking any of the foregoing be
pending; and there shall not be any action taken, or any statute, rule,
regulation or order enacted, entered, enforced or deemed applicable to the
Merger, which makes the consummation of the Merger illegal;
(c) no party hereto shall have terminated this Agreement as
permitted herein;
(d) SuperShuttle and ▇▇▇▇▇ ▇▇▇▇▇ shall have entered into an
Employment Agreement substantially in the form attached hereto as Exhibit
"D";
(e) SuperShuttle agrees to grant the Shareholders piggyback and
demand registration rights pursuant to the terms of the registration
rights agreement, a form of which is attached hereto as Exhibit "E";
(f) the Registration Rights Agreement and the Escrow Agreement shall
be executed and delivered by the parties on or before April 22, 1998; and
(g) all associated documents that are referenced in this Agreement,
including, but not limited to, the Employment Agreement, the Registration
Rights Agreement, the Disclosure Schedules referenced in Article 2 and
Article 3, Schedule 1.1, and the Opinion Letter referenced in Section 7.2
(k) that are not in final form when this Agreement is signed, shall be
completed in form and substance satisfactory to the parties as soon as
possible thereafter but no later than April 22, 1998.
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7.2 Additional Conditions to Obligations of SuperShuttle and Merger Sub.
The obligations of SuperShuttle and Merger Sub to effect the Merger are also
subject to the fulfillment at or prior to the Effective Time of the following
conditions:
(a) the representations and warranties of PTI 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 PTI 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 PTI); and PTI 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) PTI and the Shareholders shall have furnished to SuperShuttle a
certificate in which PTI shall certify that the conditions set forth in
Section 7.2(a) have been fulfilled;
(c) PTI shall have furnished to SuperShuttle (i) a copy of the text
of the resolutions by which the corporate action on the part of PTI
necessary to approve this Agreement and the Merger were taken and (ii)
certificates executed on behalf of PTI certifying to SuperShuttle that
such copy is a true, correct and complete copy of such resolutions and
that such resolutions were duly adopted and have not been amended or
rescinded;
(d) PTI shall have furnished to SuperShuttle (i) a balance sheet
dated a date not more than thirty days prior to the Effective Time (the
"Current Balance Sheet") and (ii) an income statement for the period from
January 1, 1998, to the date of the Current Balance Sheet;
(e) no Shareholder shall have exercised dissenter's rights;
(f) there shall have been no material adverse change in the
business, assets, properties, financial condition or operating results of
PTI;
(g) PTI shall have obtained each consent and approval necessary in
order that the Merger and the transactions contemplated herein not
constitute a breach or violation of, or result in a right of termination
or acceleration or any encumbrance on any of PTI's assets pursuant to the
provisions of any material agreement, arrangement or understanding or any
material license, franchise or permit;
(h) there shall have been no damage, destruction or loss of or to
any property or properties owned or used by PTI, whether or not covered by
insurance, which in the aggregate has had or is reasonably likely to have
a material adverse effect on PTI;
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(i) there shall not have been instituted, pending or threatened any
action or proceeding (or any investigation or other inquiry that might
result in such an action or proceeding) by any governmental authority or
administrative agency before any governmental authority, administrative
agency or court of competent jurisdiction, nor shall there be in effect
any judgment, decree or order of any governmental authority,
administrative agency or court of competent jurisdiction, in either case,
seeking to prohibit or limit SuperShuttle from exercising the material
rights and privileges pertaining to its ownership of the Surviving
Corporation or the ownership or operation by SuperShuttle or any of its
subsidiaries of all or a material portion of the business or assets of
SuperShuttle or any of its subsidiaries, or seeking to compel SuperShuttle
or any of its subsidiaries to dispose of or hold separate all or any
material portion of the business or assets of SuperShuttle or any of its
subsidiaries, as a result of the Merger or the transactions contemplated
by this Agreement;
(j) SuperShuttle shall have otherwise been reasonably satisfied with
all of its due diligence;
(k) SuperShuttle shall have received an opinion of counsel of PTI in
form and substance reasonably acceptable to SuperShuttle; and
(l) All of the transactions contemplated by Schedule 1.1 shall have
been consummated or shall be simultaneously consummated with the Effective
Time in a manner reasonably acceptable to SuperShuttle and as contemplated
by Schedule 1.1.
Notwithstanding the failure of any condition in this Section 7.2, SuperShuttle
may conditionally waive the failed condition and consummate the transaction, but
shall be entitled to pursue adequate and appropriate reimbursement for all
costs, damages and liabilities in connection with the failed condition and may
withhold such of the Merger consideration as SuperShuttle deems reasonably
appropriate to assure payment of the costs, damages and liabilities associated
with the failed condition.
7.3 Additional Conditions to Obligation of PTI. The obligation of PTI to
effect the Merger is also subject to the fulfillment at or prior to the
Effective Time of the following conditions:
(a) the representations and warranties of SuperShuttle and Merger
Sub set forth in Article 2 shall be true and correct in all material
respects as of the Effective Time as if made at and as of the Effective
Time (subject to any changes permitted or contemplated hereby and except
for the updating or correction of the disclosures in the SuperShuttle
Disclosure Schedule which do not reflect any change that is reasonably
likely to have a material adverse effect on the assets, liabilities,
business, results of operations, financial condition or prospects of
SuperShuttle and its subsidiaries, taken as a whole) and each of
SuperShuttle and Merger Sub shall in all material respects have performed
each obligation and agreement and complied with each covenant to be
performed and complied with by it hereunder at or prior to the Effective
Time;
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(b) SuperShuttle shall have furnished to PTI a certificate in which
SuperShuttle and Merger Sub shall certify that the conditions set forth in
Section 7.3(a) have been fulfilled;
(c) SuperShuttle shall have furnished to PTI (i) a copy of the text
of the resolutions by which the corporate actions on the part of
SuperShuttle and Merger Sub necessary to approve this Agreement and the
Merger were taken and (ii) certificates executed on behalf of SuperShuttle
and Merger Sub by their respective corporate secretaries or one of their
respective assistant corporate secretaries certifying to PTI, in each
case, that such copy is a true, correct and complete copy of such
resolutions and that such resolutions were duly adopted and have not been
amended or rescinded;
(d) SuperShuttle shall have obtained each consent and approval
necessary in order that the Merger and the transactions contemplated
herein not constitute a breach or violation of, or result in a right of
termination or acceleration or any encumbrance on any of SuperShuttle's
assets pursuant to the provisions of any material agreement, arrangement
or understanding or any material license, franchise or permit; and
(e) all corporate action necessary by SuperShuttle to elect, as of
the Effective Time and as contemplated by Section 6.9 hereof, the one
designee of PTI to SuperShuttle's Board of Directors, shall have been duly
and validly taken.
7.4 Conditions Subsequent to the Merger. The following are conditions
subsequent to the Merger. In the event that these conditions are not satisfied,
SuperShuttle shall, at its discretion, have the right to exercise the repurchase
right set forth at Section 5.2(c).
(a) the obtaining, by July 31, 1998, of all consents necessary by
reason of any change of control provisions in any license, permit or third
party contract material to the business of PTI; and
(b) the approval of the PUC of the change of control of PTI by July
31, 1998 in a manner reasonably acceptable to SuperShuttle.
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 PTI;
(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 PTI if a court of competent
jurisdiction or governmental, regulatory or administrative agency or
commission shall have issued an order, decree or ruling or taken any other
action, in each case having the effect of permanently restraining,
enjoining or otherwise prohibiting the Merger;
(d) by either SuperShuttle or PTI if the Merger shall not have been
consummated on or before March 31, 1998, or such later date as may be
mutually agreed upon by the parties;
(e) by SuperShuttle, if the conditions set forth in Section 7.2
hereof shall have not been complied with or performed and such
noncompliance or nonperformance shall not have been cured or eliminated
(or by its nature cannot be cured or eliminated) by PTI on or before March
31, 1998; or
(f) by PTI, if the conditions set forth in Section 7.3 hereof shall
not have been complied with or performed and such noncompliance or
nonperformance shall not have been cured or eliminated (or by its nature
cannot be cured or eliminated) by SuperShuttle and/or Merger Sub on or
before March 31, 1998;
provided, however, that no party shall have the right to terminate this
Agreement unilaterally if the event giving rise to such right shall be primarily
attributable to such party or to any affiliated party.
8.2 Effect of Termination. In the event of termination of this Agreement
as provided in Section 8.1, this Agreement shall become void and there shall be
no liability or further obligation hereunder on the part of SuperShuttle, Merger
Sub, PTI or their respective shareholders, officers or directors, except as set
forth in Sections 6.2, 6.5(b), or 6.8 hereof.
8.3 Amendment. This Agreement may not be amended except by an instrument
in writing approved by the parties to this Agreement and signed on behalf of
each of the parties hereto.
8.4 Waiver. At any time prior to the Effective Time, any party hereto may
(a) extend the time for the performance of any of the obligations or other acts
of any other party hereto or (b) waive compliance with any of the agreements of
any other party or with any conditions to its own obligations, in each case only
to the extent such obligations, agreements and conditions are intended for its
benefit.
ARTICLE 9
GENERAL PROVISIONS
9.1 Survival of Representations and Warranties. All representations and
warranties made by SuperShuttle, Merger Sub, PTI and the Shareholders in this
Agreement shall terminate as of the Effective Time or upon termination of this
Agreement as provided in Section 8.1, as the case may be.
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9.2 Public Announcements. SuperShuttle and PTI shall consult with each
other upon an agreed form of press release, and before issuing any such press
release or otherwise making any public statements with respect to the Merger or
this Agreement. Neither SuperShuttle nor PTI shall issue any such press release
or make any such public statement without the prior consent of the other party,
which shall not be unreasonably withheld.
9.3 Notices. All notices and other communications hereunder shall be in
writing and shall be sufficiently given if made by hand delivery, by telecopier,
or by registered or certified mail (postage prepaid and return receipt
requested) to the parties at the following addresses (or if such other address
for a party as shall be specified by it by like notice):
If to SuperShuttle or
Merger Sub: SuperShuttle International, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: R. ▇▇▇▇▇ ▇▇▇▇
With a copy to: Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
Two Renaissance Square
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If to PTI or the Shareholders: Preferred Transportation, Inc.
dba SuperShuttle Orange County
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
FAX: _______________
Attn: ▇▇▇▇▇ ▇▇▇▇▇
With a copy to: Petillon & ▇▇▇▇▇▇
1260 Union Bank Tower
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
PH: 310-543-0500
FAX: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
All such notices and other communications shall be deemed to have been
duly given: (i) when delivered by hand, if personally delivered; (ii) three
business days after being deposited in the mail, postage prepaid, if delivered
by mail; and (iii) when receipt is acknowledged, if telecopied.
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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 PTI Disclosure Schedule is deemed to be
set forth in all other sections of such Disclosure Schedule. Disclosure of any
fact or item in any schedule or exhibit hereto referenced by a particular
paragraph or section in this Agreement shall, should the existence of the fact
or item or its contents be relevant to any other paragraph or section, be deemed
to be disclosed with respect to that other paragraph or schedule whether or not
a specific cross reference appears. Disclosure of any fact or item in any
schedule or exhibit hereto shall not necessarily mean that such item or fact
individually is material to a party.
9.6 Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated and the court shall modify the
Agreement or, in the absence thereof, the parties shall negotiate in good faith
to modify this Agreement to preserve each party's anticipated benefits under
this Agreement.
9.7 Jurisdiction; Venue; Service of Process. The parties expressly agree
that any controversy, dispute, litigation or claim arising out of the subject
matter of this Agreement and the transactions contemplated hereby shall be
brought or commenced only in a federal or state court located in Maricopa
County, Arizona. The parties agree to be subject to the personal jurisdiction of
the federal and/or state courts situated in Maricopa County, Arizona and agree
that a claim of forum non-conveniens shall not be a defense to an action
initiated in such venues. The parties agree to the service of process of any
such courts in any such action or proceeding by registered or certified mail,
postage prepaid, return receipt requested, to the addresses listed in this
Agreement and agree that such service shall become effective thirty (30) days
after such mailing.
9.8 Waiver of Jury Trial. EACH OF SUPERSHUTTLE, MERGER SUB AND PTI 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.
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9.9 Miscellaneous. This Agreement (together with all other documents and
instruments referred to herein): (a) constitutes the entire agreement, and
supersedes all other prior agreements, representations, warranties and
undertakings, both written and oral, among the parties, with respect to the
subject matter hereof; (b) is not intended to confer upon any other person any
rights or remedies hereunder; (c) shall not be assigned by any party, except
that Merger Sub may assign all or any portion of its rights under this Agreement
to any wholly owned subsidiary of SuperShuttle, but no such assignment shall
relieve SuperShuttle of its obligations hereunder; and (d) shall be governed in
all respects, including validity, interpretation and effect, by the internal
laws of the State of Arizona, without giving effect to the principles of
conflict of laws thereof; provided, however, that the Merger shall be governed
by the Arizona Law and California Law, as appropriate. Each certificate,
agreement or other document making reference to the Agreement and Plan of
Reorganization among SuperShuttle International, Inc., SuperShuttle Acquisition
Co. I, Preferred Transportation, Inc. ("PTI") and the shareholders of PTI, dated
as of March 31, 1998, shall be deemed to refer to this Amended and Restated
Agreement and Plan of Reorganization and Merger. This Agreement may be executed
in two or more counterparts, which together shall constitute a single agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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AMENDED AND RESTATED
AGREEMENT AND PLAN OF REORGANIZATION AND MERGER
SIGNATURE PAGE
IN WITNESS WHEREOF, SuperShuttle, Merger Sub, PTI 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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇, Secretary and CFO
SUPERSHUTTLE ACQUISITION CO. I,
an Arizona corporation
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Secretary
---------------------------------------
PREFERRED TRANSPORTATION, INC.,
a California corporation
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇, President
SHAREHOLDERS OF PTI
/s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Orange County Shuttle Associates, Inc.
By
------------------------------------------
------------------------------------------
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