{"id":43093,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/agreement-and-plan-of-merger-motor-cargo-industries-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-and-plan-of-merger-motor-cargo-industries-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/agreement-and-plan-of-merger-motor-cargo-industries-inc-and.html","title":{"rendered":"Agreement and Plan of Merger &#8211; Motor Cargo Industries Inc. and Union Pacific Corp."},"content":{"rendered":"<pre>\n                        AGREEMENT AND PLAN OF MERGER\n\n                                By and Among\n\n                        MOTOR CARGO INDUSTRIES, INC.\n\n                         UNION PACIFIC CORPORATION\n\n                                    and\n\n                              MOTOR MERGER CO.\n\n\n\n\n\n\n\n\n                        Dated as of October 15, 2001\n\n\n\n\n\n\n\n                             TABLE OF CONTENTS\n\n\n                                                                        Page\n\n                                 ARTICLE I\n                                DEFINITIONS\n\nSection 1.1.      Definitions..............................................2\n\n                                 ARTICLE II\n                                 THE OFFER\n\nSection 2.1.      The Offer................................................6\n\nSection 2.2.      Company Actions..........................................9\n\nSection 2.3.      Directors of the Company................................10\n\n                                ARTICLE III\n                                 THE MERGER\n\nSection 3.1.      The Merger..............................................11\n\nSection 3.2.      The Closing; Effective Time.............................12\n\nSection 3.3.      Conversion of Securities................................12\n\nSection 3.4.      Exchange of Certificates................................13\n\nSection 3.5.      Options and Stock Appreciation Rights...................15\n\nSection 3.6.      Dissenting Shares.......................................15\n\nSection 3.7.      Articles of Incorporation and Bylaws....................16\n\nSection 3.8.      Directors and Officers..................................16\n\nSection 3.9.      Other Effects of Merger.................................16\n\n                                 ARTICLE IV\n               REPRESENTATIONS AND WARRANTIES OF THE COMPANY\n\nSection 4.1.      Organization and Qualification..........................16\n\nSection 4.2.      Capitalization..........................................17\n\nSection 4.3.      Corporate Authorization; Validity of Agreement; \n                  Company Action..........................................18\n\nSection 4.4.      Consents and Approvals; No Violations...................19\n\nSection 4.5.      SEC Reports and Financial Statements....................20\n\nSection 4.6.      Absence of Certain Changes..............................21\n\nSection 4.7.      No Undisclosed Liabilities..............................21\n\nSection 4.8.      Schedule 14D-9; Proxy Statement.........................22\n\nSection 4.9.      Employee Benefit Plans; ERISA...........................22\n\nSection 4.10.     Labor Matters...........................................25\n\nSection 4.11.     Litigation; Compliance with Law.........................27\n\nSection 4.12.     Taxes...................................................28\n\nSection 4.13.     Contracts...............................................30\n\nSection 4.14.     Environmental Matters...................................31\n\nSection 4.15.     Intellectual Property...................................32\n\nSection 4.16.     Title, Sufficiency and Condition of Assets..............35\n\nSection 4.17.     Transactions with Affiliates............................35\n\nSection 4.18.     Opinion of Financial Advisor............................35\n\nSection 4.19.     Broker's or Finder's Fee................................35\n\n                                 ARTICLE V\n          REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB\n\nSection 5.1.      Organization and Qualification..........................36\n\nSection 5.2.      Corporate Authorization; Validity of Agreement; \n                  Necessary Action........................................36\n\nSection 5.3.      Consents and Approvals; No Violations...................37\n\nSection 5.4.      Information To Be Supplied..............................38\n\nSection 5.5.      SEC Reports and Financial Statements....................38\n\nSection 5.6.      Financing...............................................39\n\nSection 5.7.      Taxes...................................................39\n\n                                 ARTICLE VI\n                                 COVENANTS\n\nSection 6.1.      Interim Operations of the Company.......................39\n\nSection 6.2.      Preparation of Proxy Statement; Company Shareholder \n                  Meeting.................................................42\n\nSection 6.3.      Access to Information...................................44\n\nSection 6.4.      No Solicitation; Acquisition Proposals..................44\n\nSection 6.5.      Modifications to Recommendations........................47\n\nSection 6.6.      HSR Act Filings; Reasonable Best Efforts................48\n\nSection 6.7.      Litigation..............................................49\n\nSection 6.8.      Certain Benefit Matters.................................49\n\nSection 6.9.      Additional Agreements...................................49\n\nSection 6.10.     Publicity...............................................50\n\nSection 6.11.     Notification of Certain Matters.........................50\n\nSection 6.12.     Directors' and Officers' Indemnification and Insurance..50\n\nSection 6.13.     Rule 145 Affiliates.....................................51\n\nSection 6.14.     Cooperation.............................................51\n\nSection 6.15.     Tax-Free Reorganization Treatment.......................52\n\nSection 6.16.     Conveyance Taxes........................................53\n\n                                ARTICLE VII\n                                 CONDITIONS\n\nSection 7.1.      Conditions to Each Party's Obligations..................53\n\nSection 7.2.      Conditions to Obligations of Parent.....................54\n\nSection 7.3.      Frustration of Conditions...............................54\n\n                                ARTICLE VIII\n                   TERMINATION AND ABANDONMENT; EXPENSES\n\nSection 8.1.      Termination.............................................54\n\nSection 8.2.      Effect of Termination and Abandonment...................55\n\nSection 8.3.      Fees and Expenses.......................................55\n\n                                 ARTICLE IX\n                               MISCELLANEOUS\n\nSection 9.1.      Amendment and Modification..............................58\n\nSection 9.2.      Waiver of Compliance; Consents..........................58\n\nSection 9.3.      Survival................................................58\n\nSection 9.4.      Notices.................................................59\n\nSection 9.5.      Binding Effect; Permitted Assignment....................60\n\nSection 9.6.      Governing Law...........................................60\n\nSection 9.7.      Submission to Jurisdiction; Waivers.....................60\n\nSection 9.8.      Waiver of Jury Trial....................................61\n\nSection 9.9.      Counterparts............................................61\n\nSection 9.10.     Interpretation..........................................61\n\nSection 9.11.     Entire Agreement........................................61\n\nSection 9.12.     Severability............................................62\n\nSection 9.13.     Third Party Beneficiaries...............................62\n\nSection 9.14.     Disclosure Schedule.....................................62\n\nAnnex A  Conditions of the Offer.........................................A-1\n\n\n\n                           INDEX OF DEFINED TERMS\n\n                                                                        Page\n\n\n Acquisition Proposal....................................................47\n affiliate...............................................................62\n Agreement................................................................1\n Antitrust Laws...........................................................2\n Articles of Merger......................................................12\n Beneficial Owner.........................................................2\n Beneficially Owning......................................................2\n Benefit Plans...........................................................23\n Certificates............................................................14\n Closing.................................................................12\n Closing Date............................................................13\n Code.....................................................................2\n Company..................................................................1\n Company Agreement.......................................................31\n Company Group...........................................................28\n Company Intellectual Property...........................................34\n Company Material Adverse Effect..........................................2\n Company Options.........................................................17\n Company Plans...........................................................17\n Company SEC Documents...................................................21\n Company Shareholder Approval............................................19\n Company Shareholder Meeting.............................................44\n Company Shares...........................................................1\n Confidentiality Agreement...............................................46\n Consent.................................................................21\n Continuing Director.....................................................11\n Conveyance Taxes........................................................54\n Copyrights..............................................................33\n Disclosure Schedule......................................................3\n Dissenting Shares.......................................................16\n Drop Dead Date..........................................................56\n Effective Time..........................................................13\n Environmental Laws.......................................................3\n Environmental Permits...................................................31\n ERISA....................................................................3\n ERISA Affiliate..........................................................3\n Exchange Act.............................................................3\n Exchange Agent..........................................................13\n Exchange Offer Consideration.............................................3\n Exchange Ratio...........................................................7\n GAAP....................................................................22\n Governmental Authority...................................................3\n Hazardous Substances.....................................................4\n HSR Act..................................................................4\n including...............................................................62\n Indebtedness.............................................................4\n Intellectual Property...................................................33\n IP Licenses.............................................................33\n knowledge...............................................................62\n Law......................................................................4\n Lien.....................................................................5\n Liquidated Amount.......................................................56\n material................................................................62\n Merger...................................................................1\n Merger Consideration....................................................13\n Merger Sub...............................................................1\n Minimum Condition........................................................1\n NASD.....................................................................5\n NYSE.....................................................................5\n Offer....................................................................1\n Offer Documents..........................................................8\n Offer Registration Statement.............................................8\n Outside Date............................................................55\n Parent...................................................................1\n Parent Common Stock......................................................1\n Parent Material Adverse Effect...........................................5\n Parent SEC Documents....................................................39\n Patents.................................................................33\n Per Share Cash Consideration.............................................7\n Permits..................................................................5\n Permitted Liens..........................................................5\n person..................................................................62\n Preliminary Prospectus...................................................8\n Proprietary Software....................................................34\n RCRA....................................................................33\n Recommendations..........................................................9\n Release..................................................................5\n Representation Letters..................................................53\n Representative...........................................................6\n Reverse Merger..........................................................53\n Rule 145 Affiliate.......................................................6\n Salary Continuation Agreements..........................................50\n Schedule 14D-9..........................................................10\n Schedule TO..............................................................8\n SEC......................................................................6\n Securities Act...........................................................6\n Shareholder Agreements...................................................1\n Shareholders.............................................................1\n Skadden Arps............................................................53\n Software................................................................34\n Subsequent Determination................................................48\n Subsequent Determination Notice.........................................48\n subsidiary..............................................................62\n Superior Proposal.......................................................47\n Surviving Corporation...................................................12\n Tax Opinion.............................................................53\n Tax Return...............................................................6\n Taxes....................................................................6\n Termination Damages.....................................................58\n Third Party..............................................................6\n Title IV Plan...........................................................24\n Trade Secrets...........................................................33\n Trademarks..............................................................33\n Transaction..............................................................6\n Treasury Regulations....................................................30\n Trigger Event...........................................................56\n URBCA....................................................................1\n Voting Debt.............................................................18\n WARN Act................................................................27\n\n\n\n\n                        AGREEMENT AND PLAN OF MERGER\n\n\n                  This Agreement and Plan of Merger (this \"Agreement\") is\nmade and entered into as of October 15, 2001, by and among Motor Cargo\nIndustries, Inc., a Utah corporation (the \"Company\"), Union Pacific\nCorporation, a Utah corporation (\"Parent\"), and Motor Merger Co., a Utah\ncorporation and wholly-owned subsidiary of Parent (\"Merger Sub\").\n\n\n                                WITNESSETH:\n\n                  WHEREAS, the respective Boards of Directors of the\nCompany, Parent and Merger Sub deem it advisable and in the best interests\nof their respective shareholders that Parent engage in a strategic business\ncombination with the Company upon the terms and subject to the conditions\nprovided for in this Agreement;\n\n                  WHEREAS, in furtherance thereof it is proposed that the\nacquisition be accomplished by Parent commencing an offer (as it may be\namended from time to time as permitted by this Agreement, the \"Offer\") to\nexchange in which each of the issued and outstanding shares of common\nstock, no par value, of the Company (the \"Company Shares\"), upon the terms\nand subject to the conditions set forth in this Agreement, may be exchanged\nfor the right to receive from Parent, at the election of the holder\nthereof: (A) 0.26 of a share of common stock, par value $2.50 per share of\nParent (\"Parent Common Stock\"), or (B) $12.10 in cash;\n\n                  WHEREAS, the Board of Directors of each of Parent (on its\nown behalf and as the sole shareholder of Merger Sub), Merger Sub and the\nCompany have each approved this Agreement and the merger of the Company\nwith and into the Merger Sub (the \"Merger\"), with the Merger Sub continuing\nas the surviving corporation in the Merger in accordance with the Utah\nRevised Business Corporation Act (\" URBCA\") and upon the terms and\nconditions set forth in this Agreement;\n\n                  WHEREAS, contemporaneously with the execution and\ndelivery of this Agreement, as a condition and inducement to Parent's\nwillingness to enter into this Agreement, Parent is entering into\nshareholder agreements with each of Harold R. Tate and Marvin L. Friedland\n(together, the \"Shareholders\"), pursuant to which, among other things, each\nShareholder is agreeing to validly tender for exchange all Company Shares\nowned by such Shareholder and elect to receive Parent Common Stock as\nconsideration for all of such shares (the \"Shareholder Agreements\"); and\n\n                  WHEREAS, the Board of Directors of the Company has\nunanimously approved the Offer and the Merger, this Agreement and the\ntransactions contemplated hereby in a manner which constitutes a directors'\naction (as defined in Section 16-10a-852 of the URBCA), and has amended the\nBylaws of the Company to provide that Chapter 6 of Title 61 of the Utah\nCode does not apply to control share acquisitions (as defined in Section\n61-6-3 of the Utah Code) of capital stock of the Company, and such\napprovals and amendment are sufficient to render Section 61-6-10 of the\nUtah Code inapplicable to the Offer and the Merger, this Agreement, the\nShareholder Agreements and the transactions contemplated hereby and\nthereby.\n\n                  NOW, THEREFORE, in consideration of the representations,\nwarranties, covenants and agreements contained in this Agreement and in the\nShareholder Agreements, the adequacy of which is hereby acknowledged, and\nintending to be legally bound hereby, the parties hereto agree as follows:\n\n                                 ARTICLE I\n\n                                DEFINITIONS\n\n                  Section 1.1. Definitions. When used in this Agreement,\nthe following terms shall have the respective meanings specified therefor\nbelow (such meanings to be equally applicable to both the singular and\nplural forms of the terms defined).\n\n                  \"Antitrust Laws\" means, collectively, the HSR Act, the\nSherman Act, as amended, the Clayton Act, as amended, the Federal Trade\nCommission Act, as amended, and any other federal, state or foreign\nstatutes, rules, regulations, orders or decrees that are designed to\nprohibit, restrict or regulate actions having the purpose or effect of\nmonopolization or restraint of trade.\n\n                  \"Beneficial Owner\" or \"Beneficially Owning\" shall have\nthe meaning set forth in Rule 13d-3 promulgated under the Exchange Act.\n\n                  \"Code\" shall mean the Internal Revenue Code of 1986, as\namended and the rules and regulations promulgated thereunder.\n\n                  \"Company Material Adverse Effect\" shall mean any fact,\nchange, event or effect that, individually or together with other facts,\nchanges, events or effects, is, or would reasonably be expected to be,\nmaterially adverse, in either the short-term or long-term, to the business,\noperations, results of operations, financial condition, assets or\nliabilities of the Company and its subsidiaries, taken as a whole, whether\nrelated specifically to the Company or to more generally applicable facts,\nchanges, events or effects.\n\n                  \"Disclosure Schedule\" means the disclosure schedule\ndelivered by the Company to Parent on or prior to the date hereof.\n\n                  \"Environmental Laws\" shall mean all foreign, federal,\nstate and local laws, regulations, rules and ordinances relating to\npollution or protection of the environment or human health and safety,\nincluding laws relating to releases or threatened releases of Hazardous\nSubstances into the indoor or outdoor environment (including ambient air,\nsurface water, groundwater, land, surface and subsurface strata) or\notherwise relating to the manufacture, processing, distribution, use,\ntreatment, storage, Release, transport or handling of Hazardous Substances;\nall laws and regulations with regard to recordkeeping, notification,\ndisclosure and reporting requirements respecting Hazardous Substances; all\nlaws relating to endangered or threatened species of fish, wildlife and\nplants and the management or use of natural resources; and common law to\nthe extent it relates to or applies to exposure to or impact of Hazardous\nSubstances on persons or property.\n\n                  \"ERISA\" shall mean the Employee Retirement Income\nSecurity Act of 1974, as amended, and the rules and regulations promulgated\nthereunder.\n\n                  \"ERISA Affiliate\" shall mean, with respect to any person,\nany trade or business, whether or not incorporated, that together with such\nperson would be deemed a \"single employer\" within the meaning of section\n4001(b)(1) of ERISA.\n\n                  \"Exchange Act\" shall mean the Securities Exchange Act of\n1934, as amended.\n\n                  \"Exchange Offer Consideration\" means the shares of Parent\nCommon Stock or the cash (including cash in lieu of fractional shares) to\nbe received upon consummation of the Offer pursuant to the terms set forth\nin Section 2.1(a).\n\n                  \"Governmental Authority\" shall mean any nation or\ngovernment, any state or other political subdivision thereof, any entity,\nauthority or body exercising executive, legislative, judicial, regulatory\nor administrative functions of or pertaining to government, including any\ngovernmental or regulatory authority, agency, department, board,\ncommission, administration or instrumentality, any court, tribunal or\narbitrator or any self regulatory organization.\n\n                  \"Hazardous Substances\" shall mean (a) any petrochemical\nor petroleum products, radioactive materials, asbestos in any form that is\nor could become friable, urea formaldehyde foam insulation, transformers or\nother equipment that contain dielectric fluid containing polychlorinated\nbiphenyls, and radon gas; (b) any chemicals, materials or substances\ndefined as or included in the definition of \"hazardous substances,\"\n\"hazardous wastes,\" \"hazardous materials,\" \"restricted hazardous\nmaterials,\" \"extremely hazardous substances,\" \"toxic substances,\"\n\"contaminants\" or \"pollutants\" or words of similar meaning and regulatory\neffect; or (c) any other chemical, material or substance, exposure to which\nis prohibited, limited, or regulated by any applicable Environmental Law.\n\n                  \"HSR Act\" means the Hart-Scott-Rodino Antitrust\nImprovements Act of 1976, as the same has been or may be amended from time\nto time.\n\n                  \"Indebtedness\" shall mean, with respect to any person,\nwithout duplication, (a) all obligations of such person for borrowed money,\nor with respect to deposits or advances of any kind to such person, (b) all\nobligations of such person evidenced by bonds, debentures, notes or similar\ninstruments, (c) all obligations of such person upon which interest charges\nare customarily paid, (d) all obligations of such person under conditional\nsale or other title retention agreements relating to property purchased by\nsuch person, (e) all obligations of such person issued or assumed as the\ndeferred purchase price of property or services (excluding obligations of\nsuch person to creditors for raw materials, inventory, services and\nsupplies incurred in the ordinary course of such person's business), (f)\nall capitalized lease obligations of such person, (g) all obligations of\nothers secured by any Lien on property or assets owned or acquired by such\nperson, whether or not the obligations secured thereby have been assumed,\n(h) all obligations of such person under interest rate or currency swap\ntransactions (valued at the termination value thereof), (i) all letters of\ncredit issued for the account of such person (excluding letters of credit\nissued for the benefit of suppliers to support accounts payable to\nsuppliers incurred in the ordinary course of business), (j) all obligations\nof such person to purchase securities (or other property) which arises out\nof or in connection with the sale of the same or substantially similar\nsecurities or property, and (k) all guarantees and arrangements having the\neconomic effect of a guarantee of such person of any indebtedness of any\nother person.\n\n                  \"Law\" means any federal, state, local, foreign or other\nstatute, law, ordinance, rule or regulation or any order, writ, decision,\ninjunction, judgment, award or decree.\n\n                  \"Lien\" means any security interests, liens, claims,\npledges, options, rights of first refusal, agreements, charges or other\nencumbrances of any nature or any other limitation or restriction\n(including any restriction on the right to vote or sell the same, except as\nmay be provided under applicable federal or state securities laws).\n\n                  \"NASD\" shall mean the National Association of Securities\nDealers, Inc.\n\n                  \"NYSE\" shall mean the New York Stock Exchange.\n\n                  \"Parent Material Adverse Effect\" shall mean any fact,\nchange, event or effect that, individually or together with other facts,\nchanges, events or effects, is, or would reasonably be expected to be,\nmaterially adverse, in either the short-term or long-term, to the business,\noperations, results of operations, financial condition, assets or\nliabilities of Parent and its subsidiaries, taken as a whole, whether\nrelated specifically to Parent or to more generally applicable facts,\nchanges, events or effects.\n\n                  \"Permits\" means approvals, authorizations, certificates,\nfilings, franchises, licenses, notices, permits, consents and rights.\n\n                  \"Permitted Liens\" shall mean such of the following as to\nwhich neither the Company nor any of its subsidiaries is otherwise subject\nto criminal liability due to its existence: (i) Liens disclosed as such in\nthe financial statements of the Company SEC Documents, (ii) Liens for Taxes\nnot yet due and payable or, if due, (A) not delinquent or (B) being\ncontested in good faith by appropriate proceedings during which collection\nor enforcement against the property is stayed, (iii) mechanics', workmen's,\nrepairmen's, warehousemen's, carriers' or other Liens, including statutory\nLiens, arising or incurred in the ordinary course of business that do not\nmaterially interfere with or materially affect the value or use of the\nrespective underlying asset to which such Liens relate, (iv) original\npurchase price conditional sales contracts and equipment leases with third\nparties entered into in the ordinary course of business and (v) Liens that\ndo not materially interfere with or materially affect the value or use in\nany material respect of the respective underlying asset to which such Liens\nrelate.\n\n                  \"Release\" means any release, spill, emission, discharge,\nleaking, pumping, injection, deposit, disposal, discharge, dispersal,\nleaching or migration into the indoor or outdoor environment (including\nambient air, surface water, groundwater, and surface or subsurface strata)\nor into or out of any property, including the movement of Hazardous\nSubstances through or in the air, soil, surface water, groundwater or\nproperty.\n\n                  \"Representative\" means with respect to any person, its\nofficers, directors, employees, investment bankers, attorneys, accountants,\nconsultants or other agents, advisors or representatives.\n\n                  \"Rule 145 Affiliate\" means an affiliate within the\nmeaning of Rule 145 promulgated under the Securities Act.\n\n                  \"SEC\" shall mean the Securities and Exchange Commission.\n\n                  \"Securities Act\" shall mean the Securities Act of 1933,\nas amended.\n\n                  \"Taxes\" shall mean (a) any and all taxes, charges, fees,\nlevies or other assessments, including income, gross receipts, excise, real\nor personal property, sales, withholding, social security, occupation, use,\nservice, service use, license, net worth, payroll, franchise, transfer and\nrecording taxes, fees and charges, imposed by the Internal Revenue Service\nor any taxing authority (whether domestic or foreign including any state,\ncounty, local or foreign government or any subdivision or taxing agency\nthereof (including a United States possession)), including any interest\nwhether paid or received, fines, penalties or additional amounts\nattributable to, or imposed upon, or with respect to, any such taxes,\ncharges, fees, levies or other assessments, (b) liability for the payment\nof any amounts described in clause (a) above as a result of being a member\nof an affiliated, consolidated, combined, unitary or similar group or as a\nresult of transferor or successor liability and (c) liability for the\npayment of any amounts as a result of being a party to any tax sharing\nagreement or as a result of any agreement to indemnify any other person\nwith respect to the payment of any amounts of the type described in clause\n(a) or (b) above.\n\n                  \"Tax Return\" shall mean any report, return, document,\ndeclaration or other information or filing required to be supplied to any\ntaxing authority or jurisdiction (foreign or domestic) with respect to\nTaxes, including information returns, any documents with respect to or\naccompanying payments of estimated Taxes, or with respect to or\naccompanying requests for the extension of time in which to file any such\nreport, return, document, declaration or other information.\n\n                  \"Third Party\" means any person (or group of persons)\nother than Parent and its respective subsidiaries.\n\n                  \"Transaction\" means the combined series of transactions\ncontemplated by this Agreement, including the Offer and the Merger.\n\n                                ARTICLE II\n                                 THE OFFER\n\n                          Section 2.1. The Offer.\n\n\n                  (a) Provided that this Agreement shall not have been\nterminated in accordance with Section 8.1 hereof and that none of the\nevents set forth in paragraphs (a) through (l) of Annex A hereto shall have\noccurred or be existing (and shall not have been waived by Parent), Parent\nshall commence (within the meaning of Rule 14d-2 promulgated under the\nExchange Act) as promptly as reasonably practicable after the date hereof\nthe Offer to exchange for each Company Share, at the election of the holder\nthereof, either: (i) 0.26 (the \"Exchange Ratio\") of a share of Parent\nCommon Stock; or (ii) cash in the amount of $12.10 (the \"Per Share Cash\nConsideration\"). Shareholders who validly tender Company Shares but fail to\nmake an election shall be deemed to have elected to receive the Per Share\nCash Consideration for each share of Company Common Stock validly tendered.\n\n\n                  (b) The obligation of Parent to accept for payment and\npay for Company Shares tendered pursuant to the Offer in the form and\namount specified in Section 2.1 shall be subject only to the conditions set\nforth in Annex A hereto; provided, however, no certificates or scrip\nrepresenting fractional shares of Parent Common Stock shall be issued in\nconnection with the exchange of Parent Common Stock for Company Shares upon\nconsummation of the Offer, and in lieu thereof each tendering shareholder\nwho would otherwise be entitled to a fractional share of Parent Common\nStock in the Offer will be paid an amount in cash equal to the product\nobtained by multiplying (A) the fractional share interest of such holder\n(after taking into account all shares of Company Common Stock validly\ntendered for exchange and not withdrawn by such holder) would otherwise be\nentitled by (B) the closing price for a share of Parent Common Stock as\nreported on the NYSE Composite Transaction Tape (as reported in the Wall\nStreet Journal, or, if not reported thereby, any other authoritative\nsource) on the date Parent accepts Company Shares for exchange in the\nOffer. The Per Share Cash Consideration payable by Parent for each validly\ntendered Company Share accepted for payment by Parent shall, subject to any\nrequired withholding of Taxes, be net to the holder thereof in cash. The\nCompany agrees that no Company Shares held by the Company or any of its\nsubsidiaries will be tendered to Parent pursuant to the Offer. Parent\nexpressly reserves the right to waive any of such conditions, to increase\nthe Exchange Offer Consideration payable in the Offer and to make any other\nchanges in the terms of the Offer; provided, however, that no change may be\nmade without the prior written consent of the Company which (i) decreases\nthe amount payable per Company Share tendered pursuant to the Offer, (ii)\nreduces the maximum number of Company Shares that may be exchanged in the\nOffer, or (iii) imposes conditions to the Offer in addition to the\nconditions set forth in Annex A hereto.\n\n                  (c) Subject to the terms of the Offer and this Agreement\nand the satisfaction or earlier waiver of all the conditions of the Offer\nset forth in Annex A hereto as of any expiration date of the Offer, Parent\nwill accept for exchange and pay for all Company Shares validly tendered\nand not withdrawn pursuant to the Offer as soon as practicable after the\nexpiration of the Offer. The initial expiration date of the Offer shall be\nthe twentieth business day following the commencement of the Offer. Parent\nmay, without the consent of the Company, extend the Offer (i) for one or\nmore periods beyond the initial expiration date but in no event ending\nlater than January 31, 2002 if, at the initial or extended expiration date\nof the Offer, any of the conditions to the Offer set forth in Annex A\nhereto shall not have been satisfied or to the extent permitted by this\nAgreement, waived, and (ii) for any period required by any rule,\nregulation, interpretation or position of the SEC or the staff thereof\napplicable to the Offer or any period required by applicable Law. In\naddition, Parent may elect to provide a subsequent offering period for\nthree business days to twenty business days after the acceptance of Company\nShares pursuant to the Offer pursuant to Rule 14d-11 promulgated under the\nExchange Act to meet the objective (which is not a condition to the Offer)\nthat there be validly tendered, in accordance with the terms of the Offer\nand such subsequent offer, prior to the expiration date of such subsequent\noffer and not withdrawn a number of Company Shares, which together with\nCompany Shares then owned by Parent, constitutes at least 90% of the then\noutstanding Company Shares.\n\n                  (d) As promptly as practicable after the date of this\nAgreement, Parent shall prepare and file with the SEC a registration\nstatement on Form S-4 (together with any supplements or amendments thereto,\nthe \"Offer Registration Statement\") to register the offer and sale of\nParent Common Stock pursuant to the Offer. The Offer Registration Statement\nwill include a preliminary prospectus containing the information required\nunder Rule 14d-4(b) promulgated under the Exchange Act (the \"Preliminary\nProspectus\"). As soon as practicable on the date of commencement of the\nOffer, Parent and Merger Sub shall (i) file with the SEC a Tender Offer\nStatement on Schedule TO which will contain or incorporate by reference all\nor part of the Preliminary Prospectus and forms of the related letter of\ntransmittal\/election form and all other ancillary documents with respect to\nthe Offer (together with all supplements and amendments thereto, the\n\"Schedule TO\") (the Schedule TO, the Offer Registration Statement and such\ndocuments included therein pursuant to which the Offer will be made,\ntogether with any supplements or amendments thereto, the \"Offer Documents\")\nand (ii) cause the Offer Documents to be disseminated to the holders of\nCompany Shares. Each of the Company, Parent and Merger Sub agrees promptly\nto correct any information provided by it for use in the Offer Documents if\nand to the extent that such information shall have become false or\nmisleading in any material respect. Parent and Merger Sub agree to take all\nsteps necessary to cause the Schedule TO and the Offer Registration\nStatement as so corrected to be filed with the SEC and the other Offer\nDocuments as so corrected to be disseminated to holders of Company Shares,\nin each case as and to the extent required by applicable federal securities\nlaws. The Company and its counsel shall be given an opportunity to review\nand comment on the Offer Documents prior to their being filed with the SEC\nor disseminated to the holders of Company Shares. Each of Parent and Merger\nSub agrees to provide the Company and its counsel with any comments Parent\nand Merger Sub or their counsel may receive from time to time from the SEC\nor its staff with respect to the Offer Documents promptly after the receipt\nof such comments and to consult with the Company and its counsel prior to\nresponding to any such comments.\n\n                  Section 2.2. Company Actions.\n\n                  (a) The Company hereby approves of and consents to the\nOffer and represents and warrants that the Company's Board of Directors, at\na meeting duly called and held, has (i) amended the Bylaws of the Company\nto provide that Chapter 6 of Title 61 of the Utah Code does not apply to\ncontrol share acquisitions (as defined in Section 61-6-3 of the Utah Code)\nof capital stock of the Company, (ii) unanimously determined that this\nAgreement and the transactions contemplated hereby, including the Offer and\nthe Merger, are advisable and are fair to and in the best interests of the\nshareholders of the Company, (iii) unanimously approved and adopted this\nAgreement and the transactions contemplated hereby, including the Offer and\nthe Merger, in a manner which constitutes a directors' action (as defined\nin Section 16-10a-852 of the URBCA), and (iv) unanimously resolved to\nrecommend that the shareholders of the Company accept the Offer, tender\ntheir Company Shares to Parent thereunder and approve and adopt this\nAgreement and the Merger (the recommendations referred to in this clause\n(iv) are collectively referred to in this Agreement as the\n\"Recommendations\"). The Company hereby consents to the inclusion in the\nOffer Documents of the Recommendations and approval of the Board of\nDirectors described in the immediately preceding sentence, and the Company\nshall not permit the Recommendations and approval of the Company's Board of\nDirectors or any component thereof to be modified in any manner adverse to\nParent or Merger Sub or to be withdrawn by the Company's Board or any\ncommittee thereof, except as provided, and only to the extent set forth, in\nSection 6.5 hereof.\n\n                  (b) As promptly as practicable on the date of\ncommencement of the Offer, the Company shall file with the SEC a\nSolicitation\/Recommendation Statement on Schedule 14D-9 (together with all\namendments and supplements thereto, the \"Schedule 14D-9\") which shall\ncontain the Recommendations which pertain to this Agreement and the Offer.\nThe Company further agrees to take all steps necessary to cause the\nSchedule 14D-9 to be disseminated to holders of Company Shares as and to\nthe extent required by applicable federal securities laws. Each of the\nCompany, Parent and Merger Sub will promptly correct any information\nprovided by it for use in the Schedule 14D-9 if and to the extent that it\nshall have become false or misleading in any material respect, and the\nCompany will cause the Schedule 14D-9 as so corrected to be filed with the\nSEC and to be disseminated to holders of Company Shares, in each case as\nand to the extent required by applicable federal securities laws. Parent\nand its counsel shall be given a reasonable opportunity to review and\ncomment upon the Schedule 14D-9 before it is filed with the SEC. In\naddition, the Company agrees to provide Parent, Merger Sub and their\ncounsel with any comments that the Company or its counsel may receive from\ntime to time from the SEC or its staff with respect to the Schedule 14D-9\npromptly after the receipt of such comments and to consult with Parent,\nMerger Sub and their counsel prior to responding to any such comments.\n\n                  (c) The Company shall promptly furnish Parent with\nmailing labels containing the names and addresses of all record holders of\nCompany Shares and with security position listings of Company Shares held\nin stock depositories, each as of a recent date, together with all other\navailable listings and computer files containing names, addresses and\nsecurity position listings of record holders and non-objecting beneficial\nowners of Company Shares. The Company shall furnish Parent with such\nadditional information, including updated listings and computer files of\nholders of Company Shares, mailing labels and security position listings,\nand such other assistance as Parent or its agents may reasonably request.\n\n                  Section 2.3. Directors of the Company.\n\n                  (a) Effective upon the acceptance of Company Shares for\npayment by Parent or any of its affiliates pursuant to the Offer, Parent\nshall be entitled to designate such number of directors on the Board of\nDirectors of the Company as is equal to the product (rounded up to the next\nwhole number) obtained by multiplying the total number of directors on such\nBoard at that time by the percentage that the number of Company Shares then\nBeneficially Owned by Parent (including such Company Shares so accepted)\nbears to the total number of Company Shares then outstanding. In\nfurtherance thereof, the Company and its Board of Directors shall, after\nthe acceptance of such Company Shares by Parent or any of its affiliates\npursuant to the Offer, upon written request of Parent, immediately increase\nthe size of its Board of Directors or secure the resignations of such\nnumber of incumbent directors or remove such number of incumbent directors\n(to the extent permitted by applicable Law), or any combination of the\nforegoing, as is necessary to enable Parent's designees to be so appointed\nto the Board of Directors of the Company and shall cause Parent's designees\nto be so appointed. Effective upon the acceptance of Company Shares by\nParent or any of its affiliates pursuant to the Offer, the Company shall,\nif requested by Parent, also cause directors designated by Parent to\nconstitute at least the same percentage (rounded up to the next whole\nnumber) of each committee of the Company's Board of Directors as is on the\nCompany's Board of Directors after giving effect to the foregoing changes\nto the composition of the Company's Board of Directors. Notwithstanding the\nforegoing, there shall be until the Effective Time at least two members of\nthe Company's Board of Directors who are directors of the Company prior to\nconsummation of the Offer (each, a \"Continuing Director\"). The Company and\nits Board of Directors shall promptly take all legally available actions as\nmay be necessary to comply with their obligations under this Section\n2.3(a), including all actions as may be permitted under the URBCA and the\nCompany's Articles of Incorporation and Bylaws.\n\n                  (b) The Company shall comply with and immediately take\nall actions required pursuant to Section 14(f) of the Exchange Act and Rule\n14f-1 promulgated thereunder in order to fulfill its obligations under\nSection 2.3(a), including mailing to shareholders, together with the\nSchedule 14D-9, the information required by such Section 14(f) and Rule\n14f-1 as is necessary to enable Parent's designees to be appointed to the\nCompany's Board of Directors. Parent will supply the Company and be solely\nresponsible for any information with respect to Parent, its designees and\nits nominees, officers, directors and affiliates required by such Section\n14(f) and Rule 14f-1.\n\n                  (c) Following the appointment of Parent's designees to\nthe Company's Board of Directors pursuant to this Section 2.3 and prior to\nthe Effective Time, (i) any amendment or termination of this Agreement by\nthe Company, (ii) any extension or waiver by the Company of the time for\nthe performance of any of the obligations or other acts of Parent or Merger\nSub under this Agreement, or (iii) any waiver of any of the Company's\nrights hereunder shall, in any such case, require the concurrence of a\nmajority of the Continuing Directors then in office.\n\n                                ARTICLE III\n\n                                 THE MERGER\n\n                  Section 3.1. The Merger. Upon the terms and subject to\nthe conditions of this Agreement, the Merger shall be consummated in\naccordance with the URBCA. At the Effective Time, upon the terms and\nsubject to the conditions of this Agreement, the Company shall be merged\nwith and into Merger Sub in accordance with the URBCA and the separate\nexistence of the Company shall thereupon cease, and Merger Sub, as the\nsurviving corporation in the Merger, shall continue its corporate existence\nunder the laws of the State of Utah as a wholly-owned subsidiary of Parent;\nprovided, however, that if Parent does not obtain a Tax Opinion, then, in\nParent's reasonable discretion, the Reverse Merger may be effected, and the\nsurviving corporation shall thereby become a wholly-owned subsidiary of\nParent. If the Reverse Merger is effected, then the separate existence of\nMerger Sub shall cease and the Company shall become the surviving\ncorporation. The surviving corporation of the Merger or the Reverse Merger,\nas the case may be, shall be herein referred to as the \"Surviving\nCorporation.\" In the event Parent elects to effect a Reverse Merger, all\nreferences to \"Merger\" in this Agreement and all other ancillary or related\nagreements, documents and instruments shall be deemed to be references to\nthe \"Reverse Merger\" and this Agreement and such other ancillary and\nrelated agreements, documents and instruments shall be construed and\ninterpreted accordingly.\n\n                  Section 3.2. The Closing; Effective Time.\n\n                  (a) The closing of the Merger (the \"Closing\") shall take\nplace at the offices of Skadden, Arps, Slate, Meagher &amp; Flom LLP, Four\nTimes Square, New York, New York 10036 at 10:00 a.m. local time as promptly\nas practicable, on a date to be specified by the parties which shall be no\nlater than the third business day after the date that all of the closing\nconditions set forth in Article VII have been satisfied or waived (if\nwaivable) unless another time, date and place is agreed upon in writing by\nthe parties hereto.\n\n                  (b) Effective Time. Subject to the provisions of this\nAgreement, on the Closing Date the Surviving Corporation shall deliver to\nthe Utah Department of Commerce, Division of Corporations and Commercial\nCode, for filing articles of merger in accordance with Section 16-10a-1105\nof the URBCA (the \"Articles of Merger\") executed in accordance with the\nrelevant provisions of the URBCA and shall make all other filings or\nrecordings required under the URBCA in order to effect the Merger. The\nMerger shall become effective upon the filing of the Articles of Merger or\nat such other later time as is agreed by the parties hereto and specified\nin the Articles of Merger in the manner required by the URBCA. The time\nwhen the Merger shall become effective is herein referred to as the\n\"Effective Time\" and the date on which the Effective Time occurs is herein\nreferred to as the \"Closing Date.\"\n\n                  Section 3.3. Conversion of Securities. At the Effective\nTime, by virtue of the Merger and without any action on the part of the\nholders of any securities of Merger Sub or the Company:\n\n                  (a) Each Company Share that is owned by Parent, the\nCompany or any of their respective subsidiaries shall automatically be\ncancelled and retired and shall cease to exist, and no consideration shall\nbe delivered in exchange therefor.\n\n                  (b) Each issued and outstanding Company Share (other than\nCompany Shares to be cancelled in accordance with Section 3.3(a) hereof and\nDissenting Shares) shall automatically be converted into the right to\nreceive the Per Share Cash Consideration in cash (the \"Merger\nConsideration\"), payable, without interest, to the holder of such Company\nShare upon surrender, in the manner provided in Section 3.4 hereof, of the\ncertificate that formerly evidenced such Company Share. All such Company\nShares, when so converted, shall no longer be outstanding and shall\nautomatically be cancelled and retired and shall cease to exist, and each\nholder of a certificate representing any such Company Shares shall cease to\nhave any rights with respect thereto, except the right to receive the\nMerger Consideration therefor upon the surrender of such certificate in\naccordance with Section 3.4 hereof.\n\n                  (c) Each issued and outstanding share of common stock of\nMerger Sub shall remain outstanding and be one validly issued, fully paid\nand nonassessable share of common stock of the Surviving Corporation.\n\n                  Section 3.4. Exchange of Certificates.\n\n                  (a) Exchange Agent. Prior to the Effective Time, Parent\nshall designate a bank or trust company reasonably acceptable to the\nCompany to act as agent for the holders of Company Shares (other than\nCompany Shares held by Parent, the Company and any of their respective\nsubsidiaries and Dissenting Shares) in connection with the Merger (the\n\"Exchange Agent\") to receive in trust, the aggregate Merger Consideration\nto which holders of Company Shares shall become entitled pursuant to\nSection 3.3(b) hereof. Parent shall deposit such aggregate Merger\nConsideration with the Exchange Agent promptly following the Effective\nTime. Such aggregate Merger Consideration shall be invested by the Exchange\nAgent as directed by Parent. Any interest and other income resulting from\nsuch investment shall be paid to Parent.\n\n                  (b) Exchange Procedures. Promptly after the Effective\nTime, Parent and the Surviving Corporation shall cause to be mailed to each\nholder of record, as of the Effective Time, of a certificate or\ncertificates, which immediately prior to the Effective Time represented\noutstanding Company Shares (the \"Certificates\"), whose Company Shares were\nconverted pursuant to Section 3.3(b) hereof into the right to receive the\nMerger Consideration, a letter of transmittal (which shall specify that\ndelivery shall be effected, and risk of loss and title to the Certificates\nshall pass, only upon proper delivery of the Certificates to the Exchange\nAgent and shall be in such form and have such other provisions as Parent\nmay reasonably specify) and instructions for use in effecting the surrender\nof the Certificates in exchange for the Merger Consideration. Upon\nsurrender of a Certificate for cancellation to the Exchange Agent or to\nsuch other agent or agents as may be appointed by Parent, together with\nsuch letter of transmittal, properly completed and duly executed in\naccordance with the instructions thereto, the holder of such Certificate\nshall be entitled to receive in exchange therefor the Merger Consideration\nfor each Company Share formerly represented by such Certificate, and the\nCertificate so surrendered shall forthwith be cancelled. No interest will\nbe paid or accrued on the cash payable upon the surrender of the\nCertificates. Until surrendered as contemplated by this Section 3.4, each\nCertificate shall be deemed at any time after the Effective Time to\nrepresent only the right to receive the Merger Consideration for each\nCompany Share in cash as contemplated by Section 3.3(b) hereof.\n\n                  (c) Transfer Books; No Further Ownership Rights in the\nShares. At the Effective Time, the stock transfer books of the Company\nshall be closed, and thereafter there shall be no further registration of\ntransfers of the Company Shares on the records of the Company. From and\nafter the Effective Time, the holders of Certificates evidencing ownership\nof the Company Shares outstanding immediately prior to the Effective Time\nshall cease to have any rights with respect to such Company Shares, except\nas otherwise provided for herein or by applicable law. If, after the\nEffective Time, Certificates are presented to the Surviving Corporation for\nany reason, they shall be cancelled and exchanged as provided in this\nArticle III.\n\n                  (d) Termination of Fund; No Liability. At any time\nfollowing the one-year anniversary of the Effective Time, the Surviving\nCorporation shall be entitled to require the Exchange Agent to deliver to\nit any funds (including any interest received with respect thereto) which\nhad been made available to the Exchange Agent, and holders of Company\nShares not theretofore exchanged for the Merger Consideration shall be\nentitled to look to the Surviving Corporation (subject to abandoned\nproperty, escheat or other similar laws) only as general creditors thereof\nwith respect to the Merger Consideration payable upon due surrender of\ntheir Certificates without any interest thereon. Notwithstanding the\nforegoing, neither the Surviving Corporation nor the Exchange Agent nor any\nparty hereto shall be liable to any holder of a Certificate for Merger\nConsideration delivered to a public official pursuant to any applicable\nabandoned property, escheat or similar law.\n\n                  (e) Lost, Stolen or Destroyed Certificates. In the event\nany Certificates shall have been lost, stolen or destroyed, upon the making\nof an affidavit of that fact by the person claiming such Certificate(s) to\nbe lost, stolen or destroyed and, if required by Parent, the posting by\nsuch person of a bond in such sum as Parent may reasonably direct as\nindemnity against any claim that may be made against any party hereto or\nthe Surviving Corporation with respect to such Certificate(s), the Exchange\nAgent will issue the Merger Consideration pursuant to Section 3.3(b)\ndeliverable in respect of the Shares represented by such lost, stolen or\ndestroyed Certificates.\n\n                  (f) Withholding Taxes. Parent and Merger Sub shall be\nentitled to deduct and withhold, or cause the Exchange Agent to deduct and\nwithhold, from the Exchange Offer Consideration or the Merger Consideration\npayable to a holder of Company Shares pursuant to the Offer or the Merger,\nor from the cash payments provided for in Section 3.5 of this Agreement,\nany such amounts as are required under the Code, or any applicable\nprovision of state, local or foreign Tax law. To the extent that amounts\nare so withheld by Parent or Merger Sub, such withheld amounts shall be\ntreated for all purposes of this Agreement as having been paid to the\nholder of the Company Shares or Company Options in respect of which such\ndeduction and withholding was made by Parent or Merger Sub.\n\n                  (g) Transfer Taxes. If payment of the Exchange Offer\nConsideration or the Merger Consideration payable to a holder of Company\nShares pursuant to the Offer or the Merger is to be made to a person other\nthan the person in whose name the surrendered Certificate is registered, it\nshall be a condition of payment that the Certificate so surrendered shall\nbe properly endorsed or shall be otherwise in proper form for transfer and\nthat the person requesting such payment shall have paid all transfer and\nother Taxes required by reason of the issuance to a person other than the\nregistered holder of the Certificate surrendered or shall have established\nto the satisfaction of Parent that such Tax either has been paid or is not\napplicable.\n\n                  Section 3.5. Options. Parent acknowledges that in\nconnection with the transactions contemplated hereby, each Company Option\ngranted to an employee, officer or director of the Company under the\nCompany Plans shall become fully vested and exercisable in accordance with\nthe terms of the Company Plans. At the Effective Time, each such\nthen-outstanding Company Option shall be cancelled and the holder thereof\nshall be entitled to receive as consideration for such cancellation, an\namount in cash (net of applicable withholdings) equal to the excess of (i)\nthe Per Share Cash Consideration over (ii) the per share exercise or strike\nprice of such Company Option multiplied by (iii) the number of shares\nsubject to such Company Option.\n\n                  Section 3.6. Dissenting Shares. Notwithstanding any\nprovision of this Agreement to the contrary, each outstanding Company\nShare, the holder of which has demanded and perfected such holder's right\nto dissent from the Merger and to be paid the fair value of such Company\nShares in accordance with Part 13 of the URBCA and, as of the Effective\nTime, has not effectively withdrawn or lost such dissenters' rights\n(\"Dissenting Shares\"), shall not be converted into or represent a right to\nreceive the Merger Consideration into which Company Shares are converted\npursuant to Section 3.3(b) hereof, but the holder thereof shall be entitled\nonly to such rights as are granted by the URBCA. Notwithstanding the\nimmediately preceding sentence, if any holder of Company Shares who demands\ndissenters' rights with respect to its Shares under the URBCA effectively\nwithdraws or loses (through failure to perfect or otherwise) its\ndissenters' rights, then as of the Effective Time or the occurrence of such\nevent, whichever later occurs, such holder's Company Shares will\nautomatically be converted into and represent only the right to receive the\nMerger Consideration as provided in Section 3.3(b) hereof, without interest\nthereon, upon surrender of the certificate or certificates formerly\nrepresenting such Company Shares. After the Effective Time, Parent shall\ncause the Surviving Corporation to make all payments to holders of Company\nShares with respect to such demands in accordance with the URBCA. The\nCompany shall give Parent (i) prompt written notice of any notice of intent\nto demand fair value for any Company Shares, withdrawals of such notices,\nand any other instruments served pursuant to the URBCA and received by the\nCompany, and (ii) the opportunity to direct all negotiations and\nproceedings with respect to demands for fair value for Company Shares under\nthe URBCA. The Company shall not, except with the prior written consent of\nParent, voluntarily make any payment with respect to any such demands for\nfair value for Company Shares or offer to settle or settle any such\ndemands.\n\n                  Section 3.7. Articles of Incorporation and Bylaws.\nSubject to Section 6.12 hereof, at and after the Effective Time until the\nsame have been duly amended, (i) the Articles of Incorporation of the\nSurviving Corporation shall be in the form set forth in Exhibit A hereto\nand (ii) the Bylaws of the Surviving Corporation shall be identical to the\nBylaws of Merger Sub.\n\n                  Section 3.8.  Directors and Officers. At and after the\nEffective Time, the directors of Merger Sub immediately prior to the\nEffective Time shall be the directors of the Surviving Corporation, and the\nofficers of the Company immediately prior to the Effective Time shall be\nthe officers of the Surviving Corporation, in each case until their\nsuccessors are elected or appointed and qualified. If, at the Effective\nTime, a vacancy shall exist on the Board of Directors or in any office of\nthe Surviving Corporation, such vacancy may thereafter be filled in the\nmanner provided by law.\n\n                  Section 3.9. Other Effects of Merger. The Merger shall\nhave all further effects as specified in the applicable provisions of the\nURBCA.\n\n                                ARTICLE IV\n\n               REPRESENTATIONS AND WARRANTIES OF THE COMPANY\n\n                  Company hereby represents and warrants to Parent and\nMerger Sub as follows:\n\n                  Section 4.1. Organization and Qualification. Each of the\nCompany and its subsidiaries is a corporation duly organized, validly\nexisting and in good standing under the laws of its jurisdiction of\nincorporation or organization. Each of the Company and its subsidiaries has\nthe requisite corporate power and corporate authority and any necessary\nmaterial governmental authority, franchise, license, certificate or permit\nto own, operate or lease the properties that it purports to own, operate or\nlease and to carry on its business as it is now being conducted, and is\nduly qualified as a foreign corporation to do business, and is in good\nstanding, in each jurisdiction where the character of its properties owned,\noperated or leased or the nature of its activities makes such qualification\nnecessary, except for such failures to be so qualified and in good standing\nwhich are not, or would not be reasonably expected to be, material to the\nCompany. Exhibit 21 to the Company's Annual Report on Form 10-K for the\nfiscal year ended December 31, 2000 sets forth (by incorporation by\nreference) a complete list of the Company's active subsidiaries. The\nCompany's inactive subsidiaries have no operations or liabilities.\n\n                  Section 4.2. Capitalization. (a) The authorized capital\nstock of the Company consists of (A) 100,000,000 shares of common stock, no\npar value, of which, as of the date hereof, 6,473,140 shares are issued and\noutstanding and (B) 25,000,000 shares of preferred stock, no par value, of\nwhich, as of the date hereof, none are issued and outstanding. As of the\ndate hereof, there are no treasury shares of the Company and only options\n(the \"Company Options\") to purchase in the aggregate 350,400 Company Shares\nare outstanding all of which were granted under either the Company's 1997\nStock Option Plan or the Company's 1999 Stock Option Plan for Non-Employee\nDirectors (the \"Company Plans\"). All the outstanding shares of the\nCompany's capital stock are, and all shares which may be issued pursuant to\nthe exercise of outstanding Company Options or pursuant to the Company\nPlans will be, when issued in accordance with the respective terms thereof,\nduly authorized, validly issued, fully paid and non-assessable. There are\nno bonds, debentures, notes or other indebtedness having voting rights (or\nconvertible into securities having such rights) (\"Voting Debt\") of the\nCompany or any of its subsidiaries issued and outstanding. Except as set\nforth above and except for the transactions provided for in this Agreement,\nas of the date hereof, (i) there are no shares of capital stock of the\nCompany authorized, issued or outstanding and (ii) there are no existing\noptions, warrants, calls, pre-emptive rights, subscriptions or other\nrights, convertible securities, agreements, arrangements or commitments of\nany character, relating to the issued or unissued capital stock of the\nCompany or any of its subsidiaries, obligating the Company or any of its\nsubsidiaries to issue, transfer or sell or cause to be issued, transferred\nor sold any shares of capital stock or Voting Debt of, or other equity\ninterest in, the Company or any of its subsidiaries or securities\nconvertible into or exchangeable for such shares or equity interests or\nobligations of the Company or any of its subsidiaries to grant, extend or\nenter into any such option, warrant, call, subscription or other right,\nconvertible security, agreement, arrangement or commitment. There are no\noutstanding contractual obligations of the Company or any of its\nsubsidiaries to repurchase, redeem or otherwise acquire any Company Shares\nor other capital stock of the Company or any of its subsidiaries or\naffiliates of the Company or to provide funds to make any investment (in\nthe form of a loan, capital contribution or otherwise) in any of its\nsubsidiaries or any other entity nor has the Company or any of its\nsubsidiaries granted or agreed to grant to any person any stock\nappreciation rights or similar equity-based rights. Except as permitted by\nthis Agreement, following the Merger, neither the Company nor any of its\nsubsidiaries will have any obligation to issue, transfer or sell any shares\nof its capital stock pursuant to any employee benefit plan or otherwise.\n\n                  (b) All of the outstanding shares of capital stock of\neach of the subsidiaries are owned beneficially by the Company, directly or\nindirectly, and all such shares have been validly issued and are fully paid\nand nonassessable and are owned by either the Company or one of its\nsubsidiaries free and clear of all Liens.\n\n                  (c) There are no voting trusts or other agreements or\nunderstandings to which the Company or any of its subsidiaries is a party\nwith respect to the voting of the capital stock of the Company or any of\nits subsidiaries. None of the Company or its subsidiaries is required to\nredeem, repurchase or otherwise acquire shares of capital stock of the\nCompany, or any of its subsidiaries, respectively, as a result of the\ntransactions contemplated by this Agreement.\n\n                  Section 4.3. Corporate Authorization; Validity of\nAgreement; Company Action. The Company has the requisite corporate power\nand corporate authority to enter into this Agreement, to perform its\nobligations hereunder and, subject to obtaining the Company Shareholder\nApproval (unless, pursuant to the URBCA, such approval is not required to\neffectuate the Merger) with respect to the Merger, to consummate the\ntransactions contemplated by this Agreement. The execution and delivery of\nthis Agreement by the Company and the consummation by the Company of the\ntransactions contemplated by this Agreement have been duly authorized by\nall necessary corporate action on the part of the Company, subject, in the\ncase of the Merger, if required by the URBCA, to obtaining the Company\nShareholder Approval. This Agreement has been duly executed and delivered\nby the Company and, assuming this Agreement constitutes a valid and binding\nobligation of Parent and the Merger Sub, constitutes a valid and binding\nobligation of the Company enforceable against the Company in accordance\nwith its terms, except to the extent that such enforcement may be subject\nto applicable bankruptcy, insolvency, reorganization, moratorium or other\nsimilar laws, now or hereafter in effect, affecting creditors' rights\ngenerally, and by general equitable principles.\n\n                  (a) The affirmative vote of the holders (including Parent\nfollowing its acceptance of Company Shares for payment under the Offer) of\na majority of the outstanding Company Shares (the \"Company Shareholder\nApproval\") is the only vote of the holders of any class or series of the\nCompany's capital stock necessary to approve the Merger and the\ntransactions contemplated hereby (other than the Offer and the Shareholder\nAgreements and the transactions contemplated thereby, in respect of which\nno approval is required from the holders of capital stock of the Company)\nunless, pursuant to the URBCA, such approval is not required to effectuate\nthe Merger.\n\n                  (b) Neither the Company nor any of its subsidiaries\nBeneficially Owns, either directly or indirectly, any shares of capital\nstock of the Company.\n\n                  (c) The Company has duly and validly approved and taken\nall actions required to be taken by the Company's Board of Directors under\nthe URBCA to approve the Offer, the Merger and the other transactions\ncontemplated by this Agreement. The Bylaws of the Company have been duly\namended and adopted to provide that Chapter 6 of Title 61 of the Utah Code\ndoes not apply to control share acquisitions (as defined in Section 61-6-3\nof the Utah Code) of capital stock of the Company. The Company has\nfurnished to Parent a certified copy of resolutions of the Board of\nDirectors of the Company (i) approving this Agreement, the Offer, the\nMerger and the other transactions contemplated hereby, (ii) effecting the\namendment to the Bylaws of the Company described in the second sentence of\nthis Section 4.3(c) and (iii) providing that all Company Options\noutstanding as of the Effective Time will be cancelled at the Effective\nTime and that holders of such cancelled Company Options shall be entitled\nto receive an amount of cash as consideration for such cancellation in\naccordance with Section 3.5 hereof. The approvals and determinations and\nBylaw amendment described in this Section and Section 2.2 hereof are (i)\nsufficient to render Section 61-6-10 of the Utah Code inapplicable to the\nOffer, the Merger, this Agreement, the Shareholder Agreements and the other\ntransactions contemplated hereby and thereby and (ii) in accordance with\nSection 16-10a-1103 of the URBCA. No \"fair price,\" \"merger moratorium,\"\n\"control share acquisition\" or other similar anti-takeover statute or\nregulation applies or purports to apply to this Agreement, the Offer or the\nMerger, the Shareholder Agreements or the other transactions contemplated\nhereby and thereby.\n\n                  (d) Prior to any action being taken by the Board of\nDirectors of the Company with respect to the approval and adoption of this\nAgreement and the transactions contemplated hereby, the qualified directors\nof the Company (as defined in Section 16-10a-850 of the URBCA) received the\nrequired disclosure (as defined in Section 16-10a-850 of the URBCA),\nincluding disclosure of the existence and nature of this Agreement, the\nShareholder Agreements and the transactions contemplated hereby and\nthereby, by each director who has a conflicting interest (as defined in\nSection 16-10a-850 of the URBCA) with respect to the approval and adoption\nof this Agreement and the transactions contemplated hereby. All facts known\nto such directors with conflicting interests in respect of the subject\nmatter of such transactions that an ordinarily prudent person would\nreasonably believe to be material to a judgment about whether or not to\nproceed with the transactions were disclosed. The action of the Company's\nBoard of Directors described in Section 2.2 hereof constitute a directors'\naction (as defined in Section 16-10a-852 of the URBCA) with respect to this\nAgreement, the Shareholder Agreements and the transactions contemplated\nhereby and thereby.\n\n                  Section 4.4. Consents and Approvals; No Violations.\nExcept as disclosed in Section 4.4 of the Disclosure Schedule and for\nfilings and other Permits, as may be required under, and other applicable\nrequirements of, the Exchange Act, the approval of this Agreement and the\nMerger by the Company's shareholders and the filing and recordation of the\nArticles of Merger as required by the URBCA, neither the execution,\ndelivery or performance of this Agreement by the Company nor the\nconsummation by the Company of the transactions contemplated hereby nor\ncompliance by the Company with any of the provisions hereof will (i)\nconflict with or result in any breach of any provision of the articles of\nincorporation or bylaws or similar organizational documents of the Company\nor of any of its subsidiaries, (ii) result in a violation or breach of, or\nconstitute (with or without due notice or lapse of time or both) a default\n(or give rise to any right of termination, amendment, cancellation or\nacceleration) under, any Company Agreement or (iii) violate any Law\napplicable to the Company, any of its subsidiaries or any of their\nproperties or assets, except in the case of (ii) or (iii) for such\nviolations, breaches or defaults which do not have, and would not\nreasonably be expected to have, a Company Material Adverse Effect and which\nwill not materially impair the ability of the Company to consummate, or\nprevent or materially delay the consummation of, the transactions\ncontemplated hereby.\n\n                  (a) No consent, approval, waiver or authorization of,\nnotice to, declaration by, or filing with (\"Consent\") a Governmental\nAuthority is required by or with respect to the Company or any of its\nsubsidiaries in connection with the execution and delivery of this\nAgreement by the Company or the consummation by the Company of the\ntransactions contemplated by this Agreement, except for (i) the filing of a\npremerger notification and report form by the Company under the HSR Act,\nand any applicable filings under other Antitrust Laws, (ii) the filing with\nthe SEC of (A) the Schedule 14D-9 and the information required by Rule\n14f-1, (B) the Proxy Statement, and (C) such reports under the Exchange Act\nand the Securities Act, as may be required in connection with this\nAgreement and the transactions contemplated hereby, (iii) such filings as\nmay be required under state securities or \"blue sky\" laws, (iv) the filing\nof the Articles of Merger with the Utah Department of Commerce, Division of\nCorporations and Commercial Code, and appropriate documents with the\nrelevant authorities of other states in which the Company is qualified to\ndo business, and (v) such other consents, approvals, orders,\nauthorizations, registrations, declarations and filings, the failure of\nwhich to be made or obtained, do not have, and would not reasonably be\nexpected to have, a Company Material Adverse Effect, and which will not\nmaterially impair the ability of the Company to consummate, or to prevent\nor materially delay the consummation of, the transactions contemplated\nhereby.\n\n                  Section 4.5. SEC Reports and Financial Statements. The\nCompany has filed with the SEC, and has heretofore made available to Parent\ntrue and complete copies of, all forms, reports, schedules, statements and\nother documents required to be filed or furnished by it and its\nsubsidiaries since December 31, 1998 under the Exchange Act or the\nSecurities Act (as such documents have been amended since the time of their\nfiling, collectively, the \"Company SEC Documents\"). As of their respective\ndates or, if amended, as of the date of the last such amendment, the\nCompany SEC Documents, including any financial statements or schedules\nincluded therein (a) did not contain any untrue statement of a material\nfact or omit to state a material fact required to be stated therein or\nnecessary in order to make the statements therein, in light of the\ncircumstances under which they were made, not misleading and (b) complied\nin all material respects with the applicable requirements of the Exchange\nAct and the Securities Act, as the case may be, and the applicable rules\nand regulations of the SEC thereunder. Each of the consolidated financial\nstatements included in the Company SEC Documents have been prepared from,\nand are in accordance with, the books and records of the Company and its\nconsolidated subsidiaries, comply in all material respects with applicable\naccounting requirements and with the published rules and regulations of the\nSEC with respect thereto, have been prepared in accordance with United\nStates generally accepted accounting principles (\"GAAP\") applied on a\nconsistent basis during the periods involved (except as may be indicated in\nthe notes thereto) and fairly present the consolidated financial position\nand the consolidated results of operations and cash flows (and changes in\nfinancial position, if any) of the Company and its consolidated\nsubsidiaries as at the dates thereof or for the periods presented therein.\nThe financial results set forth in the financial statements and schedules\nset forth in the Company's Form 10-Q for the quarterly period ended\nSeptember 30, 2001 shall be no less favorable than the results furnished in\nwriting by the Company to Parent as of the date hereof.\n\n                  Section 4.6. Absence of Certain Changes. Except as\ndisclosed in Section 4.6 of the Disclosure Schedule, since December 31,\n2000, the Company and its subsidiaries have conducted their respective\nbusinesses and operations consistent with past practice only in the\nordinary and usual course thereof and there has not occurred (i) any\nevents, changes, or effects (including the incurrence of any liabilities of\nany nature, whether or not accrued, contingent or otherwise) which have, or\nwould reasonably be expected to have, a Company Material Adverse Effect;\n(ii) any declaration, setting aside or payment of any dividend or other\ndistribution (whether in cash, stock or property) with respect to the\nequity interests of the Company or of any of its subsidiaries other than\ndividends paid by wholly-owned subsidiaries; or (iii) any change by the\nCompany or any of its subsidiaries in accounting principles or methods,\nexcept insofar as may be required by a change in GAAP. Since December 31,\n2000, neither the Company nor any of its subsidiaries has taken any of the\nactions prohibited by Section 6.1 hereof.\n\n                  Section 4.7. No Undisclosed Liabilities. Except (a) to\nthe extent disclosed in Section 4.7 of the Disclosure Schedule and (b) for\nliabilities and obligations incurred in the ordinary and customary course\nof business and consistent with past practice, since December 31, 2000,\nneither the Company nor any of its subsidiaries has incurred any\nliabilities or obligations of any nature, whether or not accrued,\ncontingent or otherwise, which have, or would reasonably be expected to\nhave, a Company Material Adverse Effect, or would be required to be\nreflected or reserved against on a consolidated balance sheet of the\nCompany and its subsidiaries (including the notes thereto) prepared in\naccordance with GAAP as applied in preparing the consolidated balance sheet\nof the Company and its subsidiaries as of December 31, 2000. Section 4.7 of\nthe Disclosure Schedule sets forth the amount of principal and unpaid\ninterest outstanding under each instrument evidencing Indebtedness of the\nCompany and its subsidiaries which will accelerate or become due or result\nin a right of redemption or repurchase on the part of the holder of such\nIndebtedness (with or without due notice or lapse of time) as a result of\nthis Agreement, the Merger or the other transactions contemplated hereby.\n\n                  Section 4.8. Schedule 14D-9; Proxy Statement. Neither the\nSchedule 14D-9, nor any of the information supplied or to be supplied by\nthe Company or its subsidiaries or representatives for inclusion or\nincorporation by reference in the Offer Registration Statement or the Offer\nDocuments will, at the respective times any such documents or any\namendments or supplements thereto are filed with the SEC, are first\npublished, sent or given to shareholders of the Company or become effective\nunder the Securities Act, contain any untrue statement of a material fact\nor omit to state any material fact required to be stated therein or\nnecessary to make the statements therein not misleading. The Proxy\nStatement will not, at the time the Proxy Statement is mailed to the\nCompany's shareholders or, at the time of the Company Shareholder Meeting,\ncontain any untrue statement of a material fact or omit to state any\nmaterial fact required to be stated therein or necessary in order to make\nthe statements therein, in light of the circumstances under which they are\nmade, not misleading. The Schedule 14D-9 and the Proxy Statement will\ncomply as to form in all material respects with the requirements of all\napplicable Laws, including the Exchange Act and the rules and regulations\nthereunder. No representation or warranty is made by the Company with\nrespect to statements made or incorporated by reference therein based on\ninformation supplied by Parent or Merger Sub specifically for inclusion or\nincorporation by reference therein. The Company represents that it has\nobtained all necessary consents to permit the inclusion in its entirety of\nthe fairness opinion of Morgan Keegan &amp; Company, Inc. in the Schedule 14D-9\nand, if necessary, the Proxy Statement.\n\n                  Section 4.9. Employee Benefit Plans; ERISA.\n\n                  (a) There have been, since January 1, 1995, no employee\nbenefit plans, programs, arrangements, contracts or agreements (including\npension, health, life insurance, cash-or equity-based incentive, deferred\ncompensation, stock purchase or restricted stock plans or agreements and\nemployment, change of control and severance plans or agreements) of any\ntype (including plans described in section 3(3) of ERISA), maintained,\ncontributed to or required to be contributed to, or entered into by the\nCompany, any of its subsidiaries or any of their respective ERISA\nAffiliates, or with respect to which the Company or any of its subsidiaries\nhas, may have, or may have had, a liability, other than those disclosed in\nSection 4.9 of the Disclosure Schedule (the \"Benefit Plans\"). Except as set\nforth in documents delivered to Parent in accordance with Section 4.9(h),\nthere have been no amendments to any Benefit Plan resulting in an increase\nof costs to the Company or any ERISA Affiliate of the Company and\/or an\nincrease of benefits provided under such Benefit Plan to any current or\nformer employee of the Company or any of its subsidiaries. Neither the\nCompany nor any ERISA Affiliate of the Company has any formal plan or\ncommitment, whether legally binding or not, to create any additional\nBenefit Plan or modify or change any existing Benefit Plan that would\naffect any current or former employee of the Company or any of its\nsubsidiaries.\n\n                  (b) With respect to each Benefit Plan: (i) if intended to\nqualify under section 401(a) of the Code, such plan so qualifies, and its\ntrust is exempt from taxation under section 501(a) of the Code and no\ncondition exists that could adversely affect such qualification or tax\nexemption, except for amendments that must be made to such plan for which\nthe remedial amendment period is still open; (ii) such plan has been\nadministered in all material respects in accordance with its terms and\napplicable Law; (iii) no breaches of fiduciary duty have occurred which\nmight be expected to give rise to a material liability on the part of the\nCompany or any ERISA Affiliate of the Company; (iv) no disputes are\npending, threatened or, to the knowledge of the Company, anticipated that\nmight be expected to give rise to a material liability on the part of the\nCompany or any ERISA Affiliate of the Company; (v) no prohibited\ntransaction (within the meaning of section 406 or 407 of ERISA) has\noccurred that might be expected to give rise to a material liability on the\npart of the Company or any ERISA Affiliate of the Company; (vi) all\ncontributions and premiums due as of the date hereof (including any\nextensions for such contributions and premiums) have been made in full;\n(vii) no Tax has been imposed under section 4976, 4977, 4978, 4979, 4980 or\n5000 of the Code; and (viii) all relevant reports and other filings\n(including form 5500 Annual Reports, Summary Annual Reports and Summary\nPlan Descriptions) have been timely made. Section 4.9(b) of the Disclosure\nSchedule sets forth, to the knowledge of the Company, a description of each\nfailure to administer any Benefit Plan intended to be qualified under\nSection 401(a) of the Code in accordance with its terms and applicable Law\nwhich occurred after January 1, 1995.\n\n                  (c) Full payment has been made, or will be made in\naccordance with section 404(a)(6) of the Code, of all amounts which the\nCompany or any ERISA Affiliate of the Company is required to pay under the\nterms of each of the Benefit Plans as of the last day of the most recent\nplan year thereof ended prior to the date of this Agreement, and all such\namounts which become due through the Effective Time will be satisfied by\nthe Company or its ERISA Affiliates at or prior to the Effective Time.\n\n                  (d) With respect to each Benefit Plan that is, or has\nbeen since January 1, 1995, subject to section 302 or Title IV of ERISA\n(each such plan, a \"Title IV Plan\") (i) neither the Company nor any ERISA\nAffiliate of the Company has incurred any liability under Title IV of ERISA\nthat has not been satisfied in full; (ii) the Pension Benefits Guaranty\nCorporation has not instituted proceedings to terminate any such plan and\nno condition exists that presents a material risk that such proceedings\nwill be instituted, (iii) the present value of accrued benefits under such\nplan, based upon the actuarial assumptions used for funding purposes in the\nmost recent actuarial report prepared by such plan's actuary with respect\nto such plan did not exceed, as of its latest valuation date, the then\ncurrent value of the assets of such plan allocable to such accrued\nbenefits; and (iv) no such plan or any trust established thereunder has\nincurred any \"accumulated funding deficiency\" (as defined in section 302 of\nERISA and section 412 of the Code), whether or not waived, as of the last\nday of the most recent fiscal year of each Title IV Plan ended prior to the\nClosing Date. With respect to clauses (i) - (iv) of this Section 4.9(d),\ninsofar as such representations apply to section 4064, 4069 or 4204 of\nERISA, they are made with respect to any Title IV Plan to which the Company\nor any ERISA Affiliate of the Company made, or was required to make,\ncontributions during the period commencing January 1, 1995 and ending on\nthe last day of the most recent plan year ended prior to the Closing Date.\n\n                  (e) With respect to each Benefit Plan that is a \"welfare\nplan\" (as defined in section 3(1) of ERISA), no such plan provides medical\nor death benefits with respect to current or former employees of the\nCompany or any of its subsidiaries beyond their termination of employment,\nother than (i) coverage mandated by applicable Law; (ii) death benefits\nunder any \"pension plan\"; or (iii) benefits the full cost of which is now,\nand shall be in the future, borne by the current or former employee (or his\nbeneficiary). No condition exists that would prevent the Company or any of\nits subsidiaries from amending or terminating any Benefit Plan providing\nhealth or medical benefits in respect of any active or former employee of\nthe Company or any subsidiaries other than limitations imposed under the\nterms of collective bargaining agreements. There has been no material\nfailure of a Benefit Plan that is a group health plan (as defined in\nsection 5000(b)(1) of the Code) to meet the requirements of section\n4980B(f) of the Code with respect to a qualified beneficiary (as defined in\nsection 4980B(g) of the Code).\n\n                  (f) The consummation of the transactions contemplated by\nthis Agreement will not, alone or in combination with a related event, (i)\nentitle any individual to severance pay or accelerate the time of payment\nor vesting, or increase the amount, of compensation or benefits due to any\nindividual; (ii) constitute or result in a prohibited transaction under\nsection 4975 of the Code or section 406 or 407 of ERISA; or (iii) subject\nthe Company, any of its subsidiaries, any ERISA Affiliate of the Company,\nany of the Benefit Plans, any related trust, any trustee or administrator\nthereof, or any party dealing with the Benefit Plans or any such trust to\neither a civil penalty assessed pursuant to section 409 or 502(i) of ERISA\nor a tax imposed pursuant to section 4976 or 4980B of the Code.\n\n                  (g) Except as set forth in Section 4.9(g) of the\nDisclosure Schedule, there is no Benefit Plan that is a \"multiemployer\nplan,\" as such term is defined in section 3(37) of ERISA or a \"multiple\nemployer welfare arrangement\" as such term is defined in Section 3(40) of\nERISA. Except for contributions required to be made in the ordinary course\nto such multiemployer plans pursuant to the relevant collective bargaining\nagreements, no additional costs would be incurred by Parent, the Company,\nthe Surviving Corporation or any of their respective ERISA Affiliates in\nconnection with the withdrawal from such plans by Parent, the Company, the\nSurviving Corporation or any of their respective ERISA Affiliates. None of\nthe Benefit Plans set forth in Section 4.9(g) of the Disclosure Schedule is\na \"pension plan\" as such term is defined in Section 3(2) of ERISA.\n\n\n                  (h) With respect to each Benefit Plan, the Company has\ndelivered to Parent accurate and complete copies of all plan texts, summary\nplan descriptions, summaries of material modifications, trust agreements\nand other related agreements including all amendments to the foregoing; the\ntwo most recent annual reports; the most recent annual and periodic\naccounting of plan assets; the most recent determination letter received\nfrom the United States Internal Revenue Service; and the two most recent\nactuarial reports (including all attachments), to the extent any of the\nforegoing may be applicable to a particular Benefit Plan.\n\n                  Section 4.10. Labor Matters.\n\n                  (a) Except as specifically set forth in Section 4.10 of\nthe Disclosure Schedule, (i) neither the Company nor any of the\nsubsidiaries is party to any collective bargaining or other agreement with\nany labor organization, or work rules or practices agreed to with any labor\norganization or employee association applicable to employees of the Company\nor any of its subsidiaries; (ii) to the knowledge of the Company, no union\nclaims to represent the employees of the Company or any of its\nsubsidiaries; (iii) none of the employees of the Company or any of its\nsubsidiaries is represented by any labor organization and the Company has\nno knowledge of any current union organizing activities among the employees\nof the Company or any of its subsidiaries, nor, to the knowledge of the\nCompany, does any question concerning representation exist concerning such\nemployees; and (iv) there are no written personnel policies, rules or\nprocedures applicable to employees of the Company or any of its\nsubsidiaries. There is no labor strike, dispute, slowdown, stoppage or\nlockout actually pending or, to the knowledge of the Company, threatened\nagainst or affecting the respective business activities of the Company or\nany of its subsidiaries and during the past five years there has not been\nany such action. There is no unfair labor practice charge or complaint\nagainst the Company or any of its subsidiaries pending or, to the knowledge\nof the Company, threatened before the National Labor Relations Board or any\nsimilar state or foreign agency. To the knowledge of the Company, no\ncharges with respect to or relating to the Company or any of its\nsubsidiaries are pending before the Equal Employment Opportunity Commission\nor any other Governmental Authorities responsible for the prevention of\nunlawful employment practices or any Governmental Authorities responsible\nfor the enforcement of employee health and safety (including under the\nOccupational Safety and Health Act and the regulations thereunder). The\nCompany has not received written notice, or to the knowledge of the Company\nany verbal notice, of the intent of any federal, state, local or foreign\nagency responsible for the enforcement of labor or employment laws or\nemployee health and safety laws to conduct an investigation with respect to\nor relating to the Company or any of its subsidiaries and, to the knowledge\nof the Company, no such investigation is in progress. There are no\ncomplaints, lawsuits or other proceedings pending or, to the knowledge of\nthe Company, threatened in any forum by or on behalf of any present or\nformer employee of the Company or any of its subsidiaries, any applicant\nfor employment or classes of the foregoing alleging any breach by the\nCompany or any of its subsidiaries of any express or implied contract of\nemployment, any laws governing employment or the termination thereof or\nother discriminatory, wrongful or tortious conduct in connection with the\nemployment relationship or any employee health and safety laws.\n\n                  (b) The Company and each of its subsidiaries has paid in\nfull, or fully accrued for in the financial statements of the Company, all\nwages, salaries, commissions, bonuses, severance payments, vacation\npayments, holiday pay, sick pay, pay in lieu of compensatory time and other\ncompensation due or to become due to all current and former employees of\nthe Company and each of its subsidiaries for all services performed by any\nof them on or prior to the date hereof. The Company and each of its\nsubsidiaries has withheld and paid in a timely manner all Taxes required to\nhave been withheld and paid in connection with amounts paid or owing to any\nemployee or independent contractor. The Company and each of its\nsubsidiaries are, and at all times have been, in all material respects, in\ncompliance with all applicable federal, state and local and foreign laws,\nrules and regulations relating to the employment of labor including laws,\nrules and regulations relating to payment of wages, employment and\nemployment practices, terms and conditions of employment, hours,\nimmigration, equal employment opportunity, discrimination, child labor,\noccupational health and safety, collective bargaining and the payment and\nwithholding of taxes and other sums required by Governmental Authorities.\nTo the knowledge of the Company, the Company and its subsidiaries are not\nengaged in any unfair labor practices as defined in the National Labor\nRelations Act or other applicable law or regulation, and there is no\ngrievance pending or, to the knowledge of the Company, threatened which\narises out of any collective bargaining agreement or other grievance\nprocedure.\n\n                  (c) Except as set forth in Section 4.10(c) of the\nDisclosure Schedule, since the enactment of the Worker Adjustment and\nRetraining Notification Act (the \"WARN Act\"), neither the Company nor any\nof its subsidiaries has effectuated (i) a \"plant closing\" (as defined in\nthe WARN Act) affecting any site of employment or one or more facilities\n(as defined in the WARN Act) affecting any site of employment or one or\nmore facilities or operating units within any site of employment or\nfacility of the Company or any of its subsidiaries; or (ii) a \"mass-layoff\"\n(as defined in the WARN Act) affecting any site of employment or facility\nof the Company or any of its subsidiaries; nor has the Company or any of\nits subsidiaries effected any transaction or engaged in layoffs or\nemployment terminations sufficient in number to trigger application of any\nsimilar state, local or foreign law or regulation. Except as disclosed in\nSection 4.10(c) of the Disclosure Schedule, none of the employees of the\nCompany or any of its subsidiaries has suffered an \"employment loss\" (as\ndefined in the WARN Act) during the six month period prior to the date of\nthis Agreement. The listing in Section 4.10(c) of the Disclosure Schedule\nshall be updated at the Closing Date for employment losses occurring during\nthe 90 day period prior to the Closing Date.\n\n\n                  Section 4.11. Litigation; Compliance with Law.\n\n                  (a) Except as disclosed in Section 4.11 of the Disclosure\nSchedule, there is no suit, claim, action, proceeding or investigation\npending or, to the knowledge of the Company, threatened against or\naffecting, the Company or any of its subsidiaries which has, or would\nreasonably be expected to have, a Company Material Adverse Effect, or\nmaterially impair the ability of the Company to consummate or prevent or\nmaterially delay the consummation of, the transactions contemplated hereby.\n\n                  (b) The Company and its subsidiaries have complied in a\ntimely manner and in all material respects, with all Laws of any\nGovernmental Authority relating to any of the property owned, leased or\nused by them, or applicable to their business, including but not limited\nto, equal employment opportunity, discrimination, occupational safety and\nhealth, environmental, interstate commerce and antitrust laws. The\nCompany's and its subsidiaries' assets and properties (in each case,\ntangible and intangible) have been operated and maintained, in all material\nrespects, in accordance with the Rules and Regulations of the U.S.\nDepartment of Federal Highway Act and the Rules and Regulations of the U.S.\nDepartment of Transportation, as applicable.\n\n                  Section 4.12. Taxes. (a) Except as set forth in Section\n4.12 of the Disclosure Schedule:\n\n                        (i) the Company and its subsidiaries and each\n                  affiliated, combined, consolidated or unitary group of\n                  which the Company or any of its subsidiaries is or has\n                  been a member (a \"Company Group\") have (x) duly and\n                  timely filed (or there have been filed on their behalf)\n                  with the appropriate Governmental Authorities all Tax\n                  Returns required to be filed by them on or prior to the\n                  date hereof, and such Tax Returns are true, correct and\n                  complete, and (y) duly paid in full, or made provision in\n                  accordance with GAAP (or there has been paid or provision\n                  has been made on their behalf) for the payment of, all\n                  Taxes for all periods ending through the date hereof;\n\n                        (ii) there are no Liens for Taxes upon any property\n                  or assets of the Company or any of its subsidiaries,\n                  except for Liens for Taxes not yet due and payable;\n\n                        (iii) the Company and its subsidiaries have\n                  complied in all respects with all applicable laws, rules\n                  and regulations relating to the payment and withholding\n                  of Taxes (including withholding of Taxes pursuant to\n                  Sections 1441 and 1442 of the Code or similar provisions\n                  under any foreign laws) and have, within the time and the\n                  manner prescribed by law, withheld from employee wages\n                  and paid over to the proper Governmental Authorities all\n                  amounts required to be so withheld and paid over under\n                  applicable laws;\n\n                        (iv) no federal, state, local or foreign audits or\n                  other administrative proceedings or court proceedings are\n                  presently pending with regard to any Taxes or Tax Returns\n                  of the Company or its subsidiaries or any Company Group\n                  and neither the Company nor any of its subsidiaries has\n                  received notice of any pending audits or proceedings with\n                  regard to any Taxes or Tax Returns of the Company or its\n                  Subsidiaries or any Company Group;\n\n                        (v) the federal income Tax Returns of the Company\n                  and its subsidiaries and any Company Group have been\n                  examined by the Internal Revenue Service (or the\n                  applicable statutes of limitation for the assessment of\n                  federal income Taxes for such periods have expired) for\n                  all periods through and including December 31, 1997, and\n                  no material deficiencies were asserted as a result of\n                  such examinations which have not been resolved and fully\n                  paid;\n\n                        (vi) neither the Company nor any of its\n                  subsidiaries is a party to any agreement, contract or\n                  arrangement that could result, separately or in the\n                  aggregate, in the payment of any \"excess parachute\n                  payments\" within the meaning of Section 280G of the Code;\n\n                        (vii) neither the Company nor any of its\n                  subsidiaries has made any change in Tax accounting\n                  methods since January 1, 1990;\n\n\n                        (viii) there are no outstanding requests,\n                  agreements, consents or waivers to extend the statutory\n                  period of limitations applicable to the assessment of any\n                  Taxes or deficiencies against the Company or any of its\n                  subsidiaries, and no power of attorney granted by either\n                  the Company or any of its subsidiaries with respect to\n                  any Taxes is currently in force;\n\n                        (ix) neither the Company nor any of its\n                  subsidiaries is a party to any agreement providing for\n                  the allocation or sharing of Taxes;\n\n                        (x) neither the Company nor any of its subsidiaries\n                  has, with regard to any assets or property held, acquired\n                  or to be acquired by any of them, filed a consent to the\n                  application of Section 341(f) of the Code, or agreed to\n                  have Section 341(f)(2) of the Code apply to any\n                  disposition of a subsection (f) asset (as such term is\n                  defined in Section 341(f)(4) of the Code) owned by the\n                  Company or any of its subsidiaries; and\n\n                        (xi) all transactions that could give rise to an\n                  understatement of the federal income tax liability of the\n                  Company or any of its subsidiaries within the meaning of\n                  Section 6662(d) of the Code are adequately disclosed on\n                  Tax Returns in accordance with Section 6662(d)(2)(B) of\n                  the Code if there is or was no substantial authority for\n                  the treatment giving rise to such understatement.\n\n                  (b) No excess loss accounts exist as described in Section\n1.1502-19 of the regulations promulgated under the Code (the \"Treasury\nRegulations\") with respect to the Company or its subsidiaries.\n\n                  (c) There are no net operating loss carryovers available\nto the Company or its subsidiaries.\n\n                  (d) Neither the Company nor any of its subsidiaries has\ntaken or agreed to take any action or knows of any fact, circumstance, plan\nor intention that will, or would be reasonably likely to, prevent the\nTransaction from qualifying as a reorganization within the meaning of\nSection 368(a) of the Code.\n\n                  Section 4.13. Contracts. Except as disclosed in Section\n4.13 of the Disclosure Schedule, neither the Company nor any of its\nsubsidiaries is a party to or bound by any contract, arrangement,\ncommitment or understanding (whether written or oral), (a) any of the\nbenefits of which will be increased, or the vesting of the benefits of\nwhich will be accelerated, by the occurrence of any of the transactions\ncontemplated by this Agreement, or the value of any of the benefits of\nwhich will be calculated on the basis of any of the transactions\ncontemplated by this Agreement, (b) (1) which is a \"material contract\" (as\nsuch term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or\n(2) which involves expenditures in excess of $100,000, (c) which contains\nany non-compete or exclusivity provisions with respect to any material line\nof business or material geographic area with respect to the Company or any\nof its subsidiaries, or which restricts the conduct of any material line of\nbusiness by the Company or any of its subsidiaries or any material\ngeographic area in which the Company or any of its subsidiaries may conduct\nbusiness, in each case in any material respect or (d) which would prohibit\nor materially delay the consummation of the Offer, the Merger or any of the\ntransactions contemplated in this Agreement. The Company has previously\nmade available to Parent true and complete copies of all (A) material\nagreements with customers and suppliers listed in Section 4.13 of the\nDisclosure Schedule to which the Company or any of its subsidiaries is a\nparty and (B) employment and deferred compensation agreements with\ndirectors, executive officers and key employees, and material agreements\nwith consultants, which are in writing and to which the Company or any of\nits subsidiaries is a party. Each contract, arrangement, commitment or\nunderstanding of the type described in this Section 4.13, whether or not\nset forth in Section 4.13 of the Disclosure Schedule, is referred to herein\nas a \"Company Agreement.\" Each Company Agreement is valid and binding on\nthe Company or its subsidiaries, as applicable, and in full force and\neffect, and the Company and each of its subsidiaries have performed all\nobligations required to be performed by them until the date hereof under\neach Company Agreement, except those that are not, and would not reasonably\nbe expected to be, material to the Company. Neither the Company nor any of\nits subsidiaries knows of, or has received written notice, or to the\nknowledge of the Company, verbal notice, of, any violation or default under\n(or any condition which with the passage of time or the giving of notice\nwould case such a violation of or default under) any Company Agreement or\nany other loan or credit agreement, note, bond, mortgage, indenture or\nlease, or any other contract, agreement, arrangement or understanding to\nwhich it is a party or by which it or any of its properties or assets is\nbound, except for violations or defaults that are not, or would not\nreasonably be expected to be, material to the Company.\n\n                  Section 4.14. Environmental Matters.\n\n                  (a) The Company and each of its subsidiaries has been and\nis in material compliance with all applicable Environmental Laws, including\npossessing all material permits, authorizations, licenses, exemptions and\nother governmental authorizations required for its operations under\napplicable Environmental Laws, (all of the foregoing, whether material or\nnot, the \"Environmental Permits\"). All such Environmental Permits are in\neffect, no appeal nor any other action is pending to revoke any such\nEnvironmental Permit, and the Company and each of its subsidiaries are in\ncompliance in all material respects with all terms and conditions of such\nEnvironmental Permits. To the extent required by applicable Environmental\nLaws, the Company and each of its subsidiaries have filed (or will have\nfiled by the Closing Date) all applications necessary to renew or obtain\nany Environmental Permits in a timely fashion so as to allow the Company\nand each of its subsidiaries to continue to operate their businesses in\ncompliance with applicable Environmental Laws, and the Company does not\nexpect such new or renewed Environmental Permits to include any terms or\nconditions that will have a material impact on the Company or any of its\nsubsidiaries.\n\n                  (b) There is no pending or threatened written claim,\nlawsuit, or administrative proceeding against the Company or any of its\nsubsidiaries, under or pursuant to any Environmental Law, that has, or\nwould reasonably be expected to have, a Company Material Adverse Effect.\nNeither the Company nor any of its subsidiaries has received written notice\nfrom any person, including any Governmental Authority, alleging that the\nCompany or any of its subsidiaries has been or is in violation or\npotentially in violation of any applicable Environmental Law or otherwise\nmay be liable under any applicable Environmental Law, which violation or\nliability is unresolved. Neither the Company nor any of its subsidiaries\nhas received any written request for information from any person, including\nbut not limited to any Governmental Authority, related to liability under\nor compliance with any applicable Environmental Law, except for such\nmatters, if they matured into a claim against the Company or any of its\nsubsidiaries, that do not have, or would not reasonably be expected to have\na Company Material Adverse Effect.\n\n\n                  (c) With respect to the real property that is currently\nowned, leased or operated by the Company or any of its subsidiaries, there\nhave been no Releases of Hazardous Substances on or underneath any of such\nreal property that have, or would reasonably be expected to have, a Company\nMaterial Adverse Effect.\n\n                  (d) With respect to real property that was formerly\nowned, leased or operated by the Company or any of its subsidiaries or any\nof their predecessors in interest, there were no Releases of Hazardous\nSubstances on or underneath any of such real property during or prior to\nthe Company's or any of its subsidiaries' ownership or operation of such\nreal property that have, or would reasonably be expected to have, a Company\nMaterial Adverse Effect.\n\n                  (e) Neither the Company nor any of its subsidiaries has\nentered into any agreement that may require them to pay to, reimburse,\nguarantee, pledge, defend, indemnify or hold harmless any person from or\nagainst any liabilities or costs arising out of or related to the\ngeneration, manufacture, use, transportation or disposal of Hazardous\nSubstances, or otherwise arising in connection with or under Environmental\nLaws.\n\n                  (f) Except as set forth in Section 4.14(f) of the\nDisclosure Schedule, the Company and each of its subsidiaries have never\nengaged in any activities that have required or should have required the\nCompany or any of its subsidiaries to obtain a permit as a transporter of\nhazardous waste (as such term is defined pursuant to the Resource\nConservation and Recovery Act, 42 U.S.C. ss. 6901, et seq. (\"RCRA\") or any\nsimilar state statute), or as the owner or operator of a facility that\ntreated, stored or disposed of hazardous waste, in accordance with the\nrequirements of RCRA or any similar state statute.\n\n                  (g) Except as set forth in Section 4.14 of the Disclosure\nSchedule, or except with respect to former underground storage tanks that\nhave been removed or closed in place in accordance with applicable Law and\nas to which no further action (including no further environmental\ninvestigation or cleanup) is required and no further costs or liability is\ninvolved, neither the Company nor any of its subsidiaries currently owns or\noperates or formerly owned or operated any underground storage tanks\nsubject to regulation pursuant to Subchapter IX of RCRA (42 U.S.C. ss.ss.\n6991-6991i) or similar statute statutes.\n\n                  (h) To the knowledge of the Company, neither the Company\nnor any of its subsidiaries, within the next five years, will be required\nto expend monies for capital improvements in order to (1) comply or\nmaintain compliance with applicable Environmental Laws or (2) comply with\nregulatory requirements that are not now effective, but to the knowledge of\nthe Company, will be or are reasonably expected to become effective after\nthe Closing Date, except for such expenditures that are reasonably expected\nto be less than $60,000 per annum and $200,000 in the aggregate.\n\n                  Section 4.15. Intellectual Property.\n\n                  (a) As used herein: (i) \"Intellectual Property\" means all\nU.S. and foreign (a) trademarks, service marks, trade names, Internet\ndomain names, designs, logos, slogans and general intangibles of like\nnature, together with goodwill, registrations and applications relating to\nthe foregoing (\"Trademarks\"); (b) patents and pending patent applications,\npatent disclosures, and any and all divisions, continuations,\ncontinuations-in-part, reissues, reexaminations, and any extensions\nthereof, any counterparts claiming priority therefrom, utility models,\npatents of importation\/confirmation, certificates of invention and like\nstatutory rights (\"Patents\"), (c) registered and unregistered copyrights\n(including those in Software), rights of publicity and all registrations\nand applications to register the same (\"Copyrights\"); and (d) confidential\ninformation, technology, know-how, inventions, processes, formulae,\nalgorithms, models and methodologies (\"Trade Secrets\"); (ii) \"IP Licenses\"\nmeans all licenses and agreements (excluding \"click-wrap\" or \"shrink-wrap\"\nagreements or agreements contained in \"off-the-shelf\" Software or the terms\nof use or service for any Web site) pursuant to which the Company and its\nsubsidiaries have acquired rights in (including usage rights) to any\nIntellectual Property, or licenses and agreements pursuant to which the\nCompany and its subsidiaries have licensed or transferred the right to use\nany Intellectual Property, including license agreements, settlement\nagreements and covenants not to sue; (iii) \"Software\" means all computer\nprograms, including any and all software implementations of algorithms,\nmodels and methodologies whether in source code or object code form,\ndatabases and compilations, including any and all data and collections of\ndata, all documentation, including user manuals and training materials,\nrelated to any of the foregoing and the content and information contained\non any Web site; and (iv) \"Company Intellectual Property\" means the\nIntellectual Property and Software held for use or used in the business of\nCompany or its subsidiaries as presently conducted or as currently proposed\nto be conducted.\n\n                  (b) Section 4.15(b) of the Disclosure Schedule sets\nforth, for the following Intellectual Property owned by the Company and its\nsubsidiaries, a complete and accurate list of all U.S., state and foreign:\n(i) Patents; (ii) Trademarks (including Internet domain name registrations)\nand material unregistered trademarks and service marks; and (iii)\nCopyrights and material unregistered copyrights.\n\n                  (c) Section 4.15(c) of the Disclosure Schedule lists all\nmaterial Software which is owned by the Company or its subsidiaries\n(\"Proprietary Software\"), and all material IP Licenses.\n\n                  (d) The Company, or one of its subsidiaries, owns or\npossesses licenses or other legal rights to use, sell or license all\nCompany Intellectual Property, free and clear of all Liens, except\nPermitted Liens.\n\n                  (e) All Trademarks, Patents and Copyrights owned by the\nCompany and its subsidiaries and to the knowledge of the Company, all\nTrademarks, Patents and Copyrights used by but not owned by the Company and\nits subsidiaries are valid and subsisting, in full force and effect and\nhave not lapsed, expired or been abandoned, and are not the subject of any\nopposition filed with the United States Patent and Trademark Office or any\nother intellectual property registry.\n\n                  (f) The Company Intellectual Property and the IP Licenses\nconstitute all the Intellectual Property, Software and IP Licenses that are\nnecessary for the continuing conduct and operation of the Company's\nbusiness (as described in the Company's Annual Report filed with the SEC on\nForm 10-K for the period ending December 31, 2000) in all material respects\nas conducted and operated by the Company immediately prior to the date\nhereof.\n\n                  (g) Except as set forth in Section 4.15(g) of the\nDisclosure Schedule:\n\n                        (i) no claims, or to the knowledge of Company,\n                  threat of claims, have been asserted by any Third Party\n                  against the Company or any of its subsidiaries related to\n                  the use in the conduct of the businesses of the Company\n                  and its subsidiaries of any Intellectual Property or\n                  Software, or challenging or questioning the validity or\n                  effectiveness of any IP License;\n\n                        (ii) no settlement agreements, consents, judgments,\n                  orders, forebearances to sue or similar obligations limit\n                  or restrict the Company's or any subsidiary's rights in\n                  and to any Company Intellectual Property ;\n\n                        (iii) to the knowledge of the Company, the conduct\n                  of the businesses of the Company and its subsidiaries\n                  does not infringe, misappropriate, dilute or otherwise\n                  violate any Intellectual Property rights of any Third\n                  Party.\n\n                        (iv) the Company and its subsidiaries have not\n                  licensed or sublicensed their rights in any Company\n                  Intellectual Property, or received or been granted any\n                  such rights, other than pursuant to the IP Licenses;\n\n                        (v) to the knowledge of the Company, no Third Party\n                  is misappropriating, infringing, diluting or violating\n                  any Intellectual Property owned by the Company or its\n                  subsidiaries;\n\n                        (vi) the IP Licenses are valid and binding\n                  obligations of the Company and\/or the relevant\n                  subsidiary, enforceable in accordance with their terms,\n                  and there is no material default thereof by the Company\n                  or any of its subsidiaries or, to the knowledge of the\n                  Company, of the other party thereto;\n\n                        (vii) the Company and its subsidiaries have taken\n                  all reasonable measures to protect the confidentiality of\n                  their Trade Secrets; and\n\n                        (viii) the consummation of the transactions\n                  contemplated hereby will not result in the loss or\n                  impairment of the Company's and its subsidiaries' rights\n                  to own or use any of the Company Intellectual Property,\n                  nor will such consummation require the consent of any\n                  Third Party in respect of any Intellectual Property.\n\n                  Section 4.16. Title, Sufficiency and Condition of Assets.\n\n                  (a) The Company and its subsidiaries, in each case, have\ngood and valid title to their owned assets and properties (in each case,\ntangible and intangible) or, in the case of assets and properties which\nthey lease, license or have other rights in, valid leasehold, license or\nother interests in such, assets and properties, in each case, free and\nclear of all Liens, except for Permitted Liens.\n\n                  (b) The Company and its subsidiaries have good and valid\ntitle to, or rights by lease, license or other agreement to use, all assets\nand properties (in each case, tangible and intangible) necessary to permit\nthe Company and its subsidiaries to conduct their business as currently\nconducted. The assets and properties (in each case, tangible and\nintangible) owned or used by the Company are in satisfactory condition and\nrepair for their continued use as they have been used and adequate in all\nmaterial respects for their current use.\n\n                  Section 4.17. Transactions with Affiliates. Except as\ndisclosed in Section 4.17 of the Disclosure Schedule, since December 31,\n2000, there has been no transaction, or series of similar transactions,\nagreements, arrangements or understandings, nor are there any currently\nproposed transactions, or series of similar transactions, agreements,\narrangements or understandings to which the Company or any of its\nsubsidiaries was or is to be a party, that would be required to be\ndisclosed under Item 404 of Regulation S-K promulgated under the Securities\nAct.\n\n                  Section 4.18. Opinion of Financial Advisor. The Company\nhas received an opinion from Morgan Keegan &amp; Company, Inc. to the effect\nthat the consideration to be received by the shareholders of the Company\npursuant to the Offer and the Merger is fair to such shareholders from a\nfinancial point of view, a copy of which opinion has been delivered to\nParent.\n\n                  Section 4.19. Broker's or Finder's Fee. Except for the\nfees of Morgan Keegan &amp; Company, Inc. (whose fees and expenses will be paid\nby the Company in accordance with the Company's agreement with such firm, a\ntrue and correct copy of which has been previously delivered to Parent by\nthe Company), no agent, broker, person or firm acting on behalf of the\nCompany or its subsidiaries is, or will be, entitled to any fee, commission\nor broker's or finder's fees from any of the parties hereto, or from any\nperson controlling, controlled by, or under common control with, any of the\nparties hereto, in connection with this Agreement, the Shareholder\nAgreements or any of the transactions contemplated hereby or thereby.\n\n                                 ARTICLE V\n\n                       REPRESENTATIONS AND WARRANTIES\n                          OF PARENT AND MERGER SUB\n\n                  Parent and the Merger Sub represent and warrant to the\nCompany as follows:\n\n                  Section 5.1. Organization and Qualification. Each of\nParent and Merger Sub is a corporation duly organized, validly existing and\nin good standing under the laws of the State of Utah. Each of Parent and\nMerger Sub has the requisite corporate power and corporate authority and\nany necessary material governmental authority, franchise, license,\ncertificate or permit to own, operate or lease the properties that it\npurports to own, operate or lease and to carry on its business as it is now\nbeing conducted, and is duly qualified as a foreign corporation to do\nbusiness, and is in good standing, in each jurisdiction where the character\nof its properties owned, operated or leased or the nature of its activities\nmakes such qualification necessary, except for such failures to be so\nqualified and in good standing which are not, and would not be reasonably\nlikely to be, material to Parent.\n\n                  Section 5.2. Corporate Authorization; Validity of\nAgreement; Necessary Action. Each of Parent and Merger Sub has the\nrequisite corporate power and corporate authority to enter into this\nAgreement, to perform its obligations hereunder and to consummate the\ntransactions contemplated by this Agreement. The execution and delivery of\nthis Agreement by each of Parent and Merger Sub and the consummation by\neach of Parent and Merger Sub of the transactions contemplated by this\nAgreement have been duly authorized by all necessary corporate action on\nthe part of each of Parent and Merger Sub. This Agreement has been duly\nexecuted and delivered by each of Parent and Merger Sub and, assuming this\nAgreement constitutes a valid and binding obligation of the Company,\nconstitutes a valid and binding obligation of each of Parent and Merger Sub\nenforceable against each of Parent and Merger Sub in accordance with its\nterms, except to the extent that such enforcement may be subject to\napplicable bankruptcy, insolvency, reorganization, moratorium or other\nsimilar laws, now or hereafter in effect, affecting creditors' rights\ngenerally, and by general equitable principles. The authorized capital\nstock of Parent consists of (A) 500,000,000 shares of common stock, par\nvalue $2.50 per share and (B) 20,000,000 shares of preferred stock, no par\nvalue, of which no shares are outstanding. As of September 30, 2001,\n248,385,281 shares of Parent Common Stock were issued and outstanding and\n27,102,444 shares of Parent Common Stock were held in the treasury of\nParent. In addition, Parent may issue shares of its capital stock upon the\nexercise or conversion of presently outstanding securities, the number and\nterms of which are summarized in the Parent SEC Documents as of the\nrespective dates thereof. The shares of Parent Common Stock to be issued\npursuant to the Merger will be duly authorized, validly issued, fully paid\nand nonassessable and not subject to preemptive rights.\n\n                  Section 5.3. Consents and Approvals; No Violations.\n\n                  (a) Except for filings and Permits as may be required\nunder, and other applicable requirements of, the Exchange Act, the\nSecurities Act, the URBCA, state blue sky laws and any applicable state\ntakeover laws, neither the execution, delivery or performance of this\nAgreement by Parent and the Merger Sub nor the consummation by Parent and\nthe Merger Sub of the transactions contemplated hereby nor compliance by\nParent and the Merger Sub with any of the provisions hereof will (i)\nconflict with or result in any breach of any provision of the respective\narticles of incorporation or by-laws of Parent or Merger Sub, (ii) result\nin a violation or breach of, or constitute (with or without due notice or\nlapse of time or both) a default (or give rise to any right of termination,\namendment, cancellation or acceleration) under, any of the terms,\nconditions or provisions of any Indebtedness, lease, license, Permit,\ncontract, agreement or other instrument or obligation to which Parent or\nany of its subsidiaries is a party or by which any of them or any of their\nproperties or assets may be bound or (iii) violate any Law applicable to\nParent or Merger Sub or any of their respective properties or assets,\nexcept in the case of (ii) and (iii) for such violations, breaches or\ndefaults which do not have, and would not reasonably be expected to have, a\nParent Material Adverse Effect and which will not materially impair the\nability of Parent or Merger Sub to consummate or prevent or materially\ndelay the consummation of the Offer and the Merger or the other\ntransactions contemplated hereby.\n\n                  (b) No Consent by a Governmental Authority is required by\nor with respect to Parent or Merger Sub in connection with the execution\nand delivery of this Agreement by Parent or Merger Sub or the consummation\nby Parent or Merger Sub of the transactions contemplated by this Agreement,\nexcept for (i) the filing of a premerger notification and report form by\nParent under the HSR Act, and any applicable filings under other Antitrust\nLaws, (ii) the filing with the SEC of (A) the Offer Documents and (B) such\nreports under the Exchange Act and the Securities Act, as may be required\nin connection with this Agreement and the transactions contemplated hereby,\n(iii) such filings as may be required under state securities or \"blue sky\"\nlaws, (iv) the filing of the Articles of Merger with the Utah Department of\nCommerce, Division of Corporations and Commercial Code, and appropriate\ndocuments with the relevant authorities of other states in which the\nCompany is qualified to do business, and (v) such other consents,\napprovals, orders, authorizations, registrations, declarations and filings,\nthe failure of which to be made or obtained, do not have, and would not\nreasonably be expected to have, a Parent Material Adverse Effect, and which\nwill not materially impair the ability of Parent or Merger Sub to\nconsummate, or to prevent or materially delay the consummation of, the\ntransactions contemplated hereby.\n\n                  Section 5.4. Information To Be Supplied.\n\n                  (a) The information with respect to Parent and Merger Sub\nthat Parent and\/or Merger Sub, as the case may be, furnishes to the Company\nin writing specifically for use in the 14D-9 and the Proxy Statement, at\nthe time the 14D-9 is first sent or given to shareholders of the Company,\nand in the case of the Proxy Statement, at the time the Proxy Statement is\nmailed to the Company's shareholders or, at the time of the Company\nShareholder Meeting, will not contain any untrue statement of a material\nfact or omit to state any material fact required to be stated therein or\nnecessary to make the statements therein not misleading. The Offer\nDocuments will comply as to form in all material respects with the\nrequirements of the Exchange Act.\n\n                  (b) Notwithstanding the foregoing provisions of this\nSection 5.4, no representation or warranty is made by Parent with respect\nto statements made or incorporated by reference in the Proxy Statement or\nthe Offer Documents based on information supplied by the Company expressly\nfor inclusion or incorporation by reference therein or based on information\nwhich is not made in or incorporated by reference in such documents but\nwhich should have been disclosed pursuant to Section 4.8.\n\n                  Section 5.5. SEC Reports and Financial Statements. Parent\nhas filed with the SEC, and has heretofore made available to the Company\ntrue and complete copies of, all forms, reports, schedules, statements and\nother documents required to be filed by it and its subsidiaries since\nDecember 31, 1998 under the Exchange Act or the Securities Act (as such\ndocuments have been amended since the time of their filing, collectively,\nthe \"Parent SEC Documents\"). As of their respective dates or, if amended,\nas of the date of the last such amendment, the Parent SEC Documents,\nincluding any financial statements or schedules included therein (a) did\nnot contain any untrue statement of a material fact or omit to state a\nmaterial fact required to be stated therein or necessary in order to make\nthe statements therein, in light of the circumstances under which they were\nmade, not misleading and (b) complied in all material respects with the\napplicable requirements of the Exchange Act and the Securities Act, as the\ncase may be, and the applicable rules and regulations of the SEC\nthereunder. Each of the consolidated financial statements included in the\nParent SEC Documents have been prepared from, and are in accordance with,\nthe books and records of Parent and its consolidated subsidiaries, comply\nin all material respects with applicable accounting requirements and with\nthe published rules and regulations of the SEC with respect thereto, have\nbeen prepared in accordance with GAAP applied on a consistent basis during\nthe periods involved (except as may be indicated in the notes thereto) and\nfairly present the consolidated financial position and the consolidated\nresults of operations and cash flows (and changes in financial position, if\nany) of Parent and its consolidated subsidiaries as at the dates thereof or\nfor the periods presented therein.\n\n                  Section 5.6. Financing. Either Parent or the Merger Sub\nhas, or will have prior to the satisfaction of the conditions to the Offer,\nsufficient funds available (through existing credit arrangements or\notherwise) to deliver the Exchange Offer Consideration and Merger\nConsideration to all of the Company Shares outstanding which become\nentitled to receive such consideration.\n\n                  Section 5.7. Taxes. Neither Parent nor any of its\nsubsidiaries, including Merger Sub, has taken any action or knows of any\nfact, circumstance, plan or intention that will, or would be reasonably\nlikely to, prevent the Transaction from qualifying as a reorganization\nwithin the meaning of Section 368(a) of the Code.\n\n                                ARTICLE VI\n\n                                 COVENANTS\n\n                  Section 6.1. Interim Operations of the Company. The\nCompany covenants and agrees that, except as expressly provided in this\nAgreement, or with the prior written consent of Parent, which consent shall\nnot be unreasonably withheld, conditioned, or delayed, after the date\nhereof and prior to the Effective Time:\n\n                  (a) the business of the Company and its subsidiaries\nshall be conducted only in the ordinary and customary course consistent\nwith past practice, including, taking all reasonable measures to protect\nthe confidentiality of the Company's and its subsidiaries' Trade Secrets,\nand, to the extent consistent therewith, each of the Company and its\nsubsidiaries shall use reasonable best efforts to preserve its business\norganization intact and maintain its existing relations with customers,\nsuppliers, employees, creditors and business partners;\n\n                  (b) the Company will not, directly or indirectly, split,\ncombine or reclassify the outstanding Company Shares, or any outstanding\ncapital stock of any of the subsidiaries of the Company;\n\n                  (c) neither the Company nor any of its subsidiaries\nshall: (i) amend its articles of incorporation or bylaws or similar\norganizational documents; (ii) declare, set aside or pay any dividend or\nother distribution payable in cash, stock or property with respect to its\ncapital stock; (iii) issue, sell, transfer, pledge, dispose of or encumber\nany additional shares of, or securities convertible into or exchangeable\nfor, or options, warrants, calls, commitments or rights of any kind to\nacquire, any shares of capital stock of any class of the Company or its\nsubsidiaries, other than issuances pursuant to the exercise of Company\nOptions outstanding on the date hereof; (iv) transfer, lease, license,\nsell, mortgage, pledge, dispose of, or encumber any material assets other\nthan in the ordinary and usual course of business and consistent with past\npractice, or incur or modify any material Indebtedness; or (v) redeem,\npurchase or otherwise acquire directly or indirectly any of its capital\nstock;\n\n                  (d) neither the Company or any of its subsidiaries shall:\n(i) increase the compensation or benefits payable to any director, officer,\nother employee or consultant of the Company or any of its subsidiaries,\nother than in the ordinary course of business consistent with past\npractice; (ii) grant any severance or termination pay to (or amend any such\nexisting arrangement with) any director, officer, other employee or\nconsultant of the Company or any of its subsidiaries; (iii) enter into any\nemployment, deferred compensation or other similar agreement (or amend any\nsuch existing agreement) with any director, officer, other employee or\ncontractor of the Company or any of its subsidiaries; (iv) increase any\nbenefits payable under any existing severance or termination pay policies\nor agreements or employment agreements; or (v) permit any director,\nofficer, other employee or contractor of the Company or any of its\nsubsidiaries who is not already a party to an agreement or a participant in\na plan providing benefits upon or following a \"change in control\" to become\na party to any such agreement or a participant in any such plan, other than\npursuant to a pre-existing contractual commitment or as required by\napplicable Law;\n\n                  (e) neither the Company nor any of its subsidiaries\nshall: (i) adopt any new Benefit Plan, terminate any Benefit Plan or modify\nany Benefit Plan in a way that could result in additional cost to Parent,\nthe Company or any of their respective subsidiaries, except for any\namendments to a Benefit Plan required to maintain its qualified plan status\nunder Section 401(a) of the Code; (ii) modify any actuarial cost method,\nassumption or practice used in determining benefit obligations, annual\nexpense and funding for any Benefit Plan, except to the extent required by\nGAAP; (iii) subject to any ERISA fiduciary obligation, modify the\ninvestment philosophy of the Benefit Plan trusts or maintain an asset\nallocation which is not consistent with such philosophy; (iv) subject to\nany ERISA fiduciary obligation, enter into any outsourcing agreement, or\nany other material contract relating to the Benefit Plans or management of\nthe Benefit Plan trusts; (v) grant any ad hoc pension increase; or (vi)\nestablish any new or fund any existing \"rabbi\" or similar trust (except in\naccordance with the current terms of any Benefit Plan), or enter into any\nother arrangement for the purpose of securing non-qualified retirement\nbenefits, termination benefits or deferred compensation;\n\n                  (f) neither the Company nor any of its subsidiaries shall\nmodify, amend or terminate any of the Company Agreements or waive, release\nor assign any material rights or claims, except in the ordinary course of\nbusiness and consistent with past practice;\n\n                  (g) neither the Company nor any of its subsidiaries shall\npermit any material insurance policy naming it as a beneficiary or a loss\npayable payee to be cancelled or terminated without notice to Parent,\nexcept in the ordinary course of business and consistent with past\npractice;\n\n                  (h) neither the Company nor any of its subsidiaries\nshall: (i) incur Indebtedness; provided, however, the Company may incur\nIndebtedness, if such Indebtedness is incurred on an arm's length basis\nwith nationally recognized financial institutions and such Indebtedness\ndoes not exceed $500,000 in net debt and is incurred in the ordinary course\nof business consistent with past practice; (ii) make any loans, advances or\ncapital contributions to, or investments in, any other person (other than\nto wholly-owned subsidiaries of the Company); or (iii) enter into any\nmaterial commitment or transaction (including any borrowing, capital\nexpenditure or purchase, sale or lease of assets) requiring a capital\nexpenditure by the Company or its subsidiaries other than capital\nexpenditures pursuant to the Company's capital expenditures budget\npreviously furnished to Parent and other capital expenditures that do not\nexceed $50,000 in the aggregate since June 30, 2001;\n\n                  (i) neither the Company nor any of its subsidiaries shall\nchange any method of reporting income, deductions or other items for income\nTax purposes, make or change any election with respect to Taxes, agree to\nor settle any claim or assessment in respect of Taxes, or agree to an\nextension or waiver of the limitation period to any claim or assessment in\nrespect of Taxes, other than in the ordinary course of business consistent\nwith past practice or as required by Law;\n\n                  (j) neither the Company nor any of its subsidiaries shall\nchange any of the accounting principles used by it unless required by GAAP;\n\n                  (k) neither the Company nor any of its subsidiaries shall\npay, discharge or satisfy any claims, liabilities or obligations (absolute,\naccrued, asserted or unasserted, contingent or otherwise), other than the\npayment, discharge or satisfaction of any such claims, liabilities or\nobligations, (i) in the ordinary course of business and consistent with\npast practice, of claims, liabilities or obligations reflected or reserved\nagainst in, or contemplated by, the consolidated financial statements (or\nthe notes thereto) of the Company and its consolidated subsidiaries, (ii)\nincurred in the ordinary course of business and consistent with past\npractice or (iii) which are legally required to be paid, discharged or\nsatisfied (provided that if such claims, liabilities or obligations\nreferred to in this clause (iii) are legally required to be paid and are\nalso not otherwise payable in accordance with clauses (i) or (ii) above,\nthe Company will notify Parent in writing reasonably in advance of their\npayment if such claims, liabilities or obligations exceed, individually or\nin the aggregate, $25,000 in value);\n\n                  (l) (i) acquire (by merger, consolidation, or acquisition\nof stock or assets) any corporation, partnership or other business\norganization or division thereof or make any investment in another entity\n(other than an entity which is a wholly-owned subsidiary of the Company as\nof the date hereof and other than incorporation of a wholly-owned\nsubsidiary of the Company) or (ii) sell, pledge, dispose of, or encumber or\nauthorize or propose the sale, pledge, disposition or encumbrance of any\nassets of the Company or any of its subsidiaries, except in the ordinary\nand customary course of business consistent with past practice;\n\n                  (m) take any action which it believes when taken could\nreasonably be expected to adversely affect or delay in any material respect\nthe ability of any of the parties hereto to obtain any approval of any\nGovernmental Authority required to consummate the transactions contemplated\nhereby;\n\n                  (n) take any action to cause the Company Shares to cease\nto be quoted on the Nasdaq National Market prior to the Closing Date;\n\n                  (o) neither the Company nor any of its subsidiaries will\ntake, or agree to commit to take, any action that would make any\nrepresentation or warranty of the Company contained herein inaccurate in\nany respect at, or as of any time prior to, the Effective Time; and\n\n                  (p) neither the Company nor any of its subsidiaries will\nenter into an agreement, contract, commitment or arrangement to do any of\nthe foregoing, or to authorize, recommend, propose or announce an intention\nto do any of the foregoing.\n\n                  Section 6.2. Preparation of Proxy Statement; Company\nShareholder Meeting.\n\n                  (a) If required by applicable Law, promptly after the\nacceptance for exchange of Company Shares pursuant to the Offer, the\nCompany shall prepare and file with the SEC under the Exchange Act the\nProxy Statement and use all reasonable best efforts to have the Proxy\nStatement cleared by the SEC as promptly as practicable after the\nacceptance by Parent for exchange of Company Shares pursuant to the Offer.\nThe Company shall mail the Proxy Statement to its shareholders as promptly\nas practicable after the Proxy Statement has cleared the SEC. Each of the\nCompany, Parent and Merger Sub will promptly correct any information\nprovided by it for use in the Proxy Statement if and to the extent that it\nshall have become false or misleading in any material respect prior to the\nCompany Shareholder Meeting, and the Company will cause the Proxy Statement\nas so corrected to be filed with the SEC and to be disseminated to holders\nof Company Shares, in each case as and to the extent required by applicable\nfederal securities laws. Parent and its counsel shall be given a reasonable\nopportunity to review and comment upon the Proxy Statement before it is\nfiled with the SEC. In addition, the Company agrees to provide Parent,\nMerger Sub and their counsel with any comments that the Company or its\ncounsel may receive from time to time from the SEC or its staff with\nrespect to the Proxy Statement promptly after the receipt of such comments\nand to consult with Parent, Merger Sub and their counsel prior to\nresponding to any such comments. The Company will advise Parent of the time\nwhen the SEC has cleared the Proxy Statement, promptly after it receives\nnotice thereof.\n\n                  (b) If approval of the Company's shareholders is required\nby applicable law in order to consummate the Merger, the Company shall\nestablish, prior to or as soon as practicable following the date upon which\nthe Proxy Statement has been cleared by the SEC, a record date (which shall\nbe prior to or as soon as practicable following the date upon which the\nProxy Statement has been cleared by the SEC) for, duly call, give notice\nof, convene and hold a meeting of its shareholders (the \"Company\nShareholder Meeting\") for the purpose of considering and taking action upon\nthis Agreement and the Merger and (with the consent of Parent) such other\nmatters as may in the reasonable judgment of the Company be appropriate for\nconsideration at the Company Shareholder Meeting. Once the Company\nShareholder Meeting has been called and noticed, the Company shall not\npostpone or adjourn the Company Shareholder Meeting (other than for the\nabsence of a quorum) without the consent of Parent. The Board of Directors\nof the Company shall include the Recommendations in the Proxy Statement as\nsuch Recommendations pertain to the Merger and this Agreement. The Company\nshall use its reasonable best efforts to solicit from shareholders of the\nCompany proxies in favor of this Agreement and the Merger and shall take\nall other actions necessary or advisable to secure the vote or consent of\nshareholders required by the URBCA to effect the Merger.\n\n                  (c) Notwithstanding the foregoing clauses (a) and (b)\nabove, in the event that Parent shall acquire at least 90% of the\noutstanding Company Shares in the Offer, subject to the satisfaction or (to\nthe extent permitted hereunder) waiver of all conditions to the Merger, the\nparties hereto shall take all necessary actions to cause the Merger to\nbecome effective, as soon as practicable after the acceptance for exchange\nand purchase of such Company Shares pursuant to the Offer, without a\nmeeting of shareholders of the Company, in accordance with Section\n16-10a-1104 of the URBCA, including, the contribution by Parent to Merger\nSub of all Company Shares then held by Parent or such other actions as may\nbe necessary such that the Transaction will qualify as a reorganization\nunder Section 368(a) of the Code.\n\n                  Section 6.3. Access to Information. The Company shall\n(and shall cause each of its subsidiaries to) afford to the Representatives\nof Parent reasonable access, during normal business hours, during the\nperiod from the date hereof and prior to the Effective Time, to all of its\nand its subsidiaries' properties, books, contracts, commitments, records\nand officers, and during such period, the Company shall (and shall cause\neach of its subsidiaries to) furnish promptly to Parent (a) a copy of each\nreport, schedule, registration statement and other document filed or\nreceived by it during such period pursuant to the requirements of the\nfederal securities laws and (b) all other information concerning its\nbusiness, properties and personnel as Parent may reasonably request.\n\n                  Section 6.4. No Solicitation; Acquisition Proposals. (a)\nFrom the date of this Agreement until the Effective Time or, if earlier,\nthe termination of this Agreement in accordance with its terms, (1) the\nCompany shall, and the Company shall cause its and its subsidiaries'\nrespective Representatives to, immediately cease and terminate any existing\nsolicitation, initiation, encouragement, activity, discussion or\nnegotiation with any Third Party conducted heretofore by the Company, its\nsubsidiaries or their respective Representatives with respect to any\nAcquisition Proposal and (2) the Company shall not, and the Company shall\ncause its and its subsidiaries' respective Representatives not to, directly\nor indirectly, (i) solicit, initiate or knowingly encourage (including by\nway of furnishing information), or knowingly take any other action to\nfacilitate, any inquiries or the making or submission of any proposal that\nconstitutes, or may reasonably be expected to lead to, any Acquisition\nProposal; (ii) enter into any agreement, arrangement or understanding with\nrespect to any Acquisition Proposal or enter into any agreement,\narrangement or understanding requiring the Company to abandon, terminate or\nfail to consummate the exchange of Company Shares pursuant to the Offer or\nthe Merger or any other transaction contemplated by this Agreement; (iii)\nparticipate or engage in any discussions or negotiations with, or disclose\nor provide any non-public information or data relating to the Company or\nits subsidiaries or afford access to the properties, books or records or\nemployees of the Company or its subsidiaries to, any Third Party relating\nto an Acquisition Proposal, or knowingly facilitate any effort or attempt\nto make or implement an Acquisition Proposal or accept an Acquisition\nProposal; or (iv) enter into any letter of intent or similar document or\nany contract, agreement or commitment contemplating or otherwise relating\nto any Acquisition Proposal.\n\n                  (b) Notwithstanding the restrictions set forth in Section\n6.4(a), if, at any time prior to the exchange of Company Shares pursuant to\nthe Offer, (1) the Company has received an unsolicited bona fide written\nproposal from a Third Party relating to an Acquisition Proposal (under\ncircumstances in which the Company has complied with its obligations under\nSection 6.4(a)) and (2) the Board of Directors of the Company concludes in\ngood faith (after consultation with a financial advisor of nationally\nrecognized reputation and after receiving the written advice of its outside\ncounsel) (i) that such Acquisition Proposal constitutes a Superior Proposal\nand (ii) that the failure to provide such information or participate in\nsuch negotiations or discussions would result in a breach by the Board of\nDirectors of the Company of its fiduciary duties to the Company's\nShareholders under applicable Law, the Company may, subject to its giving\nParent at least two business days' prior written notice of the identity of\nsuch Third Party and all of the terms and conditions of such Acquisition\nProposal and of the Company's intention to furnish nonpublic information\nto, or enter into discussions or negotiations with, such Third Party, (x)\nfurnish information with respect to the Company and its subsidiaries to any\nThird Party pursuant to a customary confidentiality agreement containing\nterms no less restrictive than the terms of the Confidentiality Agreement\ndated March 7, 2001, entered into between Morgan Keegan &amp; Company, on\nbehalf of the Company, and Overnite Transportation Company, as the same may\nbe amended, supplemented or modified (the \"Confidentiality Agreement\"),\nprovided that a copy of all such information is delivered simultaneously to\nParent if it has not previously been so furnished to Parent, and (y)\nparticipate in discussions or negotiations regarding such proposal.\n\n                  (c) The Company shall as soon as practicable (and in any\nevent within 24 hours) notify and advise Parent orally and in writing of\nany Acquisition Proposal or of any request for information or inquiry that\nmay lead to an Acquisition Proposal, the terms and conditions of such\nAcquisition Proposal, request or inquiry, and the identity of the person\nmaking such Acquisition Proposal, request or inquiry. The Company shall\ninform Parent on a prompt and current basis of the status, content and\ndetails of any discussions regarding, or relating to, any Acquisition\nProposal with a Third Party (including amendments and proposed amendments)\nand, as promptly as practicable, of any change in the price, structure or\nform of the consideration or material terms of and conditions regarding the\nAcquisition Proposal. In fulfilling its obligations under this paragraph\n(c) of this Section 6.4, the Company shall provide promptly to Parent\ncopies of all written correspondence or other written material, including\nmaterial in electronic form, between the Company and such Third Party,\nexcept in the event where the delivery of such copies would result in a\nbreach by the Board of Directors of the Company of its fiduciary duties to\nthe Company's Shareholders under applicable Law.\n\n                  (d) The Company agrees that it will promptly inform its\nand its subsidiaries' respective Representatives of the obligations\nundertaken in this Section 6.4.\n\n                  (e) Nothing contained in this Section 6.4 or Section 6.5\nhereof shall prohibit the Company from taking and disclosing to its\nshareholders a position as required by Rule 14d-9 or Rule 14e-2(a)\npromulgated under the Exchange Act.\n\n                  (f) For purposes of this Agreement,\n\n                  \"Acquisition Proposal\" means any inquiry, offer, proposal\n                  or intended proposal, indication of interest, signed\n                  agreement or completed action, as the case may be, by any\n                  Third Party which relates to a transaction or series of\n                  transactions (including any merger, consolidation,\n                  recapitalization, liquidation or other direct or indirect\n                  business combination) involving the Company or any of its\n                  subsidiaries or the issuance or acquisition of shares of\n                  capital stock or other equity securities of the Company\n                  or any of its subsidiaries representing 15% or more (by\n                  voting power) of the outstanding capital stock of the\n                  Company or such subsidiary or any tender or exchange\n                  offer that if consummated would result in any person,\n                  together with all affiliates thereof, Beneficially Owning\n                  shares of capital stock or other equity securities of the\n                  Company or any of its subsidiaries representing 15% or\n                  more (by voting power) of the outstanding capital stock\n                  of the Company or such subsidiary, or the acquisition,\n                  license, purchase or other disposition of a substantial\n                  portion of the technology, business or assets of the\n                  Company or any of its subsidiaries outside the ordinary\n                  course of business or inconsistent with past practice;\n                  and\n\n                  \"Superior Proposal\" means any bona fide written\n                  Acquisition Proposal (provided that for the purposes of\n                  this definition, the applicable percentages in the\n                  definition of Acquisition Proposal shall be seventy-five\n                  percent (75%) as opposed to fifteen percent (15%)), on\n                  its most recently amended or modified terms, if amended\n                  or modified, which the Board of Directors of the Company\n                  determines in its good faith judgment (after receipt of\n                  the advice of a financial advisor of nationally\n                  recognized reputation and receiving advice of its outside\n                  counsel), taking into account, among other things, all\n                  legal, financial, regulatory, timing and other aspects of\n                  the proposal and the Third Party making the proposal (i)\n                  would, if consummated, result in a transaction that is\n                  more favorable to the Company's shareholders (in their\n                  capacities as shareholders), from a financial point of\n                  view, than the transactions contemplated by this\n                  Agreement and (ii) is reasonably capable of being\n                  completed.\n\n                  (g) The Company agrees not to release or permit the\nrelease of any person from, or to waive or permit the waiver of any\nprovision of, any confidentiality, \"standstill\" or similar agreement to\nwhich any of the Company or its subsidiaries is a party and will promptly\nprovide Parent with a copy of such agreements. The Company will use its\nbest efforts to enforce or cause to be enforced each such agreement at the\nrequest of Parent.\n\n                  Section 6.5. Modifications to Recommendations. Except as\nexpressly permitted by this Section 6.5, neither the Board of Directors of\nthe Company nor any committee thereof shall (i) withdraw, qualify, modify\nor amend, or propose to withdraw, qualify, modify or amend, in a manner\nadverse to Parent, the Recommendations or take any action or make any\nstatement, filing or release inconsistent with such Recommendations (it\nbeing understood that taking a neutral position or no position with respect\nto an Acquisition Proposal shall be considered an adverse modification of\nthe Recommendations), (ii) approve or recommend, or propose publicly to\napprove or recommend, any Acquisition Proposal or (iii) cause the Company\nto enter into any letter of intent, agreement in principle, acquisition\nagreement or other similar agreement related to any Acquisition Proposal\n(each of the foregoing being referred to as a \"Subsequent Determination\"),\nprovided that, if prior to the consummation of the Offer, the Board of\nDirectors of the Company determines in good faith, after it has received a\nSuperior Proposal and after receipt of written advice from outside counsel,\nthat the failure to make a Subsequent Determination would result in a\nbreach by the Board of Directors of the Company of its fiduciary duties to\nthe Company's shareholders under applicable Law, the Board of Directors of\nthe Company may (subject to this and the following sentences) inform the\nCompany's shareholders that it no longer believes that exchange of Company\nShares pursuant to the Offer and the other transactions contemplated hereby\nare advisable, but only at a time that is after 5:00 p.m., New York City\ntime, on the third business day following delivery by the Company to Parent\nof a written notice (a \"Subsequent Determination Notice\") (i) advising\nParent that the Board of Directors of the Company has received a Superior\nProposal, (ii) specifying the terms and conditions of such Superior\nProposal, including the amount per share that the Company's shareholders\nwill receive per Company Share (valuing any non-cash consideration at what\nthe Board of Directors of the Company determines in good faith, after\nconsultation with its independent financial advisor, to be the fair value\nof the non-cash consideration) and including a copy thereof with all\naccompanying documentation, except in the event where the inclusion of such\ncopy would result in a breach by the Board of Directors of the Company of\nits fiduciary duties to the Company's Shareholders under applicable Law,\n(iii) identifying the person making such Superior Proposal and (iv) stating\nthat the Company intends to make a Subsequent Determination. After\nproviding such notice, the Company shall provide a reasonable opportunity\nto Parent, and shall cooperate in good faith with Parent, to make such\nadjustments in the terms and conditions of this Agreement as would enable\nthe Company to proceed with its Recommendations to its shareholders without\na Subsequent Determination; provided, however, that any such adjustment to\nthis Agreement shall be at the discretion of Parent at the time.\n\n                  Section 6.6. HSR Act Filings; Reasonable Best Efforts.\n\n                  (a) Each of Parent and the Company shall (i) promptly\nmake or cause to be made the filings required of such party or any of its\nsubsidiaries under the HSR Act and any other Antitrust Laws with respect to\nthe Offer, the Merger and the other transactions contemplated by this\nAgreement, (ii) comply at the earliest reasonable practicable date with any\nrequest under the HSR Act or such other Antitrust Laws for additional\ninformation, documents, or other material received by such party or any of\nits subsidiaries from the Federal Trade Commission or the Department of\nJustice or any other Governmental Authority in respect of such filings, the\nOffer, the Merger or such other transactions, (iii) cooperate with the\nother party in connection with any such filing and in connection with\nresolving any investigation or other inquiry of any such agency or other\nGovernmental Authority under any Antitrust Laws with respect to any such\nfiling, the Offer, the Merger or such other transactions, and (iv) use\nreasonable best efforts to resolve such objections, if any, as may be\nasserted by any Governmental Authority with respect to the Offer, the\nMerger or any other transactions contemplated under this Agreement under\nthe Antitrust Laws. The Company shall not propose to enter into, or enter\ninto, any agreement, arrangement or understanding with any Governmental\nAuthority with respect to any Governmental Authority's review of the Offer,\nthe Merger or any other transactions contemplated under this Agreement\nwithout the prior written consent of Parent.\n\n                  (b) Subject to Section 6.4 and Section 6.5 of this\nAgreement, each of the parties agrees to use reasonable best efforts to\ntake, or cause to be taken, all actions, and to do, or cause to be done,\nand to assist and cooperate with the other parties in doing, all things\nnecessary, proper or advisable to consummate and make effective, in the\nmost expeditious manner practicable, the Offer, the Merger, and the other\ntransactions contemplated by this Agreement, including (i) the obtaining of\nall other necessary actions or nonactions, waivers, consents and approvals\nfrom Governmental Authorities and the making of all other necessary\nregistrations and filings (including other filings with Governmental\nAuthorities, if any), (ii) the obtaining of all necessary consents,\napprovals or waivers from third parties, (iii) the preparation of the Offer\nRegistration Statement, the Offer Documents, the Schedule 14D-9 and, if\nnecessary, the Proxy Statement, and (iv) the execution and delivery of any\nadditional instruments necessary to consummate the transactions\ncontemplated by, and to fully carry out the purposes of, this Agreement.\n\n                  (c) Notwithstanding anything to the contrary in this\nSection 6.6, (i) neither Parent nor any of its subsidiaries shall be\nrequired to divest any of their or the Company's or any of its\nsubsidiaries' respective businesses, product lines or assets, (ii) neither\nParent nor any of its subsidiaries shall be required to take or agree to\ntake any other action or agree to any limitation that could reasonably be\nexpected to have an adverse effect on the business, assets, condition\n(financial or otherwise), results of operations or prospects of Parent and\nits subsidiaries, taken as a whole, or of Parent combined with the\nSurviving Corporation after the Effective Time, (iii) no party shall be\nrequired to agree to the imposition of or to comply with, any condition,\nobligation or restriction on Parent or any of its subsidiaries or on the\nSurviving Corporation or any of its subsidiaries of the type referred to in\nsubclause (a) or (b) of clause (5) of Annex A or Section 7.1(b), (iv)\nneither Parent nor Merger Sub shall be required to waive any of the\nconditions to the Offer set forth in Annex A or any of the conditions of to\nthe Merger set forth in Article VIII, and (v) no party shall be required to\npursue or defend any administrative or judicial action or proceeding that\nmay be instituted or threatened.\n\n                  (d) Payment of HSR Filing Fee. Any filing fee payable\nunder or pursuant to the HSR Act shall be paid in full by Parent regardless\nof whether the Offer, the Merger, this Agreement or the other transactions\ncontemplated hereby are consummated.\n\n                  Section 6.7. Litigation. The Company shall give Parent\nthe opportunity to participate in the defense of any litigation against the\nCompany and\/or its directors relating to the transactions contemplated by\nthis Agreement or any other Acquisition Proposal and will not settle or\ncompromise any such action without the prior written consent of Parent.\n\n                  Section 6.8. Certain Benefit Matters. Parent agrees to\ncause the Surviving Corporation and its subsidiaries to honor and assume\nthe Salary Continuation Agreements listed on Section 6.8 of the Disclosure\nSchedule (the \"Salary Continuation Agreements\"), true and accurate copies\nof which have previously been provided to Parent. If Parent shall notify\nCompany prior to the Effective Time that Parent wishes to substitute\nalternate contractual arrangements (to become effective as of the Effective\nTime) with one or more of the persons subject to such agreements, the\nCompany agrees to use its best efforts to facilitate Parent's negotiations\nwith any such person and to cooperate in making any such contractual\nchanges which are agreed upon by Parent and such person.\n\n                  Section 6.9. Additional Agreements. If, at any time after\nthe Effective Time, the Surviving Corporation shall consider or be advised\nthat any deeds, bills of sale, assignments, assurances or any other actions\nor things are necessary or desirable to vest, perfect or confirm of record\nor otherwise in the Surviving Corporation its right, title or interest in,\nto or under any of the rights, properties or assets of Merger Sub or the\nCompany or otherwise carry out this Agreement, the officers and directors\nof the Surviving Corporation shall be authorized to execute and deliver, in\nthe name and on behalf of Merger Sub or the Company, all such deeds, bills\nof sale, assignments and assurances and to take and do, in the name and on\nbehalf of Merger Sub or the Company, all such other actions and things as\nmay be necessary or desirable to vest, perfect or confirm any and all\nright, title and interest in, to and under such rights, properties or\nassets in the Surviving Corporation or otherwise to carry out this\nAgreement. If, at any time after the Effective Time, any further action is\nnecessary or desirable to carry out the purposes of this Agreement, the\nproper officers and directors of Parent shall use reasonable best efforts\nto take, or cause to be taken, all such necessary actions.\n\n                  Section 6.10. Publicity. So long as this Agreement is in\neffect, neither the Company, Parent nor any of their respective affiliates\nshall issue or cause the publication of any press release or other\nannouncement with respect to the Offer, the Merger, this Agreement or the\nother transactions contemplated hereby without the prior consultation of\nthe other party, except as may be required by Law or by any rules and\nregulations of the NASD or any applicable securities exchange or listing\nagreement with any applicable securities exchange or the Nasdaq National\nMarket.\n\n                  Section 6.11. Notification of Certain Matters. (a) The\nCompany shall give prompt notice to Parent, and Parent or Merger Sub shall\ngive prompt notice to the Company, of (i) any representation or warranty\nmade by it contained in this Agreement becoming untrue or inaccurate in any\nmaterial respect and (ii) the failure by it to comply with or satisfy in\nany material respect any covenant, condition or agreement to be complied\nwith or satisfied by it under this Agreement; provided, however, that no\nsuch notification shall affect the representations, warranties, covenants\nor agreements of the parties or the conditions to the obligations of the\nparties under this Agreement.\n\n                  (b) The Company shall give prompt notice to Parent, and\nParent or Merger Sub shall give prompt notice to the Company, of: (i) any\nnotice or other communication from any person alleging that the consent of\nsuch person is or may be required in connection with the transactions\ncontemplated by this Agreement; (ii) any notice or other communication from\nany Governmental Authority in connection with the transactions contemplated\nby this Agreement; and (iii) any actions, suits, claims, investigations or\nproceedings commenced or, to the best of its knowledge threatened against,\nrelating to or involving or otherwise affecting it or any of its\nsubsidiaries which, if pending on the date of this Agreement would have\nbeen required to have been disclosed pursuant to Article IV and Article V\nor which relate to the consummation of the transactions contemplated by\nthis Agreement.\n\n                  Section 6.12. Directors' and Officers' Indemnification\nand Insurance. The Surviving Corporation shall, and Parent shall cause the\nSurviving Corporation to, (i) indemnify and hold harmless, and provide\nadvancement of expenses to, all current or former directors, officers and\nemployees of the Company and its subsidiaries (in all of their capacities)\n(a) to the same extent such persons are indemnified or have the right to\nadvancement of expenses as of the date of this Agreement by the Company\npursuant to the Company's Articles of Incorporation, Bylaws,\nindemnification agreements, if any, in existence on the date hereof with\nany directors, officers and employees of the Company and its subsidiaries\nand the URBCA and (b) without limitation to clause (a), to the fullest\nextent permitted by law, in each case for acts or omissions occurring at or\nprior to the Effective Time (including for acts or omissions occurring in\nconnection with the approval of this Agreement and the consummation of the\ntransactions contemplated hereby), (ii) include and cause to be maintained\nin effect in the Surviving Corporation's (or any successor's) Articles of\nIncorporation and Bylaws for a period of six years after the Effective\nTime, the current provisions regarding elimination of liability of\ndirectors, indemnification of officers, directors and employees and\nadvancement of expenses contained in the Articles of Incorporation and\nBylaws of the Company and (iii) cause to be maintained for a period of six\nyears after the Effective Time a policy (or a \"tail\" policy) of directors'\nand officers' liability insurance and fiduciary liability insurance of at\nleast the same coverage and amounts containing terms and conditions which\nare, in the aggregate, no less advantageous to the insured than the terms\ncurrently provided to directors and officers of Parent with respect to\nclaims arising from facts or events that occurred on or before the\nEffective Time. The obligations of the Surviving Corporation under this\nSection 6.12 shall not be terminated or modified in such a manner as to\nadversely affect any indemnitee to whom this Section 6.12 applies without\nthe consent of such affected indemnitee (it being expressly agreed that the\nindemnitees to whom this Section 6.12 applies shall be third party\nbeneficiaries of this Section 6.12).\n\n                  Section 6.13. Rule 145 Affiliates. Within 10 days after\nthe date of this Agreement, the Company shall deliver to Parent a letter\nidentifying all persons who may be deemed to be Rule 145 Affiliates. The\nCompany shall use its reasonable best efforts to cause each person who is\nso identified as a Rule 145 Affiliate to deliver to Parent at least 5 days\nprior to the initial expiration of the Offer, an agreement substantially in\nthe form of Exhibit B to this Agreement.\n\n                  Section 6.14. Cooperation. Parent and the Company shall\ntogether, or pursuant to an allocation of responsibility to be agreed\nbetween them, coordinate and cooperate (i) with respect to the timing of\nthe Company Shareholder Meeting, (ii) in determining whether any action by\nor in respect of, or filing with, any Governmental Authority is required,\nor any actions, consents approvals or waivers are required to be obtained\nfrom parties to any material contracts, in connection with the consummation\nof the transactions contemplated by this Agreement, and (iii) in seeking\nany such actions, consents, approvals or waivers or making any such\nfilings, furnishing information required in connection therewith and timely\nseeking to obtain any such actions, consents approvals or waivers. Subject\nto the terms and conditions of this Agreement, Parent and the Company will\neach use its reasonable best efforts to have the Offer Registration\nStatement declared effective under the Securities Act as promptly as\npracticable after the Offer Registration Statement is filed, and Parent and\nthe Company shall, subject to applicable Law, confer on a regular and\nfrequent basis with one or more representatives of one another to report\noperational matters of significance to the Offer and the Merger and the\ngeneral status of ongoing operations insofar as relevant to the Offer and\nthe Merger, provided that the parties will not confer on any matter to the\nextent inconsistent with law.\n\n                  Section 6.15. Tax-Free Reorganization Treatment.\n\n                  (a) This Agreement is intended to constitute a plan of\nreorganization with respect to the Transaction for United States Federal\nincome tax purposes and the parties hereto intend the Transaction to\nqualify as a reorganization within the meaning of Section 368(a) of the\nCode. From and after the date of this Agreement, each party hereto shall\nuse its reasonable best efforts (and shall cause its respective\nsubsidiaries to use their reasonable best efforts) to cause the Transaction\nto qualify, and shall not, without the prior written consent of the other\nparties hereto, take any actions or cause any actions to be taken which\ncould reasonably be expected to prevent the Transaction from qualifying as\na reorganization under the provisions of Section 368(a) of the Code.\nFollowing the Effective Time, neither the Surviving Corporation nor Parent,\nnor any of their respective subsidiaries, shall take any action or cause\nany action to be taken which could reasonably be expected to cause the\nTransaction to fail to qualify as a reorganization under Section 368(a) of\nthe Code.\n\n                  (b) The parties hereto shall cooperate and use their\nreasonable best efforts in order for Parent to obtain an opinion of\nSkadden, Arps, Slate, Meagher &amp; Flom LLP (\"Skadden Arps\"), counsel to\nParent, that the Transaction will be treated as a reorganization within the\nmeaning of Section 368(a) of the Code (the \"Tax Opinion\"). In connection\ntherewith, both Parent (together with Merger Sub) and the Company shall\ndeliver to Skadden Arps representation letters, dated and executed as of\nthe Effective Time (and as of such other date or dates as reasonably\nrequested by Skadden Arps), in form and substance substantially identical\nto those attached hereto as Exhibit C and Exhibit D, respectively (allowing\nfor such amendments to the representation letters as Skadden Arps deems\nnecessary) (together, the \"Representation Letters\"). Notwithstanding\nanything express or implied to the contrary in this Agreement, but subject\nto the provisions of this Section 6.15, if such opinion cannot be obtained,\nthen, in Parent's reasonable discretion, the Merger shall not be effected\nas described herein and shall instead be effected as a merger of Merger Sub\nwith and into the Company (the \"Reverse Merger\") in accordance with the\nURBCA and the separate existence of Merger Sub shall thereupon cease, and\nthe Company, as the surviving corporation in the Reverse Merger, shall\ncontinue its corporate existence under the laws of the State of Utah as a\nwholly-owned subsidiary of Parent.\n\n                  (c) The parties hereto agree that they will not take any\nposition on any Federal, state, or local Tax Return, or take any other Tax\nreporting position, that is inconsistent with the treatment of the Merger\nas a tax-free reorganization, unless otherwise required by a decision by\nthe Tax Court or a judgment, decree, or other order by any court of\ncompetent jurisdiction, which has become final and non-appealable, or by\napplicable state or local income or franchise tax law, provided, however,\nthat this clause (c) will not apply in the event that the Merger is\neffected as a Reverse Merger pursuant to clause (b) above.\n\n                  (d) None of the parties hereto shall take or cause to be\ntaken any action which would cause to be untrue (or fail to take or cause\nnot to be taken any action which would cause to be untrue) any of the\ncertifications and representations included in the Representation Letters\nattached hereto as Exhibit C and Exhibit D.\n\n                  Section 6.16. Conveyance Taxes. The Company and Parent\nshall cooperate in the preparation, execution and filing of all returns,\nquestionnaires, applications or other documents regarding any real property\ntransfer or gains, sales, use, transfer, value added, stock transfer and\nstamp taxes, any transfer, recording, registration and other fees and any\nsimilar Taxes (together with any related interest, penalties or additions\nto tax, \"Conveyance Taxes\") which become payable in connection with the\ntransactions contemplated by this Agreement. Notwithstanding any provision\nto the contrary contained in this Agreement, other than Sections 3.4(g) and\n3.5 hereof, each of Parent and the Company shall pay, without deduction\nfrom any amount payable to holders of Company Shares and without\nreimbursement from the other party, any such Conveyance Taxes imposed on it\nby any Governmental Authority (and\/or for which its shareholders are\nprimarily liable), which become payable in connection with the transactions\ncontemplated by this Agreement.\n\n                                ARTICLE VII\n\n                                 CONDITIONS\n\n                  Section 7.1. Conditions to Each Party's Obligations. The\nrespective obligations of each party to effect the Merger shall be subject\nto the fulfillment or waiver at or prior to the Effective Time of the\nfollowing conditions:\n\n                  (a) Shareholder Approval. If required under the URBCA,\nthe Company Shareholder Approval shall have been obtained.\n\n                  (b) No Injunction or Action. No order, statute, rule,\nregulation, executive order, stay, decree, judgment or injunction shall\nhave been enacted, entered, promulgated or enforced by any Governmental\nAuthority since the date of this Agreement which prohibits or prevents the\nconsummation of the Merger which has not been vacated, dismissed or\nwithdrawn prior to the Effective Time. The Company and Parent shall use\ntheir reasonable best efforts to have any of the foregoing vacated,\ndismissed or withdrawn by the Effective Time.\n\n                  (c) Exchange of Company Shares. Parent or any of its\naffiliates shall have purchased Company Shares pursuant to the Offer.\n\n                  Section 7.2. Conditions to Obligations of Parent. The\nobligations of Parent and Merger Sub to effect the Merger shall be subject\nto the fulfillment at or prior to the Effective Time of the following\nadditional condition: the Company shall have performed and complied with in\nall material respect all its covenants and agreements hereunder required by\nthis Agreement to be performed or complied with or satisfied by the Company\nat or prior to the Effective Time.\n\n                  Section 7.3. Frustration of Conditions. Neither Parent\nnor the Company may rely on the failure of any condition set forth in this\nArticle VII to be satisfied if such failure was caused by such party's\nfailure to comply with or perform any of its covenants or obligations set\nforth in this Agreement.\n\n                               ARTICLE VIII\n\n                   TERMINATION AND ABANDONMENT; EXPENSES\n\n                  Section 8.1. Termination. This Agreement may be\nterminated at any time prior to the Effective Time, whether before or after\napproval of the shareholders of the Company or Merger Sub:\n\n                  (a) by mutual written consent of Parent and the Company;\n\n                  (b) by either Parent or the Company:\n\n                        (i) if the Offer shall have expired or been\n                  terminated in accordance with the terms of this Agreement\n                  without Parent or Merger Sub having accepted for exchange\n                  any Company Shares pursuant to the Offer, unless the\n                  failure to consummate the Offer is the result of a\n                  material breach of this Agreement by the party seeking to\n                  terminate this Agreement;\n\n                        (ii) if the Offer shall not have been consummated\n                  on or before January 31, 2002 (the \"Outside Date\"),\n                  unless the failure to consummate the Offer is the result\n                  of a material breach of this Agreement by the party\n                  seeking to terminate this Agreement;\n\n                        (iii) if the Merger shall not have been consummated\n                  on or prior to April 30, 2002 (the \"Drop Dead Date\"),\n                  provided, however, that the right to terminate this\n                  Agreement pursuant to this Section 8.1(b)(iii) shall not\n                  be available to any party whose willful and material\n                  breach of this Agreement results in the failure of the\n                  Merger to be consummated by such time;\n\n                        (iv) if the Merger shall not have been consummated\n                  as a result of any condition thereto in Article VII\n                  being incapable of being satisfied; or\n\n                        (v) if any statute, rule, regulation, judgment,\n                  order, legislation or interpretation of any nature\n                  enacted, enforced, promulgated, amended or issued by any\n                  Governmental Authority having the effects set forth in\n                  subclause (a) or (b) of clause (5) of Annex A hereto;\n\n                  (c) by Parent, upon the occurrence of any Trigger Event\ndescribed in Section 8.3(a) hereof; or\n\n                  (d) by the Company, if the Company makes a Subsequent\nDetermination in compliance with Section 6.4 hereof and pursuant to the\nprovisions of Section 6.5 hereof, provided the Company has paid Parent the\nsums required by Section 8.3(a) hereof.\n\n\nThe party desiring to terminate this Agreement pursuant to this Section 8.1\nshall give written notice of such termination to the other party in\naccordance with Section 9.4 hereof.\n\n                  Section 8.2. Effect of Termination and Abandonment. In\nthe event of termination of this Agreement and the abandonment of the\nMerger pursuant to this Article VIII, this Agreement (other than Sections\n8.2 and 8.3 and Article IX) shall become void and of no further force or\neffect with no liability on the part of any party hereto (or of any of its\nRepresentatives); provided, however, that no such termination shall relieve\nany party hereto from any liability for any breach of this Agreement prior\nto termination.\n\n                  Section 8.3. Fees and Expenses.\n\n                  (a) The Company agrees to pay Parent a fee in immediately\navailable funds equal to $5,000,000 (the \"Liquidated Amount\") promptly, but\nin no event later than three business days, after the termination of this\nAgreement (or such later date as may apply in the case of clause (i) below\nor such earlier time prior to the termination of this Agreement in the case\nof clause (iv) below) as a result of the occurrence of any of the events\nset forth below (each, a \"Trigger Event\"):\n\n                        (i) the Company shall have received an Acquisition\n                  Proposal, and at any time prior to, or within nine months\n                  after, the termination of this Agreement (unless this\n                  Agreement is terminated pursuant to Section 8.1(a) or\n                  Section 8.1(b)(v)), the Company shall have entered into,\n                  or shall have publicly announced its intention to enter\n                  into, an agreement or an agreement in principle with\n                  respect to any Acquisition Proposal;\n\n                        (ii) any Third Party shall have become the\n                  Beneficial Owner of at least 15% of the outstanding\n                  Company Shares or shall have acquired, directly or\n                  indirectly, at least 15% of the assets of the Company and\n                  its subsidiaries;\n\n                        (iii) there shall have been a willful and material\n                  breach or failure to perform in any material respect by\n                  the Company of any of its representations, warranties,\n                  covenants or other agreements contained in this\n                  Agreement, which breach or failure to perform (A) would\n                  give rise to the failure of a condition set forth in\n                  subclause (e) or (f) of clause (5) of Annex A, -------\n                  and (B) is incapable of being or has not been cured by\n                  the Company prior to or on the earlier of (x) the date\n                  which is 10 business days immediately following written\n                  notice by Parent to the Company of such breach or failure\n                  to perform and (y) the expiration or termination of the\n                  Offer in accordance with the terms of this Agreement;\n\n                        (iv) the Company has provided Parent with a\n                  Subsequent Determination Notice or the Board of Directors\n                  of the Company (or any committee thereof) (A) shall have\n                  made a Subsequent Determination, (B) shall fail to\n                  include in the Schedule 14D-9 its Recommendations without\n                  modification or qualification in a manner adverse to\n                  Parent, (C) shall fail to reaffirm such Recommendations\n                  within two business days upon Parent's reasonable request\n                  to do so, or (D) shall have resolved to, or publicly\n                  announced an intention to, take any of the actions or\n                  omit to take any action as specified in this Section\n                  8.3(a)(iv);\n\n                        (v) as of the final expiration date of the Offer,\n                  all conditions to the consummation of the Offer shall\n                  have been met or waived except for satisfaction of the\n                  Minimum Condition and there shall have been made\n                  subsequent to the date of this Agreement an Acquisition\n                  Proposal; or\n\n                        (vi) there shall have been a change in the\n                  constitution of the Board of Directors of the Company not\n                  provided for in this Agreement such that at least a\n                  majority of the members of the Board of Directors is\n                  comprised of individuals not serving on the Board of\n                  Directors as of the date hereof.\n\n                  (b) Except as set forth in this Section 8.3 or Section\n6.6(d) hereof, all fees and expenses incurred in connection with the Offer\nand the Merger, this Agreement and the transactions contemplated by this\nAgreement shall be paid by the party incurring such fees or expenses,\nwhether or not the Offer or the Merger is consummated. Except for fees\npayable to the Exchange Agent which will be paid with funds furnished by\nand originating with the Company, the Company covenants and agrees that it\nwill not pay or reimburse either of the Shareholders for any fees or\nexpenses incurred by such Shareholder in connection with his Shareholder\nAgreement or the transactions contemplated by such Shareholder Agreement,\nor in his capacity as Shareholder in connection with this Agreement or the\nOffer, the Merger, or the other transactions contemplated by this\nAgreement.\n\n                  (c) Parent and Merger Sub expressly acknowledge and agree\nthat, except in the event of a willful and material breach of this\nAgreement by the Company, with respect to any termination of this Agreement\npursuant to which Parent is paid the Liquidated Amount, (i) the payment of\nthe Liquidated Amount shall constitute liquidated damages with respect to\nany and all claims for damages and any and all other claims which Parent or\nMerger Sub may be entitled to assert against the Company, its subsidiaries\nor any of their respective Representatives with respect to a breach of this\nAgreement (collectively, \"Termination Damages \"), and (ii) the right to\nreceive payment of the Liquidated Amount shall constitute the sole and\nexclusive remedy available to Parent and Merger Sub for any and all\nTermination Damages. The parties hereto expressly acknowledge and agree\nthat, because of the difficulty of accurately determining the actual amount\nof the Termination Damages, if any, provided there has not been a willful\nand material breach of this Agreement by the Company, the right to payment\nof the Liquidated Amount (x) shall constitute a reasonable estimate of the\nTermination Damages that will be suffered by reason of any such proposed or\nactual termination of this Agreement, and (y) shall be in full and complete\nsatisfaction of any and all damages arising as a result of or with respect\nto the Termination Damages. Except for non-payment of the Liquidated Amount\nor a willful and material breach of this Agreement by the Company, in no\nevent shall Parent or the Merger Sub be entitled to seek or to obtain any\nrecovery or judgment, or other damages of any kind, including,\nconsequential, indirect or punitive damages, against the Company, its\nsubsidiaries or any of their respective Representatives in respect of any\nproposed or actual termination of this Agreement with respect to which\nParent is paid Liquidated Amount, including, without limitation,\nconsequential, indirect or punitive damages.\n\n                  (d) Parent and the Company agree that the agreements\ncontained in Sections 8.3(a) and 8.3(b) hereof are an integral part of the\ntransactions contemplated by this Agreement and constitute liquidated\ndamages and not a penalty. In the event of any dispute as to whether any\nfee due under either Section 8.3(a) or 8.3(b) is due and payable, the\nprevailing party shall be entitled to receive from the other party the\ncosts and expenses (including legal fees and expenses) in connection with\nany action, including the filing of any lawsuit or other legal action,\nrelating to such dispute. Interest shall be paid on the amount of any\nunpaid fee at the publicly announced prime rate of Citibank, N.A. from the\ndate such fee was required to be paid.\n\n                                ARTICLE IX\n\n                               MISCELLANEOUS\n\n                  Section 9.1. Amendment and Modification. This Agreement\nmay be amended, modified or supplemented only by a written agreement among\nthe Company, Parent and Merger Sub.\n\n                  Section 9.2. Waiver of Compliance; Consents. Any failure\nof the Company on the one hand, or Parent and Merger Sub on the other hand,\nto comply with any obligation, covenant, agreement or condition herein may\nbe waived by Parent on the one hand, or the Company on the other hand, only\nby a written instrument signed by the party granting such waiver, but such\nwaiver or failure to insist upon strict compliance with such obligation,\ncovenant, agreement or condition shall not operate as a waiver of, or\nestoppel with respect to, any subsequent or other failure. Whenever this\nAgreement requires or permits consent by or on behalf of any party hereto,\nsuch consent shall be given in writing in a manner consistent with the\nrequirements for a waiver of compliance as set forth in this Section 9.2.\n\n                  Section 9.3. Survival. The respective representations,\nwarranties, covenants and agreements of the Company and Parent contained\nherein or in any certificates or other documents delivered prior to or at\nthe Closing shall survive the execution and delivery of this Agreement,\nnotwithstanding any investigation made or information obtained by the other\nparty, but shall terminate at the Effective Time, except for those\ncovenants contained in Sections 3.3, 3.4, 3.5, 3.6, 3.9, 6.11, 6.15, 6.16,\n9.1 and 9.15 hereof, which shall survive beyond the Effective Time in\naccordance with their terms.\n\n                  Section 9.4. Notices. All notices and other\ncommunications hereunder shall be in writing and shall be deemed to have\nbeen duly given when delivered in person, by facsimile, receipt confirmed,\nwhen received if sent by overnight courier or registered or certified mail\n(postage prepaid, return receipt requested) to the respective parties at\nthe following addresses (or at such other address for a party as shall be\nspecified by like notice):\n\n                           (i) if to the Company, to:\n\n                           Motor Cargo Industries, Inc.\n                           845 West Center Street\n                           North Salt Lake City, Utah 84054\n                           Attention: Marvin L. Friedland\n                           Telecopy:  (801) 299-5225\n\n\n                           with a copy to (but which shall not constitute \n                           notice to the Company):\n\n                           Stoel Rives LLP\n                           201 South Main Street\n                           Salt Lake City, Utah 84111-4904\n                           Attention:  Reed W. Topham\n                                       Brent J. Giauque\n                           Telecopy:   (801) 578-6999\n\n                           (ii)     if to Parent or Merger Sub, to:\n\n                           Union Pacific Corporation\n                           1416 Dodge Street, Room 1230\n                           Omaha, Nebraska 68179\n                           Attention: Carl W. von Bernuth\n                           Telecopy:  (401) 271-6633\n\n\n                           with a copy to (but which shall not constitute \n                           notice to Parent):\n\n                           Overnite Transportation Company\n                           1000 Semmes Avenue\n                           P.O. Box 1216\n                           Richmond, Virginia 23224\n                           Attention: Pat Hanley\n                           Telecopy:  (804) 231-8312\n\n                           with a copy to (but which shall not constitute\n                           notice to Parent or Merger Sub):\n\n                           Skadden, Arps, Slate, Meagher &amp; Flom LLP\n                           Four Times Square\n                           New York, New York  10036\n                           Attention: Paul T. Schnell, Esq.\n                                      Richard J. Grossman, Esq.\n                           Telecopy:  (212) 735-2000\n\n\n                  Section 9.5. Binding Effect; Permitted Assignment. This\nAgreement and all of the provisions hereof shall be binding upon and inure\nto the benefit of the parties hereto and their respective successors and\npermitted assigns. Neither this Agreement nor any of the rights, interests\nor obligations hereunder shall be assigned by any of the parties hereto\nprior to the Effective Time without the prior written consent of the other\nparties hereto, which consent may be withheld in the sole and absolute\ndiscretion of the party requested to consent.\n\n                  Section 9.6. Governing Law. This Agreement shall be\ndeemed to be made in, and in all respects shall be interpreted, construed\nand governed by and in accordance with the internal laws of, the State of\nUtah, without regard to the conflict of laws rules thereof.\n\n                  Section 9.7. Submission to Jurisdiction; Waivers. Each of\nthe Company, Parent and Merger Sub irrevocably and unconditionally agrees\nthat any legal action or proceeding with respect to this Agreement or for\nrecognition and enforcement of any judgment in respect hereof brought by\nthe other party hereto or its successors or assigns may be brought and\ndetermined in the federal and state courts located in Salt Lake City, Utah\nand each of the Company, Parent and Merger Sub hereby irrevocably submits\nwith regard to any such action or proceeding for itself and in respect to\nits property, generally and unconditionally, to the nonexclusive\njurisdiction of the aforesaid courts. Each of the Company, Parent and\nMerger Sub hereby irrevocably waives, and agrees not to assert, by way of\nmotion, as a defense, counterclaim or otherwise, in any action or\nproceeding with respect to this Agreement, (a) any claim that it is not\npersonally subject to the jurisdiction of the above-named courts for any\nreason other than the failure to lawfully serve process, (b) that it or its\nproperty is exempt or immune from jurisdiction of any such court or from\nany legal process commenced in such courts (whether through service of\nnotice, attachment prior to judgment, attachment in aid of execution of\njudgment, execution of judgment or otherwise), and (c) to the fullest\nextent permitted by applicable law, that (i) the suit, action or proceeding\nin any such court is brought in an inconvenient forum, (ii) the venue of\nsuch suit, action or proceeding is improper and (iii) this Agreement, or\nthe subject matter hereof, may not be enforced in or by such courts.\n\n                  Section 9.8. Waiver of Jury Trial. Each of parties hereto\nhereby irrevocably waives all right to a trial by jury in any action,\nproceeding, or counterclaim arising out of or related to this Agreement or\nthe transactions contemplated hereby.\n\n                  Section 9.9. Counterparts. This Agreement may be executed\nin one or more counterparts, each of which together be deemed an original,\nbut all of which together shall constitute one and the same instrument.\n\n                  Section 9.10. Interpretation. The article and section\nheadings contained in this Agreement are solely for the purpose of\nreference, are not part of the agreement of the parties and shall not in\nany way affect the meaning or interpretation of this Agreement. As used in\nthis Agreement, (i) the term \"person\" shall mean and include an individual,\na partnership, a joint venture, a corporation, a limited liability company,\na trust, an association, an unincorporated organization, a Governmental\nAuthority and any other entity or group (as defined in the Exchange Act),\n(ii) unless otherwise specified herein, the term \"affiliate,\" with respect\nto any person, shall mean and include any person controlling, controlled by\nor under common control with such person, (iii) the term \"subsidiary\" of\nany specified person shall mean any corporation any of the outstanding\nvoting power of which, or any partnership, joint venture, limited liability\ncompany or other entity any of the total equity interest of which, is\ndirectly or indirectly owned by such specified person, other than in any\nsuch case any entity which may be deemed to be a \"subsidiary\" of such\nspecified person solely by reason of the ownership of equity securities of\nsuch entity which are registered under the Exchange Act and held by such\nspecified person for investment purposes only, (iv) a matter will be deemed\nto be \"material\" hereunder with respect to any person or entity if such\nmatter, individually or in the aggregate, would be considered significant\nby a reasonable investor in such entity in the context of the particular\nprovision in which the word \"material\" appears (i.e., a matter need not\nhave a Company Material Adverse Effect or a Parent Material Adverse Effect\nin order to be deemed to be \"material\"), (v) the term \"knowledge,\" when\nused with respect to the Company, shall mean the knowledge of the directors\nand officers of the Company and, when used with respect to Parent, shall\nmean the knowledge of the directors and officers of Parent, and (vi) the\nterm \"including\" shall mean \"including, without limitation\".\n\n                  Section 9.11. Entire Agreement. This Agreement, the\nShareholder Agreements and the documents or instruments referred to herein\nand therein, including Annex A, the Exhibit(s) attached hereto and the\nDisclosure Schedule referred to herein, which Exhibit(s) and Disclosure\nSchedule are incorporated herein by reference, and any other written\nagreement entered into contemporaneously herewith embody the entire\nagreement and understanding of the parties hereto in respect of the subject\nmatter contained therein. There are no restrictions, promises,\nrepresentations, warranties, covenants, or undertakings, other than those\nexpressly set forth or referred to therein. This Agreement and such other\nagreements supersede all prior agreements and the understandings between\nthe parties with respect to such subject matter.\n\n                  Section 9.12. Severability. In case any provision in this\nAgreement shall be held invalid, illegal or unenforceable in a\njurisdiction, such provision shall be modified or deleted, as to the\njurisdiction involved, only to the extent necessary to render the same\nvalid, legal and enforceable, and the validity, legality and enforceability\nof the remaining provisions hereof shall not in any way be affected or\nimpaired thereby nor shall the validity, legality or enforceability of such\nprovision be affected thereby in any other jurisdiction.\n\n                  Section 9.13. Third Party Beneficiaries. Nothing\ncontained in this Agreement or in any instrument or document executed by\nany party in connection with the transactions contemplated hereby shall\ncreate any rights in, or be deemed to have been executed for the benefit\nof, any person or entity that is not a party hereto or thereto or a\nsuccessor or permitted assign of such a party; provided, however, that the\nparties hereto specifically acknowledge that the provisions of Section 6.12\nhereof are intended to be for the benefit of, and shall be enforceable by,\nall current or former directors, officers and employees of the Company and\nits subsidiaries (in all of their capacities) affected thereby.\n\n                  Section 9.14. Disclosure Schedule. The Company and Parent\nacknowledge that the Disclosure Schedule (i) relates to certain matters\nconcerning the disclosures required and transactions contemplated by this\nAgreement, (ii) is qualified in its entirety by reference to specific\nprovisions of this Agreement and (iii) is not intended to constitute and\nshall not be construed as indicating that such matter is required to be\ndisclosed, nor shall such disclosure be construed as an admission that such\ninformation is material with respect to the Company, except to the extent\nrequired by this Agreement.\n\n\n                  IN WITNESS WHEREOF, each of the parties hereto has caused\nthis Agreement and Plan of Merger to be signed and delivered by its\nrespective duly authorized officers as of the date first above written.\n\n                                 MOTOR CARGO INDUSTRIES, INC.\n\n\n                                 By: \/s\/ Harold R. Tate\n                                     ----------------------------------\n                                     Name:  Harold R. Tate\n                                     Title: Chairman and Chief Executive Officer\n\n\n\n                                 UNION PACIFIC CORPORATION\n\n\n                                 By: \/s\/ Carl W. von Bernuth\n                                     ---------------------------------\n                                     Name:  Carl W. von Bernuth\n                                     Title: Senior Vice President, General\n                                            Counsel and Secretary\n\n\n\n                                 MOTOR MERGER CO.\n\n\n                                 By: \/s\/ Carl W. von Bernuth\n                                     ----------------------------------\n                                     Name:  Carl W. von Bernuth\n                                     Title: Vice President and Secretary\n\n\n\n\n\n\n\n                                                                     Exhibits\n\nExhibit A - Form of Articles of Incorporation of the Surviving Corporation\nExhibit B - Form of Rule 145 Affiliate Letter \nExhibit C - Parent Representation Letter \nExhibit D - Company Representation Letter\n\n\n\n\n\n\n                                                                     ANNEX A\n\n                          Conditions of the Offer\n\n                  Notwithstanding any other provision of the Offer, subject\nto the terms of the Agreement, Parent shall not be required to accept for\nexchange or exchange or deliver any Exchange Offer Consideration for,\n(subject to any applicable rules and regulations of the SEC, including Rule\n14e-1(c) under the Exchange Act (relating to Parent's obligation to pay for\nor return tendered Company Shares after the termination or withdrawal of\nthe Offer)) any Company Shares tendered, if by the expiration of the Offer\n(as it may be extended in accordance with the requirements of Section 2.1),\n(1) there shall not have been validly tendered in accordance with the Offer\nand not withdrawn prior to the expiration of the Offer such number of\nCompany Shares that, together with the Company Shares owned by Parent and\nMerger Sub on the date hereof, would constitute at least 66 2\/3% of the\nCompany Shares on a fully-diluted basis (including, for purposes of such\ncalculation, all Company Shares issuable upon exercise of all Company\nOptions, and the conversion or exchange of all securities convertible or\nexchangeable into Company Shares) outstanding at the expiration date of the\nOffer (including any extension thereof) (the \"Minimum Condition\"), (2) the\napplicable waiting period under the HSR Act and any other applicable\nAntitrust Laws shall not have expired or been terminated, (3) the Offer\nRegistration Statement shall not have become effective under the Securities\nAct or shall be the subject of any stop order or proceedings seeking a stop\norder, (4) the Parent Common Stock to be issued in the Offer shall not have\nbeen approved for listing on the NYSE, subject to official notice of\nissuance, or (5) at any time on or after the date of the Agreement and\nprior to the acceptance for exchange of Company Shares pursuant to the\nOffer, any of the following conditions exist:\n\n                  (a) there shall have been entered, enforced, instituted,\npending, threatened, or issued by any Governmental Authority, any judgment,\norder, injunction, ruling, proceeding, action, suit, charge or decree:\n\n                        (i) challenging or seeking to make illegal, to\n                  delay materially or otherwise directly or indirectly to\n                  restrain or prohibit or make materially more costly the\n                  making of the Offer, the acceptance for exchange of, or\n                  the exchange or delivery of Exchange Offer Consideration\n                  for, some of or all the Company Shares by Parent or the\n                  consummation by Parent or Merger Sub of the Merger,\n\n                        (ii) seeking to obtain material damages or\n                  otherwise directly or indirectly relating to the\n                  transactions contemplated by the Agreement, the Offer or\n                  the Merger,\n\n                        (iii) seeking to limit, restrain or prohibit\n                  Parent's or Merger Sub's ownership or operation (or that\n                  of their respective subsidiaries or affiliates) of all or\n                  any portion of the business or assets of the Company and\n                  its subsidiaries, taken as a whole, or of Parent and its\n                  subsidiaries, taken as a whole, or to compel Parent or\n                  any of its subsidiaries or affiliates to dispose of or\n                  hold separate all or any portion of the business or\n                  assets of the Company and its subsidiaries, taken as a\n                  whole, or of Parent and its subsidiaries, taken as a\n                  whole,\n\n                        (iv) seeking to impose or confirm limitations on\n                  the ability of Parent or any of its subsidiaries or\n                  affiliates effectively to exercise full rights of\n                  ownership of any Company Shares, including the right to\n                  vote any Company Shares to be acquired pursuant to the\n                  Offer or owned by Parent or any of its subsidiaries or\n                  affiliates on all matters presented to the Company's\n                  shareholders (including the approval and adoption of the\n                  Agreement and the Merger), or seeking to require\n                  divestiture by Parent or any of its subsidiaries or\n                  affiliates of any Company Shares, or\n\n                        (v) which otherwise has, or would reasonably be\n                  expected to have, a Company Material Adverse Effect or a\n                  Parent Material Adverse Effect; or\n\n                  (b) there shall have been any action taken, or any\nstatute, rule, regulation, judgment, order, legislation or interpretation\nof any nature pending, proposed, enacted, enforced, promulgated, amended or\nissued by any Governmental Authority or deemed by any Governmental\nAuthority applicable to (i) Parent, the Company or any subsidiary or\naffiliate of Parent or the Company or (ii) any transaction contemplated by\nthe Agreement, which in the judgment of Parent is reasonably likely to\nresult, directly or indirectly, in any of the consequences referred to in\nclauses (i) through (v) of paragraph (a) above; or\n\n                  (c) there shall have occurred or exist any facts,\nchanges, events or effects that have, or would reasonably expected to have,\na Company Material Adverse Effect; or\n\n                  (d) there shall have occurred (i) any general suspension\nof, or limitation on prices for, trading in securities on the New York\nStock Exchange or the Nasdaq National Market other than (x) a shortening of\ntrading hours or any coordinated trading halt triggered solely as a result\nof a specified increase or decrease in a market index or (y) a suspension\nof not more than twenty-four hours solely relating to a bomb threat or\nother substantially similar threat directed to the New York Stock Exchange\nor the Nasdaq National Market, (ii) a declaration of a banking moratorium\nor any suspension of payments in respect of banks in the United States,\n(iii) any limitation (whether or not mandatory) on the extension of credit\nby banks or other lending institutions in the United States, (iv) the\ncommencement of a war, armed hostilities or any other international or\nnational calamity involving the United States or (v) in the case of any of\nthe foregoing existing at the time of the commencement of the Offer, an\nacceleration or a worsening thereof; or\n\n                  (e) the Company shall have failed to perform in any\nmaterial respect any obligation under the Agreement or to comply in any\nmaterial respect with any agreement or covenant of the Company to be\nperformed or complied with by it under the Agreement; or\n\n                  (f) the representations and warranties of the Company set\nforth in the Agreement that are qualified as to materiality shall not be\ntrue and correct as so qualified in all respects as of the date of the\nAgreement and as of the expiration of the Offer (including any extension\nthereof) (except to the extent expressly made as of an earlier date, in\nwhich case as of such date), or any of the representations and warranties\nset forth in the Agreement that are not so qualified shall not be true and\ncorrect in any material respect as of the date of the Agreement and as of\nthe expiration of the Offer (including any extension thereof)(except to the\nextent expressly made as of an earlier date, in which case as of such\ndate)(it being understood that, for purposes of determining the accuracy of\nsuch representations and warranties, any update of or modification to the\nDisclosure Schedule made or purported to have been made after the date of\nthe Agreement shall be disregarded); or\n\n                  (g) this Agreement shall have been terminated in\naccordance with its terms; or\n\n                  (h) the Board of Directors of the Company (or any\ncommittee thereof) shall have made a Subsequent Determination; or\n\n                  (i) any Third Party shall have become the Beneficial\nOwner of at least 15% of the outstanding Company Shares or shall have\nacquired, directly or indirectly, at least 15% of the assets of the Company\nand its subsidiaries; or\n\n                  (j) Parent and the Company shall have agreed that Parent\nshall terminate the Offer or postpone the acceptance for payment of or\npayment for Company Shares thereunder; or\n\n                  (k) any party shall have breached a Shareholder\nAgreement; or\n\n                  (l) any one or more of the representations and warranties\ncontained in Section 4.3 of the Agreement shall have been breached in any\nrespect or are inaccurate in any respect;\n\nwhich, in the good faith judgment of Parent in any such case, and\nregardless of the circumstances (including any action or omission by Parent\nor any of its affiliates) giving rise to any such condition, makes it\ninadvisable to proceed with such acceptance for exchange or exchange.\n\n                  The foregoing conditions are for the sole benefit of\nParent and may be asserted by Parent regardless of the circumstances\n(including any action or omission by Parent or any of its affiliates)\ngiving rise to any such condition or may, subject to the terms of this\nAgreement, be waived by Parent in whole at any time or in part from time to\ntime. The failure by Parent at any time to exercise its rights under any of\nthe foregoing conditions shall not be deemed a waiver of any such right;\nthe waiver of any such right with respect to particular facts and\ncircumstances shall not be deemed a waiver with respect to any other facts\nand circumstances, and each such right shall be deemed an ongoing right\nwhich may be asserted at any time or from time to time. Terms used but not\ndefined herein shall have the meaning assigned to such terms in the\nAgreement to which this Annex A is a part.\n\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8262,9154],"corporate_contracts_industries":[9524,9527],"corporate_contracts_types":[9622,9626],"class_list":["post-43093","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-motor-cargo-industries-inc","corporate_contracts_companies-union-pacific-corp","corporate_contracts_industries-transportation__railroads","corporate_contracts_industries-transportation__trucking","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43093","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43093"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43093"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43093"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43093"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}