UNITED PARK CITY MINES CO
EX. 10.1
<DOCUMENT>
<TYPE>EX-10.1
<SEQUENCE>3
<FILENAME>ex_101.htm
<DESCRIPTION>EX. 10.1
<TEXT>
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<title>Ex. 10.1</title>
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<u>
<p ALIGN="CENTER">AGREEMENT AND PLAN OF MERGER</p>
</u>
<p>AGREEMENT AND PLAN OF MERGER (this &quot;Agreement&quot;), dated as of August
26,
2002, among Capital Growth Partners, LLC, a Utah limited liability company (the
&quot;Purchaser&quot;), United Park City Mines Company, a Delaware corporation
(together with its Subsidiaries, the &quot;Company&quot;), those entities and
individuals whose names are set forth on Schedule A attached hereto
(collectively, the &quot;Sellers&quot; and each individually a
&quot;Seller&quot;), and CGP Acquisition, Inc., a Delaware corporation and a
wholly owned subsidiary of CGP (&quot;Merger Subsidiary&quot;).</p>
<p>WHEREAS, this Agreement and the Merger (as defined below) have each been duly
authorized and approved by the Purchaser, the Company, each Seller and Merger
Subsidiary;</p>
<p>WHEREAS, the parties hereto are party to a Stock Purchase Agreement, dated as
of February 21, 2002 (the &quot;SPA&quot;), as amended by the First Amendment to
Stock Purchase Agreement, dated as of June 21, 2002 (the &quot;First
Amendment&quot; and the SPA as amended by the First Amendment, the &quot;Amended
SPA&quot;) and a Supplemental Stock Purchase Agreement, dated as of July 19,
2002, among the Purchaser, Loeb Investors Co. XL (&quot;Loeb&quot;) and the
Company (the &quot;Supplemental SPA&quot;, and the Amended SPA, as so
supplemented, the &quot;Purchase Agreement&quot;), pursuant to which Purchaser
agreed to purchase, and the Sellers agreed to sell, certain shares of the
capital stock of the Company which are owned by the Sellers (the
&quot;Purchase&quot;);</p>
<p>WHEREAS, provided that the Merger is consummated on or prior to October 1,
2002 (or another date determined in accordance with this Agreement), the parties
hereto desire to consummate the Merger pursuant to this Agreement instead of the
Purchase;</p>
<p>WHEREAS, capitalized terms used herein have the meaning given to them in
Section 10.18 hereof; and</p>
<p>WHEREAS, Loeb is executing this Agreement in respect of the Supplemental
Shares (as defined in the Supplemental SPA).</p>
<p>NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:</p>
<p ALIGN="CENTER">ARTICLE I<br>
<u>THE MERGER</p>
<blockquote>
  <blockquote>
    <blockquote>
      <blockquote>
      </u>
      <p>SECTION 1.01 <u>The Merger</p>
      </blockquote>
    </blockquote>
  </blockquote>
</blockquote>
</u>
<p>(a) At the Effective Time (as defined in Section 1.01(b) below), Merger
Subsidiary shall be merged (the &quot;Merger&quot;) with and into the Company in
accordance with the General Corporation Law of the State of Delaware
(&quot;Delaware Law&quot;), whereupon the separate existence of Merger
Subsidiary shall cease, and the Company shall be the surviving corporation (the
&quot;Surviving Corporation&quot;).</p>
<p>(b) As soon as practicable after satisfaction or, to the extent permitted
hereunder, waiver of all conditions to the Merger, the Company and Merger
Subsidiary will file a certificate of merger with the Secretary of State of the
State of Delaware and make all other filings or recordings required by Delaware
Law in connection with the Merger. The closing of the Merger (the &quot;Merger
Closing&quot;) will take place at the offices of Torys LLP, 237 Park Avenue, New
York, New York 10017, or such other place as the parties may agree. The Merger
shall become effective at such time as the certificate of merger is duly filed
with the Secretary of State of the State of Delaware or at such later time as is
specified in the certificate of merger (the &quot;Effective Time&quot;).</p>
<p>(c) From and after the Effective Time, the Surviving Corporation shall
possess all the assets, rights, privileges, powers and franchises and be subject
to all of the liabilities, restrictions, disabilities and duties of the Company
and Merger Subsidiary, all as provided under Delaware Law.</p>
<p>(d) Upon the effectiveness of this Agreement, the Purchase Agreement shall be
suspended. Upon the Merger Closing, the Purchase Agreement shall be terminated
and shall be of no further force or effect.</p>
<blockquote>
  <blockquote>
    <p>SECTION 1.02 <u>Conversion of Shares</p>
    </blockquote>
  </blockquote>
</u>
<p>At the Effective Time:</p>
<p>(a) each outstanding share of common stock, $0.01 par value per share (the
&quot;Shares&quot;), of the Company held by the Company as treasury stock or
owned by Purchaser or any subsidiary of Purchaser immediately prior to the
Effective Time shall be cancelled, and no payment shall be made with respect
thereto;</p>
<p>(b) each share of common stock, $0.01 par value per share, of Merger
Subsidiary outstanding immediately prior to the Effective Time shall be
converted into and become one fully paid and non-assessable share of common
stock, $0.01 par value per share, of the Surviving Corporation with the same
rights, powers and privileges as the shares so converted and shall constitute
the only outstanding shares of capital stock of the Surviving Corporation;</p>
<p>(c) each Share issued and outstanding on the date hereof (other than Shares
to be cancelled in accordance with Section 1.02(a) hereof) shall be
automatically converted into the right to receive $25.00 per Share in cash
(subject to amendment based upon the total number of Shares outstanding on the
Merger Closing and subject to Sections 1.02(e), 1.02(f) and 6.04 hereof),
payable to the holder thereof, without interest (the &quot;Merger
Consideration&quot;), upon surrender of the certificate formerly representing
such Share of Company common stock in the manner provided in Section 1.03
hereof. All such Shares, when so converted, shall no longer be outstanding and
shall automatically be cancelled and retired and shall cease to exist, and each
holder of a certificate representing any such Shares shall cease to have any
rights with respect thereto, except the right to receive the Merger
Consideration therefor, without interest, upon the surrender of such certificate
in accordance with Section 1.03 hereof or the right, if any, to receive payment
from the Surviving Corporation of the &quot;fair value&quot; of such Shares
pursuant to Section 1.05 hereof;</p>
<p>(d) all outstanding options granted by the Company to acquire shares of its
common stock (the &quot;Options&quot;) shall be cancelled. In consideration for
the cancellation of the outstanding &quot;in the money&quot; Options pursuant to
this Section 1.02(d), the Company shall pay to the holders of such Options an
amount, in cash, equal to the product of (i) the difference between the Merger
Consideration and the per share exercise price of such Options multiplied by
(ii) the number of shares covered by such Options. The Company agrees that with
respect to all outstanding &quot;underwater&quot; Options, the Company shall,
prior to Merger Closing, obtain agreements from the holders of Options to cancel
their Options, and, after such cancellation pursuant to this Section 1.02(d),
there shall be no Options outstanding; and</p>
<p>(e) The aggregate Merger Consideration payable to the Sellers shall be
reduced by each Seller's pro rata share of any Postponement Deposit or Merger
Postponement Payment (as defined in Section 5.11) made by Purchaser that, in
each case, has been released or paid to such Sellers.</p>
<p>(f) The Merger Consideration payable in respect of each Share shall be
reduced by an amount equal to the pro rata portion applicable to such Share of
the costs and expenses incurred in connection with the Merger (including,
without limitation, legal fees and the Dresdner Fee). Loeb shall provide the
Paying Agent and the Company with a written, detailed list of such costs and
expenses reasonably satisfactory to the Paying Agent, no fewer than three (3)
days prior to the Merger Closing.</p>
<blockquote>
  <blockquote>
    <p>SECTION 1.03 <u>Surrender and Payment</p>
    </blockquote>
  </blockquote>
</u>
<p>(a) <u>Paying Agent</u>. Purchaser shall designate a bank or trust company
reasonably acceptable to the Company to act as agent for the holders of Shares
in connection with the Merger (the &quot;Paying Agent&quot;) to receive the
funds to which holders of Shares shall become entitled pursuant to Section
1.02(c) hereof. Purchaser shall, from time to time, make available to the Paying
Agent funds in amounts and at times necessary for the payment of the Merger
Consideration as provided herein. Such funds shall be invested by the Paying
Agent as directed by Loeb and the Purchaser, acting together. Earnings from such
investments shall be the sole and exclusive property of Purchaser, and no part
of such earnings shall accrue to the benefit of holders of Shares.</p>
<p>(b) <u>Exchange Procedures</u>. Subject to Section 1.03(c), as soon as
reasonably practicable, but in no event more than five Business Days after the
Effective Time, the Purchaser shall cause the Paying Agent to mail, or upon a
written request delivered to the Company by the applicable holder, deliver, to
each holder of record of a certificate or certificates, which immediately prior
to the Effective Time represented outstanding Shares (the
&quot;Certificates&quot;), whose shares were converted pursuant to Section 1.02
hereof into the right to receive the Merger Consideration (i) a letter of
transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon delivery of the
Certificates to the Paying Agent and shall be in such form and have such other
provisions not inconsistent with this Agreement as Purchaser may reasonably
specify) and (ii) instructions for use of such letter of transmittal in
effecting the surrender of the Certificates in exchange for payment of the
Merger Consideration. Upon surrender of a Certificate for cancellation to the
Paying Agent or to such other agent or agents as may be appointed by Purchaser,
together with such letter of transmittal, duly executed, the holder of such
Certificate shall be entitled to receive in exchange therefor the Merger
Consideration for each Share formerly represented by such Certificate and the
Certificate so surrendered shall forthwith be cancelled. If payment of the
Merger Consideration is to be made to a person other than the person in whose
name the surrendered Certificate is registered, it shall be a condition of
payment that the Certificate so surrendered shall be properly endorsed or shall
be otherwise in proper form for transfer and that the person requesting such
payment shall have paid any transfer and other taxes required by reason of the
payment of the Merger Consideration to a person other than the registered holder
of the Certificate surrendered or shall have established to the satisfaction of
the Surviving Corporation that such tax either has been paid or is not
applicable. Until surrendered as contemplated by this Section 1.03, each
Certificate shall be deemed at any time after the Effective Time to represent
only the right to receive the Merger Consideration in cash as contemplated by
this Section 1.03. No interest shall be paid or will accrue on the Merger
Consideration payable to holders of Certificates pursuant to the provisions of
this Article I.</p>
<p>(c) <u>Exchange Procedures for Sellers</u>. All Certificates held by Sellers
shall be surrendered to the Company for cancellation on or prior to the Merger
Closing Date (Certificates surrendered prior to the Merger Closing shall be held
by the Company in escrow pending the Merger Closing). In exchange for
Certificates so surrendered, each Seller shall be entitled to receive (by bank
cashier's or certified check or wire transfer), at the Merger Closing, the
Merger Consideration payable in respect of the Certificates surrendered by such
Seller, and such Certificates shall forthwith be cancelled. If payment of the
Merger Consideration is to be made to a person other than the person in whose
name the surrendered Certificate is registered, it shall be a condition of
payment that the Certificate so surrendered shall be properly endorsed or shall
be otherwise in proper form for transfer and that the person requesting such
payment shall have paid any transfer and other taxes required by reason of the
payment of the Merger Consideration to a person other than the registered holder
of the Certificate surrendered.</p>
<p>(d) <u>Transfer Books; No Further Ownership Rights in Company Common Stock</u>.
At the Effective Time, the stock transfer books of the Company shall be closed
and thereafter there shall be no further registration of transfers of shares of
common stock of the Company on the records of the Company. From and after the
Effective Time, the holders of Certificates evidencing ownership of shares of
common stock of the Company outstanding immediately prior to the Effective Time
shall cease to have any rights with respect to such shares, except as otherwise
provided for herein or by applicable law. If, after the Effective Time,
Certificates are presented to the Surviving Corporation for any reason, they
shall be cancelled and exchanged as provided in this Article I.</p>
<p>(e) <u>Termination of Fund, No Liability</u>. At any time following six
months after the Effective Time, the Surviving Corporation shall be entitled to
require the Paying Agent to deliver to it any funds (including any interest
received with respect thereto) which had been made available to the Paying Agent
and which have not been disbursed to holders of Certificates, and thereafter
such holders shall be entitled to look to the Surviving Corporation (subject to
abandoned property, escheat or other similar laws) only as general creditors
thereof with respect to the Merger Consideration payable upon due surrender of
their Certificates, without any interest thereon. Notwithstanding the foregoing,
none of Purchaser, the Surviving Corporation or the Paying Agent shall be liable
to any holder of a Certificate for Merger Consideration delivered to a public
official pursuant to any applicable abandoned property, escheat or similar law.</p>
<p>(f) <u>Lost Certificates</u>. If any Certificate shall have been lost, stolen
or destroyed, upon the making of an affidavit of that fact by the person
claiming such Certificate to be lost, stolen or destroyed with such assurances
as the Paying Agent may, in its discretion require, and, if required by the
Surviving Corporation, the posting by such person of a bond in such reasonable
amount as the Surviving Corporation may direct as indemnity against any claim
that may be made against it with respect to such Certificate, the Paying Agent
shall pay in exchange for such lost, stolen or destroyed Certificates the Merger
Consideration pursuant to this Agreement.</p>
<blockquote>
  <blockquote>
    <p>SECTION 1.04 <u>Withholding Taxes</p>
    </blockquote>
  </blockquote>
</u>
<p>The Purchaser and Merger Subsidiary shall be entitled to deduct and withhold,
or cause the Paying Agent to deduct and withhold, from the Merger Consideration
payable pursuant to the Merger, any withholding and stock transfer Taxes and
such amounts as are required under the IRC or any applicable provision of state,
local or foreign tax law. To the extent that amounts are so withheld by
Purchaser or Merger Subsidiary, such withheld amounts shall be treated for all
purposes of this Agreement as having been paid to the holder of the Shares in
respect of which such deduction and withholding was made by Purchaser or Merger
Subsidiary.</p>
<blockquote>
  <blockquote>
    <p>SECTION 1.05 <u>Appraisal Rights</p>
    </blockquote>
  </blockquote>
</u>
<p>Notwithstanding anything in this Agreement to the contrary, Shares that are
issued and outstanding immediately prior to the Effective Time and which are
held by stockholders who did not vote in favor of or consent in writing to the
Merger and who comply with all of the relevant provisions of Delaware Law (each
a &quot;Dissenting Stockholders&quot;) shall not be converted into or be
exchangeable for the right to receive the Merger Consideration, unless and until
such holders shall have failed to perfect or shall have effectively withdrawn or
lost their rights to appraisal under Delaware Law, but the holders thereof shall
be entitled to only such rights as are granted by Delaware Law. If any
Dissenting Stockholder shall have failed to perfect or shall have effectively
withdrawn or lost such right, such holder's Shares shall thereupon be converted
into and become exchangeable for the right to receive, as of the Effective Time,
the Merger Consideration without any interest thereon, upon surrender of the
Certificate or Certificates representing such Shares pursuant to Section 1.03
hereof. The Company shall give the Purchaser (i) prompt notice of any written
demands for appraisal of any Shares, attempted withdrawals of such demands and
any other instruments served pursuant to Delaware Law and received by the
Company relating to the stockholders' rights of appraisal and (ii) the
opportunity to direct all negotiations and proceedings with respect to demands
for appraisal under Delaware Law. Neither the Company nor the Surviving
Corporation shall, except with the prior written consent of the Purchaser,
voluntarily make any payment with respect to, or settle or offer to settle, any
such demand for payment. If any Dissenting Stockholder shall fail to perfect or
shall have effectively withdrawn or lost the right to dissent, the Shares held
by such Dissenting Stockholder shall thereupon be treated as though such Shares
had been converted into the right to receive the Merger Consideration pursuant
to Section 1.02(c) hereof.</p>
<p ALIGN="CENTER">ARTICLE II<br>
<u>THE SURVIVING CORPORATION</p>
<blockquote>
  <blockquote>
  </u>
  <p>SECTION 2.01 <u>Certificate of Incorporation</p>
  </blockquote>
</blockquote>
</u>
<p>The certificate of incorporation of Merger Subsidiary in effect at the
Effective Time shall be the certificate of incorporation of the Surviving
Corporation until amended in accordance with applicable law.</p>
<blockquote>
  <blockquote>
    <p>SECTION 2.02 <u>Bylaws</p>
    </blockquote>
  </blockquote>
</u>
<p>The bylaws of Merger Subsidiary in effect at the Effective Time shall be the
bylaws of the Surviving Corporation until amended in accordance with applicable
law.</p>
<blockquote>
  <blockquote>
    <p>SECTION 2.03 <u>Directors and Officers</p>
    </blockquote>
  </blockquote>
</u>
<p>From and after the Effective Time, until successors are duly elected or
appointed and qualified in accordance with applicable law, (i)&nbsp;the
directors of Merger Subsidiary at the Effective Time shall be the directors of
the Surviving Corporation, and (ii)&nbsp;the officers of Merger Subsidiary at
the Effective Time shall be the officers of the Surviving Corporation.</p>
<p ALIGN="CENTER">ARTICLE III<br>
REPRESENTATIONS AND WARRANTIES OF SELLERS;<br>
<u>REPRESENTATIONS AND WARRANTIES OF THE COMPANY</p>
<blockquote>
  <blockquote>
  </u>
  <p>SECTION 3.01 <u>Representations and Warranties of Sellers</p>
  </blockquote>
</blockquote>
</u>
<p>(a) The representations and warranties of each Seller set forth in Section
4.1 of the SPA are, as amended from time to time by the Disclosure Schedule and
all amendments thereto, accurate in all material respects as of the date of the
SPA and will be accurate in all material respects as of the Merger Closing Date.</p>
<p>(b) The Sellers represent and warrant that the Sellers executing a written
consent in favor of this Agreement and the Contemplated Transactions are the
owners of record of more than fifty (50%) percent of the issued and outstanding
voting stock of the Company.</p>
<blockquote>
  <blockquote>
    <p>SECTION 3.02 <u>Representations and Warranties of the Company</p>
    </blockquote>
  </blockquote>
</u>
<p>The representations and warranties of the Company set forth in Section 4.2
through and including Section 4.19 of the SPA are, as amended from time to time
by the Disclosure Schedule and all amendments thereto, accurate in all material
respects as of the date of the SPA and will be accurate in all material respects
as of the Merger Closing Date.</p>
<p ALIGN="CENTER">ARTICLE IV<br>
<u>REPRESENTATIONS AND WARRANTIES OF THE PURCHASER</p>
</u>
<p>SECTION 4.01 <u>Representations and Warranties of the Purchaser and Merger
Subsidiary</p>
</u>
<p>The representations and warranties of the Purchaser set forth in Section 5.1
through and including Section 5.6 of the SPA are accurate in all material
respects as of the date of this Agreement; <i>provided, however,</i> that
references in such representations and warranties to the Purchaser shall be
deemed to also be references to Merger Subsidiary, in respect of which such
representations and warranties are also accurate in all material respects of the
date of this Agreement.</p>
<p ALIGN="CENTER">ARTICLE V<br>
<u>COVENANTS</p>
<blockquote>
  <blockquote>
  </u>
  <p>SECTION 5.01 <u>Covenants from Purchase Agreement</p>
  </blockquote>
</blockquote>
</u>
<p>The parties hereto agree to perform their respective covenants contained in
Section 6 of the Purchase Agreement and such covenants incorporated herein by
reference.</p>
<blockquote>
  <blockquote>
    <p>SECTION 5.02 <u>Obligations of Merger Subsidiary</p>
    </blockquote>
  </blockquote>
</u>
<p>The Purchaser will take all action necessary to cause Merger Subsidiary to
perform its obligations under this Agreement and to consummate the Merger on the
terms and conditions set forth in this Agreement.</p>
<blockquote>
  <blockquote>
    <p>SECTION 5.03 <u>State Takeover Laws</p>
    </blockquote>
  </blockquote>
</u>
<p>Notwithstanding any other provision in the Agreement, in no event shall the
approval given by the board of directors of the Company with respect to Section
203 of Delaware Law be withdrawn, revoked or modified by the board of directors
of the Company. If any state takeover statute other than Section 203 of Delaware
Law becomes or is deemed to become applicable to the Company, the acquisition of
Shares or the Merger, the Company shall take all action necessary to render such
statute inapplicable to all of the foregoing.</p>
<blockquote>
  <blockquote>
    <p>SECTION 5.04 <u>Further Assurances</p>
    </blockquote>
  </blockquote>
</u>
<p>At and after the Effective Time, the officers and directors of the Surviving
Corporation will be authorized to execute and deliver, in the name and on behalf
of the Company or Merger Subsidiary, any deeds, bills of sale, assignments,
assurances, instruments or other documents and to take and do, in the name and
on behalf of the Company or Merger Subsidiary, any other actions and things to
vest, perfect or confirm of record or otherwise in the Surviving Corporation any
and all right, title and interest in, to and under any of the rights, properties
or assets of the Company acquired or to be acquired by the Surviving Corporation
as a result of, or in connection with, the Merger.</p>
<blockquote>
  <blockquote>
    <p>SECTION 5.05 <u>Certain Filings</p>
    </blockquote>
  </blockquote>
</u>
<p>The Company and the Purchaser shall cooperate with one another (a) in
connection with the preparation of the information statement to be prepared
pursuant to Regulation 14C of Securities Exchange Act of 1934, as amended, and
filed with the SEC (the &quot;Information Statement&quot;), (b) in determining
whether any action by or in respect of, or filing with, any Governmental Body,
or Governmental Authorization is required, or any actions, consents, approvals
or waivers are required to be obtained from parties to any material Contracts,
in connection with the consummation of the transactions contemplated by this
Agreement, and (c) in seeking any such actions, consents, approvals or waivers
or making any such filings, furnishing information required in connection
therewith or with the Information Statement and seeking timely to obtain any
such actions, consents, approvals or waivers.</p>
<blockquote>
  <blockquote>
    <p>SECTION 5.06 <u>Information Statement</p>
    </blockquote>
  </blockquote>
</u>
<p>The Company and the Purchaser shall promptly prepare and file with the SEC a
preliminary version of the Information Statement and will use their best efforts
to promptly respond to the comments of the SEC in connection therewith and to
furnish all information required to prepare the definitive Information
Statement. Each of the Company and the Purchaser shall use its best efforts to
resolve all SEC comments, if any, received in respect of the Information
Statement, and to have the Information Statement cleared by the SEC as soon as
practicable. Promptly after all such SEC comments are resolved, each party will
cause the Information Statement to be mailed to its stockholders, and if
necessary, after the definitive Information Statement shall have been mailed,
promptly circulate an amended, supplemented or supplemental Information
Statement. The Information Statement shall provide that the Merger will become
effective twenty (20) days after the definitive Information Statement is mailed
to such stockholders.</p>
<blockquote>
  <blockquote>
    <p>SECTION 5.07 <u>Approval of Merger by Board of Directors</p>
    </blockquote>
  </blockquote>
</u>
<p>The board of directors of the Company has approved this Agreement and the
Merger, and such approval shall not be withdrawn, revoked, rescinded or amended
in any way except with the prior written consent of the Purchaser, acting in its
sole discretion.</p>
<blockquote>
  <blockquote>
    <p>SECTION 5.08 <u>Stockholder Consent</p>
    </blockquote>
  </blockquote>
</u>
<p>Each of the Company and the Purchaser have obtained the necessary approvals
by its stockholders or members, as applicable, of this Agreement, the
Contemplated Transactions and such other matters as are contemplated by the
terms of this Agreement or required by Delaware Law or the laws of the State of
Utah, as applicable, and will otherwise comply with all legal requirements
applicable to obtaining such approvals, and such approvals shall not be
withdrawn, revoked, rescinded or amended in any way except with the prior
written consent of the Purchaser (if such action is proposed to be taken by the
Company) or the Company (if such action is proposed to be taken by the
Purchaser), acting in its sole discretion.</p>
<blockquote>
  <blockquote>
    <p>SECTION 5.09 <u>Approvals by Merger Subsidiary</p>
    </blockquote>
  </blockquote>
</u>
<p>(a) The Purchaser shall cause the board of directors of Merger Subsidiary to
approve this Agreement and the Merger, and such approval shall not be withdrawn,
revoked, rescinded or amended in any way except with prior written consent of
the Company and the Sellers, acting in their respective sole discretion.</p>
<p>(b) The Purchaser, as sole stockholder of Merger Subsidiary, has approved
this Agreement and the Merger, and such approval shall not be withdrawn,
revoked, rescinded or amended in any way except with the prior written consent
of the Company and the Sellers, acting in their respective sole discretion.</p>
<blockquote>
  <blockquote>
    <p>SECTION 5.10 <u>Release of Deposit</p>
    </blockquote>
  </blockquote>
</u>
<p>Upon the Merger Closing, the Purchaser, the Company and Loeb, acting on
behalf of the Sellers, shall instruct the Deposit Agent to release the Deposit,
the Supplemental Deposit and the Additional Deposit, if applicable, to the
Paying Agent.</p>
<blockquote>
  <blockquote>
    <p>SECTION 5.11 <u>Treatment of Postponement Deposits</p>
    </blockquote>
  </blockquote>
</u>
<p>(a) The Postponement Deposits shall be applied as follows:</p>
<blockquote>
  <blockquote>
    <blockquote>
            <p align="left">(i) to the Merger Consideration at the Merger Closing, if the
            Merger Closing occurs;</p>
            <p align="left">(ii) the initial deposit made by Purchaser pursuant to the First
            Amendment ($250,000) (the &quot;Initial Deposit&quot;), the Second
            Postponement Payment ($250,000), the Supplemental Shares Second
            Postponement Payment ($50,000), and, if applicable, the Third
            Postponement Payment ($250,000) and the Supplemental Shares Third
            Postponement Payment ($50,000) shall be non-refundable and the
            property of the Sellers;</p>
            <p align="left">(iii) if this Agreement is terminated prior to September 19, 2002
            by Purchaser, the deposit made by Purchaser pursuant to the Deposit
            Agreement ($1,250,000) (the &quot;Deposit&quot;) and the
            supplemental deposit made by the Purchaser pursuant to the
            Supplemental Deposit Agreement ($250,000) (the &quot;Supplemental
            Deposit&quot;) shall be delivered to the Sellers, subject to the
            terms of the Deposit Agreement, the Supplemental Deposit Agreement
            and this Agreement, as applicable; <i>provided, however, </i>the
            Deposit, the Supplemental Deposit and the Additional Deposit, if
            applicable, shall be promptly returned to Purchaser if (a) any
            Seller is in Breach of its representations and warranties contained
            in Section 4.1(f) of the Purchase Agreement, and such Breach has not
            be waived or cured, and as a result of which, Purchaser will be
            unable to acquire from the Sellers at Merger Closing, free and clear
            of all claims and Encumbrances, at least fifty-one (51%) percent of
            the outstanding common stock of the Company as of the Merger Closing
            Date after assuming that all Options or other rights to acquire
            common stock of the Company have been issued, exercised and
            converted to common stock, as applicable, (b) if Purchaser has
            satisfied its obligations under Sections 6.03 (a) and (b) in all
            material respects and all of the conditions specified in Sections
            6.02 (a) and (b) have not been satisfied (<i>provided however,</i>
            for the purposes of this subsection, (i) the Company and the Sellers
            must satisfy the conditions of Section 6.02 (a) only with respect to
            at least fifty-one (51%) percent of the outstanding common stock of
            the Company as of the Merger Closing Date (assuming that all Options
            or other rights to acquire common stock of the Company have been
            issued, exercised and converted to common stock as applicable), (ii)
            incorrect representations and warranties contained in the
            certificate required by Section 6.02(a), of which the Company and
            the Sellers had no Knowledge prior to or at Merger Closing shall not
            be considered a failure to satisfy the conditions specified in
            Section 6.02(a), (iii) if Purchaser had Knowledge of any such
            incorrect representation or warranty prior to Merger Closing, such
            incorrectness shall not be considered a failure by the Company or
            the Sellers to satisfy the conditions specified in Section 6.02(a),
            or (c) all of the conditions specified in Sections 6.03(a) and (b)
            have been satisfied in all material respects but the parties are
            prevented from completing the Contemplated Transactions (the Merger
            Closing or the Closing under the Purchase Agreement, if reinstated)
            if any judgment, injunction, order or decree of a court of competent
            jurisdiction shall restrain or prohibit both the consummation of the
            Merger and the Closing of the Purchase Agreement, and such judgment,
            injunction, order or decree shall become final and non-appealable.</p>
            <p align="left">(iv) If the Sellers retain the Postponement Deposits under this
            Section 5.11, the parties agree that since any damages to the
            Sellers under this Agreement may be difficult to ascertain, the
            Postponement Deposits shall constitute liquidated damages as the
            Sellers' sole and exclusive remedy in law or equity for any Breach
            or termination of this Agreement by Purchaser at any time or for
            failure to close during the Postponement Period;</p>
            <p align="left">(v) If this Agreement is not terminated prior to September 19,
            2002, on September 19, 2002 all Postponement Deposits are deemed
            non-refundable and shall be immediately paid to, or retained by,
            Loeb on behalf of and as the property of the Sellers. As a condition
            of the extension of this Agreement beyond September 19, 2002,
            Purchaser shall pay on or prior to September 19, 2002, to Loeb as
            Sellers' Representative on behalf of the Sellers, an additional
            non-refundable payment, in the amount of $1,650,000, which shall be
            the property of the Sellers and applied to the Merger Consideration
            payable to the Sellers at Merger Closing (the &quot;Additional
            Deposit&quot;).</p>
            <p align="left">(vi) If this Agreement is not terminated prior to October 1,
            2002, as a condition of the extension of this Agreement beyond
            October 1, 2002, Purchaser shall pay on or prior to October 1, 2002,
            to Loeb as Sellers' Representative on behalf of the Sellers, an
            additional non-refundable payment in the amount of $1,000,000, which
            shall be the property of the Sellers and applied to the Merger
            Consideration payable to the Sellers at Merger Closing (the
            &quot;Merger Postponement Payment&quot;).</p>
    </blockquote>
  </blockquote>
</blockquote>
<p>(b) If this Agreement is not terminated prior to September 19, 2002, Loeb, as
Sellers' Representative (as defined in the Deposit Agreement), may submit a
Sellers' Disbursement Notice (as defined in the Deposit Agreement) in the
amount of the Deposit and Purchaser agrees that it shall not file an Objection
Notice (as defined in the Deposit Agreement) to such Sellers' Disbursement
Notice, thereby allowing the Deposit to be distributed to the Sellers. Upon
disbursement to the Sellers, the Deposit shall be nonrefundable and the property
of the Sellers. In furthering the provisions of this subsection, the Deposit
Agent (as defined in the Deposit Agreement) shall promptly disburse the Deposit
to Sellers' Representative and the parties shall execute any documentation
necessary to accomplish the foregoing, including a notice from Purchaser to the
Deposit Agent waiving the 7-day waiting period in relation to the Deposit
required pursuant to the Deposit Agreement. Purchaser shall countersign the
Sellers' Disbursement Notice with respect to the Deposit and shall confirm in
writing that it will not file an Objection Notice with respect to the Deposit.</p>
<p>(c) If this Agreement is not terminated prior to September 19, 2002, Loeb as
Sellers' Representative (as defined in the Supplemental Deposit Agreement) may
submit a Sellers' Disbursement Notice (as defined in the Supplemental Deposit
Agreement) in the amount of the Supplemental Deposit and Purchaser shall not
file an Objection Notice to such Sellers' Disbursement Notice, thereby
allowing the Supplemental Deposit to be distributed to Sellers'
Representative, which Supplemental Deposit shall be nonrefundable and the
property of Sellers' Representative. In furthering the provisions of this
subsection, the Deposit Agent (as defined in the Supplemental Deposit Agreement)
shall promptly disburse the Supplemental Deposit to Sellers' Representative
and the parties shall execute any documentation necessary to accomplish the
foregoing, including a notice from Purchaser to the Deposit Agent waiving the
7-day waiting period in relation to the Supplemental Deposit required pursuant
to the Supplemental Deposit Agreement. Purchaser shall countersign Sellers'
Disbursement Notice with respect to the Supplemental Deposit and shall confirm
in writing that it will not file an Objection Notice with respect to the
Supplemental Deposit.</p>
<p>(d) If the Merger Closing or a Closing under the Purchase Agreement occurs,
all Postponement Deposits and the Merger Postponement Payment shall be applied
to the Merger Consideration payable to the Sellers under the Merger Agreement,
or to the Purchase Price under the Purchase Agreement.</p>
<p>(e) If the Additional Deposit is made by Purchaser, at the time of such
payment, the Sellers shall deliver to Holme Roberts &amp; Owen LLP, counsel to
the Sellers, the Shares owned or held by such Sellers, which Shares shall
constitute at least seventy-five percent (75%) of the Shares outstanding on such
date (assuming that all Options or other rights to acquire common stock of the
Company have been issued, exercised and converted to common stock as
applicable), and which Shares shall be held in escrow until the Merger Closing
or the Closing under the Purchase Agreement. If the Merger Closing or the
Closing under the Purchase Agreement does not occur on or prior to the latest
date permitted by this Agreement and the Purchase Agreement, as applicable, each
such Share shall be returned to the applicable Seller.</p>
<p>(f) If the Merger Postponement Payment has been made, but the Merger Closing
or the Closing under the Purchase Agreement does not occur because (x) the
Sellers have not fulfilled the conditions applicable to them set forth in
Section 6.02 (other than clause (a) thereof), (y) there is a Breach of the
representations contained in Section 4.1(f) of the SPA, which is incorporated in
this Agreement by reference, such that Purchaser would not receive at least
fifty-one percent (51%) of the Shares outstanding (assuming that all Options or
other rights to acquire common stock of the Company have been issued, exercised
and converted to common stock as applicable), or (z) all of the conditions
specified in Sections 6.03(a) and (b) have been satisfied in all material
respects but the parties are prevented from completing the Contemplated
Transactions (the Merger Closing or the Closing under the Purchase Agreement, if
reinstated) if any judgment, injunction, order or decree of a court of competent
jurisdiction shall restrain or prohibit both the consummation of the Merger and
the Closing of the Purchase Agreement, and such judgment, injunction, order or
decree shall become final and non-appealable, then, in each case, all
Postponement Deposits and the Merger Postponement Payment shall be returned by
the Sellers to Purchaser.</p>
<p ALIGN="CENTER">ARTICLE VI<u><br>
CONDITIONS TO THE MERGER</p>
<blockquote>
  <blockquote>
  </u>
  <p>SECTION 6.01 <u>Conditions to the Obligations of Each Party</p>
  </blockquote>
</blockquote>
</u>
<p>The obligations of the Company, the Purchaser, Merger Subsidiary and the
Sellers to consummate the Merger are subject to the satisfaction of the
following conditions (any of which may be waived by consent of all of the
parties in whole or in part):</p>
<p>(a) this Agreement and the Merger have been approved by the requisite vote or
consent of the stockholders of the Company and Merger Subsidiary in accordance
with Delaware Law, and by the members of the Purchaser in accordance with the
laws of the State of Utah, and such approvals shall remain in full force and
effect;</p>
<p>(b) this Agreement and the Merger have been approved by the board of
directors of each of the Company and Merger Subsidiary, and such approvals shall
remain in full force and effect;</p>
<p>(c) subject to the terms and provisions herein provided, all consents,
orders, and approvals required of all Governmental Bodies for the consummation
of the Contemplated Transactions shall have been obtained and be in effect at
the Effective Time, other than non-material consents, orders or approvals, and
the waiting periods under the HSR Act, if applicable, shall have expired or been
terminated;</p>
<p>(d) no provision of any applicable domestic law or regulation and no
judgment, injunction, order or decree of a court of competent jurisdiction shall
restrain or prohibit the consummation of the Merger;</p>
<p>(e) there shall be no Proceeding pending to enjoin, restrain, prohibit or
obtain substantial damages in respect of, related to, or arising out of this
Agreement or the consummation of the Contemplated Transactions; <i>provided,
however,</i> that this Section 6.01(e) shall not encompass any Proceeding
described in Section 7.01(e), and in such event, the terms of Section 7.01(e)
shall control and this Section 6.01(e) shall not apply; and</p>
<p>(f) All comments on the Information Statement received from the SEC shall
have been resolved and no stop order suspending the use of such Information
Statement shall be in effect and no proceedings for such purpose shall be
pending before the SEC.</p>
<p>SECTION 6.02 <u>Conditions to the Obligations of Purchaser and Merger
Subsidiary</p>
</u>
<p>The obligations of the Purchaser and Merger Subsidiary to consummate the
Merger are subject to the satisfaction, as of the Merger Closing Date, of the
following further conditions (any of which may be waived by the Purchaser and
Merger Subsidiary in whole or in part):</p>
<p>(a) the representations and warranties of the Company and the Sellers set
forth in Article III hereof shall, as amended from time to time by the
Disclosure Schedule and all amendments thereto, be accurate in all material
respects when made and as of the Merger Closing Date, and the Purchaser and
Merger Subsidiary shall have received a certificate to that effect signed by an
executive officer of each of the Company and each Seller. At any time prior to
the Merger Closing Date, the Company and the Sellers shall promptly amend the
Disclosure Schedule by written notice to the Purchaser and counsel to the
Purchaser at the address listed in Section 10.04 if they obtain Knowledge of any
matter that should be included in the Disclosure Schedule, as required under
this Agreement;</p>
<p>(b) the Company and the Sellers shall have performed, in all material
respects, all obligations required under this Agreement to be performed by the
Company and the Sellers on or before the Merger Closing Date, and the Purchaser
and Merger Subsidiary shall have received a certificate to that effect signed by
an executive officer of each of the Company and each Seller;</p>
<p>(c) the Purchaser and Merger Subsidiary shall have received a copy of the
resolutions of the board of directors of the Company authorizing the Merger,
which copy shall be certified by an executive officer of the Company;</p>
<p>(d) the Purchaser and Merger Subsidiary shall have received a certificate of
the corporate Secretary of the Company, dated the Merger Closing Date,
certifying as to true and accurate copies of all corporate action taken by the
board of directors of the Company, as applicable, related to or in connection
with this Agreement and the Contemplated Transactions, the Certificate of
Incorporation (certified by the Secretary of State of Delaware as of a recent
date), and the by-laws of the Company as amended to date, and the names, true
signatures and incumbency of the officers of the Company authorized to execute
this Agreement and the other documents executed or to be executed in connection
with this Agreement and the Contemplated Transactions;</p>
<p>(e) the Purchaser and Merger Subsidiary shall have received a certificate of
the Managing Partner of Loeb (as set forth in Loeb's Organizational
Documents), dated the Merger Closing Date, certifying such person is the
Managing Partner of Loeb and has executed on behalf of Loeb this Agreement and
the other documents executed or to be executed in connection with this Agreement
and the Contemplated Transactions, that Loeb has taken all partnership and other
action necessary to authorize this Agreement and the Contemplated Transactions,
and that such Managing Partner is authorized to execute this Agreement and such
other documents on behalf of Loeb;</p>
<p>(f) Purchaser and Merger Subsidiary shall have received a recent Certificate
of Good Standing of the Company from the Secretary of State of Delaware;</p>
<p>(g) the Company shall have obtained consents to a change of control in
landlords party to any and all material leases of the Facilities which required
such consents, as advised by Purchaser on or prior to September 19, 2002;</p>
<p>(h) the Company shall have obtained consents to a change in control required
by any Applicable Contract, as advised by Purchaser on or prior to September 19,
2002;</p>
<p>(i) the Purchaser and Merger Subsidiary shall have received an opinion of
counsel to the Company, in form substantially similar to the form attached as an
exhibit to the SPA, to the effect as agreed upon by the Company and the
Purchaser;</p>
<p>(j) the Company and the Sellers shall have delivered to Dresdner, as to the
Sellers out of the proceeds of Merger Closing, the amount equal to their
respective obligations to Dresdner as set forth in Section 13.11(c) of the
Purchase Agreement;</p>
<p>(k) the Purchaser, in its sole discretion, shall be satisfied with the
results of its due diligence investigation of the Company; <i>provided, however,
</i>that such condition to the Merger Closing shall terminate on September 19,
2002; and</p>
<p>(l) The Sellers executing a written consent in favor of this Agreement and
the Contemplated Transactions pursuant to Section 5.08 shall be the owners of
record of more than fifty (50%) percent of the issued and outstanding voting
stock of the Company.</p>
<p>SECTION 6.03 <u>Conditions to the Obligations of the Company and the Sellers</p>
</u>
<p>The obligations of the Company and the Sellers to consummate the Merger are
subject to the satisfaction, as of the Merger Closing Date, of the following
further conditions (any of which may be waived by the Company and the Sellers in
whole or in part):</p>
<p>(a) the representations and warranties of the Purchaser and Merger Subsidiary
set forth in Article IV hereof shall be accurate in all material respects when
made and as of the Merger Closing Date, and the Company and the Sellers shall
have received a certificate to that effect signed by an executive officer of
each of the Purchaser and Merger Subsidiary;</p>
<p>(b) the Purchaser and Merger Subsidiary shall have performed, in all material
respects, all obligations required by this Agreement to be performed by the
Purchaser on or before the Merger Closing Date, and the Company and the Sellers
shall have received a certificate to that effect signed by an executive officer
of each of the Purchaser and Merger Subsidiary;</p>
<p>(c) the Company and the Sellers shall have received a certificate of each of
the Purchaser and the corporate Secretary of Merger Subsidiary, dated the Merger
Closing Date, certifying as to true and accurate copies of all action taken by
members of the Purchaser, or, as applicable, all corporate action taken by the
board of directors of Merger Subsidiary, related to or in connection with this
Agreement and the Contemplated Transactions, and the names, true signatures and
incumbency of the officers of the Purchaser and Merger Subsidiary, as
applicable, authorized to execute this Agreement and the other documents
executed or to be executed in connection with this Agreement and the
Contemplated Transactions;</p>
<p>(d) the Company and the Sellers shall have received a recent Certificate of
Good Standing of the Purchaser issued by the State of Utah, and of Merger
Subsidiary issued by the Secretary of State of Delaware;</p>
<p>(e) the Company and the Sellers shall have received an opinion of counsel to
Purchaser and Merger Subsidiary, in form substantially similar to the form
attached as an exhibit to the SPA, to the effect as agreed upon by the Company
and the Purchaser;</p>
<p>(f) the Postponement Deposits shall each have been made; and</p>
<p>(g) the insurance policy described in Section 12(d) of the Purchase Agreement
and purchased by the Company shall be in effect at the Merger Closing; <i>provided,
however,</i> that no act or omission on the Company's part within the
reasonable control of the Company caused the cancellation or non-renewal of the
policy. This Section 6.03(g) shall not apply if the insurance policy is
cancelled or not renewed for non-payment of premiums. At the Merger Closing, the
Company shall reimburse Loeb for amounts paid by Loeb on behalf of the Company
in respect of the premium on such policy, up to a maximum reimbursement of
$225,000.</p>
<blockquote>
  <blockquote>
    <p>SECTION 6.04 <u>Set-off</p>
    </blockquote>
  </blockquote>
</u>
<p>The Company shall be permitted, at its option, to set-off any amounts payable
by the Sellers to the Company pursuant to that certain Letter Agreement, dated
as of August 26, 2002, by and among the Sellers and the Company, with respect to
the purchase of certain lots of real estate by the Sellers. The Company may
effect any such offset by instructing the Paying Agent to disburse such offset
amounts, which would otherwise have been payable to the Sellers pursuant to
Section 1.03(b) hereof.</p>
<u>
<p ALIGN="CENTER">ARTICLE VII<br>
TERMINATION</p>
<blockquote>
  <blockquote>
  </u>
  <p>SECTION 7.01 <u>Right to Terminate Agreement</p>
  </blockquote>
</blockquote>
</u>
<p>This Agreement may be terminated prior to the Effective Time without any
costs or damages against the other parties, except with respect to the
termination fee paid pursuant to Section 7.03:</p>
<p>(a) by the mutual written consent of the Company, the Purchaser and Loeb
acting in its discretion on behalf of the Sellers;</p>
<p>(b) at any time prior to the Effective Time by (i) the Purchaser if a
material Breach of any provision of this Agreement has been committed by the
Company or the Sellers and such Breach has not been waived or cured, or (ii) the
Company or Loeb acting on behalf of the Sellers if a material Breach of any
provision of this Agreement has been committed by the Purchaser and such Breach
has not been waived or cured;</p>
<p>(c) at any time prior to the Effective Time by any party hereto if there
shall be any applicable domestic law, rule or regulation that makes consummation
of the Merger illegal or otherwise prohibited or if any judgment, injunction,
order or decree of a court of competent jurisdiction shall restrain or prohibit
the consummation of the Merger, and such judgment, injunction, order or decree
shall become final and non-appealable;</p>
<p>(d) by any party hereto if any condition applicable to another party set
forth in Article VI shall not have been satisfied or waived on or before the
Merger Closing Date;</p>
<p>(e) by the Company or Loeb acting in its discretion on behalf of the Sellers
at any time prior to the Merger Closing if (i) the Sellers or the Company have
received a Superior Offer and (ii) if any temporary restraining order,
preliminary or permanent injunction or other order has been issued by any United
States federal or state court of competent jurisdiction or other material legal
restraint or prohibition has been issued or promulgated by a United States
federal or state governmental entity, court or agency in a Proceeding which was
initiated by a party other than the Company or the Sellers having the effect of
compelling consideration of a Superior Offer and sale of the Shares (by any
means) to the originator of the Superior Offer. The Company and the Sellers will
control such action and shall consult with the Purchaser in the defense of any
such action, and, if the Company and the Sellers elect not to control such
action, the Purchaser may undertake the defense of and control such action; <i>provided,
however, </i>that if such action falls within the ambit of Section 9.01, then
the provisions of Section 9.01 governing control and settlement of litigation
shall govern. The party that is in control of such action shall use good faith
efforts to vigorously defend and will endeavor to promptly resolve any such
action; the other parties hereto shall have a right to participate in such
action at their sole cost and expense. The Company and the Sellers may settle
any monetary portion of such action that does not impose upon the Purchaser any
monetary obligation or liability other than in de minimus amounts, subject to
the limitations set forth in Section 9.01, but may not settle any portion of
such action involving sale or other disposition of the Shares without the prior,
written consent of the Purchaser. If the Purchaser controls such action, the
Company and the Sellers shall fully cooperate with such defense and hereby
consent to any settlement or disposition of any such action effected by the
Purchaser that does not impose upon the Company or the Sellers any monetary
obligation or liability other than in de minimus amounts;</p>
<p>(f) by the Purchaser within ten (10) days of receipt of notice from the
Company of its withdrawal of recommendation of the Merger and/or recommendation
of a Superior Offer;</p>
<p>(g) by any party hereto, if the Merger Closing does not occur on or before
the later of (i) October 1, 2002, (ii) if ten (10) days following the filing of
the Information Statement with the SEC have elapsed (the &quot;Waiting
Period&quot;) and the SEC has not given the Company notice that it will comment
on the Information Statement, the twenty-fifth (25<sup>th</sup>) day following
the expiration of the Waiting Period, or (iii) if the SEC elects to comment on
the Information Statement, the twenty-fifth day following the date on which all
such SEC comments are resolved, which date of comment resolution shall not be
later than November 8, 2002 (if such comments are not resolved by such date,
this Agreement may be terminated by any party hereto); <i>provided, however,</i>
if any such date does not fall on a Business Day, the Merger Closing shall occur
on the next following Business Day; <i>provided, further,</i> that the party
that seeks to terminate this Agreement is not in Breach of this Agreement. Any
Breach of this Agreement shall be subject to the provisions of this Agreement
for addressing such Breach;</p>
<p>(h) on September 20, 2002 by the Company or Loeb, as Sellers'
Representative, if the Additional Deposit has not been made on or prior to
September 19, 2002</p>
<p>(i) on October 2, 2002 by the Company or Loeb, as Sellers' Representative,
if the Merger Postponement Payment has not been made on or prior to October 1,
2002.</p>
<blockquote>
  <blockquote>
    <p>SECTION 7.02 <u>Effect of Termination; No Survival</p>
    </blockquote>
  </blockquote>
</u>
<p>Upon the termination of this Agreement pursuant to Section 7.01 (other than
pursuant to clauses (b), (e), (h) or (i) thereof), the terms of the Purchase
Agreement shall automatically apply. Upon such termination, all provisions of
the Purchase Agreement shall be reinstated as of such date; <i>provided,
however,</i> notwithstanding any provision in the Purchase Agreement to the
contrary, the Closing Date of the Purchase under the Purchase Agreement shall be
the later of (i) ten (10) Business Days after the reinstatement thereof and (ii)
such other date as provided in Section 2 of the Purchase Agreement, or on such
other date, and at such location, as the parties shall agree.</p>
<blockquote>
  <blockquote>
    <p>SECTION 7.03 <u>Termination Fees</p>
    </blockquote>
  </blockquote>
</u>
<p>If (i) this Agreement shall have been validly terminated by the Company or
the Sellers pursuant to Section 7.01(e) and (ii) the Shares are purchased (or
cancelled in a merger transaction) pursuant to the Superior Offer, then the
Sellers shall pay to the Purchaser the sum of $2,500,000 within five (5)
Business Days after the closing of such Superior Offer.</p>
<blockquote>
  <blockquote>
    <p>SECTION 7.04 <u>Reinstatement</p>
    </blockquote>
  </blockquote>
</u>
<p>If this Agreement is terminated by the Company or the Sellers pursuant to
Section 7.01(e) or by the Purchaser pursuant to Section 7.01(f), but the Company
or the Sellers, as applicable, do not sell their Shares pursuant to the Superior
Offer, the Purchaser shall have the right at its sole option to reinstate this
Agreement (if not prevented from doing so by court order) pursuant to all of the
terms hereto. This Section 7.04 shall survive termination of this Agreement.</p>
<p ALIGN="CENTER">ARTICLE VIII<br>
<u>SELLERS' AGREEMENTS</p>
<blockquote>
  <blockquote>
  </u>
  <p>SECTION 8.01 <u>Consent to Merger</p>
  </blockquote>
</blockquote>
</u>
<p>Loeb, acting on behalf of the Sellers, shall, unless ordered by a court of
competent jurisdiction to do otherwise, execute a written consent under Delaware
Law in favor of the Merger and this Agreement and/or against any Superior Offer
or, if applicable, vote all of the Shares in favor of the transaction of any and
all business that may come before any meeting of the stockholders of the Company
called for the purpose of voting on the Merger and this Agreement and/or to vote
against any Superior Offer, or at any adjournment thereof, or in any consent
solicitation related to the foregoing. Such written consent shall not be
amended, rescinded or altered in any way, and any attempt to do so shall be null
and void.</p>
<blockquote>
  <blockquote>
    <p>SECTION 8.02 <u>No Proxies for or Disposition of Shares</p>
    </blockquote>
  </blockquote>
</u>
<p>Except pursuant to the terms of this Agreement, including, without
limitation, any Superior Offer, the Sellers shall not, without the prior written
consent of the Purchaser and Merger Subsidiary, directly or indirectly, (i)
grant any proxies or voting rights or enter into any voting trust or other
agreement or arrangement with respect to the voting of any Shares, (ii) acquire,
sell, assign, transfer, encumber, pledge or otherwise dispose of, or enter into
any contract, option or other arrangement or understanding with respect to the
direct or indirect acquisition or sale, assignment, transfer, encumbrance or
other disposition of, any Shares or interest therein during the term of this
Agreement, or (iii) issue any shares of its capital stock or any securities
convertible into or exchangeable for any shares of its capital stock or enter
into any contract, arrangement or understanding with respect thereto.</p>
<p ALIGN="CENTER">ARTICLE IX<br>
<u>INDEMNIFICATION</p>
<blockquote>
  <blockquote>
  </u>
  <p>SECTION 9.01 <u>Indemnification</p>
  </blockquote>
</blockquote>
</u>
<p>The provisions of Section 12 of the Purchase Agreement are incorporated
herein by reference, and such provisions shall be applicable to the
representations, warranties, covenants and obligations contained in or
incorporated by reference into this Agreement.</p>
<p ALIGN="CENTER">ARTICLE X<br>
<u>MISCELLANEOUS</p>
<blockquote>
  <blockquote>
  </u>
  <p>SECTION 10.01 <u>Compliance with Laws</p>
  </blockquote>
</blockquote>
</u>
<p>The parties hereto shall execute such agreements and other documents, and
shall take such other actions, as the other parties hereto may reasonably
request (prior to, at or after the Merger Closing Date) for the purpose of
ensuring that the Merger is carried out in full compliance with the provisions
of all applicable laws and regulations, including, without limitation, the
United States securities laws and regulations.</p>
<blockquote>
  <blockquote>
    <p>SECTION 10.02 <u>Governing Law</p>
    </blockquote>
  </blockquote>
</u>
<p>This Agreement shall be construed in accordance with, and governed in all
respects by, the laws of the State of Delaware (without giving effect to
principles of conflict of law).</p>
<p>SECTION 10.03 <u>Venue and Jurisdiction; Consent to Service of Process;
Waiver of Jury Trial</p>
</u>
<p>If any legal Proceeding or other legal action relating to this Agreement is
brought or otherwise initiated, the venue therefor shall be in Delaware, which
shall be deemed to be a convenient forum. The Purchaser and the Sellers hereby
expressly and irrevocably consent and submit to the jurisdiction of the courts
in Delaware and expressly waive (to the extent permitted by law) the right to
bring an action in any other jurisdiction. Process in any action or proceeding
referred to in the preceding sentence may be served on any party anywhere in the
world. Each of the parties hereto hereby irrevocably waives any and all right to
trial by jury in any legal Proceeding arising out of or related to this
Agreement or the Merger.</p>
<blockquote>
  <blockquote>
    <p>SECTION 10.04 <u>Notices</p>
    </blockquote>
  </blockquote>
</u>
<p>All notices, requests, demands and other communications to any party
hereunder shall be given in the manner contemplated by Section 13.4 of the
Purchase Agreement; <i>provided, however, </i>that copies of such notices,
requests, demands and communications to the Purchaser shall also be provided to:</p>
<blockquote>
  <blockquote>
    <blockquote>
      <blockquote>
        <p>Charles B. Hughes, Esq.<br>
        Torys LLP<br>
        237 Park Avenue<br>
        New York, NY 10017<br>
        Fax: (212) 682-0200</p>
      </blockquote>
    </blockquote>
    <p>SECTION 10.05 <u>Table of Contents and Headings</p>
    </blockquote>
  </blockquote>
</u>
<p>The table of contents of this Agreement and the underlined headings contained
in this Agreement are for convenience of reference only, shall not be deemed to
be a part of this Agreement and shall not be referred to in connection with the
construction or interpretation of this Agreement.</p>
<blockquote>
  <blockquote>
    <p>SECTION 10.06 <u>Assignment</p>
    </blockquote>
  </blockquote>
</u>
<p>No party hereto may assign any of its rights or delegate any of its
obligations under this Agreement to any other Person without the prior written
consent of the other parties hereto; <i>provided, however, </i>that (i) the
Sellers may, prior to the Merger Closing, assign to any Person their right to
receive all or any portion of the Merger Consideration the applicable Seller is
entitled to and (ii) the Purchaser may assign all or part of its rights under
this Agreement to a company or other legal entity controlled by it.</p>
<blockquote>
  <blockquote>
    <p>SECTION 10.07 <u>Parties in Interest</p>
    </blockquote>
  </blockquote>
</u>
<p>Nothing in this Agreement is intended to provide any rights or remedies to
any Person (including any employee or creditor of the Company) other than the
parties hereto.</p>
<blockquote>
  <blockquote>
    <p>SECTION 10.08 <u>Severability</p>
    </blockquote>
  </blockquote>
</u>
<p>In the event that any provision of this Agreement, or the application of such
provision to any Person or set of circumstances, shall be determined to be
invalid, unlawful, void or unenforceable to any extent, the remainder of this
Agreement, and the application of such provision to Person or circumstances
other than those as to which it is determined to be invalid, unlawful, void or
unenforceable, shall not be affected and shall continue to be valid and
enforceable to the fullest extent permitted by law; <i>provided, however, </i>the
parties shall be entitled to receive substantially all of the economic benefit
contemplated by this Agreement.</p>
<blockquote>
  <blockquote>
    <p>SECTION 10.09 <u>Entire Agreement</p>
    </blockquote>
  </blockquote>
</u>
<p>This Agreement and the Purchase Agreement set forth the entire understanding
of the Purchaser, the Company and the Sellers and supersede all other agreements
and understandings between the Purchaser, the Company and the Sellers relating
to the subject matter hereof and thereof.</p>
<blockquote>
  <blockquote>
    <p>SECTION 10.10 <u>Waiver</p>
    </blockquote>
  </blockquote>
</u>
<p>No failure on the part of any party hereto to exercise any power, right,
privilege or remedy under this Agreement, and no delay on the part of any party
hereto in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver thereof; and no single or partial exercise of any such
power, right, privilege or remedy shall preclude any other or further exercise
thereof or of any other power, right, privilege or remedy.</p>
<blockquote>
  <blockquote>
    <p>SECTION 10.11 <u>Fees and Expenses</p>
    </blockquote>
  </blockquote>
</u>
<p>(a) The Purchaser shall bear all costs and expenses of each party hereto,
including reasonable attorneys' fees, in connection with (i) preparing for,
entering into and carrying out this Agreement, and (ii) preparing and filing the
Information Statement, including associated filing fees and the dissemination of
the Information Statement.</p>
<p>(b) Except as otherwise provided in Section 10.11(a), Article VII hereof and
Section 13.11 (other than clause (a) thereof) of the Purchase Agreement, whether
or not the Merger shall be consummated, each party hereto shall pay its own
expenses incident to the consummation of the Merger.</p>
<blockquote>
  <blockquote>
    <p>SECTION 10.12 <u>Specific Performance</p>
    </blockquote>
  </blockquote>
</u>
<p>Remedies for a Breach of this Agreement by the Company or any Seller (other
than a Breach of Section 4.1(f) of the SPA, which is incorporated into this
Agreement by reference, and Section 7.03 of this Agreement) shall be limited to
specific performance (other than the return of the Postponement Deposits and the
Merger Postponement Payment (if applicable), as contemplated by Section 5.11
hereof). Any claim by Purchaser arising from or relating to a Breach of such
Section 4.1(f) may seek any damages available at law or equity other than
consequential damages, unless such Breach was intentional or the Sellers had
Knowledge of such Breach prior to Merger Closing, in which case Purchaser may
seek any damages available at law or equity for such Breach. The Sellers'
liability hereunder shall be several, and not joint, liability. Each of the
parties hereto acknowledges and agrees that in the event of any breach of this
Agreement, each non-breaching party would be irreparably and immediately harmed
and could not be made whole by monetary damages (other than a Breach of Section
7.03 hereof). It is accordingly agreed that the parties hereto (a) will waive,
in any action for specific performance, the defense of adequacy of a remedy at
law and (b) shall be entitled, in addition, to any other remedy to which they
may be entitled at law or in equity, to compel specific performance of this
Agreement in any action instituted in a court of competent jurisdiction.</p>
<blockquote>
  <blockquote>
    <p>SECTION 10.13 <u>Amendments</p>
    </blockquote>
  </blockquote>
</u>
<p>This Agreement may not be amended, modified, altered or supplemented except
by means of a written instrument executed on behalf of the Purchaser, the
Company and at least eighty-two (82%) percent of the Shares held by the Sellers.</p>
<blockquote>
  <blockquote>
    <p>SECTION 10.14 <u>Survival of Representations, Warranties and Covenants</p>
    </blockquote>
  </blockquote>
</u>
<p>The representations and warranties and agreements contained herein and in any
certificate or other writing delivered pursuant hereto shall not survive the
Effective Time, except Sections 7.03, 7.04, 9.01 and 10.11 hereof, and Sections
4.1(f), 6.1 and 6.4 of the Purchase Agreement and incorporated herein by
reference.</p>
<blockquote>
  <blockquote>
    <p>SECTION 10.15 <u>Agent for Sellers</p>
    </blockquote>
  </blockquote>
</u>
<p>(a) Each of the Sellers hereby appoints Loeb as its agent and
attorney-in-fact, for and on behalf of the Sellers in their respective name,
place and stead, to act as their proxy in respect of their respective Shares, to
give and receive notices and communications, to consent to the Contemplated
Transactions and all business related thereto, to execute a letter of
transmittal and other documents contemplated by Section 1.03, to vote against a
Superior Offer, to make the elections specified within this Agreement, and to
take all other actions, including, without limitation, amending the Deposit
Agreement and the Supplemental Deposit Agreement to make them consistent with
this Agreement, that are either (i) necessary or appropriate in the judgment of
Loeb for the accomplishment of the foregoing or (ii) specifically mandated by
the terms of this Agreement. Notices or communications to or from Sellers in
care of Loeb shall constitute notice to or from such Sellers.</p>
<p>(b) Loeb is hereby given and granted full power and authority to do and
perform every act contemplated by Section 10.15(a), as fully as it might or
could do if personally present with full power of substitution, appointment and
revocation, and all that Loeb shall do or cause to be done by virtue hereof is
hereby ratified and confirmed.</p>
<p>(c) Loeb shall not be liable for any act done or omitted hereunder as Sellers'
agent and attorney-in-fact while acting in good faith and in the exercise of
reasonable judgment. The Sellers, proportionately to their individual percentage
of ownership of the Shares, shall indemnify and hold Loeb harmless against any
loss, liability or expense incurred without gross negligence or bad faith on the
part of Loeb and arising out of or in connection with the acceptance or
administration of Loeb's duties hereunder.</p>
<p>(d) The irrevocable proxy granted to Loeb pursuant to this Section 10.15 is
coupled with an interest, namely the right of the Purchaser and Merger
Subsidiary to acquire all of the Shares and is given to the Purchaser and to its
officers and employees in consideration of the agreements of the Purchaser and
Merger Subsidiary under this Agreement, and to induce the Purchaser and Merger
Subsidiary to enter into this Agreement, and such irrevocable proxy shall not be
revocable or revoked by the Sellers, and shall be binding upon them, or their
successors and assigns until, in accordance with this Agreement, Article VIII
and this Section 10.15 are each terminated.</p>
<blockquote>
  <blockquote>
    <p>SECTION 10.16 <u>Interpretation of Agreement</p>
    </blockquote>
  </blockquote>
</u>
<p>(a) Each party hereto acknowledges that it has participated in the drafting
of this Agreement, and any applicable rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be applied
in connection with the construction or interpretation of this Agreement.</p>
<p>(b) Whenever required by the context hereof, the singular number shall
include the plural, and vice versa; the masculine gender shall include the
feminine and neuter genders; and the neuter gender shall include the masculine
and feminine genders.</p>
<p>(c) As used in this Agreement, the words &quot;include,&quot;
&quot;including&quot; and variations thereof, shall not be deemed to be terms of
limitation, and shall be deemed to be followed by the words &quot;without
limitation.&quot;</p>
<p>(d) References herein to &quot;Sections&quot; and &quot;Exhibits&quot; are
intended to refer to Sections and Exhibits to this Agreement.</p>
<blockquote>
  <blockquote>
    <p>SECTION 10.17 <u>Counterparts and Facsimile</p>
    </blockquote>
  </blockquote>
</u>
<p>This Agreement may be signed in counterparts, all of which together shall
constitute one and the same instrument.</p>
<p>The parties hereto may provide signatures to this Agreement by facsimile, and
such facsimile signatures shall be deemed to be the same as original signatures.</p>
<blockquote>
  <blockquote>
    <p>SECTION 10.18 <u>Definitions</p>
    </blockquote>
  </blockquote>
</u>
<p>(a) Capitalized terms used herein but not defined herein have the meaning
given to them in the Purchase Agreement.</p>
<p>(b) In this Agreement:</p>
<p>&quot;Business Day&quot; means any day other than Saturday, Sunday or any
other day on which banks are required or authorized to be closed in Salt Lake
City, Utah, New York, New York or Toronto, Ontario.</p>
<p>&quot;Postponement Deposits&quot; means, collectively, the Initial Deposit,
the Deposit, the Supplemental Deposit, the Second Postponement Payment, the
Supplemental Shares Second Postponement Payment and, if applicable, the Third
Postponement Payment, the Supplemental Shares Third Postponement Payment and the
Additional Deposit.</p>
<p>(c) For greater certainty, references in this Agreement to Section 6.4 of the
Purchase Agreement shall refer to Section 6.4 of the SPA, as amended by the
Amended SPA.</p>
<p>(d) For purposes of this Agreement, references in the Purchase Agreement to:</p>
<p>&quot;Closing&quot; means the Merger Closing;</p>
<p>&quot;Closing Date&quot; means Merger Closing Date;</p>
<p>&quot;Contemplated Transactions&quot; means all of the transactions
contemplated by this Agreement, including the Merger;</p>
<p>&quot;Merger Closing Date&quot; means the date on which the Merger Closing
occurs; and</p>
<p>&quot;Offer&quot; means the Merger;</p>
<p>&quot;the date hereof&quot; and &quot;the date of this Agreement&quot; mean
the date of this Agreement and Plan of Merger; and</p>
<p>&quot;this Agreement&quot; means this Agreement and Plan of Merger.</p>
<p>(e) References in the portions of the Purchase Agreement incorporated by
reference herein to any particular Section refers to the corresponding Section
in the Purchase Agreement.</p>
<p ALIGN="CENTER">&nbsp;</p>
<p ALIGN="CENTER">* * * *</p>
<p ALIGN="CENTER">&nbsp;</p>
<p ALIGN="CENTER">&nbsp;</p>
<p>IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their duly authorized representatives as of the day and year first
above written.</p>
<p>CAPITAL GROWTH PARTNERS, LLC<br>
By: Talisker Mountain Developments, Inc.,<br>
as Manager</p>
<p>By: /s/</p>
<blockquote>
  <p>Name: Jeff Levine<br>
  Title: Secretary and Treasurer</p>
</blockquote>
<p>CGP ACQUISITION, INC.</p>
<p>By: /s/</p>
<blockquote>
  <p>Name: Jeff Levine<br>
  Title: Vice President</p>
</blockquote>
<p>LOEB INVESTORS CO. XL</p>
<p>By: /s/</p>
<blockquote>
  <p>Name: Joseph S. Lesser<br>
  Title: Managing Partner</p>
</blockquote>
<p>LOEB INVESTORS CO. XL, WITH RESPECT TO THE SUPPLEMENTAL SHARES</p>
<p>By: /s/</p>
<blockquote>
  <p>Name: Joseph S. Lesser<br>
  Title: Managing Partner</p>
</blockquote>
<p>LABRADOR PARTNERS, LP</p>
<p>By: /s/</p>
<blockquote>
  <p>Name: Stephen Farley<br>
  Title:</p>
</blockquote>
<p>TIVOLI PARTNERS, a limited partnership</p>
<p>By:_________________________________</p>
<blockquote>
  <p>Name: Peter I. Kenner<br>
  Title:</p>
</blockquote>
<p>PETER I. KENNER</p>
<p>By:_________________________________</p>
<blockquote>
  <p>Peter Kenner</p>
</blockquote>
<p>PETER KENNER CUST</p>
<p>FBO NICHOLAS KENNER</p>
<p>By:_________________________________</p>
<blockquote>
  <p>Name: Peter I. Kenner<br>
  Title: Custodian</p>
</blockquote>
<p>IRA FBO PETER I. KENNER</p>
<p>By:_________________________________</p>
<blockquote>
  <p>Name: Peter I. Kenner<br>
  Title: Custodian</p>
</blockquote>
<p>KATHERINE IRENE KENNER TRUST</p>
<p>By:_________________________________</p>
<blockquote>
  <p>Name: Clara Halperin<br>
  Title: Successor Trustee</p>
  <p>&nbsp;</p>
  <p>&nbsp;</p>
  <p>&nbsp;</p>
  <p>&nbsp;</p>
</blockquote>
<p>PETER KENNER CUST</p>
<p>FBO KATHERINE I. KENNER</p>
<p>By:_________________________________</p>
<blockquote>
  <p>Name: Peter I. Kenner<br>
  Title: Custodian</p>
</blockquote>
<p>P. KENNER &amp; B. KENNER TRUST</p>
<p>By:_________________________________</p>
<blockquote>
  <p>Name: Clara Halperin<br>
  Title: Trustee</p>
</blockquote>
<p>PETER KENNER ANNUITY TRUST</p>
<p>By:_________________________________</p>
<blockquote>
  <p>Name: Clara Halperin<br>
  Title: Trustee</p>
</blockquote>
<p>UNITED PARK CITY MINES COMPANY</p>
<p>By: /s/</p>
<blockquote>
  <p>Name: Hank Rothwell<br>
  Title: President</p>
</blockquote>
<p>EILEEN FARLEY</p>
<p>By:_________________________________</p>
<blockquote>
  <p>Eileen Farley</p>
</blockquote>
<p>EILEEN FARLEY TRUST</p>
<p>By: /s/</p>
<blockquote>
  <p>Name: Stephen Farley<br>
  Title: Trustee</p>
</blockquote>
  <p>JOHN FARLEY TRUST</p>
  <p>By: /s/</p>
  <blockquote>
    <p>Name: Stephen Farley<br>
    Title: Trustee</p>
  </blockquote>
  <p>J.C. WALTER</p>
  <p>By:_________________________________</p>
  <p>J.C. Walter</p>
  <p>T.Y. WONG FOUNDATION</p>
  <p>By:_________________________________</p>
  <blockquote>
    <p>Name: Eleanor Wong<br>
    Title: President</p>
  </blockquote>
  <p>TRUST f/b/o JOHN S. FARLEY UNDER THE UNIFORM GIFT TO MINORS ACT</p>
  <p>By: /s/</p>
  <blockquote>
    <p>Name: Stephen Farley<br>
    Title: Guardian</p>
  </blockquote>
  <p>TRUST f/b/o JOHN S. FARLEY UNDER THE UNIFORM GIFT TO MINORS ACT</p>
  <p>By: /s/</p>
  <blockquote>
    <p>Name: Stephen Farley<br>
    Title: Guardian</p>
  </blockquote>
<p ALIGN="left">&nbsp;</p>
<b>
<p ALIGN="CENTER">EXHIBIT A</p>
<p ALIGN="CENTER">SELLERS</p>
</b>
<p>Loeb Investors Co. XL<br>
Loeb Investors Co. XL, with respect to the Supplemental Shares<br>
Labrador Partners, LP<br>
Tivoli Partners, a limited partnership<br>
Peter I. Kenner<br>
Peter Kenner cust fbo Nicholas Kenner<br>
IRA fbo Peter I. Kenner<br>
Katherine Irene Kenner Trust<br>
Peter Kenner cust fbo Katherine I. Kenner<br>
P. Kenner &amp; B. Kenner Trust<br>
Peter Kenner Annuity Trust<br>
Eileen Farley<br>
Eileen Farley Trust<br>
John Farley Trust<br>
J.C. Walter<br>
T.Y. Wong Foundation<br>
Trust f/b/o John S. Farley under the Uniform Gift to Minors Act<br>
Trust f/b/o John S. Farley under the Uniform Gift to Minors Act</p>
<blockquote>
  <blockquote>
    <blockquote>
      <blockquote>
        <blockquote>
          <blockquote>
            <blockquote>
              <blockquote>
                <blockquote>
                  <blockquote>
                    <b><u>
                    <p>TABLE OF CONTENTS</p>
                    </blockquote>
                    </blockquote>
                  </blockquote>
                </blockquote>
              </blockquote>
            </blockquote>
          </blockquote>
        </blockquote>
      </blockquote>
    </blockquote>
  </u></b>
<p ALIGN="RIGHT">Page</p>
<p ALIGN="left">ARTICLE I THE MERGER <a HREF="#_Toc18150387">*</a>
<p align="left">SECTION 1.01 The Merger <a HREF="#_Toc18150388">*</a></p>
<p align="left">SECTION 1.02 Conversion of Shares <a HREF="#_Toc18150389">*</a></p>
<p align="left">SECTION 1.03 Surrender and Payment <a HREF="#_Toc18150390">*</a></p>
<p align="left">SECTION 1.04 Withholding Taxes <a HREF="#_Toc18150391">*</a></p>
<p align="left">SECTION 1.05 Appraisal Rights <a HREF="#_Toc18150392">*</a></p>
<p align="left">ARTICLE II THE SURVIVING CORPORATION <a HREF="#_Toc18150393">*</a></p>
<p align="left">SECTION 2.01 Certificate of Incorporation <a HREF="#_Toc18150394">*</a></p>
<p align="left">SECTION 2.02 Bylaws <a HREF="#_Toc18150395">*</a></p>
<p align="left">SECTION 2.03 Directors and Officers <a HREF="#_Toc18150396">*</a></p>
<p align="left">ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLERS;
REPRESENTATIONS AND WARRANTIES OF THE COMPA <a HREF="#_Toc18150397">*</a></p>
<p>SECTION 3.01 Representations and Warranties of Sellers <a HREF="#_Toc18150398">*</a></p>
<p>SECTION 3.02 Representations and Warranties of the Company <a HREF="#_Toc18150399">*</a></p>
<p>ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASER <a HREF="#_Toc18150400">*</a></p>
<p>SECTION 4.01 Representations and Warranties of the Purchaser and Merger
Subsidiary <a HREF="#_Toc18150401">*</a></p>
<p>ARTICLE V COVENANTS <a HREF="#_Toc18150402">*</a></p>
<p>SECTION 5.01 Covenants from Purchase Agreement <a HREF="#_Toc18150403">*</a></p>
<p>SECTION 5.02 Obligations of Merger Subsidiary <a HREF="#_Toc18150404">*</a></p>
<p>SECTION 5.03 State Takeover Laws <a HREF="#_Toc18150405">*</a></p>
<p>SECTION 5.04 Further Assurances <a HREF="#_Toc18150406">*</a></p>
<p>SECTION 5.05 Certain Filings <a HREF="#_Toc18150407">*</a></p>
<p>SECTION 5.06 Information Statement <a HREF="#_Toc18150408">*</a></p>
<p>SECTION 5.07 Approval of Merger by Board of Directors <a HREF="#_Toc18150409">*</a></p>
<p>SECTION 5.08 Stockholder Consent <a HREF="#_Toc18150410">*</a></p>
<p>SECTION 5.09 Approvals by Merger Subsidiary <a HREF="#_Toc18150411">*</a></p>
<p>SECTION 5.10 Release of Deposit <a HREF="#_Toc18150412">*</a></p>
<p>SECTION 5.11 Treatment of Postponement Deposits <a HREF="#_Toc18150413">*</a></p>
<p>ARTICLE VI CONDITIONS TO THE MERGER <a HREF="#_Toc18150414">*</a></p>
<p>SECTION 6.01 Conditions to the Obligations of Each Party <a HREF="#_Toc18150415">*</a></p>
<p>SECTION 6.02 Conditions to the Obligations of Purchaser and Merger Subsidiary
<a HREF="#_Toc18150416">*</a></p>
<p>SECTION 6.03 Conditions to the Obligations of the Company and the Sellers <a HREF="#_Toc18150417">*</a></p>
<p>SECTION 6.04 Set-off <a HREF="#_Toc18150418">*</a></p>
<p>ARTICLE VII TERMINATION <a HREF="#_Toc18150419">*</a></p>
<p>SECTION 7.01 Right to Terminate Agreement <a HREF="#_Toc18150420">*</a></p>
<p>SECTION 7.02 Effect of Termination; No Survival <a HREF="#_Toc18150421">*</a></p>
<p>SECTION 7.03 Termination Fees <a HREF="#_Toc18150422">*</a></p>
<p>SECTION 7.04 Reinstatement <a HREF="#_Toc18150423">*</a></p>
<p>ARTICLE VIII SELLERS' AGREEMENTS <a HREF="#_Toc18150424">*</a></p>
<p>SECTION 8.01 Consent to Merger <a HREF="#_Toc18150425">*</a></p>
<p>SECTION 8.02 No Proxies for or Disposition of Shares <a HREF="#_Toc18150426">*</a></p>
<p>ARTICLE IX INDEMNIFICATION <a HREF="#_Toc18150427">*</a></p>
<p>SECTION 9.01 Indemnification <a HREF="#_Toc18150428">*</a></p>
<p>ARTICLE X MISCELLANEOUS <a HREF="#_Toc18150429">*</a></p>
<p>SECTION 10.01 Compliance with Laws <a HREF="#_Toc18150430">*</a></p>
<p>SECTION 10.02 Governing Law <a HREF="#_Toc18150431">*</a></p>
<p>SECTION 10.03 Venue and Jurisdiction; Consent to Service of Process; Waiver
of Jury Trial <a HREF="#_Toc18150432">*</a></p>
<p>SECTION 10.04 Notices <a HREF="#_Toc18150433">*</a></p>
<p>SECTION 10.05 Table of Contents and Headings <a HREF="#_Toc18150434">*</a></p>
<p>SECTION 10.06 Assignment <a HREF="#_Toc18150435">*</a></p>
<p>SECTION 10.07 Parties in Interest <a HREF="#_Toc18150436">*</a></p>
<p>SECTION 10.08 Severability <a HREF="#_Toc18150437">*</a></p>
<p>SECTION 10.09 Entire Agreement <a HREF="#_Toc18150438">*</a></p>
<p>SECTION 10.10 Waiver <a HREF="#_Toc18150439">*</a></p>
<p>SECTION 10.11 Fees and Expenses <a HREF="#_Toc18150440">*</a></p>
<p>SECTION 10.12 Specific Performance <a HREF="#_Toc18150441">*</a></p>
<p>SECTION 10.13 Amendments <a HREF="#_Toc18150442">*</a></p>
<p>SECTION 10.14 Survival of Representations, Warranties and Covenants <a HREF="#_Toc18150443">*</a></p>
<p>SECTION 10.15 Agent for Sellers <a HREF="#_Toc18150444">*</a></p>
<p>SECTION 10.16 Interpretation of Agreement <a HREF="#_Toc18150445">*</a></p>
<p>SECTION 10.17 Counterparts and Facsimile <a HREF="#_Toc18150446">*</a></p>
<p>SECTION 10.18 Definitions <a HREF="#_Toc18150447">*</a></p>
<p ALIGN="CENTER">&nbsp;</p>

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