EXHIBIT 99.3
SHAREHOLDER AGREEMENT
This Shareholder Agreement (this "Agreement") is made and
entered into as of October 15, 2001, by and between Union Pacific
Corporation, a Utah corporation ("Parent"), and Xxxxxx X. Xxxxxxxxx (the
"Shareholder").
WHEREAS, concurrently herewith, Motor Cargo Industries,
Inc., a Utah corporation (the "Company"), Parent and Motor Merger Co., a
Utah corporation and wholly owned subsidiary of Parent, ("Merger Sub") are
entering into an Agreement and Plan of Merger of even date herewith (the
"Merger Agreement"), and pursuant to the Merger Agreement, Parent is
offering to exchange (the "Offer") each outstanding share of common stock,
no par value, of the Company ("Company Shares"), for, at the election of
the holder thereof, either (A) 0.26 of a share of common stock, par value
$2.50 per share, of Parent ("Parent Common Stock"), or (B) $12.10 in cash.
WHEREAS, upon consummation of the Offer and pursuant to
the terms of the Merger Agreement, the Company will be merged with and into
Merger Sub (the "Merger"), with Merger Sub continuing as the surviving
corporation, and outstanding shares of Company Stock will be converted into
the right to receive $12.10 per share;
WHEREAS, as of the date hereof, Shareholder (1) owns of
record that number of Company Shares appearing under Column A on Schedule A
attached hereto (such Company Shares, together with all other shares of
capital stock or other securities of the Company acquired by such
Shareholder hereafter, whether acquired upon the exercise of options or by
purchase, dividend, distribution, stock split, recapitalization, exchange
or otherwise, and all securities into which or for any or all of such
Company Shares may be changed or exchanged, now or in the future, are
collectively referred to as the "Shareholder's Shares"), and (2)
Beneficially Owns, and possesses the sole power to vote and sole power of
disposition with respect to, the number of Shareholder's Shares appearing
under Column B on Schedule A attached hereto (such shares, together with
all other shares of capital stock or other securities of the Company as to
which such Shareholder hereafter acquires Beneficial Ownership are
collectively referred to as the "Beneficially Owned Shares" and, together
with the Shareholder's Shares, the "Committed Shares"); and
WHEREAS, as a condition and inducement to the willingness
of Parent and Merger Sub to enter into the Merger Agreement and make the
Offer and effect the Merger, Parent and Merger Sub have required that
Shareholder agree, and Shareholder hereby agrees, to enter into the
agreements set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the
mutual promises and the mutual covenants and agreements contained herein,
the receipt and sufficiency of which are hereby acknowledged, and intending
to be legally bound hereby, the parties agree as follows:
ARTICLE I
COVENANTS OF SHAREHOLDER
Section 1.1 Agreement to Tender and Elect Stock.
Shareholder hereby agrees to validly tender (or cause the record owner of
such shares, as applicable, to validly tender), pursuant to and in
accordance with the terms of the Offer, but in no event later than ten
business days after the date on which Parent commences the Offer, all of
the Committed Shares, by physical delivery of the certificates therefor,
and to not withdraw any of the Committed Shares, except following
termination of the Offer pursuant to its terms or expiration of this
Agreement pursuant to Section 4.1 hereof. Shareholder shall irrevocably
elect to receive only Parent Common Stock in exchange for each Committed
Share so tendered and shall not modify or otherwise change, or seek to
modify or change, such election.
Section 1.2 Agreement to Vote. Unless Parent consents or
requests otherwise, Shareholder hereby agrees that he shall, and shall
cause the holder(s) of record of the Beneficially Owned Shares on any
applicable record date to, from time to time, at any meeting (whether
annual or special and whether or not an adjourned or postponed meeting) of
shareholders of the Company, however called, or in connection with any
written consent of the holders of Company Shares, or in any other
circumstances upon which a vote, consent or approval with respect to the
Merger, the Merger Agreement or any of the transactions contemplated
thereby are sought, (a) if a meeting is held, appear at such meeting or
otherwise cause the Committed Shares to be counted as present thereat for
purposes of establishing a quorum, and (b) vote (or cause to be voted), in
person or by proxy, or consent (or cause to be consented) the Committed
Shares, and any other voting securities of the Company (whether acquired
heretofore or hereafter) as to which such Shareholder has, directly or
indirectly, the right to vote or direct the voting, in favor of the Merger,
the Merger Agreement and the other transactions contemplated hereby and by
the Merger Agreement.
Section 1.3 Other Votes. Unless Parent consents or
requests otherwise, at any meeting (whether annual or special and whether
or not an adjourned or postponed meeting) of shareholders of the Company,
however called, or in connection with any written consent of the holders of
Company Shares, or in any other circumstances in which a vote, consent or
approval of any of the shareholders of the Company is sought, Shareholder
hereby agrees that he shall vote (or cause to be voted) or consent (or
cause to be consented) the Committed Shares against (a) any merger
agreement, merger, consolidation, combination, sale or issuance of
securities, sale or other disposition of substantial assets, spin-off,
reorganization, recapitalization, dissolution, liquidation or winding up
of, by or involving the Company or any of its subsidiaries (other than the
Merger Agreement and the Merger), (b) any Acquisition Proposal and (c) any
amendment or modification of the Articles of Incorporation or Bylaws of the
Company or of any of its subsidiaries or other proposal or transaction
involving the Company or any of its subsidiaries which is reasonably likely
to, in any manner, directly or indirectly, materially impair the ability of
Parent, Merger Sub or the Company to consummate, or to prevent or
materially delay the consummation of, the Offer, the Merger or the other
transactions contemplated by the Merger Agreement (collectively, the
"Negative Voting Matters"). Shareholder further agrees not to commit or
agree to take any action inconsistent with any of the foregoing.
Section 1.4 Grant of Proxy. (a) Shareholder, by this
Agreement, with respect to the Committed Shares, does hereby make,
constitute and appoint Parent, or any nominee of Parent, with full power of
substitution and resubstitution, to the fullest extent of Shareholder's
rights with respect to the Committed Shares (including any and all other
shares or securities issued or issuable in respect thereof on or after the
date hereof) as his true and lawful attorney and proxy, for and in his
name, place and stead, to exercise all voting and other rights (including,
the power to execute and deliver written consents with respect to the
Committed Shares) of each of the Committed Shares as his proxy, at any
meeting (whether annual or special and whether or not an adjourned or
postponed meeting) of shareholders of the Company, however called, or in
connection with any written consent of the holders of Company Shares, or in
any other circumstances in which a vote, consent or approval of any of the
shareholders of the Company is sought (including the right to sign his name
(as shareholder) to any consent, certificate or other document relating to
the Company that the law of the State of Utah may permit or require) (i) in
favor of the Merger, the Merger Agreement, this Agreement and the other
transactions contemplated hereby and by the Merger Agreement, (ii) against
any Negative Voting Matter or any other action or agreement that would
result in a breach or inaccuracy of, or failure to fulfill, any covenant,
representation, warranty, obligation or agreement of the Company under the
Merger Agreement, and (iii) in favor of any other matter necessary for the
consummation of the Offer and the other transactions contemplated by the
Merger Agreement and this Agreement. Shareholder further agrees to cause
the Committed Shares to be voted or consented in accordance with the
foregoing.
(b) The proxy hereby granted by Shareholder to Parent, or
any nominee of Parent, is granted as of the date hereof in order to secure
the obligations of Shareholder provided for herein and is irrevocable and
coupled with an interest in such obligations and is granted in
consideration of Parent's entering into this Agreement and the Merger
Agreement. This proxy will terminate upon the termination of this Agreement
in accordance with its terms.
(c) Any obligation of the undersigned hereunder shall be
binding upon the successors and assigns of the undersigned. Shareholder
authorizes Parent, or any nominee of Parent, to file this proxy and any
substitution or revocation of substitution with the Secretary of the
Company and with any Inspector of Elections at any meeting of the
shareholders of the Company.
(d) Upon the execution hereof, all prior proxies in
conflict with this proxy given by the undersigned with respect to the
Committed Shares (including any and all other shares or securities issued
or issuable in respect thereof on or after the date hereof) are hereby
revoked.
Section 1.5 No Inconsistent Agreements. Shareholder
hereby covenants and agrees: (a) (i) that except as contemplated by this
Agreement and the Merger Agreement, Shareholder has not entered any voting
agreement, voting trust or similar understanding or obligation, whether
written or oral, with respect to any of the Committed Shares, or (ii) that
any voting agreement, voting trust, proxy or power of attorney he has
previously entered into or granted with respect to the Committed Shares has
expired or been revoked or terminated, and (b) that Shareholder shall not,
at any time while this Agreement remains in effect, (i) enter into any
voting agreement or voting trust with respect to any of the Committed
Shares, or (ii) grant a proxy or power of attorney with respect to any of
the Committed Shares. This Agreement supersedes any and all durable powers
of attorney or similar arrangements that Shareholder may have entered into
with respect to the Committed Shares.
Section 1.6 No Transfers. Shareholder agrees not to,
directly or indirectly, (a) donate, pledge, encumber, issue, sell,
transfer, assign, or otherwise dispose of, in any manner (including by
gift, operation of law, merger, consolidation or reorganization, whether
voluntary or involuntary) (collectively, "Transfer") to any person, or
(except for this Agreement) enter into any contract, agreement, commitment,
option or other arrangement (including any profit-sharing arrangement) (a
"Contract") with respect to the Transfer of, any of the Committed Shares,
(b) except for this Agreement, grant any proxy or enter into any Contract
(including any voting arrangement relating to any of the Committed Shares),
(c) change, modify or alter in any manner, or agree to change, modify or
alter in any manner, the Beneficial Ownership of any of the Committed
Shares, or (d) seek, solicit, commit or agree to take any of the actions
described in this Section 1.6. Shareholder will not request that the
Company or its transfer agent register the Transfer (book entry or
otherwise) of any certificated or uncertificated interest representing any
of the Committed Shares, and Shareholder hereby consents to the entry or
issuance of stop transfer instructions by the Company of any Transfer of
any of the Committed Shares. Shareholder agrees to immediately notify
Parent and to provide all details reasonably requested by Parent if such
Shareholder is approached or solicited, directly or indirectly, by any
person with respect to any of the foregoing.
Section 1.7 No Solicitation. Shareholder hereby agrees
that he shall, and shall cause his Representatives to, immediately cease
and terminate any existing solicitation, initiation, encouragement,
activity, discussion or negotiation with any Third Party conducted
heretofore by Shareholder or his Representatives with respect to any
Acquisition Proposal and Shareholder shall not, and Shareholder shall cause
his Representatives not to, directly or indirectly, (a) solicit, initiate
or knowingly encourage (including by way of furnishing information), or
knowingly take any other action to facilitate, any inquiries or the making
or submission of any proposal that constitutes, or may reasonably be
expected to lead to, any Acquisition Proposal; (b) enter into any
agreement, arrangement or understanding with respect to any Acquisition
Proposal or enter into any agreement, arrangement or understanding
requiring Shareholder to abandon, terminate or fail to consummate the
exchange of the Committed Shares pursuant to the Offer or the Merger or any
other transaction contemplated by this Agreement; (c) participate or engage
in any discussions or negotiations with any Third Party relating to an
Acquisition Proposal, or knowingly facilitate any effort or attempt to make
or implement an Acquisition Proposal or accept an Acquisition Proposal; or
(d) enter into any letter of intent or similar document or any contract,
agreement or commitment contemplating or otherwise relating to any
Acquisition Proposal. Any and all action taken by Shareholder, in his
capacity as an officer or director of the Company, in accordance with
Section 6.4 or Section 6.5 of the Merger Agreement, to the extent
inconsistent with this Section 1.7, shall be deemed not to violate this
Section 1.7.
Section 1.8 Best Efforts. Shareholder shall use his best
efforts to take, or cause to be taken, all actions, execute and deliver all
instruments, and do, cause to be done, and assist and cooperate with the
Company, Parent and Merger Sub in doing, all things necessary, proper or
advisable to consummate and effect completely, in the most expeditious
manner practicable, the Offer, the Merger, the Merger Agreement, this
Agreement and the other transactions contemplated hereby and thereby
(except in his capacity as a director or officer to the extent as otherwise
permitted by Section 6.4 and Section 6.5 of the Merger Agreement).
Section 1.9 Acquisition of Additional Shares. Shareholder
agrees to promptly notify Parent in writing of the nature and amount of any
acquisition by Shareholder of any capital share or securities of the
Company acquired directly or indirectly by Shareholder on or after the date
hereof.
Section 1.10 Documents Delivered. Shareholder
acknowledges receipt of a copy of the Merger Agreement and all exhibits,
annexes and schedules thereto.
Section 1.11 Disclosure. Shareholder hereby permits the
Company, Merger Sub and Parent to publish and disclose in the Offer
Documents and, if approval of the Company's shareholders is required under
applicable law, the Proxy Statement (including all documents and schedules
filed with the Securities and Exchange Commission) his identity and
ownership of the Committed Shares and the nature of his commitments,
arrangements and understandings under this Agreement.
Section 1.12 Margin Accounts. Notwithstanding any of the
covenants set forth in this Agreement, Shareholder shall not be required or
otherwise obligated to take any action or make any election which conflicts
with his existing contractual obligations arising under either his margin
agreement with Prudential Securities Incorporated or his margin agreement
with Xxxxxx Xxxxxx & Company, Inc. (the "Margin Agreements").
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
Shareholder represents and warrants to Parent as follows:
Section 2.1 Authorization; Validity of Agreement.
Shareholder has full power and authority to execute and deliver this
Agreement, to perform Shareholder's obligations hereunder and to consummate
the transactions contemplated hereby. The execution, delivery and
performance by Shareholder of this Agreement and the consummation by
Shareholder of the transactions contemplated hereby have been duly and
validly authorized by Shareholder and no other actions or proceedings on
the part of Shareholder are necessary to authorize the execution and
delivery by him of this Agreement and the consummation by him of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Shareholder and assuming this Agreement constitutes a valid
and binding obligation of Parent, constitutes a valid and binding
obligation of Shareholder, enforceable against Shareholder in accordance
with its terms, except to the extent that such enforcement may be subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws, now or hereafter in effect, affecting creditors' rights
generally, and by general equitable principals. If this Agreement is being
executed in a representative or fiduciary capacity, the person signing this
Agreement has full power and authority to enter into and perform such
Agreement.
Section 2.2 Ownership. Shareholder has, and at all times
prior to the termination of this Agreement or the acceptance by Parent of
the validly tendered Committed Shares will have, and will convey to Parent
in the Offer, good and valid title, free and clear of any Liens, mortgages,
hypothecations, adverse interests, encroachments, title defects, or other
restrictions or limitations of any nature whatsoever to (a) the number of
Company Shares, of which Shareholder is the sole and lawful record owner,
set forth under Column A on Schedule A attached hereto, and (b) the number
of Company Shares, of which Shareholder is the sole and lawful Beneficial
Owner, set forth under Column B on Schedule A attached hereto. The Company
Shares set forth under Column A and Column B on Schedule A attached hereto
constitute all of the capital stock and other securities of the Company
owned of record or Beneficially Owned by such Shareholder as of the date
hereof. Except as set forth on Schedule A attached hereto, Shareholder does
not own any options to purchase, warrants or rights to subscribe for or
otherwise acquire any securities of the Company. Shareholder has, and at
all times prior to termination of this Agreement will have, sole voting
power and sole power to issue instructions with respect to the matters set
forth in Article I hereof, sole power of disposition, sole power of
conversion and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Committed Shares with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement. The terms
"Beneficially Own," "Beneficially Owned," "Beneficial Ownership" and
similar terms with respect to any securities shall mean having "beneficial
ownership" of such securities as determined pursuant to Rule 13d-3 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"). None
of the Committed Shares is currently subject to any voting trust, proxy or
other contract, arrangement or restriction with respect to the voting or
disposition of the Committed Shares, except as expressly contemplated by
this Agreement.
Section 2.3 No Conflict; Consents. Neither the execution,
delivery or performance by Shareholder of this Agreement nor the
consummation of the transactions contemplated hereby nor compliance by
Shareholder with any of the provisions hereof will (a) require the Consent
of any Governmental Authority or any other person, (b) violate any Law
applicable to the Shareholder or any of his properties or assets, or (c)
conflict with, or result in any violation of, or default (with or without
notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to loss of a
material benefit under, or result in the creation of any Lien upon any of
the properties or assets of Shareholder under, (i) any contract,
instrument, agreement or decree or other judicial determination to which
Shareholder is a party or by which he or any of his assets or properties
are bound, or (ii) any applicable Law.
Section 2.4 Finder's Fees. No investment banker, broker
or finder is entitled to a commission or fee from Parent, Merger Sub or the
Company in respect of this Agreement based upon any contract, agreement or
understanding made by or on behalf of Shareholder.
Section 2.5 No Group. Shareholder is acting individually
and not as part of a "group," as defined in the Exchange Act.
Section 2.6 Margin Accounts. All representations and
warranties of Shareholder set forth herein are qualified in their entirety
by the terms and conditions of the Margin Agreements.
ARTICLE III
TAX-FREE REORGANIZATION TREATMENT
Section 3.1 Representation of Shareholder. Shareholder
has not taken or agreed to take any action, and does not know of any fact,
circumstance, plan or intention that will, or would be reasonably likely
to, prevent the Transaction from qualifying as a reorganization within the
meaning of Section 368(a) of the Code.
Section 3.2 Representation of Parent. Neither Parent nor
any of its subsidiaries, including Merger Sub, has taken or agreed to take
any action, or knows of any fact, circumstance, plan or intention that
will, or would be reasonably likely to, prevent the Transaction from
qualifying as a reorganization within the meaning of Section 368(a) of the
Code.
Section 3.3 Reasonable Best Efforts. Each party hereto
shall use its reasonable best efforts to cause the Transaction to qualify
as a reorganization within the meaning of Section 368(a) of the Code.
Section 3.4 Continuing Interest. Prior to the Effective
Time, Shareholder will not sell, exchange or otherwise transfer ownership
(including by derivative transactions such as an equity swap which would
have the economic effect of a transfer of ownership) to Parent, the Company
or any person related to either of them within the meaning of Section
1.368-1(e)(3) of the Treasury Regulations, directly or indirectly
(including through partnerships or through third parties in connection with
a plan to so transfer ownership), any of the Parent Common Stock received
by him in the Offer. Following the Effective Time, there is no plan or
intention on the part of Shareholder to sell, exchange or otherwise
transfer ownership (including by derivative transactions such as an equity
swap which would have the economic effect of a transfer of ownership) to
Parent, Merger Sub or any person related to either of them within the
meaning of Section 1.368-1(e)(3) of the Treasury Regulations, directly or
indirectly (including through partnerships or through third parties in
connection with a plan to so transfer ownership), any of the Parent Common
Stock received by him in the Offer. Shareholder understands that, for
purposes of this representation, (i) a corporation that is a partner in a
partnership will be treated as owning or acquiring any stock owned or
acquired, as the case may be, by the partnership and as having furnished
its share of any consideration furnished by the partnership to acquire the
stock, in each case, in accordance with its interest in the partnership and
(ii) any reference to Parent or the Company includes a reference to any
successor or predecessor of such corporation, except that the Company is
not treated as a predecessor of Parent and Parent is not treated as a
successor of the Company.
Section 3.5 Expenses. Except as otherwise provided in the
Merger Agreement, Shareholder will pay his respective expenses, if any,
incurred in connection with or as part of the Transaction, and in no event
will any such expenses be paid or reimbursed by Parent or Merger Sub.
Shareholder will not permit the Company to assume, directly or indirectly,
any expenses or liabilities, whether fixed or contingent, of Shareholder in
connection with the Transaction except as provided in the Merger Agreement.
Section 3.6 Compensation. None of the compensation
received (or to be received) by Shareholder, if any, represents separate
consideration for, or is allocable to, any of the Company Shares to be
surrendered by Shareholder in the Transaction. None of the Parent Common
Stock or cash that has been or will be received by Shareholder in the
Transaction represents separately bargained-for consideration which is
allocable to any employment agreement or similar arrangement.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Termination. This Agreement and the parties'
obligations hereunder (including the proxies granted hereunder) shall
terminate on the earliest of (a) the payment for all of the Committed
Shares pursuant to the Offer by Parent, or (b) termination of the Merger
Agreement pursuant to Section 8.1 thereof, provided, however, that in any
event this Agreement (other than Article III hereof) shall terminate no
later than the first anniversary of the date hereof, provided, further,
that the provisions of Article III of this Agreement shall not terminate as
described above but shall survive any such termination. No such termination
of this Agreement shall relieve any party hereto from any liability for any
breach or violation of, or misrepresentation in, this Agreement prior to
termination.
Section 4.2 Further Assurances. Shareholder will, from
time to time and without further consideration, execute and deliver, or
cause to be executed and delivered, such additional or further Consents,
documents and other instruments as Parent may reasonably request for the
purpose of effectively carrying out the transactions contemplated by this
Agreement.
Section 4.3 Expenses. Each party hereto shall pay their
own expenses incurred in connection with this Agreement.
Section 4.4 Capitalized Terms and Other Terms.
Capitalized terms used in this Agreement that are not defined herein shall
have such meanings as set forth in the Merger Agreement.
Section 4.5 Waiver of Appraisal Rights. Shareholder
hereby waives any rights of appraisal with respect to, or rights to dissent
from, the Merger that he may have.
Section 4.6 Shareholder Capacity. Shareholder is
executing this Agreement solely in his capacity as an owner of Company
Shares, and nothing herein shall limit or affect any actions taken by
Shareholder solely in his capacity as an officer or director of the
Company.
Section 4.7 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given
when delivered in person, by facsimile, receipt confirmed, or when received
if sent by overnight courier or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be
specified by like notice):
(i) if to Shareholder, to the address set forth on
the signature page hereto;
(ii) if to Parent or Merger Sub, to:
Union Pacific Corporation
0000 Xxxxx Xxxxxx, Xxxx 0000
Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. xxx Xxxxxxx
Telecopy: 401-271-6633
with a copy to (but which shall not constitute
notice to Parent):
Overnite Transportation Company
0000 Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxx
Telecopy: 000-000-0000
with a copy to (but which shall not constitute
notice to Parent or Merger Sub):
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Xxxxxxx X. Xxxxxxxx, Esq.
Telecopy: 000-000-0000
Section 4.8 Binding Effect; Permitted Assignment. This
Agreement and all of the provisions hereof shall be binding upon and inure
to the benefit of the parties hereto and their respective successors,
heirs, beneficiaries and permitted assigns. Neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any
of the parties hereto prior to the termination of this Agreement without
the prior written consent of the other parties hereto, which consent may be
withheld in the sole and absolute discretion of the party requested to
consent.
Section 4.9 Governing Law. This Agreement shall be deemed
to be made in, and in all respects shall be interpreted, construed and
governed by and in accordance with the internal laws of, the State of Utah,
without regard to the conflict of laws rules thereof.
Section 4.10 Submission to Jurisdiction; Waivers. Each of
the parties hereto irrevocably and unconditionally agrees that any legal
action or proceeding with respect to this Agreement or for recognition and
enforcement of any judgment in respect hereof brought by the other party
hereto or such party's successors or assigns may be brought and determined
in the federal and state courts located in Salt Lake City, Utah and each of
the parties hereto hereby irrevocably submits with regard to any such
action or proceeding for such party and in respect to such party's
property, generally and unconditionally, to the nonexclusive jurisdiction
of the aforesaid courts. Each of the parties hereto hereby irrevocably
waives, and agrees not to assert, by way of motion, as a defense,
counterclaim or otherwise, in any action or proceeding with respect to this
Agreement, (a) any claim that such party is not personally subject to the
jurisdiction of the above-named courts for any reason other than the
failure to lawfully serve process, (b) that such party or such party's
property is exempt or immune from jurisdiction of any such court or from
any legal process commenced in such courts (whether through service of
notice, attachment prior to judgment, attachment in aid of execution of
judgment, execution of judgment or otherwise), and (c) to the fullest
extent permitted by applicable law, that (i) the suit, action or proceeding
in any such court is brought in an inconvenient forum, (ii) the venue of
such suit, action or proceeding is improper and (iii) this Agreement, or
the subject matter hereof, may not be enforced in or by such courts.
Section 4.11 Waiver of Jury Trial. Each of parties hereto
hereby irrevocably waives all right to a trial by jury in any action,
proceeding, or counterclaim arising out of or related to this Agreement or
the transactions contemplated hereby.
Section 4.12 Counterparts. This Agreement may be executed
in one or more counterparts, each of which together be deemed an original,
but both of which together shall constitute one and the same instrument.
Section 4.13 Interpretation. The article and section
headings contained in this Agreement are solely for the purpose of
reference, are not part of the agreement of the parties as set forth in
this Agreement and shall not in any way affect the meaning or
interpretation of this Agreement. As used in this Agreement, (a) the term
"person" shall mean and include an individual, a partnership, a joint
venture, a corporation, a limited liability company, a trust, an
association, an unincorporated organization, a Governmental Authority and
any other entity or group (as defined in the Exchange Act), (b) unless
otherwise specified herein, the term "affiliate," with respect to any
person, shall mean and include any person controlling, controlled by or
under common control with such person, (c) the term "subsidiary" of any
specified person shall mean any corporation, any of the outstanding voting
power of which, or any partnership, joint venture, limited liability
company or other entity any of the total equity interest of which, is
directly or indirectly owned by such specified person, other than in any
such case any entity which may be deemed to be a "subsidiary" of such
specified person solely by reason of the ownership of equity securities of
such entity which are registered under the Exchange Act and held by such
specified person for investment purposes only, and (d) the term "including"
shall mean "including, without limitation."
Section 4.14 Entire Agreement. This Agreement, the Merger
Agreement, and the annexes, schedule, exhibits, documents or instruments
referred to herein and therein, and any other written agreement entered
into contemporaneously herewith embody the entire agreement and
understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, representations,
warranties, covenants, or undertakings, other than those expressly set
forth or referred to therein. This Agreement and such other agreements
supersede all prior agreements and the understandings between the parties
with respect to such subject matter.
Section 4.15 Severability. In case any provision in this
Agreement shall be held invalid, illegal or unenforceable in a
jurisdiction, such provision shall be modified or deleted, as to the
jurisdiction involved, only to the extent necessary to render the same
valid, legal and enforceable, and the validity, legality and enforceability
of the remaining provisions hereof shall not in any way be affected or
impaired thereby nor shall the validity, legality or enforceability of such
provision be affected thereby in any other jurisdiction.
Section 4.16 Specific Performance. Shareholder agrees
that (a) Parent and its affiliates would be irreparably harmed by a breach
or threatened breach of this Agreement by Shareholder and (b) monetary
remedies would be inadequate to protect Parent and its affiliates against
any actual or threatened breach of this Agreement by Shareholder. Without
prejudice to any other rights and remedies otherwise available to Parent,
Shareholder agrees to the granting of equitable relief, including
injunctive relief and specific performance, in Parent's favor without proof
of actual damages as a remedy for any breach or threatened breach.
Shareholder further agrees to waive any requirement for the securing or
posting of any bond in connection with such remedy. No failure or delay by
Parent in exercising any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder.
Section 4.17 Third-Party Beneficiaries. Nothing contained
in this Agreement or in any instrument or document executed by any party in
connection with the transactions contemplated hereby shall create any
rights in, or be deemed to have been executed for the benefit of, any
person or entity that is not a party hereto or thereto or a successor or
permitted assign of such a party; provided, however, that the parties
hereto specifically acknowledge that the provisions of Section 1.11 hereof
are intended to be for the benefit of the Company and Merger Sub.
[signatures appear on following page]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
UNION PACIFIC CORPORATION
By: /s/ Xxxx X. xxx Xxxxxxx
-----------------------------------------
Name: Xxxx X. xxx Xxxxxxx
Title: Senior Vice President, General
Counsel and Secretary
/s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Address: c/o Motor Cargo Industries, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxx Xxxx Xxxx Xxxx, Xxxx 00000
Telecopy: 000-000-0000
SCHEDULE A
Xxxxxx X. Xxxxxxxxx
Column A Column B
-------- --------
Number of Company Shares Number of Company Shares
Owned of Record Beneficially Owned
(of which 174,000
are held of record
by Shareholder)
174,000 188,153
