OR DECREES OF, OR BEFORE, ANY GOVERNMENTAL ENTITY, IN EACH
CASE WHICH COULD, INDIVIDUALLY OR IN THE AGGREGATE, REASONABLY BE EXPECTED TO
HAVE AN ESOP MATERIAL ADVERSE EFFECT.
SECTION 4.4
PROXY STATEMENT; OTHER INFORMATION.
NONE OF THE
INFORMATION PROVIDED BY THE ESOP OR MERGER SUB TO BE INCLUDED IN THE PROXY
STATEMENT, THE SCHEDULE TO OR THE SCHEDULE 13E-3 WILL, AT THE TIME THE PROXY
STATEMENT, THE SCHEDULE TO AND THE SCHEDULE 13E-3 ARE CONCURRENTLY FILED WITH
THE SEC, OR, IN THE CASE OF THE PROXY STATEMENT, AT THE TIME THE PROXY STATEMENT
IS FIRST MAILED TO THE SHAREHOLDERS OF THE COMPANY OR AT THE TIME OF THE COMPANY
MEETING, CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE ANY
MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY IN ORDER TO MAKE THE
STATEMENTS THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE,
NOT MISLEADING.
NO REPRESENTATION IS MADE BY THE ESOP OR MERGER SUB WITH
RESPECT TO STATEMENTS MADE IN THE PROXY STATEMENT, THE SCHEDULE TO OR THE
SCHEDULE 13E-3 BASED ON INFORMATION SUPPLIED BY THE COMPANY, ANY OF THE
COMPANY'S SUBSIDIARIES OR ANY OF THEIR RESPECTIVE AFFILIATES.
SECTION 4.5
CAPITALIZATION OF MERGER SUB.
AS OF THE DATE OF THIS
AGREEMENT, THE AUTHORIZED CAPITAL STOCK OF MERGER SUB CONSISTS OF 1000 SHARES OF
COMMON STOCK, PAR VALUE $.01 PER SHARE, 100 OF WHICH ARE VALIDLY ISSUED AND
OUTSTANDING.
ALL OF THE ISSUED AND OUTSTANDING CAPITAL STOCK OF MERGER SUB IS,
AND AT THE EFFECTIVE TIME WILL BE, OWNED BY THE ESOP.
MERGER SUB HAS
OUTSTANDING NO OPTION, WARRANT, RIGHT, OR ANY OTHER AGREEMENT PURSUANT TO WHICH
ANY PERSON OTHER THAN THE ESOP MAY ACQUIRE ANY EQUITY SECURITY OF MERGER SUB.
MERGER SUB HAS NOT CONDUCTED ANY BUSINESS PRIOR TO THE DATE HEREOF, OTHER THAN
BUSINESS AND OPERATIONS RELATED TO THE MERGER AND THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT, AND HAS NO ASSETS, LIABILITIES OR OBLIGATIONS OF ANY NATURE
OTHER THAN THOSE INCIDENT TO ITS FORMATION AND PURSUANT TO THIS AGREEMENT AND
THE MERGER AND THE OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
SECTION 4.6
LACK OF OWNERSHIP OF COMPANY COMMON STOCK.
EXCEPT AS
CONTEMPLATED BY THE ESOP PURCHASE AGREEMENT, NEITHER THE ESOP NOR ANY OF ITS
SUBSIDIARIES BENEFICIALLY OWNS OR, SINCE DECEMBER 31, 2006 HAS BENEFICIALLY
OWNED, DIRECTLY OR INDIRECTLY, ANY SHARES OF COMPANY COMMON STOCK OR OTHER
SECURITIES CONVERTIBLE INTO, EXCHANGEABLE INTO OR EXERCISABLE FOR SHARES OF
COMPANY COMMON STOCK.
SECTION 4.7
FINDERS OR BROKERS.
EXCEPT FOR DUFF & PHELPS, LLC, THE
ESOP HAS NOT EMPLOYED ANY FINANCIAL ADVISOR, INVESTMENT BANKER, BROKER OR FINDER
IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT WHO IS
ENTITLED TO ANY FEE OR ANY COMMISSION IN CONNECTION WITH OR UPON CONSUMMATION OF
THE MERGER.
SECTION 4.8
NO ADDITIONAL REPRESENTATIONS.
(A)
THE ESOP ACKNOWLEDGES THAT IT AND ITS REPRESENTATIVES (AS
HEREINAFTER DEFINED) HAVE RECEIVED ACCESS TO SUCH BOOKS AND RECORDS, FACILITIES,
EQUIPMENT, CONTRACTS AND OTHER ASSETS OF THE COMPANY WHICH IT AND ITS
REPRESENTATIVES HAVE DESIRED OR