A PUBLIC OFFICIAL PURSUANT TO ANY APPLICABLE
ABANDONED PROPERTY, ESCHEAT OR SIMILAR LAW.
(F)
INVESTMENT OF EXCHANGE FUND.
THE PAYING AGENT SHALL INVEST ALL
CASH INCLUDED IN THE EXCHANGE FUND AS REASONABLY DIRECTED BY THE COMPANY;
PROVIDED, HOWEVER, THAT ANY INVESTMENT OF SUCH CASH SHALL BE LIMITED TO DIRECT
SHORT-TERM OBLIGATIONS OF, OR SHORT-TERM OBLIGATIONS FULLY GUARANTEED AS TO
PRINCIPAL AND INTEREST BY, THE U.S. GOVERNMENT, OR COMMERCIAL PAPER OBLIGATIONS
RECEIVING THE HIGHEST RATING FROM EITHER MOODY'S INVESTOR SERVICES, INC. OR
STANDARD & POOR'S CORPORATION, A DIVISION OF THE MCGRAW HILL COMPANIES, OR IN
CERTIFICATES OF DEPOSIT, BANK REPURCHASE AGREEMENTS OR BANKER'S ACCEPTANCES OF
COMMERCIAL BANKS WITH CAPITAL EXCEEDING $1 BILLION (BASED ON THE MOST RECENT
FINANCIAL STATEMENTS OF SUCH BANK THAT ARE THEN PUBLICLY AVAILABLE), OR A
COMBINATION THEREOF.
ANY INTEREST AND OTHER INCOME RESULTING FROM SUCH
INVESTMENTS SHALL BE PAID TO THE SURVIVING CORPORATION PURSUANT TO SECTION
2.2(D).
(G)
LOST CERTIFICATES.
IN THE CASE OF ANY CERTIFICATE THAT HAS 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 AND, IF
REQUIRED BY THE SURVIVING CORPORATION, THE POSTING BY SUCH PERSON OF A BOND IN
CUSTOMARY AMOUNT AS INDEMNITY AGAINST ANY CLAIM THAT MAY BE MADE AGAINST IT WITH
RESPECT TO SUCH CERTIFICATE, THE PAYING AGENT WILL ISSUE IN EXCHANGE FOR SUCH
LOST, STOLEN OR DESTROYED CERTIFICATE A CHECK IN THE AMOUNT OF THE NUMBER OF
SHARES REPRESENTED BY SUCH LOST, STOLEN OR DESTROYED CERTIFICATE MULTIPLIED BY
THE MERGER CONSIDERATION.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as disclosed in the Company SEC Documents (as hereinafter defined) filed
prior to the date hereof, other than risk factor and similar cautionary
disclosure contained in the Company SEC Documents under the headings "Risk
Factors" or "Forward-Looking Statements" or under any other similar heading, or
as disclosed in the disclosure schedule delivered by the Company to the ESOP
immediately prior to the execution of this Agreement (the "Company Disclosure
Schedule"), the Company represents and warrants to the ESOP and Merger Sub as
follows:
SECTION 3.1
QUALIFICATION, ORGANIZATION, SUBSIDIARIES, ETC.
EACH
OF THE COMPANY AND ITS SUBSIDIARIES AND, TO THE KNOWLEDGE OF THE COMPANY, EACH
COMPANY JOINT VENTURE IS A LEGAL ENTITY DULY ORGANIZED, VALIDLY EXISTING AND IN
GOOD STANDING UNDER THE LAWS OF ITS RESPECTIVE JURISDICTION OF ORGANIZATION AND
HAS ALL REQUISITE CORPORATE OR SIMILAR POWER AND AUTHORITY TO OWN, LEASE, HOLD
AND OPERATE ITS PROPERTIES AND ASSETS AND TO CARRY ON ITS BUSINESS AS PRESENTLY
CONDUCTED AND IS QUALIFIED TO DO BUSINESS AND IS IN GOOD STANDING AS A FOREIGN
CORPORATION IN EACH JURISDICTION WHERE THE OWNERSHIP, LEASING, HOLDING OR
OPERATION OF ITS ASSETS OR PROPERTIES OR CONDUCT OF ITS BUSINESS REQUIRES SUCH
QUALIFICATION, EXCEPT WHERE THE FAILURE TO BE SO ORGANIZED, VALIDLY EXISTING,
QUALIFIED OR IN GOOD STANDING, OR TO HAVE SUCH POWER OR AUTHORITY, WOULD NOT,
INDIVIDUALLY OR IN THE AGGREGATE, REASONABLY BE EXPECTED TO HAVE A COMPANY
MATERIAL ADVERSE