NANO » Topics » REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

This excerpt taken from the NANO 8-K filed Mar 16, 2006.

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

Each of Parent and Merger Sub represents and warrants to the Company on the date hereof and as of the Effective Time, as though made at the Effective Time, as follows:

3.1 Organization, Standing and Power. Parent is a corporation duly organized, validly existing and in good standing under the laws of the State of California. Merger Sub is a corporation duly organized, validly existing and in good standing under the laws of the Commonwealth of Massachusetts. Each of Parent and Merger Sub has the corporate power to own, lease and operate its properties and to carry on its business as now being conducted and as contemplated to be conducted and is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the failure to be so qualified or licensed would have a Parent Material Adverse Effect.

3.2 Authority. Each of Parent and Merger Sub has all requisite corporate power and authority to enter into this Agreement and any Related Agreements to which it is a party and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Agreements to which it is a party and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of Parent and Merger Sub and no further action is required on the part of Parent and Merger Sub to authorize this Agreement and any Related Agreement to which it is a party and the transactions contemplated hereby and thereby. This Agreement and any Related Agreements to which Parent and Merger Sub are parties have been duly executed and delivered by Parent and Merger Sub, and, assuming execution and delivery by the Company and other parties thereto, constitute the valid and binding obligations of Parent and Merger Sub, enforceable against each of Parent and Merger Sub in accordance with their respective terms, except as such enforceability may be subject to the laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies.

3.3 No Conflict. The execution and delivery by each of Parent and Merger Sub of this Agreement and any Related Agreement to which it is a party, and the consummation of the transactions contemplated hereby and thereby, do not, and performance of this Agreement by Parent and Merger Sub and any Related Agreement to which it is a party will not result in a Conflict with (A) any provision of Parent’s certificate of incorporation or bylaws, or Merger Sub’s articles of organization or bylaws (B) any Contract which Parent or Merger Sub or any of their subsidiaries or any of their respective properties or assets (whether tangible or intangible, including intellectual property) is subject , or (C) any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Parent or

 

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Merger Sub or any of their subsidiaries or any of their respective properties (whether tangible or intangible) or assets, in the case of subsections (B) and (C) above, which conflict, violation, breach or default would have a Parent Material Adverse Effect.

3.4 Consents. No consent, notice, waiver, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity, or any third party is required by or with respect to Parent or Merger Sub in connection with the execution and delivery of this Agreement and any Related Agreements to which Parent or Merger Sub is a party or the consummation of the transactions contemplated hereby and thereby, except for (i) such consents, notices, waivers, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable securities laws, (ii) such notices, consents, waivers, approvals, orders, authorizations, registrations, declarations and filings which, if not obtained or made, would not, individually or in the aggregate have a Parent Material Adverse Effect, and (iii) the filing of the Articles of Merger with the Secretary of the Commonwealth of Massachusetts.

3.5 Capital Resources. Parent has sufficient capital resources to pay the Aggregate Merger Consideration and to consummate all of the transactions contemplated by this Agreement and the Related Agreements.

3.6 Legal Proceedings. There is no action, suit, claim or proceeding of any nature pending, or to the knowledge of Parent, threatened, against Parent, Merger Sub or any of their subsidiaries, whether in law or equity, or before or by any Governmental Entity, which could materially adversely effect such party’s ability to perform its obligations under this Agreement and the Related Agreements to which it is a party or the consummation of the transactions contemplated hereby and thereby.

3.7 Ownership of Merger Sub; No Prior Activities. Merger Sub is a direct, wholly owned subsidiary of Parent, was formed solely for the purpose of engaging in the transactions contemplated by this Agreement and has engaged in no business activity other than as contemplated by this Agreement. Except for obligations or liabilities incurred in connection with its incorporation and the transactions contemplated by this Agreement, Merger Sub has not and will not have incurred, directly or indirectly, through any subsidiary or affiliate, any obligations or liabilities or engaged in any business activities of any type or kind whatsoever or entered into any agreements or arrangements with any Person.

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