Common use of Intangible Property Rights Clause in Contracts

Intangible Property Rights. (a) Except as set forth in Schedule 3.10(a), (i) the Sold Companies, and the Subsidiaries own, are licensed or have the right to use the patent rights described in Schedule 3.10(a) free and clear of all Liens; (ii) there are no pending actions or proceedings challenging the validity or ownership of such patent rights or the Sold Companies’ or Subsidiaries’ right to use such patent rights; (iii) the patent rights described in Schedule 3.10(a) constitute the material patent rights owned, licensed or used by the Sold Companies and the Subsidiaries in connection with the operation of the business of the Sold Companies and the Subsidiaries; (iv) to the knowledge of the Seller, the issued patents under such patent rights are valid and subsisting and none of said patents is now being infringed by others; (v) there are no written licenses or sublicense agreements now in effect regarding the Sold Companies’ or Subsidiaries’ use of such patent rights; and (vi) none of the Sold Companies or Subsidiaries is infringing any U.S. or foreign patent owned by third parties in the current operation of its business. (b) Except as set forth in Schedule 3.10(b), (i) the Sold Companies and Subsidiaries own, are licensed or have the right to use the trademarks and any trade dress associated therewith as set forth in Schedule 3.10(b) free and clear of all Liens; (ii) to the knowledge of the Seller, all registrations for such trademarks and trade dress are valid and subsisting; and (iii) no action or proceeding by third parties with regard to the use by any of the Sold Companies or the Subsidiaries of any of such trademarks and trade dress is pending or has been made or, to the knowledge of the Seller, threatened and, to the knowledge of the Seller, none of the trademarks listed on Schedule 3.10(b) is being infringed by others. (c) Except as set forth in Schedule 3.10(c), there are no pending or, to the knowledge of the Seller, threatened Actions by or against any of the Sold Companies or Subsidiaries with respect to any copyright rights or their use thereof by any person.

Intangible Property Rights. (a) Schedule 3.9(a)(i) lists all material unexpired domestic and ------------------ foreign patents and patent applications, as well as all material reissues, divisionals, continuations and continuation-in-part applications and any patents issuing thereon and all renewals and extensions thereof, and all material license agreements and other agreements which relate to inventions and discoveries and any patent applications and patents thereon, as well as improvements therein used principally in connection with the Business (the "Patent Rights"). Except as set forth in Schedule 3.10(a)3.9(a)(ii) and except as ------------- ------------------- would not have a Material Adverse Effect, (i) the Sold Companies, BFC and the Subsidiaries its affiliates own, are licensed or have the right to use the patent rights Patent Rights and the Technology (as defined below) (x) in the United States and Canada and (y) to the knowledge of BFC, outside the United States and Canada, in each case (but only to the knowledge of BFC in cases described in Schedule 3.10(aclause (y)) free and clear of all Liensliens, encumbrances, equities and other restrictions; (ii) there are no pending actions or proceedings claims challenging the validity or ownership of such patent rights the Patent Rights or Technology owned by BFC and its affiliates or the Sold Companies’ or Subsidiaries’ right of BFC and its affiliates to use such patent rightsor transfer the Patent Rights or Technology in the United States or Canada or, to the knowledge of BFC, outside the United States and Canada; (iii) the patent rights described in Schedule 3.10(a) constitute the material patent rights owned, licensed or used by the Sold Companies issued U.S. and the Subsidiaries in connection with the operation of the business of the Sold Companies and the Subsidiaries; (iv) to the knowledge of the Seller, the issued Canadian patents under such patent rights the Patent Rights owned by BFC and its affiliates are valid and subsisting and, to BFC's knowledge, any patents issued outside the United States and Canada under the Patent Rights owned by BFC and its affiliates are valid and subsisting, and to BFC's knowledge, none of said the claims of the foregoing patents is now being infringed by others; (viv) there are no written licenses or sublicense agreements now in effect regarding the Sold Companies’ use by BFC and its affiliates of the Patent Rights or Subsidiaries’ use Technology in the United States and Canada, or to the knowledge of such patent rightsBFC, outside of the United States and Canada; and (viv) none of the Sold Companies or Subsidiaries is to BFC's knowledge, (x) BFC and its affiliates are not infringing any U.S. or foreign patent owned by third parties in the current operation of the Business and (y) no claim is now pending or is threatened to such effect. No ingredient, including, without limitation, any ingredient used in the recipes relating to the Business, is owned or procurable solely through BFC or any of its businesscontrolled affiliates. As used in this Agreement, the term "Technology" shall mean the patterns, plans, ---------- designs, research data, trade secrets and other proprietary know-how, formulae and manufacturing procedures and processes, new material and product specifications, recipes (both for manufacturing as well as for home or end-user use of products), flavors, ingredients, operating manuals, drawings, technology, manuals, data, business information and files and records, procedures, research and development records, computer programs, software and databases (including source code, object code, development documentation, programming tools, drawings, specifications and data) and all licenses or other rights to use any such technical information and know-how of others developed, relating to or used principally in connection with the Business. (b) Schedule 3.9(b)(i) lists (i) all material trademarks and service ------------------ marks and all registrations and applications pertaining thereto (including all documents or files pertaining thereto) and trade names; (ii) any and all material licenses or other rights to use trademarks or service marks owned by others and (iii) any material trade dress associated therewith, in each case used principally in connection with the Business (the "Trademark Rights"). ---------------- Except as set forth in Schedule 3.10(b)3.9(b)(ii) and except as would not have a ------------------- Material Adverse Effect, (i) the Sold Companies BFC and Subsidiaries its affiliates own, are licensed or have the full right to use and transfer the trademarks United States federal and any Canadian Trademark Rights and trade dress associated therewith as set forth dress, and, to the knowledge of BFC, the state Trademark Rights and the Trademark Rights in Schedule 3.10(b) free countries other than the United States and clear of all LiensCanada; (ii) (x) except with respect to those items noted with two asterisks on Schedule 3.9(b)(i), all registered United States federal and ------------------ Canadian Trademark Rights and trade dress owned by BFC and its affiliates are valid and subsisting, (y) to the knowledge of the SellerBFC, all registrations for such trademarks registered state Trademark Rights and trade dress owned by BFC and its affiliates are valid and subsisting and (z) to the knowledge of BFC, any registered Trademark Rights and trade dress owned by BFC and its affiliates outside the United States and Canada are valid and subsisting, in each case (but only to the knowledge of BFC in cases described in clauses (y) and (z)), free and clear of any encumbrances or rights of third parties which would restrict Buyer's exclusive right to use or transfer the registered Trademark Rights and trade dress; (iii) to BFC's knowledge, none of the Trademark Rights infringe the trademark rights of third parties; and (iiiiv) no action or proceeding claim by third parties with regard to the use by in the United States or Canada (or to BFC's knowledge, in any other country) of any of the Sold Companies or the Subsidiaries of any of such trademarks Trademark Rights and trade dress owned by BFC and its affiliates is pending or or, to BFC's knowledge, has been made oror is threatened, and, to the knowledge BFC's knowledge, none of the SellerTrademark Rights is being infringed by others. BFC represents that, threatened as soon as is practicable after the date hereof, but in no event later than 90 days after the date hereof, it will refrain from using and will seek to cancel all trademark registrations in its name or in the name of its affiliates that combine, in whole or in any material portion, trademarks described on Schedule -------- 1.2(a)(iii)(B) or Schedule 3.9(b)(i) with the Licensed Trademarks (as defined in -------------- ------------------ the ▇▇▇▇▇▇ License Agreement). (c) Schedule 3.9(c)(i) lists all material copyrights and copyright ------------------ registrations and copyright applications (pertaining thereto) and all material licenses or other rights to use the copyrights of others, in each case used principally in connection with the Business (the "Copyright Rights"). Except as ---------------- disclosed in Schedule 3.9(c)(ii) and except for those claims that would not have ------------------- a Material Adverse Effect, (i) BFC and its affiliates own, are licensed or have the full right to use and transfer the United States and Canadian Copyright Rights and, to the knowledge of BFC, the SellerCopyright Rights in countries outside the United States and Canada; (ii) (x) all registered United States and Canadian Copyright Rights owned by BFC and its affiliates are valid and subsisting and (y) to the knowledge of BFC, any registered Copyright Rights owned by BFC and its affiliates outside the United States and Canada are valid and subsisting, in each case (but only to the knowledge of BFC in cases described in clause (y)), free and clear of any encumbrances or rights of third parties which would restrict Buyer's exclusive right to use or transfer the registered Copyright Rights; (iii) to BFC's knowledge, none of the trademarks listed on Schedule 3.10(bCopyright Rights infringe the copyright rights of third parties; and (iv) no claim by third parties with regard to the use in the United States or Canada (or to BFC's knowledge, in any other country) of any of the Copyright Rights owned by BFC and its affiliates is pending or, to BFC's knowledge, has been made or is threatened and, to BFC's knowledge, none of such Copyright Rights is being infringed by others. (cd) To the best of BFC's knowledge, Schedule 3.9(d) lists all --------------- material domain names and registrations or applications for registration thereof used by BFC and its affiliates principally in connection with the Business (the "Internet Rights"). Except as set forth --------------- disclosed in Schedule 3.10(c3.9(d), there are no pending or, to the knowledge of BFC, (i) BFC and its --------------- affiliates own, are licensed or have the Sellerfull right to use and transfer the Internet Rights; (ii) all such Internet Rights are valid and subsisting, threatened Actions free and clear of any encumbrances or rights of third parties which would restrict Buyer's exclusive right to use or transfer such Internet Rights; (iii) none of the Internet Rights infringe the Internet rights of third parties and (iv) no claim by or against third parties with regard to the use of any of the Sold Companies such Internet Rights is pending or Subsidiaries with respect to has been made or threatened, no valid basis exists for any copyright rights or their use thereof such claim and none of such Internet Rights is being infringed by any personothers.

Intangible Property Rights. (a) Except as set forth in on Schedule 3.10(a)3.11(a) and except as would not ---------------- have a Material Adverse Effect, (i) the Sold Companies, and the Subsidiaries Purchased Entities own, are licensed to use or otherwise have the full right to use all unexpired domestic and foreign patents and patent applications necessary to the conduct of the business of the Purchased Entities as presently carried on, as well as all material reissues, divisionals, continuations and continuation-in-part applications and any patents thereon, and all license agreements and other agreements which relate to inventions and discoveries and any patent rights described in Schedule 3.10(aapplications and patents thereon, as well as presently-existing improvements therein (the "Patent Rights") and the Technology ------------- free and clear of all Liens; (ii) there are no pending actions or proceedings or, to Sellers' knowledge, threatened claims challenging the validity or ownership of such patent rights Patent Rights or Technology or the Sold Companies’ or Subsidiaries’ Purchased Entities' right to use such patent rightsthe Patent Rights or Technology; (iii) the patent rights described in Schedule 3.10(a) constitute the material patent rights owned, licensed or used by the Sold Companies and the Subsidiaries in connection with the operation of the business of the Sold Companies and the Subsidiaries; (iv) to the knowledge of the Seller, the issued patents under such patent rights Patent Rights that are owned by a Purchased Entity are valid and subsisting and and, to Sellers' knowledge, none of said the claims of such patents is now being infringed by others; (viv) there are no written licenses or sublicense agreements now in effect regarding the Sold Companies’ Purchased Entities' or Subsidiaries’ any third party's use of such patent rightsPatent Rights or Technology; and (viv) none of the Sold Companies or Subsidiaries Purchased Entities is infringing any U.S. or foreign patent owned by third parties in the current operation of its businessbusiness and no claim is now pending or, to Sellers' knowledge, is threatened to such effect. (b) Schedule 3.11(b) sets forth a complete and correct list and ---------------- description of all trademarks, trademark registrations, trademark applications and all trade names, all licenses and other rights to use trademarks owned by others, and any material trade dress associated therewith, that are used by the Purchased Entities in connection with the Business (the "Trademark Rights"). ----------------- Except as set forth in on Schedule 3.10(b)3.11(b) and except as would not otherwise have a ---------------- Material Adverse Effect, (i) the Sold Companies and Subsidiaries Purchased Entities own, are licensed to use or otherwise have the full right to use the trademarks Trademark Rights; (ii) all Trademark Rights registered in the name of a Purchased Entity are valid and any trade dress associated therewith as set forth in Schedule 3.10(b) subsisting, free and clear of all Liensany encumbrances or rights of third parties which would restrict Buyers' right to use such registered Trademark Rights; (ii) to the knowledge of the Seller, all registrations for such trademarks and trade dress are valid and subsisting; and (iii) no action or proceeding claim by third parties with regard to the use by the Purchased Entities of any of the Sold Companies or the Subsidiaries of any of such trademarks and trade dress Trademark Rights is pending or has been made or, to the knowledge of the Seller, or threatened and, to the knowledge of the Seller, and none of the trademarks listed on Schedule 3.10(b) Trademark Rights is being infringed by others, and (iv) there are no license or sublicense agreements now in effect regarding the use of any Trademark Rights by third parties. (c) Except as set forth in disclosed on Schedule 3.10(c)3.11(c) and except for those ---------------- claims that would not have a Material Adverse Effect, there are no pending or, to the knowledge of the SellerSellers' knowledge, threatened Actions claims by or against any of the Sold Companies or Subsidiaries Purchased Entity with respect to any such copyrights, copyright registrations, copyright applications (pertaining thereto), licenses or other rights to use the copyrights of others necessary for the conduct of the business of the Purchased Entities as presently carried on, and there are no license or their sublicense agreements now in effect regarding the use thereof of such copyrights by any personthird parties.

Intangible Property Rights. (a) Schedule 4.10(a)(i) lists all -------------------------------- ------------------- material unexpired domestic and foreign patents and patent applications, as well as all material reissues, divisionals, continuations and continuation-in-part applications and any patents issuing thereon, and all material license agreements and other agreements which relate to inventions and discoveries and any patent applications and patents thereon, as well as improvements therein, used predominantly in connection with the Business (the "Patent Rights"). Except ------------- as set forth in Schedule 3.10(a4.10(a)(ii), (i) the Sold Companies, and the Subsidiaries Sellers own, are licensed or have -------------------- the right to use the patent rights Patent Rights described in Schedule 3.10(a4.10(a)(i) free and ------------------- clear of all Liensmaterial liens and encumbrances; (ii) there are no pending or, to the knowledge of BFC, threatened material actions or proceedings challenging the validity or ownership of such patent rights Patent Rights or the Sold Companies’ or Subsidiaries’ Sellers' right to use such patent rightsPatent Rights; (iii) the patent rights Patent Rights described in Schedule 3.10(a4.10(a)(i) ------------------- constitute the material patent rights owned, licensed Patent Rights owned by the Sellers or used by the Sold Companies and Sellers or any ▇▇▇▇▇▇ Sub or the Subsidiaries Transferred Subsidiary in connection with the operation of the business of the Sold Companies and the SubsidiariesBusiness; (iv) to the knowledge of the SellerBFC, the issued patents under such patent rights Patent Rights are valid and subsisting and none of said patents is now being materially infringed by others; (v) there are no material written licenses or sublicense agreements now in effect regarding the Sold Companies’ Sellers', ▇▇▇▇▇▇ Subs' or Subsidiaries’ the Transferred Subsidiary's use of such patent rightsPatent Rights; and (vi) none to the knowledge of BFC, the Sold Companies or Subsidiaries is Sellers, the ▇▇▇▇▇▇ Subs and the Transferred Subsidiary are not materially infringing any U.S. or foreign patent owned by third parties in the current operation of its businessthe Business. (b) Schedule 4.10(b)(i) lists (i) all material trademarks, trademark ------------------- registrations and trademark applications; (ii) any and all material licenses or other rights to use trademarks owned by others and (iii) any material trade dress associated therewith, in each case used predominantly in connection with the Business (the "Trademark Rights"). Except as set forth in Schedule 3.10(b---------------- -------- 4.10(b)(ii), (i) the Sold Companies Sellers, the ▇▇▇▇▇▇ Subs and Subsidiaries the Transferred Subsidiary ----------- own, are licensed or have the right to use the trademarks and any trade dress associated therewith as set forth in Schedule 3.10(b) Trademark Rights, free and clear of all Liensany material encumbrances; (ii) to the knowledge of the SellerBFC, all registrations for such trademarks and trade dress Trademark Rights are valid and subsisting; and (iii) no material action or proceeding by third parties with regard to the use by any of the Sold Companies or the Subsidiaries of any of such trademarks Trademark Rights and trade dress is pending or has been made ormade, or to the knowledge of the SellerBFC, threatened and, to the knowledge of the SellerBFC, none of the trademarks listed on Schedule 3.10(b) such Trademark Rights is being materially infringed by others; and (iv) the trademarks described in Schedule 4.10(b)(i) constitute the ------------------- material trademarks owned by the Sellers or used by the Sellers or any ▇▇▇▇▇▇ Sub or the Transferred Subsidiary in connection with the operation of the Business. (c) Except for the Excluded BFC Assets, the ▇▇▇▇▇▇ License Agreement and the Patent License Agreement (as defined below) and except as set forth in on Schedule 3.10(c4.10(a)(ii) and Schedule 4.10(b)(ii), there are no pending orupon consummation of the -------------------- -------------------- transactions contemplated by this Agreement, Buyer shall own, directly or indirectly, all of the Intellectual Property (as defined below) currently used predominantly in the Business. "Intellectual Property" shall mean all material --------------------- (i) Patent Rights, (ii) Trademark Rights, (iii) service marks, trade names, Internet domain names, designs, logos, slogans and general intangibles of like nature, together with goodwill symbolized thereby and associated therewith, registrations and applications related to the knowledge of the Sellerforegoing, threatened Actions by or against (iv) copyrights (including registrations and applications for any of the Sold Companies or Subsidiaries with respect foregoing), (v) confidential information, technology, know-how, inventions, processes, formulae, algorithms, models and methodologies and (vi) any licenses to use any copyright rights or their use thereof by any personof the foregoing.

Intangible Property Rights. (a) Schedule 6.10 (a) lists all material unexpired domestic and foreign patents and patent applications, as well as all material utility models, reexamination certificates, reissues, divisionals, continuations and continuation-in-part applications and any patents issuing thereon, and all license agreements and other agreements which relate to inventions or discoveries and any patent applications and patents thereon, as well as improvements therein owned, used or held for use principally in connection with the Business (the "Patent Rights"). Part I of Schedule 6.10 (a) lists all Patent Rights owned, used or held for use by BCL (whether or not material), ▇▇▇▇▇▇ and its Subsidiaries in the Business. Except as set forth in Schedule 3.10(a), 6.10(a) (i) the Sold Companies, ▇▇▇▇▇▇ and the its Subsidiaries own, are licensed or have the full right to use the patent rights Patent Rights and the Technology (as defined below) described or required to be described in Schedule 3.10(a6.10(a) free and clear of all LiensLiens and without payment of material royalties or other fees; (ii) there are no pending actions pending, or proceedings to the knowledge of ▇▇▇▇▇▇, threatened claims challenging the validity or ownership of such patent rights or the Sold Companies’ or Subsidiaries’ right to use such patent rights; validity, (iii) the patent rights described in Schedule 3.10(aa) constitute all of the material patent rights same owned, licensed used or used held for use by the Sold Companies ▇▇▇▇▇▇ and the Subsidiaries in connection with the operation of the business of Business and are sufficient for MergerCo to operate the Sold Companies Business as presently operated by ▇▇▇▇▇▇ and the Subsidiaries; (iv) to the knowledge of the Seller, the issued patents under such patent rights Patent Rights are valid and subsisting and all maintenance and other fees and taxes for said patents have been paid, and, to the knowledge of ▇▇▇▇▇▇, none of the claims of said patents is now being infringed by othersothers except as, individually or in the aggregate, could not be reasonably expected to have a Material Adverse Effect; (v) there are no written licenses or sublicense agreements now in effect regarding the Sold Companies’ or ▇▇▇▇▇▇ and its Subsidiaries’ ' use of such patent rightsPatent Rights or Technology; and (vi) none of ▇▇▇▇▇▇ and the Sold Companies or Subsidiaries is are, to the knowledge of ▇▇▇▇▇▇, infringing any U.S. or foreign patent owned by third parties in the current operation of its business. (b) Except as set forth in Schedule 3.10(b), (i) the Sold Companies Business and Subsidiaries own, are licensed or have the right to use the trademarks and any trade dress associated therewith as set forth in Schedule 3.10(b) free and clear of all Liens; (ii) to the knowledge of the Seller, all registrations for such trademarks and trade dress are valid and subsisting; and (iii) no action or proceeding by third parties with regard to the use by any of the Sold Companies or the Subsidiaries of any of such trademarks and trade dress claim is pending or has been made or, to the knowledge of the Seller, threatened and, to the knowledge of the Seller, none of the trademarks listed on Schedule 3.10(b) is being infringed by others. (c) Except as set forth in Schedule 3.10(c), there are no now pending or, to the knowledge of ▇▇▇▇▇▇, is threatened to such effect, except for such infringements and claims as, individually or in the Selleraggregate, threatened Actions by could not be reasonably expected to have a Material Adverse Effect. For purposes of this Agreement, the term "Technology" shall mean the patterns, plans, designs, research data, trade secrets and other proprietary know-how, inventions, discoveries, formulae and manufacturing processes, computer software or against firmware (except as set forth in Schedule 2.3(a)) operating manuals, drawings, technology, manuals, data, records, procedures, research and development records, as well as improvements therein and all licenses or other rights to use any of the Sold Companies same owned or Subsidiaries licensed by others, owned, used or held for use principally in connection with respect to any copyright rights or their use thereof by any personthe Business.