Proprietary Assets. (a) Part 3.9(a)(i) of the Brainworks Disclosure Schedule sets forth, with respect to each Proprietary Asset owned by any of the Brainworks Corporations and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 3.9(a)(ii) of the Brainworks Disclosure Schedule identifies and provides a brief description of all other Proprietary Assets owned by any of the Brainworks Corporations that are material to the respective businesses of the Brainworks Corporations. Part 3.9(a)(iii) of the Brainworks Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $10,000 with respect to, each Proprietary Asset that is licensed or otherwise made available to any of the Brainworks Corporations by any Person and is material to the respective businesses of the Brainworks Corporations (except for any Proprietary Asset that is licensed to any of the Brainworks Corporations under any third party software license generally available to the public), and identifies the Contract under which such Proprietary Asset is being licensed or otherwise made available to such AAHoldings Entity. The Brainworks Corporations have good and valid title to all of the Brainworks Corporation Proprietary Assets identified in Parts 3.9(a)(i) and 3.9(a)(ii) of the Brainworks Disclosure Schedule, free and clear of all Encumbrances, except for (i) any lien for current taxes not yet due and payable, and (ii) minor liens that have arisen in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of any of the Brainworks Corporations. The Brainworks Corporations have a valid right to use, license and otherwise exploit all Proprietary Assets identified in Part 3.9(a)(iii) of the Brainworks Disclosure Schedule. Except as set forth in Part 3.9(a)(iv) of the Brainworks Disclosure Schedule, none of the Brainworks Corporations has developed jointly with any other Person any AAHoldings Entity Proprietary Asset that is material to the respective businesses of the Brainworks Corporations with respect to which such other Person has any rights. Except as set forth in Part 3.9(a)(v) of the Brainworks Disclosure Schedule, there is no Brainworks Corporation Contract (with the exception of end user license agreements in the form previously delivered by Brainworks to the LLC) pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Brainworks Corporation Proprietary Asset. (b) The Brainworks Corporations have taken reasonable measures and precautions to protect and maintain the confidentiality, secrecy and value of all material Brainworks Corporation Proprietary Assets (except Brainworks Corporation Proprietary Assets whose value would be unimpaired by disclosure). (c) To the best of the knowledge of Brainworks and Merger Sub: (i) all patents, trademarks, service marks and copyrights held by any of the Brainworks Corporations are valid, enforceable and subsisting; (ii) none of the Brainworks Corporation Proprietary Assets and no Proprietary Asset that is currently being developed by any of the Brainworks Corporations (either by itself or with any other Person) infringes, misappropriates or conflicts with any Proprietary Asset owned or used by any other Person; (iii) none of the products that are or have been designed, created, developed, assembled, manufactured or sold by any of the Brainworks Corporations is infringing, misappropriating or making any unlawful or unauthorized use of any Proprietary Asset owned or used by any other Person, and except as set forth in Part 3.9(c) of the Brainworks Disclosure Schedule, none of the Brainworks Corporations has received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person; (iv) no other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any material Brainworks Corporation Proprietary Asset. (d) The Brainworks Corporation Proprietary Assets constitute all the Proprietary Assets necessary to enable the Brainworks Corporations to conduct their respective businesses in the manner in which such businesses are being conducted. None of the Brainworks Corporations has (i) licensed any of the material Brainworks Corporation Proprietary Assets to any Person on an exclusive basis, or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any material Brainworks Corporation Proprietary Assets or to transact business in any market or geographical area or with any Person. (e) Except as set forth in Part 3.9(e) of the Brainworks Disclosure Schedule, none of the Brainworks Corporations has disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other Person, of any Brainworks Corporation Source Code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any Person of any AAHoldings Entity Source Code. Part 3.10(a) of the Brainworks Disclosure Schedule identifies each Contract pursuant to which the Brainworks has deposited or is required to deposit with an escrowholder or any other Person of any Brainworks Corporation Source Code, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Brainworks Corporation Source Code.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Brainworks Ventures Inc), Agreement and Plan of Merger and Reorganization (Brainworks Ventures Inc)
Proprietary Assets. (a) Part 3.9(a)(i2.10(a) of the Brainworks Company Disclosure Schedule sets forth, with respect to each Proprietary Asset owned by any of the Brainworks Acquired Corporations and registered with any Governmental Body or for which an application has been registered or filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 3.9(a)(ii2.10(a) of the Brainworks Company Disclosure Schedule identifies and provides a brief description of all other Proprietary Assets owned by any of the Brainworks Corporations that are material to the respective businesses of the Brainworks Corporations. Part 3.9(a)(iii) of the Brainworks Disclosure Schedule identifies and provides a brief description of, and identifies Contracts providing for any ongoing royalty or payment obligations payable by an Acquired Corporation in excess of $10,000 100,000 annually with respect to, each Proprietary Asset that is licensed or otherwise made available to any of the Brainworks Acquired Corporations by any Person and is material to the respective businesses business of the Brainworks Corporations (except for any Proprietary Asset that is licensed to any of the Brainworks Corporations under any third party software license generally available to the public), and identifies the Contract under which such Proprietary Asset is being licensed or otherwise made available to such AAHoldings EntityAcquired Corporations. The Brainworks Acquired Corporations have good good, valid and valid marketable title to all of the Brainworks Acquired Corporation Proprietary Assets identified in Parts 3.9(a)(i) and 3.9(a)(iiPart 2.10(a) of the Brainworks Company Disclosure Schedule, and all other Proprietary Assets owned by the Acquired Corporations that are material to the business of the Acquired Corporations taken as a whole, free and clear of all Encumbrances, except for (i) any lien for current taxes not yet due and payable, and (ii) minor liens any Encumbrances that have arisen in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of the Acquired Corporations and (iii) any of the Brainworks CorporationsContract to which an Acquired Corporation is a party and pursuant to which an Acquired Corporation has licensed or transferred any right (whether or not currently exercisable) to use, license or otherwise exploit any Acquired Corporation Proprietary Asset to any Person. The Brainworks Acquired Corporations have a valid right to use, license and otherwise exploit all Proprietary Assets identified in Part 3.9(a)(iii2.10(a) of the Brainworks Company Disclosure ScheduleSchedule to the extent necessary to the conduct of the business of the Acquired Corporations as currently conducted. Except as set forth in Part 3.9(a)(iv2.10(a) of the Brainworks Company Disclosure Schedule, none Schedule sets forth a list of each Contract providing for the Brainworks Corporations has developed jointly with joint development of any other Person any AAHoldings Entity Acquired Corporation Proprietary Asset that is material to the respective businesses of the Brainworks Corporations with respect to which such other Person has any rights. Except as set forth in Asset.
(b) Part 3.9(a)(v2.10(b)(i) of the Brainworks Company Disclosure Schedule, there Schedule sets forth a complete copy of the Company's standard form of license agreement (the "COMPANY'S STANDARD LICENSE AGREEMENT"). Part 2.10(b)(ii) of the Company Disclosure Schedule identifies (i) each Contract to which an Acquired Corporation is no Brainworks Corporation Contract (with a party as of the exception of end user license agreements in the form previously delivered by Brainworks to the LLC) date hereof and pursuant to which an Acquired Corporation has licensed or transferred any Person has any material right (whether or not currently exercisable) to use, license or otherwise exploit any Brainworks Acquired Corporation Proprietary Asset.
(b) The Brainworks Corporations have taken reasonable measures and precautions to protect and maintain the confidentiality, secrecy and value of all material Brainworks Corporation Proprietary Assets (except Brainworks Corporation Proprietary Assets whose value would be unimpaired by disclosure).
(c) To the best of the knowledge of Brainworks and Merger Sub: (i) all patents, trademarks, service marks and copyrights held by any of the Brainworks Corporations are valid, enforceable and subsisting; (ii) none of the Brainworks Corporation Proprietary Assets and no Proprietary Asset that is currently being developed by any of the Brainworks Corporations (either by itself or with any other Person) infringes, misappropriates or conflicts with any Proprietary Asset owned or used by any other Person; (iii) none of the products that are or have been designed, created, developed, assembled, manufactured or sold by any of the Brainworks Corporations is infringing, misappropriating or making any unlawful or unauthorized use of any Proprietary Asset owned or used by any other Person, and except as set forth in Part 3.9(c) of the Brainworks Disclosure Schedule, none of the Brainworks Corporations has received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person; (iv) no other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any material Brainworks Corporation Proprietary Asset.
(d) The Brainworks Corporation Proprietary Assets constitute all the Proprietary Assets necessary to enable the Brainworks Corporations to conduct their respective businesses in the manner in which such businesses are being conducted. None of the Brainworks Corporations has (i) licensed any of the material Brainworks Corporation Proprietary Assets to any Person on an exclusive basis, or (ii) other than those Contracts entered into any covenant not to compete or Contract limiting its ability to exploit fully any material Brainworks Corporation Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) Except as set forth in Part 3.9(e) of the Brainworks Disclosure Schedule, none of the Brainworks Corporations has disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other Person, of any Brainworks Corporation Source Code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any Person ordinary course of any AAHoldings Entity Source Code. Part 3.10(a) of the Brainworks Disclosure Schedule identifies each Contract pursuant to which the Brainworks has deposited or is required to deposit with an escrowholder or any other Person of any Brainworks Corporation Source Code, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Brainworks Corporation Source Code.business on terms
Appears in 2 contracts
Sources: Merger Agreement (Scopus Technology Inc), Merger Agreement (Scopus Technology Inc)
Proprietary Assets. (a) Part 3.9(a)(i2.9(a)(i) of the Brainworks Company Disclosure Schedule sets forth, with respect to each Proprietary Asset owned by any of the Brainworks Acquired Corporations and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 3.9(a)(ii2.9(a)(ii) of the Brainworks Company Disclosure Schedule identifies and provides a brief description of all other Proprietary Assets owned by any of the Brainworks Acquired Corporations that are material to the respective businesses business of the Brainworks Acquired Corporations. Part 3.9(a)(iii2.9(a)(iii) of the Brainworks Company Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $10,000 per quarter with respect to, each Proprietary Asset that is licensed or otherwise made available to any of the Brainworks Acquired Corporations by any Person and is material to the respective businesses business of the Brainworks Acquired Corporations (except for any Proprietary Asset that is licensed to any of the Brainworks Acquired Corporations under any third party software license generally available to the publicpublic or that was at the time the license was entered into available on substantially similar terms to companies that are similarly situated), and identifies the Contract under which such Proprietary Asset is being licensed or otherwise made available to such AAHoldings EntityAcquired Corporation. The Brainworks Acquired Corporations have good and valid title to all of the Brainworks Acquired Corporation Proprietary Assets identified in Parts 3.9(a)(i) and 3.9(a)(ii) of owned by the Brainworks Disclosure ScheduleAcquired Corporations, free and clear of all Encumbrances, except for (i) any lien for current taxes Taxes not yet due and payable, and (ii) minor liens that have arisen in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of any either of the Brainworks Acquired Corporations. The Brainworks Acquired Corporations have a valid right to use, license and otherwise exploit all Proprietary Assets required to be identified in Part 3.9(a)(iii2.9(a)(iii) of the Brainworks Company Disclosure ScheduleSchedule subject to the terms of any applicable Contracts. Except as set forth in Part 3.9(a)(iv2.9(a)(iv) of the Brainworks Company Disclosure Schedule, none of the Brainworks Acquired Corporations has developed jointly with any other Person any AAHoldings Entity Acquired Corporation Proprietary Asset that is material to the respective businesses business of the Brainworks Acquired Corporations with respect to which such other Person has any rights. Except as set forth in Part 3.9(a)(v) of the Brainworks Disclosure Schedule, there There is no Brainworks Acquired Corporation Contract (with the exception of end user license agreements in the form previously delivered or made available (at the offices of Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP or C▇▇▇▇ ▇▇▇▇▇▇▇▇) by Brainworks the Company to the LLCParent) pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Brainworks Acquired Corporation Proprietary Asset, other than Acquired Corporation Contracts for the distribution of products of the Acquired Corporations by distributors, resellers and channel partners.
(b) The Brainworks Acquired Corporations have taken reasonable measures and precautions to protect and maintain the confidentiality, secrecy and value of all material Brainworks Acquired Corporation Proprietary Assets (except Brainworks Acquired Corporation Proprietary Assets whose value would be unimpaired by disclosure). Without limiting the generality of the foregoing, (i) all current and former employees of the Acquired Corporations who are or were involved in, or who have contributed to, the creation or development of any material Acquired Corporation Proprietary Asset have executed and delivered to the Acquired Corporations an agreement (containing no material exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Invention and Nondisclosure Agreement previously delivered by the Company to Parent, and (ii) all current and former consultants and independent contractors to the Acquired Corporations who are or were involved in, or who have contributed to, the creation or development of any material Acquired Corporation Proprietary Asset have executed and delivered to the Company an agreement (containing no material exceptions to or exclusions from the scope of its coverage) that is substantially identical to one of the two forms of Contractor Agreements previously delivered to Parent. No current or former employee, officer, director, stockholder, consultant or independent contractor has any right, claim or interest in or with respect to any Acquired Corporation Proprietary Asset.
(c) To the best knowledge of the knowledge of Brainworks and Merger SubCompany: (i) all patents, trademarkstrademark registrations currently used in the business of the Acquired Corporations, service marks m▇▇▇ registrations currently used in the business of the Acquired Corporations and copyrights copyright registrations held by any of the Brainworks Acquired Corporations are valid, enforceable and subsisting; (ii) none of the Brainworks Acquired Corporation Proprietary Assets and no Proprietary Asset that is currently being developed by any of the Brainworks Acquired Corporations (either by itself or with any other Person) infringes, misappropriates or conflicts with any rights in any Proprietary Asset owned or used by any other Person; (iii) none of the products that are or have been designed, created, developed, assembled, manufactured or sold by any of the Brainworks Acquired Corporations is infringing, misappropriating or making any unlawful or unauthorized use of any Proprietary Asset owned or used by any other Person, and except as set forth in Part 3.9(c) none of the Brainworks Disclosure Schedulesuch products has at any time infringed, misappropriated or made any unlawful or unauthorized use of, and none of the Brainworks Acquired Corporations has received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person; (iv) no other Person is materially infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person materially infringes or conflicts with, any material Brainworks Acquired Corporation Proprietary Asset.
(d) The Brainworks Acquired Corporation Proprietary Assets constitute all the Proprietary Assets necessary to enable the Brainworks Acquired Corporations to conduct their respective businesses business in the manner in which such businesses are business has been and is being conducted. None of the Brainworks Acquired Corporations has (i) licensed any of the material Brainworks Acquired Corporation Proprietary Assets to any Person on an exclusive basis, or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any material Brainworks Acquired Corporation Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) Except as set forth in Part 3.9(e) None of the Brainworks Disclosure Schedule, none of the Brainworks Acquired Corporations has disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other Person, of any Brainworks Acquired Corporation Source Code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any Person of any AAHoldings Entity Acquired Corporation Source Code. Part 3.10(a2.10(a)(ii) of the Brainworks Company Disclosure Schedule identifies each Contract pursuant to which the Brainworks Company has deposited or is required to deposit with an escrowholder or any other Person of any Brainworks Acquired Corporation Source Code, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Brainworks Acquired Corporation Source Code.
(f) To the knowledge of the Company, each computer, computer program and other item of software (whether installed on a computer or on any other piece of equipment, including firmware) that is currently used by any of the Acquired Corporations and material for their internal business operations is Year 2000 Compliant. To the knowledge of the Company, each computer program and other item of software that is currently generally offered for sale or otherwise made available to any Person by any of the Acquired Corporations is Year 2000 Compliant. For purposes of this Section 2.9, a computer, computer program or other item of software shall be deemed to be "Year 2000 Compliant" only if it meets the definition of "Year 2000 Compliant" set forth as of the date of this Agreement on the Company's web page under the heading "Year 2000 Statement."
(g) Except with respect to demonstration or trial copies and except for security routines intended to restrict the end-user to use within the scope of such end-user's license, no product, system, program or software module designed, developed, sold, licensed or otherwise made available by any of the Acquired Corporations to any Person contains any "back door," "time bomb," "Trojan horse," "worm," "drop dead device," "virus" or other software routines or hardware components designed by or on behalf of any Acquired Corporation to permit unauthorized access or to disable or erase software, hardware or data without the consent of the user.
Appears in 1 contract
Sources: Merger Agreement (Broadvision Inc)
Proprietary Assets. (a) Part 3.9(a)(i2.9(a)(i) of the Brainworks Company Disclosure Schedule sets forth, with respect to each Proprietary Asset owned by any of the Brainworks Acquired Corporations and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 3.9(a)(ii2.9(a)(ii) of the Brainworks Company Disclosure Schedule identifies and provides a brief description of all other each Proprietary Assets Asset owned by any of the Brainworks Acquired Corporations that are is material to the respective businesses business of the Brainworks Acquired Corporations. Part 3.9(a)(iii2.9(a)(iii) of the Brainworks Company Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $10,000 with respect to, each Proprietary Asset that is licensed or otherwise made available to any of the Brainworks Acquired Corporations by any Person and is material to the respective businesses business of the Brainworks Acquired Corporations (except for any Proprietary Asset that is licensed to any of the Brainworks Corporations Acquired Corporation under any third party software license generally available to the public), and identifies the Contract under which such Proprietary Asset is being licensed or otherwise made available to such AAHoldings EntityAcquired Corporation. The Brainworks Acquired Corporations have good and valid title to all of the Brainworks Acquired Corporation Proprietary Assets identified or required to be identified in Parts 3.9(a)(i2.9(a)(i) and 3.9(a)(ii2.9(a)(ii) of the Brainworks Company Disclosure Schedule, free and clear of all Encumbrances, except for (i) any lien for current taxes not yet due and payable, and (ii) minor liens that have arisen in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value of the assets Acquired Corporation Proprietary Asset subject thereto or materially impair the operations of any either of the Brainworks Acquired Corporations. The Brainworks Acquired Corporations have a valid right to use, license and otherwise exploit all Proprietary Assets identified or required to be identified in Part 3.9(a)(iii2.9(a)(iii) of the Brainworks Disclosure Schedule. Except as set forth in Part 3.9(a)(iv) of the Brainworks Company Disclosure Schedule, none subject to the terms thereof. None of the Brainworks Acquired Corporations has developed jointly with any other Person any AAHoldings Entity Acquired Corporation Proprietary Asset that is material to the respective businesses business of the Brainworks Acquired Corporations and with respect to which such other Person has any rights. Except as set forth in Part 3.9(a)(v) of the Brainworks Disclosure Schedule, there There is no Brainworks Acquired Corporation Contract (with the exception of end user license agreements, support agreements, consulting agreements and other customer contracts in the form forms previously delivered by Brainworks the Company to the LLCParent) pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Brainworks Acquired Corporation Proprietary Asset.
(b) The Brainworks Acquired Corporations have taken reasonable measures and precautions to protect and maintain the confidentiality, secrecy and value of all material Brainworks Acquired Corporation Proprietary Assets (except Brainworks Acquired Corporation Proprietary Assets whose value would be unimpaired by disclosure). No current or former employee, officer, director, shareholder, consultant or independent contractor has any right, claim or interest in or with respect to any Acquired Corporation Proprietary Asset.
(c) To the best of the knowledge of Brainworks and Merger Sub: (i) all All patents, trademarks, service marks and copyrights held by any of the Brainworks Acquired Corporations are valid, enforceable and subsisting; (ii) subsisting and none of the Brainworks Acquired Corporation Proprietary Assets and no Proprietary Asset that is currently being developed by any of the Brainworks Acquired Corporations (either by itself or with any other Person) ), to the Company’s knowledge, infringes, misappropriates or conflicts with any Proprietary Asset owned or used by any other Person; (iii) none . None of the products that are or have been designed, created, developed, assembled, manufactured or sold by any of the Brainworks Corporations is infringing, misappropriating or making any unlawful or unauthorized use of any Proprietary Asset owned or used by any other Person, and except as set forth in Part 3.9(c) of the Brainworks Disclosure Schedule, none of the Brainworks Acquired Corporations has received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person; (iv) . To the best of the knowledge of the Company, no other Person is materially infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any material Brainworks Acquired Corporation Proprietary Asset.
(d) The Brainworks Acquired Corporation Proprietary Assets constitute all the Proprietary Assets necessary to enable the Brainworks Acquired Corporations to conduct their respective businesses business in the manner in which such businesses are business has been and is being conducted. None of the Brainworks Acquired Corporations has (i) licensed any of the material Brainworks Acquired Corporation Proprietary Assets to any Person on an exclusive basis, or (ii) entered into any covenant not to compete or Contract limiting its or purporting to limit the ability of any Acquired Corporation to exploit fully any material Brainworks Acquired Corporation Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) Except as set forth in Part 3.9(e) of the Brainworks Disclosure Schedule, none of the Brainworks Corporations has disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other Person, of any Brainworks Corporation Source Code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any Person of any AAHoldings Entity Source Code. Part 3.10(a) of the Brainworks Disclosure Schedule identifies each Contract pursuant to which the Brainworks has deposited or is required to deposit with an escrowholder or any other Person of any Brainworks Corporation Source Code, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Brainworks Corporation Source Code.
Appears in 1 contract
Sources: Arrangement Agreement (Counterpath Solutions, Inc.)
Proprietary Assets. (a) Part 3.9(a)(i) of the Brainworks DDN Disclosure Schedule sets forth, with respect to each Proprietary Asset owned by any of the Brainworks Corporations DDN Entities and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 3.9(a)(ii) of the Brainworks DDN Disclosure Schedule identifies and provides a brief description of all other Proprietary Assets owned by any of the Brainworks Corporations DDN Entities that are material to the respective businesses of the Brainworks CorporationsDDN Entities. Part 3.9(a)(iii) of the Brainworks DDN Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $10,000 10,000.00 with respect to, each Proprietary Asset that is licensed or otherwise made available to any of the Brainworks Corporations DDN Entities by any Person and is material to the respective businesses of the Brainworks Corporations DDN Entities (except for any Proprietary Asset that is licensed to any of the Brainworks Corporations DDN Entities under any third party software license generally available to the public), and identifies the Contract under which such Proprietary Asset is being licensed or otherwise made available to such AAHoldings DDN Entity. The Brainworks Corporations DDN Entities have good and valid title to all of the Brainworks Corporation DDN Entity Proprietary Assets identified in Parts 3.9(a)(i) and 3.9(a)(ii) of the Brainworks DDN Disclosure Schedule, free and clear of all Encumbrances, except for (i) any lien for current taxes not yet due and payable, and (ii) minor liens that have arisen in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of any of the Brainworks CorporationsDDN Entities. The Brainworks Corporations DDN Entities have a valid right to use, license and otherwise exploit all Proprietary Assets identified in Part 3.9(a)(iii) of the Brainworks DDN Disclosure Schedule. Except as set forth in Part 3.9(a)(iv) of the Brainworks DDN Disclosure Schedule, none of the Brainworks Corporations DDN Entities has developed jointly with any other Person any AAHoldings DDN Entity Proprietary Asset that is material to the respective businesses of the Brainworks Corporations DDN Entities with respect to which such other Person has any rights. Except as set forth in Part 3.9(a)(v) of the Brainworks DDN Disclosure Schedule, there is no Brainworks Corporation DDN Entity Contract (with the exception of end user license agreements in the form previously delivered by Brainworks to the LLC) pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Brainworks Corporation DDN Entity Proprietary Asset.
(b) The Brainworks Corporations DDN Entities have taken reasonable measures and precautions to protect and maintain the confidentiality, secrecy and value of all material Brainworks Corporation DDN Entity Proprietary Assets (except Brainworks Corporation DDN Entity Proprietary Assets whose which value would be unimpaired by disclosure).
(c) To the best of the knowledge of Brainworks DDN and Merger Sub: (i) all patents, trademarks, service marks and copyrights held by any of the Brainworks Corporations DDN Entities are valid, enforceable and subsisting; (ii) none of the Brainworks Corporation DDN Entity Proprietary Assets and no Proprietary Asset that is currently being developed by any of the Brainworks Corporations DDN Entities (either by itself or with any other Person) infringes, misappropriates or conflicts with any Proprietary Asset owned or used by any other Person; (iii) none of the products that are or have been designed, created, developed, assembled, manufactured or sold by any of the Brainworks Corporations DDN Entities is infringing, misappropriating or making any unlawful or unauthorized use of any Proprietary Asset owned or used by any other Person, and except as set forth in Part 3.9(c) of the Brainworks DDN Disclosure Schedule, none of the Brainworks Corporations DDN Entities has received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person; and (iv) no other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any material Brainworks Corporation DDN Entity Proprietary Asset.
(d) The Brainworks Corporation DDN Entity Proprietary Assets constitute all the Proprietary Assets necessary to enable the Brainworks Corporations DDN Entities to conduct their respective businesses in the manner in which such businesses are being conducted. None of the Brainworks Corporations DDN Entities has (i) licensed any of the material Brainworks Corporation DDN Entity Proprietary Assets to any Person on an exclusive basis, or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any material Brainworks Corporation DDN Entity Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) Except as set forth in Part 3.9(e) of the Brainworks DDN Disclosure Schedule, none of the Brainworks Corporations DDN Entities has disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other Person, of any Brainworks Corporation DDN Entity Source Code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any Person of any AAHoldings DDN Entity Source Code. Part 3.10(a3.9(e) of the Brainworks DDN Disclosure Schedule identifies each Contract pursuant to which the Brainworks DDN has deposited or is required to deposit with an escrowholder or any other Person of any Brainworks Corporation DDN Entity Source Code, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Brainworks Corporation DDN Entity Source Code.
Appears in 1 contract
Proprietary Assets. (a) Part 3.9(a)(i2.9(a)(i) of the Brainworks Company Disclosure Schedule sets forth, with respect to each Proprietary Asset owned by any of the Brainworks Acquired Corporations and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 3.9(a)(ii2.9(a)(ii) of the Brainworks Company Disclosure Schedule identifies and provides a brief description of all other Proprietary Assets owned by any of the Brainworks Acquired Corporations that are material to the respective businesses business of the Brainworks Acquired Corporations. Part 3.9(a)(iii2.9(a)(iii) of the Brainworks Company Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $10,000 with respect to, each Proprietary Asset that is licensed or otherwise made available to any of the Brainworks Acquired Corporations by any Person and is material to the respective businesses business of the Brainworks Acquired Corporations (except for any Proprietary Asset that is licensed to any of the Brainworks Acquired Corporations under any third party software license generally available to the public), and identifies the Contract under which such Proprietary Asset is being licensed or otherwise made available to such AAHoldings EntityAcquired Corporation. The Brainworks Acquired Corporations have good and valid title to all of the Brainworks Acquired Corporation Proprietary Assets identified or required to be identified in Parts 3.9(a)(i2.9(a)(i) and 3.9(a)(ii2.9(a)(ii) of the Brainworks Company Disclosure Schedule, free and clear of all Encumbrances, except for (i) any lien for current taxes not yet due and payable, and (ii) minor liens that have arisen in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of any of the Brainworks Acquired Corporations. The Brainworks Acquired Corporations have a valid right to use, license and otherwise exploit all Proprietary Assets identified in Part 3.9(a)(iii2.9(a)(iii) of the Brainworks Company Disclosure Schedule. Except as set forth in Part 3.9(a)(iv2.9(a)(iv) of the Brainworks Company Disclosure Schedule, none of the Brainworks Acquired Corporations has developed jointly with any other Person any AAHoldings Entity Acquired Corporation Proprietary Asset that is material to the respective businesses business of the Brainworks Acquired Corporations with respect to which such other Person has any rights. Except as set forth in Part 3.9(a)(v2.9(a)(v) of the Brainworks Company Disclosure Schedule, there is no Brainworks Acquired Corporation Contract (with the exception of end user license agreements in the form previously delivered by Brainworks the Company to Parent or non-exclusive licenses to use the LLCCompany's data file format for integrated circuit design data) pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Brainworks Acquired Corporation Proprietary Asset.
(b. Part 2.9(a)(vi) of the Company Disclosure Schedule contains an accurate and complete list of each Person to whom the Company's data file formats for integrated circuit design data has been provided since the first shipment of the Company's MEBES 5000 product. The Brainworks Acquired Corporations have taken reasonable measures and precautions to protect and maintain the confidentiality, secrecy and value of all material Brainworks Acquired Corporation Proprietary Assets (except Brainworks Acquired Corporation Proprietary Assets whose value would be unimpaired by disclosure).
. Without limiting the generality of the foregoing, except as set forth in Part 2.9(b) of the Company Disclosure Schedule, (ci) To all current and former employees of the Acquired Corporations who are or were involved in, or who have contributed to, the creation or development of any material Acquired Corporation Proprietary Asset have executed and delivered to the Acquired Corporations an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Confidential Information and Invention Assignment Agreement previously delivered by the Company to Parent, and (ii) all current and former consultants and independent contractors to the Acquired Corporations who are or were involved in, or who have contributed to, the creation or development of any material Acquired Corporation Proprietary Asset have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Consultant Confidential Information and Invention Assignment Agreement previously delivered to Parent. No current or former employee, officer, director, stockholder, consultant or independent contractor has any right, claim or interest in or with respect to any Acquired Corporation Proprietary Asset. Except as set forth in Part 2.9(c) of the Company Disclosure Schedule, to the best of the knowledge of Brainworks and Merger Subthe Company: (i) all patents, trademarks, service marks and copyrights held by any of the Brainworks Acquired Corporations are valid, enforceable and subsisting; (ii) none of the Brainworks Acquired Corporation Proprietary Assets and no Proprietary Asset that is currently being developed by any of the Brainworks Acquired Corporations (either by itself or with any other Person) infringes, misappropriates or conflicts with any Proprietary Asset owned or used by any other Person; (iii) none of the products that are or have been designed, created, developed, assembled, manufactured or sold by any of the Brainworks Acquired Corporations is infringing, misappropriating or making any unlawful or unauthorized use of any Proprietary Asset owned or used by any other Person, and except as set forth in Part 3.9(c) none of the Brainworks Disclosure Schedulesuch products has at any time infringed, misappropriated or made any unlawful or unauthorized use of, and none of the Brainworks Acquired Corporations has received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person; and (iv) no other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any material Brainworks Acquired Corporation Proprietary Asset.
(d) The Brainworks . To the best of the knowledge of the Company, the Acquired Corporation Proprietary Assets constitute all the Proprietary Assets necessary to enable the Brainworks Acquired Corporations to conduct their respective businesses business in the manner in which such businesses are business has been and is being conducted. None Except as set forth in Part 2.9(d) of the Brainworks Company Disclosure Schedule, none of the Acquired Corporations has (i) licensed any of the material Brainworks Acquired Corporation Proprietary Assets to any Person (other than Parent) on an exclusive basis, or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any material Brainworks Acquired Corporation Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) . Except as set forth in Part 3.9(e2.9(e)(i) of the Brainworks Company Disclosure Schedule, since July 31, 1995 (and, to the best of the Company's knowledge, since inception) none of the Brainworks Acquired Corporations has disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other PersonPerson of, of any Brainworks Acquired Corporation Source CodeCode or deposited into escrow any other Acquired Corporation Proprietary Asset. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any Person of any AAHoldings Entity Acquired Corporation Source CodeCode or the release from any escrow of any other Acquired Corporation Proprietary Asset. Part 3.10(a2.9(e)(ii) of the Brainworks Company Disclosure Schedule identifies each Contract pursuant to which the Brainworks Company has deposited or is required to deposit with an escrowholder or any other Person of any Brainworks Acquired Corporation Source Code, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Brainworks Acquired Corporation Source Code. To the best of the knowledge of the Company, except as set forth in Part 2.9(f)(i) of the Company Disclosure Schedule, each computer, computer program and other item of software (whether installed on a computer or on any other piece of equipment, including firmware) that is owned or used by any of the Acquired Corporations for their internal business operations is Year 2000 Compliant. To the best of the knowledge of the Company, except as set forth in Part 2.9(f)(ii) of the Company Disclosure Schedule, each computer program and other item of software that has been designed, developed, sold, licensed or otherwise made available to any Person by any of the Acquired Corporations is Year 2000 Compliant. To the best of the knowledge of the Company, except as set forth in Part 2.9(f)(iii) of the Company Disclosure Schedule, each of the Acquired Corporations has conducted sufficient Year 2000 compliance testing for each computer, computer program and item of software referred to in the preceding two sentences to be able to determine whether such computer, computer program and item of software is Year 2000 Compliant. For purposes of this Section 2.9, a computer, computer program or other item of software shall be deemed to be "Year 2000 Compliant" only if (i) the functions, calculations and other computing processes of such computer, program or software perform in a consistent and correct manner without interruption regardless of the date on which such functions, calculations and processes are actually performed and regardless of the date input to the applicable computer system (whether before, on or after January 1, 2000); (ii) such computer, program or software accepts, calculates, compares, sorts, extracts, sequences and otherwise processes date inputs and date values, and returns and displays date values, in a consistent and correct manner regardless of the dates used (whether before, on or after January 1, 2000); (iii) such computer, program or software accepts and responds to year input in a manner that resolves any ambiguities as to century in a defined, predetermined and appropriate manner; (iv) such computer, program or software stores and displays date information in ways that are unambiguous as to the determination of the century; and (v) such computer, program or software determines leap years in accordance with the following standard: (A) if dividing the year by 4 yields an integer, it is a leap year, except for years ending in 00, but (B) a year ending in 00 is a leap year if dividing it by 400 yields an integer. Except with respect to demonstration or trial copies, to the best of the knowledge of the Company, no product, system, program or software module designed, developed, sold, licensed or otherwise made available by any of the Acquired Corporations to any Person contains any "back door," "time bomb," "Trojan horse," "worm," "drop dead device," "virus" or other software routines or hardware components designed to permit unauthorized access or to disable or erase software, hardware or data without the consent of the user.
Appears in 1 contract
Sources: Merger Agreement (Etec Systems Inc)
Proprietary Assets. (a) Part 3.9(a)(i2.9(a)(i) of the Brainworks Company Disclosure Schedule sets forth, with respect to each Proprietary Asset owned by any of the Brainworks Acquired Corporations and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 3.9(a)(ii2.9(a)(ii) of the Brainworks Company Disclosure Schedule identifies and provides a brief description of all other Proprietary Assets owned by any of the Brainworks Acquired Corporations that are material to the respective businesses business of the Brainworks Acquired Corporations. Part 3.9(a)(iii2.9(a)(iii) of the Brainworks Company Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $10,000 with respect to, each Proprietary Asset that is licensed or otherwise made available to any of the Brainworks Acquired Corporations by any Person and is material to the respective businesses business of the Brainworks Acquired Corporations (except for any Proprietary Asset that is licensed to any of the Brainworks Acquired Corporations under any third party software license generally available to the public), and identifies the Contract under which such Proprietary Asset is being licensed or otherwise made available to such AAHoldings EntityAcquired Corporation. The Brainworks Acquired Corporations have good and valid title to all of the Brainworks Acquired Corporation Proprietary Assets identified or required to be identified in Parts 3.9(a)(i2.9(a)(i) and 3.9(a)(ii2.9(a)(ii) of the Brainworks Company Disclosure Schedule, free and clear of all Encumbrances, except for (i) any lien for current taxes not yet due and payable, and (ii) minor liens that have arisen in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of any of the Brainworks Acquired Corporations. The Brainworks Acquired Corporations have a valid right to use, license and otherwise exploit all Proprietary Assets identified in Part 3.9(a)(iii2.9(a)(iii) of the Brainworks Company Disclosure Schedule. Except as set forth in Part 3.9(a)(iv2.9(a)(iv) of the Brainworks Company Disclosure Schedule, none of the Brainworks Acquired Corporations has developed jointly with any other Person any AAHoldings Entity Acquired Corporation Proprietary Asset that is material to the respective businesses business of the Brainworks Acquired Corporations with respect to which such other Person has any rights. Except as set forth in Part 3.9(a)(v2.9(a)(v) of the Brainworks Company Disclosure Schedule, there is no Brainworks Acquired Corporation Contract (with the exception of end user license agreements in the form previously delivered by Brainworks the Company to Parent or non-exclusive licenses to use the LLCCompany's data file format for integrated circuit design data) pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Brainworks Acquired Corporation Proprietary Asset. Part 2.9(a)(vi) of the Company Disclosure Schedule contains an accurate and complete list of each Person to whom the Company's data file formats for integrated circuit design data has been provided since the first shipment of the Company's MEBES 5000 product.
(b) The Brainworks Acquired Corporations have taken reasonable measures and precautions to protect and maintain the confidentiality, secrecy and value of all material Brainworks Acquired Corporation Proprietary Assets (except Brainworks Acquired Corporation Proprietary Assets whose value would be unimpaired by disclosure). Without limiting the generality of the foregoing, except as set forth in Part 2.9(b) of the Company Disclosure Schedule, (i) all current and former employees of the Acquired Corporations who are or were involved in, or who have contributed to, the creation or development of any material Acquired Corporation Proprietary Asset have executed and delivered to the Acquired Corporations an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Confidential Information and Invention Assignment Agreement previously delivered by the Company to Parent, and (ii) all current and former consultants and independent contractors to the Acquired Corporations who are or were involved in, or who have contributed to, the creation or development of any material Acquired Corporation Proprietary Asset have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Consultant Confidential Information and Invention Assignment Agreement previously delivered to Parent. No current or former employee, officer, director, stockholder, consultant or independent contractor has any right, claim or interest in or with respect to any Acquired Corporation Proprietary Asset.
(c) To Except as set forth in Part 2.9(c) of the Company Disclosure Schedule, to the best of the knowledge of Brainworks and Merger Subthe Company: (i) all patents, trademarks, service marks and copyrights held by any of the Brainworks Acquired Corporations are valid, enforceable and subsisting; (ii) none of the Brainworks Acquired Corporation Proprietary Assets and no Proprietary Asset that is currently being developed by any of the Brainworks Acquired Corporations (either by itself or with any other Person) infringes, misappropriates or conflicts with any Proprietary Asset owned or used by any other Person; (iii) none of the products that are or have been designed, created, developed, assembled, manufactured or sold by any of the Brainworks Acquired Corporations is infringing, misappropriating or making any unlawful or unauthorized use of any Proprietary Asset owned or used by any other Person, and except as set forth in Part 3.9(c) none of the Brainworks Disclosure Schedulesuch products has at any time infringed, misappropriated or made any unlawful or unauthorized use of, and none of the Brainworks Acquired Corporations has received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person; and (iv) no other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any material Brainworks Acquired Corporation Proprietary Asset.
(d) The Brainworks To the best of the knowledge of the Company, the Acquired Corporation Proprietary Assets constitute all the Proprietary Assets necessary to enable the Brainworks Acquired Corporations to conduct their respective businesses business in the manner in which such businesses are business has been and is being conducted. None Except as set forth in Part 2.9(d) of the Brainworks Company Disclosure Schedule, none of the Acquired Corporations has (i) licensed any of the material Brainworks Acquired Corporation Proprietary Assets to any Person (other than Parent) on an exclusive basis, or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any material Brainworks Acquired Corporation Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) Except as set forth in Part 3.9(e2.9(e)(i) of the Brainworks Company Disclosure Schedule, since July 31, 1995 (and, to the best of the Company's knowledge, since inception) none of the Brainworks Acquired Corporations has disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other PersonPerson of, of any Brainworks Acquired Corporation Source CodeCode or deposited into escrow any other Acquired Corporation Proprietary Asset. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any Person of any AAHoldings Entity Acquired Corporation Source CodeCode or the release from any escrow of any other Acquired Corporation Proprietary Asset. Part 3.10(a2.9(e)(ii) of the Brainworks Company Disclosure Schedule identifies each Contract pursuant to which the Brainworks Company has deposited or is required to deposit with an escrowholder or any other Person of any Brainworks Acquired Corporation Source Code, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Brainworks Acquired Corporation Source Code.
(f) To the best of the knowledge of the Company, except as set forth in Part 2.9(f)(i) of the Company Disclosure Schedule, each computer, computer program and other item of software (whether installed on a computer or on any other piece of equipment, including firmware) that is owned or used by any of the Acquired Corporations for their internal business operations is Year 2000 Compliant. To the best of the knowledge of the Company, except as set forth in Part 2.9(f)(ii) of the Company Disclosure Schedule, each computer program and other item of software that has been designed, developed, sold, licensed or otherwise made available to any Person by any of the Acquired Corporations is Year 2000 Compliant. To the best of the knowledge of the Company, except as set forth in Part 2.9(f)(iii) of the Company Disclosure Schedule, each of the Acquired Corporations has conducted sufficient Year 2000 compliance testing for each computer, computer program and item of software referred to in the preceding two sentences to be able to determine whether such computer, computer program and item of software is Year 2000 Compliant. For purposes of this Section 2.9, a computer, computer program or other item of software shall be deemed to be "Year 2000 Compliant" only if (i) the functions, calculations and other computing processes of such computer, program or software perform in a consistent and correct manner without interruption regardless of the date on which such functions, calculations and processes are actually performed and regardless of the date input to the applicable computer system (whether before, on or after January 1, 2000); (ii) such computer, program or software accepts, calculates, compares, sorts, extracts, sequences and otherwise processes date inputs and date values, and returns and displays date values, in a consistent and correct manner regardless of the dates used (whether before, on or after January 1, 2000); (iii) such computer, program or software accepts and responds to year input in a manner that resolves any ambiguities as to century in a defined, predetermined and appropriate manner; (iv) such computer, program or software stores and displays date information in ways that are unambiguous as to the determination of the century; and (v) such computer, program or software determines leap years in accordance with the following standard: (A) if dividing the year by 4 yields an integer, it is a leap year, except for years ending in 00, but (B) a year ending in 00 is a leap year if dividing it by 400 yields an integer.
(g) Except with respect to demonstration or trial copies, to the best of the knowledge of the Company, no product, system, program or software module designed, developed, sold, licensed or otherwise made available by any of the Acquired Corporations to any Person contains any "back door," "time bomb," "Trojan horse," "worm," "drop dead device," "virus" or other software routines or hardware components designed to permit unauthorized access or to disable or erase software, hardware or data without the consent of the user.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Applied Materials Inc /De)
Proprietary Assets. (a) Part 3.9(a)(i2.9(a)(i) of the Brainworks Disclosure Schedule sets forth, with respect to each Company Proprietary Asset owned by any of the Brainworks Corporations and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Other than unregistered trademarks, trade names and service marks (collectively, the "Unregistered Trademarks"), Part 3.9(a)(ii2.9(a)(ii) of the Brainworks Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by any of the Brainworks Corporations that are material to the respective businesses of the Brainworks Acquired Corporations. Part 3.9(a)(iii2.9(a)(ii) of the Brainworks Disclosure Schedule also discloses all Unregistered Trademarks that have been and are currently being used by the Acquired Corporations in the ordinary course of business. None of the Acquired Corporations have received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement or unlawful use of any Unregistered Trademark and to the best of the knowledge of the Company, the Acquired Corporations shall be entitled to use and will continue to use such Unregistered Trademarks on and after the Closing. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $10,000 with respect to, each Proprietary Asset that is licensed or otherwise made available to any of the Brainworks Acquired Corporations by any Person and is material to the respective businesses of the Brainworks Corporations (except for any Proprietary Asset that is licensed to any of the Brainworks Corporations such Acquired Corporation under any third party software license generally available to the publicpublic at a cost of less than $5,000), and identifies the Contract license agreement under which such Proprietary Asset is being licensed or otherwise made available to such AAHoldings EntityAcquired Corporation. The Brainworks Corporations have good Other than the Unregistered Trademarks identified in Part 2.9(a)(ii) of the Disclosure Schedule, each Acquired Corporation has good, valid and valid marketable title to all of the Brainworks Corporation Company Proprietary Assets identified in Parts 3.9(a)(i2.9(a)(i) and 3.9(a)(ii2.9(a)(ii) of the Brainworks Disclosure ScheduleSchedule owned by it, free and clear of all liens and other Encumbrances, except for (i) any lien for current taxes not yet due and payable, and (ii) minor liens that have arisen in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of any of the Brainworks Corporations. The Brainworks Corporations have has a valid right to use, license and otherwise exploit use all Proprietary Assets identified in Part 3.9(a)(iii2.9(a)(iii) of the Brainworks Disclosure ScheduleSchedule owned by it. Except as set forth in Part 3.9(a)(iv) None of the Brainworks Disclosure Schedule, none Acquired Corporations are obligated to make any payment to any Person for the use of any Company Proprietary Asset. None of the Brainworks Acquired Corporations has have developed jointly with any other Person any AAHoldings Entity Company Proprietary Asset that is material to the respective businesses of the Brainworks Corporations with respect to which such other Person has any rights. Except as set forth to the absence of registrations referenced in Part 3.9(a)(v2.9(a)(ii) of the Brainworks Disclosure Schedule, there is no Brainworks each Acquired Corporation Contract (with the exception of end user license agreements in the form previously delivered by Brainworks to the LLC) pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Brainworks Corporation Proprietary Asset.
(b) The Brainworks Corporations have taken reasonable all measures and precautions reasonably necessary to protect and maintain the confidentiality, confidentiality and secrecy and value of all material Brainworks Corporation Company Proprietary Assets (except Brainworks Corporation Company Proprietary Assets whose value would be unimpaired by disclosure).
public disclosure or Company Proprietary Assets that are trade secrets) and otherwise to maintain and protect the value of all Company Proprietary Assets. Each Acquired Corporation has taken all measures and precautions necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets that are trade secrets (cthe "Trade Secrets") To and otherwise to maintain and protect the best value of all Trade Secrets. None of the knowledge of Brainworks and Merger Sub: Acquired Corporations have disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) all patentsthe source code, trademarks, service marks and copyrights held by or any portion or aspect of the Brainworks Corporations are validsource code, enforceable and subsisting; of any Company Proprietary Asset, or (ii) none the object code, or any portion or aspect of the Brainworks Corporation object code, of any Company Proprietary Asset. None of the Company Proprietary Assets and no Proprietary Asset that is currently being developed by any of the Brainworks Corporations (either by itself or with any other Person) infringes, misappropriates infringes or conflicts with any Proprietary Asset owned or used by any other Person; (iii) none of the products that are or have been designed, created, developed, assembled, manufactured or sold by any of the Brainworks Corporations . Each Acquired Corporation is not infringing, misappropriating or making any unlawful or unauthorized use of any Proprietary Asset owned or used by any other Personof, and except as set forth in Part 3.9(c) of the Brainworks Disclosure Scheduleeach Acquired Corporation has not at any time infringed, none of the Brainworks Corporations has misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person; (iv) . To the best knowledge of the Company, no other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any material Brainworks Corporation Company Proprietary Asset.
. Each Company Proprietary Asset conforms in all material respects with any enforceable specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of each Acquired Corporation; and there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (dincluding each version thereof that has ever been licensed or otherwise made available by any of the Acquired Corporations to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation or statement made or provided by or on behalf of any of the Acquired Corporations, and, to the best of the knowledge of the Company, there is no basis for any such claim. Subject to Section 2.9(g) (as affected by Part 2.9(g) of the Disclosure Schedule), the Company has established adequate reserves on the Unaudited Interim Balance Sheet to cover all costs associated with any obligations that the Company may have with respect to the correction or repair of programming errors or other defects in the Company Proprietary Assets. The Brainworks Corporation Company Proprietary Assets constitute all the Proprietary Assets necessary to enable each of the Brainworks Acquired Corporations to conduct their its respective businesses business in the manner in which such businesses are business has been and is being conducted. None of the Brainworks Acquired Corporations has (i) have licensed any of the material Brainworks Corporation Company Proprietary Assets to any Person on an exclusive basis, or (ii) basis and none of the Acquired Corporations have entered into any covenant not to compete or Contract limiting its ability to exploit fully any material Brainworks Corporation of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
. All current and former employees of each of the Acquired Corporations have executed and delivered to the respective Acquired Corporation agreements (econtaining no exceptions to or exclusions from the scope of its coverage) Except that is substantially the same in all material respects as set forth to the forms of the Proprietary Information and Inventions Agreement, Employee Proprietary Information and Inventions Agreement, or Confidentiality and Proprietary Information Agreement previously delivered to Parent, and all current and former consultants and independent contractors to each of the Acquired Corporations have executed and delivered to such respective Acquired Corporation an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially the same in all material respects as to the form of the Company Independent Consultant Agreement previously delivered to Parent. The Company Proprietary Assets and all computer software programs, including operating systems, application programs, software tools, firmware and software imbedded in equipment of the Acquired Corporations, including both object code and source code versions thereof, are Year 2000 Compliant (as defined below) in all material respects and will not cease to be Year 2000 Compliant in all material respects at any time prior to, during or after the calendar year 2000 AD; provided, however, that no representation or warranty is made pursuant to this section with respect to any failure of the Company Proprietary Assets or such software programs to perform in accordance with the foregoing arising out of any error, failure, malfunction or incorrect result due to third party equipment, operating system software, third party tools, application or database software, or other third party products or materials (in each case, whether or not sold or licensed by Company). Part 3.9(e2.9(g) of the Brainworks Disclosure ScheduleSchedule describes the steps that the Company has taken, none and plans to take, in the review of its computer equipment and software applications used in its internal business operations (but not the operations of any other Person), with respect to the inability of its computerized systems to recognize and properly perform date-sensitive functions (the "Year 2000 Problem"). The Company has and is continuing to address the impact of the Brainworks Corporations has disclosed or delivered to any Person, or permitted Year 2000 Problem on the disclosure or delivery to any escrow agent or other Person, of any Brainworks Corporation Source Code. No event has occurred, Company Proprietary Assets and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any Person of any AAHoldings Entity Source Code. Part 3.10(a) of the Brainworks Disclosure Schedule identifies each Contract pursuant to which the Brainworks has deposited or is required to deposit with an escrowholder or any other Person of any Brainworks Corporation Source Code, its internal business computer systems and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Brainworks Corporation Source Codesoftware applications.
Appears in 1 contract
Proprietary Assets. (a) Part 3.9(a)(i2.11(a)(i) of the Brainworks Seller Disclosure Schedule sets forth, with respect to each Proprietary Asset owned by any of the Brainworks Corporations Seller and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 3.9(a)(ii2.11(a)(ii) of the Brainworks Seller Disclosure Schedule identifies and provides a brief description of all other each material Proprietary Assets Asset owned by any of the Brainworks Corporations Seller that are material to the respective businesses of the Brainworks Corporations. is not otherwise listed in Part 3.9(a)(iii2.11(a)(i) of the Brainworks Seller Disclosure Schedule. Part 2.11(a)(iii) of the Seller Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $10,000 with respect to, each Proprietary Asset included in the Assets that is licensed or otherwise made available to any of the Brainworks Corporations Seller by any Person and is material to the respective businesses of the Brainworks Corporations (except for any Proprietary Asset that is licensed to any of the Brainworks Corporations Seller under any third party software license generally available to the public), and identifies the Contract under which such Proprietary Asset is being licensed or otherwise made available to such AAHoldings Entitythe Seller. The Brainworks Corporations have Seller has good and valid title to all of the Brainworks Corporation Seller Proprietary Assets identified included in Parts 3.9(a)(i) and 3.9(a)(ii) of the Brainworks Disclosure ScheduleAssets, free and clear of all Encumbrances, except for (i) any lien for current taxes not yet due and payable, and (ii) minor liens that have arisen in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of any of the Brainworks CorporationsPermitted Liens. The Brainworks Corporations have Seller has a valid right to useuse (and in the case of patents, license the right to exclude the use by third parties and the right to sublicense), modify, manufacture, offer to sell, sell, import and otherwise exploit all Proprietary Assets identified in Part 3.9(a)(iii2.11(a)(iii) of the Brainworks Seller Disclosure ScheduleSchedule on an exclusive basis (except for any Proprietary Asset that is licensed to the Seller under any third party software license generally available to the public). Except as set forth The Seller is not obligated to make any payment to any Person for the manufacture, use, sale, import or other exploitation of any Seller Proprietary Asset included in Part 3.9(a)(iv) of the Brainworks Disclosure Schedule, none of the Brainworks Corporations Assets. The Seller has not developed jointly with any other Person any AAHoldings Entity Seller Proprietary Asset that is material to included in the respective businesses of the Brainworks Corporations Assets and with respect to which such other Person has any rights. Except as set forth in Part 3.9(a)(v) of the Brainworks Disclosure Schedule, there There is no Brainworks Corporation Assigned Contract (with the exception of end user license agreements in the form previously delivered by Brainworks to the LLC) pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Brainworks Corporation Seller Proprietary AssetAsset included in the Assets. No current or former employee, officer, director, stockholder, consultant or independent contractor has any right, claim or interest in or with respect to any Seller Proprietary Asset included in the Assets.
(b) The Brainworks Corporations have Seller has taken reasonable measures and precautions to protect and maintain the confidentiality, secrecy and value confidentiality of all material Brainworks Corporation Seller Proprietary Assets included in the Assets (except Brainworks Corporation Seller Proprietary Assets whose value would be unimpaired by disclosure). Without limiting the generality of the foregoing, (i) each current or former employee of the Seller who is or was involved in, or who has contributed to, the creation or development of any Seller Proprietary Asset included in the Assets has executed and delivered to the Seller an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Employee Invention Assignment and Confidential Information Agreement previously delivered by the Seller to the Purchaser, and (ii) each current and former consultant and independent contractor to the Seller who is or was involved in, or who has contributed to, the creation or development of any Seller Proprietary Asset included in the Assets has executed and delivered to the Seller an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Consulting Agreement previously delivered to the Purchaser.
(c) To the best of the knowledge of Brainworks and Merger Sub: (i) all All patents, trademarks, service marks and copyrights held by any the Seller are subsisting and, to the best of the Brainworks Corporations are valid, enforceable and subsisting; (ii) none knowledge of the Brainworks Corporation Seller, are valid and enforceable, None of the Seller Proprietary Assets included in the Assets and no Proprietary Asset included in the Assets that is currently being developed by any of the Brainworks Corporations Seller (either by itself or with any other Person) infringes, infringes or misappropriates or conflicts with any Proprietary Asset owned or used by any other Person; (iii) none provided however that the foregoing representation is only to the best of the products that are or have been designed, created, developed, assembled, manufactured or sold by any knowledge of the Brainworks Corporations is infringing, misappropriating or making any unlawful or unauthorized use of any Proprietary Asset owned or used by any other Person, and except as set forth in Part 3.9(c) of the Brainworks Disclosure Schedule, none of the Brainworks Corporations Seller with respect to patent infringement. The Seller has never received any notice or other communication (in writing or or, to the best of the knowledge of the Seller, otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person; (iv) . To the best of the knowledge of the Seller, no other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any material Brainworks Corporation Seller Proprietary Asset. The Seller is not aware of any facts that would lead to a reasonable inference that there is a significant likelihood that any Proprietary Asset included in the Assets is invalid or unenforceable.
(d) The Brainworks Corporation Proprietary Assets constitute all the Proprietary Assets necessary to enable the Brainworks Corporations to conduct their respective businesses in the manner in which such businesses are being conducted. None of the Brainworks Corporations Seller has not (i) licensed any of the material Brainworks Corporation Seller Proprietary Assets included in the Assets to any Person on an exclusive basis, or (ii) entered into any covenant not to compete or Contract limiting its or purporting to limit the ability of the Seller to exploit fully any material Brainworks Corporation Seller Proprietary Assets included in the Assets or to transact business in any market or geographical area or with any Person.
(e) Except as set forth With respect to each patent, patent application and copyright included in Part 3.9(ethe Assets held or purported to be held by the Seller: (i) no Proceeding is pending or, to the best of the Brainworks Disclosure Schedule, none knowledge of the Brainworks Corporations Seller, threatened, nor has disclosed any claim or delivered to any Persondemand been made, which challenges or permitted challenged the disclosure legality, validity, enforceability or delivery to any escrow agent use by the Seller of such patent, patent application or copyright; and (ii) all maintenance, annuity and other Person, of any Brainworks Corporation Source Code. No event has occurred, fees have been fully paid and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any Person of any AAHoldings Entity Source Code. Part 3.10(a) of the Brainworks Disclosure Schedule identifies each Contract pursuant to which the Brainworks has deposited or is required to deposit with an escrowholder or any other Person of any Brainworks Corporation Source Code, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Brainworks Corporation Source Codeall filings have been properly made.
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Proprietary Assets. (a) Part 3.9(a)(i2.9(a)(i) of the Brainworks i2 Telecom Disclosure Schedule sets forth, with respect to each Proprietary Asset owned by any of the Brainworks Corporations i2 Telecom Entities and registered with any Governmental Body or for which an application has been filed with any Governmental Body, : (i) a brief description of such Proprietary Asset, ; and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 3.9(a)(ii2.9(a)(ii) of the Brainworks i2 Telecom Disclosure Schedule identifies and provides a brief description of all other Proprietary Assets owned by any of the Brainworks Corporations i2 Telecom Entities that are material to the respective businesses of the Brainworks Corporationsi2 Telecom Entities. Part 3.9(a)(iii2.9(a)(iii) of the Brainworks i2 Telecom Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $10,000 10,000.00 with respect to, each Proprietary Asset that is licensed or otherwise made available to any of the Brainworks Corporations i2 Telecom Entities by any Person and is material to the respective businesses of the Brainworks Corporations i2 Telecom Entities (except for any Proprietary Asset that is licensed to any of the Brainworks Corporations i2 Telecom Entities under any third party software license generally available to the public), and identifies the Contract under which such Proprietary Asset is being licensed or otherwise made available to such AAHoldings i2 Telecom Entity. The Brainworks Corporations i2 Telecom Entities have good and valid title to all of the Brainworks Corporation i2 Telecom Entity Proprietary Assets identified in Parts 3.9(a)(i2.9(a)(i) and 3.9(a)(ii2.9(a)(ii) of the Brainworks i2 Telecom Disclosure Schedule, free and clear of all Encumbrances, except for for: (i) any lien for current taxes not yet due and payable, ; and (ii) minor liens that have arisen in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of any of the Brainworks Corporationsi2 Telecom Entities. The Brainworks Corporations i2 Telecom Entities have a valid right to use, license and otherwise exploit all Proprietary Assets identified in Part 3.9(a)(iii2.9(a)(iii) of the Brainworks i2 Telecom Disclosure Schedule. Except as set forth in Part 3.9(a)(iv2.9(a)(iv) of the Brainworks i2 Telecom Disclosure Schedule, none of the Brainworks Corporations i2 Telecom Entities has developed jointly with any other Person any AAHoldings i2 Telecom Entity Proprietary Asset that is material to the respective businesses of the Brainworks Corporations i2 Telecom Entities with respect to which such other Person has any rights. Except as set forth in Part 3.9(a)(v2.9(a)(v) of the Brainworks i2 Telecom Disclosure Schedule, there is no Brainworks Corporation i2 Telecom Entity Contract (with the exception of end user license agreements in the form previously delivered by Brainworks to the LLC) pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Brainworks Corporation i2 Telecom Entity Proprietary Asset.
(b) The Brainworks Corporations i2 Telecom Entities have taken reasonable measures and precautions to protect and maintain the confidentiality, secrecy and value of all material Brainworks Corporation i2 Telecom Entity Proprietary Assets (except Brainworks Corporation i2 Telecom Entity Proprietary Assets whose which value would be unimpaired by disclosure).
(c) To the best of the knowledge of Brainworks and Merger Subi2 Telecom: (i) all patents, trademarks, service marks and copyrights held by any of the Brainworks Corporations i2 Telecom Entities are valid, enforceable and subsisting; (ii) none of the Brainworks Corporation i2 Telecom Entity Proprietary Assets and no Proprietary Asset that is currently being developed by any of the Brainworks Corporations i2 Telecom Entities (either by itself or with any other Person) infringes, misappropriates or conflicts with any Proprietary Asset owned or used by any other Person; (iii) none of the products that are or have been designed, created, developed, assembled, manufactured or sold by any of the Brainworks Corporations i2 Telecom Entities is infringing, misappropriating or making any unlawful or unauthorized use of any Proprietary Asset owned or used by any other Person, and except as set forth in Part 3.9(c2.8(c) of the Brainworks i2 Telecom Disclosure Schedule, none of the Brainworks Corporations i2 Telecom Entities has received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person; and (iv) no other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any material Brainworks Corporation i2 Telecom Entity Proprietary Asset.
(d) The Brainworks Corporation i2 Telecom Entity Proprietary Assets constitute all the Proprietary Assets necessary to enable the Brainworks Corporations i2 Telecom Entities to conduct their respective businesses in the manner in which such businesses are being conducted. None of the Brainworks Corporations has i2 Telecom Entities has: (i) licensed any of the material Brainworks Corporation i2 Telecom Entity Proprietary Assets to any Person on an exclusive basis, ; or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any material Brainworks Corporation i2 Telecom Entity Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) Except as set forth in Part 3.9(e2.9(e) of the Brainworks i2 Telecom Disclosure Schedule, none of the Brainworks Corporations i2 Telecom Entities has disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other Person, of any Brainworks Corporation i2 Telecom Entity Source Code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any Person of any AAHoldings i2 Telecom Entity Source Code. Part 3.10(a2.10(a) of the Brainworks i2 Telecom Disclosure Schedule identifies each Contract pursuant to which the Brainworks i2 Telecom has deposited or is required to deposit with an escrowholder or any other Person of any Brainworks Corporation i2 Telecom Entity Source Code, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Brainworks Corporation i2 Telecom Entity Source Code.
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Proprietary Assets. (a) Part 3.9(a)(i2.9(a)(i) of the Brainworks Company Disclosure Schedule sets forth, with respect to each Proprietary Asset owned by any of the Brainworks Acquired Corporations and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 3.9(a)(ii2.9(a)(ii) of the Brainworks Company Disclosure Schedule identifies and provides a brief description of all other each Proprietary Assets Asset owned by any of the Brainworks Acquired Corporations that are is material to the respective businesses business of the Brainworks Acquired Corporations. Part 3.9(a)(iii2.9(a)(iii) of the Brainworks Company Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $10,000 with respect to, each Proprietary Asset that is licensed or otherwise made available to any of the Brainworks Acquired Corporations by any Person and is material to the respective businesses business of the Brainworks Acquired Corporations (except for any Proprietary Asset that is licensed to any of the Brainworks Corporations Acquired Corporation under any third party software license generally available to the public), and identifies the Contract under which such Proprietary Asset is being licensed or otherwise made available to such AAHoldings EntityAcquired Corporation. The Brainworks Acquired Corporations have good and valid title to all of the Brainworks Acquired Corporation Proprietary Assets identified or required to be identified in Parts 3.9(a)(i2.9(a)(i) and 3.9(a)(ii2.9(a)(ii) of the Brainworks Company Disclosure Schedule, free and clear of all Encumbrances, except for (i) any lien for current taxes not yet due and payable, and (ii) minor liens that have arisen in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value of the assets Acquired Corporation Proprietary Assets subject thereto or materially impair the operations of any either of the Brainworks Acquired Corporations. The Brainworks Acquired Corporations have a valid right to use, license and otherwise exploit all Proprietary Assets identified in Part 3.9(a)(iii2.9(a)(iii) of the Brainworks Company Disclosure Schedule. Except as set forth in Part 3.9(a)(iv2.9(a)(iv) of the Brainworks Company Disclosure Schedule, none of the Brainworks Acquired Corporations has developed jointly with any other Person any AAHoldings Entity Acquired Corporation Proprietary Asset that is material to the respective businesses business of the Brainworks Acquired Corporations and with respect to which such other Person has any rights. Except as set forth in Part 3.9(a)(v2.9(a)(v) of the Brainworks Company Disclosure Schedule, there is no Brainworks Acquired Corporation Contract (with the exception of end user license agreements in the form previously delivered by Brainworks to the LLC) pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Brainworks Corporation Proprietary Asset.
(b) The Brainworks Corporations have taken reasonable measures and precautions to protect and maintain the confidentiality, secrecy and value of all material Brainworks Corporation Proprietary Assets (except Brainworks Corporation Proprietary Assets whose value would be unimpaired by disclosure).
(c) To the best of the knowledge of Brainworks and Merger Sub: (i) all patents, trademarks, service marks and copyrights held by any of the Brainworks Corporations are valid, enforceable and subsisting; (ii) none of the Brainworks Corporation Proprietary Assets and no Proprietary Asset that is currently being developed by any of the Brainworks Corporations (either by itself or with any other Person) infringes, misappropriates or conflicts with any Proprietary Asset owned or used by any other Person; (iii) none of the products that are or have been designed, created, developed, assembled, manufactured or sold by any of the Brainworks Corporations is infringing, misappropriating or making any unlawful or unauthorized use of any Proprietary Asset owned or used by any other Person, and except as set forth in Part 3.9(c) of the Brainworks Disclosure Schedule, none of the Brainworks Corporations has received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person; (iv) no other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any material Brainworks Corporation Proprietary Asset.
(d) The Brainworks Corporation Proprietary Assets constitute all the Proprietary Assets necessary to enable the Brainworks Corporations to conduct their respective businesses in the manner in which such businesses are being conducted. None of the Brainworks Corporations has (i) licensed any of the material Brainworks Corporation Proprietary Assets to any Person on an exclusive basis, or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any material Brainworks Corporation Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) Except as set forth in Part 3.9(e) of the Brainworks Disclosure Schedule, none of the Brainworks Corporations has disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other Person, of any Brainworks Corporation Source Code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any Person of any AAHoldings Entity Source Code. Part 3.10(a) of the Brainworks Disclosure Schedule identifies each Contract pursuant to which the Brainworks has deposited or is required to deposit with an escrowholder or any other Person of any Brainworks Corporation Source Code, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Brainworks Corporation Source Code.has
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Proprietary Assets. (a) Part 3.9(a)(i2.12(a)(i) of the Brainworks Disclosure Schedule sets forth, with respect to each Acquired Corporation Proprietary Asset owned by any of the Brainworks Corporations and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 3.9(a)(ii2.12(a)(ii) of the Brainworks Disclosure Schedule identifies and provides a brief description of all other Acquired Corporation Proprietary Assets owned by any either of the Brainworks Acquired Corporations that are material to the respective businesses of the Brainworks Corporationstheir business. Part 3.9(a)(iii2.12(a)(iii) of the Brainworks Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $10,000 with respect to, each Proprietary Asset that is licensed or otherwise made available to any either of the Brainworks Acquired Corporations by any Person and is material to the respective businesses of the Brainworks Corporations (except for any Proprietary Asset that is licensed to any either of the Brainworks Acquired Corporations under any third party software license generally available to the publicpublic at a cost of less than $10,000), and identifies the Contract license agreement under which such Proprietary Asset is being licensed or otherwise made available to such AAHoldings EntityAcquired Corporation. The Brainworks Except as set forth in Part 2.12(a)(iv) of the Disclosure Schedule, the Acquired Corporations have good good, valid and valid marketable title to all of the Brainworks Acquired Corporation Proprietary Assets identified in Parts 3.9(a)(i2.12(a)(i) and 3.9(a)(ii2.12(a)(ii) of the Brainworks Disclosure Schedule, free and clear of all liens and other Encumbrances, except for (i) any lien for current taxes not yet due and payable, and (ii) minor liens that have arisen in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of any of the Brainworks Corporations. The Brainworks Corporations have a valid right to use, license and otherwise exploit use all Proprietary Assets identified in Part 3.9(a)(iii2.12(a)(iii) of the Brainworks Disclosure Schedule. Except as set forth in Part 3.9(a)(iv2.12(a)(v) of the Brainworks Disclosure Schedule, none neither of the Brainworks Acquired Corporations is obligated to make any payment to any Person for the use of any Acquired Corporation Proprietary Asset. Except as set forth in Part 2.12(a)(vi) of the Disclosure Schedule, neither of the Acquired Corporations has developed jointly with any other Person (other than the other Acquired Corporation) any AAHoldings Entity Acquired Corporation Proprietary Asset that is material to the respective businesses of the Brainworks Corporations with respect to which such other Person has any rights. Except as set forth in Part 3.9(a)(v) of the Brainworks Disclosure Schedule, there is no Brainworks Corporation Contract (with the exception of end user license agreements in the form previously delivered by Brainworks to the LLC) pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Brainworks Corporation Proprietary Asset.
(b) The Brainworks Corporations have Company has taken all commercially reasonable measures and precautions necessary to protect and maintain the confidentiality, confidentiality and secrecy and value of all material Brainworks Corporation Proprietary Assets (except Brainworks Corporation Proprietary Assets whose value would be unimpaired by disclosure).
(c) To the best of the knowledge of Brainworks and Merger Sub: (i) all patents, trademarks, service marks and copyrights held by any of the Brainworks Corporations are valid, enforceable and subsisting; (ii) none of the Brainworks Corporation Proprietary Assets and no Proprietary Asset that is currently being developed by any of the Brainworks Corporations (either by itself or with any other Person) infringes, misappropriates or conflicts with any Proprietary Asset owned or used by any other Person; (iii) none of the products that are or have been designed, created, developed, assembled, manufactured or sold by any of the Brainworks Corporations is infringing, misappropriating or making any unlawful or unauthorized use of any Proprietary Asset owned or used by any other Person, and except as set forth in Part 3.9(c) of the Brainworks Disclosure Schedule, none of the Brainworks Corporations has received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person; (iv) no other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any material Brainworks Corporation Proprietary Asset.
(d) The Brainworks Corporation Proprietary Assets constitute all the Proprietary Assets necessary to enable the Brainworks Corporations to conduct their respective businesses in the manner in which such businesses are being conducted. None of the Brainworks Corporations has (i) licensed any of the material Brainworks Corporation Proprietary Assets to any Person on an exclusive basis, or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any material Brainworks Corporation Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) Except as set forth in Part 3.9(e) of the Brainworks Disclosure Schedule, none of the Brainworks Corporations has disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other Person, of any Brainworks Corporation Source Code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any Person of any AAHoldings Entity Source Code. Part 3.10(a) of the Brainworks Disclosure Schedule identifies each Contract pursuant to which the Brainworks has deposited or is required to deposit with an escrowholder or any other Person of any Brainworks Corporation Source Code, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Brainworks Corporation Source Code.Acquired
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Proprietary Assets. (a) Part 3.9(a)(i2.9(a)(i) of the Brainworks Company Disclosure Schedule sets forth, with respect to each Proprietary Asset owned by any of the Brainworks Acquired Corporations and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 3.9(a)(ii2.9(a)(ii) of the Brainworks Company Disclosure Schedule identifies and provides a brief description of all other each Proprietary Assets Asset owned by any of the Brainworks Acquired Corporations that are is material to the respective businesses business of the Brainworks Acquired Corporations. Part 3.9(a)(iii2.9(a)(iii) of the Brainworks Company Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $10,000 with respect to, each Proprietary Asset that is licensed or otherwise made available to any of the Brainworks Acquired Corporations by any Person Person, and is material to the respective businesses business of the Brainworks Acquired Corporations (except for any Proprietary Asset that is licensed to any of the Brainworks Corporations Acquired Corporation under any third party software license generally available to the public), and identifies the Contract under which such Proprietary Asset is being licensed or otherwise made available to such AAHoldings Entity. The Brainworks Acquired Corporations have good and valid title to all of the Brainworks Acquired Corporation Proprietary Assets identified or required to be identified in Parts 3.9(a)(i2.9(a)(i) and 3.9(a)(ii2.9(a)(ii) of the Brainworks Company Disclosure Schedule, free and clear of all Encumbrances, except for (i) any lien for current taxes not yet due and payable, and (ii) minor liens that have arisen in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value of the assets Acquired Corporation Proprietary Asset subject thereto or materially impair the operations of any of the Brainworks Acquired Corporations. The Brainworks Acquired Corporations have a valid right to use, license and otherwise exploit all Acquired Corporation Proprietary Assets identified in Part 3.9(a)(iii) Assets, and have the sole and exclusive right to use of the Brainworks Disclosure Schedulename "Fogdog". Except as set forth in Part 3.9(a)(iv2.9(a)(iv) of the Brainworks Company Disclosure Schedule, none of the Brainworks Acquired Corporations has developed jointly with any other Person any AAHoldings Entity Acquired Corporation Proprietary Asset that is material to the respective businesses of the Brainworks Corporations with respect to which such other Person has any rights. Except as set forth in Part 3.9(a)(v) of the Brainworks Disclosure Schedule, there There is no Brainworks Acquired Corporation Contract (with the exception of end user license agreements in the form previously delivered by Brainworks the Company to Parent) that is material to the LLC) business of the Acquired Corporations pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Brainworks Acquired Corporation Proprietary Asset.
(b) The Brainworks Acquired Corporations have taken reasonable measures and precautions to protect and maintain the confidentiality, secrecy and value of all material Brainworks Acquired Corporation Proprietary Assets (except Brainworks Acquired Corporation Proprietary Assets whose value would be unimpaired by disclosure).
(c) To . Without limiting the best generality of the knowledge of Brainworks and Merger Sub: (i) all patentsforegoing, trademarks, service marks and copyrights held by any of the Brainworks Corporations are valid, enforceable and subsisting; (ii) none of the Brainworks Corporation Proprietary Assets and no Proprietary Asset that is currently being developed by any of the Brainworks Corporations (either by itself or with any other Person) infringes, misappropriates or conflicts with any Proprietary Asset owned or used by any other Person; (iii) none of the products that are or have been designed, created, developed, assembled, manufactured or sold by any of the Brainworks Corporations is infringing, misappropriating or making any unlawful or unauthorized use of any Proprietary Asset owned or used by any other Person, and except as set forth in Part 3.9(c2.9(b) of the Brainworks Company Disclosure Schedule, none of the Brainworks Corporations has received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person; (iv) no other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any material Brainworks Corporation Proprietary Asset.
(d) The Brainworks Corporation Proprietary Assets constitute all the Proprietary Assets necessary to enable the Brainworks Corporations to conduct their respective businesses in the manner in which such businesses are being conducted. None of the Brainworks Corporations has (i) licensed any of the material Brainworks Corporation Proprietary Assets to any Person on an exclusive basis, or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any material Brainworks Corporation Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) Except as set forth in Part 3.9(e) of the Brainworks Disclosure Schedule, none of the Brainworks Corporations has disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other Person, of any Brainworks Corporation Source Code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any Person of any AAHoldings Entity Source Code. Part 3.10(a) of the Brainworks Disclosure Schedule identifies each Contract pursuant to which the Brainworks has deposited or is required to deposit with an escrowholder or any other Person of any Brainworks Corporation Source Code, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Brainworks Corporation Source Code.each
Appears in 1 contract
Sources: Merger Agreement (Global Sports Inc)
Proprietary Assets. (a) Part 3.9(a)(i2.9(a)(i) of the Brainworks Disclosure Schedule sets forth, with respect to each Company Proprietary Asset owned by any of the Brainworks Corporations and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Other than unregistered trademarks, trade names and service marks (collectively, the "Unregistered Trademarks"), Part 3.9(a)(ii2.9(a)(ii) of the Brainworks Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by any of the Brainworks Corporations that are material to the respective businesses of the Brainworks Acquired Corporations. Part 3.9(a)(iii2.9(a)(ii) of the Brainworks Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $10,000 with respect to, each Proprietary Asset that is licensed or otherwise made available to any of the Brainworks Corporations by any Person and is material to the respective businesses of the Brainworks Corporations (except for any Proprietary Asset that is licensed to any of the Brainworks Corporations under any third party software license generally available to the public), and identifies the Contract under which such Proprietary Asset is being licensed or otherwise made available to such AAHoldings Entity. The Brainworks Corporations have good and valid title to also discloses all of the Brainworks Corporation Proprietary Assets identified in Parts 3.9(a)(i) and 3.9(a)(ii) of the Brainworks Disclosure Schedule, free and clear of all Encumbrances, except for (i) any lien for current taxes not yet due and payable, and (ii) minor liens Unregistered Trademarks that have arisen been and are currently being used by the Acquired Corporations in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value business. None of the assets subject thereto or materially impair the operations of any of the Brainworks Corporations. The Brainworks Acquired Corporations have a valid right to use, license and otherwise exploit all Proprietary Assets identified in Part 3.9(a)(iii) of the Brainworks Disclosure Schedule. Except as set forth in Part 3.9(a)(iv) of the Brainworks Disclosure Schedule, none of the Brainworks Corporations has developed jointly with any other Person any AAHoldings Entity Proprietary Asset that is material to the respective businesses of the Brainworks Corporations with respect to which such other Person has any rights. Except as set forth in Part 3.9(a)(v) of the Brainworks Disclosure Schedule, there is no Brainworks Corporation Contract (with the exception of end user license agreements in the form previously delivered by Brainworks to the LLC) pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Brainworks Corporation Proprietary Asset.
(b) The Brainworks Corporations have taken reasonable measures and precautions to protect and maintain the confidentiality, secrecy and value of all material Brainworks Corporation Proprietary Assets (except Brainworks Corporation Proprietary Assets whose value would be unimpaired by disclosure).
(c) To the best of the knowledge of Brainworks and Merger Sub: (i) all patents, trademarks, service marks and copyrights held by any of the Brainworks Corporations are valid, enforceable and subsisting; (ii) none of the Brainworks Corporation Proprietary Assets and no Proprietary Asset that is currently being developed by any of the Brainworks Corporations (either by itself or with any other Person) infringes, misappropriates or conflicts with any Proprietary Asset owned or used by any other Person; (iii) none of the products that are or have been designed, created, developed, assembled, manufactured or sold by any of the Brainworks Corporations is infringing, misappropriating or making any unlawful or unauthorized use of any Proprietary Asset owned or used by any other Person, and except as set forth in Part 3.9(c) of the Brainworks Disclosure Schedule, none of the Brainworks Corporations has received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation infringement or unlawful or unauthorized use ofof any Unregistered Trademark and to the knowledge of the Company, the Acquired Corporations shall be entitled to use and will continue to use such Unregistered Trademarks on and after the Closing. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to any of the Acquired Corporations by any Person (except for any Proprietary Asset owned or used by that is licensed to such Acquired Corporation under any other Person; (iv) no other Person is infringing, misappropriating or making any unlawful or unauthorized use ofthird party software license generally available to the public at a cost of less than $5,000), and no identifies the license agreement under which such Proprietary Asset owned or used by any other Person infringes or conflicts withis being licensed to such Acquired Corporation. Other than the Unregistered Trademarks identified in Part 2.9(a)(ii) of the Disclosure Schedule, any material Brainworks each Acquired Corporation Proprietary Asset.
(d) The Brainworks Corporation has good, valid and marketable title to all of the Company Proprietary Assets constitute identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule owned by it, free and clear of all the liens and other Encumbrances, and has a valid right to use all Proprietary Assets necessary to enable the Brainworks Corporations to conduct their respective businesses identified in the manner in which such businesses are being conducted. None Part 2.9(a)(iii) of the Brainworks Corporations has (i) licensed any of the material Brainworks Corporation Proprietary Assets to any Person on an exclusive basis, or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any material Brainworks Corporation Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) Disclosure Schedule owned by it. Except as set forth in Part 3.9(e2.9(a)(iv), none of the Acquired Corporations are obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(v) of the Brainworks Disclosure Schedule, none of the Brainworks Acquired Corporations have developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has disclosed or delivered any rights.
(b) Except as to any Person, or permitted the disclosure or delivery to any escrow agent or other Person, absence of any Brainworks Corporation Source Code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result registrations referenced in the disclosure or delivery to any Person of any AAHoldings Entity Source Code. Part 3.10(a2.9(a)(ii) of the Brainworks Disclosure Schedule identifies Schedule, each Contract pursuant Acquired Corporation has taken all measures and precautions reasonably necessary to which protect and maintain the Brainworks has deposited confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure or is required Company Proprietary Assets that are trade secrets) and otherwise to deposit with an escrowholder or any other Person of any Brainworks Corporation Source Code, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Brainworks Corporation Source Code.maintain
Appears in 1 contract
Proprietary Assets. (a) Part 3.9(a)(i2.9(a)(i) of the Brainworks Company Disclosure Schedule sets forth, with respect to each Proprietary Asset owned by any of the Brainworks Acquired Corporations and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 3.9(a)(ii2.9(a)(ii) of the Brainworks Company Disclosure 13. <PAGE> Schedule identifies and provides a brief description of all other each Proprietary Assets Asset owned by any of the Brainworks Acquired Corporations that are is material to the respective businesses business of the Brainworks Acquired Corporations. Part 3.9(a)(iii2.9(a)(iii) of the Brainworks Company Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $10,000 with respect to, each Proprietary Asset that is licensed or otherwise made available to any of the Brainworks Acquired Corporations by any Person and is material to the respective businesses business of the Brainworks Acquired Corporations (except for any Proprietary Asset that is licensed to any of the Brainworks Corporations Acquired Corporation under any third party software license generally available to the public), and identifies the Contract under which such Proprietary Asset is being licensed or otherwise made available to such AAHoldings EntityAcquired Corporation. The Brainworks Acquired Corporations have good and valid title to all of the Brainworks Acquired Corporation Proprietary Assets identified or required to be identified in Parts 3.9(a)(i2.9(a)(i) and 3.9(a)(ii2.9(a)(ii) of the Brainworks Company Disclosure Schedule, free and clear of all Encumbrances, except for (i) any lien for current taxes not yet due and payable, and (ii) minor liens that have arisen in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value of the assets Acquired Corporation Proprietary Asset subject thereto or materially impair the operations of any either of the Brainworks Acquired Corporations. The Brainworks Acquired Corporations have a valid right to use, license and otherwise exploit all Proprietary Assets identified or required to be identified in Part 3.9(a)(iii2.9(a)(iii) of the Brainworks Company Disclosure Schedule. Except as set forth in Part 3.9(a)(iv) None of the Brainworks Disclosure Schedule, none of the Brainworks Acquired Corporations has developed jointly with any other Person any AAHoldings Entity Acquired Corporation Proprietary Asset that is material to the respective businesses business of the Brainworks Acquired Corporations and with respect to which such other Person has any rights. Except as set forth in Part 3.9(a)(v) of the Brainworks Disclosure Schedule, there There is no Brainworks Acquired Corporation Contract (with the exception of end user license agreements, support agreements, consulting agreements and other customer contracts in the form forms previously delivered by Brainworks the Company to the LLCParent) pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Brainworks Acquired Corporation Proprietary Asset.
(b) The Brainworks Corporations have taken reasonable measures and precautions to protect and maintain the confidentiality, secrecy and value of all material Brainworks Corporation Proprietary Assets (except Brainworks Corporation Proprietary Assets whose value would be unimpaired by disclosure).
(c) To the best of the knowledge of Brainworks and Merger Sub: (i) all patents, trademarks, service marks and copyrights held by any of the Brainworks Corporations are valid, enforceable and subsisting; (ii) none of the Brainworks Corporation Proprietary Assets and no Proprietary Asset that is currently being developed by any of the Brainworks Corporations (either by itself or with any other Person) infringes, misappropriates or conflicts with any Proprietary Asset owned or used by any other Person; (iii) none of the products that are or have been designed, created, developed, assembled, manufactured or sold by any of the Brainworks Corporations is infringing, misappropriating or making any unlawful or unauthorized use of any Proprietary Asset owned or used by any other Person, and except as set forth in Part 3.9(c) of the Brainworks Disclosure Schedule, none of the Brainworks Corporations has received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person; (iv) no other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any material Brainworks Corporation Proprietary Asset.
(d) The Brainworks Corporation Proprietary Assets constitute all the Proprietary Assets necessary to enable the Brainworks Corporations to conduct their respective businesses in the manner in which such businesses are being conducted. None of the Brainworks Corporations has (i) licensed any of the material Brainworks Corporation Proprietary Assets to any Person on an exclusive basis, or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any material Brainworks Corporation Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) Except as set forth in Part 3.9(e) of the Brainworks Disclosure Schedule, none of the Brainworks Corporations has disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other Person, of any Brainworks Corporation Source Code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any Person of any AAHoldings Entity Source Code. Part 3.10(a) of the Brainworks Disclosure Schedule identifies each Contract pursuant to which the Brainworks has deposited or is required to deposit with an escrowholder or any other Person of any Brainworks Corporation Source Code, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Brainworks Corporation Source Code.
Appears in 1 contract
Sources: Arrangement Agreement
Proprietary Assets. (a) Part 3.9(a)(i2.9(a)(i) of the Brainworks Company Disclosure Schedule sets forth, with respect to each Proprietary Asset owned by any of the Brainworks Acquired Corporations and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 3.9(a)(ii2.9(a)(ii) of the Brainworks Company Disclosure Schedule identifies and provides a brief description of all other Proprietary Assets owned by any of the Brainworks Acquired Corporations that are material to the respective businesses business of the Brainworks Acquired Corporations. Part 3.9(a)(iii2.9(a)(iii) of the Brainworks Company Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $10,000 with respect to, each Proprietary Asset that is licensed or otherwise made available to any of the Brainworks Acquired Corporations by any Person and is material to the respective businesses business of the Brainworks Acquired Corporations (except for any Proprietary Asset that is licensed to any of the Brainworks Acquired Corporations under any third party software license generally available to the public), and identifies the Contract under which such Proprietary Asset is being licensed or otherwise made available to such AAHoldings EntityAcquired Corporation. The Brainworks Acquired Corporations have good good, valid and valid marketable title to all of the Brainworks Acquired Corporation Proprietary Assets identified in Parts 3.9(a)(i2.9(a)(i) and 3.9(a)(ii2.9(a)(ii) of the Brainworks Company Disclosure Schedule, free and clear of all Encumbrances, except for (i) any lien for current taxes not yet due and payable, and (ii) minor liens that have arisen in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of any either of the Brainworks Acquired Corporations. The Brainworks Acquired Corporations have a valid right to use, license and otherwise exploit all Proprietary Assets identified in Part 3.9(a)(iii2.9(a)(iii) of the Brainworks Company Disclosure Schedule. Except as set forth in Part 3.9(a)(iv2.9(a)(iv) of the Brainworks Company Disclosure Schedule, none neither of the Brainworks Acquired Corporations has developed jointly with any other Person any AAHoldings Entity Acquired Corporation Proprietary Asset that is material to the respective businesses business of the Brainworks Acquired Corporations with respect to which such other Person has any rights. Except as set forth in Part 3.9(a)(v2.9(a)(v) of the Brainworks Company Disclosure Schedule, there is no Brainworks Acquired Corporation Contract (with the exception of end user license agreements in the form previously delivered by Brainworks the Company to the LLCParent) pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Brainworks Acquired Corporation Proprietary Asset. Without limiting the generality of the foregoing, no Person has any right or license to use, sell, manufacture or cause to be manufactured any product embodying any invention or discovery made, conceived or actually reduced to practice in connection with the performance of any Contract, except that the distributors of the Acquired Corporations have the non-exclusive right to sell products manufactured by the Acquired Corporations pursuant to their distribution agreements with the Acquired Corporations.
(b) The Brainworks Acquired Corporations have taken reasonable measures and precautions to protect and maintain the confidentiality, secrecy and value of all material Brainworks Acquired Corporation Proprietary Assets (except Brainworks Acquired Corporation Proprietary Assets whose value would be unimpaired by public disclosure). No current or former officer, director, stockholder, employee, consultant or independent contractor has any right, claim or interest in or with respect to any Acquired Corporation Proprietary Asset.
(c) To the best of the knowledge of Brainworks and Merger Sub: (i) the Company, all patents, trademarks, service marks and copyrights that are registered with any Governmental Body and held by any either of the Brainworks Acquired Corporations are valid, enforceable valid and subsisting; (ii) . To the best of the knowledge of the Company, none of the Brainworks Acquired Corporation Proprietary Assets and no Proprietary Asset that is currently being developed by any either of the Brainworks Acquired Corporations (either by itself or with any other Person) infringes, misappropriates or conflicts with any Proprietary Asset owned or used by any other Person; (iii) . To the best of the knowledge of the Company, none of the products that are or have been designed, created, developed, assembled, manufactured or sold by any either of the Brainworks Acquired Corporations is infringing, misappropriating or making any unlawful or unauthorized use of any Proprietary Asset owned or used by any other Personof, and except as set forth in Part 3.9(c) none of such products has at any time infringed, misappropriated or made any unlawful or unauthorized use of, and neither of the Brainworks Disclosure Schedule, none of the Brainworks Acquired Corporations has received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person; (iv) . To the best of the knowledge of the Company, no other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any material Brainworks Acquired Corporation Proprietary Asset.
(d) The Brainworks Acquired Corporation Proprietary Assets constitute all the Proprietary Assets necessary to enable the Brainworks Acquired Corporations to conduct their respective businesses business in the manner in which such businesses are business has been and is being conducted. None Neither of the Brainworks Acquired Corporations has (i) licensed any of the material Brainworks Acquired Corporation Proprietary Assets to any Person on an exclusive basis, or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any material Brainworks Acquired Corporation Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) Except as set forth in Part 3.9(e2.9(e) of the Brainworks Company Disclosure Schedule, none neither of the Brainworks Acquired Corporations has (other than pursuant to license or escrow agreements identified in Part 2.10 of the Company Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other Person, of the source code, or any Brainworks portion or aspect of the source code, or any proprietary information or algorithm contained in any source code, of any material Acquired Corporation Source CodeProprietary Asset. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any other Person of the source code, or any AAHoldings Entity Source Codeportion or aspect of the source code, or any proprietary information or algorithm contained in any source code, of any material Acquired Corporation Proprietary Asset. Part 3.10(a2.9(e) of the Brainworks Company Disclosure Schedule identifies each Contract pursuant to which the Brainworks Company has deposited or is required to deposit with an escrowholder or any other Person the source code, or any portion or aspect of the source code, or any proprietary information or algorithm contained in or relating to any source code, of any Brainworks material Acquired Corporation Source Code, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Brainworks Corporation Source CodeProprietary Asset.
Appears in 1 contract
Proprietary Assets. (a) Part 3.9(a)(i2.9(a)(i) of the Brainworks Company Disclosure Schedule sets forth, with respect to each Proprietary Asset owned by any of the Brainworks Acquired Corporations and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 3.9(a)(ii2.9(a)(ii) of the Brainworks Company Disclosure Schedule identifies and provides a brief description of all other Proprietary Assets owned by any of the Brainworks Acquired Corporations that are material to the respective businesses business of the Brainworks Acquired Corporations. Part 3.9(a)(iii2.9(a)(iii) of the Brainworks Company Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $10,000 per quarter with respect to, each Proprietary Asset that is licensed or otherwise made available to any of the Brainworks Acquired Corporations by any Person and is material to the respective businesses business of the Brainworks Acquired Corporations (except for any Proprietary Asset that is licensed to any of the Brainworks Acquired Corporations under any third party software license generally available to the publicpublic or that was at the time the license was entered into available on substantially similar terms to companies that are similarly situated), and identifies the Contract under which such Proprietary Asset is being licensed or otherwise made available to such AAHoldings EntityAcquired Corporation. The Brainworks Acquired Corporations have good and valid title to all of the Brainworks Acquired Corporation Proprietary Assets identified in Parts 3.9(a)(i) and 3.9(a)(ii) of owned by the Brainworks Disclosure ScheduleAcquired Corporations, free and clear of all Encumbrances, except for (i) any lien for current taxes Taxes not yet due and payable, and (ii) minor liens that have arisen in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of any either of the Brainworks Acquired Corporations. The Brainworks Acquired Corporations have a valid right to use, license and otherwise exploit all Proprietary Assets required to be identified in Part 3.9(a)(iii2.9(a)(iii) of the Brainworks Company Disclosure ScheduleSchedule subject to the terms of any applicable Contracts. Except as set forth in Part 3.9(a)(iv2.9(a)(iv) of the Brainworks Company Disclosure Schedule, none of the Brainworks Acquired Corporations has developed jointly with any other Person any AAHoldings Entity Acquired Corporation Proprietary Asset that is material to the respective businesses business of the Brainworks Acquired Corporations with respect to which such other Person has any rights. Except as set forth in Part 3.9(a)(v) of the Brainworks Disclosure Schedule, there There is no Brainworks Acquired Corporation Contract (with the exception of end user license agreements in the form previously delivered or made available (at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇) by Brainworks the Company to the LLCParent) pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Brainworks Acquired Corporation Proprietary Asset, other than Acquired Corporation Contracts for the distribution of products of the Acquired Corporations by distributors, resellers and channel partners.
(b) The Brainworks Acquired Corporations have taken reasonable measures and precautions to protect and maintain the confidentiality, secrecy and value of all material Brainworks Acquired Corporation Proprietary Assets (except Brainworks Acquired Corporation Proprietary Assets whose value would be unimpaired by disclosure). Without limiting the generality of the foregoing, (i) all current and former employees of the Acquired Corporations who are or were involved in, or who have contributed to, the creation or development of any material Acquired Corporation Proprietary Asset have executed and delivered to the Acquired Corporations an agreement (containing no material exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Invention and Nondisclosure Agreement previously delivered by the Company to Parent, and (ii) all current and former consultants and independent contractors to the Acquired Corporations who are or were involved in, or who have contributed to, the creation or development of any material Acquired Corporation Proprietary Asset have executed and delivered to the Company an agreement (containing no material exceptions to or exclusions from the scope of its coverage) that is substantially identical to one of the two forms of Contractor Agreements previously delivered to Parent. No current or former employee, officer, director, stockholder, consultant or independent contractor has any right, claim or interest in or with respect to any Acquired Corporation Proprietary Asset.
(c) To the best knowledge of the knowledge of Brainworks and Merger SubCompany: (i) all patents, trademarkstrademark registrations currently used in the business of the Acquired Corporations, service marks ▇▇▇▇ registrations currently used in the business of the Acquired Corporations and copyrights copyright registrations held by any of the Brainworks Acquired Corporations are valid, enforceable and subsisting; (ii) none of the Brainworks Acquired Corporation Proprietary Assets and no Proprietary Asset that is currently being developed by any of the Brainworks Acquired Corporations (either by itself or with any other Person) infringes, misappropriates or conflicts with any rights in any Proprietary Asset owned or used by any other Person; (iii) none of the products that are or have been designed, created, developed, assembled, manufactured or sold by any of the Brainworks Acquired Corporations is infringing, misappropriating or making any unlawful or unauthorized use of any Proprietary Asset owned or used by any other Person, and except as set forth in Part 3.9(c) none of the Brainworks Disclosure Schedulesuch products has at any time infringed, misappropriated or made any unlawful or unauthorized use of, and none of the Brainworks Acquired Corporations has received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person; (iv) no other Person is materially infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person materially infringes or conflicts with, any material Brainworks Acquired Corporation Proprietary Asset.
(d) The Brainworks Acquired Corporation Proprietary Assets constitute all the Proprietary Assets necessary to enable the Brainworks Acquired Corporations to conduct their respective businesses business in the manner in which such businesses are business has been and is being conducted. None of the Brainworks Acquired Corporations has (i) licensed any of the material Brainworks Acquired Corporation Proprietary Assets to any Person on an exclusive basis, or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any material Brainworks Acquired Corporation Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) Except as set forth in Part 3.9(e) None of the Brainworks Disclosure Schedule, none of the Brainworks Acquired Corporations has disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other Person, of any Brainworks Acquired Corporation Source Code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any Person of any AAHoldings Entity Acquired Corporation Source Code. Part 3.10(a2.10(a)(ii) of the Brainworks Company Disclosure Schedule identifies each Contract pursuant to which the Brainworks Company has deposited or is required to deposit with an escrowholder or any other Person of any Brainworks Acquired Corporation Source Code, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Brainworks Acquired Corporation Source Code.
(f) To the knowledge of the Company, each computer, computer program and other item of software (whether installed on a computer or on any other piece of equipment, including firmware) that is currently used by any of the Acquired Corporations and material for their internal business operations is Year 2000 Compliant. To the knowledge of the Company, each computer program and other item of software that is currently generally offered for sale or otherwise made available to any Person by any of the Acquired Corporations is Year 2000 Compliant. For purposes of this Section 2.9, a computer, computer program or other item of software shall be deemed to be "Year 2000 Compliant" only if it meets the definition of "Year 2000 Compliant" set forth as of the date of this Agreement on the Company's web page under the heading "Year 2000 Statement."
(g) Except with respect to demonstration or trial copies and except for security routines intended to restrict the end-user to use within the scope of such end-user's license, no product, system, program or software module designed, developed, sold, licensed or otherwise made available by any of the Acquired Corporations to any Person contains any "back door," "time bomb," "Trojan horse," "worm," "drop dead device," "virus" or other software routines or hardware components designed by or on behalf of any Acquired Corporation to permit unauthorized access or to disable or erase software, hardware or data without the consent of the user.
Appears in 1 contract
Proprietary Assets. (a) Part 3.9(a)(i2.9(a)(i) of the Brainworks Company Disclosure Schedule sets forth, with respect to each Proprietary Asset owned by any of the Brainworks Acquired Corporations and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 3.9(a)(ii2.9(a)(ii) of the Brainworks Company Disclosure Schedule identifies and provides a brief description of all other Proprietary Assets owned by any of the Brainworks Acquired Corporations that are material to the respective businesses business of the Brainworks Acquired Corporations. Part 3.9(a)(iii2.9(a)(iii) of the Brainworks Company Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $10,000 40,000 per year with respect to, each Proprietary Asset that is licensed or otherwise made available to any of the Brainworks Acquired Corporations by any Person and is material to the respective businesses business of the Brainworks Acquired Corporations (except for any Proprietary Asset that is licensed to any of the Brainworks Acquired Corporations under any third third-party software license generally available to the publicpublic or that was at the time the license was entered into available on substantially similar terms to companies that are similarly situated), and identifies the Contract under which such Proprietary Asset is being licensed or otherwise made available to such AAHoldings EntityAcquired Corporation. The Brainworks Acquired Corporations have good and valid title to all of the Brainworks Acquired Corporation Proprietary Assets identified in Parts 3.9(a)(i) and 3.9(a)(ii) of purported to be owned by the Brainworks Disclosure ScheduleAcquired Corporations, free and clear of all Encumbrances, except for (i) any lien for current taxes not yet due and payable, and (ii) minor liens that have arisen in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of any of the Brainworks CorporationsEncumbrances other than Permitted Liens. The Brainworks Acquired Corporations have a valid right to use, license and otherwise exploit all Proprietary Assets required to be identified in Part 3.9(a)(iii2.9(a)(iii) of the Brainworks Company Disclosure ScheduleSchedule subject to the terms of any applicable Contracts. Except as set forth in Part 3.9(a)(iv2.9(a)(iv) of the Brainworks Company Disclosure Schedule, none of the Brainworks Acquired Corporations has developed jointly with any other Person any AAHoldings Entity Acquired Corporation Proprietary Asset that is material to the respective businesses business of the Brainworks Acquired Corporations with respect to which such other Person has any rights. Except as set forth in Part 3.9(a)(v2.9(a)(v) of the Brainworks Company Disclosure Schedule, there is no Brainworks Acquired Corporation Contract (with the exception of end end-user license agreements in the form previously delivered by Brainworks the Company to the LLCParent) pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Brainworks Acquired Corporation Proprietary Asset.
(b) The Brainworks Acquired Corporations have taken reasonable measures and precautions to protect and maintain the confidentiality, secrecy and value of all material Brainworks Acquired Corporation Proprietary Assets (except Brainworks Acquired Corporation Proprietary Assets whose value would be unimpaired by disclosure).
(c) To the best of the knowledge of Brainworks and Merger Sub: (i) all patents, trademarks, service marks and copyrights held by any of the Brainworks Corporations are valid, enforceable and subsisting; (ii) none of the Brainworks Corporation Proprietary Assets and no Proprietary Asset that is currently being developed by any of the Brainworks Corporations (either by itself or with any other Person) infringes, misappropriates or conflicts with any Proprietary Asset owned or used by any other Person; (iii) none of the products that are or have been designed, created, developed, assembled, manufactured or sold by any of the Brainworks Corporations is infringing, misappropriating or making any unlawful or unauthorized use of any Proprietary Asset owned or used by any other Person, and except as set forth in Part 3.9(c) of the Brainworks Disclosure Schedule, none of the Brainworks Corporations has received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person; (iv) no other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any material Brainworks Corporation Proprietary Asset.
(d) The Brainworks Corporation Proprietary Assets constitute all the Proprietary Assets necessary to enable the Brainworks Corporations to conduct their respective businesses in the manner in which such businesses are being conducted. None of the Brainworks Corporations has (i) licensed any of the material Brainworks Corporation Proprietary Assets to any Person on an exclusive basis, or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any material Brainworks Corporation Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) Except as set forth in Part 3.9(e) of the Brainworks Disclosure Schedule, none of the Brainworks Corporations has disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other Person, of any Brainworks Corporation Source Code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any Person of any AAHoldings Entity Source Code. Part 3.10(a) of the Brainworks Disclosure Schedule identifies each Contract pursuant to which the Brainworks has deposited or is required to deposit with an escrowholder or any other Person of any Brainworks Corporation Source Code, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Brainworks Corporation Source Code.value
Appears in 1 contract
Sources: Merger Agreement (Quokka Sports Inc)
Proprietary Assets. (a) Part 3.9(a)(i2.9(a)(i) of the Brainworks Acquired Corporation Disclosure Schedule sets forth, with respect to each Proprietary Asset owned by any of the Brainworks Acquired Corporations and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, Asset and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 3.9(a)(ii2.9(a)(ii) of the Brainworks Acquired Corporation Disclosure Schedule identifies and provides a brief description of all other Proprietary Assets owned by any of the Brainworks Corporations that are material to the respective businesses of the Brainworks Corporations. Part 3.9(a)(iii) of the Brainworks Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $10,000 with respect to, each Proprietary Asset that is licensed or otherwise made available to any of the Brainworks Acquired Corporations by any Person and is material to the respective businesses of the Brainworks Corporations (except for any Proprietary Asset that is licensed to any of the Brainworks Acquired Corporations under any third party software license generally available to the publicpublic at a price per central processing unit less than $5,000), and identifies the Contract under which such Proprietary Asset is being licensed or otherwise made available to such AAHoldings EntityAcquired Corporation. The Brainworks To the Company's knowledge, the Acquired Corporations have good good, valid and valid marketable title to all of the Brainworks Corporation Proprietary Assets identified in Parts 3.9(a)(i) and 3.9(a)(iiPart 2.9(a)(i) of the Brainworks Acquired Corporation Disclosure ScheduleSchedule and to all other Proprietary Assets that an Acquired Corporation purports to own, free and clear of all Encumbrances, except for (i) any lien for current taxes not yet due and payable, payable and (ii) minor liens that have arisen in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of any of the Brainworks Acquired Corporations. The Brainworks Acquired Corporations have a valid right to use, license and otherwise exploit all Proprietary Assets identified in Part 3.9(a)(iii2.9(a)(ii) of the Brainworks Acquired Corporation Disclosure Schedule. Except as set forth in Part 3.9(a)(iv2.9(a)(iii) of the Brainworks Acquired Corporation Disclosure Schedule, none of the Brainworks Acquired Corporations has developed jointly with any other Person any AAHoldings Entity Proprietary Asset that is material to the respective businesses business of the Brainworks Acquired Corporations with respect to which such other Person has any rights. Except as set forth in Part 3.9(a)(v2.9(a)(iv) of the Brainworks Acquired Corporation Disclosure Schedule, there is no Brainworks Acquired Corporation Contract (with the exception of end user license agreements in the form previously delivered by Brainworks to the LLC) pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Brainworks Corporation Proprietary Asset.
(b) The Brainworks Each of the Acquired Corporations have has taken reasonable measures and precautions to protect and maintain the confidentiality, secrecy and value of all material Brainworks Acquired Corporation Proprietary Assets (except Brainworks Acquired Corporation Proprietary Assets whose value would be unimpaired by disclosure). Without limiting the generality of the foregoing, except as set forth in Part 2.9(b) of the Acquired Corporation Disclosure Schedule, (i) all current employees of the Acquired Corporations who are or were involved in, or who have contributed to, the creation or development of any material Acquired Corporation Proprietary Asset have executed and delivered to the Company an agreement that is substantially identical to the form of Confidential Information and Invention Assignment Agreement previously delivered by the Company to Parent and (ii) all current consultants and independent contractors to the Acquired Corporations who are or were involved in, or who have contributed to, the creation or development of any Acquired Corporation Proprietary Asset have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Consultant Confidential Information and Invention Assignment Agreement previously delivered by the Company to Parent. No current or former employee, officer, director, stockholder, consultant or independent contractor has any right, claim or interest in or with respect to any Acquired Corporation Proprietary Asset. None of the Acquired Corporations has disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other Person, of the source code, or any portion or aspect of the source code, or any proprietary information or algorithm contained in any source code, of any Acquired Corporation Proprietary Asset.
(c) To the best knowledge of the knowledge of Brainworks and Merger SubCompany: (i) all patents, trademarks, service marks and copyrights held by any each of the Brainworks Acquired Corporations are valid, enforceable and subsisting; (ii) none of the Brainworks Acquired Corporation Proprietary Assets and no Proprietary Asset that is currently being developed by any of the Brainworks Acquired Corporations (either by itself or with any other Person) infringes, misappropriates or conflicts with any Proprietary Asset owned or used by any other Person; (iii) none of the products that are or have been designed, created, developed, assembled, manufactured or sold by any of the Brainworks Acquired Corporations is infringing, misappropriating or making any unlawful or unauthorized use of any Proprietary Asset owned or used by any other Person, and except as set forth in Part 3.9(c) none of the Brainworks Disclosure Schedulesuch products has at any time infringed, misappropriated or made any unlawful or unauthorized use of, and none of the Brainworks Acquired Corporations has received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person; and (iv) no other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any material Brainworks Acquired Corporation Proprietary Asset.
(d) The Brainworks Acquired Corporation Proprietary Assets constitute all of the Proprietary Assets necessary to enable each of the Brainworks Acquired Corporations to conduct their respective businesses business in the manner in which such businesses are business has been and is being conducted. None of the Brainworks Acquired Corporations has (i) licensed any of the material Brainworks Acquired Corporation Proprietary Assets to any Person on an exclusive basis, basis or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any material Brainworks Acquired Corporation Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) Except as set forth in Part 3.9(e) of the Brainworks Disclosure Schedule, none of the Brainworks Corporations has disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other Person, of any Brainworks Corporation Source Code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any Person of any AAHoldings Entity Source Code. Part 3.10(a) of the Brainworks Disclosure Schedule identifies each Contract pursuant to which the Brainworks has deposited or is required to deposit with an escrowholder or any other Person of any Brainworks Corporation Source Code, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Brainworks Corporation Source Code.
Appears in 1 contract
Proprietary Assets. (a) Part 3.9(a)(i2.9(a)(i) of the Brainworks Company Disclosure Schedule sets forth, with respect to each Proprietary Asset owned by any of the Brainworks Acquired Corporations and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, Asset and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 3.9(a)(ii2.9(a)(ii) of the Brainworks Company Disclosure Schedule identifies and provides a brief description of all other each Proprietary Assets Asset owned by any of the Brainworks Acquired Corporations that are is material to the respective businesses business of the Brainworks Corporations. Acquired Corporations and that is not listed on Part 3.9(a)(iii2.9(a)(i) of the Brainworks Company Disclosure Schedule. Part 2.9(a)(iii) of the Company Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $10,000 with respect to, each Proprietary Asset that is licensed or otherwise made available to any of the Brainworks Acquired Corporations by any Person and is material to the respective businesses business of the Brainworks Acquired Corporations (except for any Proprietary Asset non-customized software program that is licensed to any of the Brainworks Corporations Acquired Corporation under any third party software license generally available to the publicpublic on standard terms), and identifies the Contract under which such Proprietary Asset is being licensed or otherwise made available to such AAHoldings EntityAcquired Corporation. The Brainworks Acquired Corporations have good and valid title to all of the Brainworks Acquired Corporation Proprietary Assets identified or required to be identified in Parts 3.9(a)(i2.9(a)(i) and 3.9(a)(ii2.9(a)(ii) of the Brainworks Company Disclosure Schedule, free and clear of all Encumbrances, except for (iA) any lien for current taxes Taxes not yet due and payable, payable and (iiB) minor liens that have arisen in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value of the assets Acquired Corporation Proprietary Assets subject thereto or materially impair the operations of any of the Brainworks Acquired Corporations. The Brainworks Acquired Corporations have a valid right to use, license and otherwise exploit all Proprietary Assets identified in Part 3.9(a)(iii2.9(a)(iii) of the Brainworks Company Disclosure Schedule. Except as set forth in Part 3.9(a)(iv2.9(a)(iv) of the Brainworks Company Disclosure Schedule, none of the Brainworks Acquired Corporations has developed jointly with any other Person any AAHoldings Entity Acquired Corporation Proprietary Asset that is material to the respective businesses business of the Brainworks Acquired Corporations and with respect to which such other Person has any rights. Except as set forth in Part 3.9(a)(v2.9(a)(v) of the Brainworks Company Disclosure Schedule, there is no Brainworks Acquired Corporation Contract (with the exception of end user license agreements in the form previously delivered by Brainworks the Company to the LLCParent) pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Brainworks Acquired Corporation Proprietary Asset.
(b) The Brainworks Acquired Corporations have taken all commercially reasonable measures and precautions to protect and maintain the confidentiality, secrecy and value of all material Brainworks Acquired Corporation Proprietary Assets (except Brainworks Acquired Corporation Proprietary Assets whose value would be unimpaired by disclosure).
(c) To . Without limiting the best generality of the knowledge of Brainworks and Merger Sub: foregoing, (i) all patentseach current or former employee of any Acquired Corporation who is or was involved in, trademarksor who has contributed to, service marks the creation or development of any material Acquired Corporation Proprietary Asset has executed and copyrights held by any delivered to such Acquired Corporation an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to one of the Brainworks Corporations are validthree forms of Employee Nondisclosure Agreement and Invention Assignment Agreement, enforceable Employee Confidentiality Agreement and/or Employee Invention Agreement previously delivered by the Company to Parent and subsisting; (ii) none each current and former consultant and independent contractor to any Acquired Corporation who is or was involved in, or who has contributed to, the creation or development of any material Acquired Corporation Proprietary Asset has executed and delivered to such Acquired Corporation an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to one of the Brainworks Corporation Proprietary Assets three forms of Employee Nondisclosure Agreement and no Proprietary Asset that is currently being developed Invention Assignment Agreement, Employee Confidentiality Agreement and/or Employee Invention Agreement previously delivered by any of the Brainworks Corporations (either by itself or with any other Person) infringes, misappropriates or conflicts with any Proprietary Asset owned or used by any other Person; (iii) none of the products that are or have been designed, created, developed, assembled, manufactured or sold by any of the Brainworks Corporations is infringing, misappropriating or making any unlawful or unauthorized use of any Proprietary Asset owned or used by any other Person, and except as set forth in Part 3.9(c) of the Brainworks Disclosure Schedule, none of the Brainworks Corporations has received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person; (iv) no other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any material Brainworks Corporation Proprietary Asset.
(d) The Brainworks Corporation Proprietary Assets constitute all the Proprietary Assets necessary Company to enable the Brainworks Corporations to conduct their respective businesses in the manner in which such businesses are being conducted. None of the Brainworks Corporations has (i) licensed any of the material Brainworks Corporation Proprietary Assets to any Person on an exclusive basis, or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any material Brainworks Corporation Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) Except as set forth in Part 3.9(e) of the Brainworks Disclosure Schedule, none of the Brainworks Corporations has disclosed or Parent previously delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other Person, of any Brainworks Corporation Source Code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any Person of any AAHoldings Entity Source Code. Part 3.10(a) of the Brainworks Disclosure Schedule identifies each Contract pursuant to which the Brainworks has deposited or is required to deposit with an escrowholder or any other Person of any Brainworks Corporation Source Code, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Brainworks Corporation Source Code.
Appears in 1 contract
Sources: Merger Agreement (Clare Inc)