Technology and Intellectual Property. (a) Schedule 2.10(a) of the Company Disclosure Schedule sets forth a complete and accurate list, as of the date of this Agreement, of each (i) issued patent owned by the Company or its Subsidiaries, (ii) pending patent application filed by or on behalf of the Company or its Subsidiaries, (iii) trademark registration, service mark registration, and copyright registration owned by the Company or ▇▇▇ Subsidiaries, (iv) application for trademark registration, service mark registration, and copyright registration made by or on behalf of ▇▇▇ Company or its Subsidiaries, (v) domain name registered by or on behalf of the Company or its Subsidiaries, and (vi) material item of Technology, including hardware (other than "off the shelf" hardware that is generally commercially available), Software and algorithms, owned by the Company or its Subsidiaries or used in connection with the operation of the Business of the Company and its Subsidiaries, in each case identified with sufficient precision to permit Parent to reasonably identify the same and the function thereof and, in the case of Software, including the libraries in which it is found. The Company has taken commercially reasonable steps to protect all material trade names, fictitious names, trademarks and service marks used by the Company or its Subsidiaries in connection with their business. (b) Except as disclosed in Schedule 2.10(b) of the Company Disclosure Schedule, the Company or its Subsidiaries own all right, title and interest in and to all issued and registered Intellectual Property and Technology set forth in Schedule 2.10(a) of the Company Disclosure Schedule. Except as disclosed in Schedule 2.10(b), to the Knowledge of the Company, all such registered Intellectual Property is valid, subsisting and enforceable. All necessary registration, maintenance, renewal, and other relevant filing fees due through the date hereof in connection therewith have been timely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant patent, copyright, trademark, or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of maintaining such registered Intellectual Property in full force and effect. To the Knowledge of the Company, except as set forth in Schedule 2.10(b) of the Company Disclosure Schedule, there are, as of the date of this Agreement, no filings, payments or similar actions that must be taken by the Company or its Subsidiaries within ninety (90) days following the Closing Date for the purposes of obtaining, maintaining, perfecting or renewing any such registrations and applications. (c) Except as set forth in Schedule 2.10(c) of the Company Disclosure Schedule, to the Knowledge of the Company, the Company or its Subsidiaries own all right, title and interest in and to, or have valid rights to use, sell and license, all Intellectual Property, Software and other Technology used in the conduct of the business and operations of the Company or its Subsidiaries as presently conducted and as currently proposed to be conducted, free and clear of all Liens or obligations (other than such limitations and obligations contained in licenses of Intellectual Property, Software or Technology to the Company or its Subsidiaries) to others. Upon consummation of the transactions contemplated by this Agreement, no Liens will be in effect on the Intellectual Property, Software and Technology that arise under the Notes described in Schedule 2.10(c) of the Company Disclosure Schedule. (d) Except with respect to licenses of Software (i) generally available for an annual or one-time license fee of no more than $20,000, (ii) distributed without charge as "freeware" or "shareware," Schedule 2.10(d) of the Company Disclosure Schedule sets forth, to the Knowledge of the Company, a complete and accurate list of all agreements pursuant to which the Company or its Subsidiaries license in or otherwise is authorized to use all Intellectual Property, Software and other Technology used in the conduct of the business and operations of the Company and its Subsidiaries as presently conducted. To the Knowledge of the Company, except pursuant to the agreements described in clause (i) above or identified in Schedule 2.10(d) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries are required, pursuant to any express payment terms of the applicable agreements, to make any payments in excess of $20,000 per year to any third party with respect to use of any material Intellectual Property, material Software and other material Technology used in the conduct of the business and operations of the Company and its Subsidiaries as presently conducted. (e) Neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement will result in: (i) the Company or any of its Subsidiaries granting to any third party any right to any Technology or Intellectual Property owned by, or licensed to, the Company or its Subsidiaries; or (ii) the Company or any of its Subsidiaries being bound by, or subject to, any non-compete or other restriction on the operation or scope of its business. Following the Closing, the Company or its Subsidiaries will have the right to exercise all of their current rights under agreements granting rights to the Company or its Subsidiaries with respect to Intellectual Property, Software and other Technology of a third party to the same extent and in the same manner the Company or its Subsidiaries would have been able to had the transaction contemplated by this Agreement not occurred, and without the payment of any additional consideration as a result of such transaction and without the necessity of any third party consent as a result of such transaction. (f) All non-exclusive licenses granted by the Company or any of its Subsidiaries are set forth on Schedule 2.16(a)(x) of the Company Disclosure Schedule. Except for nonexclusive licenses granted by the Company or its Subsidiaries to end users, distributors and other third parties in the ordinary course of business in connection with the sale and distribution of the Company's products, Schedule 2.10(f) of the Company Disclosure Schedule sets forth a complete and accurate list of all agreements pursuant to which the Company or its Subsidiaries have licensed to a third party, for any purpose, any Intellectual Property, Software or other Technology owned by the Company or its Subsidiaries. Except for nonexclusive licenses granted by the Company or its Subsidiaries to end users, distributors and other third parties in the ordinary course of business in connection with the sale and distribution of the Company's products, Section 2.10(f) of the Company Disclosure Schedule further sets forth a complete and accurate list of all agreements to which the Company or its Subsidiaries are a party containing an agreement to indemnify any other Person against any claim of infringement, violation, misappropriation or unauthorized use of any Intellectual Property of a third party. The Company has delivered to Parent true, correct and complete copies of each agreement set forth in Schedule 2.10(f) of the Company Disclosure Schedule together with all amendments, modifications or supplements thereto. (g) Except as set forth in Schedule 2.10(g) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries have in the last ten years (i) transferred ownership of, (ii) granted any exclusive license of or right to use, (iii) authorized the retention of any exclusive rights to use or contingent right to use (including pursuant to a source code escrow), (iv) authorized joint ownership of or (v) granted any lien, security interest, claim, encumbrance or any other restriction or limitation whatsoever in any or all Intellectual Property, Software or other Technology owned by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has granted any third party an exclusive license or right to use any patents owned by the Company or any of its Subsidiaries. (h) Schedule 2.10(h) of the Company Disclosure Schedule sets forth a complete and accurate list of (i) all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) that is owned exclusively by, and is used in the Business of, the Company and its Subsidiaries and (ii) all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) that is not exclusively owned by the Company or its Subsidiaries and is used in the Business of the Company and its Subsidiaries, excluding Software generally available for an annual license fee of no more than $20,000. After the Closing, (x) all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) currently owned exclusively by the Company and its Subsidiaries will continue to be owned exclusively by the Surviving Corporation and its Subsidiaries, (y) the Surviving Corporation and its Subsidiaries will have the same continuing rights to use all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) that is not currently exclusively owned by the Company or its Subsidiaries and is currently used in the Business, and (z) the material Software and material computer hardware currently owned exclusively by the Company and its Subsidiaries are sufficient for the conduct of the Business the Company and its Subsidiaries as presently conducted and as proposed to be conducted prior to the Closing. (i) Except as set forth in Schedule 2.10(i) of the Company Disclosure Schedule and except for office actions received by the Company or its Subsidiaries in the ordinary course of prosecuting its Intellectual Property registrations, to the Company's Knowledge, no third party has asserted that any Intellectual Property owned by the Company or its Subsidiaries is invalid or unenforceable or infringes on the intellectual property rights of any third party. Except as set forth in Schedule 2.10(i) of the Company Disclosure Schedule, to the Company's Knowledge there is no basis for and there is no threatened or pending action, suit, proceeding, investigation, notice or complaint by any Person or third party before any court or tribunal (including, without limitation, the United States Patent and Trademark Office or equivalent authority anywhere in the world) (i) challenging the validity, enforceability, use or exclusive ownership of any Intellectual Property or Technology owned by the Company or its Subsidiaries or (ii) alleging any infringement, misappropriation, violation, or unfair competition or trade practices by the Company or its Subsidiaries of any Intellectual Property or Technology owned by any Person or third party. Except as set forth in Schedule 2.10(i) of the Company Disclosure Schedule, to the Company's Knowledge there is no basis for and the Company has not threatened or brought any action, suit, proceeding, investigation, notice or complaint against any Person or third party before any court or tribunal (including, without limitation, the United States Patent and Trademark Office or equivalent authority anywhere in the world) (i) challenging the validity, enforceability, use or exclusive ownership of any Intellectual Property or Technology owned by a Person or third party or (ii) alleging any infringement, misappropriation, violation, or unfair competition or trade practices by a Person or third party of any Intellectual Property or Technology owned by the Company or its Subsidiaries. (j) Except as set forth in Schedule 2.10(j) of the Company Disclosure Schedule, to the Company's Knowledge, as of the date of this Agreement, there are no agreements between the Company and its Subsidiaries and any third party relating to any Intellectual Property owned by the Company or its Subsidiaries under which there are, or are expected to be, any material dispute regarding the scope or performance of such Agreement. Except as set forth in Schedule 2.10(j) of the Company Disclosure Schedule, the Company has not received any written notice from any third party stating that any such material dispute regarding the scope or performance of such Agreement exists. (k) Except as set forth in Schedule 2.10(k) of the Company Disclosure Schedule, none of the Technology or Intellectual Property owned by the Company or its Subsidiaries is subject to any outstanding injunction, decree, order, judgment, agreement or stipulation that restricts in any manner the use, transfer or licensing thereof by the Company or its Subsidiaries or affects the validity, use or enforceability of any such Technology or Intellectual Property. (l) The Company has taken adequate measures, consistent with commercially reasonable practices in the industry in which the Company operates, to protect the confidentiality of all trade secrets owned by the Company and its Subsidiaries that are material to the Business as currently conducted and as proposed to be conducted. The Company and its Subsidiaries have executed valid written agreements with all current and past employees who have contributed to the development of Technology and Intellectual Property owned by the Company and its Subsidiaries pursuant to which such employees have (i) assigned to the Company or its Subsidiaries all their rights in and to all Technology and Intellectual Property they may develop in the course of their employment and (ii) agreed to hold all trade secrets and confidential information of the Company and its Subsidiaries in confidence both during and after their employment, and each of such agreements is set forth on Schedule 2.10(l) of the Company Disclosure Schedule. The Company or its Subsidiaries have executed valid written agreements with all current and past consultants and independent contractors who have been retained in connection with the development of Technology and Intellectual Property pursuant to which the consultants and independent contractors have (x) assigned to the Company or its Subsidiaries all their rights in and to such Technology and Intellectual Property and (y) agreed to hold all trade secrets and confidential information of the Company and its Subsidiaries in confidence, both during and after the term of their engagements, and each of such agreements is set forth on Schedule 2.10(l) of the Company
Appears in 1 contract
Technology and Intellectual Property. (aSchedule 4.13(a) Schedule 2.10(a) of the Company Disclosure Schedule sets forth a complete and accurate list, as of the date of this Agreement, of each (i) each issued patent owned by the Company or any of its Subsidiaries, (ii) each pending patent application filed by or on behalf of the Company or any of its Subsidiaries, (iii) each trademark registration, service mark ▇▇▇▇ registration, and copyright registration owned by the Company or ▇▇▇ any of its Subsidiaries, (iv) each application for trademark registration, service mark ▇▇▇▇ registration, and copyright registration made by or on behalf of ▇▇▇ the Company or any of its Subsidiaries, (v) each domain name registered by or on behalf of the Company or any of its Subsidiaries, Subsidiaries and (vi) each material trade name, d/b/a, unregistered trademark, and unregistered service ▇▇▇▇ used by the Company or any of its Subsidiaries in connection with its business. Schedule 4.13(a) lists, for each such item of Technology, including hardware (other than "off the shelf" hardware that is generally commercially available), Software and algorithms, Intellectual Property owned by the Company or its Subsidiaries or used in connection with the operation any of the Business of the Company and its Subsidiaries, in each case identified with sufficient precision to permit Parent to reasonably identify the same and item, the function thereof jurisdiction, the filing and, in the case of Softwareif issued, including the libraries in which it is foundissuance dates and any serial or registration numbers. The Company has taken commercially reasonable steps to protect all material trade names, fictitious names, trademarks and service marks used by the Company or its Subsidiaries in connection with their business.
(b) Except as disclosed in Schedule 2.10(b) of the Company Disclosure Schedule, the Company or its Subsidiaries own all right, title and interest in and to all issued and registered Intellectual Property and Technology set forth in Schedule 2.10(a) of the Company Disclosure Schedule. Except as disclosed in Schedule 2.10(b), to the Knowledge of the Company, all All such registered Intellectual Property is validsubsisting, subsisting and enforceable. All all necessary registration, maintenance, renewal, and other relevant filing fees due through the date hereof in connection therewith have been timely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant patent, copyright, trademark, or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of maintaining such registered Intellectual Property in full force and effect. To the Knowledge of the Company, except as set forth in Schedule 2.10(b) of the · The Company Disclosure Schedule, there are, as of the date of this Agreement, no filings, payments or similar actions that must be taken by the Company or its Subsidiaries within ninety (90) days following the Closing Date for the purposes of obtaining, maintaining, perfecting or renewing any such registrations and applications.
(c) Except as set forth in Schedule 2.10(c) of the Company Disclosure Schedule, to the Knowledge of the Company, the Company or its Subsidiaries own all right, title and interest in and to, or have valid and continuing rights to use, sell and license, all Intellectual Property, Software and other Technology used in the conduct of the business and operations of the Company or and its Subsidiaries as presently conducted and as currently proposed to be conducted, free and clear of all Liens or obligations (other than such limitations and obligations contained in licenses of Intellectual Property, Software or Technology to the Company or its Subsidiaries) to others. Upon consummation of the transactions contemplated by this Agreement, no Liens will be in effect on the Intellectual Property, Software and Technology that arise under the Notes described in Schedule 2.10(c) of the Company Disclosure Schedule.
(d) · Except with respect to licenses of Software (i) generally available for an annual or one-time license fee of no more than $20,00010,000 in the aggregate, (ii) distributed as “freeware” or (iii) distributed via Internet access without charge as "freeware" or "shareware," and for use without charge, Schedule 2.10(d4.13(c) of the Company Disclosure Schedule sets forth, to the Knowledge of the Company, forth a complete and accurate list as of the date of this Agreement, of all agreements pursuant to which the Company or any of its Subsidiaries license licenses in or otherwise is authorized to use all Intellectual Property, Software and other Technology used in the conduct of the business and operations of the Company and its Subsidiaries as presently conducted and as currently contemplated to be conducted. To the Knowledge The Company has delivered to Purchaser correct, complete and current copies of the Company, except pursuant to the agreements described in clause (i) above or identified in Schedule 2.10(d) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries are required, pursuant to any express payment terms of the applicable all such agreements, to make any payments in excess of $20,000 per year to any third party with respect to use of any material Intellectual Property, material Software and other material Technology used in the conduct of the business and operations of the Company and its Subsidiaries as presently conducted.
(e) Neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement will result in: (i) the Company or any of its Subsidiaries granting to any third party any right to any Technology or Intellectual Property owned by, or licensed to, the Company or its Subsidiaries; or (ii) the Company or any of its Subsidiaries being bound by, or subject to, any non-compete or other restriction on the operation or scope of its business. · Following the Closing, the Company or and its Subsidiaries will have the right to exercise all of their current rights under agreements granting rights to the Company or any of its Subsidiaries with respect to Intellectual Property, Software and other Technology of a third party to the same extent and in the same manner the Company or its Subsidiaries they would have been able to had the transaction contemplated by this Agreement not occurred, and without the payment of any · additional consideration as a result of such transaction and without the necessity of any third party consent as a result of such transaction.
(f) . · All non-exclusive licenses granted of the material Intellectual Property owned by the Company or any of its Subsidiaries are set forth on Schedule 2.16(a)(x) of the Company Disclosure Scheduleis valid and enforceable. Except for nonexclusive licenses granted by the Company or its Subsidiaries to end usersSince January 1, distributors and other third parties in the ordinary course of business in connection with the sale and distribution of the Company's products, Schedule 2.10(f) of the Company Disclosure Schedule sets forth a complete and accurate list of all agreements pursuant to which the Company or its Subsidiaries have licensed to a third party, for any purpose, any Intellectual Property, Software or other Technology owned by the Company or its Subsidiaries. Except for nonexclusive licenses granted by the Company or its Subsidiaries to end users, distributors and other third parties in the ordinary course of business in connection with the sale and distribution of the Company's products, Section 2.10(f) of the Company Disclosure Schedule further sets forth a complete and accurate list of all agreements to which the Company or its Subsidiaries are a party containing an agreement to indemnify any other Person against any claim of infringement, violation, misappropriation or unauthorized use of any Intellectual Property of a third party. The Company has delivered to Parent true, correct and complete copies of each agreement set forth in Schedule 2.10(f) of the Company Disclosure Schedule together with all amendments, modifications or supplements thereto.
(g) Except as set forth in Schedule 2.10(g) of the Company Disclosure Schedule, 2005 neither the Company nor any of its Subsidiaries has brought any action, suit or proceeding or asserted any claim (other than claims that have in been resolved to the last ten years (iCompany’s satisfaction) transferred ownership ofagainst any Person for infringing or misappropriating any Technology or, (ii) granted any exclusive license of or right to usethe Company’s Knowledge, (iii) authorized the retention of any exclusive rights to use or contingent right to use (including pursuant to a source code escrow), (iv) authorized joint ownership of or (v) granted any lien, security interest, claim, encumbrance or any other restriction or limitation whatsoever in any or all Intellectual Property, Software or other Technology Property owned by the Company or any of its Subsidiaries, nor is there any basis for any such action, suit or proceeding. Neither the Company nor any of its Subsidiaries has granted any third party an exclusive license or right to use any patents owned by the Company or any of its Subsidiaries.
(h) Schedule 2.10(h) of the Company Disclosure Schedule sets forth a complete and accurate list of (i) all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) that is owned exclusively by, and is used in the Business of, the Company and its Subsidiaries and (ii) all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) that is not exclusively owned by the Company or its Subsidiaries and is used in the Business of the Company and its Subsidiaries, excluding Software generally available for an annual license fee of no more than $20,000. After the Closing, (x) all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) currently owned exclusively by the Company and its Subsidiaries will continue to be owned exclusively by the Surviving Corporation and its Subsidiaries, (y) the Surviving Corporation and its Subsidiaries will have the same continuing rights to use all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) that is not currently exclusively owned by the Company or its Subsidiaries and is currently used in the Business, and (z) the material Software and material computer hardware currently owned exclusively by the Company and its Subsidiaries are sufficient for the conduct of the Business the Company and its Subsidiaries as presently conducted and as proposed to be conducted prior to the Closing.
(i) Except as set forth in Schedule 2.10(i) of the Company Disclosure Schedule and except for office actions received by the Company or its Subsidiaries in the ordinary course of prosecuting its Intellectual Property registrations, to the Company's Knowledge, no third party has asserted that any Intellectual Property owned by the Company or its Subsidiaries is invalid or unenforceable or infringes on the intellectual property rights of any third party. Except as set forth in Schedule 2.10(i) of the Company Disclosure Schedule, to the Company's Knowledge there · There is no basis for and there is no threatened or pending action, suit, proceeding, hearing, investigation, notice or complaint pending or, to the Company’s Knowledge, threatened, by any Person or third party before any court or tribunal (including, without limitation, the United States Patent and Trademark Office or equivalent authority anywhere in the world) relating to any of Company’s or any of its Subsidiaries’ Intellectual Property or Technology, nor has any claim or demand been made by any third party that (i) challenging challenges the validity, enforceability, use or exclusive ownership of any Intellectual Property or Technology owned by the Company or any of its Subsidiaries or (ii) alleging alleges any infringement, misappropriation, violation, or unfair competition or trade practices by the Company or any of its Subsidiaries of any Intellectual Property or Technology owned by of any Person or third party, nor is the Company aware of any basis for any such claim or demand. Except as set forth in Schedule 2.10(i) · None of the Company Disclosure Schedule, to the Company's Knowledge there is no basis for and the Company has not threatened ’s or brought any action, suit, proceeding, investigation, notice or complaint against any Person or third party before any court or tribunal (including, without limitation, the United States Patent and Trademark Office or equivalent authority anywhere in the world) (i) challenging the validity, enforceability, use or exclusive ownership of any Intellectual Property or Technology owned by a Person or third party or (ii) alleging any infringement, misappropriation, violation, or unfair competition or trade practices by a Person or third party of any Intellectual Property or Technology owned by the Company or its Subsidiaries.
(j) Except as set forth in Schedule 2.10(j) of the Company Disclosure Schedule, to the Company's Knowledge, as of the date of this Agreement, there are no agreements between the Company and its Subsidiaries and any third party relating to any Intellectual Property owned by the Company or its Subsidiaries under which there are, or are expected to be, any material dispute regarding the scope or performance of such Agreement. Except as set forth in Schedule 2.10(j) of the Company Disclosure Schedule, the Company has not received any written notice from any third party stating that any such material dispute regarding the scope or performance of such Agreement exists.
(k) Except as set forth in Schedule 2.10(k) of the Company Disclosure Schedule, none of the ’ Technology or Intellectual Property owned by the Company or its Subsidiaries is subject to any outstanding injunction, decree, order, judgment, agreement or stipulation that restricts in any manner the use, transfer or licensing thereof by the Company or any of its Subsidiaries or affects the validity, use or enforceability of any such Technology or Intellectual Property.
(l) The Company has taken adequate measures, consistent with commercially reasonable practices in the industry in which the Company operates, to protect the confidentiality of all trade secrets owned by the Company and its Subsidiaries that are material to the Business as currently conducted and as proposed to be conducted. The Company and its Subsidiaries have executed valid written agreements with all current and past employees who have contributed to the development of Technology and Intellectual Property owned by the Company and its Subsidiaries pursuant to which such employees have (i) assigned to the Company or its Subsidiaries all their rights in and to all Technology and Intellectual Property they may develop in the course of their employment and (ii) agreed to hold all trade secrets and confidential information of the Company and its Subsidiaries in confidence both during and after their employment, and each of such agreements is set forth on Schedule 2.10(l) of the Company Disclosure Schedule. The Company or its Subsidiaries have executed valid written agreements with all current and past consultants and independent contractors who have been retained in connection with the development of Technology and Intellectual Property pursuant to which the consultants and independent contractors have (x) assigned to the Company or its Subsidiaries all their rights in and to such Technology and Intellectual Property and (y) agreed to hold all trade secrets and confidential information of the Company and its Subsidiaries in confidence, both during and after the term of their engagements, and each of such agreements is set forth on Schedule 2.10(l) of the Company
Appears in 1 contract
Technology and Intellectual Property. (a) Schedule 2.10(aSection 4.13(a) of the Company Disclosure Schedule sets forth a complete and accurate list, as of the date of this Agreement, of each (i) each issued patent owned by the Company or any of its Subsidiaries, (ii) each pending patent application filed by or on behalf of the Company or any of its Subsidiaries, (iii) each trademark registration, service mark ▇▇▇▇ registration, and copyright registration owned by the Company or ▇▇▇ any of its Subsidiaries, (iv) each application for trademark registration, service mark ▇▇▇▇ registration, and copyright registration made by or on behalf of ▇▇▇ the Company or any of its Subsidiaries, (v) each domain name registered by or on behalf of the Company or any of its Subsidiaries, Subsidiaries and (vi) each material trade name, d/b/a, unregistered trademark, and unregistered service ▇▇▇▇ used by the Company or any of its Subsidiaries in connection with its business. Section 4.13(a) of the Disclosure Schedule lists, for each such item of Technology, including hardware (other than "off the shelf" hardware that is generally commercially available), Software and algorithms, Intellectual Property owned by the Company or its Subsidiaries or used in connection with the operation any of the Business of the Company and its Subsidiaries, in each case identified with sufficient precision to permit Parent to reasonably identify the same and item, the function thereof jurisdiction, the filing and, in the case of Softwareif issued, including the libraries in which it is found. The Company has taken commercially reasonable steps to protect all material trade names, fictitious names, trademarks issuance dates and service marks used by the Company any serial or its Subsidiaries in connection with their businessregistration numbers.
(b) Except as disclosed in Schedule 2.10(bSection 4.13(b) of the Company Disclosure Schedule, the Company or and its Subsidiaries own all right, title and interest in and to all issued and registered Intellectual Property and Technology required to be set forth in Schedule 2.10(aon Section 4.13(a) of the Company Disclosure Schedule. Except as disclosed in Schedule 2.10(b), to the Knowledge of the Company, all All such registered Intellectual Property is validsubsisting, subsisting and enforceable. All all necessary registration, maintenance, renewal, and other relevant filing fees due through the date hereof in connection therewith have been timely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant patent, copyright, trademark, or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of maintaining such registered Intellectual Property in full force and effect. To the Knowledge of the Company, except Except as set forth in Schedule 2.10(bSection 4.13(a) of the Company Disclosure Schedule, there are, as of the date of this Agreement, no filings, payments or similar actions that must be taken by the Company or its Subsidiaries within ninety (90) 120 days following the Closing Date for the purposes of obtaining, maintaining, perfecting or renewing any such registrations and applications.
(c) Except as set forth in Schedule 2.10(cSection 4.13(c) of the Company Disclosure Schedule, to the Knowledge of the Company, the Company or and its Subsidiaries own all right, title and interest in and to, or have valid and continuing rights to use, sell and license, all Intellectual Property, Software and other Technology used in the conduct of the business and operations of the Company or and its Subsidiaries as presently conducted and as currently proposed to be conducted, free and clear of all Liens or obligations (other than such limitations and obligations contained in licenses of Intellectual Property, Software or Technology to the Company or its Subsidiaries) to others. Upon consummation of the transactions contemplated by this Agreement, no Liens will be in effect on the Intellectual Property, Software The business and Technology that arise under the Notes described in Schedule 2.10(c) operations of the Company Disclosure Scheduleand its Subsidiaries, their Technology, their products and services and the designing, development, manufacturing, reproduction, use, marketing, sale, distribution, maintenance and modification of any of the foregoing as presently performed and as currently contemplated to be performed does not infringe upon, misappropriate or otherwise violate any Intellectual Property of any third party.
(d) Except with respect to licenses of Software (i) generally available for an annual or one-time license fee of no more than $20,00020,000 in the aggregate, (ii) distributed as “freeware” or (iii) distributed via Internet access without charge as "freeware" or "shareware," Schedule 2.10(dand for use without charge, Section 4.13(d) of the Company Disclosure Schedule sets forthforth a list, to the Knowledge of the Company, a complete and accurate list as of the date of this Agreement, of all agreements pursuant to which the Company or any of its Subsidiaries license licenses in or otherwise is authorized to use all Intellectual Property, Software and other Technology used in the conduct of the business and operations of the Company and its Subsidiaries as presently conducted and as currently contemplated to be conducted. To the Knowledge The Company has delivered to Purchaser correct, complete and current copies of the Company, except all such agreements. Except pursuant to the agreements described in clause (i) above or identified in Schedule 2.10(dSection 4.13(d) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries are is required, pursuant to obligated, or under any express payment terms of the applicable agreements, liability whatsoever to make any payments in excess of $20,000 per year by way of royalties, fees or other payments described in the applicable agreements, to any third party with respect to use of any material Intellectual Property, material Software and other material Technology used in the conduct of the business and operations of the Company and its Subsidiaries as presently conducted.
(e) Neither Except as set forth in Section 4.13(e) of the Disclosure Schedule, neither the execution of this Agreement nor Agreement, the consummation of the transactions contemplated by this Agreement Agreement, nor the conduct of the business and operations of the Company and its Subsidiaries as presently conducted and as currently proposed to be conducted will result in: (i) the Company or any of its Subsidiaries granting to any third party any right to any Technology or Intellectual Property owned by, or licensed to, the Company or and its Subsidiaries; , or (ii) the Company or any of its Subsidiaries being bound by, or subject to, any non-compete or other restriction on the operation or scope of its business. Following the Closing, the Company or and its Subsidiaries will have the right to exercise all of their current rights under agreements granting rights to the Company or any of its Subsidiaries with respect to Intellectual Property, Software and other Technology of a third party to the same extent and in the same manner the Company or its Subsidiaries they would have been able to had the transaction contemplated by this Agreement not occurred, and without the payment of any additional consideration as a result of such transaction and without the necessity of any third party consent as a result of such transaction.
(f) All non-exclusive licenses granted by the Company or any of its Subsidiaries are set forth on Schedule 2.16(a)(xSection 4.13(f) of the Company Disclosure Schedule. Except for nonexclusive licenses granted by the Company or its Subsidiaries to end users, distributors and other third parties in the ordinary course of business in connection with the sale and distribution of the Company's products, Schedule 2.10(f) of the Company Disclosure Schedule sets forth a complete and accurate list of all agreements pursuant to which the Company or any of its Subsidiaries have has licensed to a third party, party for any purpose, purpose any Intellectual Property, Software or other Technology owned by or exclusively licensed to the Company or any of its Subsidiaries. Except for nonexclusive licenses granted by the Company or its Subsidiaries to end users, distributors and other third parties in the ordinary course of business in connection with the sale and distribution of the Company's products, Section 2.10(f4.13(f) of the Company Disclosure Schedule further sets forth a complete and accurate list of all agreements to which the Company or any Subsidiary is a party (i) containing a covenant not to compete or otherwise limiting its ability to use or exploit fully any Intellectual Property owned by the Company or any of its Subsidiaries are a party or (ii) containing an agreement to indemnify any other Person against any claim of infringement, violation, misappropriation or unauthorized use of any Intellectual Property of a third party. The Company has delivered to Parent Purchaser true, correct and complete copies of each agreement set forth in Schedule 2.10(fSection 4.13(f) of the Company Disclosure Schedule Schedule, together with all amendments, modifications or supplements thereto.
(g) Except as set forth in Schedule 2.10(g) of the The Company Disclosure Schedule, neither the Company nor any of and its Subsidiaries have not in the last ten years (i) transferred ownership of, (ii) granted any exclusive license of or right to use, (iii) authorized the retention of any exclusive rights to use use, or contingent right to use (including pursuant to a source code escrow), (iv) authorized joint ownership of or (v) granted of, any lien, security interest, claim, encumbrance or any other restriction or limitation whatsoever in any or all Intellectual Property, Software or other Technology owned by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has granted any third party an exclusive license or right to use any patents owned by the Company or any of its Subsidiaries.
(h) Schedule 2.10(hSection 4.13(h) of the Company Disclosure Schedule sets forth a complete and accurate list of (i) all Software that is owned exclusively by the Company or any Subsidiary that is material to the operation of the business of the Company and the Subsidiaries and (ii) all Software that is used by the Company or any Subsidiary in the business of the Company and the Subsidiaries that is not exclusively owned by the Company or any Subsidiary, excluding Software available on reasonable terms through commercial distributors or in consumer retail stores for a license fee of no more than $20,000.
(i) All of the material Intellectual Property owned by the Company or any of its Subsidiaries is valid and enforceable. Except as set forth in Section 4.13(i) of the Disclosure Schedule, since January 1, 2005 neither the Company nor any of its Subsidiaries has brought any action, suit or proceeding or asserted any claim (other than claims that have been resolved to the Company’s satisfaction) against any Person for infringing or misappropriating any Technology or, to the Company’s Knowledge, Intellectual Property owned by the Company or any of its Subsidiaries, nor is there any basis for any such action, suit or proceeding.
(j) Except as set forth in Section 4.13(j) of the Disclosure Schedule, there is no action, suit, proceeding, hearing, investigation, notice or complaint pending or, to the Company’s Knowledge, threatened, by any third party before any court or tribunal (including, without limitation, the United States Patent and Trademark Office or equivalent authority anywhere in the world) relating to any of Company’s or any of its Subsidiaries’ Intellectual Property or Technology, nor has any claim or demand been made by any third party that (i) challenges the validity, enforceability, use or exclusive ownership of any Intellectual Property or Technology owned by the Company or any of its Subsidiaries or (ii) alleges any infringement, misappropriation, violation, or unfair competition or trade practices by the Company or any of its Subsidiaries of any Intellectual Property or Technology of any third party, nor is the Company aware of any basis for any such claim or demand.
(k) Section 4.13(k) of the Disclosure Schedule sets forth a complete and accurate list of (i) all Software and material computer hardware (other than "“off the shelf" ” hardware that is generally commercially available) that is owned exclusively by, and is used in the Business business of, the Company and its Subsidiaries and (ii) all material Software and material computer hardware (other than "“off the shelf" ” hardware that is generally commercially available) that is not exclusively owned by the Company or its Subsidiaries and is used in the Business business of the Company and its Subsidiaries, excluding Software generally available for an annual license fee of no more than $20,000. After the Closing, (x) all material Software and material computer hardware (other than "“off the shelf" ” hardware that is generally commercially available) currently owned exclusively by the Company and its Subsidiaries will continue to be owned exclusively by the Surviving Corporation Company and its Subsidiaries, (y) the Surviving Corporation Company and its Subsidiaries will have the same continuing rights to use all material Software and material computer hardware (other than "“off the shelf" ” hardware that is generally commercially available) that is not currently exclusively owned by the Company or its Subsidiaries and is currently used in the Businessbusiness of the Company and its Subsidiaries, and (z) the material Software and material computer hardware currently owned exclusively by the Company and its Subsidiaries are sufficient for the conduct of the Business business of the Company and its Subsidiaries as presently conducted and as proposed to be conducted prior to the Closingconducted.
(il) Except as set forth in Schedule 2.10(i) of the Company Disclosure Schedule and except for office actions received by the Company or its Subsidiaries in the ordinary course of prosecuting its Intellectual Property registrations, to the Company's Knowledge, no third party has asserted that any Intellectual Property owned by the Company or its Subsidiaries is invalid or unenforceable or infringes on the intellectual property rights of any third party. Except as set forth in Schedule 2.10(i) of the Company Disclosure Schedule, to the Company's Knowledge there is no basis for and there is no threatened or pending action, suit, proceeding, investigation, notice or complaint by any Person or third party before any court or tribunal (including, without limitation, the United States Patent and Trademark Office or equivalent authority anywhere in the world) (i) challenging the validity, enforceability, use or exclusive ownership of any Intellectual Property or Technology owned by the Company or its Subsidiaries or (ii) alleging any infringement, misappropriation, violation, or unfair competition or trade practices by the Company or its Subsidiaries of any Intellectual Property or Technology owned by any Person or third party. Except as set forth in Schedule 2.10(i) of the Company Disclosure Schedule, to the Company's Knowledge there is no basis for and the Company has not threatened or brought any action, suit, proceeding, investigation, notice or complaint against any Person or third party before any court or tribunal (including, without limitation, the United States Patent and Trademark Office or equivalent authority anywhere in the world) (i) challenging the validity, enforceability, use or exclusive ownership of any Intellectual Property or Technology owned by a Person or third party or (ii) alleging any infringement, misappropriation, violation, or unfair competition or trade practices by a Person or third party of any Intellectual Property or Technology owned by the Company or its Subsidiaries.
(j) Except as set forth in Schedule 2.10(j) of the Company Disclosure Schedule, to the Company's Knowledge, as of the date of this Agreement, there There are no agreements between the Company and or any of its Subsidiaries and any third party relating to any Intellectual Property owned by of the Company or any of its Subsidiaries or any third party under which there areis, or are expected as of the date of this Agreement, or, to the Company’s Knowledge, is expected, as of the date of this Agreement, to be, any material dispute regarding the scope or performance of such Agreement. Except as set forth in Schedule 2.10(j) of the Company Disclosure Schedule, the Company has not received any written notice from any third party stating that any such material dispute regarding the scope or performance of such Agreement existsagreement.
(km) Except as set forth in Schedule 2.10(k) None of the Company Disclosure Schedule, none Company’s or any of the its Subsidiaries’ Technology or Intellectual Property owned by the Company or its Subsidiaries is are subject to any outstanding injunction, decree, order, judgment, agreement or stipulation that restricts in any manner the use, transfer or licensing thereof by the Company or any of its Subsidiaries or affects the validity, use or enforceability of any such Technology or Intellectual Property.
(ln) The Company has and the Subsidiaries have taken adequate measures, consistent with commercially reasonable practices in the industry in which the Company operates, measures to protect the confidentiality of all trade secrets owned by the Company and or any of its Subsidiaries that are material to the Business their businesses as currently conducted and as proposed to be conducted. The No employee, consultant or independent contractor of the Company or any Subsidiary is, as a result of or in the course of such employee’s, consultant’s or independent contractor’s engagement by the Company or any Subsidiary, in default or breach of any material term of any employment agreement, non-disclosure agreement, assignment of invention agreement or similar agreement.
(o) Except as set forth in Section 4.13(o) of the Disclosure Schedule, no government funding and no facilities of a university, college, other educational institution or research center were used in the development of any Intellectual Property owned by the Company or any of its Subsidiaries have executed valid written agreements with all where, as a result of such funding or the use of such facilities, the government or any university, college, other educational institution or research center has any rights in such Intellectual Property. Except as set forth in Section 4.13(o) of the Disclosure Schedule, no current and past employees or former employee, consultant or independent contractor of the Company or any of its Subsidiaries who have contributed to the creation or development of Technology and any Intellectual Property owned by the Company or any of its Subsidiaries has performed services for the government or a university, college, other educational institution or research center during a period of time during which such employee, consultant or independent contractor was also performing services for the Company or any of its Subsidiaries.
(p) Except as set forth in Section 4.13(p) of the Disclosure Schedule, no open source or public library Software, including, but not limited to, any version of any Software licensed pursuant to any GNU public license, was used in the development or modification of any Software owned by the Company or its Subsidiaries that is incorporated into or utilized by any products of the Company or any of its Subsidiaries where, as a result of the use of such open source or public library Software, the Company or any of its Subsidiaries is obligated to make available to third parties other than its customers the source code for the proprietary Software owned by the Company or its Subsidiaries that is incorporated into such products.
(q) None of the Software owned by the Company and its Subsidiaries pursuant contains any program routine, device, or other undisclosed feature, including, without limitation, a time bomb, virus, drop-dead device, malicious logic, worm, trojan horse, bug, error, defect or trap door, that is designed to which delete, disable, deactivate, interfere with, or otherwise harm the Software or the hardware, data, or computer programs or codes of a user of such employees have Software, or that is designed to provide access or produce modifications not authorized by such user.
(ir) assigned to The information technology systems of the Company or and its Subsidiaries all their rights Subsidiaries, including the relevant Software and hardware, are adequate for the business as presently conducted and as currently proposed to be conducted, including with respect to expected increases in and to all Technology and Intellectual Property they may develop in the course of their employment and (ii) agreed to hold all trade secrets and confidential business volume. The information technology systems of the Company and its Subsidiaries in confidence both during and after their employment, and each of such agreements is set forth on Schedule 2.10(lhave not suffered any material failure within the past two years.
(s) of the Company Disclosure Schedule. The Company or its Subsidiaries have executed valid written agreements with all current and past consultants and independent contractors who have been retained in connection with the development of Technology and Intellectual Property pursuant to which the consultants and independent contractors have (x) assigned to the Company or its Subsidiaries all their rights in and to such Technology and Intellectual Property and (y) agreed to hold all trade secrets and confidential information technology systems of the Company and its Subsidiaries are reasonably secure against intrusion. The Company and its Subsidiaries have not suffered any security breaches within the past two years that have resulted in confidence, both during and after the term of their engagements, and each of such agreements is set forth on Schedule 2.10(l) a third party obtaining access to any confidential information of the Company, its Subsidiaries or any of their customers or suppliers.
(t) The Company and its Subsidiaries are in compliance with any posted privacy policies and any laws or regulations relating to personally identifiable information.
Appears in 1 contract
Technology and Intellectual Property. (a) Schedule 2.10(aSection 4.18(a)(i) of the Company Disclosure Schedule sets forth contains a complete and accurate list, as list of all Owned Intellectual Property. Section 4.18(a)(ii) of the date Disclosure Schedule contains a complete and accurate list of this Agreement, all Material Licenses. All Owned Intellectual Property listed in Section 4.18(a)(i) of each (i) issued patent the Disclosure Schedule is solely and exclusively owned by the Company or its and the Company Subsidiaries, (ii) pending patent application filed by or on behalf free and clear of the Company or its Subsidiaries, (iii) trademark registration, service mark registration, and copyright registration owned by the Company or ▇▇▇ Subsidiaries, (iv) application for trademark registration, service mark registration, and copyright registration made by or on behalf of ▇▇▇ Company or its Subsidiaries, (v) domain name registered by or on behalf of the Company or its Subsidiaries, and (vi) material item of Technology, including hardware all Liens (other than "off the shelf" hardware that is generally commercially availablePermitted Liens), Software and algorithms, owned by the Company or its Subsidiaries or used in connection with the operation of the Business of the Company and its Subsidiaries, in each case identified with sufficient precision to permit Parent to reasonably identify the same and the function thereof and, in the case of Software, including the libraries in which it is found. The Company has taken commercially reasonable steps to protect all material trade names, fictitious names, trademarks and service marks used by the Company or its Subsidiaries in connection with their business.
(b) Except as disclosed in Schedule 2.10(b) of the Company Disclosure Schedule, the Company or its Subsidiaries own all right, title and interest in and to all issued and registered Intellectual Property and Technology set forth in Schedule 2.10(a) of the Company Disclosure Schedule. Except as disclosed in Schedule 2.10(b), to the Knowledge of the Company, all such registered Intellectual Property is valid, subsisting and enforceable. All necessary issuance, registration, maintenance, renewal, renewal and other relevant filing fees due through the date hereof in connection therewith with any of the Owned Intellectual Property listed or required to be listed on Section 4.18(a)(i) of the Disclosure Schedule have been timely paid paid, and all necessary documents documents, certificates and certificates other relevant filings in connection therewith with any such Owned Intellectual Property have been timely filed filed, with the relevant patent, copyright, trademark, or other authorities governmental entities and Internet domain name registrars in the United States or foreign jurisdictions, as the case may be, for the purposes purpose of maintaining such registered Owned Intellectual Property and all issuances, registrations and applications therefor are in full force and effect. The Company Intellectual Property constitutes all Intellectual Property used in or necessary for the conduct of the business of the Company or any of the Company Subsidiaries.
(b) To the Knowledge knowledge of the Company, except all of the Company Intellectual Property, and all of the rights of the Company and the Company Subsidiaries in and to the Company Intellectual Property, are valid, subsisting and enforceable.
(c) To the knowledge of the Company, no Company Intellectual Property is subject to any outstanding order, judgment or decree adversely affecting the Company’s or any of its Subsidiaries’ use thereof in the conduct of their respective businesses. Prior to the date hereof, there have been no written claims made or threatened in writing against the Company or any of the Company Subsidiaries asserting (i) the invalidity, misuse or unenforceability of any of the Company Intellectual Property, or (ii) that the operation of the business of the Company or any of the Company Subsidiaries infringes, violates, misappropriates or otherwise conflicts with any Intellectual Property or any other proprietary or privacy right of any third party. To the knowledge of the Company, none of the Company Intellectual Property, the development, manufacturing, licensing, marketing, importation, exportation, offer for sale, sale, use or other exploitation of any products or services in connection with the respective businesses of the Company and the Company Subsidiaries, or the respective business practices, methods or operations of the Company and the Company Subsidiaries, infringes, violates, misappropriates or otherwise conflicts with (or has infringed, violated, misappropriated or otherwise conflicted with) any Intellectual Property or other proprietary or privacy right of any person. To the knowledge of the Company, no person has infringed upon, misappropriated, diluted, violated or otherwise conflicted with or is currently infringing upon, misappropriating, diluting, violating or otherwise conflicting with any Company Intellectual Property owned by or exclusively licensed to the Company or any of the Company Subsidiaries. No written claims or unwritten claims have been made against any person by the Company or any of the Company Subsidiaries alleging that any person is infringing upon, misappropriating, diluting, violating or otherwise conflicting, or has infringed upon, misappropriated, diluted, violated or otherwise conflicted with, any Company Intellectual Property owned by or exclusively licensed to the Company or any of the Company Subsidiaries.
(d) To the knowledge of the Company, no material trade secret included in the Company Intellectual Property has been authorized to be disclosed or has been actually disclosed by the Company or any of the Company Subsidiaries to any third party other than pursuant to a written non-disclosure agreement restricting the disclosure and use thereof. No employee, consultant, independent contractor or any other third party has any right, title or interest, directly or indirectly, in any Owned Intellectual Property.
(e) Other than as set forth in Schedule 2.10(bSection 4.18(e)(i) of the Company Disclosure Schedule, there arenone of the Company or any of the Company Subsidiaries is currently a party to or otherwise bound by any source code escrow agreement or any other agreement (or a party to or otherwise bound by any agreement obligating the Company or any of the Company Subsidiaries to enter into a source code escrow agreement or other agreement) requiring the deposit, delivery or disclosure of source code or related materials for any Software. Except as set forth in Section 4.18(e)(ii) of the Disclosure Schedule, (i) no Owned Intellectual Property that is Software contains or is used with any Open Source Software and (ii) the Company and the Company Subsidiaries are in compliance with all “open source” licenses (such as the GNU Public License or Mozilla Public License) governing Open Source Software that is used in the conduct of the businesses of the Company and the Company Subsidiaries.
(f) Except with respect to commercially available “off the shelf” Software licensed to the Company or any of the Company Subsidiaries on standard “shrink wrap” terms for less than a one-time license fee of $25,000 or $50,000 in the aggregate or as otherwise set forth in Section 4.18(f) of the Disclosure Schedule, none of the Company or any of the Company Subsidiaries is required, obligated or under any liability whatsoever to make any payments by way of royalties, fees or otherwise, or to provide any other consideration of any kind, to any owner or licensor of, or other claimant to, any Intellectual Property, or any other person, with respect to the use of such Intellectual Property or in connection with the conduct of the respective businesses of the Company and each of the Company Subsidiaries as currently conducted.
(g) All of the material computer systems that are used in the businesses of the Company or the Company Subsidiaries as currently conducted, including hardware, software, databases, firmware, telecommunications and related cabling, wiring and peripherals (collectively, the “Information Technology Systems”) are in good working order and have capacity and functions that are adequate for the conduct of the businesses of the Company and the Company Subsidiaries, as conducted as of the date hereof and anticipated to be conducted in the future. To the knowledge of the Company, for the three (3) years preceding the Closing Date, (i) no part of the Information Technology Systems is or has been infected by any virus or other extraneously induced malfunction that has caused a material loss of performance of the Information Technology Systems or the loss of any material data stored on the Information Technology Systems, (ii) no part of the Information Technology Systems has experienced any substantial and unscheduled outage or malfunction, (iii) there has been no breach, security incident or unauthorized access to or disclosure, use or loss of any Personal Data, whether on or through the Information Technology Systems or, to the knowledge of the Company, any third party service provider working on behalf of the Company or any of the Company Subsidiaries, that has required notification to any person or Governmental Authority pursuant to any applicable breach notification laws or Privacy Laws, or taking any other action as required by any Privacy Law. The Company and the Company Subsidiaries are in compliance with their own privacy and security policies and any Privacy Laws. As of the date of this Agreement, no filingsneither the Company nor any of the Company Subsidiaries is prohibited by any Privacy Law or their own privacy or security policies from providing Parent with, payments or similar actions that must be taken by transferring to Parent, all or any portion of the Personal Data collected, processed, stored, acquired and used in the conduct of the businesses of the Company or its any of the Company Subsidiaries within ninety (90) days following on or after the Closing Date for date hereof, in connection with the purposes transactions and provision of obtainingservices contemplated hereby. The Company and the Company Subsidiaries have implemented and followed reasonable security programs and policies containing technical and organizational measures to protect and safeguard Personal Data, maintaining, perfecting or renewing any including ongoing review and updating of all such registrations plans and applicationspolicies.
(ch) Except as set forth The Company has implemented a reasonable and industry standard plan, in Schedule 2.10(c) the event of a failure of the Information Technology Systems (whether due to natural disaster, power failure or otherwise), intended to reasonably minimize any disruption to the operations of the Company Disclosure Scheduleor any of the Company Subsidiaries in the event of such a failure.
(i) The Company and the Company Subsidiaries have taken reasonable measures to protect and preserve the confidentiality and value of trade secrets or other material confidential information and proprietary know-how, to ideas and information used, held for use or necessary for any business of the Knowledge Company and the Company Subsidiaries (“Company Confidential Information”). To the knowledge of the Company, the Company and the Company Subsidiaries have required all of their employees and contractors to comply with, and no current or its Subsidiaries own all right, title and interest in and to, former employee or have valid rights to use, sell and license, all Intellectual Property, Software and other Technology used in the conduct contractor of the business and operations any of the Company or its Subsidiaries as presently conducted and as currently proposed to be conducted, free and clear of all Liens or obligations (other than such limitations and obligations contained in licenses of Intellectual Property, Software or Technology to the Company Subsidiaries has breached or its Subsidiaries) to others. Upon consummation of the transactions contemplated by this Agreementviolated, no Liens will be in effect on the Intellectual Property, Software and Technology that arise under the Notes described in Schedule 2.10(c) of the any Company Disclosure Schedule.
(d) Except or Company Subsidiary policy or agreements with respect to licenses of Software (i) generally available for an annual or one-time license fee of no more than $20,000, (ii) distributed without charge as "freeware" or "shareware," Schedule 2.10(d) of the any Company Disclosure Schedule sets forth, to the Knowledge of the Company, a complete and accurate list of all agreements pursuant to which the Company or its Subsidiaries license in or otherwise is authorized to use all Intellectual Property, Software and other Technology used in the conduct of the business and operations of the Company and its Subsidiaries as presently conducted. To the Knowledge of the Company, except pursuant to the agreements described in clause (i) above or identified in Schedule 2.10(d) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries are required, pursuant to any express payment terms of the applicable agreements, to make any payments in excess of $20,000 per year to any third party with respect to use of any material Intellectual Property, material Software and other material Technology used in the conduct of the business and operations of the Company and its Subsidiaries as presently conductedConfidential Information.
(e) Neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement will result in: (i) the Company or any of its Subsidiaries granting to any third party any right to any Technology or Intellectual Property owned by, or licensed to, the Company or its Subsidiaries; or (ii) the Company or any of its Subsidiaries being bound by, or subject to, any non-compete or other restriction on the operation or scope of its business. Following the Closing, the Company or its Subsidiaries will have the right to exercise all of their current rights under agreements granting rights to the Company or its Subsidiaries with respect to Intellectual Property, Software and other Technology of a third party to the same extent and in the same manner the Company or its Subsidiaries would have been able to had the transaction contemplated by this Agreement not occurred, and without the payment of any additional consideration as a result of such transaction and without the necessity of any third party consent as a result of such transaction.
(f) All non-exclusive licenses granted by the Company or any of its Subsidiaries are set forth on Schedule 2.16(a)(x) of the Company Disclosure Schedule. Except for nonexclusive licenses granted by the Company or its Subsidiaries to end users, distributors and other third parties in the ordinary course of business in connection with the sale and distribution of the Company's products, Schedule 2.10(f) of the Company Disclosure Schedule sets forth a complete and accurate list of all agreements pursuant to which the Company or its Subsidiaries have licensed to a third party, for any purpose, any Intellectual Property, Software or other Technology owned by the Company or its Subsidiaries. Except for nonexclusive licenses granted by the Company or its Subsidiaries to end users, distributors and other third parties in the ordinary course of business in connection with the sale and distribution of the Company's products, Section 2.10(f) of the Company Disclosure Schedule further sets forth a complete and accurate list of all agreements to which the Company or its Subsidiaries are a party containing an agreement to indemnify any other Person against any claim of infringement, violation, misappropriation or unauthorized use of any Intellectual Property of a third party. The Company has delivered to Parent true, correct and complete copies of each agreement set forth in Schedule 2.10(f) of the Company Disclosure Schedule together with all amendments, modifications or supplements thereto.
(g) Except as set forth in Schedule 2.10(g) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries have in the last ten years (i) transferred ownership of, (ii) granted any exclusive license of or right to use, (iii) authorized the retention of any exclusive rights to use or contingent right to use (including pursuant to a source code escrow), (iv) authorized joint ownership of or (v) granted any lien, security interest, claim, encumbrance or any other restriction or limitation whatsoever in any or all Intellectual Property, Software or other Technology owned by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has granted any third party an exclusive license or right to use any patents owned by the Company or any of its Subsidiaries.
(h) Schedule 2.10(h) of the Company Disclosure Schedule sets forth a complete and accurate list of (i) all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) that is owned exclusively by, and is used in the Business of, the Company and its Subsidiaries and (ii) all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) that is not exclusively owned by the Company or its Subsidiaries and is used in the Business of the Company and its Subsidiaries, excluding Software generally available for an annual license fee of no more than $20,000. After the Closing, (x) all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) currently owned exclusively by the Company and its Subsidiaries will continue to be owned exclusively by the Surviving Corporation and its Subsidiaries, (y) the Surviving Corporation and its Subsidiaries will have the same continuing rights to use all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) that is not currently exclusively owned by the Company or its Subsidiaries and is currently used in the Business, and (z) the material Software and material computer hardware currently owned exclusively by the Company and its Subsidiaries are sufficient for the conduct of the Business the Company and its Subsidiaries as presently conducted and as proposed to be conducted prior to the Closing.
(i) Except as set forth in Schedule 2.10(i) of the Company Disclosure Schedule and except for office actions received by the Company or its Subsidiaries in the ordinary course of prosecuting its Intellectual Property registrations, to the Company's Knowledge, no third party has asserted that any Intellectual Property owned by the Company or its Subsidiaries is invalid or unenforceable or infringes on the intellectual property rights of any third party. Except as set forth in Schedule 2.10(i) of the Company Disclosure Schedule, to the Company's Knowledge there is no basis for and there is no threatened or pending action, suit, proceeding, investigation, notice or complaint by any Person or third party before any court or tribunal (including, without limitation, the United States Patent and Trademark Office or equivalent authority anywhere in the world) (i) challenging the validity, enforceability, use or exclusive ownership of any Intellectual Property or Technology owned by the Company or its Subsidiaries or (ii) alleging any infringement, misappropriation, violation, or unfair competition or trade practices by the Company or its Subsidiaries of any Intellectual Property or Technology owned by any Person or third party. Except as set forth in Schedule 2.10(i) of the Company Disclosure Schedule, to the Company's Knowledge there is no basis for and the Company has not threatened or brought any action, suit, proceeding, investigation, notice or complaint against any Person or third party before any court or tribunal (including, without limitation, the United States Patent and Trademark Office or equivalent authority anywhere in the world) (i) challenging the validity, enforceability, use or exclusive ownership of any Intellectual Property or Technology owned by a Person or third party or (ii) alleging any infringement, misappropriation, violation, or unfair competition or trade practices by a Person or third party of any Intellectual Property or Technology owned by the Company or its Subsidiaries.
(j) Except as set forth in Schedule 2.10(j) of the Company Disclosure Schedule, to the Company's Knowledge, as of the date of this Agreement, there are no agreements between the Company and its Subsidiaries and any third party relating to any Intellectual Property owned by the Company or its Subsidiaries under which there are, or are expected to be, any material dispute regarding the scope or performance of such Agreement. Except as set forth in Schedule 2.10(j) of the Company Disclosure Schedule, the Company has not received any written notice from any third party stating that any such material dispute regarding the scope or performance of such Agreement exists.
(k) Except as set forth in Schedule 2.10(k) of the Company Disclosure Schedule, none of the Technology or Intellectual Property owned by the Company or its Subsidiaries is subject to any outstanding injunction, decree, order, judgment, agreement or stipulation that restricts in any manner the use, transfer or licensing thereof by the Company or its Subsidiaries or affects the validity, use or enforceability of any such Technology or Intellectual Property.
(l) The Company has taken adequate measures, consistent with commercially reasonable practices in the industry in which the Company operates, to protect the confidentiality of all trade secrets owned by the Company and its Subsidiaries that are material to the Business as currently conducted and as proposed to be conducted. The Company and its Subsidiaries have executed valid written agreements with all current and past employees who have contributed to the development of Technology and Intellectual Property owned by the Company and its Subsidiaries pursuant to which such employees have (i) assigned to the Company or its Subsidiaries all their rights in and to all Technology and Intellectual Property they may develop in the course of their employment and (ii) agreed to hold all trade secrets and confidential information of the Company and its Subsidiaries in confidence both during and after their employment, and each of such agreements is set forth on Schedule 2.10(l) of the Company Disclosure Schedule. The Company or its Subsidiaries have executed valid written agreements with all current and past consultants and independent contractors who have been retained in connection with the development of Technology and Intellectual Property pursuant to which the consultants and independent contractors have (x) assigned to the Company or its Subsidiaries all their rights in and to such Technology and Intellectual Property and (y) agreed to hold all trade secrets and confidential information of the Company and its Subsidiaries in confidence, both during and after the term of their engagements, and each of such agreements is set forth on Schedule 2.10(l) of the Company
Appears in 1 contract
Sources: Agreement and Plan of Merger (Penn Millers Holding Corp)
Technology and Intellectual Property. (a) Schedule 2.10(a4.13(a) of the Company Disclosure Schedule sets forth a complete and accurate list, as list of the date of this Agreement, of each (i) all pending applications and registration for Intellectual Property owned by the Company in connection with its business, including (A) each issued patent owned by the Company or its SubsidiariesCompany, (iiB) each pending patent application filed by or on behalf of the Company or its SubsidiariesCompany, (iiiC) each trademark registration, service mark ▇▇▇▇ registration, and copyright registration owned by the Company or ▇▇▇ SubsidiariesCompany, (ivD) each pending application for trademark registration, service mark ▇▇▇▇ registration, and copyright registration made by or on behalf of ▇▇▇ Company or its Subsidiariesthe Company, and (vE) each domain name registered by or on behalf of the Company or its Subsidiariesand (ii) each material trade name, d/b/a, unregistered trademark, and (vi) material item of Technology, including hardware (other than "off the shelf" hardware that is generally commercially available), Software and algorithms, owned by the Company or its Subsidiaries or used in connection with the operation of the Business of the Company and its Subsidiaries, in each case identified with sufficient precision to permit Parent to reasonably identify the same and the function thereof and, in the case of Software, including the libraries in which it is found. The Company has taken commercially reasonable steps to protect all material trade names, fictitious names, trademarks and unregistered service marks ▇▇▇▇ used by the Company or its Subsidiaries in connection with their its business. Schedule 4.13(a) shall also set forth a complete and accurate list of all intellectual property of the Company not included in the foregoing but nevertheless material to the business of the Company. For the purposes of this Section 4.13(a), "material" shall refer to what a reasonable investor would consider significant in making an investment decision in the Company.
(b) Except To the Knowledge of the Company, except as disclosed in Schedule 2.10(b) of the Company Disclosure Schedule4.13(b), the Company or its Subsidiaries own owns all right, title and interest in and to all issued and registered Intellectual Property and Technology required to be set forth in on Schedule 2.10(a) of the Company Disclosure Schedule4.13(a). Except as disclosed in Schedule 2.10(b), to the Knowledge of the Company, all All such registered Intellectual Property is validsubsisting, subsisting and enforceable. All all necessary registration, maintenance, renewal, and other relevant filing fees due through the date hereof in connection therewith have been timely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant patent, copyright, trademark, or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of maintaining such registered Intellectual Property in full force and effect. To the Knowledge of the Company, except Except as set forth in Schedule 2.10(b) of the Company Disclosure Schedule4.13(a), there are, as of the date of this Agreement, no filings, payments or similar actions that must be taken by the Company or its Subsidiaries within ninety (90) 120 days following the Closing Date for the purposes of obtaining, maintaining, perfecting or renewing any such registrations and applications.
(c) Except as set forth in on Schedule 2.10(c) of the Company Disclosure Schedule4.13(c), to the Knowledge of the Company, the Company or its Subsidiaries own owns all right, title and interest in and to, or have has valid and continuing rights to use, sell and license, all Intellectual Property, Software and other Technology Property used in the conduct of the business and operations of the Company or its Subsidiaries as presently conducted and as currently proposed to be conducted, free and clear of all Liens or obligations (other than such limitations to others. To the Knowledge of the Company, the business and obligations contained in licenses operations of the Company, its Intellectual Property, Software or Technology to its products and services and the Company or its Subsidiaries) to others. Upon consummation designing, development, manufacturing, reproduction, use, marketing, sale, distribution, maintenance and modification of any of the transactions contemplated by this Agreementforegoing as presently performed does not infringe upon, no Liens will be in effect on the misappropriate or otherwise violate any Intellectual Property, Software and Technology that arise under the Notes described in Schedule 2.10(c) Property of the Company Disclosure Scheduleany third party.
(d) Except with respect to licenses of Software (i) generally available for an annual or one-time license fee of no more than $20,00010,000 per copy or seat, (ii) distributed as “freeware” or (iii) distributed via Internet access without charge as "freeware" or "shareware," and for use without charge, Schedule 2.10(d4.13(d) of the Company Disclosure Schedule sets forthforth a list, to the Knowledge of the Company, a complete and accurate list as of the date of this Agreement, of all agreements pursuant to which the Company or its Subsidiaries license licenses in or otherwise is authorized to use all Intellectual Property, Software and other Technology Property used in the conduct of the business and operations of the Company and its Subsidiaries as presently conducted. To the Knowledge The Company has made available to Purchaser correct, complete and current copies of the Company, except all such agreements. Except pursuant to the agreements described in clause (i) above or identified in on Schedule 2.10(d) of 4.13(d), the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries are is not required, pursuant to obligated, or under any express payment terms of the applicable agreements, liability whatsoever to make any payments in excess of $20,000 per year payments, to any third party with respect to use of any material Intellectual Property, material Software and other material Technology Property used in the conduct the business and operations of the Company as presently conducted.
(e) Except as set forth on Schedule 4.13(e), neither the execution of this Agreement, the consummation of the transactions contemplated by this Agreement, nor the conduct of the business and operations of the Company and its Subsidiaries as presently conducted.
(e) Neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement conducted will result in: (i) in the Company or any of its Subsidiaries granting to any third party any right to any Technology or Intellectual Property owned by, or licensed to, the Company or its Subsidiaries; or (ii) the Company or any of its Subsidiaries being bound by, or subject to, any non-compete or other restriction on the operation or scope of its businessCompany. Following Immediately following the Closing, the Company or its Subsidiaries will have the right to exercise all of their its current rights under agreements granting rights to the Company or its Subsidiaries with respect to Intellectual Property, Software and other Technology Property of a third party to the same extent and in the same manner the Company or its Subsidiaries it would have been able to had the transaction contemplated by this Agreement not occurred, and without the payment of any additional consideration (that would not otherwise have been due but for such transaction) as a result of such transaction and without the necessity of any third party consent as a result of such transaction.
(f) All non-exclusive licenses granted Schedule 4.13(f) (as modified by the Company or any of its Subsidiaries are set forth on Updated Schedule 2.16(a)(x4.13(f)) of the Company Disclosure Schedule. Except for nonexclusive licenses granted by the Company or its Subsidiaries to end users, distributors and other third parties in the ordinary course of business in connection with the sale and distribution of the Company's products, Schedule 2.10(f) of the Company Disclosure Schedule sets forth a complete and accurate list as of the date hereof of all agreements pursuant to which the Company has licensed or its Subsidiaries have licensed sublicensed to a third party, party for any purpose, purpose any Intellectual Property, Software Property owned or other Technology owned exclusively licensed by the Company other than agreements entered into with clients or its Subsidiaries. Except for nonexclusive licenses granted by the Company or its Subsidiaries to end users, distributors and other third parties liquidity providers in the ordinary course Ordinary Course of business in connection with the sale and distribution of the Company's products, Section 2.10(fBusiness. Schedule 4.13(f) of the Company Disclosure (as modified by Updated Schedule 4.13(f)) further sets forth a complete and accurate list as of the date hereof of all agreements to which the Company or its Subsidiaries are is a party (other than agreements entered into in the Ordinary Course of Business) (i) limiting its ability to use or exploit fully any Intellectual Property owned by the Company or (ii) containing an agreement to indemnify any other Person against any claim of infringement, violation, misappropriation or unauthorized use of any Intellectual Property of a third party. The Company has delivered made available to Parent Purchaser true, correct and complete copies of each agreement set forth in on Schedule 2.10(f) of the Company Disclosure Schedule 4.13(f), together with all amendments, modifications or supplements thereto.
(g) Except as set forth in Schedule 2.10(gThe Company has not, during the past three (3) of the Company Disclosure Scheduleyears, neither the Company nor any of its Subsidiaries have in the last ten years (i) transferred ownership of, (ii) granted any exclusive license of or right to use, or (iii) authorized the retention of any exclusive rights to use or contingent right to use (including pursuant to a source code escrow), (iv) authorized joint ownership of or (v) granted any lien, security interest, claim, encumbrance or any other restriction or limitation whatsoever in any or all Intellectual Property, Software or other Technology Property owned by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has granted any third party an exclusive license or right to use any patents owned by the Company or any of its SubsidiariesCompany.
(h) Schedule 2.10(h) To the Knowledge of the Company Disclosure Schedule sets forth a complete and accurate list Company, all of (i) all the material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) that is owned exclusively by, and is used in the Business of, the Company and its Subsidiaries and (ii) all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) that is not exclusively Intellectual Property owned by the Company or its Subsidiaries is valid and is used enforceable. Except as set forth in the Business of Schedule 4.13(h), the Company and its Subsidiarieshas not, excluding Software generally available for an annual license fee of no more than $20,000. After during the Closingthree (3) year period ended on the date hereof, (x) all material Software and material computer hardware brought any action, suit or proceeding or asserted any claim (other than "off claims that have been resolved to the shelf" hardware that is generally commercially availableCompany’s satisfaction) currently owned exclusively by the Company and its Subsidiaries will continue to be owned exclusively by the Surviving Corporation and its Subsidiaries, (y) the Surviving Corporation and its Subsidiaries will have the same continuing rights to use all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) that is not currently exclusively against any Person for infringing or misappropriating any Intellectual Property owned by the Company Company, nor is there any basis for any such action, suit or its Subsidiaries and is currently used in the Business, and (z) the material Software and material computer hardware currently owned exclusively by the Company and its Subsidiaries are sufficient for the conduct of the Business the Company and its Subsidiaries as presently conducted and as proposed to be conducted prior to the Closingproceeding.
(i) Except as set forth in Schedule 2.10(i) of the Company Disclosure Schedule and except for office actions received by the Company or its Subsidiaries in the ordinary course of prosecuting its Intellectual Property registrations4.13(i), to the Company's Knowledge, no third party has asserted that any Intellectual Property owned by the Company or its Subsidiaries is invalid or unenforceable or infringes on the intellectual property rights of any third party. Except as set forth in Schedule 2.10(i) of the Company Disclosure Schedule, to the Company's Knowledge there is no basis for and there is no threatened or pending action, suit, proceeding, hearing, investigation, written notice or complaint pending or, to the Knowledge of the Company, threatened in writing, by any Person or third party before any court or tribunal (including, without limitation, including the United States Patent and Trademark Office or equivalent authority anywhere in the world) relating to any of Company’s Intellectual Property, nor, to the Knowledge of the Company, has any claim or demand been made by any third party that (i) challenging challenges the validity, enforceability, use or exclusive ownership of any Intellectual Property or Technology owned by the Company or its Subsidiaries or (ii) alleging alleges any infringement, misappropriation, violation, or unfair competition or trade practices by the Company or its Subsidiaries of any Intellectual Property or Technology owned by of any Person or third party. Except as set forth in Schedule 2.10(i) of the Company Disclosure Schedule, to the Company's Knowledge there is no basis for and the Company has not threatened or brought any action, suit, proceeding, investigation, notice or complaint against any Person or third party before any court or tribunal (including, without limitation, the United States Patent and Trademark Office or equivalent authority anywhere in the world) (i) challenging the validity, enforceability, use or exclusive ownership of any Intellectual Property or Technology owned by a Person or third party or (ii) alleging any infringement, misappropriation, violation, or unfair competition or trade practices by a Person or third party of any Intellectual Property or Technology owned by the Company or its Subsidiaries.
(j) Except as set Schedule 4.13(j) sets forth in Schedule 2.10(j) of the Company Disclosure Schedule, to the Company's Knowledge, a complete and accurate list as of the date hereof of this Agreement(i) all Software and computer hardware (other than “off the shelf” hardware and Software that is generally commercially available) that is owned by the Company and (ii) all Software and computer hardware (other than “off the shelf” hardware and Software that is generally commercially available) that is not exclusively owned by the Company and is used in the Business of the Company, there excluding Software generally available for an annual license fee of no more than $250,000. Immediately after the Closing, (x) all Software and computer hardware (other than “off the shelf” hardware that is generally commercially available) currently owned exclusively by the Company will continue to be owned exclusively by the Company, (y) the Company will have the same continuing rights to use all Software and computer hardware (other than “off the shelf” hardware and Software that is generally commercially available) that is not currently exclusively owned by the Company and is currently used in the Business and (z) the Software and computer hardware exclusively owned, or licensed, by the Company are sufficient for the conduct of the Business as presently conducted.
(k) There are no agreements between the Company and its Subsidiaries and any third party relating to any Intellectual Property owned by of the Company or its Subsidiaries any third party under which there areis, or are expected to beas of the date of this Agreement, any material dispute regarding the scope or performance of such Agreement. Except as set forth in Schedule 2.10(j) of the Company Disclosure Schedule, the Company has not received any written notice from any third party stating that any such material dispute regarding the scope or performance of such Agreement existsagreement.
(kl) Except as set forth in Schedule 2.10(k) None of the Company Disclosure Schedule, none of the Technology or Company’s Intellectual Property owned by the Company or its Subsidiaries is subject to any outstanding injunction, decree, order, judgment, agreement or stipulation that restricts in any manner the use, transfer or licensing thereof by the Company or its Subsidiaries or affects the validity, use or enforceability of any such Technology or Intellectual Property.
(lm) The Company has taken adequate measures, consistent with commercially reasonable practices in the industry in which the Company operates, measures to protect the confidentiality of all trade secrets owned by the Company and its Subsidiaries that are material to the Business its businesses as currently conducted and as proposed to be conducted. The Company and its Subsidiaries have has executed valid written agreements with all current of its past and past present employees who have contributed to the development of Technology and Intellectual Property owned by the Company and its Subsidiaries pursuant to which such employees have (i) assigned to the Company or its Subsidiaries all their rights in and to all Technology and Intellectual Property they may develop in the course of their employment and (ii) agreed to hold all trade secrets and confidential information of the Company and its Subsidiaries in confidence both during and after their employment, and each of such agreements is set forth on Schedule 2.10(l) of the Company Disclosure Schedule. The Company or its Subsidiaries have has executed valid written agreements with all current past and past present consultants and independent contractors who have been retained in connection with the development of Technology and Intellectual Property pursuant to by which the consultants and independent contractors have (x) assigned to the Company or its Subsidiaries all their rights in and to such Technology and Intellectual Property and (y) agreed to hold all trade secrets and confidential information of the Company and its Subsidiaries in confidence, confidence both during and after the term of their engagements. No trade secrets or other confidential information owned by the Company that are material to its businesses as currently conducted that the Company intended to retain in confidence have been disclosed or authorized to be disclosed by the Company to any of its employees or any third party other than pursuant to a written non-disclosure or confidentiality agreement. To the Knowledge of the Company, and each no employee, consultant or independent contractor of the Company is, as a result of or in the course of such agreements is employee’s, consultant’s or independent contractor’s engagement by the Company, in default or breach of any material term of any employment agreement, non-disclosure agreement, assignment of invention agreement or similar agreement.
(n) Except as set forth on Schedule 2.10(l4.13(n), no government funding and no facilities of a university, college, other educational institution or research center were used in the development of any Intellectual Property owned by the Company where, as a result of such funding or the use of such facilities, the government or any university, college, other educational institution or research center has any rights in such Intellectual Property. Except as set forth on Schedule 4.13(n), no current or former employee, consultant or independent contractor of the Company who contributed to the creation or development of any Intellectual Property owned by the Company has performed services for the government or a university, college, other educational institution or research center during a period of time during which such employee, consultant or independent contractor was also performing services for the Company.
(o) Except as set forth on Schedule 4.13(o), no public library or open source licensed Software, including, but not limited to, any version of any Software licensed pursuant to any GNU public license, is integrated into, combined with, incorporated in, or bundled with, any Software owned or licensed by the Company that is incorporated into or utilized by any products or services of the Company where, as a result of the use of such open source or public library licensed Software, the Company is obligated to make available to third parties the source code for the proprietary Software owned or licensed by the Company that is incorporated into such products or services.
(p) To the Knowledge of the Company, none of the Software owned or licensed by the Company contains any program routine, device, or other undisclosed feature, including a time bomb, virus, drop-dead device, malicious logic, worm, trojan horse, bug, keylogger, error, defect, trap door, or other malware of any kind that is designed to delete, disable, deactivate, interfere with, or otherwise harm the Software or the hardware, data, or computer programs or codes of a user of such Software, or that is designed to provide access or produce modifications not authorized by such user.
(q) Except as set forth on Schedule 4.13(q), the information technology systems of the Company, including the relevant Software and hardware, are adequate for the Company’s business as presently conducted. The information technology systems of the Company have not suffered any material failure during the past three (3) years.
(r) The information technology systems of the Company are reasonably secure against intrusion, commensurate with the representations made within client contracts and in compliance in all material respects with applicable Law. To the Knowledge of the Company, the Company has not suffered any security breaches during the past three (3) years that have resulted in a third party obtaining access to any confidential information of the Company, or any of their customers or suppliers. The Company has no pending legal or regulatory, letters of inquiry, claims, proceedings or cases, or, to the Knowledge of the Company, investigations regarding the Company’s data security. To the Knowledge of the Company, the Company is not under audit or examination by any of its clients, business partners or Governmental Body concerning its data security.
(s) The Company is in compliance in all material respects with any posted privacy policies and any Laws or regulations relating to personally identifiable information.
Appears in 1 contract
Technology and Intellectual Property. (a) Schedule 2.10(a) of the Company Disclosure Schedule 5.13(a) sets forth a complete and accurate list, as list of the date of this Agreement, of each (i) issued patent owned by the Company or its Subsidiaries, (ii) pending patent application filed by or on behalf of the Company or its Subsidiaries, (iii) trademark registration, service mark registration, and copyright registration owned by the Company or ▇▇▇ Subsidiaries, (iv) application for trademark registration, service mark registration, and copyright registration made by or on behalf of ▇▇▇ Company or its Subsidiaries, (v) each domain name registered by or on behalf of the Company Cherry or any of its SubsidiariesSubsidiaries and (ii) each material trade name, d/b/a, unregistered trademark, and (vi) material item of Technology, including hardware (other than "off the shelf" hardware that is generally commercially available), Software and algorithms, owned by the Company or its Subsidiaries or used in connection with the operation of the Business of the Company and its Subsidiaries, in each case identified with sufficient precision to permit Parent to reasonably identify the same and the function thereof and, in the case of Software, including the libraries in which it is found. The Company has taken commercially reasonable steps to protect all material trade names, fictitious names, trademarks and unregistered service marks ▇▇▇▇ used by the Company Cherry or any of its Subsidiaries in connection with their business. Neither Cherry nor any of its Subsidiaries owns any (i) patent, (ii) registered trademark or registered service ▇▇▇▇, or (iii) copyright, or other Intellectual Property except as disclosed in Disclosure Schedule 5.13(a).
(b) Except as disclosed in Schedule 2.10(b) of the Company Disclosure Schedule, the Company or its Subsidiaries own all right, title and interest in and to all issued and registered Intellectual Property and Technology set forth in Schedule 2.10(a) of the Company Disclosure Schedule. Except as disclosed in Schedule 2.10(b), to the Knowledge of the Company, all All such registered Intellectual Property is validsubsisting, subsisting and enforceable. All all necessary registration, maintenance, renewal, and other relevant filing fees due through the date hereof in connection therewith have been timely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant patent, copyright, trademark, or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of maintaining such registered Intellectual Property in full force and effect. To the Knowledge of the Company, except as set forth in Schedule 2.10(b) of the Company Disclosure Schedule, there are, as of the date of this Agreement, no filings, payments or similar actions that must be taken by the Company or its Subsidiaries within ninety (90) days following the Closing Date for the purposes of obtaining, maintaining, perfecting or renewing any such registrations and applications.
(c) Except as set forth in Schedule 2.10(c) Cherry or any of the Company Disclosure Schedule, to the Knowledge of the Company, the Company or its Subsidiaries own all right, title and interest in and to, or have valid and continuing rights to use, sell and or license, all Intellectual Property, Software and other Technology used in the conduct of the business and operations of the Company Cherry or any of its Subsidiaries as presently conducted and as currently proposed to be conducted, free and clear of all Liens or obligations (other than such limitations and obligations contained in licenses of Intellectual Property, Software or Technology to the Company or its Subsidiaries) to others. Upon consummation Neither Cherry nor any of its Subsidiaries has received any notice that the business and operations of Cherry or any of its Subsidiaries, their Technology, their products and services and the designing, development, manufacturing, reproduction, use, marketing, sale, distribution, maintenance and modification of any of the transactions contemplated by this Agreementforegoing as presently performed infringe upon, no Liens will be in effect on the misappropriate or otherwise violate any Intellectual Property, Software and Technology that arise under the Notes described in Schedule 2.10(c) Property of the Company Disclosure Scheduleany third party.
(d) Except Neither Cherry nor any of its Subsidiaries is required, obligated, or under any liability whatsoever to make any payments in excess of $1,000 per year by way of royalties, fees or other payments described in the applicable agreements, to any third party with respect to licenses of Software (i) generally available for an annual or one-time license fee of no more than $20,000, (ii) distributed without charge as "freeware" or "shareware," Schedule 2.10(d) of the Company Disclosure Schedule sets forth, to the Knowledge of the Company, a complete and accurate list of all agreements pursuant to which the Company or its Subsidiaries license in or otherwise is authorized to use all any Intellectual Property, Software and other Technology used in the conduct of the business and operations of the Company and its Subsidiaries as presently conducted. To the Knowledge of the Company, except pursuant to the agreements described in clause (i) above Cherry or identified in Schedule 2.10(d) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries are required, pursuant to any express payment terms of the applicable agreements, to make any payments in excess of $20,000 per year to any third party with respect to use of any material Intellectual Property, material Software and other material Technology used in the conduct of the business and operations of the Company and its Subsidiaries as presently conducted.
(e) Neither the execution of this Agreement nor the consummation of the transactions Except as contemplated by this Agreement will result in: (i) the Company or any of its Subsidiaries granting to any third party any right to any Technology or Intellectual Property owned by, or licensed to, the Company or its Subsidiaries; or (ii) the Company or any of its Subsidiaries being bound by, or subject to, any non-compete or other restriction on the operation or scope of its business. Following the Closing, the Company or its Subsidiaries will have the right to exercise all of their current rights under agreements granting rights to the Company or its Subsidiaries with respect to Intellectual Property, Software and other Technology of a third party to the same extent and in the same manner the Company or its Subsidiaries would have been able to had the transaction contemplated by this Agreement not occurred, and without the payment of any additional consideration as a result of such transaction and without the necessity of any third party consent as a result of such transaction.
(f) All non-exclusive licenses granted by the Company or any of its Subsidiaries are set forth on Schedule 2.16(a)(x) of the Company Disclosure Schedule. Except for nonexclusive licenses granted by the Company or its Subsidiaries to end users, distributors and other third parties in the ordinary course of business in connection with the sale and distribution of the Company's products, Schedule 2.10(f) of the Company Disclosure Schedule sets forth a complete and accurate list of all agreements pursuant to which the Company or its Subsidiaries have licensed to a third party, for any purpose, any Intellectual Property, Software or other Technology owned by the Company or its Subsidiaries. Except for nonexclusive licenses granted by the Company or its Subsidiaries to end users, distributors and other third parties in the ordinary course of business in connection with the sale and distribution of the Company's products, Section 2.10(f) of the Company Disclosure Schedule further sets forth a complete and accurate list of all agreements to which the Company or its Subsidiaries are a party containing an agreement to indemnify any other Person against any claim of infringement, violation, misappropriation or unauthorized use of any Intellectual Property of a third party. The Company has delivered to Parent true, correct and complete copies of each agreement set forth in Schedule 2.10(f) of the Company Disclosure Schedule together with all amendments, modifications or supplements thereto.
(g) Except as set forth in Schedule 2.10(g) of the Company Disclosure ScheduleAgreement, neither the Company Cherry nor any of its Subsidiaries have has in the last ten years (i) transferred ownership of, (ii) granted any exclusive license of or right to use, (iii) authorized the retention of any exclusive rights to use use, or contingent right to use (including pursuant to a source code escrow), (iv) authorized joint ownership of or (v) granted any lien, security interest, claim, encumbrance or any other restriction or limitation whatsoever in any or all Intellectual Property, Software or other Technology owned by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has granted any third party an exclusive license or right to use any patents owned by the Company Cherry or any of its Subsidiaries.
(h) Schedule 2.10(h) of the Company Disclosure Schedule sets forth a complete and accurate list of (i) all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) that is owned exclusively by, and is used in the Business of, the Company and its Subsidiaries and (ii) all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) that is not exclusively owned by the Company or its Subsidiaries and is used in the Business of the Company and its Subsidiaries, excluding Software generally available for an annual license fee of no more than $20,000. After the Closing, (x) all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) currently owned exclusively by the Company and its Subsidiaries will continue to be owned exclusively by the Surviving Corporation and its Subsidiaries, (y) the Surviving Corporation and its Subsidiaries will have the same continuing rights to use all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) that is not currently exclusively owned by the Company or its Subsidiaries and is currently used in the Business, and (z) the material Software and material computer hardware currently owned exclusively by the Company and its Subsidiaries are sufficient for the conduct of the Business the Company and its Subsidiaries as presently conducted and as proposed to be conducted prior to the Closing.
(i) Except as set forth in Schedule 2.10(i) of the Company Disclosure Schedule and except for office actions received by the Company or its Subsidiaries in the ordinary course of prosecuting its Intellectual Property registrations, to the Company's Knowledge, no third party has asserted that any Intellectual Property owned by the Company or its Subsidiaries is invalid or unenforceable or infringes on the intellectual property rights of any third party. Except as set forth in Schedule 2.10(i) of the Company Disclosure Schedule, to the Company's Knowledge there is no basis for and there is no threatened or pending action, suit, proceeding, investigation, notice or complaint by any Person or third party before any court or tribunal (including, without limitation, the United States Patent and Trademark Office or equivalent authority anywhere in the world) (i) challenging the validity, enforceability, use or exclusive ownership of any Intellectual Property or Technology owned by the Company or its Subsidiaries or (ii) alleging any infringement, misappropriation, violation, or unfair competition or trade practices by the Company or its Subsidiaries of any Intellectual Property or Technology owned by any Person or third party. Except as set forth in Schedule 2.10(i) of the Company Disclosure Schedule, to the Company's Knowledge there is no basis for and the Company has not threatened or brought any action, suit, proceeding, investigation, notice or complaint against any Person or third party before any court or tribunal (including, without limitation, the United States Patent and Trademark Office or equivalent authority anywhere in the world) (i) challenging the validity, enforceability, use or exclusive ownership of any Intellectual Property or Technology owned by a Person or third party or (ii) alleging any infringement, misappropriation, violation, or unfair competition or trade practices by a Person or third party of any Intellectual Property or Technology owned by the Company or its Subsidiaries.
(j) Except as set forth in Schedule 2.10(j) of the Company Disclosure Schedule, to the Company's Knowledge, as of the date of this Agreement, there are no agreements between the Company and its Subsidiaries and any third party relating to any Intellectual Property owned by the Company or its Subsidiaries under which there are, or are expected to be, any material dispute regarding the scope or performance of such Agreement. Except as set forth in Schedule 2.10(j) of the Company Disclosure Schedule, the Company has not received any written notice from any third party stating that any such material dispute regarding the scope or performance of such Agreement exists.
(k) Except as set forth in Schedule 2.10(k) of the Company Disclosure Schedule, none of the Technology or Intellectual Property owned by the Company or its Subsidiaries is subject to any outstanding injunction, decree, order, judgment, agreement or stipulation that restricts in any manner the use, transfer or licensing thereof by the Company or its Subsidiaries or affects the validity, use or enforceability of any such Technology or Intellectual Property.
(l) The Company has taken adequate measures, consistent with commercially reasonable practices in the industry in which the Company operates, to protect the confidentiality of all trade secrets owned by the Company and its Subsidiaries that are material to the Business as currently conducted and as proposed to be conducted. The Company and its Subsidiaries have executed valid written agreements with all current and past employees who have contributed to the development of Technology and Intellectual Property owned by the Company and its Subsidiaries pursuant to which such employees have (i) assigned to the Company or its Subsidiaries all their rights in and to all Technology and Intellectual Property they may develop in the course of their employment and (ii) agreed to hold all trade secrets and confidential information of the Company and its Subsidiaries in confidence both during and after their employment, and each of such agreements is set forth on Schedule 2.10(l) of the Company Disclosure Schedule. The Company or its Subsidiaries have executed valid written agreements with all current and past consultants and independent contractors who have been retained in connection with the development of Technology and Intellectual Property pursuant to which the consultants and independent contractors have (x) assigned to the Company or its Subsidiaries all their rights in and to such Technology and Intellectual Property and (y) agreed to hold all trade secrets and confidential information of the Company and its Subsidiaries in confidence, both during and after the term of their engagements, and each of such agreements is set forth on Schedule 2.10(l) of the Company
Appears in 1 contract
Sources: Merger Agreement (Institute for Wealth Holdings, Inc.)
Technology and Intellectual Property. (a) Schedule 2.10(aSection 3.13(a) of the Company Disclosure Schedules contains a true and complete list of the following with respect to the Company Owned Intellectual Property Rights (collectively, “Company Registered Intellectual Property Rights”): (i) all issued patents and patent applications, including the owner, the patent number or application number for each jurisdiction in which filed, and the date issued (or date filed); (ii) all registered trademarks, service marks, trade names, trade dress, and applications for registration of any of the foregoing, including the owner, the registration number or application number for each jurisdiction in which filed, and the date of such registration or application; (iii) all registered copyrights and applications for registration of copyrights, including the owner, the registration number or application number for each jurisdiction in which filed, and the date of such registration or application; and (iv) all domain name registrations, including the owner, the registration date, any next renewal deadline and name of registry or issuer. Schedule sets forth 3.13(a) of the Company Disclosure Schedules also contains a true and complete list of all unregistered trademarks, service marks, trade names that are material to the business of the Group Companies.
(b) All Company Registered Intellectual Property Rights are subsisting, and accurate listto the Company’s Knowledge, as valid and enforceable (or in the case of applications for Company Registered Intellectual Property Rights, applied for and pending). To the Company’s Knowledge, there are no actions that must be taken by any Group Company within 90 days after the Closing Date for the purpose of obtaining, maintaining, perfecting, preserving or renewing any Company Registered Intellectual Property Rights. The Group Companies solely own all right, title and interest, free and clear of any Liens, pledges, security interests, claims, or other encumbrances (other than Permitted Liens), in and to the Company Registered Intellectual Property Rights. The Group Companies have not conducted their business, and have not used or enforced (or failed to use or enforce) any Company Owned Intellectual Property, in a manner that would result in the abandonment, cancellation or unenforceability of any item of Company Owned Intellectual Property Rights, and the Group Companies have not taken (or failed to take) any action that would result in the forfeiture or relinquishment of any Company Owned Intellectual Property Rights (other than through the expiration of Company Registered Intellectual Property Rights at the end of their maximum statutory term or pursuant to a good faith business decision). As of the date of this Agreement, of each (i) issued patent owned by the Company there have been no interferences, re-examinations, concurrent use proceedings, oppositions or its Subsidiaries, (ii) pending patent application filed by cancellations brought or on behalf threatened to be brought involving any of the Company or its SubsidiariesRegistered Intellectual Property Rights. The Group Companies have the sole right to file, (iii) trademark registration, service mark registrationprosecute, and copyright registration owned by maintain all applications and registrations with respect to the Company or ▇▇▇ Subsidiaries, (iv) application for trademark registration, service mark registration, and copyright registration made by or on behalf of ▇▇▇ Company or its Subsidiaries, (v) domain name registered by or on behalf of the Company or its Subsidiaries, and (vi) material item of Technology, including hardware (other than "off the shelf" hardware that is generally commercially available), Software and algorithms, owned by the Company or its Subsidiaries or used in connection with the operation of the Business of the Company and its Subsidiaries, in each case identified with sufficient precision to permit Parent to reasonably identify the same and the function thereof and, in the case of Software, including the libraries in which it is found. The Company has taken commercially reasonable steps to protect all material trade names, fictitious names, trademarks and service marks used by the Company or its Subsidiaries in connection with their businessOwned Intellectual Property.
(bc) Except as disclosed in Schedule 2.10(bSection 3.13(c) of the Company Disclosure ScheduleSchedules contains a true and complete list of: (i) all Out-Licenses, including any Out-License that grants any rights to modify or create derivative works of any Company Owned Intellectual Property, or grants sublicenses under any Company Owned Intellectual Property Rights (other than (1) any non-exclusive licenses granted to Group Company customers on substantially the Company’s form customer agreement in the ordinary course of business, (2) non-disclosure agreements entered into in the ordinary course, (3) standard agreements entered into in the ordinary course with the Company’s or any Subsidiary’s contractors, consultants, and service providers to use Company Intellectual Property solely for the benefit of the Group Companies, and (4) nonexclusive licenses to use feedback or trademarks that are incidental to the subject matter of the applicable Out-License in which they are incorporated); (ii) all In-Licenses (other than (1) Off-the-Shelf Software Licenses, (2) Invention Assignment Agreements entered into in the ordinary course of business; (3) non-disclosure agreements entered into in the ordinary course, (4) Open Source Software licenses, (5) nonexclusive feedback licenses and nonexclusive licenses to use trademarks, in each case that are incidental to the subject matter of the applicable agreement in which they are incorporated; and (6) licenses to the Group Companies solely for the purpose of enabling the Group Companies to provide services to the applicable counterparty); and (iii) all present or future royalty payment obligations with respect to any Company Licensed Intellectual Property or under any Out-License or In-License or otherwise.
(d) Section 3.13(d) of the Company or its Subsidiaries Disclosure Schedules lists all material Company Owned Technology, and all Company Products, made commercially available by any Group Company.
(e) The Group Companies (i) exclusively own all right, title and interest in and to all issued and registered the Company Owned Intellectual Property free and Technology clear of conditions, adverse claims, security interests, pledges, Liens, encumbrances (other than Permitted Liens), or any requirement of any past, present, or future royalty payments and (ii) possess adequate and enforceable rights or an exclusive license to use all Company Licensed Intellectual Property necessary for the operation of such Group Company’s business as currently conducted; provided, that the representation in this clause (ii)(y) is made to the Company’s knowledge with respect to third party patent rights. No Group Company has assigned, sold, exclusively licensed or otherwise transferred any ownership interests in any Company Owned Intellectual Property. All Company Owned Intellectual Property owned or used by the Group Companies immediately prior to the Closing will continue to be owned or available for use (as applicable) by the Group Companies on identical terms and conditions immediately after the Closing.
(f) Neither (i) the use, reproduction, modification, manufacturing, distribution, licensing, sublicensing, sale, offering for sale, import, or any other exercise of rights in Company Owned Intellectual Property Rights, (ii) the operation of any Group Company’s business, including such Group Company’s provision of any Company Products; nor (iii) the use, reproduction, modification, manufacture, distribution, licensing, sublicensing, sale, offering for sale, import, or other exploitation by any Group Company of any Company Product, (A) directly or indirectly infringes, violates, interferes with, or misappropriates any Intellectual Property Rights of any Person (other than any patents (including any continuations and continuations in part, divisional, reissues, renewals and applications for any of the foregoing) of any Person), (B) to the Company’s Knowledge, directly or indirectly infringes, violates, interferes with, or misappropriates any patents (including any continuations a continuations in part, divisional, reissues, renewals and applications for any of the foregoing) of any Person; or (C) constitutes unfair competition or unfair trade practice. To the Company’s Knowledge, no Person, including any current or former employee, consultant, or contractor of any Group Company, has infringed, violated, interfered with or misappropriated, or is infringing, violating, interfering with or misappropriating, any Company Owned Intellectual Property Rights.
(g) As of the date hereof, no Group Company has received written notice of and, to the Company’s Knowledge, there are no claims or actions: (i) challenging the validity, effectiveness, use of, or ownership by any Group Company of any Company Owned Technology, (ii) challenging the validity, effectiveness, use or ownership of any Group Company’s rights in Company Licensed Intellectual Property, or (iii) alleging that any of the activities of any Group Company specified in clauses (i), (ii), or (iii) of Section 3.13(f), infringes, violates, interferes with or misappropriates, or will infringe, violate, interfere with or misappropriate, any other Person’s Intellectual Property Rights or constitutes unfair competition or unfair trade practices under the Laws of the applicable jurisdiction.
(h) Except as set forth in Schedule 2.10(aSection 3.13(h) of the Company Disclosure ScheduleSchedules, no Person other than the Group Companies possess any current or contingent rights of any kind to any source code included in Company Owned Intellectual Property, and no Group Company has granted any current or contingent rights of any kind to any source code that is part of any Company Licensed Intellectual Property.
(i) All current and former Group Company employees, consultants, contractors and any other Persons who have contributed to or created any portion of, or otherwise have any rights in or to, any Company Owned Intellectual Property or any Company Products, have executed and delivered, and, to the Company’s Knowledge, are in compliance with, enforceable written Contracts that, to the extent permitted under applicable Law, validly and effectively assign to the Company all Intellectual Property conceived, created, developed, written, invented, discovered, or reduced to practice by such employees, consultants, contractors, or other Persons, or through which ownership of all such Intellectual Property otherwise vests in the Company, or where such transfer of ownership is not admissible by operation of law, has granted the Company the perpetual, geographically unlimited, exclusive and transferable right of use with respect to all currently known and future exploitation methods as well as the right to amend or adapt (“Invention Assignment Agreements”). Except The Company has provided true, correct and complete copies of all forms of Invention Assignment Agreements to BCSA.
(j) Each Group Company has taken commercially reasonable steps to protect rights in trade secrets and other confidential information (both of such Group Company and that of third parties that such Group Company has received under an obligation of confidentiality). Each Group Company has taken commercially reasonable steps to maintain confidentiality of such trade secrets and other confidential information from all (i) employees, (ii) consultants and contractors (including terms that bind the employees of any consultants or contractors), and (iii) any other Persons with whom such Group Company has shared such trade secrets and other confidential information. Each Group Company is in compliance in all material respects with the provisions of any agreements related to the foregoing.
(k) No Software used or distributed in connection with any Company Technology, or any Company Product is, or, when delivered to BCSA, will be, in whole or in part, subject to an Excluded License. No Group Company has distributed or published to any Person any Software used in any Company Owned Technology, or any Company Product, that is, in whole or in part, subject to an Excluded License. Each Group Company, including applicable employees, consultants and contractors, has followed the industry standard principles regarding the use of Open Source Software, including principles regarding integration of Open Source Software with Company Technology and to ensure compliance with Open Source Software licenses. Each Group Company has taken commercially reasonable steps to ensure that no Group Company employee, consultant or contractor uses any Open Source Software in any manner not permitted by such principles.
(l) No Group Company is a member of any standards-setting organization (including any group or organization, such as disclosed special interest groups, forums, consortia, committees, working groups or associations) that develops (or attempts to develop), adopts or publishes technical standards or specifications for a product, platform or process in Schedule 2.10(b)furtherance of common design or interoperability among products employing such standards or specifications. No Group Company has participated (nor authorized any consultant or employee of any Group Company to participate) in any standards-setting that would affect the proprietary nature of any Company Owned Intellectual Property or restrict the ability of any Group Company to enforce, license or exclude others from using or licensing any Company Owned Intellectual Property on any terms proposed by any Group Company. There is no existing obligation imposed by any standards-setting organization on any Group Company, or attached to or imposed on any Company Owned Intellectual Property, to license or agree to license, covenant not to sue or withhold enforcement on Company Owned Intellectual Property.
(m) No funding, facilities or personnel of any Governmental Entity or any university, college or other educational institution, research center, or non-profit organization were used, directly or indirectly, to develop or create, in whole or in part, any Company Owned Intellectual Property, in a manner that has resulted in such entity retaining any claim of ownership or right to use any such Company Owned Intellectual Property. No current or former employee or, to the Knowledge of the Company, all such registered independent contractor of any Group Company who contributed to the creation or development of any Company Owned Intellectual Property is validhas performed services of any kind, subsisting and enforceable. All necessary registrationwhether on a full or part- time or paid or volunteer basis, maintenancefor any Governmental Entity or any university, renewal, and other relevant filing fees due through the date hereof in connection therewith have been timely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant patent, copyright, trademarkcollege, or other authorities educational institution, research center, or non- profit organization during a period of time during which such employee or independent contractor was also performing services for any Group Company in a manner that would adversely affect the Group Company’s rights in the United States Company Owned Intellectual Property. No Governmental Entity has any rights to Company Owned Intellectual Property.
(n) Neither the execution, delivery, or foreign jurisdictionsperformance of this Agreement (or any exhibit or schedule thereto), nor the consummation of the Transactions or any of the other agreements contemplated by this Agreement will, as a result of any Contract entered into by any Group Company prior to the case may beClosing Date: (i) result in the breach of, for or create on behalf of any third party the purposes right to terminate or modify, any Contract relating to any material Company Intellectual Property; (ii) result in or require the grant, assignment or transfer to any other Person (other than the Company) of maintaining such registered any license or other right or interest under, to or in any material Company Intellectual Property in full force and effect. To the Knowledge Property; or (iii) cause a material loss or impairment of any material Company Intellectual Property.
(o) Each of the CompanyGroup Companies has obtained and possesses valid licenses to use all of the Software present on the computers and other Software-enabled electronic devices that it owns or leases or that it has otherwise provided to its employees for their use in connection with the business of the Group Companies. Each of the Group Companies is in compliance in all material respects with all of its Software licenses, except as set forth including its Off-the-Shelf Software Licenses. The Company IT Systems are in Schedule 2.10(b) satisfactory working order and are scalable to meet current capacity. The Group Companies own all of the Company Disclosure Schedule, there are, as of the date of this Agreement, no filings, payments or similar actions that must be taken by the Company or its Subsidiaries within ninety (90) days following the Closing Date for the purposes of obtaining, maintaining, perfecting or renewing any such registrations and applications.
(c) Except as set forth in Schedule 2.10(c) of the Company Disclosure Schedule, to the Knowledge of the Company, the Company or its Subsidiaries own all right, title and interest in and to, or have valid rights to use, sell and license, all Intellectual Property, Software and other Technology used in the conduct of the business and operations of the Company or its Subsidiaries as presently conducted and as currently proposed to be conducted, IT Systems free and clear of all Liens conditions, adverse claims, security interests, pledges, Liens, or obligations encumbrances (other than such limitations Permitted Liens), or have obtained and obligations contained in licenses of Intellectual Propertypossess valid leases or licenses, Software or Technology otherwise have legally enforceable and sufficient rights, to the Company or its Subsidiaries) use to others. Upon consummation of the transactions contemplated by this Agreement, no Liens will be in effect on the Intellectual Property, Software and Technology that arise under the Notes described in Schedule 2.10(c) use all of the Company Disclosure Schedule.
(d) Except with respect to licenses of Software (i) generally available for an annual or one-time license fee of no more than $20,000, (ii) distributed without charge as "freeware" or "shareware," Schedule 2.10(d) of IT Systems. All the Company Disclosure Schedule sets forth, IT Systems owned or used by the Group Companies immediately prior to the Knowledge of the Company, a complete and accurate list of all agreements pursuant to which the Company or its Subsidiaries license in or otherwise is authorized to use all Intellectual Property, Software and other Technology used in the conduct of the business and operations of the Company and its Subsidiaries as presently conducted. To the Knowledge of the Company, except pursuant to the agreements described in clause (i) above or identified in Schedule 2.10(d) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries are required, pursuant to any express payment terms of the applicable agreements, to make any payments in excess of $20,000 per year to any third party with respect to use of any material Intellectual Property, material Software and other material Technology used in the conduct of the business and operations of the Company and its Subsidiaries as presently conducted.
(e) Neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement will result in: (i) the Company or any of its Subsidiaries granting to any third party any right to any Technology or Intellectual Property owned by, or licensed to, the Company or its Subsidiaries; or (ii) the Company or any of its Subsidiaries being bound by, or subject to, any non-compete or other restriction on the operation or scope of its business. Following the Closing, the Company or its Subsidiaries will have the right to exercise all of their current rights under agreements granting rights to the Company or its Subsidiaries with respect to Intellectual Property, Software and other Technology of a third party to the same extent and in the same manner the Company or its Subsidiaries would have been able to had the transaction contemplated by this Agreement not occurred, and without the payment of any additional consideration as a result of such transaction and without the necessity of any third party consent as a result of such transaction.
(f) All non-exclusive licenses granted by the Company or any of its Subsidiaries are set forth on Schedule 2.16(a)(x) of the Company Disclosure Schedule. Except for nonexclusive licenses granted by the Company or its Subsidiaries to end users, distributors and other third parties in the ordinary course of business in connection with the sale and distribution of the Company's products, Schedule 2.10(f) of the Company Disclosure Schedule sets forth a complete and accurate list of all agreements pursuant to which the Company or its Subsidiaries have licensed to a third party, for any purpose, any Intellectual Property, Software or other Technology owned by the Company or its Subsidiaries. Except for nonexclusive licenses granted by the Company or its Subsidiaries to end users, distributors and other third parties in the ordinary course of business in connection with the sale and distribution of the Company's products, Section 2.10(f) of the Company Disclosure Schedule further sets forth a complete and accurate list of all agreements to which the Company or its Subsidiaries are a party containing an agreement to indemnify any other Person against any claim of infringement, violation, misappropriation or unauthorized use of any Intellectual Property of a third party. The Company has delivered to Parent true, correct and complete copies of each agreement set forth in Schedule 2.10(f) of the Company Disclosure Schedule together with all amendments, modifications or supplements thereto.
(g) Except as set forth in Schedule 2.10(g) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries have in the last ten years (i) transferred ownership of, (ii) granted any exclusive license of or right to use, (iii) authorized the retention of any exclusive rights to use or contingent right to use (including pursuant to a source code escrow), (iv) authorized joint ownership of or (v) granted any lien, security interest, claim, encumbrance or any other restriction or limitation whatsoever in any or all Intellectual Property, Software or other Technology owned by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has granted any third party an exclusive license or right to use any patents owned by the Company or any of its Subsidiaries.
(h) Schedule 2.10(h) of the Company Disclosure Schedule sets forth a complete and accurate list of (i) all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) that is owned exclusively by, and is used in the Business of, the Company and its Subsidiaries and (ii) all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) that is not exclusively owned by the Company or its Subsidiaries and is used in the Business of the Company and its Subsidiaries, excluding Software generally available for an annual license fee of no more than $20,000. After the Closing, (x) all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) currently owned exclusively by the Company and its Subsidiaries Closing will continue to be owned exclusively or available for use (as applicable) by the Surviving Corporation Group Companies on identical terms and its Subsidiaries, (y) the Surviving Corporation and its Subsidiaries will have the same continuing rights to use all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) that is not currently exclusively owned by the Company or its Subsidiaries and is currently used in the Business, and (z) the material Software and material computer hardware currently owned exclusively by the Company and its Subsidiaries are sufficient for the conduct of the Business the Company and its Subsidiaries as presently conducted and as proposed to be conducted prior to conditions immediately after the Closing.
(ip) Except as set forth in Schedule 2.10(i) The Company IT Systems are sufficient for the current and currently intended future needs of the business and are free from any malicious or disabling code or instructions, “viruses,” “worms,” “ransomware,” “spyware,” or similar Software, or other Software or hardware components that are designed to permit unauthorized access to or disablement of any of the Company Disclosure Schedule and except for office actions received by the Company IT Systems. There have been no failures or its Subsidiaries in the ordinary course of prosecuting its Intellectual Property registrations, to the Company's Knowledge, no third party has asserted that other adverse events affecting any Intellectual Property owned by the Company or its Subsidiaries is invalid or unenforceable or infringes on the intellectual property rights of any third party. Except as set forth in Schedule 2.10(i) of the Company Disclosure Schedule, to the Company's Knowledge there is no basis for and there is no threatened or pending action, suit, proceeding, investigation, notice or complaint by any Person or third party before any court or tribunal (including, without limitation, the United States Patent and Trademark Office or equivalent authority anywhere in the world) (i) challenging the validity, enforceability, use or exclusive ownership of any Intellectual Property or Technology owned by the Company or its Subsidiaries or (ii) alleging any infringement, misappropriation, violation, or unfair competition or trade practices by the Company or its Subsidiaries of any Intellectual Property or Technology owned by any Person or third party. Except as set forth in Schedule 2.10(i) of the Company Disclosure Schedule, to the Company's Knowledge there is no basis for and the Company has not threatened or brought any action, suit, proceeding, investigation, notice or complaint against any Person or third party before any court or tribunal (including, without limitation, the United States Patent and Trademark Office or equivalent authority anywhere in the world) (i) challenging the validity, enforceability, use or exclusive ownership of any Intellectual Property or Technology owned by a Person or third party or (ii) alleging any infringement, misappropriation, violation, or unfair competition or trade practices by a Person or third party of any Intellectual Property or Technology owned by the Company or its Subsidiaries.
(j) Except as set forth in Schedule 2.10(j) of the Company Disclosure Schedule, to the Company's Knowledge, as of the date of this Agreement, there are no agreements between the Company and its Subsidiaries and any third party relating to any Intellectual Property owned by the Company or its Subsidiaries under which there are, or are expected to be, any material dispute regarding the scope or performance of such Agreement. Except as set forth in Schedule 2.10(j) of the Company Disclosure Schedule, the Company has not received any written notice from any third party stating IT Systems that any such material dispute regarding the scope or performance of such Agreement exists.
(k) Except as set forth in Schedule 2.10(k) of the Company Disclosure Schedule, none of the Technology or Intellectual Property owned by the Company or its Subsidiaries is subject to any outstanding injunction, decree, order, judgment, agreement or stipulation that restricts in any manner the use, transfer or licensing thereof by the Company or its Subsidiaries or affects the validity, use or enforceability of any such Technology or Intellectual Property.
(l) The Company has taken adequate measures, consistent with commercially reasonable practices in the industry in which the Company operates, to protect the confidentiality of all trade secrets owned by the Company and its Subsidiaries that are material to the Business as currently conducted and as proposed to be conducted. The Company and its Subsidiaries have executed valid written agreements with all current and past employees who have contributed to the development of Technology and Intellectual Property owned by the Company and its Subsidiaries pursuant to which such employees have (i) assigned to the Company or its Subsidiaries all their rights in and to all Technology and Intellectual Property they may develop in the course of their employment and (ii) agreed to hold all trade secrets and confidential information of the Company and its Subsidiaries in confidence both during and after their employment, and each of such agreements is set forth on Schedule 2.10(l) of the Company Disclosure Schedule. The Company or its Subsidiaries have executed valid written agreements with all current and past consultants and independent contractors who have been retained in connection with the development of Technology and Intellectual Property pursuant to which the consultants and independent contractors have (x) assigned to the Company or its Subsidiaries all their rights in and to such Technology and Intellectual Property and (y) agreed to hold all trade secrets and confidential information of the Company and its Subsidiaries in confidence, both during and after the term of their engagements, and each of such agreements is set forth on Schedule 2.10(l) of the Companycaused a
Appears in 1 contract
Sources: Business Combination Agreement (Blockchain Coinvestors Acquisition Corp. I)
Technology and Intellectual Property. (a) Schedule 2.10(aSection 3.13(a) of the Company Disclosure Schedule sets forth Schedules contains a true and complete list of the following with respect to the Company Owned Intellectual Property Rights (collectively, “Company Registered Intellectual Property Rights”): (i) all issued patents and accurate listpatent applications, including the owner, the patent number or application number for each jurisdiction in which filed, and the date issued (or date filed); (ii) all registered trademarks, service marks, trade names, trade dress, and applications for registration of any of the foregoing, including the owner, the registration number or application number for each jurisdiction in which filed, and the date of such registration or application; (iii) all registered copyrights and applications for registration of copyrights, including the owner, the registration number or application number for each jurisdiction in which filed, and the date of such registration or application; and (iv) all domain name registrations, including the owner, the registration date, any next renewal deadline and name of registry or issuer. Section 3.13(a) of the Company Disclosure Schedules also contains a true and complete list of all unregistered trademarks, service marks, trade names that are material to the business of the Group Companies.
(b) All Company Registered Intellectual Property Rights are subsisting, and to the Company’s Knowledge, valid and enforceable (or in the case of applications for Company Registered Intellectual Property Rights, applied for and pending), except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Group Companies solely own all right, title and interest, free and clear of any Liens (other than Permitted Liens), in and to the Company Registered Intellectual Property Rights. The Group Companies have not conducted their business, and have not used or enforced (or failed to use or enforce) any Company Registered Intellectual Property material to the conduct of the Group Companies’ business, taken as a whole, in a manner that would result in the abandonment, cancellation or unenforceability of any such item of Company Registered Intellectual Property Rights, and the Group Companies have not taken (or failed to take) any action that would result in the forfeiture or relinquishment of any such Company Registered Intellectual Property Rights (other than through the expiration of such Company Registered Intellectual Property Rights at the end of their maximum statutory term or pursuant to a good faith business decision). As of the date of this Agreement, of each (i) issued patent owned by the Company there have been no interferences, re-examinations, concurrent use proceedings, oppositions or its Subsidiaries, (ii) pending patent application filed by cancellations brought or on behalf threatened to be brought involving any of the Company or its SubsidiariesRegistered Intellectual Property Rights material to the conduct of the Group Companies’ business, (iii) trademark registrationtaken as a whole. The Group Companies have the sole right to file, service mark registrationprosecute, and copyright registration owned by maintain all applications and registrations with respect to the Company or ▇▇▇ Subsidiaries, (iv) application for trademark registration, service mark registration, and copyright registration made by or on behalf of ▇▇▇ Company or its Subsidiaries, (v) domain name registered by or on behalf Registered Intellectual Property Rights material to the conduct of the Company or its SubsidiariesGroup Companies’ business, and (vi) material item of Technology, including hardware (other than "off the shelf" hardware that is generally commercially available), Software and algorithms, owned by the Company or its Subsidiaries or used in connection with the operation of the Business of the Company and its Subsidiaries, in each case identified with sufficient precision to permit Parent to reasonably identify the same and the function thereof and, in the case of Software, including the libraries in which it is found. The Company has taken commercially reasonable steps to protect all material trade names, fictitious names, trademarks and service marks used by the Company or its Subsidiaries in connection with their businessas a whole.
(bc) Except as disclosed in Schedule 2.10(bSection 3.13(c) of the Company Disclosure ScheduleSchedules contains a true and complete list of: (i) all Out-Licenses, including any Out-License that grants any rights to modify or create derivative works of any Company Owned Intellectual Property, or grants sublicenses under any Company Owned Intellectual Property Rights (other than (1) any non-exclusive licenses granted to Group Company customers in the ordinary course of business, (2) non-disclosure agreements entered into in the ordinary course, (3) standard agreements entered into in the ordinary course with the Company’s or any Subsidiary’s vendors, suppliers, manufacturing partners, contractors, consultants, and other service providers to use Company Intellectual Property solely for the benefit of the Group Companies, and (4) nonexclusive licenses to use feedback or trademarks that are incidental to the subject matter of the applicable Out-License in which they are incorporated); and (ii) all In-Licenses (other than (1) Off-the-Shelf Software Licenses, (2) Invention Assignment Agreements entered into in the ordinary course of business; (3) non-disclosure agreements entered into in the ordinary course, (4) Open Source Software licenses, (5) nonexclusive feedback licenses and nonexclusive licenses to use trademarks, in each case that are incidental to the subject matter of the applicable agreement in which they are incorporated; and (6) licenses to the Group Companies solely for the purpose of enabling the Group Companies to provide services to the applicable counterparty).
(d) Section 3.13(d) of the Company or its Subsidiaries Disclosure Schedules lists all material Company Owned Technology, and all Company Products, made commercially available by any Group Company.
(e) The Group Companies (i) exclusively own all right, title and interest in and to all issued and registered Intellectual Property and Technology set forth in Schedule 2.10(a) of the material Company Disclosure Schedule. Except as disclosed in Schedule 2.10(b), to the Knowledge of the Company, all such registered Intellectual Property is valid, subsisting and enforceable. All necessary registration, maintenance, renewal, and other relevant filing fees due through the date hereof in connection therewith have been timely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant patent, copyright, trademark, or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of maintaining such registered Intellectual Property in full force and effect. To the Knowledge of the Company, except as set forth in Schedule 2.10(b) of the Company Disclosure Schedule, there are, as of the date of this Agreement, no filings, payments or similar actions that must be taken by the Company or its Subsidiaries within ninety (90) days following the Closing Date for the purposes of obtaining, maintaining, perfecting or renewing any such registrations and applications.
(c) Except as set forth in Schedule 2.10(c) of the Company Disclosure Schedule, to the Knowledge of the Company, the Company or its Subsidiaries own all right, title and interest in and to, or have valid rights to use, sell and license, all Owned Intellectual Property, Software and other Technology used in the conduct of the business and operations of the Company or its Subsidiaries as presently conducted and as currently proposed to be conducted, free and clear of all any Liens or obligations (other than such limitations Permitted Liens), and obligations contained in licenses of (ii) possess adequate and enforceable rights or an exclusive license to use all material Company Licensed Intellectual Property; provided, Software or Technology that the representation in this clause (ii) is made to the Company or its Subsidiaries) to others. Upon consummation of the transactions contemplated by this Agreement, no Liens will be in effect on the Intellectual Property, Software and Technology that arise under the Notes described in Schedule 2.10(c) of the Company Disclosure Schedule.
(d) Except Company’s Knowledge with respect to licenses of Software (i) generally available for an annual the licensor’s Intellectual Property Rights in such Intellectual Property. No Group Company has exclusively licensed any material Company Owned Intellectual Property. All Company Owned Intellectual Property owned or one-time license fee of no more than $20,000, (ii) distributed without charge as "freeware" or "shareware," Schedule 2.10(d) of used by the Company Disclosure Schedule sets forth, Group Companies immediately prior to the Knowledge of the Company, a complete Closing and accurate list of all agreements pursuant material to which the Company or its Subsidiaries license in or otherwise is authorized to use all Intellectual Property, Software and other Technology used in the conduct of the business Group Companies’ business, taken as a whole, will continue to be owned or available for use (as applicable) by the Group Companies on identical terms and operations of the Company and its Subsidiaries as presently conducted. To the Knowledge of the Company, except pursuant to the agreements described in clause (i) above or identified in Schedule 2.10(d) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries are required, pursuant to any express payment terms of the applicable agreements, to make any payments in excess of $20,000 per year to any third party with respect to use of any material Intellectual Property, material Software and other material Technology used in the conduct of the business and operations of the Company and its Subsidiaries as presently conducted.
(e) Neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement will result in: (i) the Company or any of its Subsidiaries granting to any third party any right to any Technology or Intellectual Property owned by, or licensed to, the Company or its Subsidiaries; or (ii) the Company or any of its Subsidiaries being bound by, or subject to, any non-compete or other restriction on the operation or scope of its business. Following conditions immediately after the Closing, the Company or its Subsidiaries will have the right to exercise all of their current rights under agreements granting rights to the Company or its Subsidiaries with respect to Intellectual Property, Software and other Technology of a third party to the same extent and in the same manner the Company or its Subsidiaries would have been able to had the transaction contemplated by this Agreement not occurred, and without the payment of any additional consideration as a result of such transaction and without the necessity of any third party consent as a result of such transaction.
(f) All non-exclusive licenses granted by Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither (i) the use, reproduction, modification, manufacturing, distribution, licensing, sublicensing, sale, offering for sale, import, or any other exercise of its Subsidiaries are set forth on Schedule 2.16(a)(xrights in Company Owned Intellectual Property Rights; nor (ii) the operation of any Group Company’s business, including such Group Company’s provision of any Company Products; nor (iii) the use, reproduction, modification, manufacture, distribution, licensing, sublicensing, sale, offering for sale, import, or other exploitation by any Group Company of any Company Product, (A) directly or indirectly infringes, violates, interferes with, or misappropriates any Intellectual Property Rights of any Person (other than any patents (including any continuations and continuations in part, divisional, reissues, renewals and applications for any of the foregoing) of any Person), (B) to the Company Disclosure Schedule. Except Company’s Knowledge, directly or indirectly infringes, violates, interferes with, or misappropriates any patents (including any continuations a continuations in part, divisional, reissues, renewals and applications for nonexclusive licenses granted by the Company or its Subsidiaries to end users, distributors and other third parties in the ordinary course of business in connection with the sale and distribution any of the Company's products, Schedule 2.10(fforegoing) of any Person; or (C) constitutes unfair competition or unfair trade practice. To the Company Disclosure Schedule sets forth a complete and accurate list Company’s Knowledge, no Person, including any current or former employee, consultant, or contractor of all agreements pursuant to which the Company any Group Company, has infringed, violated, interfered with or its Subsidiaries have licensed to a third partymisappropriated, for any purposeor is infringing, violating, interfering with or misappropriating, any Company Owned Intellectual Property Rights.
(g) As of the date hereof, no Group Company has received written notice of any claims or actions: (i) challenging the validity, effectiveness, use of, or ownership by any Group Company of any Company Owned Technology, (ii) challenging the validity, effectiveness, use or ownership of any Group Company’s rights in Company Licensed Intellectual Property, Software or (iii) alleging that any of the activities of any Group Company specified in clauses (i), (ii), or (iii) of Section 3.13(f), infringes, violates, interferes with or misappropriates, or will infringe, violate, interfere with or misappropriate, any other Person’s Intellectual Property Rights or constitutes unfair competition or unfair trade practices under the Laws of the applicable jurisdiction.
(h) All current and former Group Company employees, consultants, contractors and any other Persons who have contributed to or created any portion of, or otherwise have any rights in or to, any Company Owned Intellectual Property or any Company Products, have executed and delivered, and, to the Company’s Knowledge, are in compliance with, written Contracts that, to the extent permitted under applicable Law, validly and effectively assign to the Company all Intellectual Property conceived, created, developed, written, invented, discovered, or reduced to practice by such employees, consultants, contractors, or other Technology owned Persons in the course of their employment or engagement with the Group Company, or through which ownership of all such Intellectual Property otherwise vests in the Company, or where such transfer of ownership is not admissible by operation of law, has granted the Company the perpetual, geographically unlimited, exclusive and transferable right of use with respect to all currently known and future exploitation methods as well as the right to amend or its Subsidiaries. Except for nonexclusive licenses granted by the Company or its Subsidiaries to end users, distributors and other third parties in the ordinary course of business in connection with the sale and distribution of the Company's products, Section 2.10(f) of the Company Disclosure Schedule further sets forth a complete and accurate list of all agreements to which the Company or its Subsidiaries are a party containing an agreement to indemnify any other Person against any claim of infringement, violation, misappropriation or unauthorized use of any Intellectual Property of a third partyadapt (“Invention Assignment Agreements”). The Company has delivered to Parent provided true, correct and complete copies of each agreement set forth in Schedule 2.10(f) all forms of the Company Disclosure Schedule together with all amendments, modifications or supplements thereto.
(g) Except as set forth in Schedule 2.10(g) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries have in the last ten years (i) transferred ownership of, (ii) granted any exclusive license of or right Invention Assignment Agreements to use, (iii) authorized the retention of any exclusive rights to use or contingent right to use (including pursuant to a source code escrow), (iv) authorized joint ownership of or (v) granted any lien, security interest, claim, encumbrance or any other restriction or limitation whatsoever in any or all Intellectual Property, Software or other Technology owned by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has granted any third party an exclusive license or right to use any patents owned by the Company or any of its Subsidiaries.
(h) Schedule 2.10(h) of the Company Disclosure Schedule sets forth a complete and accurate list of (i) all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) that is owned exclusively by, and is used in the Business of, the Company and its Subsidiaries and (ii) all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) that is not exclusively owned by the Company or its Subsidiaries and is used in the Business of the Company and its Subsidiaries, excluding Software generally available for an annual license fee of no more than $20,000. After the Closing, (x) all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) currently owned exclusively by the Company and its Subsidiaries will continue to be owned exclusively by the Surviving Corporation and its Subsidiaries, (y) the Surviving Corporation and its Subsidiaries will have the same continuing rights to use all material Software and material computer hardware (other than "off the shelf" hardware that is generally commercially available) that is not currently exclusively owned by the Company or its Subsidiaries and is currently used in the Business, and (z) the material Software and material computer hardware currently owned exclusively by the Company and its Subsidiaries are sufficient for the conduct of the Business the Company and its Subsidiaries as presently conducted and as proposed to be conducted prior to the ClosingSPAC.
(i) Except as set forth Each Group Company has taken commercially reasonable steps to protect rights in Schedule 2.10(i) trade secrets and other confidential information (both of the such Group Company Disclosure Schedule and except for office actions that of third parties that such Group Company has received by the under an obligation of confidentiality). Each Group Company or its Subsidiaries in the ordinary course has taken commercially reasonable steps to maintain confidentiality of prosecuting its Intellectual Property registrations, to the Company's Knowledge, no third party has asserted that any Intellectual Property owned by the Company or its Subsidiaries is invalid or unenforceable or infringes on the intellectual property rights of any third party. Except as set forth in Schedule 2.10(i) of the Company Disclosure Schedule, to the Company's Knowledge there is no basis for such trade secrets and there is no threatened or pending action, suit, proceeding, investigation, notice or complaint by any Person or third party before any court or tribunal (including, without limitation, the United States Patent and Trademark Office or equivalent authority anywhere in the world) other confidential information from all (i) challenging the validityemployees, enforceability, use or exclusive ownership of any Intellectual Property or Technology owned by the Company or its Subsidiaries or (ii) alleging any infringement, misappropriation, violation, or unfair competition or trade practices by consultants and contractors (including terms that bind the Company or its Subsidiaries employees of any Intellectual Property consultants or Technology owned by contractors), and (iii) any Person or third partyother Persons with whom such Group Company has shared such trade secrets and other confidential information. Except as set forth Each Group Company is in Schedule 2.10(i) compliance in all material respects with the provisions of the Company Disclosure Schedule, any agreements related to the Company's Knowledge there is no basis for and the Company has not threatened or brought any action, suit, proceeding, investigation, notice or complaint against any Person or third party before any court or tribunal (including, without limitation, the United States Patent and Trademark Office or equivalent authority anywhere in the world) (i) challenging the validity, enforceability, use or exclusive ownership of any Intellectual Property or Technology owned by a Person or third party or (ii) alleging any infringement, misappropriation, violation, or unfair competition or trade practices by a Person or third party of any Intellectual Property or Technology owned by the Company or its Subsidiariesforegoing.
(j) Except as set forth No Software used or distributed in Schedule 2.10(j) of the connection with any Company Disclosure ScheduleTechnology, or any Company Product is, or, when delivered to the Company's KnowledgeSPAC, as of the date of this Agreementwill be, there are no agreements between the in whole or in part, subject to an Excluded License. No Group Company and its Subsidiaries and any third party relating has distributed or published to any Intellectual Property owned by the Person any Software used in any Company or its Subsidiaries under which there areOwned Technology, or are expected any Company Product, that is, in whole or in part, subject to bean Excluded License. Each Group Company, any including applicable employees, consultants and contractors, has followed in all material dispute respects the industry standard principles regarding the scope or performance use of such AgreementOpen Source Software, including principles regarding integration of Open Source Software with Company Technology and to ensure compliance with Open Source Software licenses. Except as set forth in Schedule 2.10(j) of the Company Disclosure Schedule, the Each Group Company has taken commercially reasonable steps to ensure that no Group Company employee, consultant or contractor uses any Open Source Software in any manner not received any written notice from any third party stating that any permitted by such material dispute regarding the scope or performance of such Agreement existsprinciples.
(k) Except No Group Company is a member of any standards-setting organization (including any group or organization, such as set forth special interest groups, forums, consortia, committees, working groups or associations) that develops (or attempts to develop), adopts or publishes technical standards or specifications for a product, platform or process in Schedule 2.10(kfurtherance of common design or interoperability among products employing such standards or specifications. No Group Company has participated (nor authorized any consultant or employee of any Group Company to participate) in any standards-setting that would affect the proprietary nature of the any Company Disclosure Schedule, none of the Technology or Owned Intellectual Property owned by or restrict the ability of any Group Company to enforce, license or its Subsidiaries is subject to any outstanding injunction, decree, order, judgment, agreement or stipulation that restricts in any manner the use, transfer exclude others from using or licensing thereof any Company Owned Intellectual Property on any terms proposed by the any Group Company. There is no existing obligation imposed by any standards-setting organization on any Group Company, or attached to or imposed on any Company Owned Intellectual Property, to license or its Subsidiaries agree to license, covenant not to sue or affects the validity, use or enforceability of any such Technology or withhold enforcement on Company Owned Intellectual Property.
(l) The Neither the execution, delivery, or performance of this Agreement (or any exhibit or schedule thereto), nor the consummation of the Transactions or any of the other agreements contemplated by this Agreement will, as a result of any Contract entered into by any Group Company has taken adequate measures, consistent with commercially reasonable practices in the industry in which the Company operates, to protect the confidentiality of all trade secrets owned by the Company and its Subsidiaries that are material prior to the Business as currently conducted and as proposed to be conducted. The Company and its Subsidiaries have executed valid written agreements with all current and past employees who have contributed to the development of Technology and Intellectual Property owned by the Company and its Subsidiaries pursuant to which such employees have Closing Date: (i) assigned to the Company or its Subsidiaries all their rights in and to all Technology and Intellectual Property they may develop result in the course breach of, or create on behalf of their employment and any third party the right to terminate or modify, any Contract relating to any material Company Intellectual Property; (ii) agreed result in or require the grant, assignment or transfer to hold all trade secrets and confidential information any other Person (other than the Company) of any license or other right or interest under, to or in any material Company Intellectual Property; or (iii) cause a material loss or impairment of any material Company Intellectual Property.
(m) Each of the Company Group Companies has obtained and its Subsidiaries in confidence both during and after their employment, and each of such agreements is set forth on Schedule 2.10(l) possesses valid licenses to use all of the Company Disclosure Schedule. The Company Software present on the computers and other Software-enabled electronic devices that it owns or leases or that it has otherwise provided to its Subsidiaries have executed valid written agreements with all current and past consultants and independent contractors who have been retained employees for their use in connection with the development business of Technology the Group Companies, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each of the Group Companies is in compliance with all of its Software licenses, including its Off-the-Shelf Software Licenses, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Group Companies own all material Company IT Systems free and Intellectual Property pursuant clear of all conditions, adverse claims, security interests, pledges, Liens, or encumbrances (other than Permitted Liens), or have obtained and possess valid leases or licenses, or otherwise have legally enforceable and sufficient rights, to which use to use all material Company IT Systems. All the consultants and independent contractors have (x) assigned Company IT Systems owned or used by the Group Companies immediately prior to the Closing will continue to be owned or available for use (as applicable) by the Group Companies on identical terms and conditions immediately after the Closing, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(n) The Company IT Systems are in satisfactory working order, are reasonably sufficient for the current and currently intended future needs of the business and, to the Company’s Knowledge, are free from any malicious or its Subsidiaries all their rights in and disabling code or instructions, “viruses,” “worms,” “ransomware,” “spyware,” or similar Software, or other Software or hardware components that are designed to such Technology and Intellectual Property and (y) agreed permit unauthorized access to hold all trade secrets and confidential information or disablement of any of the Company and its Subsidiaries IT Systems. There have been no failures or other adverse events affecting any of the Company IT Systems that have caused any material disruption in confidence, both during and after or to the term of their engagements, and each use of such agreements is set forth on Schedule 2.10(l) Company IT Systems or the business of the CompanyGroup Companies. The Group Companies have adequate business continuity and disaster recovery plans in place.
Appears in 1 contract
Sources: Business Combination Agreement (AlphaVest Acquisition Corp.)