Company Intellectual Property. (a) The Company and its Subsidiaries own or have the valid and enforceable right to use all material Intellectual Property necessary for the conduct of their business and operations as currently conducted. (b) The Company Disclosure Letter sets forth a complete list of all material Intellectual Property owned by the Company and its Subsidiaries. Except as indicated in the Company Disclosure Letter, the Company and its Subsidiaries own all right, title and interest in the material Intellectual Property free and clear of all Liens and other adverse claims and has the right to use without payment to a third party. The Intellectual Property owned or licensed by the Company and/or its Subsidiaries is adequate and sufficient for the conduct of the business of the Company and its Subsidiaries in the ordinary course and as currently proposed to be conducted. (c) Except as set forth in the Company Disclosure Letter and except as relates to trademarks and service marks not registered or subject to application for registration, the material Intellectual Property is valid, subsisting, unexpired, in proper form and enforceable and all renewal fees and other maintenance fees with respect to material Intellectual Property, as applicable, which have fallen due on or before the effective date of this Agreement have been paid. The grants, registrations and applications for the material Intellectual Property have not lapsed, expired or been abandoned and no application or registration thereof is the subject of any legal or governmental proceeding before any governmental, registration or other authority in any jurisdiction other than grants, registrations or applications, the lapse, expiration or abandonment of which would not reasonably be expected to have a Material Adverse Effect. (d) Except as set forth in the Company Disclosure Letter and except for infringements, claims, demands, proceedings and defects in rights that would not reasonably be expected to have a Material Adverse Effect, to the Company's Knowledge, (i) there are no conflicts with or infringements of any Company Intellectual Property by any third party; and (ii) the conduct of the business of the Company and its Subsidiaries as currently conducted does not conflict with or infringe any proprietary right of any third party. Except as set forth in the SEC Documents, there is no claim, suit, action or proceeding pending or, to the Knowledge of the Company or its Subsidiaries, threatened against the Company or its Subsidiaries, (i) alleging any such conflict or infringement with any third party's proprietary rights; or (ii) challenging the ownership, use, validity or enforceability of the Company Intellectual Property that would be reasonably likely, individually or in the aggregate, to have a Material Adverse Effect. (e) The Company Disclosure Letter sets forth a complete and correct list, as of the date hereof, of all material Licenses. The Company has furnished Purchaser with complete and correct copies of the Licenses listed in the Company Disclosure Letter, as in effect on the date hereof. Neither the Company nor its Subsidiaries nor, to the Company's Knowledge, any other party thereto, is in default under any License listed in the Company Disclosure Letter as of the date hereof, and each License listed in the Company Disclosure Letter is in full force and effect as to the Company or any of its Subsidiaries party thereto and, to the Company's Knowledge, as to each other party thereto, except for such defaults and failures to be in full force and effect as would not reasonably be expected to have a Material Adverse Effect. Except as set forth in the Company Disclosure Letter, neither the Company nor its Subsidiaries is under any obligation to pay royalties or similar payments in connection with any License listed in the Company Disclosure Letter in excess of $25,000 per year in the aggregate. (f) Except as set forth in the Company Disclosure Letter, neither the Company nor its Subsidiaries is, nor will any of them be as a result of the execution and delivery of this Agreement or the performance of its obligations under this Agreement in breach of any License listed in the Company Disclosure Letter. The validity and enforceability of the material Company Intellectual Property and the registration thereof has not been materially affected adversely as a result of the consummation of the transactions contemplated by this Agreement. (g) Neither the Company nor its Subsidiaries has entered into any material consent, indemnification, forbearance to xxx or settlement agreement with any person relating to the material Company Intellectual Property or the Intellectual Property of any third party other than as set forth in the Company Disclosure Letter. (h) The Company and its Subsidiaries have developed and commenced a comprehensive plan to modify or replace any items, products or systems used in the operation of the business of the Company or its Subsidiaries, which incorporate the processing of dates and date-related data (including, but not limited to, calculating, comparing and sequencing) that are operationally material to the business of Company or its Subsidiaries including, but not limited to, computer systems, infrastructure items, software applications, hardware, and related equipment and utilities ("Products") to ensure that such Products will be Year 2000 Compliant by August 31, 1999 except where non-compliance would not be reasonably likely to have a Material Adverse Effect. As part of such plan, the Company either (i) has undertaken (or will undertake) all reasonable efforts to obtain, or has obtained, assurances from its vendors that such vendors' products are already Year 2000 Compliant or will be Year 2000 Compliant by August 31, 1999; or (ii) the Company will have modified or replaced such products by August 31, 1999.
Appears in 3 contracts
Samples: Preferred Stock Purchase Agreement (Capital Z Financial Services Fund Ii Lp), Preferred Stock Purchase Agreement (Capital Z Financial Services Fund Ii Lp), Preferred Stock Purchase Agreement (Capital Z Financial Services Fund Ii Lp)
Company Intellectual Property. (a) The Company and its Subsidiaries own or have the valid and enforceable right to use all material Intellectual Property necessary for the conduct of their business and operations as currently conducted.
(b) The Company Disclosure Letter sets forth a complete list of all material Intellectual Property owned by the Company and its Subsidiaries. Except as indicated in the Company Disclosure Letter, the Company and its Subsidiaries own all right, title and interest in the material Intellectual Property free and clear of all Liens and other adverse claims and has the right to use without payment to a third party. The Intellectual Property owned or licensed by the Company and/or its Subsidiaries is adequate and sufficient for the conduct of the business of the Company and its Subsidiaries in the ordinary course and as currently proposed to be conducted.
(c) Except as set forth in the Company Disclosure Letter and except as relates to trademarks and service marks not registered or subject to application for registration, the material Intellectual Property is valid, subsisting, unexpired, in proper form and enforceable and all renewal fees and other maintenance fees with respect to material Intellectual Property, as applicable, which have fallen due on or before the effective date of this Agreement have been paid. The grants, registrations and applications for the material Intellectual Property have not lapsed, expired or been abandoned and no application or registration thereof is the subject of any legal or governmental proceeding before any governmental, registration or other authority in any jurisdiction other than grants, registrations or applications, the lapse, expiration or abandonment of which would not reasonably be expected to have a Material Adverse Effect.
(d) Except as set forth in the Company Disclosure Letter and except for infringements, claims, demands, proceedings and defects in rights that would not reasonably be expected to have a Material Adverse Effect, to the Company's Knowledge, (i) there are no conflicts with or infringements of any Company Intellectual Property by any third party; and (iiSection 4.14(a) the conduct of the business of the Company and its Subsidiaries as currently conducted does not conflict with or infringe any proprietary right of any third party. Except as set forth in the SEC Documents, there is no claim, suit, action or proceeding pending or, to the Knowledge of the Company or its Subsidiaries, threatened against the Company or its Subsidiaries, (i) alleging any such conflict or infringement with any third party's proprietary rights; or (ii) challenging the ownership, use, validity or enforceability of the Company Intellectual Property that would be reasonably likely, individually or in the aggregate, to have a Material Adverse Effect.
(e) The Company Disclosure Letter sets forth a complete and correct listaccurate list as of the date hereof of all of the Registered Intellectual Property that, as of the date hereof is owned by, filed in the name of, applied for by, or subject to a valid obligation of assignment to the Company or any Company Subsidiary, whether wholly or jointly owned by the Company or any Company Subsidiary (the “Company Registered Intellectual Property”), including any Registered Intellectual Property that has expired or lapsed or has been abandoned or cancelled by the Company or any Company Subsidiary.
(ii) Section 4.14(a) of the Company Disclosure Letter further lists for each item of Company Registered Intellectual Property listed therein: (A) the application or issuance number and title of such item and the jurisdiction in which each has been filed or applied for; (B) whether such item is currently subject to an application or has been issued; (C) any proceedings or actions before any court, tribunal (including the United Stated Patent and Trademark Office (the “PTO”) or equivalent authority anywhere in the world) related thereto (other than regular proceeding associated with the prosecution of an application for Company Registered Intellectual Property); (D) the registered owner of such Company Registered Intellectual Property and whether it is co-owned with another Person, and if so, the name of such Person; and (E) any action known to the Company as of the date hereof that must be taken within ninety (90) days following the date hereof (including the payment of any registration, maintenance or renewal fees or the filing of any responses to office actions of the PTO or any equivalent authority anywhere in the world, documents, applications or certificates) for the purposes of obtaining, maintaining, perfecting or preserving or renewing any such Company Registered Intellectual Property.
(iii) Each item of Company Registered Intellectual Property listed in Section 4.14(a) of the Company Disclosure Letter is, as of the date hereof, in compliance with all formal legal requirements with respect to such registration (including payment of all material Licensesfiling, examination and maintenance fees, and proofs of use, and recordations of assignments) and, to the extent issued, is subsisting. The Company has furnished Purchaser with complete and correct copies of not knowingly taken or knowingly failed to take any action (including failure to disclose any information) that would materially limit the Licenses listed in the Company Disclosure Lettervalidity, scope or enforceability, as in effect on the date hereof. Neither the applicable, of any Patents or Patent Applications that are (or would be but for such action or failure to take action) Company nor its Subsidiaries norRegistered Intellectual Property, and to the Company's Knowledge’s Knowledge has prosecuted all such Company Registered Intellectual Property in accordance with all applicable rules and requirements, any other party thereto, is in default under any License listed in the Company Disclosure Letter including disclosure of all pertinent and applicable information. All necessary documents and certificates currently due for filing as of the date hereof, and each License listed hereof in the connection with such Company Disclosure Letter is in full force and effect as to the Company or any of its Subsidiaries party thereto and, Registered Intellectual Property have to the Company's ’s Knowledge been filed with the relevant patent, copyright, or trademark office or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of maintaining such Company Registered Intellectual Property. None of the Company Registered Intellectual Property currently claims “small entity status” in the application for or registration of such Company Registered Intellectual Property. The Company has not abandoned or allowed to lapse any Patents or Patent Applications that claims or covers (or would, but for such abandonment or lapse) any aspect or feature of the Company Dry Electrode Technology except to the extent that such aspect or feature is adequately covered by other Patents or Patent Applications, as determined within the Company’s reasonable discretion. The Company solely owns each item of Company Intellectual Property free and clear of all Liens, other than Permitted Liens. To the Company’s Knowledge, as to each no Proceeding (other party thereto, except for such defaults than office actions and failures to be in full force and effect as would not reasonably be expected to have a Material Adverse Effect. Except as set forth in the Company Disclosure Letter, neither the Company nor its Subsidiaries is under any obligation to pay royalties or similar payments items in connection with the prosecution of applications) is pending or threatened by or before any License listed in Governmental Entity, that challenges the Company Disclosure Letter in excess of $25,000 per year in the aggregate.
(f) Except as set forth in the Company Disclosure Letterlegality, neither the Company nor its Subsidiaries isvalidity, nor will any of them be as a result of the execution and delivery of this Agreement enforceability, registration, use or the performance of its obligations under this Agreement in breach ownership of any License listed in the Company Disclosure Letter. The validity and enforceability of the material Company Registered Intellectual Property and the registration thereof has not been materially affected adversely as a result of the consummation of the transactions contemplated by this AgreementProperty.
(g) Neither the Company nor its Subsidiaries has entered into any material consent, indemnification, forbearance to xxx or settlement agreement with any person relating to the material Company Intellectual Property or the Intellectual Property of any third party other than as set forth in the Company Disclosure Letter.
(h) The Company and its Subsidiaries have developed and commenced a comprehensive plan to modify or replace any items, products or systems used in the operation of the business of the Company or its Subsidiaries, which incorporate the processing of dates and date-related data (including, but not limited to, calculating, comparing and sequencing) that are operationally material to the business of Company or its Subsidiaries including, but not limited to, computer systems, infrastructure items, software applications, hardware, and related equipment and utilities ("Products") to ensure that such Products will be Year 2000 Compliant by August 31, 1999 except where non-compliance would not be reasonably likely to have a Material Adverse Effect. As part of such plan, the Company either (i) has undertaken (or will undertake) all reasonable efforts to obtain, or has obtained, assurances from its vendors that such vendors' products are already Year 2000 Compliant or will be Year 2000 Compliant by August 31, 1999; or (ii) the Company will have modified or replaced such products by August 31, 1999.
Appears in 2 contracts
Samples: Merger Agreement (Tesla, Inc.), Merger Agreement (Maxwell Technologies Inc)
Company Intellectual Property. Except as would not have a Company Material Adverse Effect:
(a) The Company and its the Company Subsidiaries own own, or are licensed or sublicensed or have other valid rights to use, all U.S. and foreign patents, patent rights (including patent applications and licenses), know-how, trade secrets, proprietary information, trademarks (including trademark applications), trademark rights, trade names, trade name rights, service marks, service mxxx rights, copyrights, domain name rights and registrations, databases, customer lists, data collections and rights therein throughout the valid world and enforceable right other proprietary intellectual property rights (collectively, “Intellectual Property”) necessary to use all conduct the business of the Company and the Company Subsidiaries, as it is currently conducted, except where the failure to hold such Intellectual Property would not have a Company Material Adverse Effect. To the knowledge of the Company, no material Intellectual Property necessary Property, owned by or licensed or sub-licensed to the Company or any of the Company Subsidiaries, is subject to any outstanding order, judgment, decree, stipulation, agreement or encumbrance that materially conflicts with the use or distribution thereof by or for the conduct Company or any of their business and operations the Company Subsidiaries in its business, as currently conducted.
(b) The Company Disclosure Letter Schedule 3.16(b) sets forth a true and complete list of all material registrations and applications for registration with any Governmental Authority of any Intellectual Property owned by the Company or any of the Company Subsidiaries (the “Company Registered Intellectual Property”), including, to the extent applicable, the jurisdictions in which each such Registered Intellectual Property right has been issued or registered or in which any application for such Company issuance and its Subsidiariesregistration has been filed. Except as indicated in for Permitted Liens, and subject to the Company Disclosure LetterOutbound Licenses, the Company and its each of the Company Subsidiaries solely and exclusively own all right, title and interest in the material and to their respective Intellectual Property identified on Schedule 3.16(b) free and clear of all any Liens other than Permitted Liens and other adverse claims and has the right to use without payment to a third partyLiens set forth in Schedule 3.13. The Intellectual Property owned or licensed by In addition, (i) neither the Company and/or its Subsidiaries is adequate and sufficient for nor any Company Subsidiary has received any notice or claim challenging or otherwise questioning the conduct of the business validity, enforceability, or rights of the Company and its the Company Subsidiaries in any material Company Registered Intellectual Property, and (ii) there is no such claim pending against the ordinary course and as currently proposed to be conductedCompany or any of the Company Subsidiaries.
(c) Except as set Schedule 3.16(c) sets forth in a true and complete list of all material (i) licenses, sublicenses and other agreements to which the Company Disclosure Letter or any Company Subsidiary is a party and except as relates pursuant to trademarks and service marks not registered which any person is authorized to use or subject has an option to application for registration, obtain the right to use any material Intellectual Property is valid, subsisting, unexpired, in proper form and enforceable and all renewal fees and other maintenance fees with respect to material Intellectual Property, as applicable, which have fallen due on or before the effective date of this Agreement have been paid. The grants, registrations and applications for the material Intellectual Property have not lapsed, expired or been abandoned and no application or registration thereof is the subject of any legal or governmental proceeding before any governmental, registration or other authority in any jurisdiction other than grants, registrations or applications, the lapse, expiration or abandonment of which would not reasonably be expected non-exclusive licenses granted to have a Material Adverse Effect.
(d) Except as set forth customers in the ordinary course of business and consistent with past practice (“Company Disclosure Letter and except for infringementsOutbound Licenses”), claims, demands, proceedings and defects in rights that would not reasonably be expected to have a Material Adverse Effect, to the Company's Knowledge, (i) there are no conflicts with or infringements of any Company Intellectual Property by any third party; and (ii) licenses, sublicenses and other agreements as to which the conduct of the business Company or any of the Company Subsidiaries is a party and its pursuant to which the Company or any of the Company Subsidiaries as currently conducted does not conflict with or infringe is authorized to use any proprietary right Intellectual Property of any third partyparty (other than standard-form end user license agreements for commercial off-the-shelf software) (“Company Inbound Licenses”). Except as set forth To the knowledge of the Company, neither the Company nor any of the Company Subsidiaries is in material violation or breach of any Company Outbound License or Company Inbound License. The execution and delivery of this Agreement by the SEC DocumentsCompany and the consummation by the Company of the transactions contemplated hereby will not alter, there is no claimencumber, suit, action impair or proceeding pending or, to the Knowledge extinguish any material Intellectual Property right of the Company or its Subsidiaries, threatened against any of the Company Subsidiaries or its Subsidiaries, (i) alleging any such conflict or infringement with any third party's proprietary rights; or (ii) challenging impair the ownershipright to develop, use, validity sell, license or enforceability dispose of, or to bring any action for the infringement of the Company any material Intellectual Property that would be reasonably likely, individually or in the aggregate, to have a Material Adverse Effect.
(e) The Company Disclosure Letter sets forth a complete and correct list, as of the date hereof, of all material LicensesProperty. The Company has furnished Purchaser with complete and correct copies of the Licenses listed in the Company Disclosure Letter, as in effect on the date hereof. Neither the Company nor its Subsidiaries nor, to the Company's Knowledge, any other party thereto, is in default under any License listed in the Company Disclosure Letter as of the date hereof, and each License listed in the Company Disclosure Letter is in full force and effect as Parent prior to the Company or any of its Subsidiaries party thereto and, to the Company's Knowledge, as to each other party thereto, except for such defaults and failures to be in full force and effect as would not reasonably be expected to have a Material Adverse Effect. Except as set forth in the Company Disclosure Letter, neither the Company nor its Subsidiaries is under any obligation to pay royalties or similar payments in connection with any License listed in the Company Disclosure Letter in excess of $25,000 per year in the aggregate.
(f) Except as set forth in the Company Disclosure Letter, neither the Company nor its Subsidiaries is, nor will any of them be as a result of the execution and delivery of this Agreement or true and complete copies of the performance of its obligations under this Agreement in breach of any License listed in current standard form agreements used by the Company Disclosure Letter. The validity and enforceability each Company Subsidiary relating to the license or sale of material products and services of the material Company Intellectual Property and the registration thereof has not been materially affected adversely as a result of the consummation of the transactions contemplated by this AgreementCompany Subsidiaries.
(gd) To the knowledge of the Company, the products, services and operations of the Company and the Company Subsidiaries and the use of Intellectual Property by the Company and the Company Subsidiaries does not infringe on or otherwise violate the rights of any third party, and is in accordance in all material respects with each applicable license or sub-license pursuant to which the Company or the Company Subsidiaries may have acquired the right to use such Intellectual Property, if applicable.
(e) To the knowledge of the Company, there is no current unauthorized use, disclosure, infringement or misappropriation by any third party of any material Intellectual Property rights of the Company, including any employee or former employee of the Company or the Company Subsidiaries.
(f) Neither the Company nor its any of the Company Subsidiaries has entered into is a party to any material consentsuit, indemnificationaction or proceeding that involves a claim of infringement by the Company or any of the Company Subsidiaries of any Intellectual Property of any third party, forbearance to xxx or settlement agreement with any person relating nor to the material Company’s knowledge has any such suit, action or proceeding been threatened against the Company Intellectual Property or any of the Company Subsidiaries. To the knowledge of the Company, neither the Company nor any Company Subsidiary has infringed or misappropriated any Intellectual Property of any third party other than as set forth in any material respect, nor to the knowledge of the Company Disclosure Letteris there any reasonable basis for any such claim. Neither the Company nor any Company Subsidiary has received written notice from any third party suggesting that the Company or any Company Subsidiary may be infringing, misappropriating, or otherwise using without authorization any Intellectual Property of any third party.
(hg) The Company and its the Company Subsidiaries have developed and commenced a comprehensive plan to modify or replace any itemshave, products or systems used in the operation ordinary course of business, taken commercially reasonable steps to maintain the confidentiality of all trade secrets included in the Intellectual Property. Except as would not result in or would not reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole, each employee, consultant and independent contractor of the business Company and the Company Subsidiaries has executed a proprietary information and confidentiality agreement substantially in the Company’s standard form, the current form of which has been made available to Parent. Subject to the preceding sentence, no trade secret included in the Intellectual Property owned by the Company or any of the Company Subsidiaries has been disclosed other than to employees, representatives and agents of the Company or its Subsidiaries, which incorporate the processing of dates and date-related data (including, but not limited to, calculating, comparing and sequencing) that any Company Subsidiary who are operationally material to the business of Company or its Subsidiaries including, but not limited to, computer systems, infrastructure items, software applications, hardware, and related equipment and utilities ("Products") to ensure that such Products will be Year 2000 Compliant bound by August 31, 1999 except where non-compliance would not be reasonably likely to have a Material Adverse Effect. As part of such plan, the Company either (i) has undertaken (or will undertake) all reasonable efforts to obtain, or has obtained, assurances from its vendors that such vendors' products are already Year 2000 Compliant or will be Year 2000 Compliant by August 31, 1999; or (ii) the Company will have modified or replaced such products by August 31, 1999written confidentiality agreements.
Appears in 1 contract
Samples: Merger Agreement (Primus Telecommunications Group Inc)
Company Intellectual Property. (a) The Company and its Subsidiaries own or have the valid and enforceable right to use all material Intellectual Property 28 necessary for the conduct of their business and operations as currently conducted.
(b) The Company Disclosure Letter sets forth a complete list of all material Intellectual Property owned by the Company and its Subsidiaries. Except as indicated in the Company Disclosure Letter, the Company and its Subsidiaries own all right, title and interest in the material Intellectual Property free and clear of all Liens and other adverse claims and has the right to use without payment to a third party. The Intellectual Property owned or licensed by the Company and/or its Subsidiaries is adequate and sufficient for the conduct of the business of the Company and its Subsidiaries in the ordinary course and as currently proposed to be conducted.
(c) Except as set forth in the Company Disclosure Letter and except as relates to trademarks and service marks not registered or subject to application for registration, the material Intellectual Property is valid, subsisting, unexpired, in proper form and enforceable and all renewal fees and other maintenance fees with respect to material Intellectual Property, as applicable, which have fallen due on or before the effective date of this Agreement have been paid. The grants, registrations and applications for the material Intellectual Property have not lapsed, expired or been abandoned and no application or registration thereof is the subject of any legal or governmental proceeding before any governmental, registration or other authority in any jurisdiction other than grants, registrations or applications, the lapse, expiration or abandonment of which would not reasonably be expected to have a Material Adverse Effect.
(d) Except as set forth in the Company Disclosure Letter and except for infringements, claims, demands, proceedings and defects in rights that would not reasonably be expected to have a Material Adverse Effect, to the Company's Knowledge, (i) there are no conflicts with or infringements of any Company Intellectual Property by any third party; and (ii) the conduct of the business of the Company and its Subsidiaries as currently conducted does not conflict with or infringe any proprietary right of any third party. Except as set forth in the SEC Documents, there is no claim, suit, action or proceeding pending or, to the Knowledge of the Company or its Subsidiaries, threatened against the Company or its Subsidiaries, (i) alleging any such conflict or infringement with any third party's proprietary rights; or (ii) challenging the ownership, use, validity or enforceability of the Company Intellectual Property that would be reasonably likely, individually or in the aggregate, to have a Material Adverse Effect.
(e) The Company Disclosure Letter sets forth a complete and correct list, as of the date hereof, of all material Licenses. The Company has furnished Purchaser with complete and correct copies of the Licenses listed in the Company Disclosure Letter, as in effect on the date hereof. Neither the Company nor 29 its Subsidiaries nor, to the Company's Knowledge, any other party thereto, is in default under any License listed in the Company Disclosure Letter as of the date hereof, and each License listed in the Company Disclosure Letter is in full force and effect as to the Company or any of its Subsidiaries party thereto and, to the Company's Knowledge, as to each other party thereto, except for such defaults and failures to be in full force and effect as would not reasonably be expected to have a Material Adverse Effect. Except as set forth in the Company Disclosure Letter, neither the Company nor its Subsidiaries is under any obligation to pay royalties or similar payments in connection with any License listed in the Company Disclosure Letter in excess of $25,000 per year in the aggregate.
(f) Except as set forth in the Company Disclosure Letter, neither the Company nor its Subsidiaries is, nor will any of them be as a result of the execution and delivery of this Agreement or the performance of its obligations under this Agreement in breach of any License listed in the Company Disclosure Letter. The validity and enforceability of the material Company Intellectual Property and the registration thereof has not been materially affected adversely as a result of the consummation of the transactions contemplated by this Agreement.
(g) Neither the Company nor its Subsidiaries has entered into any material consent, indemnification, forbearance to xxx or sue xx settlement agreement with any person relating to the material Company Intellectual Property or the Intellectual Property of any third party other than as set forth in the Company Disclosure Letter.
(h) The Company and its Subsidiaries have developed and commenced a comprehensive plan to modify or replace any items, products or systems used in the operation of the business of the Company or its Subsidiaries, which incorporate the processing of dates and date-related data (including, but not limited to, calculating, comparing and sequencing) that are operationally material to the business of Company or its Subsidiaries including, but not limited to, computer systems, infrastructure items, software applications, hardware, and related equipment and utilities ("Products") to ensure that such Products will be Year 2000 Compliant by August 31, 1999 except where non-compliance would not be reasonably likely to have a Material Adverse Effect. As part of such plan, the Company either (i) has undertaken (or will undertake) all reasonable efforts to obtain, or has obtained, assurances from its vendors that such vendors' products are already Year 2000 Compliant or will be Year 2000 Compliant by August 31, 1999; or (ii) the Company will have modified or replaced such products by August 31, 1999.
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (Aames Financial Corp/De)
Company Intellectual Property. Except as would not have a Company Material Adverse Effect:
(a) The Company and its the Company Subsidiaries own own, or are licensed or sublicensed or have other valid rights to use, all U.S. and foreign patents, patent rights (including patent applications and licenses), know-how, trade secrets, proprietary information, trademarks (including trademark applications), trademark rights, trade names, trade name rights, service marks, service xxxx rights, copyrights, domain name rights and registrations, databases, customer lists, data collections and rights therein throughout the valid world and enforceable right other proprietary intellectual property rights (collectively, “Intellectual Property”) necessary to use all conduct the business of the Company and the Company Subsidiaries, as it is currently conducted, except where the failure to hold such Intellectual Property would not have a Company Material Adverse Effect. To the knowledge of the Company, no material Intellectual Property necessary Property, owned by or licensed or sub-licensed to the Company or any of the Company Subsidiaries, is subject to any outstanding order, judgment, decree, stipulation, agreement or encumbrance that materially conflicts with the use or distribution thereof by or for the conduct Company or any of their business and operations the Company Subsidiaries in its business, as currently conducted.
(b) The Company Disclosure Letter Schedule 3.16(b) sets forth a true and complete list of all material registrations and applications for registration with any Governmental Authority of any Intellectual Property owned by the Company or any of the Company Subsidiaries (the “Company Registered Intellectual Property”), including, to the extent applicable, the jurisdictions in which each such Registered Intellectual Property right has been issued or registered or in which any application for such Company issuance and its Subsidiariesregistration has been filed. Except as indicated in for Permitted Liens, and subject to the Company Disclosure LetterOutbound Licenses, the Company and its each of the Company Subsidiaries solely and exclusively own all right, title and interest in the material and to their respective Intellectual Property identified on Schedule 3.16(b) free and clear of all any Liens other than Permitted Liens and other adverse claims and has the right to use without payment to a third partyLiens set forth in Schedule 3.13. The Intellectual Property owned or licensed by In addition, (i) neither the Company and/or its Subsidiaries is adequate and sufficient for nor any Company Subsidiary has received any notice or claim challenging or otherwise questioning the conduct of the business validity, enforceability, or rights of the Company and its the Company Subsidiaries in any material Company Registered Intellectual Property, and (ii) there is no such claim pending against the ordinary course and as currently proposed to be conductedCompany or any of the Company Subsidiaries.
(c) Except as set Schedule 3.16(c) sets forth in a true and complete list of all material (i) licenses, sublicenses and other agreements to which the Company Disclosure Letter or any Company Subsidiary is a party and except as relates pursuant to trademarks and service marks not registered which any person is authorized to use or subject has an option to application for registration, obtain the right to use any material Intellectual Property is valid, subsisting, unexpired, in proper form and enforceable and all renewal fees and other maintenance fees with respect to material Intellectual Property, as applicable, which have fallen due on or before the effective date of this Agreement have been paid. The grants, registrations and applications for the material Intellectual Property have not lapsed, expired or been abandoned and no application or registration thereof is the subject of any legal or governmental proceeding before any governmental, registration or other authority in any jurisdiction other than grants, registrations or applications, the lapse, expiration or abandonment of which would not reasonably be expected non-exclusive licenses granted to have a Material Adverse Effect.
(d) Except as set forth customers in the ordinary course of business and consistent with past practice (“Company Disclosure Letter and except for infringementsOutbound Licenses”), claims, demands, proceedings and defects in rights that would not reasonably be expected to have a Material Adverse Effect, to the Company's Knowledge, (i) there are no conflicts with or infringements of any Company Intellectual Property by any third party; and (ii) licenses, sublicenses and other agreements as to which the conduct of the business Company or any of the Company Subsidiaries is a party and its pursuant to which the Company or any of the Company Subsidiaries as currently conducted does not conflict with or infringe is authorized to use any proprietary right Intellectual Property of any third partyparty (other than standard-form end user license agreements for commercial off-the-shelf software) (“Company Inbound Licenses”). Except as set forth To the knowledge of the Company, neither the Company nor any of the Company Subsidiaries is in material violation or breach of any Company Outbound License or Company Inbound License. The execution and delivery of this Agreement by the SEC DocumentsCompany and the consummation by the Company of the transactions contemplated hereby will not alter, there is no claimencumber, suit, action impair or proceeding pending or, to the Knowledge extinguish any material Intellectual Property right of the Company or its Subsidiaries, threatened against any of the Company Subsidiaries or its Subsidiaries, (i) alleging any such conflict or infringement with any third party's proprietary rights; or (ii) challenging impair the ownershipright to develop, use, validity sell, license or enforceability dispose of, or to bring any action for the infringement of the Company any material Intellectual Property that would be reasonably likely, individually or in the aggregate, to have a Material Adverse Effect.
(e) The Company Disclosure Letter sets forth a complete and correct list, as of the date hereof, of all material LicensesProperty. The Company has furnished Purchaser with complete and correct copies of the Licenses listed in the Company Disclosure Letter, as in effect on the date hereof. Neither the Company nor its Subsidiaries nor, to the Company's Knowledge, any other party thereto, is in default under any License listed in the Company Disclosure Letter as of the date hereof, and each License listed in the Company Disclosure Letter is in full force and effect as Parent prior to the Company or any of its Subsidiaries party thereto and, to the Company's Knowledge, as to each other party thereto, except for such defaults and failures to be in full force and effect as would not reasonably be expected to have a Material Adverse Effect. Except as set forth in the Company Disclosure Letter, neither the Company nor its Subsidiaries is under any obligation to pay royalties or similar payments in connection with any License listed in the Company Disclosure Letter in excess of $25,000 per year in the aggregate.
(f) Except as set forth in the Company Disclosure Letter, neither the Company nor its Subsidiaries is, nor will any of them be as a result of the execution and delivery of this Agreement or true and complete copies of the performance of its obligations under this Agreement in breach of any License listed in current standard form agreements used by the Company Disclosure Letter. The validity and enforceability each Company Subsidiary relating to the license or sale of material products and services of the material Company Intellectual Property and the registration thereof has not been materially affected adversely as a result of the consummation of the transactions contemplated by this AgreementCompany Subsidiaries.
(gd) To the knowledge of the Company, the products, services and operations of the Company and the Company Subsidiaries and the use of Intellectual Property by the Company and the Company Subsidiaries does not infringe on or otherwise violate the rights of any third party, and is in accordance in all material respects with each applicable license or sub-license pursuant to which the Company or the Company Subsidiaries may have acquired the right to use such Intellectual Property, if applicable.
(e) To the knowledge of the Company, there is no current unauthorized use, disclosure, infringement or misappropriation by any third party of any material Intellectual Property rights of the Company, including any employee or former employee of the Company or the Company Subsidiaries.
(f) Neither the Company nor its any of the Company Subsidiaries has entered into is a party to any material consentsuit, indemnificationaction or proceeding that involves a claim of infringement by the Company or any of the Company Subsidiaries of any Intellectual Property of any third party, forbearance to xxx or settlement agreement with any person relating nor to the material Company’s knowledge has any such suit, action or proceeding been threatened against the Company Intellectual Property or any of the Company Subsidiaries. To the knowledge of the Company, neither the Company nor any Company Subsidiary has infringed or misappropriated any Intellectual Property of any third party other than as set forth in any material respect, nor to the knowledge of the Company Disclosure Letteris there any reasonable basis for any such claim. Neither the Company nor any Company Subsidiary has received written notice from any third party suggesting that the Company or any Company Subsidiary may be infringing, misappropriating, or otherwise using without authorization any Intellectual Property of any third party.
(hg) The Company and its the Company Subsidiaries have developed and commenced a comprehensive plan to modify or replace any itemshave, products or systems used in the operation ordinary course of business, taken commercially reasonable steps to maintain the confidentiality of all trade secrets included in the Intellectual Property. Except as would not result in or would not reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole, each employee, consultant and independent contractor of the business Company and the Company Subsidiaries has executed a proprietary information and confidentiality agreement substantially in the Company’s standard form, the current form of which has been made available to Parent. Subject to the preceding sentence, no trade secret included in the Intellectual Property owned by the Company or any of the Company Subsidiaries has been disclosed other than to employees, representatives and agents of the Company or its Subsidiaries, which incorporate the processing of dates and date-related data (including, but not limited to, calculating, comparing and sequencing) that any Company Subsidiary who are operationally material to the business of Company or its Subsidiaries including, but not limited to, computer systems, infrastructure items, software applications, hardware, and related equipment and utilities ("Products") to ensure that such Products will be Year 2000 Compliant bound by August 31, 1999 except where non-compliance would not be reasonably likely to have a Material Adverse Effect. As part of such plan, the Company either (i) has undertaken (or will undertake) all reasonable efforts to obtain, or has obtained, assurances from its vendors that such vendors' products are already Year 2000 Compliant or will be Year 2000 Compliant by August 31, 1999; or (ii) the Company will have modified or replaced such products by August 31, 1999written confidentiality agreements.
Appears in 1 contract
Samples: Merger Agreement (ARBINET Corp)
Company Intellectual Property. Section 2.14(c) of the Disclosure Schedule lists (ai) The Company and its Subsidiaries own or have the valid and enforceable right to use all material Registered Intellectual Property necessary for the conduct that is part of their business and operations as currently conducted.
(b) The Company Disclosure Letter sets forth a complete list of all material Intellectual Property owned by the (“Company and its Subsidiaries. Except as indicated Registered Intellectual Property”), all domain names registered in the Company Disclosure Letter, the Company and its Subsidiaries own all right, title and interest in the material Intellectual Property free and clear of all Liens and other adverse claims and has the right to use without payment to a third party. The Intellectual Property owned or licensed by the Company and/or its Subsidiaries is adequate and sufficient for the conduct of the business name of the Company and its Subsidiaries applications and registrations therefor and all material unregistered trademarks used by the Company with respect to Company Products or Future Products, (ii) any formal actions that must be taken by the Company within ninety (90) days of the Closing Date with respect to perfecting, maintaining or renewing any of the foregoing, including the payment of any registration, maintenance or renewal fees or the filing of any documents, applications or certificates, and (iii) any proceedings or actions before any court or tribunal (including the United States Patent and Trademark Office (“PTO”) or equivalent authority anywhere in the world) to which the Company is or was a party and in which claims are or were raised relating to the validity, enforceability, scope, ownership or infringement of any of the Company Registered Intellectual Property, except, in the case of applications, as brought by the applicable examiner thereof in the ordinary course and as currently proposed of prosecution of such Company Registered Intellectual Property. With respect to be conducted.
each item of Company Registered Intellectual Property: (c1) Except as set forth in the Company Disclosure Letter and except as relates to trademarks and service marks not registered or subject to application for all necessary registration, the material maintenance and renewal fees in connection with such item of Company Registered Intellectual Property is valid, subsisting, unexpired, in proper form and enforceable and all renewal fees and other maintenance fees with respect to material Intellectual Property, as applicable, which have fallen that are or will be due for payment on or before the effective date of this Agreement Closing Date have been paid. The grantsor will be timely paid and all necessary documents and certificates in connection with such item of Company Registered Intellectual Property that are or will be due for filing on or before the Closing Date have been or will be timely filed with the PTO or other relevant patent, registrations and applications copyright, trademark or other authorities in the United States or foreign jurisdictions, as the case may be, for the material purposes of maintaining such item of Company Registered Intellectual Property have not lapsedProperty; (2) each such item is currently in compliance with formal legal requirements (including payment of filing, expired or been abandoned examination and no application or registration thereof maintenance fees and proofs of use); (3) each such item is the subject of any legal or governmental proceeding before any governmentalsustaining, registration or other authority in any jurisdiction and, other than grantsany pending application, registrations or applicationsvalid and enforceable, the lapse, expiration or abandonment of which would not reasonably be expected to have a Material Adverse Effect.
(d) Except as set forth in the Company Disclosure Letter and except for infringements, claims, demands, proceedings and defects in rights that would not reasonably be expected to have a Material Adverse Effect, to the Company's Knowledge, (i) there are no conflicts with or infringements of any Company Intellectual Property by any third party; and (ii4) the conduct of the business of the Company and its Subsidiaries as currently conducted does each such item is not conflict with subject to any unpaid maintenance fees or infringe any proprietary right of any third partytaxes. Except as set forth in the SEC Documents, there is no claim, suit, action or proceeding pending or, to To the Knowledge of the Company Company, there are no facts, information, or its Subsidiariescircumstances, threatened against the Company including any information or its Subsidiariesfacts that would constitute prior art, (i) alleging that would render any such conflict or infringement with any third party's proprietary rights; or (ii) challenging the ownership, use, validity or enforceability of the Company Registered Intellectual Property invalid or unenforceable, or would negatively affect any pending application for any Company Registered Intellectual Property, in each case, except as disclosed to the applicable examiner thereof or contained in the applicable file wrapper. The Company has not misrepresented, or failed to disclose, any facts or circumstances Known to the Company in any application for any Company Registered Intellectual Property that would be reasonably likely, individually constitute fraud or in a misrepresentation with respect to such application or that would otherwise negatively affect the aggregate, to have a Material Adverse Effect.
(e) The Company Disclosure Letter sets forth a complete and correct list, as of the date hereof, of all material Licenses. The Company has furnished Purchaser with complete and correct copies of the Licenses listed in the Company Disclosure Letter, as in effect on the date hereof. Neither the Company nor its Subsidiaries nor, to the Company's Knowledge, any other party thereto, is in default under any License listed in the Company Disclosure Letter as of the date hereof, and each License listed in the Company Disclosure Letter is in full force and effect as to the Company or any of its Subsidiaries party thereto and, to the Company's Knowledge, as to each other party thereto, except for such defaults and failures to be in full force and effect as would not reasonably be expected to have a Material Adverse Effect. Except as set forth in the Company Disclosure Letter, neither the Company nor its Subsidiaries is under any obligation to pay royalties or similar payments in connection with any License listed in the Company Disclosure Letter in excess of $25,000 per year in the aggregate.
(f) Except as set forth in the Company Disclosure Letter, neither the Company nor its Subsidiaries is, nor will any of them be as a result of the execution and delivery of this Agreement or the performance of its obligations under this Agreement in breach enforceability of any License listed in the Company Disclosure Letter. The validity and enforceability of the material Company Registered Intellectual Property and the registration thereof has not been materially affected adversely as a result of the consummation of the transactions contemplated by this AgreementProperty.
(g) Neither the Company nor its Subsidiaries has entered into any material consent, indemnification, forbearance to xxx or settlement agreement with any person relating to the material Company Intellectual Property or the Intellectual Property of any third party other than as set forth in the Company Disclosure Letter.
(h) The Company and its Subsidiaries have developed and commenced a comprehensive plan to modify or replace any items, products or systems used in the operation of the business of the Company or its Subsidiaries, which incorporate the processing of dates and date-related data (including, but not limited to, calculating, comparing and sequencing) that are operationally material to the business of Company or its Subsidiaries including, but not limited to, computer systems, infrastructure items, software applications, hardware, and related equipment and utilities ("Products") to ensure that such Products will be Year 2000 Compliant by August 31, 1999 except where non-compliance would not be reasonably likely to have a Material Adverse Effect. As part of such plan, the Company either (i) has undertaken (or will undertake) all reasonable efforts to obtain, or has obtained, assurances from its vendors that such vendors' products are already Year 2000 Compliant or will be Year 2000 Compliant by August 31, 1999; or (ii) the Company will have modified or replaced such products by August 31, 1999.
Appears in 1 contract
Company Intellectual Property. Section 1.17(c) of the Disclosure Letter lists (ai) The all Company and its Subsidiaries own or have the valid and enforceable right to use all material Registered Intellectual Property necessary for the conduct of their business and operations as currently conducted.
(b) The Company Disclosure Letter sets forth a complete list of all material Intellectual Property owned unregistered Trade Marks used by the Company and its Subsidiaries. Except as indicated in the Company Disclosure Letter, the Company and its Subsidiaries own all right, title and interest in the material Intellectual Property free and clear of all Liens and other adverse claims and has the right to use without payment to a third party. The Intellectual Property owned or licensed by the Company and/or its Subsidiaries is adequate and sufficient for the conduct of the business of the Company and its Subsidiaries in the ordinary course and as currently proposed to be conducted.
(c) Except as set forth in the Company Disclosure Letter and except as relates to trademarks and service marks not registered or subject to application for registration, the material Intellectual Property is valid, subsisting, unexpired, in proper form and enforceable and all renewal fees and other maintenance fees with respect to material any Company Products, (ii) all other Material Company Intellectual PropertyProperty (other than Trade Secrets), as applicableand (iii) any actions that must be taken within ninety (90) days of the Closing Date in order to maintain the Company Registered Intellectual Property with respect to any of the foregoing, which have fallen including the payment of any registration, maintenance or renewal fees or the filing of any documents, applications or certificates. With respect to each item of Company Registered Intellectual Property (A) all necessary registration, maintenance and renewal fees in connection with such item of Company Intellectual Property that are or will be due for payment on or before the effective date of this Agreement Closing Date have been or will be paid. The grants, registrations and applications all necessary documents and certificates in connection with such item of Company Registered Intellectual Property that are or will be due for filing on or before the Closing Date have been or will be filed with the relevant patent, copyright, trademark or other authorities in the United States or foreign jurisdictions, as the case may be, for the material purposes of maintaining such Intellectual Property have not lapsedRights; (B) each such item is currently in Material compliance with all applicable Laws (including payment of filing, expired or been abandoned examination and no application or registration thereof maintenance fees and proofs of use); (C) each such item is the subject of any legal or governmental proceeding before any governmentalsubsisting, registration or other authority in any jurisdiction other than grants, registrations or applications, the lapse, expiration or abandonment of which would not reasonably be expected to have a Material Adverse Effect.
(d) Except as set forth in the Company Disclosure Letter and except for infringements, claims, demands, proceedings and defects in rights that would not reasonably be expected to have a Material Adverse Effect, to the Company's Knowledge, (i) there are no conflicts with or infringements of any Company Intellectual Property by any third party; and (ii) the conduct of the business of the Company and its Subsidiaries as currently conducted does not conflict with or infringe any proprietary right of any third party. Except as set forth in the SEC Documents, there is no claim, suit, action or proceeding pending orvalid and, to the Knowledge of the Company Parties, enforceable; and (D) each such item is not subject to any unpaid maintenance fees or its SubsidiariesTaxes. The Company has not misrepresented, threatened against the or failed to disclose, any facts or circumstances in any application for any Company or its Subsidiaries, (i) alleging any such conflict or infringement with any third party's proprietary rights; or (ii) challenging the ownership, use, validity or enforceability of the Company Registered Intellectual Property that would be reasonably likelyconstitute fraud or a misrepresentation with respect to such application of any Company Registered Intellectual Property. To the maximum extent provided for by, individually or and in accordance with, applicable Laws, the aggregate, to have a Material Adverse Effect.
(e) The Company Disclosure Letter sets forth a complete and correct list, as of the date hereof, of all material Licenses. The Company has furnished Purchaser with complete and correct copies recorded each assignment of the Licenses listed in the Company Disclosure Letter, as in effect on the date hereof. Neither the Company nor its Subsidiaries nor, to the Company's Knowledge, any other party thereto, is in default under any License listed in the Company Disclosure Letter as of the date hereof, and each License listed in the Company Disclosure Letter is in full force and effect as Registered Intellectual Property to the Company or any of its Subsidiaries party thereto and, to the Company's Knowledge, as to each other party thereto, except for such defaults and failures to be in full force and effect as would not reasonably be expected to have from a Material Adverse Effect. Except as set forth in third Person that is included within the Company Disclosure Letter, neither the Company nor its Subsidiaries is under any obligation to pay royalties or similar payments in connection with any License listed in the Company Disclosure Letter in excess of $25,000 per year in the aggregate.
(f) Except as set forth in the Company Disclosure Letter, neither the Company nor its Subsidiaries is, nor will any of them be as a result of the execution and delivery of this Agreement or the performance of its obligations under this Agreement in breach of any License listed in the Company Disclosure Letter. The validity and enforceability of the material Company Registered Intellectual Property and the registration thereof has not been materially affected adversely as a result of the consummation of the transactions contemplated by this Agreementwith each relevant Regulatory Authority.
(g) Neither the Company nor its Subsidiaries has entered into any material consent, indemnification, forbearance to xxx or settlement agreement with any person relating to the material Company Intellectual Property or the Intellectual Property of any third party other than as set forth in the Company Disclosure Letter.
(h) The Company and its Subsidiaries have developed and commenced a comprehensive plan to modify or replace any items, products or systems used in the operation of the business of the Company or its Subsidiaries, which incorporate the processing of dates and date-related data (including, but not limited to, calculating, comparing and sequencing) that are operationally material to the business of Company or its Subsidiaries including, but not limited to, computer systems, infrastructure items, software applications, hardware, and related equipment and utilities ("Products") to ensure that such Products will be Year 2000 Compliant by August 31, 1999 except where non-compliance would not be reasonably likely to have a Material Adverse Effect. As part of such plan, the Company either (i) has undertaken (or will undertake) all reasonable efforts to obtain, or has obtained, assurances from its vendors that such vendors' products are already Year 2000 Compliant or will be Year 2000 Compliant by August 31, 1999; or (ii) the Company will have modified or replaced such products by August 31, 1999.
Appears in 1 contract
Company Intellectual Property. (a) The Company Disclosure Package sets forth true and its Subsidiaries own or have the valid and enforceable right to use all material Intellectual Property necessary for the conduct of their business and operations as currently conducted.correct lists of:
(bi) The Company Disclosure Letter sets forth a complete list of all material Intellectual Property patents and patent applications;
(ii) all trademark registrations (including Internet domain name registrations) and pending trademark applications; and
(iii) all copyright registrations and pending copyright applications owned by the Company and its Subsidiaries. Except as indicated in or that the Company Disclosure Letter, the Company has licensed and its Subsidiaries own all right, title and interest in the that is material Intellectual Property free and clear of all Liens and other adverse claims and has the right to use without payment to a third party. The Intellectual Property owned or licensed by the Company and/or its Subsidiaries is adequate and sufficient for the conduct of the business of the Company, as of the date of this Agreement (collectively, “Company and its Subsidiaries in the ordinary course and as currently proposed to be conducted.
(c) Except as set forth in Registered Intellectual Property”). All of the Company Disclosure Letter and except as relates to trademarks and service marks not registered or subject to application for registration, the material Registered Intellectual Property is valid, subsisting, unexpired, in proper form full force and enforceable and all renewal fees and other maintenance fees effect (except with respect to material Intellectual Propertyapplications), as applicableand has not expired or been canceled or abandoned.
(b) There is no pending or, which have fallen due on or before to the effective knowledge of the Company, threatened (and at no time within the two years prior to the date of this Agreement have has there been paid. The grants, registrations and applications for the material Intellectual Property have not lapsed, expired or been abandoned and no application or registration thereof is the subject of any legal or governmental proceeding pending any) Action before any governmentalcourt, registration government agency or other authority arbitral tribunal in any jurisdiction other than grantschallenging the use, registrations ownership, validity, enforceability or applicationsregistrability of any of the Company Registered Intellectual Property. Neither the Company, nor to the lapseknowledge of the Company, expiration any of its licensors, is a party to any settlements, covenants not to xxx, consents, decrees, stipulations, judgments or abandonment orders resulting from proceedings, claims, actions or investigations (“Actions”) which permit third parties to use any of which would not reasonably the Company Registered Intellectual Property.
(c) The Company owns, or has valid rights to use, all of the Intellectual Property used in the business of the Company as currently conducted and as presently proposed to be expected to have a Material Adverse Effectconducted by the Company in its SEC Filings.
(d) Except as set forth in the The owned Company Disclosure Letter and except for infringements, claims, demands, proceedings and defects in rights that would Registered Intellectual Property does not reasonably be expected to have a Material Adverse Effectunlawfully infringe and, to the Company's Knowledge, (i) there are knowledge of the Company no conflicts with or infringements of any other Company Registered Intellectual Property unlawfully infringes, upon any Intellectual Property or other proprietary right owned by any third party; and .
(iie) To the conduct of Company’s knowledge, no third party is misappropriating, infringing or violating any Intellectual Property owned by, or licensed to, the Company that is material to the business of the Company and its Subsidiaries as currently conducted does not conflict with or infringe any as presently proposed to be conducted by the Company in its SEC Filings, and no Intellectual Property or other proprietary right misappropriation, infringement or violation Actions have been brought against any third party by the Company which remain unresolved.
(f) There is no pending or, to the knowledge of the Company, threatened (and at no time within the two years prior to the date of this Agreement has there been pending any) Action alleging that the activities or the conduct of the Company’s business dilutes, misappropriates, infringes, violates or constitutes the unauthorized use of, or will dilute, misappropriate, infringe upon, violate or constitute the unauthorized use of the Intellectual Property of any third party. Except as set forth The Company is not party to any settlements, covenants not to xxx, consents, decrees, stipulations, judgments, or orders resulting from any Action which (i) restricts the Company’s rights to use any Intellectual Property, (ii) restricts the Company’s business in order to accommodate a third party’s Intellectual Property or (iii) requires any future payment by the Company.
(g) The Company requires each new relevant employee to execute a noncompetition, nonsolicitation, nondisclosure and developments agreement in the SEC DocumentsCompany’s standard form. Other than under an appropriate confidentiality or nondisclosure agreement or contractual provision relating to confidentiality and nondisclosure, there is has been no claim, suit, action disclosure to any third party of material confidential information or proceeding pending or, to the Knowledge trade secrets of the Company related to any material proprietary product being marketed, sold, licensed or its Subsidiaries, threatened against developed by the Company or its Subsidiaries(each such product, (i) alleging any such conflict or infringement with any third party's proprietary rights; or (ii) challenging the ownership, use, validity or enforceability “Proprietary Product”). All employees of the Company who have made material contributions to the development of any Proprietary Product have signed noncompetition, nonsolicitation, nondisclosure and developments agreements. All consultants and independent contractors who have made material contributions to the development of any Proprietary Product have entered into a work-made-for-hire agreement or have otherwise assigned to the Company (or a third party that previously conducted any business currently conducted by the Company and that has assigned its rights in such Proprietary Product to the Company) all of their right, title and interest (other than moral rights, if any) in and to the portions of such Proprietary Product developed by them in the course of their work for the Company. Assignments of the patents, patent applications, copyrights and copyright applications of the Company to the Company have been duly executed and filed with the United States Patent and Trademark Office or Copyright Office, as applicable.
(h) The Company is not in material violation of any agreement, contract or binding commitment (“Contract”) to which the Company is party or otherwise bound, nor will the consummation by the Company of the transactions contemplated hereby, resulting in any material violation, loss or impairment of ownership by the Company of, or the right of the Company to use, any Intellectual Property that would be reasonably likely, individually or in is material to the aggregate, to have a Material Adverse Effect.
(e) The Company Disclosure Letter sets forth a complete and correct list, as business of the date hereofCompany as currently conducted, nor require the consent of all material Licensesany Governmental Authority or third party with respect to any such Intellectual Property. The Company has furnished Purchaser with complete and correct copies of the Licenses listed in the Company Disclosure Letter, as in effect on the date hereof. Neither the Company nor its Subsidiaries nor, is not a party to the Company's Knowledge, any Contract under which a third party would have or would be entitled to receive a license or any other party thereto, is in default under right to any License listed in the Company Disclosure Letter as Intellectual Property of the date hereof, and each License listed in the Company Disclosure Letter is in full force and effect as to the Company or any of its Subsidiaries party thereto and, to the Company's Knowledge, as to each other party thereto, except for such defaults and failures to be in full force and effect as would not reasonably be expected to have a Material Adverse Effect. Except as set forth in the Company Disclosure Letter, neither the Company nor its Subsidiaries is under any obligation to pay royalties or similar payments in connection with any License listed in the Company Disclosure Letter in excess of $25,000 per year in the aggregate.
(f) Except as set forth in the Company Disclosure Letter, neither the Company nor its Subsidiaries is, nor will any of them be as a result of the execution and delivery of this Agreement or the performance of its obligations under this Agreement in breach of any License listed in the Company Disclosure Letter. The validity and enforceability of the material Company Intellectual Property and the registration thereof has not been materially affected adversely ’s affiliates as a result of the consummation of the transactions contemplated by this Agreement nor would the consummation of such transactions result in the amendment or alteration of any such license or other right which exists on the date of this Agreement.
(gi) Neither the Company nor its Subsidiaries has entered into any material consentFor purposes of this Agreement, indemnification“Intellectual Property” shall mean trademarks, forbearance to xxx service marks, trade names, slogans, logos, trade dress, internet domain names and other similar designations of source or settlement agreement origin, together with any person relating all goodwill, registrations and applications related to the material Company Intellectual Property foregoing; patents, utility, models and industrial design registrations or applications (including without limitation any continuations, divisionals, continuations-in-part, provisionals, renewals, reissues, re-examinations and applications for any of the Intellectual Property foregoing); copyrights and copyrightable subject matter (including without limitation any registration and applications for any of the foregoing, but excluding any third party off-the-shelf software); mask works rights and trade secrets and other than as set forth confidential information, know-how, proprietary processes, formulae, algorithms, models, and methodologies; and computer programs (whether in the Company Disclosure Letter.
(hsource code, object code or other form) The Company and its Subsidiaries have developed and commenced a comprehensive plan to modify or replace any items, products or systems in each case used in or necessary for the operation conduct of the business of the Company party making such representation, as currently conducted and as planned to be conducted, whether such Intellectual Property is owned by such party or its Subsidiaries, which incorporate the processing of dates and date-related data (including, but not limited to, calculating, comparing and sequencing) that are operationally material to the business of Company or its Subsidiaries including, but not limited to, computer systems, infrastructure items, software applications, hardware, and related equipment and utilities ("Products") to ensure that such Products will be Year 2000 Compliant by August 31, 1999 except where non-compliance would not be reasonably likely to have a Material Adverse Effect. As part of such plan, the Company either (i) has undertaken (or will undertake) all reasonable efforts to obtain, or has obtained, assurances from its vendors that such vendors' products are already Year 2000 Compliant or will be Year 2000 Compliant by August 31, 1999; or (ii) the Company will have modified or replaced such products by August 31, 1999third party.
Appears in 1 contract
Samples: Securities Purchase Agreement (Neuro-Hitech Pharmaceuticals Inc)
Company Intellectual Property. (a) 6.1.16.1. The Company and its Subsidiaries own owns or have has the valid and enforceable right to use all material Intellectual Property necessary for the conduct of their its business and operations as currently conducted.
(b) 6.1.16.2. The Company Disclosure Letter sets forth a complete list of all material Intellectual Property owned by the Company and its Subsidiaries. Except as indicated in the Company Disclosure Letter, the Company and its Subsidiaries own owns all right, title and interest in the such material Intellectual Property free and clear of all Liens and other adverse claims and has the right to use without payment to a third party. The Intellectual Property owned or licensed by the Company and/or its Subsidiaries is adequate and sufficient for the conduct of the business of the Company and its Subsidiaries in the ordinary course and as currently proposed to be conducted.
(c) 6.1.16.3. Except as set forth in the Company Disclosure Letter and except as relates to trademarks and service marks not registered or subject to application for registration, (a) the material Intellectual Property owned by the Company is valid, subsisting, unexpired, in proper form and enforceable and all renewal fees and other maintenance fees with respect to such material Intellectual Property, as applicable, which have fallen due on or before the effective date of this Agreement have been paid. The paid and (b)the grants, registrations and applications for the such material Intellectual Property owned by the Company have not lapsed, expired or been abandoned and no application or registration thereof is the subject of any legal or governmental proceeding before any governmental, registration or other authority in any jurisdiction other than grants, registrations or applications, the lapse, expiration or abandonment of which would not reasonably be expected to have a Material Adverse Effect.
(d) 6.1.16.4. Except as set forth in the Company Disclosure Letter and except for infringements, claims, demands, proceedings and defects in rights that would not reasonably be expected to have a Material Adverse Effect, to the Company's Knowledge, (i) there are no conflicts with or infringements of any Company Intellectual Property owned or used by the Company by any third party; and (ii) the conduct of the business of the Company and its Subsidiaries as currently conducted does not conflict with or infringe any proprietary right of any third party. Except as set forth in the SEC Documents, there is no claim, suit, action or proceeding pending or, to the Knowledge of the Company or its Subsidiaries, threatened against the Company or its Subsidiaries, (i) alleging any such conflict or infringement with any third party's proprietary rights; or (ii) challenging the ownership, use, validity or enforceability of the Company Intellectual Property owned or used by the Company that would be reasonably likely, individually or in the aggregate, to have a Material Adverse Effect.
(e) 6.1.16.5. The Company Disclosure Letter sets forth a complete and correct list, as of the date hereof, of all material LicensesLicenses whereby the Company or its Subsidiaries is granted rights to use Intellectual Property owned by another Person. The Company has furnished Purchaser you with complete and correct copies of the any such Licenses listed in the Company Disclosure Letter, as in effect on the date hereof. Neither the Company nor its Subsidiaries nor, to the Company's Knowledge, any other party thereto, is in default under any such License listed in the Company Disclosure Letter as of the date hereof, and each such License listed in the Company Disclosure Letter is in full force and effect as to the Company or any of its Subsidiaries party thereto and, to the Company's Knowledge, as to each other party thereto, except for such defaults and failures to be in full force and effect as would not reasonably be expected to have a Material Adverse Effect. Except as set forth in the Company Disclosure Letter, neither the Company nor its Subsidiaries is under any obligation to pay royalties or similar payments in connection with any License listed in the Company Disclosure Letter in excess of $25,000 10,000 per year in the aggregate.
(f) 6.1.16.6. Except as set forth in the Company Disclosure Letter, neither the Company nor its Subsidiaries is, nor will any of them be as a result of the execution and delivery of this Agreement or the performance of its obligations under this Agreement in breach of any such License listed in the Company Disclosure Letter. The validity and enforceability of the material Company Intellectual Property owned or used by the Company and the registration thereof has not been materially affected adversely Materially Adversely Affected as a result of the consummation of the transactions contemplated by this Agreement.
(g) 6.1.16.7. Neither the Company nor its Subsidiaries has entered into any material consent, indemnification, forbearance to xxx or settlement agreement with any person relating to the material Company Intellectual Property owned or used by the Company or the Intellectual Property of any third party other than as set forth in the Company Disclosure Letter.
(h) 6.1.16.8. The Company Company's and its Subsidiaries have developed and commenced a comprehensive plan to modify or replace any items, Subsidiaries' products or systems used in the operation of the business of the Company or its Subsidiaries, which incorporate the processing of dates and date-related data (including, but not limited to, calculating, comparing and sequencing) that are operationally material to the business of Company or its Subsidiaries including, but not limited to, computer systems, infrastructure items, software applications, hardware, and related equipment and utilities ("Products") to ensure that such Products will be Year 2000 Compliant by August 31, 1999 except where non-compliance would not be reasonably likely to have a Material Adverse Effect1999. As part of such plan, the The Company either (i) has undertaken (or will undertake) all reasonable efforts to obtain, or has obtained, assurances from its vendors that such vendors' products are already Year 2000 Compliant or will be Year 2000 Compliant by August 31, 1999; or (ii) the Company will have modified or replaced such products by August 31, 1999, except in each such case as any such non-compliance would not have a Material Adverse Effect.
Appears in 1 contract
Samples: Purchase Agreement (Netter Digital Entertainment Inc)
Company Intellectual Property. (aSection 3.12(c) The Company and its Subsidiaries own or have of the valid and enforceable right to use all material Intellectual Property necessary for the conduct of their business and operations as currently conducted.
(b) The Company Disclosure Letter sets forth a complete list of lists (i) all material Registered Intellectual Property owned that is part of the Company Intellectual Property (“Company Registered Intellectual Property”) and all unregistered Trademarks used by the Company with respect to any Company Products, (ii) all other material Company Intellectual Property (other than trade secrets), (iii) any actions that must be taken by the Interim Surviving Corporation, Final Surviving Entity or any of their respective Subsidiaries within ninety (90) days of the Closing Date with respect to any of the foregoing, including the payment of any registration, maintenance or renewal fees or the filing of any documents, applications or certificates, and its Subsidiaries(iv) any proceedings or actions before any court or tribunal (including the United States Patent and Trademark Office or similar authority anywhere in the world) to which the Company is or was a party and in which claims are or were raised relating to the validity, enforceability, scope, ownership or infringement of any of the Company Intellectual Property. With respect to each item of Company Registered Intellectual Property (1) all necessary registration, maintenance and renewal fees in connection with such item of Company Intellectual Property that are or will be due for payment on or before the Closing Date have been or will be timely paid, and all necessary documents and certificates in connection with such item of Company Registered Intellectual Property that are or will be due for filing on or before the Closing Date have been or will be 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 Intellectual Property Rights; (2) each such item is currently in compliance with formal legal requirements (including payment of filing, examination and maintenance fees and proofs of use); (3) each such item is subsisting, valid and enforceable, and (4) each such item is not subject to any unpaid maintenance fees or Taxes. To the Knowledge of the Company, there are no facts, information, or circumstances, including any information or facts that would constitute prior art, that would render any of the Company Registered Intellectual Property invalid or unenforceable, or would affect any pending application for any Company Registered Intellectual Property. The Company has not misrepresented, or failed to disclose, any facts or circumstances in any application for any Company Registered Intellectual Property that would constitute fraud or a misrepresentation with respect to such application or that would otherwise affect the enforceability of any Company Registered Intellectual Property. Except as indicated set forth in Section 3.12(c) of the Company Disclosure Letter, the Company and its Subsidiaries own all right, title and interest has not claimed any status in the material Intellectual Property free and clear of all Liens and other adverse claims and has the right to use without payment to a third party. The Intellectual Property owned or licensed by the Company and/or its Subsidiaries is adequate and sufficient for the conduct of the business of the Company and its Subsidiaries in the ordinary course and as currently proposed to be conducted.
(c) Except as set forth in the Company Disclosure Letter and except as relates to trademarks and service marks not registered or subject to application for registration, the material Intellectual Property is valid, subsisting, unexpired, in proper form and enforceable and all renewal fees and other maintenance fees with respect to material or registration of any Company Registered Intellectual Property, as applicable, which have fallen due on or before the effective date of this Agreement have been paid. The grants, registrations and applications for the material Intellectual Property have not lapsed, expired or been abandoned and no application or registration thereof is the subject of any legal or governmental proceeding before any governmental, registration or other authority in any jurisdiction other than grants, registrations or applications, the lapse, expiration or abandonment of which would not reasonably be expected to have a Material Adverse Effect.
(d) Except as set forth in the Company Disclosure Letter and except for infringements, claims, demands, proceedings and defects in rights including “small business status,” that would not reasonably be expected applicable to have a Material Adverse EffectParent. To the maximum extent provided for by, to and in accordance with, applicable Laws, the Company's Knowledge, (i) there are no conflicts with or infringements Company has recorded each assignment of any Company Registered Intellectual Property by any third party; and (ii) the conduct of the business of the Company and its Subsidiaries as currently conducted does not conflict with or infringe any proprietary right of any third party. Except as set forth in the SEC Documents, there is no claim, suit, action or proceeding pending or, to the Knowledge of the Company or its Subsidiaries, threatened against the Company or its Subsidiaries, (i) alleging any such conflict or infringement with any third party's proprietary rights; or (ii) challenging the ownership, use, validity or enforceability of the Company Intellectual Property that would be reasonably likely, individually or in the aggregate, to have a Material Adverse Effect.
(e) The Company Disclosure Letter sets forth a complete and correct list, as of the date hereof, of all material Licenses. The Company has furnished Purchaser with complete and correct copies of the Licenses listed in the Company Disclosure Letter, as in effect on the date hereof. Neither the Company nor its Subsidiaries nor, to the Company's Knowledge, any other party thereto, is in default under any License listed in the Company Disclosure Letter as of the date hereof, and each License listed in the Company Disclosure Letter is in full force and effect as to the Company or any of its Subsidiaries party thereto and, to the Company's Knowledge, as to each other party thereto, except for such defaults and failures to be in full force and effect as would not reasonably be expected to have by a Material Adverse Effect. Except as set forth in third Person that is included within the Company Disclosure Letter, neither the Company nor its Subsidiaries is under any obligation to pay royalties or similar payments in connection with any License listed in the Company Disclosure Letter in excess of $25,000 per year in the aggregate.
(f) Except as set forth in the Company Disclosure Letter, neither the Company nor its Subsidiaries is, nor will any of them be as a result of the execution and delivery of this Agreement or the performance of its obligations under this Agreement in breach of any License listed in the Company Disclosure Letter. The validity and enforceability of the material Company Registered Intellectual Property and the registration thereof has not been materially affected adversely as a result of the consummation of the transactions contemplated by this Agreementwith each relevant Governmental Entity.
(g) Neither the Company nor its Subsidiaries has entered into any material consent, indemnification, forbearance to xxx or settlement agreement with any person relating to the material Company Intellectual Property or the Intellectual Property of any third party other than as set forth in the Company Disclosure Letter.
(h) The Company and its Subsidiaries have developed and commenced a comprehensive plan to modify or replace any items, products or systems used in the operation of the business of the Company or its Subsidiaries, which incorporate the processing of dates and date-related data (including, but not limited to, calculating, comparing and sequencing) that are operationally material to the business of Company or its Subsidiaries including, but not limited to, computer systems, infrastructure items, software applications, hardware, and related equipment and utilities ("Products") to ensure that such Products will be Year 2000 Compliant by August 31, 1999 except where non-compliance would not be reasonably likely to have a Material Adverse Effect. As part of such plan, the Company either (i) has undertaken (or will undertake) all reasonable efforts to obtain, or has obtained, assurances from its vendors that such vendors' products are already Year 2000 Compliant or will be Year 2000 Compliant by August 31, 1999; or (ii) the Company will have modified or replaced such products by August 31, 1999.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Fusion-Io, Inc.)
Company Intellectual Property. (a4.21.1(a) The of the Disclosure Schedule sets forth a list of all registered and material unregistered Company Intellectual Property, except Internally Used Shrink-wrap Software. Except as indicated on §4.21.1(a) of the Disclosure Schedules, with respect to the Company Intellectual Property owned by an Acquired Company, such Acquired Company exclusively owns such Company Intellectual Property, free and its Subsidiaries own clear of all Liens, except for Permitted Liens. §4.21.1(b) of the Disclosure Schedules sets forth a list of all Company Products, other than Company Products for which the Acquired Companies serve solely as a reseller. Each Acquired Company owns or have the has a valid and enforceable right to use all material Intellectual Property rights necessary for to conduct the conduct businesses of their business and operations the Acquired Companies as currently conducted.
(b) The Company Disclosure Letter sets forth a complete list of all material Intellectual Property owned by the Company and its Subsidiaries. Except as indicated in the Company Disclosure Letter, the Company and its Subsidiaries own all right, title and interest in the material Intellectual Property free and clear of all Liens and other adverse claims and has the right to use without payment to a third party. The Intellectual Property owned or licensed by the Company and/or its Subsidiaries is adequate and sufficient for the conduct of the business of the Company and its Subsidiaries in the ordinary course and as currently proposed to be conducted.
(c) Except as set forth in the Company Disclosure Letter and except as relates to trademarks and service marks not registered or subject to application for registration, the material Intellectual Property is valid, subsisting, unexpired, in proper form and enforceable and all renewal fees and other maintenance fees conducted with respect to material Intellectual Propertythe launch of the 4i water cooler product line. To the Knowledge of Seller, as applicablethere is no unauthorized use, which have fallen due on disclosure, infringement or before misappropriation by any Person of any of the effective date of this Agreement have been paid. The grants, registrations and applications for the material Intellectual Property have rights owned by the Acquired Companies. Each Acquired Company’s conduct, and the currently proposed conduct of their respective businesses with respect to the launch of the 4i water cooler product line, does not lapsed, expired or been abandoned and no application or registration thereof is the subject infringe on any Intellectual Property rights of any legal or governmental proceeding before any governmental, registration or other authority in any jurisdiction other than grants, registrations or applications, the lapse, expiration or abandonment of which would not reasonably be expected to have a Material Adverse Effect.
(d) third-party. Except as set forth disclosed in §4.21.1(c) of the Company Disclosure Letter and except for infringementsSchedule, claims, demands, proceedings and defects in rights that would not reasonably be expected to have a Material Adverse Effect, to connection with the Company's Knowledge, (i) there are no conflicts with or infringements use of any Company Intellectual Property by any third party; and (ii) the conduct of the business of the Company and its Subsidiaries as currently conducted does not conflict with or infringe any proprietary right of any third party. Except as set forth in the SEC Documents, there is no claim, suit, action or proceeding pending or, to the Knowledge of the Company or its Subsidiaries, threatened against the Company or its Subsidiaries, (i) alleging any such conflict or infringement with any third party's proprietary rights; or (ii) challenging the ownership, use, validity or enforceability of the Company Intellectual Property that would be reasonably likely, individually or in the aggregate, to have a Material Adverse Effect.
(e) The Company Disclosure Letter sets forth a complete and correct list, as of the date hereof, of all material Licenses. The Company has furnished Purchaser with complete and correct copies of the Licenses listed in the Company Disclosure Letter, as in effect on the date hereof. Neither the Company nor its Subsidiaries nor, to the Acquired Company's Knowledge, any other party thereto, is in default under any License listed in the Company Disclosure Letter as of the date hereof, and each License listed in the Company Disclosure Letter is in full force and effect as to the Company or any of its Subsidiaries party thereto and, to the Company's Knowledge, as to each other party thereto, except for such defaults and failures to be in full force and effect as would not reasonably be expected to have a Material Adverse Effect. Except as set forth software maintenance charges in the Company Disclosure LetterOrdinary Course of Business, neither none of the Company nor its Subsidiaries is under Acquired Companies owes to any obligation to pay royalties other Person any ongoing fee, royalty or similar payments in connection with any License listed in the Company Disclosure Letter in excess of $25,000 per year in the aggregate.
(f) Except as set forth in the Company Disclosure Letter, neither the Company nor its Subsidiaries is, nor will any of them be other payment as a result of the execution and delivery use of this Agreement or the performance of its obligations under this Agreement such Intellectual Property. Except as disclosed in breach of any License listed in the Company Disclosure Letter. The validity and enforceability §4.21.1(d) of the material Disclosure Schedules, no Acquired Company Intellectual Property and the registration thereof has not been materially affected adversely as a result of the consummation of the transactions contemplated by this Agreement.
(g) Neither the Company nor its Subsidiaries has entered into any material consentlicense or other contract pursuant to which such Acquired Company has granted to or received from any other Person the right to use any Intellectual Property, indemnification, forbearance to xxx or settlement agreement with any person relating to the material Company Intellectual Property or the Intellectual Property of any third party other than as set forth in the Company Disclosure Letter.
(h) The Company and its Subsidiaries have developed and commenced a comprehensive plan to modify or replace any items, products or systems used in the operation Internally Used Shrink-wrap Software. Each of the business of the Acquired Companies is in compliance in all material respects with each license with respect to Internally Used Shrink-wrap Software to which such Acquired Company or its Subsidiaries, which incorporate the processing of dates and date-related data (including, but not limited to, calculating, comparing and sequencing) that are operationally material to the business of Company or its Subsidiaries including, but not limited to, computer systems, infrastructure items, software applications, hardware, and related equipment and utilities ("Products") to ensure that such Products will be Year 2000 Compliant by August 31, 1999 except where non-compliance would not be reasonably likely to have is a Material Adverse Effect. As part of such plan, the Company either (i) has undertaken (or will undertake) all reasonable efforts to obtain, or has obtained, assurances from its vendors that such vendors' products are already Year 2000 Compliant or will be Year 2000 Compliant by August 31, 1999; or (ii) the Company will have modified or replaced such products by August 31, 1999party.
Appears in 1 contract
Samples: Stock Purchase Agreement (AquaVenture Holdings LTD)
