Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $500), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights. (b) The Company has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset. (c) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the Shareholders, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset. (i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets. (e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
Appears in 3 contracts
Samples: Merger Agreement (Long Terry J), Merger Agreement (La Man Corporation), Merger Agreement (Papais Lou A)
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Ibex Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Ibex Proprietary Assets owned by the CompanyIbex. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company Ibex by any Person (except for any Proprietary Asset that is licensed to the Company Ibex under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the CompanyIbex. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company Ibex has good, valid and marketable title to all of the Company Ibex Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company Ibex is not obligated to make any payment to any Person for the use of any Company Ibex Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company Ibex has not developed jointly with any other Person any Company Ibex Proprietary Asset with respect to which such other Person has any rights.
(b) The Company Ibex has taken all reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Ibex Proprietary Assets (except Company Ibex Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Ibex Proprietary Assets. Except as provided set forth in Part 2.9(b) of the Disclosure Schedule, to the Company best of the knowledge of Ibex and the Designated Shareholders after inquiry of Ibex's officers, directors and advisors, Ibex has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Ibex Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Ibex Proprietary Asset.
(c) None To the best of the Company knowledge of Ibex and the Designated Shareholders after inquiry of Ibex's officers, directors and advisors, none of Ibex Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any . To the best of the Companyknowledge of Ibex and the Designated Shareholders after inquiry of Ibex's Shareholders. The Company officers, directors and advisors, Ibex is not infringing, misappropriating or making any unlawful use of, and the Company Ibex has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge best of the Company knowledge of Ibex and the Designated Shareholders, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Ibex Proprietary Asset.
(d) Except as set forth in Part 2.9(d) of the Disclosure Schedule: (i) Each Company each Ibex Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the CompanyIbex; and (ii) there has not been any claim by any customer or other Person alleging that any Company Ibex Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company Ibex to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the CompanyIbex, and, to the Knowledge best of the Company knowledge of Ibex and the Designated Shareholders, there is no basis for any such claim. There are no Ibex has established adequate reserves on the Unaudited Interim Balance Sheet to cover all costs associated with any obligations of that Ibex may have with respect to the Company to correct correction or repair any of programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Ibex Proprietary Assets.
(e) The Company Ibex Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company Ibex to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on in Part 2.9(e) of the Disclosure Schedule, the Company has not (i) Ibex has not licensed any of the Company Ibex Proprietary Assets to any Person on an exclusive basis or basis, and (ii) Ibex has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(f) Except as set forth in Part 2.9(f) of the Disclosure Schedule, (i) all current and former employees of Ibex have executed and delivered to Ibex an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Confidential Information and Invention Assignment Agreement previously delivered to Castelle, and (ii) all current and former consultants and independent contractors to Ibex have executed and delivered to Ibex an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the standard form of proprietary rights agreement previously delivered to Castelle.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization and Merger (Castelle \Ca\), Agreement and Plan of Reorganization and Merger (Castelle \Ca\)
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $5005,000 per license, per copy), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge best of the Company and the ShareholdersCompany's knowledge, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(d) Except as set forth in Part 2.9(d) of the Disclosure Schedule: (i) Each each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the Company, and, to the Knowledge best of the Company and the ShareholdersCompany's knowledge, there is no basis for any such claim. There are no obligations of The Company has established adequate reserves on the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves Unaudited Interim Balance Sheet to cover any all costs associated with any obligations of that the Company may have with respect to correct the correction or repair any of programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on in Part 2.9(e) of the Disclosure Schedule, (i) the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or basis, and (ii) the Company has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(f) Except as set forth in Part 2.9(f) of the Disclosure Schedule, (i) all current and former employees of the Company have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Invention and Non-Disclosure Agreement previously delivered to Parent, and (ii) all current and former consultants and independent contractors to the Company have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Invention and Non-Disclosure Agreement previously delivered to Parent.
(g) Except as set forth in Part 2.9(g) of the Disclosure Schedule, the Company has not entered into and is not bound by any Contract under which any Person has the right to distribute or license, on a commercial basis, any Company Proprietary Asset including source code, object code, or any versions, modifications or derivative works of source code or object code in any Company Proprietary Asset.
Appears in 2 contracts
Samples: Merger Agreement (Boole & Babbage Inc), Merger Agreement (Boole & Babbage Inc)
Proprietary Assets. (a) Part 2.9(a)(i) of the Company Disclosure Schedule sets forth, with respect to each Company Proprietary Asset owned by the Acquired Corporations and registered with any Governmental Body or for which an application has been filed with any Governmental BodyBody and material to the business of the Acquired Corporations, (i) a brief description of such Proprietary Asset, Asset and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Company Disclosure Schedule identifies and provides a brief description lists any Contract containing any ongoing royalty or payment obligations in excess of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of $50,000 per annum with respect to each Proprietary Asset that is licensed or otherwise made available to the Company Acquired Corporations by any Person (except for any Proprietary Asset that is licensed to the Company Acquired Corporations under any third party software license generally available to the public at for a cost one time fee). The Acquired Corporations have good and valid title to all of less than $500)the Proprietary Assets owned by the Acquired Corporations and material to their business, free and identifies clear of all Encumbrances except for Encumbrances arising from the license agreement under Company's credit agreements. The Acquired Corporations have a valid right to use as a licensee all Proprietary Assets identified in Part 2.9(a)(ii) of the Company Disclosure Schedule, subject to the Bankruptcy and Equity Exception. Except as set forth in Part 2.9(a)(iii) of the Company Disclosure Schedule, none of the Acquired Corporations has developed jointly with any other Person any Proprietary Asset owned by the Acquired Corporations and material to their business with respect to which such Proprietary Asset is being licensed to the Companyother Person has any rights. Except as set forth in Part 2.9(a)(iv) of the Company Disclosure Schedule, there is no Acquired Corporation Contract pursuant to which any Person (other than an Acquired Corporation) has any right (whether or not currently exercisable) to use, license or otherwise exploit any Proprietary Asset owned by the Acquired Corporations and material to their business. The Company has gooddelivered to Parent a copy of all Contracts, valid and marketable title including all amendments thereto, which relate to all of the Company material Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is not obligated to make owned or used by any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rightsAcquired Corporation.
(b) The Company has Acquired Corporations have taken all reasonable and appropriate measures and precautions reasonably necessary to protect and maintain the confidentiality confidentiality, secrecy and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company material Acquired Corporation Proprietary Assets. Except as provided in Part 2.9(b) In the ordinary course of the Disclosure ScheduleCompany's business, the Company Company's policy in the United States has not been and continues to be to obtain an executed agreement (other than pursuant containing no exceptions to license agreements identified in Part 2.10 or exclusions from the scope of its coverage) that is substantially identical to the form of the Disclosure Schedule) disclosed Confidentiality Information and Inventions and Non-Competition Agreements previously delivered by the Company to Parent from each employee of the Acquired Corporations in the United States who is or delivered was involved in, or who has contributed to, the creation or development of any material Acquired Corporation Proprietary Asset. To the Company's knowledge, the Company's policy outside the United States has been and continues to be to obtain reasonably similar coverage to that afforded by the form of Confidential Information and Inventions Agreement in the United States, either through executed agreements or the Legal Requirements in the Relevant Jurisdiction. To the Company's knowledge, no current or former employee, officer, director, stockholder, consultant or independent contractor has any right, claim or interest in or with respect to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Acquired Corporation Proprietary Asset.
(c) None Except as set forth on Part 2.9(c) of the Company Disclosure Schedule, to the Company's knowledge, (i) all patents, trademarks, service marks and copyrights held by any of the Acquired Corporations and which are material to the business of the Acquired Corporations are valid, enforceable and subsisting, and the applicable Acquired Corporation has renewed or made application to renew all registrations of such Acquired Corporation Proprietary Assets infringes and has paid all applicable fees, all within the applicable renewal periods; (ii) none of the material Acquired Corporation Proprietary Assets infringes, misappropriates or conflicts with any Proprietary Asset owned or used by any other Person; (iii) none of the products that are or have been designed, includingcreated or developed, without limitation, any former employers of nor any of the Company's Shareholders. The Company services that have been or are being provided, by any of the Acquired Corporations is not or was infringing, misappropriating or making any unlawful or unauthorized use ofof any Proprietary Asset owned by any other Person, and none of the Company Acquired Corporations has not at any time infringed, misappropriated or made any unlawful use of, or received any written notice or of or, to the Company's knowledge, any other communication (in writing or otherwise) of information regarding any actual, alleged, possible actual or potential alleged infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company ; and the Shareholders, (iv) no other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company material Acquired Corporation Proprietary Asset.
(id) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of To the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by 's knowledge, the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Acquired Corporation Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company Acquired Corporations to conduct its their business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e2.9(d) of the Company Disclosure Schedule, none of the Company Acquired Corporations has not (i) licensed any of the Company material Proprietary Assets owned by the Acquired Corporations to any Person on an exclusive basis basis, or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its material Acquired Corporation Proprietary Assets or to transact business in any market or geographical area or with any PersonPerson (other than any such limit in the scope of any license granted to an Acquired Corporation for any Proprietary Asset).
(e) The Acquired Corporations have taken reasonable measures and precautions to protect and maintain the confidentiality, secrecy and value of the Proprietary Assets of their customers, including all such measures required by the terms of any Acquired Corporation Contract with a customer.
Appears in 2 contracts
Samples: Merger Agreement (Manufacturers Services LTD), Merger Agreement (Manufacturers Services LTD)
Proprietary Assets. (a) Part 2.9(a)(iThe Company owns or possesses sufficient legal rights to all Proprietary Assets used in or necessary for its business as now conducted or as proposed to be conducted as of the date hereof ("Company Proprietary Assets"), without any known infringement of the rights of any other Person. Section 3.8(a) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company the license agreements under which Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset are being licensed to the Company by any Person (the "License Agreements"). Except as specified in Section 3.8(a) of the Company Disclosure Schedule and except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $500), and identifies the license agreement under which such Proprietary Asset is being licensed licenses or agreements relating to the Company. Except as set forth in Part 2.9(a)(iv) of 's use rights regarding mass market "off the Disclosure Scheduleshelf" products obtained pursuant to "shrink wrap" or other standard form agreements, the Company is neither a party to nor bound by any options, licenses or agreements of any kind relating to any Proprietary Assets. The Company has good, valid good and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure ScheduleAssets, free and clear of all material liens and other Encumbrancesencumbrances, and except for third party rights licensed to it, as to which the Company has a valid right to use all such Proprietary Assets. The Company has not licensed any Company Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of on an exclusive basis and has not entered into any covenant not to compete or contract limiting its ability to exploit fully any Company Proprietary Asset. Except as set forth Assets or to transact business in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly any market or geographical area or with any other Person any Company Proprietary Asset with respect to which such other Person has any rightsPerson.
(b) The Company has taken all measures required under the License Agreements and all other reasonable and customary measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except trademarks, issued patents and other Company Proprietary Assets similarly known to the public and Company Proprietary Assets whose value would be materially unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of Except where such infringement, misappropriation or unlawful use would not and could not reasonably be expected to be material in impact or amount, either individually or in the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Personaggregate, including, without limitation, any former employers of any to the knowledge of the Company's Shareholders. The , the Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To No claims or notices (in writing or otherwise) with respect to Company Proprietary Assets have been communicated to the Knowledge Company: (i) to the effect that the manufacture, sale, license or use of any Proprietary Asset or product, practice of any process or provision of any service as now made, sold, practiced, used practiced or provided or currently offered or proposed by the Company infringes or potentially infringes, or constitutes a misappropriation or unlawful use of any copyright, patent, trade secret or other intellectual property right of a third party, or (ii) challenging the ownership or validity of any of the rights to or interest in such Proprietary Assets of the Company. Except as disclosed on Section 3.8(c) of the Company and Disclosure Schedule, the ShareholdersCompany has not received any notice to the effect that any patents or registered trademarks, service marks or registered copyrights held by the Company are invalid or not subsisting. To the knowledge of the Company, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary AssetAsset used in or pertaining to the business of the Company.
(id) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; All current and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge former employees of the Company have executed and delivered to the ShareholdersCompany an agreement (containing no exceptions to or exclusions from the scope of its coverage relevant to the Company's business) (the "Employee Agreement"), there is no basis providing for any such claim. There are no obligations the assignment of all rights to intellectual property and trade secrets created or discovered while an employee of the Company to correct or repair any programming errors or other defects in the Company, and all current and former consultants and independent contractors to the Company Proprietary Assets, and providing technical services relating to the Knowledge Company's Proprietary Assets have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage relevant to the Company's business), the material provisions of which are in substance as protective to the Company as the terms of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary AssetsEmployee Agreement.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Beacon Power Corp), Securities Purchase Agreement (Beacon Power Corp)
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $500), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv3.7(a) of the Castelle Disclosure Schedule, the Company Castelle has good, valid and marketable title to all of the Company Castelle Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure ScheduleAssets, free and clear of all liens and other Encumbrances, and has a valid right to use all such Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure ScheduleAssets. Except as set forth in Part 2.9(a)(v3.7(a) of the Castelle Disclosure Schedule, the Company Castelle is not obligated to make any payment to any Person for the use of any Company Castelle Proprietary Asset. Except as set forth in Part 2.9(a)(vi3.7(a) of the Castelle Disclosure Schedule, the Company Castelle has not developed jointly with any other Person any Company Castelle Proprietary Asset with respect to which such other Person has any rights.
(b) The Company Castelle has taken all reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Castelle Proprietary Assets (except Company Castelle Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Castelle Proprietary Assets. Except as provided set forth in Part 2.9(b3.7(b) of the Castelle Disclosure Schedule, to the Company best of the knowledge of Castelle after due inquiry of its officers, directors and advisors, Xxxxxxxx has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Scheduleagreements) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Castelle Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Castelle Proprietary Asset.
(c) None To the best of the Company knowledge of Castelle after due inquiry of its officers, directors and advisors, none of the Castelle Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any . To the best of the Company's Shareholders. The Company knowledge of Castelle after due inquiry of its officers, directors and advisors, Xxxxxxxx is not infringing, misappropriating or making any unlawful use of, and the Company Xxxxxxxx has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge best of the Company and the Shareholdersknowledge of Castelle, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Castelle Proprietary Asset.
(d) Except as set forth in Part 3.7(d) of the Castelle Disclosure Schedule: (i) Each Company each Castelle Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the CompanyCastelle; and (ii) there has not been any claim by any customer or other Person alleging that any Company Castelle Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company Castelle to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the CompanyCastelle, and, to the Knowledge best of the Company and the Shareholdersknowledge of Castelle, there is no basis for any such claim. There are no Castelle has established adequate reserves on its consolidated financial statements contained in the Castelle SEC Documents to cover all costs associated with any obligations of that Castelle may have with respect to the Company to correct correction or repair any of programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Castelle Proprietary Assets.
(e) The Company Castelle Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company Castelle to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on in Part 2.9(e3.7(e) of the Castelle Disclosure Schedule, the Company has not (i) Castelle has not licensed any of the Company Castelle Proprietary Assets to any Person on an exclusive basis or basis, and (ii) Castelle has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(f) Except as set forth in Part 3.7(f) of the Castelle Disclosure Schedule, (i) all current and former employees of Castelle have executed and delivered to Castelle an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Castelle Employee Agreement Concerning Inventions, Trade Secrets and Confidential Information previously delivered to Ibex, and (ii) all current and former consultants and independent contractors to Castelle have executed and delivered to Castelle an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Consultant Confidential Information and Invention Assignment Agreements previously delivered to Ibex.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization and Merger (Castelle \Ca\), Agreement and Plan of Reorganization and Merger (Castelle \Ca\)
Proprietary Assets. (a) Part 2.9(a)(i2.8(a)(i) of the Company Disclosure Schedule sets forth, with respect to each Company Proprietary Asset owned by the Acquired Corporations and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii2.8(a)(ii) of the Company Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) Acquired Corporations that are material to the business of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $500), and identifies the license agreement under which such Proprietary Asset is being licensed to the CompanyAcquired Corporations. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company has The Acquired Corporations have good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i2.8(a)(i) and 2.9(a)(ii2.8(a)(ii) of the Company Disclosure Schedule, free and clear of all liens liens, pledges, security interests or hypothecations, except for (i) any lien for current taxes not yet due and other Encumbrancespayable, (ii) immaterial liens, pledges, security interests or hypothecations that have arisen in the ordinary course of business, and has (iii) liens, pledges, security interests or hypothecations that do not (individually or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of either of the Acquired Corporations. The Acquired Corporations have a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) being used by the Acquired Corporations. None of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company Acquired Corporations has not developed jointly with any other Person any Company Proprietary Asset that is embodied in or related to any of the Company's products identified in Part 2.8(a)(ii) of the Company Disclosure Schedule with respect to which such other Person has any rightsrights (except that such other Person may have rights to certain Proprietary Assets embodied in translators or interfaces that are part of the products identified in Part 2.8(a)(ii) of the Company Disclosure Schedule, which rights do not materially detract from the value to the Company of any Proprietary Asset owned by any of the Acquired Corporations or materially impair the business or operations of any of the Acquired Corporations).
(b) The Company has Acquired Corporations have taken all reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality confidentiality, secrecy and secrecy value of all Company material Proprietary Assets owned by or licensed to any of the Acquired Corporations (except Company for any such Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect ). Without limiting the value generality of all Company Proprietary Assets. Except the foregoing, except as provided set forth in Part 2.9(b) 2.8 of the Company Disclosure Schedule, all current and former employees, consultants and independent contractors of the Acquired Corporations who are or were involved in, or who have contributed to, the creation or development of any material Proprietary Asset owned by or licensed to any of the Acquired Corporations have executed and delivered to the Acquired Corporations an agreement that is substantially similar to the form of Invention Assignment and Proprietary Information Agreement previously delivered by the Company to Parent, except for current or former employees, consultants or independent contractors whose failure to execute and deliver such an Employee Information Assignment and Proprietary Information Agreement has not (other than pursuant had and would not reasonably be expected to license agreements identified in Part 2.10 have a Material Adverse Effect on the Acquired Corporations. To the best of the Disclosure Scheduleknowledge of the Company, no current or former employee, officer, director, consultant (who is or was involved in, or who has contributed to, the creation or development of any material Proprietary Asset owned by any of the Acquired Corporations) disclosed or delivered independent contractor (who is or was involved in, or who has contributed to, the creation or development of any material Proprietary Asset owned by any of the Acquired Corporations) has any right, claim or interest in or with respect to any Person, or permitted the disclosure or delivery to material Proprietary Asset onwed by any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary AssetAcquired Corporations.
(c) None To the best of the Company knowledge of the Company: (i) all patents, trademarks, service marks and copyrights owned by any of the Acquired Corporations and material to the business of any of the Acquired Corporations are valid, enforceable and subsisting; (ii) none of the Proprietary Assets owned by any of the Acquired Corporations and no Proprietary Asset that is currently being developed by any of the Acquired Corporations (either by itself or with any other Person) infringes or conflicts with misappropriates any Proprietary Asset owned by any other Person, except where any liability, or any restriction on sale, use, development or licensing of a Proprietary Asset, arising from such infringement, misappropriation or unlawful use has not had and would not reasonably be expected to have a Material Adverse Effect on the Acquired Corporations; (iii) none of the Acquired Corporations is infringing, misappropriating or making any unlawful use of any Proprietary Asset owned by any other Person, except where any liability, or any restriction on sale, use, development or licensing of a Proprietary Asset, arising from such infringement, misappropriation or unlawful use has not had and would not reasonably be expected to have a Material Adverse Effect on the Acquired Corporations; (iv) none of the products that are or have been designed, created, developed, assembled, manufactured or sold by any of the Acquired Corporations is infringing, misappropriating or making any unlawful or unauthorized use of any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers and none of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company such products has not at any time infringed, misappropriated or made any unlawful or unauthorized use of, any Proprietary Asset of any other Person, except where any liability, or any restriction on sale, use, development or licensing of a Proprietary Asset, arising from such infringement, misappropriation or unlawful use has not had and would not reasonable be expected to have a Material Adverse Effect on the Acquired Corporations; (v) since September 30, 1995, none of the Acquired Corporations has received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the Shareholders, ; (vi) no other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes any material Proprietary Asset owned by any of the Acquired Corporations, except where such infringement, misappropriation or conflicts with, any Company Proprietary Assetunlawful use has not had and would not reasonably be expected to have a Material Adverse Effect on the Acquired Corporations.
(id) Each Company The Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto Assets owned by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets Acquired Corporations constitute all the Proprietary Assets necessary to enable the Company Acquired Corporations to conduct its their business substantially in the manner in which such business has been and is being conducted. .
(e) Except as set forth on in Part 2.9(e2.8(e) of the Company Disclosure Schedule, none of the Acquired Corporations has disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other Person of, the source code, or any material portion or aspect of the source code, or any material proprietary information or algorithm contained in any source code, of any material Proprietary Asset owned by any of the Acquired Corporations. No event has occurred, and no circumstance or condition exists, that (with or without notice or mere lapse of time) will, or would reasonably be expected to, result in the disclosure or delivery to any Person of the source code, or any material portion or aspect of the source code, or any material proprietary information or algorithm contained in any source code, of any material Proprietary Asset owned by or licensed to any of the Acquired Corporations. Part 2.8(e) of the Company Disclosure Schedule identifies each Contract pursuant to which the Company has not (i) licensed deposited or is required to deposit with an escrowholder or any other Person the source code, or any material portion or aspect of the source code, or any material proprietary information or algorithm contained in or relating to any source code, of any material Proprietary Asset owned by any of the Company Proprietary Assets Acquired Corporations, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby, in and of itself, would reasonably be expected to result in the release from escrow of the source code, or any material portion or aspect of the source code, or any material proprietary information or algorithm contained in or relating to any Person on an exclusive basis or (ii) entered into source code, of any covenant not to compete or Contract limiting its ability to exploit fully material Proprietary Asset owned by any of its Proprietary Assets or to transact business in any market or geographical area or with any Personthe Acquired Corporations.
Appears in 2 contracts
Samples: Merger Agreement (Cadence Design Systems Inc), Merger Agreement (Cooper & Chyan Technology Inc)
Proprietary Assets. (a) Part 2.9(a)(i2.9(a)(1) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered that has been registered, recorded or filed with any Governmental Body or for with respect to which an application has been filed with any Governmental Body, (i) a brief description of such Company Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration registration, recordation, filing or application. Part 2.9(a)(ii2.9(a)(2) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the CompanyETI. Part 2.9(a)(iii2.9(a)(3) of the Disclosure Schedule identifies and provides a brief description of each Company Proprietary Asset that is owned by any other Person and that is licensed to the Company or used by any Person ETI (except for any Company Proprietary Asset that is licensed to the Company ETI under any third party software license generally available to the public at a cost of less than $500), and identifies the license agreement or other agreement under which such Company Proprietary Asset is being licensed to the Companyor used by ETI. Except as set forth in Part 2.9(a)(iv2.9(a)(4) of the Disclosure Schedule, the Company ETI has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i2.9(a)(1) and 2.9(a)(ii2.9(a)(2) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii2.9(a)(3) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v2.9(a)(5) of the Disclosure Schedule, the Company ETI is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi2.9(a)(6) of the Disclosure Schedule, ETI is free to use, modify, copy, distribute, sell, license or otherwise exploit each of the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rightsAssets on an exclusive basis.
(b) The Company has taken all measures To the best knowledge of ETI and precautions reasonably necessary to protect and maintain the confidentiality and secrecy Shareholders, none of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company ETI's Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the Shareholders, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.the
Appears in 2 contracts
Samples: Merger Agreement (Vsi Enterprises Inc), Merger Agreement (Munro Mark E)
Proprietary Assets. (a) Part 2.9(a)(iFor purposes of this Agreement, "Proprietary Assets" ------------------ shall mean every: (i) patent, patent application, trademark (whether registered or unregistered), trademark application, trade name, fictitious business name, service xxxx (whether registered or unregistered), service xxxx application, copyright (whether registered or unregistered), copyright application, maskwork, maskwork application, trade secret, know-how, customer list, franchise, system, computer software, computer program, invention, design, blueprint, engineering drawing, proprietary product, technology, proprietary right or other intellectual property right or intangible asset; and (ii) all rights to use or exploit any of the foregoing.
(b) The Company Disclosure Schedule Letter sets forth, with respect to each Company Proprietary Asset of the Company registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, Asset and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the The Company Disclosure Schedule Letter identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule , and identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Company Disclosure ScheduleLetter, the Company has good, valid and marketable title to all each of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Company Disclosure ScheduleLetter as owned by it, free and clear of all liens and other Encumbrances, and encumbrances; has a valid right to use all Proprietary Assets of third parties identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company Disclosure Letter; and is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Company Disclosure ScheduleLetter, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(bc) The Company has taken all commercially reasonable and customary measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets of the Company (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary AssetsAssets of the Company. Except as provided set forth in Part 2.9(b) of the Company Disclosure ScheduleLetter, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Company Disclosure ScheduleLetter) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary AssetAsset of the Company, or (iii) any patent applications (except as required by law).
(cd) None To the knowledge of the Company, (i) none of the Proprietary Assets of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of ; (ii) the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company ; and the Shareholders, (iii) no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary AssetAsset of the Company.
(ie) Each Except as set forth in the Company Proprietary Asset conforms in all material respects with any specificationDisclosure Letter, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset of the Company (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the Company, and, to the Knowledge .
(f) The Proprietary Assets of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business their respective businesses in the manner in which such business has businesses have been and is are being conducted. Except as set forth on Part 2.9(ein the Company Disclosure Letter (i) of the Disclosure Schedule, the Company has not (i) licensed any of the Company its Proprietary Assets to any Person on an exclusive, semi-exclusive basis or royalty-free basis, and (ii) the Company has not entered into any covenant not to compete or Contract contract limiting its such entity's ability to exploit fully any of its such entity's Proprietary Assets or to transact business in any market or geographical area or with any Person.
(g) As used in this Agreement, "Person" means any ------ individual, sole proprietorship, partnership, corporation, limited liability company, business trust, unincorporated association, joint stock corporation, trust, joint venture or other entity, any university or similar institution, or any government or any agency or instrumentality or political subdivision thereof.
Appears in 1 contract
Samples: Unit Subscription Agreement (Rf Monolithics Inc /De/)
Proprietary Assets. (a) Part Schedule 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application that has been registered, recorded or filed by the Company (or assigned to the Company) with the U.S. Patent and Trademark Office, the U.S. Copyright Office or any Governmental Bodysimilar office in a foreign jurisdiction, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration registration, recordation, filing or application. Part Schedule 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other tangible Company Proprietary Assets owned by the Company. Part Schedule 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part Schedule 2.9(a)(iv) of the Disclosure Schedule, the Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts Schedules 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part Schedule 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part Schedule 2.9(a)(v) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part Schedule 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all measures and precautions reasonably necessary prudent steps to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part Schedule 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant to license agreements or confidentiality agreements identified in Part Schedule 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge best of the Company and knowledge of the ShareholdersCompany, no other Person is infringing, misappropriating or making any 20 27 unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(d) Except as set forth in Schedule 2.9(d) of the Disclosure Schedule: (i) Each each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part in Schedule 2.9(e) of the Disclosure Schedule, (i) the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or basis, and (ii) the Company has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(f) Except as set forth in Schedule 2.9(f) of the Disclosure Schedule, (i) all current employees of and consultants to the Company have executed and delivered to the Company a confidential information and inventions assignment agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of such agreement previously delivered to Parent.
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Acquired Corporation Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Acquired Corporation Proprietary Assets owned by the CompanyAcquired Corporations. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to any of the Company Acquired Corporations by any Person (except for any Proprietary Asset that is licensed to the Company an Acquired Corporation under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, each of the Company Acquired Corporations has good, valid and marketable title to all of the Company their respective Acquired Corporation Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, none of the Company Acquired Corporation is not obligated to make any payment to any Person for the use of any Company Acquired Corporation Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company no Acquired Corporation has not developed jointly with any other Person any Company Acquired Corporation Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b) of the Disclosure Schedule, none of the Company Acquired Corporations has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Acquired Corporation Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Acquired Corporation Proprietary Asset.
(c) None of the Company Acquired Corporation Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any . None of the Company's Shareholders. The Company Acquired Corporations is not infringing, misappropriating or making any unlawful use of, and the Company no Acquired Corporation has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge best of the knowledge of the Company and the ShareholdersDesignated Stockholders, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Acquired Corporation Proprietary Asset.
(d) Except as set forth in Part 2.9(d) of the Disclosure Schedule: (i) Each Company each Acquired Corporation Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Acquired Corporation Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company any Acquired Corporation to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the Companyany Acquired Corporation, and, to the Knowledge best of the knowledge of the Company and the ShareholdersDesignated Stockholders, there is no basis for any such claim. There are no obligations Except as set forth in Part 2.9(d) of the Disclosure Schedule, the Company has established adequate reserves on the Most Recent Balance Sheet to correct cover all costs associated with any obligations that an Acquired Corporation may have with respect to the correction or repair any of programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Acquired Corporation Proprietary Assets.
(e) The Company Acquired Corporation Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company each Acquired Corporation to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on in Part 2.9(e) of the Disclosure Schedule, the Company has not (i) no Acquired Corporation has licensed any of the Company Acquired Corporation Proprietary Assets to any Person on an exclusive basis or basis, and (ii) no Acquired Corporation has entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Acquired Corporation Proprietary Assets Asset or to transact business in any market or geographical area or with any Person.
(f) Except as set forth in Part 2.9(f) of the Disclosure Schedule, all current and former consultants and independent contractors to any of the Acquired Corporations have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) pursuant to which they have validly and properly assigned to the Company all rights with respect to Acquired Corporation Proprietary Assets developed or created by them. No current or former officer, director, stockholder, employee, consultant or independent contractor of or to any of the Acquired Corporations has any right, claim or interest in or with respect to any Acquired Corporation Proprietary Asset.
(g) Except as set forth in Part 2.9(g) of the Disclosure Schedule, none of the Acquired Corporations has disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other Person, of any Acquired Corporation Source Code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any Person of any Acquired Corporation Source Code. Part 2.9(g) of the Disclosure Schedule identifies each Contract pursuant to which any Acquired Corporation has deposited or is required to deposit with an escrowholder or any other Person any Acquired Corporation Source Code, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Acquired Corporation Source Code.
(h) Except as set forth in Part 2.9(h) of the Disclosure Schedule, each computer, computer program and other item of software (whether installed on a computer or on any other piece of equipment, including firmware) that is owned or used by any of the Acquired Corporations for their internal business operations is Year 2000 Compliant (as defined below). Except as set forth in Part 2.9(h) of the Disclosure Schedule, each computer program and other item of software that has been designed, developed, sold, licensed or otherwise made available to any Person by any of the Acquired Corporations is Year 2000 Compliant. Except as set forth in Part 2.9(h) of the Disclosure Schedule, each of the Acquired Corporations has conducted sufficient Year 2000 compliance testing for each computer, computer program and item of software referred to in the preceding two sentences to be able to determine whether such computer, computer program and item of software is Year 2000 Compliant. Each of the Acquired Corporations has obtained warranties or other written assurances from each of its suppliers of any material Acquired Corporation Proprietary Assets to the effect that the Acquired Corporation Proprietary Assets provided by such suppliers to the Acquired Corporations is Year 2000 Compliant. For purposes of this Section 2.9, a computer, computer program or other item of software shall be deemed to be "Year 2000 Compliant" only if (i) the functions, calculations and other computing processes of such computer, program or software perform in a consistent and correct manner without interruption regardless of the date on which such functions, calculations and processes are actually performed and regardless of the date input to the applicable computer system (whether before, on or after January 1, 2000); (ii) such computer, program or software accepts, calculates, compares, sorts, extracts, sequences and otherwise processes date inputs and date values, and returns and displays date values, in a consistent and correct manner regardless of the dates used (whether before, on or after January 1, 2000); (iii) such computer, program or software accepts and responds to year input in a manner that resolves any ambiguities as to century in a defined, predetermined and appropriate manner; (iv) such computer, program or software stores and displays date information in ways that are unambiguous as to the determination of the century; and (v) such computer, program or software determines leap years in accordance with the following standard: (A) if dividing the year by 4 yields an integer, it is a leap year, except for years ending in 00, but (B) a year ending in 00 is a leap year if dividing it by 400 yields an integer.
(i) Except with respect to demonstration or trial copies, no product, system, program or software module designed, developed, sold, licensed or otherwise made available by any of the Acquired Corporations to any Person contains any "back door," "time bomb," "Trojan horse," "worm," "drop dead device," "virus" or other software routines or hardware components designed to permit unauthorized access or to disable or erase software, hardware or data without the consent of the user.
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the The Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the The Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the The Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, the The Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge best of the knowledge of the Company and the ShareholdersPrincipal Stockholders, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(ed) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e.
(i) of the Disclosure Schedule, the The Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or Person, and (ii) the Company has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(i) All current and former employees of the Company have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Confidential Information and Invention Assignment Agreement previously delivered to Parent, and (ii) all current and former consultants and independent contractors to the Company have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Consultant Confidential Information and Invention Assignment Agreement previously delivered to Parent.
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i) of the The Company Disclosure Schedule sets forth, with respect to each Company Proprietary Asset of the Company and any Subsidiary registered with or issued by any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, Asset and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the The Company Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule Company and any Subsidiary, and identifies and provides a brief description of each Proprietary Asset licensed to the Company and any Subsidiary by any Person person (except for any Proprietary Asset that is licensed to the Company or any Subsidiary under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the CompanyCompany or Subsidiary, as appropriate. Except as set forth in Part 2.9(a)(iv) of the Disclosure ScheduleCompany Disclosure, the Company has and its Subsidiaries, as a whole, have good, valid and marketable title to, or have a valid right to use, all of the Company Proprietary Assets used in the Company’s business (including without limitation all Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure ScheduleCompany Disclosure), free and clear of all liens and other Encumbrances, and has a valid right encumbrances to use all Proprietary Assets identified in Part 2.9(a)(iii) the knowledge of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is Company; and are not obligated to make any payment to any Person person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the The Company and each Subsidiary has not developed jointly with any other Person person any Company Proprietary Asset with respect to which such other Person person has any rights. Except as set forth in the Company Disclosure, none of which shall have a Material Adverse Effect, the Company has no knowledge that any other person has any right, title or interest in any of the Proprietary Assets of the Company or its Subsidiaries.
(b) The Company has and its Subsidiaries, as appropriate, have taken all reasonable and customary measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets of the Company and its Subsidiaries (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Proprietary Assets of the Company and its Subsidiaries. Each employee, officer, director, consultant and contractor (not including contractors without access to confidential information of the Company) of the Company and its Subsidiaries (each, an “Employee”) has entered into and executed an agreement providing for (i) the assignment to the Company (or to any of its Subsidiaries) of personal rights or claims to Proprietary AssetsAssets for which such Employee’s personal rights or claims arose out of the scope of his/her employment or retainer by the Company or its Subsidiaries and (ii) the nondisclosure of confidential information acquired by the Employee with respect to the Proprietary Assets of the Company and its Subsidiaries or an employment or consulting agreement containing substantially similar terms. Except as provided set forth in Part 2.9(b) of the Disclosure ScheduleCompany Disclosure, the Company and each Subsidiary has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure ScheduleCompany Disclosure) disclosed or delivered to any Personperson, or permitted the disclosure or delivery to any Person person of, (i) the source code, or any portion or aspect of the source code, of any Proprietary Asset of the Company Proprietary Assetor its Subsidiaries, or (ii) the object code, or any portion or aspect of the object code, of any Proprietary Asset of the Company Proprietary Assetor its Subsidiaries or (iii) any patent applications (except as required by law).
(ci) None To the knowledge of the Company, none of the Proprietary Assets of the Company Proprietary Assets or its Subsidiaries necessary for the conduct of their businesses infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any (ii) to the knowledge of the Company's Shareholders. The , the Company and each Subsidiary is not infringing, misappropriating or making any unlawful use of, and the Company and each Subsidiary has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To person, and (iii) to the Knowledge knowledge of the Company and the ShareholdersCompany, no other Person person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person person infringes or conflicts with, any Proprietary Asset of the Company Proprietary Assetor its Subsidiaries.
(id) Each Company There has not been any claim by any customer or other person alleging that any Proprietary Asset conforms of the Company or its Subsidiaries (including each version thereof that has ever been licensed or otherwise made available by the Company or its Subsidiaries to any person) does not conform in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer Company or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Companyits Subsidiaries, and, to the Knowledge knowledge of the Company and the ShareholdersCompany, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company is not knowledgeable of any Proprietary Assets constitute all Asset owned or used by any other person (except for any Proprietary Asset that is licensed to the Proprietary Assets Company or any Subsidiary under any third party license set forth in the Company Disclosure or would otherwise be commercially available) necessary to enable the Company and each Subsidiary to conduct its business businesses in the manner in which such business has businesses have been and is are being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, conducted or are expected to be conducted pursuant to the Company Disclosure. Neither the Company nor any Subsidiary has not (i) licensed licensed, or agreed to license, any of the Company its Proprietary Assets to any Person person on an exclusive, semi-exclusive basis or (ii) royalty-free basis. Neither the Company nor any Subsidiary has entered into any covenant not to compete or Contract contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Personperson. Without limitation on the foregoing, except as set forth in the Company Disclosure, no officer, director or Stakeholder, either as an individual or through an affiliate, has any claim to own or any other rights to use any of the Proprietary Assets.
(f) Except as set forth in the Company Disclosure, the Company is not knowledgeable that any Employee is obligated under any agreement (including licenses, covenants or commitments of any nature) or subject to any judgment, decree or order of any court or administrative agency, or any other restriction that would interfere with the use of his or her best efforts to carry out his or her duties for the Company and its Subsidiaries, as appropriate, or to promote the interests of the Company and its Subsidiaries, as appropriate, or that would conflict with the Company’s or its Subsidiaries’ business as proposed to be conducted. The Company does not believe it is or will be necessary to utilize any inventions of any Employees (or persons the Company or its Subsidiaries currently intend to hire) made prior to their employment or retainer by the Company or its Subsidiaries, as appropriate, which have not been assigned to the Company. To the Company’s knowledge, after due inquiry, at no time during the conception of, or reduction to practice, or development of, any of the Company’s or its Subsidiaries’ Proprietary Assets was any developer, inventor or other contributor to such Proprietary Assets operating under any grants from any governmental entity or agency or private source, performing research sponsored by any governmental entity or agency or private source or subject to any employment agreement or invention assignment or nondisclosure agreement or other obligation with any third party that could adversely affect the Company’s or its Subsidiaries’ rights in such Proprietary Assets.
(g) The Company believes that the exceptions, qualifications and other disclosures relating to the Proprietary Assets set forth in the Company Disclosure shall not have a Material Adverse Effect in the aggregate.
Appears in 1 contract
Samples: Note Purchase Agreement (Sbe Inc)
Proprietary Assets. (a) Part 2.9(a)(i) of the Company Disclosure Schedule sets forth, with respect to each Company Proprietary Asset owned by the Acquired Corporations and registered with any Governmental Body or for which an application has been filed with any Governmental BodyBody and material to the business of the Acquired Corporations, (i) a brief description of such Proprietary Asset, Asset and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Company Disclosure Schedule identifies and provides a brief description lists any Contract containing any ongoing royalty or payment obligations in excess of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of $50,000 per annum with respect to each Proprietary Asset that is licensed or otherwise made available to the Company Acquired Corporations by any Person (except for any Proprietary Asset that is licensed to the Company Acquired Corporations under any third party software license generally available to the public at for a cost one time fee). The Acquired Corporations have good and valid title to all of less than $500)the Proprietary Assets owned by the Acquired Corporations and material to their business, free and identifies clear of all Encumbrances except for Encumbrances arising from the license agreement under Company’s credit agreements. The Acquired Corporations have a valid right to use as a licensee all Proprietary Assets identified in Part 2.9(a)(ii) of the Company Disclosure Schedule, subject to the Bankruptcy and Equity Exception. Except as set forth in Part 2.9(a)(iii) of the Company Disclosure Schedule, none of the Acquired Corporations has developed jointly with any other Person any Proprietary Asset owned by the Acquired Corporations and material to their business with respect to which such Proprietary Asset is being licensed to the Companyother Person has any rights. Except as set forth in Part 2.9(a)(iv) of the Company Disclosure Schedule, there is no Acquired Corporation Contract pursuant to which any Person (other than an Acquired Corporation) has any right (whether or not currently exercisable) to use, license or otherwise exploit any Proprietary Asset owned by the Acquired Corporations and material to their business. The Company has gooddelivered to Parent a copy of all Contracts, valid and marketable title including all amendments thereto, which relate to all of the Company material Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is not obligated to make owned or used by any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rightsAcquired Corporation.
(b) The Company has Acquired Corporations have taken all reasonable and appropriate measures and precautions reasonably necessary to protect and maintain the confidentiality confidentiality, secrecy and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company material Acquired Corporation Proprietary Assets. Except as provided in Part 2.9(b) In the ordinary course of the Disclosure ScheduleCompany’s business, the Company Company’s policy in the United States has not been and continues to be to obtain an executed agreement (other than pursuant containing no exceptions to license agreements identified in Part 2.10 or exclusions from the scope of its coverage) that is substantially identical to the form of the Disclosure Schedule) disclosed Confidentiality Information and Inventions and Non-Competition Agreements previously delivered by the Company to Parent from each employee of the Acquired Corporations in the United States who is or delivered was involved in, or who has contributed to, the creation or development of any material Acquired Corporation Proprietary Asset. To the Company’s knowledge, the Company’s policy outside the United States has been and continues to be to obtain reasonably similar coverage to that afforded by the form of Confidential Information and Inventions Agreement in the United States, either through executed agreements or the Legal Requirements in the Relevant Jurisdiction. To the Company’s knowledge, no current or former employee, officer, director, stockholder, consultant or independent contractor has any right, claim or interest in or with respect to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Acquired Corporation Proprietary Asset.
(c) None Except as set forth on Part 2.9(c) of the Company Disclosure Schedule, to the Company’s knowledge, (i) all patents, trademarks, service marks and copyrights held by any of the Acquired Corporations and which are material to the business of the Acquired Corporations are valid, enforceable and subsisting, and the applicable Acquired Corporation has renewed or made application to renew all registrations of such Acquired Corporation Proprietary Assets infringes and has paid all applicable fees, all within the applicable renewal periods; (ii) none of the material Acquired Corporation Proprietary Assets infringes, misappropriates or conflicts with any Proprietary Asset owned or used by any other Person; (iii) none of the products that are or have been designed, includingcreated or developed, without limitation, any former employers of nor any of the Company's Shareholders. The Company services that have been or are being provided, by any of the Acquired Corporations is not or was infringing, misappropriating or making any unlawful or unauthorized use ofof any Proprietary Asset owned by any other Person, and none of the Company Acquired Corporations has not at any time infringed, misappropriated or made any unlawful use of, or received any written notice or of or, to the Company’s knowledge, any other communication (in writing or otherwise) of information regarding any actual, alleged, possible actual or potential alleged infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company ; and the Shareholders, (iv) no other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company material Acquired Corporation Proprietary Asset.
(id) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of To the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by ’s knowledge, the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Acquired Corporation Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company Acquired Corporations to conduct its their business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e2.9(d) of the Company Disclosure Schedule, none of the Company Acquired Corporations has not (i) licensed any of the Company material Proprietary Assets owned by the Acquired Corporations to any Person on an exclusive basis basis, or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its material Acquired Corporation Proprietary Assets or to transact business in any market or geographical area or with any PersonPerson (other than any such limit in the scope of any license granted to an Acquired Corporation for any Proprietary Asset).
(e) The Acquired Corporations have taken reasonable measures and precautions to protect and maintain the confidentiality, secrecy and value of the Proprietary Assets of their customers, including all such measures required by the terms of any Acquired Corporation Contract with a customer.
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company QSG Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company QSG Proprietary Assets owned by the CompanyQSG. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company QSG by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $500), and identifies the license agreement under which such Proprietary Asset is being licensed to the CompanyQSG. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company QSG has good, valid and marketable title to all of the Company QSG Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company QSG is not obligated to make any payment to any Person for the use of any Company QSG Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company QSG has not developed jointly with any other Person any Company QSG Proprietary Asset with respect to which such other Person has any rights.
(b) The Company QSG has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company QSG Proprietary Assets (except Company QSG Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company QSG Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company QSG Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's ShareholdersShareholder. The Company QSG is not infringing, misappropriating or making any unlawful use of, and the Company QSG has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company QSG and the Shareholders, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company QSG Proprietary Asset.
(id) Each Company QSG Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; QSG, and (ii) there has not been any claim by any customer or other Person alleging that any Company QSG Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company QSG to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the CompanyQSG, and, to the Knowledge of the Company QSG and the ShareholdersShareholder, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company QSG Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company QSG to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the Company QSG has not (i) licensed any of the Company QSG Proprietary Assets to any Person on an exclusive basis or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(f) All current and former employees of QSG have executed and delivered to QSG an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is identical in all material respects to the form of Confidential Information and Invention Assignment Agreement previously delivered to Parent; and, all current and former consultants and independent contractors to QSG have executed and delivered to QSG an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is identical in all material respects to the form of Consultant Confidential Information and Invention Assignment Agreement previously delivered to Parent.
Appears in 1 contract
Samples: Merger Agreement (Zamba Corp)
Proprietary Assets. (a) Part 2.9(a)(i3.12(a) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset of Exousia registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Exousia Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii3.12(a) of the Disclosure Schedule identifies and provides a brief description of all other Company material Proprietary Assets owned by the CompanyExousia. Part 2.9(a)(iii3.12(a) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company Exousia by any Person (except for any Proprietary Asset that is licensed to the Company Exousia under any third party software license generally available to the public at a cost of less than $5001,000 per copy), and identifies the license agreement under which such Proprietary Asset is being licensed to the CompanyExousia. Except as set forth in Part 2.9(a)(iv3.12(a) of the Disclosure Schedule, the Company Exousia has good, valid and marketable title to all of the Company Proprietary Assets identified used in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, its business free and clear of all liens and other Encumbrances, and has a valid right (contractual or otherwise) to use all Proprietary Assets identified in Part 2.9(a)(iii3.12(a) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v3.12(a) of the Disclosure Schedule, the Company Exousia is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi3.12(a) of the Disclosure Schedule, the Company Exousia has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company Exousia has taken all commercially reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b3.12(a) of the Disclosure Schedule, the Company Exousia has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, Person except for any former employers inadvertent infringement of which Exousia is unaware that does not impose any of the Company's Shareholdersmaterial liability on Exousia or cause Exousia to spend any material amount to replace any Proprietary Assets. The Company Exousia is not infringing, misappropriating or making any unlawful use of, and the Company Exousia has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the ShareholdersExousia, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(d) Except as set forth in Part 3.12(d) of the Disclosure Schedule:
(i) Each Company each Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the CompanyExousia; and (ii) during the last 24 months, there has not been any material claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company Exousia to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of Exousia other than reports of programming errors that (x) occur or are experienced from time to time by customers using Exousia's products in a unique or custom fashion, (y) have been resolved or are resolvable through Exousia's help desk (without the Companydevotion of material additional resources) and (z) are consistent with the experience of Comparable Entities, and, to the Knowledge knowledge of the Company and the ShareholdersExousia, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company Exousia to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on in Part 2.9(e3.12(e) of the Disclosure Schedule, the Company has not (i) Exousia has not licensed any of the Company its Proprietary Assets to any Person on an exclusive basis or basis, and (ii) Exousia has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(f) Except as disclosed in Part 3.12 of the Disclosure Schedule, all Proprietary Assets of Exousia do not and will not contain any viruses, which shall mean any computer code designed to disrupt, disable, harm, or otherwise impede in any manner, the operation of the computer program, or any other associated software, firmware, hardware, or network (including local area or wide-area networks), in a manner not intended by the creator(s) of such software, firmware, hardware, or network.
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i) of the GEOSURE Disclosure Schedule sets forth, with respect to each Company GEOSURE Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the GEOSURE Disclosure Schedule identifies and provides a brief description of all other Company material GEOSURE Proprietary Assets owned by the CompanyGEOSURE or any other Acquired Entity. Part 2.9(a)(iii) of the GEOSURE Disclosure Schedule identifies and provides a brief description of each material Proprietary Asset licensed to the Company GEOSURE or any other Acquired Entity by any Person (except for any Proprietary Asset that is licensed to the Company GEOSURE or any other Acquired Entity under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the CompanyGEOSURE or any other Acquired Entity. Except as set forth in Part 2.9(a)(iv) of the GEOSURE Disclosure ScheduleSchedule GEOSURE (or any other Acquired Entity, the Company as appropriate) has good, valid and marketable title to all of the Company GEOSURE Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the GEOSURE Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right (contractual or otherwise) to use all Proprietary Assets identified in Part 2.9(a)(iii) of the GEOSURE Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the GEOSURE Disclosure Schedule, the Company no Acquired Entity is not obligated to make any payment to any Person for the use of any Company GEOSURE Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the GEOSURE Disclosure Schedule, the Company no Acquired Entity has not developed jointly with any other Person any Company GEOSURE Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has Acquired Entities have taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company GEOSURE Proprietary Assets (except Company GEOSURE Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company GEOSURE Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company GEOSURE Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any . None of the Company's Shareholders. The Company Acquired Entities is not infringing, misappropriating or making any unlawful use of, and the Company has Acquired Entities have not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge best of the Company and the Shareholdersknowledge of GEOSURE, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company GEOSURE Proprietary Asset.
(d) Except as set forth in Part 2.9(d) of GEOSURE Disclosure Schedule: (i) Each Company each GEOSURE Proprietary Asset conforms in all material respects with any specification, documentation and performance standard provided with respect thereto by or on behalf of any Acquired Entity; and (ii) there has not been any material claim, which has not been fully resolved, by any customer or other Person alleging that any GEOSURE Proprietary Asset does not conform in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the CompanyAcquired Entity, and, to the Knowledge best of the Company and the Shareholdersknowledge of GEOSURE, there is no basis for any such claim. There are no GEOSURE has established adequate reserves on the GEOSURE Financial Statements to cover all costs associated with any obligations of that the Company Acquired Entities may have with respect to correct the correction or repair any of programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company GEOSURE Proprietary Assets.
(e) The Company GEOSURE Proprietary Assets constitute all the Proprietary Assets reasonably necessary to enable the Company Acquired Entities to conduct its business their businesses in the manner in which such business has businesses have been and is are being conducted. Except as set forth on in Part 2.9(e) of the GEOSURE Disclosure Schedule, the Company has not (i) the Acquired Entities have not licensed any of the Company GEOSURE Proprietary Assets to any Person on an exclusive basis or basis, and (ii) the Acquired Entities have not entered into any covenant not to compete or Contract limiting its the ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(f) Except as set forth in Part 2.9(f) of the GEOSURE Disclosure Schedule, (i) all current and former employees of the Acquired Entities have executed and delivered to the Acquired Entities an agreement that is substantially identical to the standard form of agreement used by GEOSURE and previously delivered to VISTA, and (ii) all current and former consultants and independent contractors to the Acquired Entities have executed and delivered to the Acquired Entities an agreement that is substantially identical to the standard form of agreement used by GEOSURE and previously delivered to VISTA.
(g) GEOSURE will retain all rights held by it to the Xxxxxxx Maps as set forth in that certain agreement dated August 1, 1991 by and among Xxxxxxxx-Xxxxx, Ltd., Xxxxxxxx-Xxxxx, Inc., The Environmental Risk Information Center and Elsevier Realty Information Services (the "Xxxxxxx Agreement"), and GEOSURE may assign such rights to VISTA following the Closing without restriction.
Appears in 1 contract
Samples: Partnership Interest Purchase Agreement (Vista Information Solutions Inc)
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the The Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the The Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the The Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights. Portions of the Company Proprietary Assets are derived from the public domain or are freeware, and no ownership is asserted by the Company or the Shareholders with respect to such portions.
(b) The Company has taken all reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, the The Company has not (other than pursuant to license agreements on the Company's standard form or otherwise identified in Part 2.10 2.10(a)(ii) of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None To the best knowledge of the Company and the Shareholders, none of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge best knowledge of the Company and the Shareholders, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.is
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i) of the Company Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Company Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company that are material to the Company's business. Part 2.9(a)(iii) of the Company Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Part 2.9(a)(iv) of the Company Disclosure Schedule identifies all licenses, sublicenses and other agreements to which the Company is a party and pursuant to which any person is authorized to use any Company Proprietary Assets (except for licenses of Company Proprietary Assets to customers under the Company's standard end-user license agreements, the forms of which have been provided to Parent and its legal counsel. Except as set forth in Part 2.9(a)(iv2.9(a)(v) of the Company Disclosure Schedule, the Company has good, good and valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Company Disclosure Schedule, free and clear of all liens and other EncumbrancesEncumbrances other than Permitted Liens, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Company Disclosure Schedule. Except as set forth in Part 2.9(a)(v2.9(a)(vi) of the Company Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi2.9(a)(vii) of the Company Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all measures and precautions reasonably necessary reasonable steps to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b) of the Company Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 2.10(a)(iv) of the Company Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes infringe or conflicts conflict with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time time, including with respect to the Former Hardware Business (as defined in Section 2.10) infringed, misappropriated or made any unlawful use of, or received any written notice or other communication (including written notices in writing or otherwiseelectronic form) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge knowledge of the Company and the ShareholdersCompany, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(d) Except as set forth in Part 2.9(d) of the Company Disclosure Schedule: (i) Each each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any written claim (including written claims in electronic form) by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the Company, and, to the Knowledge knowledge of the Company and the ShareholdersCompany, there is no basis for any such claim. There are no obligations of The Company has established adequate reserves on the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves Unaudited Interim Balance Sheet to cover any all costs associated with any obligations of that the Company may have with respect to correct the correction or repair any of programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted and as presently proposed to be conducted. Except as set forth on in Part 2.9(e) of the Company Disclosure Schedule, (i) the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or basis, and (ii) the Company has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(f) Except as set forth in Part 2.9(f) of the Company Disclosure Schedule, (i) all current and former employees of the Company have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Proprietary Information and Inventions Agreement previously delivered to Parent, and (ii) all current and former consultants and independent contractors to the Company have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Consultant Proprietary Information and Inventions Agreement previously delivered to Parent.
(g) Each item of software and hardware that has been developed by or for the Company is Year 2000 Compliant and, to the knowledge of the Company, each other item of software and hardware that is owned or used by the Company is Year 2000 Compliant.
(h) Each item of software that is or has been distributed by the Company for use of its customers in its current business has been licensed to customers pursuant to the Company's standard Software License Agreements or Professional Services Agreements which remain in full legal force and effect. Forms of these agreements have been provided to Parent's legal counsel.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Accrue Software Inc)
Proprietary Assets. (a) Part 2.9(a)(i3.12(a) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset of Havoc registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Havoc Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii3.12(a) of the Disclosure Schedule identifies and provides a brief description of all other Company material Proprietary Assets owned by the CompanyHavoc. Part 2.9(a)(iii3.12(a) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company Havoc by any Person (except for any Proprietary Asset that is licensed to the Company Havoc under any third party software license generally available to the public at a cost of less than $5001,000 per copy), and identifies the license agreement under which such Proprietary Asset is being licensed to the CompanyHavoc. Except as set forth in Part 2.9(a)(iv3.12(a) of the Disclosure Schedule, the Company Havoc has good, valid and marketable title to all of the Company Proprietary Assets identified used in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, its business free and clear of all liens and other Encumbrances, and has a valid right (contractual or otherwise) to use all Proprietary Assets identified in Part 2.9(a)(iii3.12(a) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v3.12(a) of the Disclosure Schedule, the Company Havoc is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi3.12(a) of the Disclosure Schedule, the Company Havoc has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company Havoc has taken all commercially reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b3.12(a) of the Disclosure Schedule, the Company Havoc has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, Person except for any former employers inadvertent infringement of which Havoc is unaware that does not impose any of the Company's Shareholdersmaterial liability on Havoc or cause Havoc to spend any material amount to replace any Proprietary Assets. The Company Havoc is not infringing, misappropriating or making any unlawful use of, and the Company Havoc has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the ShareholdersHavoc, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(d) Except as set forth in Part 3.12(d) of the Disclosure Schedule:
(i) Each Company each Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the CompanyHavoc; and (ii) during the last 24 months, there has not been any material claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company Havoc to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of Havoc other than reports of programming errors that (x) occur or are experienced from time to time by customers using Havoc's products in a unique or custom fashion, (y) have been resolved or are resolvable through Havoc's help desk (without the Companydevotion of material additional resources) and (z) are consistent with the experience of Comparable Entities, and, to the Knowledge knowledge of the Company and the ShareholdersHavoc, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company Havoc to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on in Part 2.9(e3.12(e) of the Disclosure Schedule, the Company has not (i) Havoc has not licensed any of the Company its Proprietary Assets to any Person on an exclusive basis or basis, and (ii) Havoc has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(f) Except as disclosed in Part 3.12 of the Disclosure Schedule, all Proprietary Assets of Havoc do not and will not contain any viruses, which shall mean any computer code designed to disrupt, disable, harm, or otherwise impede in any manner, the operation of the computer program, or any other associated software, firmware, hardware, or network (including local area or wide-area networks), in a manner not intended by the creator(s) of such software, firmware, hardware, or network.
Appears in 1 contract
Samples: Stock Exchange Agreement (American Enterprise Development Corp)
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company has good, valid good and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge best of the knowledge of the Company and the ShareholdersDesignated Stockholders, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(d) Except as set forth in Part 2.9(d) of the Disclosure Schedule: (i) Each each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.,
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Terayon Communication Systems)
Proprietary Assets. (a) Part 2.9(a)(i2.12(a) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii2.12(a) of the Disclosure Schedule identifies and provides a brief description of all other material Company Proprietary Assets owned by the CompanyMS. Part 2.9(a)(iii2.12(a) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company MS by any Person (except for any Proprietary Asset that is licensed to the Company MS under any third party software license generally available to the public at a cost of less than $5001,000 per copy), and identifies the license agreement under which such Proprietary Asset is being licensed to the CompanyMS. Except as set forth in Part 2.9(a)(iv2.12(a) of the Disclosure Schedule, the Company MS has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right (contractual or otherwise) to use all Proprietary Assets identified in Part 2.9(a)(iii2.12(a) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v2.12(a) of the Disclosure Schedule, the Company MS is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi2.12(a) of the Disclosure Schedule, the Company MS has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company MS has taken all commercially reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b2.12(b) of the Disclosure Schedule, the Company MS has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company MS is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the ShareholdersMS, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(d) Except as set forth in Part 2.12(d) of the Disclosure Schedule: (i) Each each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the CompanyMS; and (ii) there has not been any material claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company MS to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the CompanyMS, and, to the Knowledge of the Company and the ShareholdersMS, there is no basis for any such claim. There are no obligations of To the Company to correct or repair any programming errors or other defects in extent required by GAAP, MS has established adequate reserves on the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves Unaudited Interim Balance Sheet to cover any all costs associated with any obligations of that MS may have with respect to the Company to correct correction or repair any of programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company MS to conduct its business in the manner in which such business has been and is currently being conducted. Except as set forth on in Part 2.9(e2.12(e) of the Disclosure Schedule, the Company has not (i) MS has not licensed any of the Company Proprietary Assets to any Person on an exclusive basis or basis, and (ii) MS has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(f) Except as set forth in Part 2.12(f) of the Disclosure Schedule: (i) all current employees of MS and all former employees who were hired on or after August 11, 1998, have executed and delivered to MS an agreement (containing no exceptions to or exclusions from the scope of its coverage except for prior inventions that do not conflict with the operations of MS' businesses or the use of MS' assets) that is substantially identical to the standard form of Employee Proprietary Information and Invention Agreement previously delivered to Purchaser, and (ii) all current consultants and independent contractors of MS and all former consultants and independent contractors of MS engaged on or after August 11, 1998 (excluding bankers, accountants, lawyers and other non-technical consultants and independent contractors) have executed and delivered to MS an agreement (containing no exceptions to or exclusions from the scope of its coverage as it relates to the specific project for which the consultant or independent contractor was hired) that is substantially identical to the form of consultant confidential information and invention assignment agreement previously delivered to the Purchaser.
(g) All Company Proprietary Assets do not and will not contain any viruses, which shall mean any computer code designed to disrupt, disable, harm, or otherwise impede in any manner, the operation of the computer program, or any other associated software, firmware, hardware, or network (including local area or wide-area networks), in a manner not intended by the creator(s) of such software, firmware, hardware, or network.
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i2.8(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description the title of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(iiSection 2.8(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the The Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii2.8(a)(i) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii2.8(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the The Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the The Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, the The Company has not (other than pursuant to license agreements identified in Part 2.10 2.9 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None To the best of the Company's knowledge after reasonable investigation, none of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person; except for copyrights, including, for which such representation is made without limitation, any former employers of any limitation by the Company's knowledge. To the best of the Company's Shareholders. The knowledge after reasonable investigation, the Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person; except for copyrights, for which such representation is made without limitation by the Company's knowledge. To the Knowledge best of the Company and knowledge of the ShareholdersCompany, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(id) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there . There has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the Company, and, to the Knowledge best of the Company and knowledge of the ShareholdersCompany, there is no basis for any such claim. There are no obligations of The Company has established adequate reserves on the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves Unaudited Interim Balance Sheet to cover any costs associated with any obligations of that the Company may have with respect to correct the correction or repair any of programming errors or other defects in the Company Proprietary Assets.
(e) The To the best of the Company's knowledge after reasonable investigation, except for copyrights, for which such representation is made without limitation by the Company's knowledge, the Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the The Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) basis, and the Company has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(f) All current and former employees of the Company have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the
Appears in 1 contract
Samples: Stock Purchase Agreement (Asyst Technologies Inc /Ca/)
Proprietary Assets. (a) Part 2.9(a)(iSection 2.8(a)(1) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered that has been registered, recorded or filed with any Governmental Body or for with respect to which an application has been filed with any Governmental Body, (i) a brief description of such Company Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration registration, recordation, filing or application. Part 2.9(a)(iiSection 2.8(a)(2) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the CompanyCompany including but not limited to Company Proprietary Assets that have not been registered, recorded or filed with any Governmental Body or is not the subject of an application has been filed with any Governmental Body. Part 2.9(a)(iiiSection 2.8(a)(3) of the Disclosure Schedule identifies and provides a brief description of each Company Proprietary Asset that is owned by any other Person and that is licensed to or used by the Company by any Person (except for any Company Proprietary Asset that is licensed to the Company under any third party software license that (1) is generally available to the public at a cost of less than $500)5,000, and (2) imposes no future monetary obligation on the Company) and identifies the license agreement or other agreement under which such Company Proprietary Asset is being licensed to or used by the Company. Except as set forth in Part 2.9(a)(ivSection 2.8(a)(4) of the Disclosure Schedule, the Company has good, valid valid, indefeasible and marketable freely transferable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(iSections 2.8(a)(1) and 2.9(a)(ii2.8(a)(2) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iiiSection 2.8(a)(3) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(vSection 2.8(a)(5) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(viSection 2.8(a)(6) of the Disclosure Schedule, the Company has not developed jointly with any other Person any is free to use, modify, copy, distribute, sell, license or otherwise exploit each of the Company Proprietary Asset Assets on an exclusive basis (other than Company Proprietary Assets consisting of software licensed to the Company under third party licenses generally available to the public, with respect to which such other Person has any rightsthe Company’s rights are not exclusive).
(b) The Company has taken all commercially reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(bSection 2.8(b) of the Disclosure Schedule, the Company has not (other than pursuant disclosed or delivered or permitted to license agreements identified in Part 2.10 of the Disclosure Schedule) be disclosed or delivered to any Person, and no Person (other than the Company) has access to or permitted the disclosure or delivery to has any Person ofrights with respect to, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None To the knowledge of each of the Company or the Shareholders, none of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any and except as set forth in Section 2.8(c) of the Company's Shareholders. The Disclosure Schedule, the Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge , and except as set forth in Section 2.8(c) of the Company and the ShareholdersDisclosure Schedule, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, with any Company Proprietary Asset.
(id) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf To the knowledge of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(ein Section 2.8(d) of the Disclosure Schedule, (i) the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or basis, and (ii) the Company has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) Except as set forth in Section 2.8(e) of the Disclosure Schedule, all current and former employees of the Company, and all current and former consultants and independent contractors to the Company, have executed and delivered to the Company written agreements (containing no exceptions to or exclusions from the scope of their coverage) that are substantially identical to the form of the Invention Assignment attached hereto as Exhibit C, and Confidentiality Agreements in the form previously provided to Tarantella. Each Invention, as contemplated by such Invention Assignment and Confidentiality Agreement, conceived, made or authored by any former and current employees, contractors and/or consultants of the Company are listed in Section 2.8(e) of the Disclosure Schedule.
(f) Except as set forth in Section 2.8(f) of the Disclosure Schedule, the Company has not entered into and is not bound by any Contract under which any Person has the right to distribute or license, on a commercial basis, any Company Proprietary Asset including source code, object code, or any versions, modifications or derivative works of source code or object code in any Company Proprietary Asset.
(g) To the knowledge of each of the Company and the Shareholders, except as set forth in Section 2.8(g) of the Disclosure Schedule, no claims with respect to any Company Proprietary Asset have been asserted or are threatened by any Person, nor are there any valid grounds for any bona fide claims, (i) to the effect that the manufacture, sale, licensing or use of any of the products of the Company infringes on any copyright or trade secret, nor any patent, trade xxxx, service xxxx, or other proprietary right, (ii) against the use by the Company of any trademarks, service marks, trade names, trade secrets, copyrights, maskworks, patents, technology, know-how or computer software programs and applications used in Company’s business as currently conducted or as proposed to be conducted by Company, or (iii) challenging the ownership by Company, or the validity or effectiveness of any of Company’s Proprietary Assets.
(h) To the knowledge of each of the Company and the Shareholders, except as set forth in Section 2.8(h) of the Disclosure Schedule, all registered trademarks, service marks and copyrights held by Company are valid and subsisting. Company has not infringed, and the business of the Company as currently conducted or as proposed to be conducted does not infringe, any copyright, patent, trademark, service xxxx, trade secret or other proprietary right of any third party. Company is not aware of any unauthorized use, infringement or misappropriation of any of Company’s Proprietary Assets by any third party, including any current or former employee, contractor or consultant of Company. No Company Proprietary Asset or Company product is subject to any outstanding decree, order, judgment, or stipulation, specifically naming Company that restricts, in any manner, the licensing thereof by Company. All software included in Company’s Proprietary Assets is original with Company and has been either created by former or current employees of Company on a work-for-hire basis or by former or current consultants or contractors who have created such software themselves and have assigned all of their respective right, title and interest in such software to Company.
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i) 2.12 of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset owned by the Companies registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) 2.12 of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the CompanyCompanies (the "Owned Proprietary Assets"). Part 2.9(a)(iii) 2.12 of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company Companies by any Person (except for any Proprietary Asset that is licensed to the Company Companies under any third party software license generally available to the public at a cost of less than $5001,000 per copy) (the "Licensed Proprietary Assets"), and identifies the license agreement under which such Proprietary Asset is being licensed to the CompanyCompanies (the Owned Proprietary Assets and the Licensed Proprietary Assets are hereinafter collectively referred to as the "Company Proprietary Assets"). Except as set forth in Part 2.9(a)(iv) 2.12 of the Disclosure Schedule, the Company has Companies have good, valid and marketable title to all of the Company Owned Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has have a valid right (contractual or otherwise) to use use, license, lease, sell or otherwise distribute to others all Company Proprietary Assets identified in Part 2.9(a)(iii) 2.12 of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) 2.12 of the Disclosure Schedule, the Company is Companies are not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) 2.12 of the Disclosure Schedule, the Company has Companies have not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has Companies all Licensed Proprietary Assets is licensed to the Companies pursuant to written license agreements under which the Companies are in good standing and are entitled to all benefits thereunder, and there exists no state of facts which after notice or lapse of time or both would constitute a default or breach thereunder and to the Knowledge of SFG no other party to such agreements is in default thereunder.
(c) The Companies have taken all commercially reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b) 2.12 of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 none of the Disclosure Schedule) Companies has disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) other than to customers of the Company or for demonstration purposes in the Ordinary Course of Business, the object code, or any portion or aspect of the object code, of any Company Proprietary Asset. The source code for Licensed Proprietary Assets is either in the Companies' possession or is subject to a source code escrow agreement under which the Companies have the right to obtain the source code upon the bankruptcy or other problem with the licensor.
(cd) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any . None of the Company's Shareholders. The Company Companies is not infringing, misappropriating or making any unlawful use of, and none of the Company Companies has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the Shareholders, no No other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(ie) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of any of the Company; and (ii) there Companies. There has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company Companies to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the Company, and, to the Knowledge any of the Company Companies to such customer or other Person and the Shareholders, there is no basis for any such claim. There are no obligations of SFG has established adequate reserves on the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves Unaudited Interim Balance Sheet to cover any all costs associated with any obligations of that the Company Companies may have with respect to correct the correction or repair any of programming errors or other defects in the Company Proprietary Assets.
(ef) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company Companies to conduct its their business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) None of the Disclosure Schedule, the Company Companies has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) basis. None of the Companies has entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(g) Except as set forth in Part 2.12 of the Disclosure Schedule: (i) all current and former employees of the Companies have executed and delivered to the Companies an agreement (containing no exceptions to or exclusions from the scope of its coverage except for prior inventions that do not conflict with the operations of the Companies' businesses or the use of the Companies' assets) that is substantially identical to the standard form of employment agreement previously delivered to the Purchaser, and (ii) all current and former consultants and independent contractors of the Companies (excluding bankers, accountants, lawyers and other non-technical consultants and independent contractors) have executed and delivered to the Companies an agreement (containing no exceptions to or exclusions from the scope of its coverage as it relates to the specific project for which the consultant or independent contractor was hired) that is substantially identical to such form of employment agreement previously delivered to the Purchaser.
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i2.11(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Acquired Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Acquired Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $500), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company Seller has good, valid and marketable title to all of the Company Acquired Proprietary Assets identified in Parts 2.9(a)(iSections 1.1(a), 1.1(c) and 2.9(a)(ii) of the Disclosure Schedule1.1(d), free and clear of all liens and other Encumbrances, and has a valid the right to use all of the Acquired Proprietary Assets identified in Section 1.1(b) in accordance with the agreements listed in Section 1.1(b) of the Transfer List. Part 2.9(a)(iii2.11(a)(ii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is not obligated Schedule identifies all Contracts that obligate Seller to make any payment to any Person for the use of any Company Acquired Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company Seller has not developed jointly with any other Person any Company Acquired Proprietary Asset with respect to which such other Person has any rightsrights (other than rights to receive compensation for services performed as an employee or independent contractor of Seller, which rights are not included in the Assumed Liabilities).
(b) The Company Seller has taken all measures and precautions reasonably necessary to protect and maintain its rights in all the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Acquired Proprietary Assets. Except as provided in Part 2.9(b2.11(b) of the Disclosure ScheduleSchedule identifies all Persons (other than employees or independent contractors of Seller who, in each case, were bound in writing by customary nondisclosure obligations) to whom Seller has disclosed or delivered or permitted the Company has not disclosure or delivery (other than HTML code used on the FreeMerchant Site) of the source code, or any portion of the source code, of any Acquired Proprietary Asset, other than pursuant to license agreements identified in Part 2.10 2.6 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None In connection with Seller's ownership, use and operation of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company Customer Assets: (i) Seller is not knowingly infringing, misappropriating or making any unlawful use of, and the Company Seller has not at any time knowingly infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, actual or alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by of any other Person. To the Knowledge knowledge of the Company and the ShareholdersSeller, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by of any other Person infringes upon or conflicts with, misappropriates any Company Acquired Proprietary Asset.
(id) Each Company each Acquired Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the CompanySeller; and (ii) there Seller has not been received notice, nor does it have any knowledge of any claim by any customer or other Person alleging that any Company Acquired Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company Seller to any PersonPerson since ownership thereof) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the Company, Seller and, to the Knowledge knowledge of the Company and the ShareholdersSeller, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Except for the Excluded Assets, the Acquired Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company Seller to conduct its business related to the Customer Assets in a manner substantially equivalent to the manner in which such business has been and is was being conducted. Except conducted on the FreeMerchant Site as set forth of November 30, 2001, except for the Oracle License.
(f) Seller owns no patents or patent applications reading on Part 2.9(e) of the Disclosure Schedule, the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any PersonFreeMerchant Technology.
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all reasonably adequate measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None To the best of the Knowledge of the Company and the Shareholders, none of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any . To the best of the Company's Knowledge of the Company and the Shareholders. The , the Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the best of the Knowledge of the Company and the Shareholders, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(d) Except as set forth in Part 2.9(d) of the Disclosure Schedule: (i) Each each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the Company, and, to the best of the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on in Part 2.9(e) of the Disclosure Schedule, (i) the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or basis, and (ii) the Company has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(f) Except as set forth in Part 2.9(f) of the Disclosure Schedule, (i) all current and former employees of the Company have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Intellectual Property and Confidential Information Agreement previously delivered to Parent, and (ii) all current and former consultants and independent contractors to the Company have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Intellectual Property and Consultant Confidential Information Agreement previously delivered to Parent.
Appears in 1 contract
Samples: Merger Agreement (Alliedsignal Inc)
Proprietary Assets. (a) Part 2.9(a)(i) of The Company owns or has a valid right to use the Disclosure Schedule sets forth, with respect to each intellectual property in the Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $500), and identifies the license agreement under which such Proprietary Asset is being licensed to the CompanyAssets. Except as set forth in Part 2.9(a)(iv2.6(a)(i) of the Company Disclosure Schedule, as of the date hereof, the Company has good, valid and marketable title to all of the does not jointly own any Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and Asset with any other Encumbrances, and has a valid right Person or license any owned Company Proprietary Asset to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Scheduleany other Person. Except as set forth in Part 2.9(a)(v2.6(a)(ii) of the Company Disclosure Schedule, as of the date hereof, there is no Company Contract pursuant to which the Company is not obligated to make any payment to has granted any Person for the use of any right (whether or not currently exercisable) to use, sublicense, commercially distribute or otherwise exploit any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all commercially reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all the Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets). Except as provided set forth in Part 2.9(b) Schedule 2.6(b), no current or former officer, director, stockholder, employee, consultant or independent contractor of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered any ownership right with respect to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any owned Company Proprietary Asset.
(c) None Except as set forth in Part 2.6(c)(i) of the Company Disclosure Schedule, the Company Proprietary Assets owned by the Company are held of record in the name of the Company free and clear of all liens, encumbrances and other claims other than Permitted Liens. Except as set forth in part 2.6(c)(i) of the Company Disclosure Schedule, the owned Company Proprietary Assets are not the subject of any cancellation or reexamination proceeding or any other proceeding challenging their extent or validity that would reasonably be expected to have a Material Adverse Effect on the Company, and all necessary registration, maintenance and renewal fees in connection with such owned Company Proprietary Assets have been paid and all necessary documents and certificates in connection with such owned Company Proprietary Assets have been 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 any such patents, applications and registrations. Except as set forth in Part 2.6(c)(ii) of the Company Disclosure Schedule, the Company is the applicant of record in all patent applications, and applications for trademark, service xxxx, trade dress, industrial design, copyright and mask work registrations indicated in Part 2.6(f) of the Company Disclosure Schedule, and no opposition, extension of time to oppose, interference, final rejection, or final refusal to register has been received in connection with any such application that would reasonably be expected to have a Material Adverse Effect on the Company. To the Company's Knowledge, the use of the Company Proprietary Assets infringes in the Company's current business activities or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any the conduct of the Company's Shareholders. The Company is business as currently conducted by the Company, does not infringinginfringe, misappropriating misappropriate or making any unlawful use of, and otherwise violate the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) intellectual property rights of any actualthird party, alleged, possible or potential where such infringement, misappropriation or unlawful use ofviolation would reasonably be expected to have a Material Adverse Effect on the Company and no claim has been made, any Proprietary Asset owned notice given or used by any other Persondispute arisen to that effect. To the Knowledge of the Company and Company, as of the Shareholdersdate hereof, no other Person is infringing, misappropriating or making infringing any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(id) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the The Company Proprietary Assets, and together with agreements for the license to the Knowledge Company of software generally available to the Company and the Shareholderspublic, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the material Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is currently being conducted. Except as set forth on in Part 2.9(e2.6(d) of the Company Disclosure Schedule, the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (iibasis. Except as set forth in Part 2.6(d) of the Company Disclosure Schedule, as of the date hereof, the Company has not entered into any covenant not to compete that would, individually or in the aggregate, materially limit the ability of the Company to conduct its business as presently conducted or as proposed to be conducted, or any Company Contract (A) providing a field of use restraint on the Company's exploitation of a Company Proprietary Asset or (B) limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) The Company's material information technology assets that are owned, leased or licensed by the Company and used by the Company in its business (including all material software, hardware, and firmware) perform in material conformance with their applicable specifications and/or documentation, and, to Company's Knowledge, contain no viruses, "worms", "Trojan horses" or other malicious or disabling code that would materially impair the performance of such software, hardware and firmware.
(f) Part 2.6(f) of the Company Disclosure Schedule sets forth all patents that have been issued to the Company on or prior to the date hereof, patent applications that have been filed by the Company on or prior to the date hereof and material copyrights and trademarks that have been applied for or registered by the Company on or prior to the date hereof and the jurisdictions in which such patents have been issued, patent applications have been filed and such copyrights and trademarks have been registered.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Pharmacopeia Inc)
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description the title of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part Section 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the The Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) To the best of the Disclosure ScheduleCompany's knowledge after reasonable investigation, except for copyrights, for which such representation is made without limitation by the Company's knowledge, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the The Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, the The Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None To the best of the Company's knowledge after reasonable investigation, none of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person; except for copyrights, including, for which such representation is made without limitation, any former employers of any limitation by the Company's knowledge. To the best of the Company's Shareholders. The knowledge after reasonable investigation, the Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person; except for copyrights, for which such representation is made without limitation by the Company's knowledge. To the Knowledge best of the Company and knowledge of the ShareholdersCompany, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(id) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there . There has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.by
Appears in 1 contract
Samples: Stock Purchase Agreement (Asyst Technologies Inc /Ca/)
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset owned by the Company and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets Assets, excluding know-how and trade secrets, owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50025,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) To the best of the Disclosure Scheduleknowledge of the Company, the Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the The Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the The Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would not be unimpaired materially impaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, the The Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure ScheduleSchedule or otherwise under a customary license, escrow, maintenance, support, non-disclosure or similar agreement in the ordinary course of business) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None To the best of the knowledge of the Company, none of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers . To the best of any the knowledge of the Company's Shareholders. The , the Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge best of the Company and knowledge of the ShareholdersCompany, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(id) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf To the best of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf knowledge of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e.
(i) of the Disclosure Schedule, the The Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or basis, and (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.the Company has not
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Documentum Inc)
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b) of the Disclosure ScheduleSchedule or object code licensed to customers on a nonexclusive basis in the ordinary course of business, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the Shareholders, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.,
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i) of the Company Disclosure Schedule sets forth, with respect to each Company Proprietary Asset owned or in-licensed by the Company and registered with any Governmental Body or for which an application has been filed and is currently active or pending with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $500), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the The Company has good, good and valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii(ii) of the Company Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified Encumbrances except for those items described in Part 2.9(a)(iii2.6(a) of the Company Disclosure Schedule. Except as set forth in Part 2.9(a)(v2.9(a)(iv) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset that is material to its business with respect to which such other Person has any rights. Except as set forth in Part 2.9(a)(v) of the Company Disclosure Schedule, there is no Company Contract pursuant to which any Person has any current or future right to use, license or otherwise exploit any Company Proprietary Asset.
(b) The Company has taken all reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all material Company Proprietary Assets. Without limiting the generality of the foregoing, (i) all current and former employees of the Company who are or were involved in, or who have contributed to, the creation or development of any material Company Proprietary Asset have executed and delivered to the Company confidentiality agreements previously delivered by the Company to Parent, and (ii) all current and former consultants and independent contractors to the Company who are or were involved in, or who have contributed to, the creation or development of any material Company Proprietary Asset have each executed and delivered to the Company consultant agreements (containing no exceptions to or exclusions from the scope of its coverage) copies of which the Company has subsequently made available for review to Parent. Except as provided set forth in Part 2.9(b) of the Company Disclosure Schedule, no current or former employee, officer, director, stockholder, consultant or independent contractor of or to the Company has not (other than pursuant to license agreements identified any right, claim or interest in Part 2.10 of the Disclosure Schedule) disclosed or delivered with respect to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any material Company Proprietary Asset.
(c) None To the Knowledge of the Company there are no patents, trademarks, service marks and copyrights owned or exclusively in-licensed by the Company that is material to its business that are not valid or enforceable. To the current actual knowledge of the Company (without any duty of inquiry), there are no patents, trademarks, service marks and copyrights non-exclusively in-licensed by the Company that is material to its business that are not valid or enforceable. To the Knowledge of the Company: (i) none of the Company Proprietary Assets infringes or conflicts with misappropriates any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any ; (ii) none of the Company's Shareholders. The products that are or have been designed, created, developed, assembled, manufactured or sold by the Company is not infringing, misappropriating or making any unlawful or unauthorized use ofof any Proprietary Asset owned by any other Person, and the Company none of such products has not at any time infringed, misappropriated or made any unlawful or unauthorized use ofof any Proprietary Asset owned by any other Person; and (iii) no other Person is infringing, misappropriating or making any unlawful or unauthorized use of any material Company Proprietary Asset.
(d) The Company has not received any written notice or other written communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use by the Company of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the Shareholders, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The To the Company’s Knowledge, the Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on in Part 2.9(e) of the Company Disclosure Schedule, the Company has not (i) licensed licensed, granted rights in or hypothecated any of the material Company Proprietary Assets to any Person on an exclusive basis Person, or (ii) entered into any covenant not to compete compete, or Contract limiting its ability to exploit fully any of its Company Proprietary Assets or to transact business business, in any market or geographical area or with any Person.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (MIGENIX Inc.)
Proprietary Assets. (a) Part 2.9(a)(i) To the knowledge of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $500), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company has good, good and valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure ScheduleAssets. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, Neither the Company nor any Company Subsidiary is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) To the knowledge of the Disclosure ScheduleCompany, the Company has not developed jointly with any other Person any and each Company Subsidiary is free to use, modify, copy, distribute, sell, license or otherwise exploit each of the Company Proprietary Asset with respect to which Assets on an exclusive basis. Part 2.9 of the Company Disclosure Schedule lists all patents held by and patent applications filed by the Company. The Company is the valid assignee of record and owner of each of such other Person has any rightspatents and patent applications and all such patent applications are being actively prosecuted and none of such patents or patent applications have been abandoned.
(b) The Company and each Company Subsidiary has taken all reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, Neither the Company nor any Company Subsidiary has not (other than pursuant disclosed or delivered or permitted to license agreements identified in Part 2.10 of the Disclosure Schedule) be disclosed or delivered to any Person, and no Person (other than the Company) has access to or permitted the disclosure or delivery has any rights with respect to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Assetin either case except pursuant to a valid non-disclosure agreement.
(c) None To the knowledge of the Company, none of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any . To the knowledge of the Company's Shareholders. The , the Company nor any Company Subsidiary is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the Shareholders, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
Appears in 1 contract
Samples: Merger Agreement (Artecon Inc)
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the CompanyCompany or IDP. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company or IDP by any Person (except for any Proprietary Asset that is licensed to the Company or IDP under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the CompanyCompany or IDP. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company has and IDP have good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and to the best knowledge of the Company and the Designated Shareholders, has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is and IDP are not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has and IDP have not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has and IDP have taken all reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b) of the Disclosure Schedule, the Company has and IDP have not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any PersonPerson other than Richard Gardella or IDP employxxx, or permitted xx xxxxxxxxd the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None To the best knowledge of the Company, IDP and the Designated Shareholders, none of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any . To the best knowledge of the Company's , IDP and the Designated Shareholders. The , the Company is and IDP are not infringing, misappropriating or making any unlawful use of, and the Company has and IDP have not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge best knowledge of the Company Company, IDP and the Designated Shareholders, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(d) Except as set forth in Part 2.9(d) of the Disclosure Schedule: (i) Each each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company or IDP to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the CompanyCompany or IDP, and, to the Knowledge best knowledge of the Company Company, IDP and the Designated Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company and IDP to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on in Part 2.9(e) of the Disclosure Schedule, the Company has not (i) the Company and IDP have not licensed any of the Company Proprietary Assets to any Person on an exclusive basis or basis, and (ii) the Company and IDP have not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(f) To the best knowledge of IDP, with respect to (i) all Software currently marketed, sold, distributed, out-licensed, maintained, or under development by IDP and (ii) all Software previously marketed, sold, distributed, out-licensed or maintained by IDP for which IDP still has any Obligation of any nature (whether pursuant to a specific warranty or otherwise) relating to Year 2000 compliance (collectively, "IDP Software Products"), when run in the Intended Environment (as defined below), each component of the IDP Software Products that creates, accepts, displays, stores, retrieves, accesses, recognizes, distinguishes, compares, sorts, manipulates, processes, calculates, converts or otherwise uses dates or date-related data is Year 2000 Compliant (as defined below); provided that no IDP Software Product shall be considered not Year 2000 Compliant to the extent that any problem or failure regarding dates or date data is caused by a problem or compliance failure in any operating system, third-party software or hardware. For purposes of this Agreement, (i) "Year 2000 Compliant" means that a Software program (or component thereof) will accurately create, accept, display, store, retrieve, access, recognize, distinguish, compare, sort, manipulate, process, calculate, convert or otherwise use dates or date- related data without any operating defects, loss of functionality or degradation in performance or volume capacity using dates in the twentieth and twenty-first centuries, and will not be adversely affected by the advent of the year 2000, the advent of the twenty-first century, or the transition from the twentieth century through the year 2000 and into the twenty-first century, and (ii) "Intended Environment" means any of the operating systems specified or identified in (A) Part 2.9(g) of the Disclosure Schedule, when such operating system is run in a hardware environment that meets the recommended specifications of the manufacturer of such operating system (B) any applicable product specification published or otherwise made available by the IDP, or (C) with respect to a particular customer, the applicable Contract with such customer.
Appears in 1 contract
Samples: Merger Agreement (Imaginon Inc /De/)
Proprietary Assets. (a) Part 2.9(a)(i) of the The Company Disclosure Schedule sets forth, with respect to each Company Proprietary Asset of the Company and any Subsidiary registered with or issued by any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, Asset and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the The Company Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule Company and any Subsidiary, and identifies and provides a brief description of each Proprietary Asset licensed to the Company and any Subsidiary by any Person person (except for any Proprietary Asset that is licensed to the Company or any Subsidiary under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the CompanyCompany or Subsidiary, as appropriate. Except as set forth in Part 2.9(a)(iv) of the Disclosure ScheduleCompany Disclosure, the Company has and its Subsidiaries, as a whole, have good, valid and marketable title to, or have a valid right to use, all of the Company Proprietary Assets used in the Company’s business (including without limitation all Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure ScheduleCompany Disclosure), free and clear of all liens and other Encumbrances, and has a valid right encumbrances to use all Proprietary Assets identified in Part 2.9(a)(iii) the knowledge of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is Company; and are not obligated to make any payment to any Person person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the The Company and each Subsidiary has not developed jointly with any other Person person any Company Proprietary Asset with respect to which such other Person person has any rights. Except as set forth in the Company Disclosure, none of which shall have a Material Adverse Effect, the Company has no knowledge that any other person has any right, title or interest in any of the Proprietary Assets of the Company or its Subsidiaries.
(b) The Company has and its Subsidiaries, as appropriate, have taken all reasonable and customary measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets of the Company and its Subsidiaries (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Proprietary Assets of the Company and its Subsidiaries. Each employee, officer, director, consultant and contractor (not including contractors without access to confidential information of the Company) of the Company and its Subsidiaries (each, an “Employee”) has entered into and executed an agreement providing for (i) the assignment to the Company (or to any of its Subsidiaries) of personal rights or claims to Proprietary AssetsAssets for which such Employee’s personal rights or claims arose out of the scope of his/her employment or retainer by the Company or its Subsidiaries and (ii) the nondisclosure of confidential information acquired by the Employee with respect to the Proprietary Assets of the Company and its Subsidiaries or an employment or consulting agreement containing substantially similar terms. Except as provided set forth in Part 2.9(b) of the Disclosure ScheduleCompany Disclosure, the Company and each Subsidiary has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure ScheduleCompany Disclosure) disclosed or delivered to any Personperson, or permitted the disclosure or delivery to any Person person of, (i) the source code, or any portion or aspect of the source code, of any Proprietary Asset of the Company Proprietary Assetor its Subsidiaries, or (ii) the object code, or any portion or aspect of the object code, of any Proprietary Asset of the Company Proprietary Assetor its Subsidiaries or (iii) any patent applications (except as required by law).
(ci) None To the knowledge of the Company, none of the Proprietary Assets of the Company Proprietary Assets or its Subsidiaries necessary for the conduct of their businesses infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any (ii) to the knowledge of the Company's Shareholders. The , the Company and each Subsidiary is not infringing, misappropriating or making any unlawful use of, and the Company and each Subsidiary has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To person, and (iii) to the Knowledge knowledge of the Company and the ShareholdersCompany, no other Person person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person person infringes or conflicts with, any Proprietary Asset of the Company Proprietary Assetor its Subsidiaries.
(id) Each Company There has not been any claim by any customer or other person alleging that any Proprietary Asset conforms of the Company or its Subsidiaries (including each version thereof that has ever been licensed or otherwise made available by the Company or its Subsidiaries to any person) does not conform in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer Company or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Companyits Subsidiaries, and, to the Knowledge knowledge of the Company and the ShareholdersCompany, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company is not knowledgeable of any Proprietary Assets constitute all Asset owned or used by any other person (except for any Proprietary Asset that is licensed to the Proprietary Assets Company or any Subsidiary under any third party license set forth in the Company Disclosure or would otherwise be commercially available) necessary to enable the Company and each Subsidiary to conduct its business businesses in the manner in which such business has businesses have been and is are being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, conducted or are expected to be conducted pursuant to the Company Disclosure. Neither the Company nor any Subsidiary has not (i) licensed licensed, or agreed to license, any of the Company its Proprietary Assets to any Person person on an exclusive, semi-exclusive basis or (ii) royalty-free basis. Neither the Company nor any Subsidiary has entered into any covenant not to compete or Contract contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Personperson. Without limitation on the foregoing, except as set forth in the Company Disclosure, no officer, director or Stakeholder, either as an individual or through an affiliate, has any claim to own or any other rights to use any of the Proprietary Assets.
(f) Except as set forth in the Company Disclosure, the Company is not aware that any Employee is obligated under any agreement (including licenses, covenants or commitments of any nature) or subject to any judgment, decree or order of any court or administrative agency, or any other restriction that would interfere with the use of his or her best efforts to carry out his or her duties for the Company and its Subsidiaries, as appropriate, or to promote the interests of the Company and its Subsidiaries, as appropriate, or that would conflict with the Company’s or its Subsidiaries’ business as proposed to be conducted. The Company does not believe it is or will be necessary to utilize any inventions of any Employees (or persons the Company or its Subsidiaries currently intend to hire) made prior to their employment or retainer by the Company or its Subsidiaries, as appropriate, which have not been assigned to the Company. To the Company’s knowledge, after due inquiry, at no time during the conception of, or reduction to practice, or development of, any of the Company’s or its Subsidiaries’ Proprietary Assets was any developer, inventor or other contributor to such Proprietary Assets operating under any grants from any governmental entity or agency or private source, performing research sponsored by any governmental entity or agency or private source or subject to any employment agreement or invention assignment or nondisclosure agreement or other obligation with any third party that could adversely affect the Company’s or its Subsidiaries’ rights in such Proprietary Assets.
(g) The Company believes that the exceptions, qualifications and other disclosures relating to the Proprietary Assets set forth in the Company Disclosure shall not have a Material Adverse Effect in the aggregate.
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Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset owned by the Company or its Subsidiaries and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company each Proprietary Assets Asset owned by the CompanyCompany or its Subsidiaries that is material to the business of the Company or its Subsidiaries. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $10,000 with respect to, each Proprietary Asset that is licensed or otherwise made available to the Company or its Subsidiaries by any Person and is material to the business of the Company or its Subsidiaries (except for any Proprietary Asset that is licensed to the Company or its Subsidiaries under any third party software license generally available to the public at a cost of less than $500public), and identifies the license agreement Contract under which such Proprietary Asset is being licensed or otherwise made available to the CompanyCompany or its Subsidiaries. Except as set forth in Part 2.9(a)(iv) The Company and each of the Disclosure Schedule, the Company its Subsidiaries has good, good and valid and marketable title to all of the Company Proprietary Assets identified or required to be identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and . The Company has a valid right to use use, license and otherwise exploit all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v2.9(a)(iv) of the Disclosure Schedule, neither the Company is not obligated to make nor any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company its Subsidiaries has not developed jointly with any other Person any Company Proprietary Asset that is material to the business of the Company or its Subsidiaries and with respect to which such other Person has any rights. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, there is no Company Contract (with the exception of end user license agreements in the form previously delivered by the Company to Parent) pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Company Proprietary Asset.
(b) The Company and each of its Subsidiaries has taken all reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality confidentiality, secrecy and secrecy value of all material Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect ). Without limiting the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) generality of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person offoregoing, (i) each current or former employee of the source codeCompany or its Subsidiaries who is or was involved in, or any portion who has contributed to, the creation or aspect of the source code, development of any material Company Proprietary AssetAsset has executed and delivered to the Company or its Subsidiaries an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical in substance to the form of Confidential Information and Invention Assignment Agreement previously delivered by the Company to Parent, or and (ii) each current and former consultant and independent contractor to the object codeCompany or its Subsidiaries who is or was involved in, or who has contributed to, the creation or development of any portion material Company Proprietary Asset has executed and delivered to the Company or aspect its Subsidiaries an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the object codeform of Consultant Confidential Information and Invention Assignment Agreement previously delivered to Parent. No current or former employee, of officer, director, stockholder, consultant or independent contractor has any right, claim or interest in or with respect to any Company Proprietary Asset.
(c) All patents, trademarks, service marks and copyrights held by the Company or its Subsidiaries are valid, enforceable and subsisting. None of the Company Proprietary Assets infringes and no Proprietary Asset that is currently being developed by the Company or its Subsidiaries (either by itself or with any other Person) infringes, misappropriates or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any . None of the Company's Shareholders. The products, systems, software, computer programs, source code, models, algorithms, formula, compounds, inventions, designs, technology, proprietary rights or intangible assets that is or has been designed, created, developed, assembled, manufactured or sold by the Company or its Subsidiaries is not infringing, misappropriating or making any unlawful or unauthorized use ofof any Proprietary Asset owned or used by any other Person, and the Company none of such products has not at any time infringed, misappropriated or made any unlawful or unauthorized use of, of any Proprietary Asset owned or used by any other Person. Neither the Company nor any of its Subsidiaries has ever received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the Shareholders, no No other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any material Company Proprietary Asset.
(i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(ed) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company and its Subsidiaries to conduct its their business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, Neither the Company nor any of its Subsidiaries has not (i) licensed any of the material Company Proprietary Assets to any Person on an exclusive basis basis, or (ii) entered into any covenant not to compete or Contract limiting or purporting to limit the ability of the Company or its ability Subsidiaries to exploit fully any of its material Company Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) Except as set forth in Part 2.9(e)(i) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has not disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other Person, of any Company Source Code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any Person of any Company Source Code or the release from any escrow of any other Company Proprietary Asset. Part 2.9(e)(ii) of the Disclosure Schedule identifies each Contract pursuant to which the Company or its Subsidiaries has deposited or is required to deposit with an escrowholder or any other Person of any Company Source Code, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Company Source Code or the release from any escrow of any other Company Proprietary Asset.
(f) Except with respect to demonstration or trial copies, no product, system, program or software module designed, developed, sold, licensed or otherwise made available by the Company or its Subsidiaries to any Person contains any "back door," "time bomb," "Trojan horse," "worm," "drop dead device," "virus" or other software routines or hardware components designed to permit unauthorized access or to disable or erase software, hardware or data without the consent of the user.
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Proprietary Assets. (a) Part 2.9(a)(i2.8(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description list of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii2.8(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii2.8(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the The Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i2.8(a)(i) and 2.9(a)(ii2.8(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii2.8(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the The Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the The Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all commercially reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, the The Company has not (other than pursuant to license agreements identified in Part 2.10 2.9 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, code of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, code of any Company Proprietary Asset.
(c) None Except for any Proprietary Assets licensed from Parent, none of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any communication to any Named Officers or any written notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge knowledge of the Company and the ShareholdersSigning Shareholder, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, of any Company Proprietary Asset.
(id) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any written claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the Company, and, to . The Company has established adequate reserves on the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves Unaudited Interim Balance Sheet to cover any all costs associated with any obligations of that the Company may have with respect to correct the correction or repair any of programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business substantially in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the The Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) basis, and the Company has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(f) All current and former employees of the Company have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Confidential Information and Invention Assignment Agreement previously delivered to Parent, and all current and former consultants and independent contractors to the Company have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Consultant Confidential Information and Invention Assignment Agreement previously delivered to Parent.
(g) To the knowledge of the Company and the Signing Shareholder, each computer program and other item of software that is owned by the Company is Year 2000 Compliant. Each computer program and other item of software that has been designed, developed, sold, installed, licensed or otherwise made available by the Company to any Person is Year 2000 Compliant. As used in this Section 2.8, "Year 2000 Compliant" means, with respect to a computer program or other item of software (i) the functions, calculations, and other computing processes of the program or software perform in a consistent and correct manner without interruption regardless of the date on which the Processes are actually performed, whether before, on, or after January 1, 2000; (ii) the program or software accepts, calculates, compares, sorts, extracts, sequences, and otherwise processes date inputs and date values, and returns and displays date values, in a consistent and correct manner regardless of the dates used whether before, on, or after January 1, 2000; (iii) the program or software accepts, stores, displays and responds to date information in a manner that resolves any ambiguities as to century in a defined, predetermined, and appropriate manner; and (iv) leap years will be determined by the following standard (A) if dividing the year by 4 yields an integer, it is a leap year, except for years ending in 00, but (B) a year ending in 00 is a leap year if dividing it by 400 yields an integer.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Asyst Technologies Inc /Ca/)
Proprietary Assets. (aA) Part 2.9(a)(i2.13(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset owned by the Seller and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii2.13(a)(ii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed owned by the Seller that is material to the Company business of the Seller. Part 2.13(a)(iii) of the Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $10,000 with respect to, each Proprietary Asset that is licensed or otherwise made available to the Seller by any Person and is material to the business of the Seller (except for any Proprietary Asset that is licensed to the Company Seller under any third party software license generally available to the public at a cost of less than $5005,000), and identifies the license agreement Contract under which such Proprietary Asset is being licensed or otherwise made available to the CompanySeller. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company The Seller has good, good and valid and marketable title to all of the Company Seller Proprietary Assets identified or required to be identified in Parts 2.9(a)(i2.13(a)(i) and 2.9(a)(ii2.13(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and . The Seller has a valid right to use use, license and otherwise exploit all Proprietary Assets identified in Part 2.9(a)(iii2.13(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v2.13(a)(iv) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company Seller has not developed jointly with any other Person any Company Seller Proprietary Asset that is material to the business of the Seller and with respect to which such other Person has any rights. Except as set forth in Part 2.13(a)(v) of the Disclosure Schedule, there is no Seller Contract (with the exception of end user license agreements in the form previously delivered by the Seller to the Purchaser) pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Seller Proprietary Asset.
(bB) The Company Seller has taken all reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality confidentiality, secrecy and secrecy value of all Company material Seller Proprietary Assets (except Company Seller Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect ). Without limiting the value generality of all Company Proprietary Assets. Except the foregoing, except as provided set forth in Part 2.9(b2.13(b) of the Disclosure Schedule, (i) the Company Seller has not (other than pursuant disclosed or delivered or permitted to license agreements identified in Part 2.10 of the Disclosure Schedule) be disclosed or delivered to any Person, and no Person other than Seller has or permitted the disclosure or delivery to any Person of, (i) the source codehad access to, or any rights with respect to, the Seller Source Code or any portion or aspect of the source code, of any Company Proprietary Asset, or thereof; (ii) each current or former employee of the object codeSeller who is or was involved in, or who has contributed to, the creation or development of any portion material Seller Proprietary Asset has executed and delivered to the Seller an agreement (containing no exceptions to or aspect exclusions from the scope of its coverage) providing for the ownership by the Seller of the object codeProprietary Assets resulting from such employment relationship and for the confidentiality of such Proprietary Assets, and all such agreements have been previously 12. delivered by the Seller to the Purchaser as listed in Disclosure Schedule 2.13(b)(ii) and (iii) each current and former consultant and independent contractor to the Seller who is or was involved in, or who has contributed to, the creation or development of any Company material Seller Proprietary Asset has executed and delivered to the Seller an agreement (containing no exceptions to or exclusions from the scope of its coverage) providing for the ownership by the Seller of the Proprietary Assets resulting from such consulting or contracting agreement and for the confidentiality of such Proprietary Assets, and the Seller has delivered to the Purchaser each such agreement or the form thereof. No current or former employee, officer, director, stockholder, consultant or independent contractor has any right, claim or interest in or with respect to any Seller Proprietary Asset.
(cC) Subject to Disclosure Schedule 2.13(a)(i), all patents, trademarks, service marks and copyrights held by the Seller are valid and subsisting. None of the Company Seller Proprietary Assets infringes misappropriates (or to the best of the Seller's and Shareholder's knowledge, conflicts with or infringes) any Proprietary Asset owned or used by any other Person. None of the products, systems, software, computer programs, source code, models, algorithms, formula, compounds, inventions, designs, technology, proprietary rights or intangible assets that is or has been designed, created, developed, assembled, manufactured or sold by the Seller is misappropriating or making any unlawful or unauthorized use of (or to the best of the Seller's and Shareholder's knowledge, infringing) any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers and none of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company such products has not at any time infringed, misappropriated or made any unlawful or unauthorized use ofof (or to the best of the Seller's and Shareholder's knowledge, infringed) any Proprietary Asset owned or used by any other Person. The Seller has never received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of best the Company Seller's and the ShareholdersShareholder's knowledge, no other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company material Seller Proprietary Asset.
(i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(eD) The Company Seller Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company Seller to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the Company The Seller has not (i) licensed any of the Company Seller Proprietary Assets to any Person on an exclusive basis basis, (ii) except as set forth in Part 2.13(d) of the Disclosure Schedule, entered into any Contract under which any Person has the right to distribute or license any of the material Seller Proprietary Assets, other than non-exclusive marketing arrangements with vendors or resellers entered into in the Ordinary Course of Business or (iiiii) entered into any covenant not to compete or Contract limiting its or purporting to limit the ability of the Seller to exploit fully any of its material Seller Proprietary Assets or to transact business in any market or geographical area or with any Person.
(E) Except as set forth in Part 2.13(e) of the Disclosure Schedule, each Seller Proprietary Asset or product that has been sold or licensed by the Seller to any Person: (i) conformed and complied in all material respects with any warranty, Contract, specification, documentation, performance standard, representation or statement made or provided with respect
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i2.8(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Company Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii2.8(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii2.8(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Company Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the The Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i2.8(a)(i) and 2.9(a)(ii2.8(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii2.8(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the The Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the The Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, the The Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Company
13. Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the Shareholders, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Asyst Technologies Inc /Ca/)
Proprietary Assets. (a) Part 2.9(a)(i) 2.12 of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset owned by the Companies registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) 2.12 of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the CompanyCompanies (the "OWNED PROPRIETARY ASSETS"). Part 2.9(a)(iii) 2.12 of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company Companies by any Person (except for any Proprietary Asset that is licensed to the Company Companies under any third party software license generally available to the public at a cost of less than $5001,000 per copy) (the "LICENSED PROPRIETARY ASSETS"), and identifies the license agreement under which such Proprietary Asset is being licensed to the CompanyCompanies (the Owned Proprietary Assets and the Licensed Proprietary Assets are hereinafter collectively referred to as the "COMPANY PROPRIETARY ASSETS"). Except as set forth in Part 2.9(a)(iv) 2.12 of the Disclosure Schedule, the Company has Companies have good, valid and marketable title to all of the Company Owned Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has have a valid right (contractual or otherwise) to use use, license, lease, sell or otherwise distribute to others all Company Proprietary Assets identified in Part 2.9(a)(iii) 2.12 of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) 2.12 of the Disclosure Schedule, the Company is Companies are not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) 2.12 of the Disclosure Schedule, the Company has Companies have not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has Companies all Licensed Proprietary Assets is licensed to the Companies pursuant to written license agreements under which the Companies are in good standing and are entitled to all benefits thereunder, and there exists no state of facts which after notice or lapse of time or both would constitute a default or breach thereunder and to the Knowledge of SFG no other party to such agreements is in default thereunder.
(c) The Companies have taken all commercially reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b) 2.12 of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 none of the Disclosure Schedule) Companies has disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) other than to customers of the Company or for demonstration purposes in the Ordinary Course of Business, the object code, or any portion or aspect of the object code, of any Company Proprietary Asset. The source code for Licensed Proprietary Assets is either in the Companies' possession or is subject to a source code escrow agreement under which the Companies have the right to obtain the source code upon the bankruptcy or other problem with the licensor.
(cd) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any . None of the Company's Shareholders. The Company Companies is not infringing, misappropriating or making any unlawful use of, and none of the Company Companies has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the Shareholders, no No other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(ie) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of any of the Company; and (ii) there Companies. There has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company Companies to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the Company, and, to the Knowledge any of the Company Companies to such customer or other Person and the Shareholders, there is no basis for any such claim. There are no obligations of SFG has established adequate reserves on the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves Unaudited Interim Balance Sheet to cover any all costs associated with any obligations of that the Company Companies may have with respect to correct the correction or repair any of programming errors or other defects in the Company Proprietary Assets.
(ef) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company Companies to conduct its their business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) None of the Disclosure Schedule, the Company Companies has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) basis. None of the Companies has entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(g) Except as set forth in Part 2.12 of the Disclosure Schedule: (i) all current and former employees of the Companies have executed and delivered to the Companies an agreement (containing no exceptions to or exclusions from the scope of its coverage except for prior inventions that do not conflict with the operations of the Companies' businesses or the use of the Companies' assets) that is substantially identical to the standard form of employment agreement previously delivered to the Purchaser, and (ii) all current and former consultants and independent contractors of the Companies (excluding bankers, accountants, lawyers and other non-technical consultants and independent contractors) have executed and delivered to the Companies an agreement (containing no exceptions to or exclusions from the scope of its coverage as it relates to the specific project for which the consultant or independent contractor was hired) that is substantially identical to such form of employment agreement previously delivered to the Purchaser.
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear clear, to the best of the Knowledge of Seller, of all liens and other Encumbrances, and and, to the best of the Knowledge of Seller, has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None To the best of the Knowledge of Seller, none of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any . To the best of the Company's Shareholders. The Knowledge of Seller, the Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the best of the Knowledge of the Company and the ShareholdersSeller, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(id) Each Company Proprietary Asset conforms Except as set forth in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf Part 2.9(d) of the Company; and (ii) Disclosure Schedule, there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the Company, and, to the best of the Knowledge of the Company and the ShareholdersSeller, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on in Part 2.9(e) of the Disclosure Schedule, (i) the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or basis, and (ii) the Company has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Company's Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets unregistered trademarks, service marks and copyrighted materials owned by the each Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the each Company by any Person (except for any Proprietary Asset that is licensed to the a Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Each Company has good, valid and marketable title to all of the Company Proprietary Assets Assets, other than those identified in Parts 2.9(a)(i) and 2.9(a)(iiPart 2.9(a)(iii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Neither Company is not obligated to make any payment to any Person (other than the other Company) for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Neither Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights, except for limited and non-exclusive licenses given to customers in the ordinary course of business.
(b) The Each Company has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, the Neither Company has not (other than pursuant to license agreements or nondisclosure agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) To the best of the Partners' knowledge, the manufacture, use, sale or other disposition of the Company's products will not infringe the patents of any other Person. None of the Company Proprietary Assets infringes is infringing, or conflicts with at any Proprietary Asset owned or used by time has infringed, on any other Intellectual Property rights of any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Neither Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other written communication (in writing or otherwise) of any actual, alleged, possible actual or potential infringement, misappropriation or unlawful use of, alleged infringement of any Intellectual Property Rights of any other Person by any of the Proprietary Asset owned or used by Assets. The Company has not misappropriated any trade secrets of any other Person. To the Knowledge best of the Company and the ShareholdersPartners' knowledge, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the Company, and, to the Knowledge best of the Company and knowledge of the ShareholdersCompany, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company Companies to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the Company has not .
(i) The Companies have not licensed any of the Company Proprietary Assets to any Person on an exclusive basis or basis, and (ii) the Companies have not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(i) All current and former employees of the Companies have executed and delivered to the Companies an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Confidential Information and Invention Assignment Agreement previously delivered to Purchaser, and (ii) all current and former consultants and independent contractors to the Companies have executed and delivered to the Companies an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Consultant Confidential Information and Invention Assignment Agreement previously delivered to Purchaser.
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all commercially reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To Except as set forth in Part 2.9(c) to the Disclosure Schedule, to the Knowledge of the Company and the ShareholdersCompany, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(d) Except as set forth in Part 2.9(d) of the Disclosure Schedule: (i) Each each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the ShareholdersCompany, there is no basis for any such claim. There are no obligations of The Company has established adequate reserves on the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves Unaudited Interim Balance Sheet to cover any all costs associated with any obligations of that the Company may have with respect to correct the correction or repair any of programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on in Part 2.9(e) of the Disclosure Schedule, (i) the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or basis, and (ii) the Company has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(f) Except as set forth in Part 2.9(f) of the Disclosure Schedule, (i) all current and former employees of the Company have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Confidential Information and Invention Assignment Agreement previously delivered to Parent, and (ii) all current and former consultants and independent contractors to the Company have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Consultant Confidential Information and Invention Assignment Agreement previously delivered to Parent.
Appears in 1 contract
Samples: Merger Agreement (Zitel Corp)
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the ShareholdersCompany's Knowledge, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(d) Except as set forth in Part 2.9(d) of the Disclosure Schedule: (i) Each each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.that
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Quokka Sports Inc)
Proprietary Assets. (a) Part 2.9(a)(i) of the Company Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Company Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Company Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Company Disclosure Schedule, the Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Company Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Company Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Company Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in 12 19 Part 2.9(a)(vi) of the Company Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b) of the Company Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Company Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the ShareholdersCompany, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(d) Except as set forth in Part 2.9(d) of the Company Disclosure Schedule: (i) Each each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the ShareholdersCompany, there is no basis for any such claim. There are no obligations of The Company has established adequate reserves on the Unaudited Interim Balance Sheet (consistent with past experience unless the Company has any reason to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves believe that future experience will be different) to cover any costs associated with any obligations of that the Company may have with respect to correct the correction or repair any of programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on in Part 2.9(e) of the Company Disclosure Schedule, (i) the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or basis, and (ii) the Company has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(f) Except as set forth in Part 2.9(f) of the Company Disclosure Schedule, (i) all current and former employees of the Company have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Confidential Information and Invention Assignment Agreement previously delivered to Parent, and (ii) all current and former consultants and independent contractors to the Company have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of the Certified Consultant Assignment Agreement and Independent Contractor Agreement previously delivered to Parent. 2.10
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Caere Corp)
Proprietary Assets. (a) Part 2.9(a)(i3.8(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii3.8(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other material Company Proprietary Assets owned by the Company. Part 2.9(a)(iii3.8(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the The Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i3.8(a)(i) and 2.9(a)(ii3.8(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii3.8(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the The Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth disclosed in Part 2.9(a)(vi) 3.8 of the Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, the The Company has not (other than pursuant to license agreements identified in Part 2.10 3.9 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None To the knowledge of the Company, none of the Company Proprietary Assets infringes or conflicts with on any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any . To the knowledge of the Company's Shareholders. The , the Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, any Proprietary Asset owned or used by any other Person. The Company has not received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use by the Company of, any Proprietary Asset owned or used by any other Person. To the Knowledge knowledge of the Company and the ShareholdersCompany, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts withon, any Company Proprietary Asset.
(id) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there . There has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.,
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Asyst Technologies Inc /Ca/)
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset owned by the Acquired Corporations and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the CompanyAcquired Corporations that are material to the business of any of the Acquired Corporations and all other Proprietary Assets owned by the Acquired Corporations that the Company or any of the Selling Stockholders reasonably believes are patentable and for which a patent application on behalf of the Company has not been filed. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $10,000 with respect to, each Proprietary Asset that is licensed or otherwise made available to any of the Company Acquired Corporations by any Person and is material to the business of any of the Acquired Corporations (except for any Proprietary Asset that is licensed to any of the Company Acquired Corporations under any third party software license generally available to the public at a cost of less than $500public), and identifies the license agreement Contract under which such Proprietary Asset is being licensed or otherwise made available to the Companysuch Acquired Corporation. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company has The Acquired Corporations have good, valid and marketable title to all of the Company Acquired Corporation Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, except for (i) any lien for current taxes not yet due and has payable, and (ii) minor liens that have arisen in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of any of the Acquired Corporations. The Acquired Corporations have a valid right to use use, license and otherwise exploit all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v2.9(a)(iv) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) none of the Disclosure Schedule, the Company Acquired Corporations has not developed jointly with any other Person any Company Acquired Corporation Proprietary Asset with respect that is material to which such other Person has any rights.
(b) The Company has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the Shareholders, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.the
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets which are owned by the CompanyCompany and which are material to its business or operations. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule which are identified as owned by the Company on such parts of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in 14. Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge best of the knowledge of the Company and the Designated Shareholders, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(d) Except as set forth in Part 2.9(d) of the Disclosure Schedule: (i) Each each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the Company, and, to the Knowledge best of the knowledge of the Company and the Designated Shareholders, there is no basis for any such claim. There are no obligations of The Company has established adequate reserves on the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves Unaudited Interim Balance Sheet to cover any all costs associated with any obligations of that the Company may have with respect to correct the correction or repair any of programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on in Part 2.9(e) of the Disclosure Schedule, (i) the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or basis, and (ii) the Company has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(f) Except as set forth in Part 2.9(f) of the Disclosure Schedule, (i) all current and former employees of the Company have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is
Appears in 1 contract
Samples: Merger Agreement (FVC Com Inc)
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part application part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge best of the Company and knowledge of the ShareholdersCompany, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(d) Except as set forth in Part 2.9(d) of the Disclosure Schedule: (i) Each each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that that
15. has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the Company, and, to the Knowledge best of the Company and knowledge of the ShareholdersCompany, there is no basis for any such claim. There are no obligations of The Company has established adequate reserves on the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves Unaudited Interim Balance Sheet to cover any all costs associated with any obligations of that the Company may have with respect to correct the correction or repair any of programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i2.12(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Digitrans Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii2.12(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Digitrans Proprietary Assets owned by the CompanyDigitrans. Part 2.9(a)(iii2.12(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company Digitrans by any Person (except for any Proprietary Asset that is licensed to the Company Digitrans under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the CompanyDigitrans. Except as set forth in Part 2.9(a)(iv2.12(a)(iv) of the Disclosure Schedule, the Company Digitrans has good, valid and marketable (subject to the restrictions in the License Agreements) title to all of the Company Digitrans Proprietary Assets identified in Parts 2.9(a)(i2.12(a)(i) and 2.9(a)(ii2.12(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii2.12(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v2.12(a)(v) of the Disclosure Schedule, the Company Digitrans is not obligated to make any payment to any Person for the use of any Company Digitrans Proprietary Asset. Except as set forth in Part 2.9(a)(vi2.12(a)(vi) of the Disclosure Schedule, the Company Digitrans has not developed jointly with any other Person any Company Digitrans Proprietary Asset with respect to which such other Person has any rights.
(b) The Company Digitrans has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Digitrans Proprietary Assets (except Company Digitrans Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Digitrans Proprietary Assets. Except as provided set forth in Part 2.9(b2.12(b) of the Disclosure Schedule, the Company Digitrans has not (other than pursuant to license agreements identified in Part 2.10 2.13 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Digitrans Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Digitrans Proprietary Asset.
(c) None of the Company Digitrans Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company Digitrans is not infringing, misappropriating or making any unlawful use of, and the Company Digitrans has not at any time infringed, misappropriated or made any unlawful use of, or actually received any notice or other communication (in writing writing, electronically or otherwiseverbally) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of Digitrans, the Company Selling Shareholder and the ShareholdersXxxxxx, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Digitrans Proprietary Asset.
(d) Except as set forth in Part 2.12(d) of the Disclosure Schedule: (i) Each Company each Digitrans Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the CompanyDigitrans; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.or
Appears in 1 contract
Samples: Stock Purchase Agreement (Terayon Communication Systems)
Proprietary Assets. (a) Part 2.9(a)(i2.9(a)(1) of the Disclosure Schedule sets forth, with respect to each Company Conduct Proprietary Asset registered that has been registered, recorded or filed with any Governmental Body or for with respect to which an application has been filed with any Governmental Body, (i) a brief description of such Conduct Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration registration, recordation, filing or application. Part 2.9(a)(ii2.9(a)(2) of the Disclosure Schedule identifies and provides a brief description of all other Company the Conduct Proprietary Assets owned by Conduct or Subsidiary as set forth in the Companyproduct brochures or the product specifications attached as Part 2.9(a)(2) of the Disclosure Schedule. Part 2.9(a)(iii2.9(a)(3) of the Disclosure Schedule identifies and provides a brief description of each Conduct Proprietary Asset that is owned by any other Person and that is licensed to the Company or used by any Person Conduct or Subsidiary (except for any Conduct Proprietary Asset that is licensed to the Company Conduct or Subsidiary under any third party software license that (1) is generally available to the public at a cost of less than $500)5,000, and (2) imposes no future monetary obligation on Conduct or Subsidiary) and identifies the license agreement or other agreement under which such Conduct Proprietary Asset is being licensed to the Companyor used by Conduct or Subsidiary. Except as set forth in Part 2.9(a)(iv2.9(a)(4) of the Disclosure Schedule, the Company Conduct has good, valid and marketable title to all of the Company Conduct Proprietary Assets identified in Parts 2.9(a)(i2.9(a)(1) and 2.9(a)(ii2.9(a)(2) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii2.9(a)(3) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v2.9(a)(5) of the Disclosure Schedule, the Company neither Conduct nor Subsidiary is not obligated to make any payment to any Person for the use of any Company Conduct Proprietary Asset. Except as set forth in Part 2.9(a)(vi2.9(a)(6) of the Disclosure Schedule, Conduct is free to use, modify, copy, distribute, sell, license or otherwise exploit each of the Company has not developed jointly with any Conduct Proprietary Assets on an exclusive basis (other Person any Company than Conduct Proprietary Asset Assets consisting of software licensed to Conduct or Subsidiary under third party licenses generally available to the public, with respect to which such other Person has any rightsConduct's rights are not exclusive).
(b) The Company has Conduct and Subsidiary have taken all reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Conduct Proprietary Assets (except Company Conduct Proprietary Assets whose value would be unimpaired by public disclosure) ), and otherwise to maintain and protect the value of all Company Conduct Proprietary Assets. Except as provided set forth in Part 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant neither Conduct nor Subsidiary have disclosed nor delivered nor permitted to license agreements identified in Part 2.10 of the Disclosure Schedule) be disclosed or delivered to any Person, and, no Person, to the Company's and Subsidiary's Knowledge (other than Conduct or permitted the disclosure Subsidiary), has access to or delivery to has any Person ofrights with respect to, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Conduct Proprietary Asset.
(c) None To Conduct and Subsidiary's Knowledge, none of the Company Conduct Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any . Except as set forth in Part 2.9(c) of the CompanyDisclosure Schedule, to Conduct and Subsidiary's Shareholders. The Company Knowledge, neither Conduct nor Subsidiary is not infringing, misappropriating or making any unlawful use of, and the Company neither Conduct nor Subsidiary has not at any time infringed, misappropriated or made any unlawful use of, or received any written notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge Except as set forth in Part 2.9(c) of the Company Disclosure Schedule, to Conduct and the ShareholdersSubsidiary's Knowledge, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Conduct Proprietary Asset.
(id) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Conduct Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company Conduct to conduct its business in the manner in which such business has been and is currently being conducted. Except as set forth on in Part 2.9(e2.9(d) of the Disclosure Schedule, the Company has not (i) neither Conduct nor Subsidiary has licensed any of the Company Conduct Proprietary Assets to any Person on an exclusive basis or basis, and (ii) neither Conduct nor Subsidiary has entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its the Conduct Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) Except as set forth in Part 2.9(e) of the Disclosure Schedule, all current and former employees of Conduct and Subsidiary, and all current and former consultants and independent contractors to Conduct and Subsidiary, have executed and delivered to Conduct or Subsidiary, as applicable, written agreements (containing no exceptions to or exclusions from the scope of their coverage) that are substantially identical to the form of Employee Invention Assignment and Confidentiality Agreement attached to Part 2.9(e) of the Disclosure Schedule.
(f) Except as set forth in Part 2.9(f) of the Disclosure Schedule, neither Conduct nor Subsidiary has entered into and is not bound by any Contract under which any Person has the right to distribute or license, on a commercial basis, any Conduct Proprietary Asset including source code, object code, or any versions, modifications or derivative works of source code or object code in any Conduct Proprietary Asset.
(g) To Conduct's and Subsidiary's Knowledge, each computer program and other item of software owned by Conduct or Subsidiary is Year 2000 Compliant. To Conduct and Subsidiary's Knowledge, each computer program and other item of software that has been designed, developed, sold, installed, licensed or otherwise made available by Conduct or Subsidiary to any Person is Year 2000 Compliant. As used in this Section 2.9(g), "Year 2000 Compliant" means, with respect to a computer program or other item of software (i) the functions, calculations, and other computing processes of the program or software (collectively, "Processes") perform in a consistent and correct manner without interruption regardless of the date on which the Processes are actually performed and regardless of the date input to the applicable computer system, whether before, on, or after January 1, 2000; (ii) the program or software accepts, calculates, compares, sorts, extracts, sequences, and otherwise processes date inputs and date values, and returns and displays date values, in a consistent and correct manner regardless of the dates used whether before, on, or after January 1, 2000; (iii) the program or software accepts and responds to year input, if any, in a manner that resolves any ambiguities as to century in a defined, predetermined, and appropriate manner; (iv) the program or software stores and displays date information in ways that are unambiguous as to the determination of the century; and (v) leap years will be determined by the following standard (A) if dividing the year
Appears in 1 contract
Samples: Share Exchange Agreement (Mercury Interactive Corporation)
Proprietary Assets. (a) Part 2.9(a)(i) 2.9 of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset owned by the Company and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) 2.9 of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets material unregistered copyrights, trademarks, service marks and other material intellectual property rights owned by the Company. Part 2.9(a)(iii) 2.9 of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the The Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) Part 2.9 of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) 2.9 of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the The Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the The Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all used its best efforts to employ measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets). Except as provided in Part 2.9(b) of the Disclosure Schedule, the The Company has not (other than to employees of the Company, or consultants or independent contractors pursuant to confidentiality agreements, or pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets currently infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge best of the Company and knowledge of the ShareholdersCompany, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(d) (i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation specification or statement made or provided documentation with respect thereto by or on behalf of the Companythereto; and (ii) there the Company has not been received any notice or other communication (in writing or, to the knowledge of the Company, otherwise) of any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Personcustomer or potential customer) does not conform in all material respects with any specification, such specification or documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge best of the Company and knowledge of the ShareholdersCompany, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except conducted as set forth on Part 2.9(e) of the Disclosure Schedule, the date of this Agreement.
(i) The Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or basis, and (ii) the Company has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(i) All current and former employees of the Company have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Confidential Information and Invention Assignment Agreement previously made available to Parent, and (ii) all current and former consultants and independent contractors to the Company have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Consultant Confidential Information and Invention Assignment Agreement previously made available to Parent.
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company has good, valid good and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the Shareholders, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.to
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i) of the Company Disclosure Schedule sets forth, with respect to each Company Proprietary Asset owned by the Company and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Company Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company that are material to the business of the Company. Part 2.9(a)(iii) of the Company Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $10,000 with respect to, each Proprietary Asset that is licensed or otherwise made available to the Company by any Person (except for any Proprietary Asset that and is licensed material to the Company under any third party software license generally available to business of the public at a cost of less than $500)Company, and identifies the license agreement Contract under which such Proprietary Asset is being licensed or otherwise made available to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the The Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Company Disclosure Schedule, free and clear of all liens and other Encumbrances, except for (i) any lien for current taxes not yet due and payable, and (ii) minor liens that have arisen in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of the Company. The Company has a valid right to use use, license and otherwise exploit all Proprietary Assets identified in Part 2.9(a)(iii) of the Company Disclosure Schedule. Except as set forth in Part 2.9(a)(v2.9(a)(iv) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset that is material to the business of the Company with respect to which such other Person has any rights. Except as set forth in Part 2.9(a)(v) of the Company Disclosure Schedule, there is no Company Contract (with the exception of end user license agreements in the form previously delivered by the Company to Parent) pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Company Proprietary Asset.
(b) The Company has taken all reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality confidentiality, secrecy and secrecy value of all material Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect ). Without limiting the value generality of all Company Proprietary Assets. Except the foregoing, except as provided set forth in Part 2.9(b) of the Company Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) all current and former employees of the source codeCompany who are or were involved in, or any portion who have contributed to, the creation or aspect of the source code, development of any material Company Proprietary AssetAsset have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Confidential Information and Invention Assignment Agreement previously delivered by the Company to Parent, or and (ii) all current and former consultants and independent contractors to the object codeCompany who are or were involved in, or who have contributed to, the creation or development of any portion material Company Proprietary Asset have executed and delivered to the Company an agreement (containing no exceptions to or aspect exclusions from the scope of its coverage) that is substantially identical to the object codeform of Consultant Confidential Information and Invention Assignment Agreement previously delivered to Parent. No current or former employee, officer, director, stockholder, consultant or independent contractor of or to the Company has any right, claim or interest in or with respect to any Company Proprietary Asset.
(c) None To the knowledge of the Company: (i) all patents, trademarks, service marks and copyrights held by the Company are valid, enforceable and subsisting; (ii) none of the Company Proprietary Assets infringes and no Proprietary Asset that is currently being developed by the Company (either by itself or with any other Person) infringes, misappropriates or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any ; (iii) none of the Company's Shareholders. The products that are or have been designed, created, developed, assembled, manufactured or sold by the Company is not infringing, misappropriating or making any unlawful or unauthorized use ofof any Proprietary Asset owned or used by any other Person, and the Company none of such products has not at any time infringed, misappropriated or made any unlawful or unauthorized use of, or and the Company has not received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the Shareholders, ; (iv) no other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any material Company Proprietary Asset.
(i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(ed) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the The Company has not (i) licensed any of the material Company Proprietary Assets to any Person on an exclusive basis basis, or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its material Company Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) Except as set forth in Part 2.9(e)(i) of the Company Disclosure Schedule, the Company has not disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other Person, of any Company Source Code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any Person of any Company Source Code. Part 2.9(e)(ii) of the Company Disclosure Schedule identifies each Contract pursuant to which the Company has deposited or is required to deposit with an escrowholder or any other Person any Company Source Code, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Company Source Code.
(f) To the knowledge of the Company, except as set forth in Part 2.9(f)(i) of the Company Disclosure Schedule, each computer, computer program and other item of software (whether installed on a computer or on any other piece of equipment, including firmware) that is owned, licensed or used by the Company for its internal business operations is Year 2000 Compliant. Except as set forth in Part 2.9(f)(ii) of the Company Disclosure Schedule, each computer program and other item of software that has been designed, developed, sold, licensed or otherwise made available to any Person by the Company is Year 2000 Compliant. Except as set forth in Part 2.9(f)(iii) of the Company Disclosure Schedule, the Company has conducted sufficient Year 2000 compliance testing for each computer, computer program and item of software referred to in the preceding two sentences to be able to determine whether such computer, computer program and item of software is Year 2000 Compliant, and has obtained warranties or other written assurances from each of its suppliers to the effect that the products and services provided by such suppliers to the Company is Year 2000 Compliant other than when the failure to conduct such testing or obtain such assurances would not have a Material Adverse Effect. As used in this Section 2.9, "Year 2000 Compliant" means, with respect to a computer, computer program or other item of software (i) the functions, calculations, and other computing processes of the computer, program or software (collectively, "Processes") perform in a consistent and correct manner without interruption regardless of the date on which the Processes are actually performed and regardless of the date input to the applicable computer system, whether before, on, or after January 1, 2000; (ii) the computer, program or software accepts, calculates, compares, sorts, extracts, sequences, and otherwise processes date inputs and date values, and returns and displays date values, in a consistent and correct manner regardless of the dates used whether before, on, or after January 1, 2000; (iii) the computer, program or software accepts and responds to year input, if any, in a manner that resolves any ambiguities as to century in a defined, predetermined, and appropriate manner; (iv) the computer, program or software stores and displays date information in ways that are unambiguous as to the determination of the century; and (v) leap years will be determined by the following standard (A) if dividing the year by 4 yields an integer, it is a leap year, except for years ending in 00, but (B) a year ending in 00 is a leap year if dividing it by 400 yields an integer.
Appears in 1 contract
Proprietary Assets. (aA) Part 2.9(a)(i2.12(a)(i) of the Company and Selling Shareholder Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii2.12(a)(ii) of the Company and Selling Shareholder Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii2.12(a)(iii) of the Company and Selling Shareholder Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50025,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv2.12(a)(iv) of the Company and Selling Shareholder Disclosure Schedule, the Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i2.12(a)(i) and 2.9(a)(ii2.12(a)(ii) of the Company and Selling Shareholder Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii2.12(a)(iii) of the Company and Selling Shareholder Disclosure Schedule. Except as set forth in Part 2.9(a)(v2.12(a)(v) of the Company and Selling Shareholder Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi2.12(a)(vi) of the Company and Selling Shareholder Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(bB) The Company has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b2.12(b) of the Company and Selling Shareholder Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 2.12 of the Company and Selling Shareholder Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(cC) None Except as set forth in Part 2.12(c) of the Company and Selling Shareholder Disclosure Schedule, none of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge best of the knowledge of the Company and the ShareholdersSelling Shareholder, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(D) Except as set forth in Part 2.12(d) of the Company and Selling Shareholder Disclosure Schedule: (i) Each each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the Company, and, to the Knowledge best of the knowledge of the Company and the ShareholdersSelling Shareholder, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(eE) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on in Part 2.9(e2.12(e) of the Company and Selling Shareholder Disclosure Schedule, (i) the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or basis, and (ii) the Company has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i) of the Company Disclosure Schedule sets forth, with respect to each Company Proprietary Asset owned by the Company and registered with any Governmental Body or for which an application has been filed with any Governmental BodyBody ("Registered Proprietary Assets"), (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Company Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company that are material to the business of the Company. Part 2.9(a)(iii) of the Company Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of $50,000 with respect to, each Proprietary Asset that is licensed or otherwise made available to the Company by any Person (except for any Proprietary Asset that "Licensed Assets") or is licensed material to the Company under any third party software license generally available to business of the public at a cost of less than $500)Company, and identifies the license agreement Contract under which such Proprietary Asset is being licensed or otherwise made available to the Company. The Company has good, valid and marketable title to and exclusive rights to use all of the Company Proprietary Assets other than Licensed Assets, free and clear of all Encumbrances, except for (x) any lien for current taxes not yet due and payable, and (y) minor liens that have arisen in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of the Company. The Company has a valid right to use, license and otherwise exploit all Licensed Assets and any rights thereunder will not be affected by the Company entering into this Agreement and the agreements and transactions contemplated hereby. No person who has licensed Licensed Assets to the Company has ownership rights or license rights to improvements made by the Company to such Licensed Assets. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset that is material to the business of the Company with respect to which such other Person has any rights. Except as set forth in Part 2.9(a)(v) of the Company Disclosure Schedule, there is no Company Contract (with the exception of end user license agreements in the form previously delivered by the Company to Parent) pursuant to which any Person has any right (whether or not currently exercisable) to use (for any purpose other than discussion and evaluation pursuant to customary forms of nondisclosure agreements), license or otherwise exploit any Company Proprietary Asset.
(b) The Company has taken all reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality confidentiality, secrecy and secrecy value of all material Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect ). Without limiting the value generality of all Company Proprietary Assets. Except the foregoing, except as provided set forth in Part 2.9(b) of the Company Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) all current and former employees of the source codeCompany who are or were involved in, or any portion who have contributed to, the creation or aspect of the source code, development of any material Company Proprietary AssetAsset have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is in substance the same as the form of Confidential Information and Invention Assignment Agreement previously delivered by the Company to Parent, or and (ii) all current and former consultants and independent contractors to the object codeCompany who are or were involved in, or who have contributed to, the creation or development of any portion material Company Proprietary Asset have executed and delivered to the Company an agreement (containing no exceptions to or aspect exclusions from the scope of its coverage) that is in substance the object codesame as the form of Consultant Confidential Information and Invention Assignment Agreement previously delivered to Parent. No current or former employee, officer, director, stockholder, consultant or independent contractor of or to the Company has any right, claim or interest in or with respect to any Company Proprietary Asset.
(c) None All patents, trademarks, service marks and copyrights held by the Company are valid, enforceable and subsisting. To the knowledge of the Company, none of the Company Proprietary Assets infringes and no Proprietary Asset that is currently being developed by the Company (either by itself or with any other Person) infringes, misappropriates or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any . None of the Company's Shareholders. The products that are or have been designed, created, developed, assembled, manufactured or sold by the Company is not infringing, misappropriating or making any unlawful or unauthorized use ofof any Proprietary Asset owned or used by any other Person, and the Company none of such products has not at any time infringed, misappropriated or made any unlawful or unauthorized use of, or and the Company has not received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other PersonPerson and the Company has all rights and licenses reasonably necessary in order to make, have made, use or sell these products to an unlimited number of third parties. To the Knowledge knowledge of the Company and the ShareholdersCompany, no other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any material Company Proprietary Asset.
(i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(ed) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the The Company has not (i) licensed any of the material Company Proprietary Assets to any Person on an exclusive basis basis, or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its material Company Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) Except as set forth in Part 2.9(e)(i) of the Company Disclosure Schedule, the Company has not disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other Person, of any Company Source Code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any Person of any Company Source Code. Part 2.9(e)(ii) of the Company Disclosure Schedule identifies each Contract pursuant to which the Company has deposited or is required to deposit with an escrowholder or any other Person any Company Source Code, and further describes whether the execution of this Agreement or the consummation of any of the transactions contemplated hereby could reasonably be expected to result in the release or disclosure of any Company Source Code.
(f) To the knowledge of the Company, except as set forth in Part 2.9(f)(i) of the Company Disclosure Schedule, each computer, computer program and other item of software (whether installed on a computer or on any other piece of equipment, including firmware) that is owned, licensed or used by the Company for its internal business operations is Year 2000 Compliant. Except as set forth in Part 2.9(f)(ii) of the Company Disclosure Schedule, each computer program and other item of software that has been designed, developed, sold, licensed or otherwise made available to any Person by the Company is Year 2000 Compliant. Except as set forth in Part 2.9(f)(iii) of the Company Disclosure Schedule, the Company has conducted sufficient Year 2000 compliance testing for each computer, computer program and item of software referred to in the preceding two sentences to be able to determine whether such computer, computer program and item of software is Year 2000 Compliant, and has obtained warranties or other written assurances from each of its suppliers to the effect that the products and services provided by such suppliers to the Company is Year 2000 Compliant. As used in this Section 2.9, "Year 2000 Compliant" means, with respect to a computer, computer program or other item of software (i) the functions, calculations, and other computing processes of the computer, program or software (collectively, "Processes") perform in a consistent and correct manner without interruption regardless of the date on which the Processes are actually performed and regardless of the date input to the applicable computer system, whether before, on, or after January 1, 2000; (ii) the computer, program or software accepts, calculates, compares, sorts, extracts, sequences, and otherwise processes date inputs and date values, and returns and displays date values, in a consistent and correct manner regardless of the dates used whether before, on, or after January 1, 2000; (iii) the computer, program or software accepts and responds to year input, if any, in a manner that resolves any ambiguities as to century in a defined, predetermined, and appropriate manner; (iv) the computer, program or software stores and displays date information in ways that are unambiguous as to the determination of the century; and (v) leap years will be determined by the following standard (A) if dividing the year by 4 yields an integer, it is a leap year, except for years ending in 00, but (B) a year ending in 00 is a leap year if dividing it by 400 yields an integer.
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Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes infringes, misappropriates or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. Except as set forth in Part 2.9(c) of the Disclosure Schedule, neither the Surviving Corporation's employment of the Company's employees nor the performance by such employees as employees of Surviving Corporation will contravene, conflict with or result in a violation or breach of, or result in a default under, any provision of any Company Contract or infringe or conflict with any Proprietary Asset owned or used by any other Person. To the Knowledge best of the Company and knowledge of the ShareholdersCompany, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(d) Except as set forth in Part 2.9(d) of the Disclosure Schedule: (i) Each each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the Company, and, to the Knowledge best of the Company and knowledge of the ShareholdersCompany, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on in Part 2.9(e) of the Disclosure Schedule, (i) the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or basis, and (ii) the Company has not entered into any covenant not to compete or Contract limiting that limits its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(f) Except as set forth in Part 2.9(f) of the Disclosure Schedule, (i) all current and former employees of the Company have executed and delivered to the Company the Intellectual Property/Arbitration Agreements previously delivered to Parent, and (ii) all current and former consultants and independent contractors to the Company have executed and delivered to the Company the Intellectual Property Protection Agreements previously delivered to Parent.
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Samples: Agreement and Plan of Merger and Reorganization (Clarent Corp/Ca)
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the The Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v2.9(a)(iv) of the Disclosure Schedule, Schedule sets forth all obligations of the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the The Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, Schedule identifies all Persons to whom the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, : (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the Shareholders, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.the
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i2.9(a)(1) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset that has been registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, Asset and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii2.9(a)(2) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii2.9(a)(3) of the Disclosure Schedule identifies and provides a brief description of each Company Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $500), 10,000) and identifies the license agreement or other agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv2.9(a)(4) of the Disclosure Schedule, the Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i2.9(a)(1) and 2.9(a)(ii2.9(a)(2) of the Disclosure Schedule, free and clear of all liens and other EncumbrancesEncumbrances and, to the Best Knowledge of the Company and the Selling Shareholders, has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii2.9(a)(3) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v2.9(a)(5) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi2.9(a)(6) of the Disclosure Schedule, the Company has not developed jointly with any other Person any is free to use, modify, copy, distribute, sell, license or otherwise exploit each of the Company Proprietary Asset Assets on an exclusive basis (other than Company Proprietary Assets consisting of software licensed to the Company under third party licenses generally available to the public, with respect to which such other Person has any rightsthe Company's rights are not exclusive).
(b) The Company has taken all commercially reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy value of all each Company Proprietary Assets Asset (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person ofPerson, of (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, Asset or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes (except Company Proprietary Assets on Part 2.9(a)(3)) infringe or conflicts conflict with any Proprietary Asset owned or used by any other Person. To the Best Knowledge of the Company and the Selling Shareholders, includingnone of the Company Proprietary Assets set forth on Part 2.9(a)(3) infringe or conflict with Proprietary Assets owned or used by any Person. The Company has not at any time received any written notice or other written communication, without limitationor to the Best Knowledge of the Company and the Selling Shareholders, any former employers oral notice or other oral communication, of any such infringement or conflict. Except as set forth in Part 2.9(c) of the Company's Shareholders. The Disclosure Schedule, the Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Best Knowledge of the Company and the Selling Shareholders, except as set forth in Part 2.9(c) of the Disclosure Schedule, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(ed) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on in Part 2.9(e2.9(d) of the Disclosure Schedule, (i) the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or and (ii) the Company has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) Except as set forth in Part 2.9(e) of the Disclosure Schedule, the Company has not entered into and is not bound by any Contract under which any Person has the right to distribute or license, on a commercial basis, any Company Proprietary Asset including source code, object code or any versions, modifications or derivative works of source code or object code in any Company Proprietary Asset.
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i) 2.9 of the Company Disclosure Schedule sets forth, with respect to each Company Proprietary Asset owned or licensed by the Company and registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary AssetAssets, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) 2.9 of the Company Disclosure Schedule identifies and provides a brief description of, and identifies any ongoing royalty or payment obligations in excess of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of $50,000 per year with respect to, each Proprietary Asset that is licensed or otherwise made available to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $500public), and identifies the license agreement Contract under which such Proprietary Asset is being licensed or otherwise made available to the Company. Except as Excluding the payments required under the Company Contracts set forth in Part 2.9(a)(iv) of the Company Disclosure Schedule, the aggregate amounts payable by the Company for ongoing royalty or license payments do not exceed $100,000 per year. The Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule(except for licensed assets), free and clear of all liens and other Encumbrances, except (i) as set forth in Part 2.9(a) of the Company Disclosure Schedule, (ii) for any lien for current taxes not yet due and payable, and (iii) minor liens that have arisen in the ordinary course of business and that do not (individually or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of the Company. To the Company's knowledge, the Company has a valid right to use use, license and otherwise exploit all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary AssetAssets. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the The Company has not developed jointly or does not jointly own or have joint rights with any other Person any Company Proprietary Asset with respect that is material to the business of the Company. Except as set forth in Part 2.9(a) of the Disclosure Schedule, there is no Company Contract pursuant to which such other any Person has any rightsright (whether or not currently exercisable) to use, license or otherwise exploit any Company Proprietary Asset.
(b) The Company has taken all commercially reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of To the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any knowledge of the Company's Shareholders. The , the Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the Shareholders, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(ed) The Company Proprietary Assets constitute all the Proprietary Assets reasonably necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on in Part 2.9(e2.9(d) of the Company Disclosure Schedule, the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis basis.
(e) All current and former employees have executed and delivered an agreement to the Company (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Confidential Information and Invention Assignment Agreement previously delivered to Parent by the Company. All current and former consultants and independent contractors to the Company have executed and delivered to the Company an agreement that contains provisions appropriately restricting the use and disclosure of Company Proprietary Assets.
(f) The Company has taken reasonably adequate steps to ensure that all software (and related Company Proprietary Assets) used in its operations will be Year 2000 Compliant (as defined below) by December 31, 1999. For purposes of this Section 2, "YEAR 2000 COMPLIANT" shall mean that software that can individually, and in combination and in conjunction with all other systems, products or processes with which they are required or designed to interface, continue to be used normally and to operate successfully (both in functionality and performance in all material respects) over the transition into the twenty first century when used in accordance with the documentation relating to all such software (and related Company Proprietary Assets), including being able to, before, on and after January 1, 2000 substantially conform to the following: (i) use logic pertaining to dates which allow users to identify and/or use the century portion of any date fields without special processing; and (ii) entered into respond to all date elements and date input so as to resolve any covenant not ambiguity as to compete century in a disclosed, defined and pre-determined manner and provide date information in ways which are unambiguous as to century, either by permitting or Contract limiting its ability requiring the century to exploit fully any of its Proprietary Assets be specified or to transact business in any market or geographical area or with any Personwhere the data element is represented without a century, the correct century is unambiguous for all manipulations involving that element.
Appears in 1 contract
Samples: Merger Agreement (Megabios Corp)
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the The Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and to the best of Shareholders' knowledge has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v2.9(a)(iv) of the Disclosure Schedule, the Company is not to the best of Shareholders' knowledge obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not to the best of Shareholders' knowledge developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights. Except as set forth in Part 2.9(a)(vii) of the Company Disclosure Schedule, there is to the best of Shareholders' knowledge no Company Contract pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Company Proprietary Asset.
(b) The To the best of Shareholders' knowledge, the Company has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None To the best of Shareholders' knowledge, (i) none of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of (ii) the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company Person and the Shareholders, (iii) no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(d) Except as set forth in Part 2.9(d) of the Disclosure Schedule, to the best of Shareholders' knowledge: (i) Each each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of The Company has established adequate reserves on the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves Financial Statements to cover any all costs associated with any obligations of that the Company may have with respect to correct the correction or repair any of programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on in Part 2.9(e) of the Disclosure Schedule, (i) the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or basis, and (ii) the Company has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(f) Except as set forth in Part 2.9(f) of the Disclosure Schedule, (i) all current and former employees of the Company have executed and delivered to the Company confidentiality agreements substantially in the form previously delivered to Parent, and (ii) all current and former consultants and independent contractors to the Company have executed and delivered to the Company confidentiality agreements substantially in the form previously delivered to Parent.
Appears in 1 contract
Samples: Merger Agreement (Qualcomm Inc/De)
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $500), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the Shareholders, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and and
(ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i2.9(a)(1) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered that has been registered, recorded or filed with any Governmental Body or for with respect to which an application has been filed with any Governmental Body, (i) a brief description of such Company Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration registration, recordation, filing or application. Part 2.9(a)(ii2.9(a)(2) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the CompanyPRN. Part 2.9(a)(iii2.9(a)(3) of the Disclosure Schedule identifies and provides a brief description of each Company Proprietary Asset that is owned by any other Person and that is licensed to the Company or used by any Person PRN (except for any Company Proprietary Asset that is licensed to the Company PRN under any third party software license generally available to the public at a cost of less than $500), and identifies the license agreement or other agreement under which such Company Proprietary Asset is being licensed to the Companyor used by PRN. Except as set forth in Part 2.9(a)(iv2.9(a)(4) of the Disclosure Schedule, the Company PRN has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i2.9(a)(1) and 2.9(a)(ii2.9(a)(2) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii2.9(a)(3) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v2.9(a)(5) of the Disclosure Schedule, the Company PRN is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi2.9(a)(6) of the Disclosure Schedule, PRN is free to use, modify, copy, distribute, sell, license or otherwise exploit each of the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rightsAssets on an exclusive basis.
(b) The Company PRN has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b) of the Disclosure Schedule, the Company PRN has not (other than pursuant disclosed or delivered or permitted to license agreements identified in Part 2.10 of the Disclosure Schedule) be disclosed or delivered to any Person, and no Person (other than PRN) has access to or permitted the disclosure or delivery to has any Person ofrights with respect to, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company PRN Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company PRN is not infringing, misappropriating or making any unlawful use of, and the Company PRN has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge best of the Company knowledge of PRN and the ShareholdersShareholder, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(d) Except as set forth in Part 2.9(d) of the Disclosure Schedule: (i) Each each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the CompanyPRN; and (ii) there has not been any material claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the CompanyPRN, and, to the Knowledge best of the Company knowledge of PRN and the ShareholdersShareholder, there is no basis for any such claim. There are no obligations of PRN has established adequate reserves on the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves Unaudited Balance Sheet to cover any all costs associated with any obligations of that PRN may have with respect to the Company to correct correction or repair any of programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company PRN to conduct its business in the manner in which such business has been conducted and in the manner in which such business is being proposed to be conducted. Except as set forth on in Part 2.9(e) of the Disclosure Schedule, the Company has not (i) PRN has not licensed any of the Company Proprietary Assets to any Person on an exclusive basis or basis, and (ii) PRN has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(f) Except as set forth in Part 2.9(f) of the Disclosure Schedule, all current and former employees of PRN have executed and delivered to PRN written agreements (containing no exceptions to or exclusions from the scope of their coverage) that are substantially identical to the form of 0 attached to the Disclosure Schedule as Appendices 2.9(1) and 2.9(2). PRN has never engaged or received services from any consultant or independent contractor in connection with the design or development of any Proprietary Asset.
Appears in 1 contract
Samples: Merger Agreement (Halis Inc)
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $500)10,000, and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the The Company has good, valid and marketable title to all of the Company Proprietary Assets Assets, other than those identified in Parts 2.9(a)(i) and 2.9(a)(iiPart 2.9(a)(iii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the The Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the The Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, the The Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge knowledge of the Company and the ShareholdersStockholders, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) in the two years prior to the date of this Agreement, there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the Company, and, to the Knowledge knowledge of the Company and the ShareholdersStockholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e.
(i) of the Disclosure Schedule, the The Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or basis, and (ii) the Company has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(i) All current and former employees of the Company have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of confidential information and invention assignment agreement previously delivered to Parent, and (ii) all current and former consultants and independent contractors to the Company have executed and delivered to the Company an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of consultant confidential information and invention assignment agreement previously delivered to Parent.
Appears in 1 contract
Samples: Merger Agreement (I Many Inc)
Proprietary Assets. (a) Part 2.9(a)(i) of the The Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered that has been registered, recorded or filed with any Governmental Body or for with respect to which an application has been filed with any Governmental Body, (i) a brief description of such Company Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration registration, recordation, filing or application. Part 2.9(a)(ii) of the The Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the The Disclosure Schedule identifies and provides a brief description of each Company Proprietary Asset that is owned by any other person or entity and that is licensed to or used by the Company by any Person (except for any Company Proprietary Asset that is licensed to the Company under any third party software license that (1) is generally available to the public at a cost of less than $500)1,000, and (2) imposes no future monetary obligation on the Company) and identifies the license agreement or other agreement under which such Company Proprietary Asset is being licensed to or used by the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company has Companies have good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of owned by the Disclosure ScheduleCompanies, free and clear of all liens liens, claims and other Encumbrancesencumbrances, and has a valid right to use all other Company Proprietary Assets identified licensed to or used by the Companies in Part 2.9(a)(iii) of the Disclosure Scheduletheir businesses. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is Companies are not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly with any other Person any is free to use, modify, copy, distribute, sell, license or otherwise exploit each of the Company Proprietary Asset Assets on an exclusive basis (other than Company Proprietary Assets consisting of software licensed to the Company under third party licenses generally available to the public, with respect to which such other Person has any rightsthe Company's rights are not exclusive).
(b) The Company has Companies have taken all reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b) of the Disclosure Schedule, the Company has Companies have not (other than pursuant disclosed or delivered or permitted to license agreements identified in Part 2.10 of the Disclosure Schedule) be disclosed or delivered to any Personperson or entity, and no person or permitted entity (other than the disclosure Company) has access to or delivery to has any Person ofrights with respect to, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of to any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Personperson or entity. Except as set forth in the Disclosure Schedule, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has Companies have not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge best of the Company knowledge of the Companies and the Shareholders, except as set forth in the Disclosure Schedule, no other Person person or entity is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person person or entity infringes or conflicts with, any Company Proprietary Asset.
(d) Except as set forth in the Disclosure Schedule: (i) Each each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the CompanyCompanies; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the CompanyCompanies, and, to the Knowledge best of the Company knowledge of the Companies and the Shareholders, there is no basis for any such claim. There The Companies are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company not required under generally accepted accounting principles to establish reserves on their financial statements to cover any costs associated with any obligations of that the Company Companies may have with respect to correct the correction or repair any of programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company Companies to conduct its business their businesses in the manner in which such business has businesses have been and is being conducted. Except as set forth on Part 2.9(e) of in the Disclosure Schedule, the Company has not (i) the Companies have not licensed any of the Company Proprietary Assets to any Person on an exclusive basis or basis, and (ii) the Companies have not entered into any covenant not to compete or Contract contract limiting its their ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(f) All current and former employees of the Companies, and all current and former consultants and independent contractors to the Companies, have executed and delivered to the Company written agreements (containing no exceptions to or exclusions from the scope of their coverage) that convey to the Companies all right, title and interest in any inventions developed by such parties that form a part of the Company Proprietary Assets.
(g) The execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby, will not breach, violate or conflict with any instrument or agreement governing any Company Proprietary Assets, and will not cause the forfeiture or termination or give rise to a right of forfeiture or termination of any Company Proprietary Asset.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Adac Laboratories)
Proprietary Assets. (a) Part 2.9(a)(i) of the Company Disclosure Schedule sets forth, with respect to each Company Proprietary Asset owned by the Company registered by anyone with any Governmental Body or for which an application has been filed by anyone with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Company Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Company Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person and material to business of the Company as presently conducted (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the The Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Company Disclosure Schedule, free and clear of all liens and other Encumbrances except for Permitted Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Company Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the The Company is not obligated to make any ongoing royalty or similar payment in excess of $6,000 per year to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the The Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights. Portions of the Company Proprietary Assets are derived from the public domain or are freeware, and no ownership is asserted by the Company or the Key Shareholders with respect to such portions.
(b) The Company has taken all reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value value, in the aggregate, would not be unimpaired impaired in any material respect by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, the The Company has not (other than pursuant to license agreements on the Company's standard form or otherwise identified in Part 2.10 2.10(a)(ii) of the Company Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None To the knowledge of the Company and the Key Shareholders, none of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any . To the knowledge of the Company's Company and the Key Shareholders. The , the Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the Shareholders, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.potential
Appears in 1 contract
Samples: Merger Agreement (Placeware Inc)
Proprietary Assets. (a) Part 2.9(a)(i) of the Company Disclosure Schedule sets forth, with respect to each material Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Company Disclosure Schedule identifies and provides a brief description of all other material Company Proprietary Assets owned by the each Acquired Company. Part 2.9(a)(iii) of the Company Disclosure Schedule identifies and provides a brief description of each material Proprietary Asset licensed to the each Acquired Company by any Person (except for any Proprietary Asset that is licensed to the an Acquired Company under any third party software license generally available to the public at a cost of less than $500public), and identifies the license agreement under which such Proprietary Asset is being licensed to the such Acquired Company. Except as set forth in Part 2.9(a)(iv) of the Company Disclosure Schedule, the each Acquired Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Company Disclosure ScheduleSchedule as owned by such Acquired Company, free and clear of all liens and other EncumbrancesEncumbrances (other than Permitted Liens), and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Company Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Company Disclosure Schedule, none of the Company Acquired Companies is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the such Company Disclosure Schedule, none of the Company Acquired Companies has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has Acquired Companies have taken all commercially reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None To the knowledge of the Company, none of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any . To the knowledge of the Company's Shareholders. The Company , none of the Acquired Companies is not infringing, misappropriating or making any unlawful use of, and the Company or has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge knowledge of the Company and the ShareholdersCompany, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(ed) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the each Acquired Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on in Part 2.9(e2.9(d) of the Company Disclosure Schedule, the Company has not (i) none of the Acquired Companies has licensed any of the Company Proprietary Assets to any Person on an exclusive basis or basis, and (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any none of its Proprietary Assets or to transact business in any market or geographical area or with any Person.the Acquired
Appears in 1 contract
Samples: Merger Agreement (PMR Corp)
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other material Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50010,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right (contractual or otherwise) to use all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all commercially reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the Shareholders, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on Part 2.9(e) of the Disclosure Schedule, the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or (ii) entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.public
Appears in 1 contract
Samples: Merger Agreement (Titan Corp)
Proprietary Assets. (a) Part 2.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Company Target Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description an identification of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the Disclosure Schedule identifies and provides a brief description of all other Company Target Proprietary Assets owned by the CompanyTarget. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company Target by any Person (except for any Proprietary Asset that is licensed to the Company Target under any third party software license generally available to the public at a cost of less than $50025,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the CompanyTarget. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company Target has good, valid and marketable title to all of the Company Target Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of the Disclosure Schedule, free and clear of all liens and other Encumbrances, and has a valid right to use and to freely sublicense all Proprietary Assets identified in Part 2.9(a)(iii) of the Disclosure Schedule. Except as set forth in Part 2.9(a)(v) of the Disclosure Schedule, the Company Target is not obligated to make any payment to any Person for the use of any Company Target Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company Target has not developed jointly with any other Person any Company Target Proprietary Asset with respect to which such other Person has any rights.
(b) The Company Target has taken all measures and precautions reasonably necessary which are usual and customary in the industry to protect and maintain the confidentiality and secrecy of all Company Target Proprietary Assets (except Company Target Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Target Proprietary Assets. Except as provided set forth in Part 2.9(b) of the Disclosure Schedule, the Company Target has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Target Proprietary Asset, or (ii) the object code, or code of any portion or aspect Target Proprietary Asset. Except as set forth in Part 2.9(b) of the object codeDisclosure Schedule, Target is in physical possession of any Company all source code constituting a Target Proprietary Asset.
(c) None To the Knowledge of the Company Target, none of Target Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any of the Company's Shareholders. The Company Target is not infringing, misappropriating or making any unlawful use of, and the Company Target has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company and the ShareholdersTarget, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Target Proprietary Asset.
(d) Except as set forth in Part 2.9(d) of the Disclosure Schedule: (i) Each Company each Target Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the CompanyTarget; and (ii) there has not been any written claim by any customer or other Person alleging that any Company Target Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty representation or statement made or provided by or on behalf of the Company, and, Target. Targets's Revenues from maintenance contracts have exceeded and will exceed all costs associated with any obligations that Target may have with respect to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct correction or repair any of programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Target Proprietary Assets.
(e) The Company Target Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company Target to conduct its business substantially in the manner in which such business has been and is being conducted. Except as set forth on in Part 2.9(e) of the Disclosure Schedule, the Company has not (i) Target has not licensed any of the Company Target Proprietary Assets to any Person on an exclusive basis or basis, and (ii) Target has not entered into any covenant not to compete or Contract limiting its ability to exploit fully any of its the Target Proprietary Assets or to transact business in any market or geographical area or with any Person.
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i) of the The Disclosure Schedule sets forth, with respect to each Company Proprietary Asset registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii) of the The Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the CompanyAssets. Part 2.9(a)(iii) of the The Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to the Company by any Person (except for any Proprietary Asset that is licensed to the Company under any third party software license generally available to the public at a cost of less than $50025,000), and identifies the license agreement under which such Proprietary Asset is being licensed to the Company. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(iiPart 2.10(a)(i) of the Disclosure ScheduleSchedule (other than domain names), free and clear of all liens and other Encumbrances, and has a valid right to use all Proprietary Assets identified in Part 2.9(a)(iii2.10(a)(ii) of the Disclosure Schedule. The domain name www.xxxx.xxx xx registered in the name of the Company. Except as set forth in Part 2.9(a)(v) the Disclosure Schedule, the Company has remained current in the payment of registration fees for the www.xxxx.xxx xxxain name and has paid such registration fees through May 25, 2001. To their Knowledge, no person has any rights to use the www.xxxx.xxx xxxain name other than the Company. Except as set forth in the Disclosure Schedule, the Company is not obligated to make any payment to any Person for the use of any Company Proprietary AssetAsset that could reasonably be expected to have a Material Adverse Effect on the Company. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, to their Knowledge the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all Company Proprietary Assets. Except as provided set forth in Part 2.9(b) of the Disclosure Schedule, to their Knowledge, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Company Proprietary Asset, or (ii) the object code, or any portion or aspect of the object code, of any Company Proprietary Asset.
(c) None Except as set forth in the Disclosure Schedule, to their Knowledge, none of the Company Proprietary Assets infringes or conflicts with any Proprietary Asset owned or used by any other Person. Except as set forth in the Disclosure Schedule, includingto their Knowledge, without limitation, any former employers of any of the Company's Shareholders. The Company is not infringing, misappropriating or making any unlawful use of, and the Company has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other Person. To Except as set forth in the Knowledge of the Company and the ShareholdersDisclosure Schedule, to their Knowledge, no other Person is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Company Proprietary Asset.
(id) Each Company Except as set forth in the Disclosure Schedule and except for Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been Assets licensed or otherwise made available by to the Company under third party software licenses generally available to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, andpublic, to the Knowledge of the Company and the Shareholderstheir Knowledge, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and Assets together with Proprietary Assets licensed to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(e) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conductedconducted as of the date hereof. Except as set forth on Part 2.9(e) of in the Disclosure Schedule, to their Knowledge, (i) the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or basis, and (ii) the Company has not entered into any covenant not to compete or Contract materially limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) The Disclosure Schedule identifies the persons who have executed and delivered to Site Operator a confidential inventions and assignment agreement identical to the form previously delivered to Parent or its Representatives.
Appears in 1 contract
Proprietary Assets. (a) Part 2.9(a)(i2.9(a) of the Company Disclosure Schedule sets forth, with respect to each Company Proprietary Asset owned by the Company and registered with any Governmental Body or for which an application has been registered or filed with any Governmental Body, (i) a brief description of such Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Part 2.9(a)(ii2.9(a) of the Company Disclosure Schedule identifies and provides a brief description of all other Company Proprietary Assets owned by the Company. Part 2.9(a)(iii) of the Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed Contracts that grant to the Company by any Person (except for any rights to Proprietary Asset Assets that is licensed to the Company under any third party software license generally available to the public at a cost of less than $500), and identifies the license agreement under which such Proprietary Asset is being licensed to are incorporated into the Company's present or planned products. Except as set forth in Part 2.9(a)(iv) of the Disclosure Schedule, the The Company has good, valid and marketable title to all of the Company Proprietary Assets identified in Parts 2.9(a)(i) owned by the Company and 2.9(a)(ii) of a good, valid and enforceable license to all the Disclosure ScheduleProprietary Assets licensed by the Company, free and clear of all liens and other Encumbrances, except for (A) any lien for current taxes not yet due and payable, (B) any Encumbrances that have arisen in the Ordinary Course of Business and that do not (individually or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of the Company, (C) any Contract to which the Company is a party and pursuant to which the Company has licensed or transferred any right (whether or not currently exercisable) to use, license or otherwise exploit any Company Proprietary Asset to any Person and (D) any Contract to which the Company is a party and pursuant to which the Company has inlicensed any Proprietary Asset. The Company has a valid right to use use, license and otherwise exploit all Proprietary Assets identified in to the extent necessary to the conduct of the business of the Company as currently conducted. Part 2.9(a)(iii2.9(a) of the Company Disclosure Schedule. Except as set Schedule sets forth in Part 2.9(a)(v) a list of the Disclosure Schedule, the Company is not obligated to make any payment to any Person each Contract providing for the use joint development of any Company Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of the Disclosure Schedule, the Company has not developed jointly with any other Person any Company Proprietary Asset with respect to which such other Person has any rights.
(b) The Company has taken all reasonable measures and precautions reasonably necessary to protect and maintain the confidentiality and secrecy of all material Company Proprietary Assets (except Company Proprietary Assets whose value would be unimpaired in any material respect by public disclosure) and otherwise to maintain and protect ). Without limiting the value of all Company Proprietary Assets. Except as provided in Part 2.9(b) generality of the Disclosure Schedule, the Company has not (other than pursuant to license agreements identified in Part 2.10 of the Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person offoregoing, (i) to the source codeCompany's Knowledge, all current employees of the Company who are or were involved in, or who have contributed to, the creation or development of any portion or aspect material Company Proprietary Asset have executed and delivered to the Company an agreement that at the time of execution was in the form of the source codeCompany's then existing confidential information and invention assignment agreement, of any Company Proprietary Asset, or and (ii) all current consultants and independent contractors to the object codeCompany who are or were involved in, or who have contributed to, the creation or development of any portion or aspect material Company Proprietary Asset have executed and delivered to the Company an agreement that at the time of execution was in the form of the object codeCompany's then existing consultant confidential information and invention assignment agreement. The Company has made available to MergerCo the current forms of the Company's confidential information and inventions agreements for employees and consultants. No current or former employee, of officer, director, shareholder, consultant or independent contractor has any right, claim or interest, including, without limitation, any moral rights, in or with respect to any Company Proprietary Asset.
(c) None Except as set forth in Part 2.9 (c) of the Company Disclosure Schedule, to the Knowledge of the Company: (i) all patents, trademarks, trade names, service marks, maskwork rights and copyrights held by the Company are valid, enforceable and subsisting; (ii) none of the Company Proprietary Assets infringes and no Proprietary Asset that is currently being 21 developed by the Company (either by itself or with any other Person) infringes, misappropriates or conflicts with any Proprietary Asset owned or used by any other Person, including, without limitation, any former employers of any ; (iii) none of the Company's Shareholders. The products that are or have been designed, created, developed, assembled, manufactured or sold by the Company is not infringing, misappropriating or making any unlawful or unauthorized use ofof any Proprietary Asset owned or used by any other Person, and the Company none of such products has not at any time infringed, misappropriated or made any unlawful or unauthorized use of, or and neither the Company nor any of its Representatives has received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Proprietary Asset owned or used by any other Person. To the Knowledge of the Company ; and the Shareholders, (iv) no other Person is infringing, misappropriating or making any unlawful or unauthorized use of, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any material Company Proprietary Asset.
(i) Each Company Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of the Company; and (ii) there has not been any claim by any customer or other Person alleging that any Company Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by the Company to any Person) does not conform in all material respects with any specification, documentation, performance standard, representation, warranty or statement made or provided by or on behalf of the Company, and, to the Knowledge of the Company and the Shareholders, there is no basis for any such claim. There are no obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets, and to the Knowledge of the Company and the Shareholders, there is no reason for the Company to establish reserves to cover any costs associated with any obligations of the Company to correct or repair any programming errors or other defects in the Company Proprietary Assets.
(ed) The Company Proprietary Assets constitute all the Proprietary Assets necessary to enable the Company to conduct its business in the manner in which such business has been and is being conducted. Except as set forth on in Part 2.9(e2.9(d) of the Company Disclosure Schedule, the Company has not (i) licensed any of the Company Proprietary Assets to any Person on an exclusive basis or basis, (ii) entered into any covenant not to compete or (iii) entered into any Contract limiting its ability to exploit fully any of its Proprietary Assets or to transact business in any market or geographical area or with any Person.
(e) No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or would reasonably be expected to, result in the required disclosure or delivery by the Company or any of its escrow agents to any Person of the source code, or any portion or aspect of the source code, or any proprietary information or algorithm contained in any source code, of any Company Proprietary Asset. Neither the execution of this Agreement nor the consummation of any of the transactions contemplated hereby would reasonably be expected to result in the required release or disclosure by the Company or any of its escrow agents of the source code, or any portion or aspect of the source code, or any proprietary information or algorithm contained in or relating to any source code, of any Company Proprietary Asset.
(f) Except as disclosed in Part 2.9(f) of the Company Disclosure Schedule, all software and related Company Proprietary Assets that are being sold, licensed or transferred by the Company to any Person ("PRODUCTS") are designed to be used prior to, during and after the year 2000 ("YEAR 2000"), and are Year 2000 Compliant (as defined below). The Company has taken adequate steps to ensure that all software and related Proprietary Assets used in its operations are Year 2000 Compliant (as defined below). For purposes of this Agreement, "YEAR 2000 COMPLIANT" shall mean that the Products can individually continue to be used normally and to operate successfully (both in functionality and performance in all material respects) over the transition into the twenty first century when used in accordance with the documentation relating to the Products, including being able to, before, on and after January 1, 2000 substantially conform to the following: (i) use logic pertaining to dates which allow users to identify and/or use the century portion of any date fields without special processing; and (ii) respond to all date elements and date input so as to resolve any ambiguity as to century in a disclosed, defined and
Appears in 1 contract
