Common use of Proprietary Assets Clause in Contracts

Proprietary Assets. (a) The Company and each Subsidiary and Owned Entity (i) owns or has sufficient rights to all Proprietary Assets used in or necessary for its business as currently or proposed to be conducted, free and clear of all Liens, other than Permitted Liens; and (ii) has taken reasonable and customary measures and precautions necessary to protect and maintain the confidentiality and secrecy of its Proprietary Assets (except the Proprietary Assets the value of which would be unimpaired by public disclosure) and otherwise to maintain and protect the value of its Proprietary Assets. All necessary registration, maintenance and renewal fees previously due in connection with any registered Proprietary Assets have been paid and all necessary documents and certificates previously due in connection with such 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 such Proprietary Assets. (b) Except where such infringement, misappropriation or unlawful use has not had or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, the operation of the business of the Company and each of its Subsidiaries or Owned Entities (i) has not infringed or misappropriated, does not infringe or misappropriate, and will not infringe or misappropriate as a result of the execution, delivery and performance of this Agreement and the other Transaction Documents, or the issuance of any of the Perseus Securities as contemplated hereby or in any other Transaction Document, any Proprietary Asset of any Person, (ii) does not violate any right of any Person (including any right to privacy or publicity), and (iii) does not materially breach any contract related to any Proprietary Asset. Neither the Company nor any Subsidiary or Owned Entity has received notice from any Person claiming that such operation or any act, any product, technology or service (including products, technology or services currently under development by the Company, any Subsidiary or any Owned Entity) or Proprietary Assets infringes or misappropriates any rights related to or arising out of Proprietary Assets of any Person. Neither the Company nor any Subsidiary or Owned Entity has received notice to the effect that Proprietary Assets held by any of them are invalid or not subsisting. No other Person is infringing, misappropriating or making any unlawful use of any Proprietary Asset used in or pertaining to the business of the Company or any Subsidiary or Owned Entity. (c) The Proprietary Assets used in or pertaining to the business of the Company and its Subsidiaries, and the Proprietary Assets licensed to the Owned Entities, when taken together, are sufficient to enable the Company and each of its Subsidiaries to conduct its business in the manner in which such business has been and is being conducted free from liabilities or valid claims of infringement or misappropriation by third parties. Neither the Company nor any of its Subsidiaries or Owned Entities have licensed any of its Proprietary Assets to any Person on an exclusive basis and neither the Company nor any Subsidiary or Owned Entity has entered into any covenant not to compete or contract limiting its ability to sell its products in any market or geographical area or with any Person. (d) All current and former employees of the Company and its Subsidiaries providing technical services, or otherwise having access to confidential information, relating to the Company’s Proprietary Assets have executed and delivered to the Company or such Subsidiary an agreement (containing no material exceptions to or exclusions from the scope of its coverage relevant to the Company’s business) that is substantially the same as to the forms of standard employee agreement previously delivered to the Purchaser, and all current and former consultants and independent contractors to the Company or its Subsidiaries providing technical services relating to the Company’s or its Subsidiaries’ Proprietary Assets have executed and delivered to the Company or such Subsidiary, an agreement (containing no material 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 forms of standard employee agreement previously delivered to the Purchaser. (e) To the extent that any Proprietary Asset has been developed or created independently or jointly by any Person other than the Company or any Subsidiary or Owned Entity for which the Company or any Subsidiary or Owned Entity has directly or indirectly, provided consideration for such development or creation, the Company or the relevant Subsidiary or Owned Entity has a written agreement with such Person with respect thereto, and the Company or relevant Subsidiary or Owned Entity thereby has obtained ownership of, and is the exclusive owner of, all such Proprietary Assets therein by operation of law or by valid assignment, and has required the waiver of all non-assignable rights. (f) Other than standard Proceedings involving applications pending before the U.S. Patent and Trademark office or foreign patent offices, no Proprietary Assets, product, technology, or service of the Company or any Subsidiary or Owned Entity is subject to any Proceeding or outstanding decree, order, judgment or settlement agreement or stipulation that restricts in any manner the use, transfer or licensing thereof by the Company or any Subsidiary or Owned Entity, or may affect the validity, use or enforceability of such Proprietary Asset, product technology or service. (g) Section 3.12(g) of the Disclosure Schedule lists separately, by entity, all material Proprietary Assets owned by, or filed in the name of, the Company, each of its Subsidiaries and each of its Owned Entities that have been registered in or with, issued by, or for which an application for registration has been filed in or with, a federal, state or other governmental office or agency of appropriate jurisdiction.

Proprietary Assets. (a) The Company and each Subsidiary has full title and Owned Entity (i) owns ownership of, or has a license to, or can obtain upon reasonable terms and conditions sufficient rights to, all patents, patent applications, trademarks, service marks, trade names, copyrights, moral rights, maskworks, trade secrets, confidential and proprietary information, compositions of matter, formulas, designs, proprietary rights and know-how and processes (collectively, the “Proprietary Assets”) necessary to all Proprietary Assets used in or necessary for its business enable each of them to carry on their businesses as currently or now conducted and as presently proposed to be conductedconducted without any conflict with, free and clear or infringement of, the rights of all Liens, other than Permitted Liens; and (ii) has taken reasonable and customary measures and precautions necessary to protect and maintain the confidentiality and secrecy of its Proprietary Assets (except the Proprietary Assets the value of which would be unimpaired by public disclosure) and otherwise to maintain and protect the value of its Proprietary Assets. All necessary registration, maintenance and renewal fees previously due in connection with any registered Proprietary Assets have been paid and all necessary documents and certificates previously due in connection with such 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 such Proprietary Assetsothers. (b) Except where such infringementNeither the Company nor any Subsidiary has violated or infringed and is not currently violating or infringing, misappropriation and neither the Company nor any Subsidiary has received any communications alleging that either of them (or unlawful use any of their employees or consultants) has not had violated or infringed, or, by conducting its business as proposed would not reasonably be expected to haveviolate or infringe, individually any Proprietary Assets of any other person or entity. No third party has any ownership right, title, interest, claim in the aggregate, a Material Adverse Effect, the operation or lien on any of the business Proprietary Assets of the Company or any Subsidiary, and the Company and each Subsidiary has taken, and in the future will use best efforts to take, all steps reasonably necessary to preserve their legal rights in, and the secrecy of, all of their Proprietary Assets, except those for which disclosure is required for legitimate business or legal reasons. (c) Neither the Company nor any Subsidiary has received any communications alleging that it or any of its Subsidiaries employees or Owned Entities (i) consultants has not infringed or misappropriatedviolated or, does not infringe or misappropriateby conducting its business as proposed, and will not infringe or misappropriate as a result of the execution, delivery and performance of this Agreement and the other Transaction Documents, or the issuance would violate any Proprietary Assets of any of the Perseus Securities as contemplated hereby other person or in any other Transaction Document, any Proprietary Asset of any Person, (ii) does not violate any right of any Person (including any right to privacy or publicity), and (iii) does not materially breach any contract related to any Proprietary Assetentity. Neither the Company nor any Subsidiary or Owned Entity has received notice from is aware that any Person claiming that such operation or of its employees is obligated under any act, any product, technology or service contract (including productslicenses, technology covenants or services currently under development by commitments of any nature) or other agreement, or subject to any judgment, decree or order of any court or administrative agency, that would interfere with the Company, any use of such employee’s best efforts to promote the interest of the Company or the Subsidiary or any Owned Entity) or Proprietary Assets infringes or misappropriates any rights related to or arising out of Proprietary Assets of any Person. Neither the Company nor any Subsidiary or Owned Entity has received notice to the effect that Proprietary Assets held by any of them are invalid or not subsisting. No other Person is infringing, misappropriating or making any unlawful use of any Proprietary Asset used in or pertaining to would conflict with the business of the Company or any Subsidiary or Owned Entityas proposed to be conducted. (c) The Proprietary Assets used in or pertaining to the business of the Company and its Subsidiaries, and the Proprietary Assets licensed to the Owned Entities, when taken together, are sufficient to enable the Company and each of its Subsidiaries to conduct its business in the manner in which such business has been and is being conducted free from liabilities or valid claims of infringement or misappropriation by third parties. Neither the Company nor any of its Subsidiaries or Owned Entities have licensed any of its Proprietary Assets to any Person on an exclusive basis and neither the Company nor any Subsidiary or Owned Entity has entered into any covenant not to compete or contract limiting its ability to sell its products in any market or geographical area or with any Person. (d) All current and former employees of the Company and its Subsidiaries providing technical services, or otherwise having access to confidential information, relating to the Company’s Proprietary Assets have executed and delivered to the Company or such Subsidiary an agreement (containing no material exceptions to or exclusions from the scope of its coverage relevant to the Company’s business) that is substantially the same as to the forms of standard employee agreement previously delivered to the Purchaser, and all current and former consultants and independent contractors to the Company or its Subsidiaries providing technical services relating to the Company’s or its Subsidiaries’ Proprietary Assets have executed and delivered to the Company or such Subsidiary, an agreement (containing no material 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 forms of standard employee agreement previously delivered to the Purchaser. (e) To the extent that any Proprietary Asset has been developed or created independently or jointly by any Person other than the Company or any Subsidiary or Owned Entity for which the Company or any Subsidiary or Owned Entity has directly or indirectly, provided consideration for such development or creation, the Company or the relevant Subsidiary or Owned Entity has a written agreement with such Person with respect thereto, and the Company or relevant Subsidiary or Owned Entity thereby has obtained ownership of, and is the exclusive owner of, all such Proprietary Assets therein by operation of law or by valid assignment, and has required the waiver of all non-assignable rights. (f) Other than standard Proceedings involving applications pending before the U.S. Patent and Trademark office or foreign patent offices, no Proprietary Assets, product, technology, or service of the Company or any Subsidiary or Owned Entity is subject to any Proceeding or outstanding decree, order, judgment or settlement agreement or stipulation that restricts in any manner the use, transfer or licensing thereof by the Company or any Subsidiary or Owned Entity, or may affect the validity, use or enforceability of such Proprietary Asset, product technology or service. (g) Section 3.12(g) of the Disclosure Schedule lists separately, by entity, all material Proprietary Assets owned by, or filed in the name of, the Company, each of its Subsidiaries and each of its Owned Entities that have been registered in or with, issued by, or for which an application for registration has been filed in or with, a federal, state or other governmental office or agency of appropriate jurisdiction.

Proprietary Assets. (a) The Company has full title and each Subsidiary and Owned Entity (i) owns ownership of or has sufficient rights licenses to all patents, patent applications, trademarks, service marks, trade names, copyrights, moral rights, mask works, trade secrets, compositions of matter formulas, designs, information, proprietary rights, know-how and processes ("Proprietary Assets used in or Assets") necessary for its business as now conducted and, except for such items as have yet to be conceived or developed by the Company or that are expected to be generally commercially available for licensing on reasonable terms from third parties, as currently or proposed to be conducted, free without any conflict with or infringement of the rights of others, and clear of all Liens, other than Permitted Liens; and (ii) the Company has taken reasonable and customary measures and precautions in the future will use its best efforts to take, all steps reasonably necessary to protect preserve its legal rights in, and maintain the confidentiality and secrecy of its Proprietary Assets (except the Proprietary Assets the value of which would be unimpaired by public disclosure) and otherwise to maintain and protect the value of of, all its Proprietary Assets. All necessary registrationThere are no outstanding options, maintenance and renewal fees previously due in connection licenses, or agreements of any kind relating to the Proprietary Assets, nor is the Company bound by or a party to any options, licenses or agreements of any kind with any registered respect to the Proprietary Assets have been paid of any other person or entity, except for commercially available end- user, object code, internal-use software license and all necessary documents and certificates previously due in connection support/maintenance agreements with respect to such Proprietary Assets have been filed with the relevant patent, copyright, trademark proprietary rights of any other person or entity. The Company is not obligated to pay any royalties or other authorities in payments to third parties with respect to the United States marketing, sale, distribution, manufacture, license or foreign jurisdictionsuse of any Proprietary Asset or any other proprietary rights. To the best of the Company's knowledge, as the case may be, for the purposes of maintaining such Proprietary Assets. (b) Except where such infringement, misappropriation or unlawful use Company has not had violated or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, the operation of the business of the Company and each of its Subsidiaries or Owned Entities (i) has not infringed or misappropriated, does not infringe or misappropriateinfringed, and will is not infringe currently violating or misappropriate as a result of the execution, delivery and performance of this Agreement and the other Transaction Documents, or the issuance of any of the Perseus Securities as contemplated hereby or in any other Transaction Document, infringing any Proprietary Asset of any Person, (ii) does other person or entity. The Company has not violate received any right of any Person (including any right to privacy or publicity), and (iii) does not materially breach any contract related to any Proprietary Asset. Neither communications alleging that the Company nor any Subsidiary or Owned Entity has received notice from any Person claiming that such operation or any actof its employees has violated or infringed or, by conducting its business as proposed, would violate or infringe any product, technology or service (including products, technology or services currently under development by of the Company, any Subsidiary or any Owned Entity) or Proprietary Assets infringes or misappropriates any rights related to or arising out of Proprietary Assets of any Personother person or entity. Neither To the best of its knowledge with respect to its Proprietary Assets the Company nor has not violated or, by conducting its business as currently proposed, would not violate, any Subsidiary or Owned Entity has received notice to of the effect that Proprietary Assets held by of any other person or entity. The Company is not aware that any of them are invalid its employees is obligated under any contract (including licenses, covenants or not subsisting. No commitments of any nature) or other Person is infringingagreement, misappropriating or making subject to any unlawful judgment, decree or order of any court or administrative agency, or any other restriction that would materially interfere with the use of any Proprietary Asset used in his or pertaining her best efforts to carry out his or her duties for the business Company or to promote the interests of the Company or any Subsidiary or Owned Entity. (c) The Proprietary Assets used in or pertaining that would conflict with the Company's business as proposed to the business of the Company and its Subsidiaries, and the Proprietary Assets licensed to the Owned Entities, when taken together, are sufficient to enable the Company and each of its Subsidiaries to conduct its business in the manner in which such business has been and is being conducted free from liabilities or valid claims of infringement or misappropriation by third partiesbe conducted. Neither the execution nor delivery of this Agreement, the Ancillary Agreements, nor the carrying on of the Company's business by the employees of the Company, nor the conduct of the Company's business as proposed, will, to the best of the Company's knowledge, conflict with or result in a breach of the terms, conditions or provisions of, or constitute a material default under, any contract, covenant or instrument under which any of such employees is now obligated. The Company nor does not believe it is or will be necessary to utilize any inventions of any of its Subsidiaries employees (or Owned Entities have licensed people it currently intends to hire) made prior to their employment by the Company. To the best of the Company's knowledge, at no time during the conception or reduction of any of its the Company's Proprietary Assets to practice was any Person on an exclusive basis and neither the Company nor developer, inventor or other contributor to such patents operating under any Subsidiary grants from any governmental entity or Owned Entity has entered into any covenant not to compete agency or contract limiting its ability to sell its products in any market or geographical area or with any Person. (d) All current and former employees of the Company and its Subsidiaries providing technical servicesprivate source, or otherwise having access to confidential information, relating to the Company’s Proprietary Assets have executed and delivered to the Company or such Subsidiary an agreement (containing no material exceptions to or exclusions from the scope of its coverage relevant to the Company’s business) that is substantially the same as to the forms of standard employee agreement previously delivered to the Purchaser, and all current and former consultants and independent contractors to the Company or its Subsidiaries providing technical services relating to the Company’s or its Subsidiaries’ Proprietary Assets have executed and delivered to the Company or such Subsidiary, an agreement (containing no material 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 forms of standard employee agreement previously delivered to the Purchaser. (e) To the extent that any Proprietary Asset has been developed or created independently or jointly performing research sponsored by any Person other than the Company governmental entity or any Subsidiary agency or Owned Entity for which the Company private source or any Subsidiary or Owned Entity has directly or indirectly, provided consideration for such development or creation, the Company or the relevant Subsidiary or Owned Entity has a written agreement with such Person with respect thereto, and the Company or relevant Subsidiary or Owned Entity thereby has obtained ownership of, and is the exclusive owner of, all such Proprietary Assets therein by operation of law or by valid assignment, and has required the waiver of all non-assignable rights. (f) Other than standard Proceedings involving applications pending before the U.S. Patent and Trademark office or foreign patent offices, no Proprietary Assets, product, technology, or service of the Company or any Subsidiary or Owned Entity is subject to any Proceeding or outstanding decree, order, judgment or settlement employment agreement or stipulation invention assignment or nondisclosure agreement or other obligation with any third party that restricts in any manner the use, transfer or licensing thereof by the Company or any Subsidiary or Owned Entity, or may could adversely affect the validity, use or enforceability of Company's rights in such Proprietary Asset, product technology or serviceAssets. (g) Section 3.12(g) of the Disclosure Schedule lists separately, by entity, all material Proprietary Assets owned by, or filed in the name of, the Company, each of its Subsidiaries and each of its Owned Entities that have been registered in or with, issued by, or for which an application for registration has been filed in or with, a federal, state or other governmental office or agency of appropriate jurisdiction.

Proprietary Assets. (ai) The Company and each Subsidiary and Owned Entity of its subsidiaries (iA) owns or has sufficient rights to all Proprietary Assets used in or necessary for its business as currently or conducted, and as proposed to be conductedconducted as described in the Company Reports, free and clear of all Liens, material liens and other encumbrances other than Permitted Liens; and (iiB) has taken reasonable and customary measures and precautions necessary to protect and maintain the confidentiality and secrecy of all its Proprietary Assets (except the Proprietary Assets the whose value of which would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all its Proprietary Assets. All necessary registration(As a point of clarification, maintenance the representations and renewal fees previously due warranties set forth in connection with any registered Proprietary Assets have been paid this Section 2(k)(i) shall not be deemed to expand the scope of the representations and all necessary documents and certificates previously due warranties set forth in connection with such 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 such Proprietary AssetsSection 2(k)(ii).) (bii) Except where such infringement, misappropriation or unlawful use has not had or would could not reasonably be expected to have, individually or in the aggregate, have a Material Adverse Effect, to the operation of the business of the Company and each of its Subsidiaries or Owned Entities (i) has not infringed or misappropriatedCompany's knowledge, does not infringe or misappropriate, and will not infringe or misappropriate as a result of the execution, delivery and performance of this Agreement and the other Transaction Documents, or the issuance of any of the Perseus Securities as contemplated hereby or in any other Transaction Document, any Proprietary Asset of any Person, (ii) does not violate any right of any Person (including any right to privacy or publicity), and (iii) does not materially breach any contract related to any Proprietary Asset. Neither neither the Company nor any Subsidiary or Owned Entity has received notice from any Person claiming that such operation or any act, any product, technology or service (including products, technology or services currently under development by the Company, any Subsidiary or any Owned Entity) or Proprietary Assets infringes or misappropriates any rights related to or arising out of Proprietary Assets of any Person. Neither the Company nor any Subsidiary or Owned Entity has received notice to the effect that Proprietary Assets held by any of them are invalid or not subsisting. No other Person its subsidiaries is infringing, misappropriating or making any unlawful use of or has at any time infringed, misappropriated or made any unlawful use of, any Proprietary Asset owned or used by any other person or entity. No claims or notices (in writing or otherwise) with respect to Proprietary Assets have been communicated to the Company (A) to the effect that the manufacture, sale, license or use of any Proprietary Assets as now used or currently offered or proposed for use or sale by the Company or any of its subsidiaries 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 (B) challenging the ownership or validity of any of the rights of either the Company or any of its subsidiaries to or interest in such Proprietary Assets. Neither the Company nor any of its subsidiaries has received notice to the effect that any patents or registered trademarks, service marks or registered copyrights held by either them are invalid or not subsisting except for failures to be valid and subsisting that would not reasonably be expected to have a Material Adverse Effect. To the Company's knowledge, no other person or entity is infringing, misappropriating or making any unlawful use of, and no Proprietary Asset owned or used by any other person or entity infringes or conflicts with, any Proprietary Asset used in or pertaining to the business of the Company or any Subsidiary or Owned Entityof its subsidiaries. (ciii) The Proprietary Assets used in or pertaining to the business of the Company and its Subsidiaries, and the Proprietary Assets licensed to the Owned Entities, when taken together, subsidiaries are sufficient in the Company's reasonable judgment to enable the Company and each of its Subsidiaries subsidiaries to conduct its business in the manner in which such business has been and is being conducted and, to the Company's knowledge, free from liabilities or valid claims of infringement or misappropriation by third parties. Neither the Company nor any of its Subsidiaries or Owned Entities subsidiaries have licensed any of its Proprietary Assets to any Person person or entity on an exclusive basis and neither the Company nor any Subsidiary or Owned Entity has they have not entered into any covenant not to compete or contract limiting its their ability to sell its their products in any market or geographical area or with any Personperson or entity other than restrictions in a license agreement that are typical of those granted in the ordinary course of business in its industry. (div) All current and former employees of the Company and its Subsidiaries providing technical services, or otherwise having access to confidential information, relating to the Company’s 's Proprietary Assets have executed and delivered to the Company or such Subsidiary an agreement (containing no material exceptions to or exclusions from the scope of its coverage relevant to the Company’s 's business) that is substantially the same as identical to the forms form of standard employee agreement the Employee Nondisclosure and Invention Assignment Agreement previously delivered to the PurchaserPerseus, and all current and former consultants and independent contractors to the Company or its Subsidiaries providing technical services relating to the Company’s or its Subsidiaries’ 's Proprietary Assets have executed and delivered to the Company or such Subsidiary, an agreement (containing no material exceptions to or exclusions from the scope of its coverage relevant to the Company’s 's business), the material provisions of which are in substance as protective to the Company as the terms of the forms form of standard employee agreement Employee Agreement previously delivered to the PurchaserPerseus. (e) To the extent that any Proprietary Asset has been developed or created independently or jointly by any Person other than the Company or any Subsidiary or Owned Entity for which the Company or any Subsidiary or Owned Entity has directly or indirectly, provided consideration for such development or creation, the Company or the relevant Subsidiary or Owned Entity has a written agreement with such Person with respect thereto, and the Company or relevant Subsidiary or Owned Entity thereby has obtained ownership of, and is the exclusive owner of, all such Proprietary Assets therein by operation of law or by valid assignment, and has required the waiver of all non-assignable rights. (f) Other than standard Proceedings involving applications pending before the U.S. Patent and Trademark office or foreign patent offices, no Proprietary Assets, product, technology, or service of the Company or any Subsidiary or Owned Entity is subject to any Proceeding or outstanding decree, order, judgment or settlement agreement or stipulation that restricts in any manner the use, transfer or licensing thereof by the Company or any Subsidiary or Owned Entity, or may affect the validity, use or enforceability of such Proprietary Asset, product technology or service. (gv) Section 3.12(g2(k) of the Disclosure Schedule lists separately, by entity, all material Proprietary Assets owned by, or filed in of the name of, the Company, each of its Subsidiaries Company and each of its Owned Entities subsidiaries and all other Proprietary Assets of the Company and each of its subsidiaries that have been registered in or with, issued by, or for which an application for registration has been filed in or with, a federal, state or other governmental office or agency of appropriate jurisdiction. As used herein, "Proprietary Assets" means: (A) any 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, source code, invention, design, blueprint, engineering drawing, proprietary product, technology, proprietary right or other intellectual property right or intangible asset; and (B) any right to use or exploit any of the foregoing.

Proprietary Assets. (a) The Section 4.9 of the Disclosure Schedule sets forth each registered ----------- or material Proprietary Asset that is owned by or licensed to the Company and each Subsidiary and Owned Entity (i) owns or has sufficient rights to all Proprietary Assets used in or necessary for its business as currently or proposed to be conducted, free and clear of all Liens, other than Permitted Liens; and (ii) has taken reasonable and customary measures and precautions necessary to protect and maintain the confidentiality and secrecy any of its Proprietary Assets (except the Proprietary Assets the value of which would be unimpaired by public disclosure) and subsidiaries or that is otherwise to maintain and protect the value of its Proprietary Assets. All necessary registration, maintenance and renewal fees previously due used in connection with any registered Proprietary Assets have been paid and all necessary documents and certificates previously due in connection with such 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 such Proprietary Assets. (b) Except where such infringement, misappropriation or unlawful use has not had or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, the operation of the business of the Company and each of its Subsidiaries or Owned Entities (i) has not infringed or misappropriated, does not infringe or misappropriate, and will not infringe or misappropriate as a result of the execution, delivery and performance of this Agreement and the other Transaction Documents, or the issuance of any of the Perseus Securities as contemplated hereby or in any other Transaction Document, any Proprietary Asset of any Person, (ii) does not violate any right of any Person (including any right to privacy or publicity), and (iii) does not materially breach any contract related to any Proprietary Asset. Neither the Company nor any Subsidiary or Owned Entity has received notice from any Person claiming that such operation or any act, any product, technology or service (including products, technology or services currently under development by the Company, any Subsidiary or any Owned Entity) or Proprietary Assets infringes or misappropriates any rights related to or arising out of Proprietary Assets of any Person. Neither the Company nor any Subsidiary or Owned Entity has received notice to the effect that Proprietary Assets held by any of them are invalid or not subsisting. No other Person is infringing, misappropriating or making any unlawful use of any Proprietary Asset used in or pertaining to the business of the Company or any Subsidiary of its subsidiaries. (b) The Company and its subsidiaries have taken all reasonable measures and precautions necessary or Owned Entity.appropriate to protect the confidentiality and value of each Proprietary Asset identified or required to be identified in Section 4.9 of the Disclosure Schedule. ----------- (c) The All current and former consultants of the Company or any of its subsidiaries involved in the development of Proprietary Assets used have executed an employee or consultant proprietary information and inventions agreement substantially in the form attached as Exhibit C hereto. To the Knowledge --------- of the Company, no current or pertaining former employee or consultant is in violation thereof. The Company does not believe it is or will be necessary to utilize in the conduct of its business as presently conducted any inventions, trade secrets or proprietary information of owned by any employee of Company or any of its subsidiaries. (d) Each of the Company and its Subsidiariessubsidiaries has conducted its business without infringement or claim of infringement of any license, patent, copyright, service xxxx, trademark, trade name, trade secret or other intellectual property right of others. The Company and its subsidiaries are not infringing and have not at any time infringed or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement of any Proprietary Asset owned or used by any other Person. To the Company's Knowledge, no Person is infringing, and no Proprietary Asset owned or used by any other Person infringes or conflicts with, any Proprietary Asset owned or used by Company or any of its subsidiaries. (e) There are no royalties, honoraria, fees or other payments payable by the Company or any of its subsidiaries to any person by reason of the ownership, use, license, sale or disposition of any Proprietary Asset of the Company. (f) The Proprietary Assets licensed to identified in Section 4.9 of the Owned Entities, when taken together, are sufficient Disclosure ----------- Schedule constitute all of the material Proprietary Assets necessary to enable each of the Company and each of its Subsidiaries subsidiaries to conduct its business in the manner in which such its business has been is currently being conducted, and is being conducted free from liabilities or valid claims of infringement or misappropriation by third parties. Neither the Company nor any of its Subsidiaries or Owned Entities have licensed any of its Proprietary Assets to any Person on an exclusive basis and neither the Company nor any Subsidiary or Owned Entity has entered into any covenant not to compete or contract limiting its ability to sell its products in any market or geographical area or with any Person. (d) All current and former employees each of the Company and any of its Subsidiaries providing technical servicessubsidiaries owns, or otherwise having access has the right to confidential information, relating to the Company’s Proprietary Assets have executed and delivered to the Company or such Subsidiary an agreement (containing no material exceptions to or exclusions from the scope of its coverage relevant to the Company’s business) that is substantially the same as to the forms of standard employee agreement previously delivered to the Purchaseruse, and all current and former consultants and independent contractors to the Company or its Subsidiaries providing technical services relating license others to the Company’s or its Subsidiaries’ Proprietary Assets have executed and delivered to the Company or such Subsidiary, an agreement (containing no material 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 forms of standard employee agreement previously delivered to the Purchaser. (e) To the extent that any Proprietary Asset has been developed or created independently or jointly by any Person other than the Company or any Subsidiary or Owned Entity for which the Company or any Subsidiary or Owned Entity has directly or indirectly, provided consideration for such development or creation, the Company or the relevant Subsidiary or Owned Entity has a written agreement with such Person with respect thereto, and the Company or relevant Subsidiary or Owned Entity thereby has obtained ownership of, and is the exclusive owner ofuse, all such Proprietary Assets therein by operation of law Assets. Such ownership or by valid assignmentright to use, and has required the waiver of all non-assignable rights. (f) Other than standard Proceedings involving applications pending before the U.S. Patent and Trademark office or foreign patent officesability to license others to use, no Proprietary Assets, product, technologyare, or service with respect to patents to the Company's Knowledge are, free and clear of, and without liability under, all claims and right of the Company or any Subsidiary or Owned Entity is subject to any Proceeding or outstanding decree, order, judgment or settlement agreement or stipulation that restricts in any manner the use, transfer or licensing thereof by the Company or any Subsidiary or Owned Entity, or may affect the validity, use or enforceability of such Proprietary Asset, product technology or servicethird parties. (g) Section 3.12(g) of The Company has not licensed the Disclosure Schedule lists separatelyright to make, by entity, all material Proprietary Assets owned by, use or filed in the name of, the Company, each sell any of its Subsidiaries and each of its Owned Entities that have been registered in or with, issued by, or for which an application for registration has been filed in or with, a federal, state or other governmental office or agency of appropriate jurisdictionproducts to any third party.

Proprietary Assets. (a) The Company and each Subsidiary and Owned Entity Set forth on Part 3.9(a) of the Disclosure Schedule is a list of all (i) patented or registered Proprietary Assets and pending applications for the registration of Proprietary Assets, in each case owned by the Company relating to the Business; (ii) trade or -19- 20 corporate names used by the Company relating to the Business; (iii) material computer software and material third party databases created or used by the Company related to the Business; (iv) material unregistered trademarks owned or used by the Company relating to the Company; and (v) material licenses and other rights granted by the Company to any third party or material licenses granted by any third party to the Company, in each case with respect to Proprietary Assets relating to the Business. (b) Except as set forth on Part 3.9(b) of the Disclosure Schedule, (i) the Company owns all right, title and interest in or has sufficient rights a valid license from a third party to use all Proprietary Assets used in or reasonably necessary for its business as currently or proposed to be conductedthe operation of the Business, free and clear of all Liensany Encumbrances or adverse claims; (ii) no claim by any third party contesting the validity, other than Permitted Liensenforceability, ownership or use of any of the Proprietary Assets owned or used by the Company relating to the Business has been made, is currently outstanding or is threatened, and there are no grounds for the same; (iii) no loss or expiration of any individual Proprietary Assets right or related group of Proprietary Assets rights owned or used by the Company relating to the Business is threatened, pending or foreseeable to Maxtor's Knowledge; (iv) the Company has not received any notice of, and is not aware of any facts which indicate a likelihood of, any infringement or misappropriation by, or conflict with, any third party with respect to the Proprietary Asset owned or used by the Company relating to the Business; (v) the Company has not infringed, misappropriated or otherwise conflicted with any Proprietary Asset of any third party, to Maxtor's Knowledge, nor received any claims of such infringement, misappropriation or conflict from a third party, and, to Maxtor's Knowledge, there is no infringement, misappropriation or conflict which will occur as a result of the continued operation of the Business; and (iivi) the Company has taken reasonable and customary measures and precautions all action reasonably necessary to protect and maintain the confidentiality and secrecy of its Proprietary Assets (except the Proprietary Assets the value of which would be unimpaired by public disclosure) and otherwise to maintain and protect the value of its Proprietary Assets. All necessary registration, maintenance and renewal fees previously due in connection with any registered Proprietary Assets have been paid relating to the Business owned or used by it and all necessary documents will continue to reasonably maintain and certificates previously due in connection with protect such Proprietary Assets have been filed with prior to the relevant patent, copyright, trademark Closing so as not to affect adversely the validity or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes enforceability of maintaining such Proprietary Assets. (bc) Except where such infringementWithout limiting the foregoing, misappropriation or unlawful use has not had or would not reasonably be expected and except for Maxtor Proprietary Assets which are licensed to have, individually or in the aggregate, a Material Adverse Effect, the operation of the business of and used by the Company and each to provide services to Maxtor, none of its Subsidiaries or Owned Entities (i) has not infringed or misappropriated, does not infringe or misappropriate, and will not infringe or misappropriate as a result of the execution, delivery and performance of this Agreement and the other Transaction Documents, or the issuance of any of the Perseus Securities as contemplated hereby or in any other Transaction Document, any Proprietary Asset of any Person, (ii) does not violate any right of any Person (including any right to privacy or publicity), and (iii) does not materially breach any contract related to any Proprietary Asset. Neither the Company nor any Subsidiary or Owned Entity has received notice from any Person claiming that such operation or any act, any product, technology or service (including products, technology or services currently under development by the Company, any Subsidiary or any Owned Entity) or Proprietary Assets infringes or misappropriates any rights related to or arising out of Proprietary Assets of any Person. Neither the Company nor any Subsidiary or Owned Entity has received notice to the effect that Proprietary Assets held by any of them are invalid or not subsisting. No other Person is infringing, misappropriating or making any unlawful use of any Proprietary Asset used in or pertaining to the business of the Company or any Subsidiary or Owned Entity. (c) The Proprietary Assets used in or pertaining to the business of the Company and its Subsidiaries, and the Proprietary Assets licensed to the Owned Entities, when taken together, are sufficient necessary to enable the Company and each of its Subsidiaries to conduct its business the Business is licensed to or from Maxtor, nor does Maxtor have any ownership interest in or claim thereto, except as set forth on Part 3.9(c) of the manner in Disclosure Schedule, all of which such business has been and is being conducted free from liabilities or valid claims of infringement or misappropriation by third parties. Neither interest will be transferred to the Company nor any of its Subsidiaries or Owned Entities have licensed any of its Proprietary Assets to any Person on an exclusive basis and neither the Company nor any Subsidiary or Owned Entity has entered into any covenant not to compete or contract limiting its ability to sell its products in any market or geographical area or with any PersonCompany. (d) All current and former employees of the Company and its Subsidiaries providing technical services, or otherwise having access to confidential information, relating to the Company’s Proprietary Assets have executed and delivered to the Company or such Subsidiary an agreement (containing no material exceptions to or exclusions from the scope of its coverage relevant to the Company’s business) that is substantially the same Except as to the forms of standard employee agreement previously delivered to the Purchaser, and all current and former consultants and independent contractors to the Company or its Subsidiaries providing technical services relating to the Company’s or its Subsidiaries’ Proprietary Assets have executed and delivered to the Company or such Subsidiary, an agreement (containing no material exceptions to or exclusions from the scope of its coverage relevant to the Company’s business), the material provisions of which are set forth in substance as protective to the Company as the terms of the forms of standard employee agreement previously delivered to the Purchaser. (e) To the extent that any Proprietary Asset has been developed or created independently or jointly by any Person other than the Company or any Subsidiary or Owned Entity for which the Company or any Subsidiary or Owned Entity has directly or indirectly, provided consideration for such development or creation, the Company or the relevant Subsidiary or Owned Entity has a written agreement with such Person with respect thereto, and the Company or relevant Subsidiary or Owned Entity thereby has obtained ownership of, and is the exclusive owner of, all such Proprietary Assets therein by operation of law or by valid assignment, and has required the waiver of all non-assignable rights. (f) Other than standard Proceedings involving applications pending before the U.S. Patent and Trademark office or foreign patent offices, no Proprietary Assets, product, technology, or service of the Company or any Subsidiary or Owned Entity is subject to any Proceeding or outstanding decree, order, judgment or settlement agreement or stipulation that restricts in any manner the use, transfer or licensing thereof by the Company or any Subsidiary or Owned Entity, or may affect the validity, use or enforceability of such Proprietary Asset, product technology or service. (g) Section 3.12(gPart 3.9(d) of the Disclosure Schedule lists separatelySchedule, by entity, all material Proprietary Assets owned by, or filed each current and former employee of the Company has executed a non-disclosure and invention assignment agreement in the name of, Company's current standard form thereof or in substantially similar form. Copies of all such agreements are in the possession of the Company, each of its Subsidiaries and each of its Owned Entities that have been registered in or with, issued by, or for which an application for registration has been filed in or with, a federal, state or other governmental office or agency of appropriate jurisdiction.

Proprietary Assets. (a) The Company and Schedule 3.10 identifies each Subsidiary and Owned Entity (i) owns or has sufficient rights to all Proprietary Assets used in or necessary for its business as currently or proposed to be conducted, free and clear of all Liens, other than Permitted Liens; and (ii) has taken reasonable and customary measures and precautions necessary to protect and maintain the confidentiality and secrecy of its Proprietary Assets (except the Proprietary Assets the value of which would be unimpaired by public disclosure) and otherwise to maintain and protect the value of its Proprietary Assets. All necessary registration, maintenance and renewal fees previously due in connection with any registered Proprietary Assets have been paid and all necessary documents and certificates previously due in connection with such 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 such Proprietary Assets. (b) Except where such infringement, misappropriation or unlawful use has not had or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, the operation of the business of the Company and each of its Subsidiaries or Owned Entities (i) has not infringed or misappropriated, does not infringe or misappropriate, and will not infringe or misappropriate as a result of the execution, delivery and performance of this Agreement and the other Transaction Documents, or the issuance of any of the Perseus Securities as contemplated hereby or in any other Transaction Document, any Proprietary Asset of any Person, (ii) does not violate any right of any Person (including any right owned by or licensed to privacy or publicity), and (iii) does not materially breach any contract related to any Proprietary Asset. Neither the Company nor any Subsidiary or Owned Entity has received notice from any Person claiming Rogue Wave that such operation or any act, any product, technology or service (including products, technology or services currently under development by the Company, any Subsidiary or any Owned Entity) or Proprietary Assets infringes or misappropriates any rights related to or arising out of Proprietary Assets of any Person. Neither the Company nor any Subsidiary or Owned Entity has received notice to the effect that Proprietary Assets held by any of them are invalid or not subsisting. No other Person is infringing, misappropriating or making any unlawful use of any Proprietary Asset used in or pertaining material to the business of Rogue Wave, including, without limitation, the Company title and a brief description of each Rogue Wave software program developed by or any Subsidiary on behalf of Rogue Wave or Owned Entity. under development by or on behalf of Rogue Wave (cthe "Rogue Wave Software") The and the release date or expected release date of such Rogue Wave Software, and such Proprietary Assets used in or pertaining to the business constitute all of the Company and its Subsidiaries, and the Proprietary Assets licensed to the Owned Entities, when taken together, are sufficient necessary or useful to enable the Company and each of its Subsidiaries Rogue Wave to conduct its business in the manner currently being conducted and in the manner in which its business is proposed to be conducted. (b) Rogue Wave has taken the measures and precautions necessary to protect the confidentiality and value of each Proprietary Asset identified or required to be identified on Schedule 3.10, and Schedule 3.10 specifies each jurisdiction in which issuance or registration of any such business Proprietary Assets has been filed and is being conducted free from liabilities applicable registration or valid claims application numbers. (c) Rogue Wave has not received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement or misappropriation by third parties. Neither of, and, to the Company nor any best of its Subsidiaries knowledge, presently is not infringing and has not at any time infringed, any Proprietary Asset owned or Owned Entities have licensed used by any other person or entity. To the best of its Rogue Wave's knowledge, no other person or entity is infringing, and no Proprietary Assets to Asset owned or used by any Person on an exclusive basis and neither the Company nor other person or entity infringes or conflicts with, any Subsidiary Proprietary Asset owned or Owned Entity has entered into any covenant not to compete or contract limiting its ability to sell its products in any market or geographical area or with any Personused by Rogue Wave. (d) All current To the extent any Proprietary Asset, including, without limitation, any Rogue Wave Software, has been licensed or developed, in whole or in part, from or by any consultant or other third party, a description of such Proprietary Asset and former employees of the Company and its Subsidiaries providing technical servicesthird party relationship, or otherwise having access to confidential informationincluding information regarding any Rogue Wave Material Contract with respect thereto, relating to the Company’s Proprietary Assets have executed and delivered to the Company or such Subsidiary an agreement (containing no material exceptions to or exclusions from the scope of its coverage relevant to the Company’s business) that is substantially the same as to the forms of standard employee agreement previously delivered to the Purchaser, and all current and former consultants and independent contractors to the Company or its Subsidiaries providing technical services relating to the Company’s or its Subsidiaries’ Proprietary Assets have executed and delivered to the Company or such Subsidiary, an agreement (containing no material 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 forms of standard employee agreement previously delivered to the Purchaserset forth on Schedule 3.10. (e) To Schedule 3.6(a) identifies all license, distribution or agreements of any type related to the extent that Proprietary Assets, including, without limitation, each Rogue Wave Software, including, all agreements related to (i) the license, assignment or other transfer of any Proprietary Asset has been developed or created independently or jointly by any Person patent, copyright, trademark, trade secret and other than the Company or any Subsidiary or Owned Entity for which the Company or any Subsidiary or Owned Entity has directly or indirectly, provided consideration for such development or creation, the Company or the relevant Subsidiary or Owned Entity has a written agreement with such Person with respect intellectual property rights thereto, and (ii) the Company modification, reproduction, license, sublicense, distribution or relevant Subsidiary or Owned Entity thereby has obtained ownership of, and is the exclusive owner of, all such Proprietary Assets therein by operation marketing of law or by valid assignment, and has required the waiver of all non-assignable rights. (f) Other than standard Proceedings involving applications pending before the U.S. Patent and Trademark office or foreign patent offices, no Proprietary Assets, product, technology, or service of the Company or any Subsidiary or Owned Entity is subject to any Proceeding or outstanding decree, order, judgment or settlement agreement or stipulation that restricts in any manner the use, transfer or licensing thereof by the Company or any Subsidiary or Owned Entity, or may affect the validity, use or enforceability of such Proprietary Asset, product technology or service. (g) Section 3.12(g) including, without limitation, each type of Rogue Wave Software. There are no oral agreements related to any of the Disclosure foregoing. Any obligation to pay royalties under any of such agreements is set forth on Schedule lists separately, by entity, all material Proprietary Assets owned by, or filed in the name of, the Company, each of its Subsidiaries and each of its Owned Entities that have been registered in or with, issued by, or for which an application for registration has been filed in or with, a federal, state or other governmental office or agency of appropriate jurisdiction3.6(a).

Proprietary Assets. (a) The Company and each Subsidiary and Owned Entity (i) owns or has sufficient rights to all Proprietary Assets used in or necessary for its business Except as currently or proposed to be conducted, free and clear of all Liens, other than Permitted Liens; and (ii) has taken reasonable and customary measures and precautions necessary to protect and maintain the confidentiality and secrecy of its Proprietary Assets (except the Proprietary Assets the value of which would be unimpaired by public disclosure) and otherwise to maintain and protect the value of its Proprietary Assets. All necessary registration, maintenance and renewal fees previously due in connection with any registered Proprietary Assets have been paid and all necessary documents and certificates previously due in connection with such 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 such Proprietary Assets. (b) Except where such infringement, misappropriation or unlawful use has not had or would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, the operation of the business of : (a) the Company and each of the Company Subsidiaries owns, or is licensed to use (in each case, free and clear of any Liens), any Intellectual Property (as defined below) necessary for the conduct of its business as currently conducted; (b) to the knowledge of the Company, the use of any Intellectual Property by the Company and the Company Subsidiaries or Owned Entities (i) has not infringed or misappropriated, does not infringe on or misappropriate, and will not infringe or misappropriate as a result of otherwise violate the execution, delivery and performance of this Agreement and the other Transaction Documents, or the issuance of any of the Perseus Securities as contemplated hereby or in any other Transaction Document, any Proprietary Asset of any Person, (ii) does not violate any right rights of any Person (including and is in accordance with any applicable license pursuant to which the Company or any Company Subsidiary acquired the right to privacy or publicity), and use any Intellectual Property; (iiic) does not materially breach any contract related to any Proprietary Asset. Neither the Company nor any Subsidiary or Owned Entity has received notice from any Person claiming that such operation or any act, any product, technology or service (including products, technology or services currently under development by knowledge of the Company, no person is challenging, infringing on or otherwise violating any Subsidiary or any Owned Entity) or Proprietary Assets infringes or misappropriates any rights related to or arising out of Proprietary Assets of any Person. Neither the Company nor any Subsidiary or Owned Entity has received notice to the effect that Proprietary Assets held by any of them are invalid or not subsisting. No other Person is infringing, misappropriating or making any unlawful use of any Proprietary Asset used in or pertaining to the business right of the Company or any Subsidiary or Owned Entity. (c) The Proprietary Assets used in or pertaining to the business of the Company and its Subsidiaries, and the Proprietary Assets Subsidiaries with respect to any Intellectual Property owned by and/or licensed to the Owned Entities, when taken together, are sufficient to enable the Company or any Company Subsidiaries; and each of its Subsidiaries to conduct its business in the manner in which such business has been and is being conducted free from liabilities or valid claims of infringement or misappropriation by third parties. Neither the Company nor any of its Subsidiaries or Owned Entities have licensed any of its Proprietary Assets to any Person on an exclusive basis and (d) neither the Company nor any Subsidiary or Owned Entity Company Subsidiaries has entered into received any covenant not written notice of any pending claim with respect to compete or contract limiting its ability to sell its products in any market or geographical area or with any Person. (d) All current and former employees of Intellectual Property used by the Company and any Company Subsidiaries and to its Subsidiaries providing technical services, or otherwise having access to confidential information, relating to the Company’s Proprietary Assets have executed and delivered to the Company or such Subsidiary an agreement (containing knowledge no material exceptions to or exclusions from the scope of its coverage relevant to the Company’s business) that is substantially the same as to the forms of standard employee agreement previously delivered to the Purchaser, and all current and former consultants and independent contractors to the Company or its Subsidiaries providing technical services relating to the Company’s or its Subsidiaries’ Proprietary Assets have executed and delivered to the Company or such Subsidiary, an agreement (containing no material 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 forms of standard employee agreement previously delivered to the Purchaser. (e) To the extent that any Proprietary Asset has been developed or created independently or jointly by any Person other than the Company or any Subsidiary or Owned Entity for which the Company or any Subsidiary or Owned Entity has directly or indirectly, provided consideration for such development or creation, the Company or the relevant Subsidiary or Owned Entity has a written agreement with such Person with respect thereto, and the Company or relevant Subsidiary or Owned Entity thereby has obtained ownership of, and is the exclusive owner of, all such Proprietary Assets therein by operation of law or by valid assignment, and has required the waiver of all non-assignable rights. (f) Other than standard Proceedings involving applications pending before the U.S. Patent and Trademark office or foreign patent offices, no Proprietary Assets, product, technology, or service of the Company or any Subsidiary or Owned Entity is subject to any Proceeding or outstanding decree, order, judgment or settlement agreement or stipulation that restricts in any manner the use, transfer or licensing thereof Intellectual Property owned and/or licensed by the Company or any Company Subsidiary is being used or Owned Entityenforced in a manner that would result in the abandonment, cancellation or may affect unenforceability of such Intellectual Property. For purposes of this Agreement, "Intellectual Property" means trademarks, service marks, brand names, certification marks, trade dress and the validitygoodwill associated with the foregoing and registrations in any jurisdiction of, and applications in any jurisdiction to register, the foregoing, including any extension, modification or renewal of any such registration or application; inventions, discoveries and ideas, whether patentable or not, in any jurisdiction; patents, applications for patents (including, without limitation, divisions, continuations, continuations in part and renewal applications), and any renewals, extensions or reissues thereof, in any jurisdiction; trade secrets and rights in any jurisdiction to limit the use or enforceability disclosure thereof by any person; copyrights in any jurisdiction; registrations or applications for registration of such Proprietary Assetcopyrights in any jurisdiction, product technology and any renewals or service. (g) Section 3.12(g) extensions thereof; and any claims or causes of action arising out of or relating to any infringement or misappropriation of any of the Disclosure Schedule lists separately, by entity, all material Proprietary Assets owned by, or filed in the name of, the Company, each of its Subsidiaries and each of its Owned Entities that have been registered in or with, issued by, or for which an application for registration has been filed in or with, a federal, state or other governmental office or agency of appropriate jurisdictionforegoing.

Proprietary Assets. (a) The Company Schedule 4.06(a) sets forth a complete and each Subsidiary and Owned Entity accurate list ---------------- (iincluding relevant registration information) owns or has sufficient rights to of all registered Proprietary Assets which are owned or used in by, required for, or necessary for its business as currently material to the Company or proposed to be conducted, free and clear of all Liens, other than Permitted Liens; and (ii) has taken reasonable and customary measures and precautions necessary to protect and maintain the confidentiality and secrecy of its Proprietary Assets (except the Proprietary Assets the value of which would be unimpaired by public disclosure) and otherwise to maintain and protect the value of its Proprietary Assets. All necessary registration, maintenance and renewal fees previously due Company Subsidiaries in connection with any registered Proprietary Assets have been paid the Company's and all necessary documents and certificates previously due in connection with such 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 such Proprietary AssetsCompany Subsidiaries' businesses. (b) Except where such infringementTo the Knowledge of Spray Ventures, misappropriation all Proprietary Assets which are owned or unlawful use has not had used by, required for, or would not reasonably be expected material to havethe Company or the Company Subsidiaries in connection with the Company's and the Company Subsidiaries' businesses, individually including those listed in Schedule 4.06(a) are: ---------------- (i) except for licenses for "off-the-shelf" software, owned solely and exclusively by the Company or in the aggregate, a Material Adverse Effect, the operation of the business one of the Company Subsidiaries; (ii) except pursuant to applicable law, not subject to any limit as to time or any other limitation, right of termination, reassignment or restriction; (iii) valid and each enforceable (and, to the extent registered, in compliance with all Requirements of its Law, including payment of filing, examination and maintenance fees and proofs of working or use), with no past or present default on the part of the Company or the Company Subsidiaries or Owned Entities past or present acquiescence in the activities of third parties that would adversely affect validity or enforceability of such Proprietary Assets; (iiv) has not being infringed or misappropriatedattacked or opposed or the subject of any claim to ownership or compensation, does not infringe or misappropriateby any Person, and will no Person has indicated any intention to infringe, attack or oppose such Proprietary Assets; and (v) not infringe subject to any license, waiver, charge, contingent assignment, agreement, obligation, or misappropriate as any other encumbrance of any sort in favor of a result third party. (c) To the Knowledge of Spray Ventures, no claims or applications have been made against, no notifications in writing or otherwise have been received by, and there are no circumstances in respect of the execution, delivery and performance of this Agreement Company's and the other Transaction DocumentsCompany Subsidiaries' businesses which (notwithstanding any view taken by the Company as to the merits of such claim, application, notification or circumstances) if pursued would affect the issuance of any accuracy of the Perseus Securities as contemplated hereby representations and warranties in Section 4.06(b) above. (d) To the Knowledge of Spray Ventures, the Company and the Company Subsidiaries have conducted their business without infringement or in any other Transaction Document, claim of infringement of any Proprietary Asset of any other Person. Without limiting the foregoing, the Company and the Company Subsidiaries have the right (iipursuant to a written Contract) does not violate any right to use and incorporate into their products the Proprietary Assets of any Person (including any right other Persons, as and to privacy or publicity), the extent the same are currently so used and (iii) does not materially breach any contract related to any Proprietary Assetincorporated. Neither the Company nor any Subsidiary or Owned Entity the Company Subsidiaries has received any notice from any Person claiming that such operation or any act, any product, technology other communication (in writing or service (including products, technology or services currently under development by the Company, any Subsidiary or any Owned Entityotherwise) or Proprietary Assets infringes or misappropriates any rights related to or arising out of Proprietary Assets of any infringement of any Proprietary Asset owned or used by any other Person. Neither To the Company nor any Subsidiary or Owned Entity has received notice to the effect that Proprietary Assets held by any Knowledge of them are invalid or not subsisting. No Spray Ventures, no other Person is infringing, misappropriating and no Proprietary Asset owned or making used by any unlawful use of other Person infringes or conflicts with, any Proprietary Asset owned or used in or pertaining to the business of by the Company or any Subsidiary or Owned Entity. (c) The Proprietary Assets used in or pertaining to the business of the Company and its Subsidiaries, and the Proprietary Assets licensed to the Owned Entities, when taken together, are sufficient to enable the Company and each of its Subsidiaries to conduct its business in the manner in which such business has been and is being conducted free from liabilities or valid claims of infringement or misappropriation by third parties. Neither the Company nor any of its Subsidiaries or Owned Entities have licensed any of its Proprietary Assets to any Person on an exclusive basis and neither the Company nor any Subsidiary or Owned Entity has entered into any covenant not to compete or contract limiting its ability to sell its products in any market or geographical area or with any Person. (d) All current and former employees of the Company and its Subsidiaries providing technical services, or otherwise having access to confidential information, relating to the Company’s Proprietary Assets have executed and delivered to the Company or such Subsidiary an agreement (containing no material exceptions to or exclusions from the scope of its coverage relevant to the Company’s business) that is substantially the same as to the forms of standard employee agreement previously delivered to the Purchaser, and all current and former consultants and independent contractors to the Company or its Subsidiaries providing technical services relating to the Company’s or its Subsidiaries’ Proprietary Assets have executed and delivered to the Company or such Subsidiary, an agreement (containing no material 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 forms of standard employee agreement previously delivered to the Purchaser. (e) To the extent that any Proprietary Asset has been developed or created independently or jointly by any Person other than The Company and the Company Subsidiaries have taken reasonable measures and precautions to protect the confidentiality and value of all Proprietary Assets owned or any Subsidiary or Owned Entity for which the Company or any Subsidiary or Owned Entity has directly or indirectly, provided consideration for such development or creation, used by the Company or the relevant Subsidiary or Owned Entity has a written agreement with such Person with respect thereto, and the Company or relevant Subsidiary or Owned Entity thereby has obtained ownership of, and is the exclusive owner of, all such Proprietary Assets therein by operation of law or by valid assignment, and has required the waiver of all non-assignable rightsSubsidiaries. (f) Other than standard Proceedings involving applications pending before the U.S. Patent and Trademark office or foreign patent offices, no Proprietary Assets, product, technology, or service of the Company or any Subsidiary or Owned Entity is subject to any Proceeding or outstanding decree, order, judgment or settlement agreement or stipulation that restricts in any manner the use, transfer or licensing thereof by the Company or any Subsidiary or Owned Entity, or may affect the validity, use or enforceability of such Proprietary Asset, product technology or service. (g) Section 3.12(g) of the Disclosure Schedule lists separately, by entity, all material Proprietary Assets owned by, or filed in the name of, the Company, each of its Subsidiaries and each of its Owned Entities that have been registered in or with, issued by, or for which an application for registration has been filed in or with, a federal, state or other governmental office or agency of appropriate jurisdiction.