PURCHASED INTELLECTUAL PROPERTY OWNED BY SELLERS; AND (III) NO PERSON INFRINGES,
MISAPPROPRIATES OR VIOLATES ANY PURCHASED INTELLECTUAL PROPERTY OWNED BY OR
LICENSED TO SELLERS, EXCEPT AS HAS NOT HAD AND WOULD NOT REASONABLY BE EXPECTED
TO HAVE, INDIVIDUALLY OR IN THE AGGREGATE, AN OPCO MATERIAL ADVERSE EFFECT.
(F)
EXCEPT AS DISCLOSED IN SCHEDULE 5.11(F):
(I) SELLERS HAVE NOT
TRANSFERRED ANY RIGHT, TITLE OR INTEREST IN OR TO ANY MATERIAL SOFTWARE OTHER
THAN SUCH LICENSE RIGHTS THAT ARE SET FORTH IN THE AGREEMENTS LISTED IN
SCHEDULE 5.11(C); (II) SELLERS HAVE MAINTAINED AND PROTECTED THE MATERIAL OWNED
SOFTWARE (INCLUDING ALL SOURCE CODE AND SYSTEM SPECIFICATIONS) WITH APPROPRIATE
MEASURES AS ARE NECESSARY TO PROTECT THE PROPRIETARY INFORMATION CONTAINED
THEREIN; AND (III) ANY MATERIAL OWNED SOFTWARE INCLUDES THE SOURCE CODE, SYSTEM
DOCUMENTATION, STATEMENTS OF PRINCIPLES OF OPERATION AND SCHEMATICS, AS WELL AS
ANY PERTINENT COMMENTARY, EXPLANATION, PROGRAM (INCLUDING COMPILERS),
WORKBENCHES, TOOLS, AND HIGHER LEVEL (OR "PROPRIETARY") LANGUAGE USED FOR THE
DEVELOPMENT, MAINTENANCE, IMPLEMENTATION AND USE THEREOF, TO THE EXTENT THEY
EXIST.
(G)
EXCEPT AS SET FORTH IN SCHEDULE 5.11(G), SELLERS HAVE NOT USED ANY
PUBLIC SOFTWARE IN, NOR INCORPORATED OR EMBEDDED ANY PUBLIC SOFTWARE INTO ANY
PURCHASED INTELLECTUAL
35
PROPERTY OWNED BY SELLERS OR INTO ANY PRODUCT, SERVICE, APPLICATION, SOFTWARE,
EQUIPMENT, MACHINERY OR PROCESS USED BY, EXCLUSIVELY LICENSED BY OR DISTRIBUTED
IN WHOLE OR IN PART BY SELLERS.
5.12
Material Contracts.
(A)
SCHEDULE 5.12(A) SETS FORTH ALL OF THE FOLLOWING CONTRACTS TO
WHICH ANY SELLER IS A PARTY OR BY WHICH IT IS BOUND (COLLECTIVELY, THE "MATERIAL
CONTRACTS"):
(I)
CONTRACTS WITH ANY AFFILIATE OR CURRENT OR FORMER OFFICER OR
DIRECTOR OF ANY SELLER (OTHER THAN CONTRACTS MADE IN THE ORDINARY COURSE OF
BUSINESS ON TERMS GENERALLY AVAILABLE TO SIMILARLY-SITUATED NON-AFFILIATED
PARTIES);
(II)
CONTRACTS WITH ANY LABOR UNION OR ASSOCIATION REPRESENTING ANY
EMPLOYEES OF ANY SELLER;
(III)
CONTRACTS FOR THE SALE OF ANY OF THE ASSETS OF THE BUSINESS,
OTHER THAN IN THE ORDINARY COURSE OF BUSINESS, FOR CONSIDERATION IN EXCESS OF
$250,000;
(IV)
CONTRACTS RELATING TO THE ACQUISITION BY ANY SELLER OF ANY
OPERATING BUSINESS OR THE CAPITAL STOCK OF ANY OTHER PERSON, IN EACH CASE FOR
CONSIDERATION IN EXCESS OF $ 250,000;
(V)
CONTRACTS RELATING TO INCURRENCE OF INDEBTEDNESS OR THE MAKING OF
ANY LOANS, IN EACH CASE INVOLVING AMOUNTS IN EXCESS OF $250,000;
(VI)
CONTRACTS RELATING TO ANY GUARANTEE OF THE OBLIGATIONS OF
CUSTOMERS, SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR OTHERS;
(VII)
ANY KEEP-WELL AGREEMENT, DEVELOPMENT AGREEMENT OR MANAGEMENT
AGREEMENT WITH OBLIGATIONS IN EXCESS OF $250,000; OR
(VIII)
CONTRACTS MATERIAL TO THE OPERATION OF THE BUSINESS.
(B)
EXCEPT AS SET FORTH ON SCHEDULE 5.12(B), NO SELLER HAS RECEIVED
ANY WRITTEN NOTICE OF ANY DEFAULT OR EVENT THAT WITH NOTICE OR LAPSE OF TIME OR
BOTH WOULD CONSTITUTE A DEFAULT BY ANY SELLER UNDER ANY MATERIAL CONTRACT,
EXCEPT FOR DEFAULTS THAT HAVE NOT HAD AND WOULD NOT REASONABLY BE EXPECTED TO
HAVE, INDIVIDUALLY OR IN THE AGGREGATE, AN OPCO MATERIAL ADVERSE EFFECT.
EXCEPT
AS SET FORTH ON SCHEDULE 5.12(B), EACH SELLER HAS