unaudited balance sheet of the Business as of
December 31, 2005 found in Schedule 3.05.
"Balance Sheet Date" means December 31, 2005.
"Business Intellectual Property" means all Intellectual Property that is owned
or held by or on behalf of Seller for use, or that is being, and/or has been,
used, or is currently under development for use, in the Business as it has been,
is currently or is currently planned to be conducted.
"Closing Date" means the date of the Closing.
"Deferred Revenue" means (i) contracts for maintenance services that, as of the
date of determination, are invoiced, but not yet recognized as revenue and
(ii) amounts under contracts for consulting services that, as of the date of
determination, have been billed but not yet recognized as revenue as a result of
an ongoing obligation to perform services and, in all events, shall be
calculated in accordance with the methodologies set forth on Schedule 1.01(a)
hereto. For greater clarity, Deferred Revenue does not include customer
overpayments that have been retained by the Seller.
"Infrastructure Software" means the Seller's time tracking software, call
logging software, and internally used third party financial, network related and
desktop software products, as listed on Schedule 1.01(b).
"Intellectual Property" means all tangible or intangible proprietary information
and materials, including without limitation:
(B)
(I) ALL INVENTIONS (WHETHER PATENTABLE OR UNPATENTABLE AND WHETHER
OR NOT REDUCED TO PRACTICE), ALL IMPROVEMENTS THEREON, AND ALL PATENTS, PATENT
APPLICATIONS AND PATENT DISCLOSURES, TOGETHER WITH ALL REISSUANCES,
CONTINUATIONS, CONTINUATIONS-IN-PART, DIVISIONS, REVISIONS, EXTENSIONS AND
RE-EXAMINATIONS THEREOF, (II) ALL TRADEMARKS, SERVICES MARKS, TRADE DRESS,
LOGOS, TRADE NAMES, DOMAIN NAMES, AND CORPORATE NAMES, TOGETHER WITH ALL
TRANSLATIONS, ADAPTATIONS, DERIVATIONS AND COMBINATIONS THEREOF AND INCLUDING
ALL GOODWILL ASSOCIATED THEREWITH, AND ALL APPLICATIONS, REGISTRATIONS AND
RENEWALS IN CONNECTION THEREWITH, (III) ALL COPYRIGHTS AND ALL APPLICATIONS,
REGISTRATIONS AND RENEWALS IN CONNECTION THEREWITH, (IV) ALL MASK WORKS AND ALL
APPLICATIONS, REGISTRATIONS AND RENEWALS IN CONNECTION THEREWITH, (V) ALL TRADE
SECRETS AND CONFIDENTIAL BUSINESS INFORMATION (INCLUDING IDEAS, RESEARCH AND
DEVELOPMENT, KNOW-HOW, FORMULAS, COMPOSITIONS, MANUFACTURING AND PRODUCTION
PROCESS AND TECHNIQUES, METHODS, SCHEMATICS, TECHNOLOGY, TECHNICAL DATA,
DESIGNS, DRAWINGS, FLOWCHARTS, BLOCK DIAGRAMS, SPECIFICATIONS, CUSTOMER AND
SUPPLIER LISTS, PRICING AND COST INFORMATION AND BUSINESS AND MARKETING PLANS
AND PROPOSALS), AND (VI) ALL SOFTWARE AND FIRMWARE (INCLUDING DATA, DATABASES
AND RELATED DOCUMENTATION);
(C)
ALL DOCUMENTS, RECORDS AND FILES RELATING TO DESIGN, END USER
DOCUMENTATION, MANUFACTURING, QUALITY CONTROL, SALES, MARKETING OR CUSTOMER
SUPPORT FOR, AND TANGIBLE EMBODIMENTS OF, ALL INTELLECTUAL PROPERTY DESCRIBED
HEREIN; AND
(D)
ALL LICENSES, AGREEMENTS AND OTHER RIGHTS IN ANY THIRD PARTY
PRODUCT OR ANY THIRD PARTY INTELLECTUAL PROPERTY DESCRIBED IN (A) AND (B) ABOVE
OTHER THAN ANY "OFF-THE-SHELF" THIRD PARTY SOFTWARE OR RELATED INTELLECTUAL
PROPERTY.
"Lien" means, with respect to any asset, any mortgage, lien, pledge, charge,
security interest, restriction or encumbrance of any kind in respect of such
asset.
"Material Adverse Change" means a material adverse change in the business,
assets, financial condition, or results of operations of Seller or the Business
taken as a whole;
2
provided, however,