COMPANY, ALL OF THE
COMPANY INTELLECTUAL PROPERTY RIGHTS WHICH ARE REGISTERED OR HAVE BEEN FILED FOR
REGISTRATION WITH ANY THIRD PARTY ARE IN GOOD STANDING AND ALL OF THE FEES AND
FILINGS DUE WITH RESPECT THERETO HAVE BEEN DULY MADE.
THE COMPANY AND ITS
SUBSIDIARIES ARE NOT OR, AS A RESULT OF THE EXECUTION OR DELIVERY OF THIS
AGREEMENT, OR THE PERFORMANCE OF THE COMPANY'S OBLIGATIONS HEREUNDER, WILL NOT
BE IN VIOLATION OF ANY LICENSE, SUBLICENSE, AGREEMENT OR INSTRUMENT INVOLVING
INTELLECTUAL PROPERTY TO WHICH THE COMPANY IS A PARTY OR OTHERWISE BOUND, NOR
WILL THE EXECUTION OR DELIVERY OF THIS AGREEMENT OR THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY, CAUSE THE DIMINUTION, LICENSE, TRANSFER,
TERMINATION OR FORFEITURE OF THE COMPANY'S RIGHTS IN ANY COMPANY INTELLECTUAL
PROPERTY RIGHTS.
THE COMPANY HAS TAKEN COMMERCIALLY REASONABLE MEASURES TO
PROTECT THE PROPRIETARY NATURE OF THE PROPRIETARY COMPANY INTELLECTUAL PROPERTY
RIGHTS OWNED BY THE COMPANY AND TO MAINTAIN IN CONFIDENCE ALL TRADE SECRETS AND
CONFIDENTIAL INFORMATION OWNED OR USED BY THE COMPANY.
NO PROCEEDINGS OR, TO
THE
11
COMPANY'S KNOWLEDGE, INVESTIGATIONS CHALLENGING OR THREATENING THE VALIDITY,
ENFORCEABILITY, EFFECTIVENESS OR OWNERSHIP BY THE COMPANY OR ITS SUBSIDIARIES OF
ANY COMPANY INTELLECTUAL PROPERTY RIGHTS HAVE BEEN MADE OR ARE OUTSTANDING.
FOR
THE PURPOSES OF THIS SECTION 4.8, "TO THE COMPANY'S KNOWLEDGE" SHALL MEAN ACTUAL
KNOWLEDGE, AS OF THE DATE OF THIS AGREEMENT, OF EXECUTIVE OFFICERS OF THE
COMPANY.
4.9
SECURITIES LAWS.
EXCEPT AS DISCLOSED
PURSUANT TO THIS AGREEMENT, NEITHER THE COMPANY NOR ANYONE ACTING ON ITS BEHALF
HAS OFFERED SECURITIES OF THE COMPANY FOR SALE TO, OR SOLICITED ANY OFFERS TO
BUY THE SAME FROM, OR SOLD SECURITIES OF THE COMPANY TO, ANY PERSON OR
ORGANIZATION, IN ANY CASE SO AS TO SUBJECT THE COMPANY, ITS PROMOTERS, DIRECTORS
OR OFFICERS TO ANY LIABILITY UNDER THE SECURITIES ACT, THE SECURITIES AND
EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT"), OR ANY STATE SECURITIES
OR "BLUE SKY" LAW AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER
(COLLECTIVELY, THE "SECURITIES LAWS").
NONE OF THE OFFER, GRANT, SALE OR
ISSUANCE OF THE SECURITIES TO THE INVESTOR CONTEMPLATED BY THIS AGREEMENT AND
THE INVESTOR RIGHTS AGREEMENT WILL BE IN VIOLATION OF THE SECURITIES LAWS WHEN
OFFERED, SOLD AND ISSUED.
4.10
TITLE TO ASSETS AND PROPERTIES. EXCEPT AS SET
FORTH IN SCHEDULE 4.10 ATTACHED HERETO AND THE COMPANY REPORTS, THE COMPANY AND
ITS SUBSIDIARIES HAVE GOOD AND MARKETABLE TITLE IN FEE SIMPLE TO ALL REAL
PROPERTY AND GOOD AND MARKETABLE TITLE TO ALL PERSONAL PROPERTY AND ASSETS OWNED
BY THEM, IN EACH CASE FREE AND CLEAR OF ALL LIENS, ENCUMBRANCES AND DEFECTS
EXCEPT SUCH AS, IN THE AGGREGATE, DO NOT MATERIALLY AFFECT THE VALUE OF SUCH
PROPERTY AND DO NOT INTERFERE WITH THE USE MADE AND PROPOSED TO BE MADE OF SUCH
PROPERTY BY THE COMPANY AND ITS SUBSIDIARIES; AND ANY REAL PROPERTY AND
BUILDINGS HELD UNDER LEASE BY THE COMPANY AND ITS SUBSIDIARIES ARE HELD BY THEM
UNDER VALID, SUBSISTING AND ENFORCEABLE LEASES WITH SUCH EXCEPTIONS AS ARE NOT
MATERIAL AND