(C)
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NONE
OF THE ASSET SELLING CORPORATIONS MAKES ANY REPRESENTATION OR WARRANTY REGARDING
THE EFFECTIVENESS OF ANY ASSIGNMENT OR PARTIAL ASSIGNMENT, AS APPLICABLE, OR
ENFORCEABILITY BY PURCHASER OR ITS AFFILIATES, OF ANY ASSUMED CONTRACT.
3.9
INTELLECTUAL PROPERTY.
(A)
THE PURCHASED IP RIGHTS LISTED ON SCHEDULE 3.9(A) CONSTITUTE ALL
PATENTS, PATENT APPLICATIONS, REGISTERED TRADEMARKS, TRADEMARK APPLICATIONS,
TRADEMARK REGISTRATIONS, REGISTERED COPYRIGHTS, COPYRIGHT APPLICATIONS AND
COPYRIGHT REGISTRATIONS THAT ARE OWNED (WHETHER EXCLUSIVELY, JOINTLY WITH
ANOTHER PERSON, OR OTHERWISE) BY AN ASSET SELLING CORPORATION, OR FOR WHICH AN
ASSET SELLING CORPORATION HAS A BELIEF THAT IT HAS AN OWNERSHIP INTEREST IN, AND
WHICH: (I) WERE LICENSED TO THE PURCHASER UNDER THE SETTLEMENT AND LICENSE
AGREEMENT BY AND AMONG OVION INC., WILLIAM S. TREMULIS AND JEFFREY P. CALLISTER
AND CONCEPTUS, INC., EFFECTIVE OCTOBER 23, 2003 (THE "SETTLEMENT AND LICENSE
AGREEMENT"); (II) WERE ACQUIRED BY PARENT UNDER THE AGREEMENT AND PLAN OF MERGER
BY AND AMONG AMERICAN MEDICAL SYSTEMS, INC., OAK MERGER CORP., OVION INC.,
WILLIAM S. TREMULIS AND JEFFREY P. CALLISTER, DATED JUNE 3, 2005; OR (III) HAVE
BEEN DEVELOPED OR ACQUIRED BY AN ASSET SELLING CORPORATION OR ANY OTHER
AFFILIATE OF PARENT FOR USE PRIMARILY IN STENTS FOR TRANSCERVICAL STERILIZATION
OR STENT-LIKE DEVICES FOR TRANSCERVICAL STERILIZATION (COLLECTIVELY, THE
"REGISTERED IP").
FOR EACH SUCH LISTED ITEM OF REGISTERED IP, SCHEDULE
3.9(A) SHALL SPECIFY THE JURISDICTION IN WHICH SUCH ITEM OF INTELLECTUAL
PROPERTY HAS BEEN REGISTERED OR FILED, IF APPLICABLE, AND THE APPLICABLE
APPLICATION, REGISTRATION OR SERIAL NUMBER.
PARENT HAS PROVIDED TO PURCHASER
COMPLETE AND ACCURATE COPIES (EITHER PHYSICAL OR VIA ACCESS) OF ALL
NON-PUBLISHED PATENT APPLICATIONS INCLUDED IN THE REGISTERED IP.
13
(B)
SCHEDULE 3.9(B) ACCURATELY IDENTIFIES AS OF THE DATE OF THIS
AGREEMENT (I) ALL INTELLECTUAL PROPERTY OR TECHNOLOGY LICENSED TO THE ASSET
SELLING CORPORATIONS AND RELATING PRIMARILY TO THE CONVEYED ASSETS (OTHER THAN
ANY NON-CUSTOMIZED SOFTWARE THAT (A) IS SO LICENSED SOLELY IN EXECUTABLE OR
OBJECT CODE FORM PURSUANT TO A NONEXCLUSIVE, INTERNAL USE SOFTWARE LICENSE,
(B) IS NOT USED DIRECTLY IN THE DEVELOPMENT OR MANUFACTURING OF THE PRODUCTS OF
THE BUSINESS, AND (C) IS GENERALLY AVAILABLE ON STANDARD TERMS FOR LESS THAN
$15,000), (II) THE CORRESPONDING CONTRACT OR CONTRACTS PURSUANT TO WHICH SUCH
INTELLECTUAL PROPERTY OR TECHNOLOGY IS LICENSED TO THE ASSET SELLING
CORPORATIONS, AND (III) WHETHER THE LICENSES GRANTED ARE EXCLUSIVE.
EXCEPT
PURSUANT TO THE LICENSES LISTED IN SCHEDULE 3.9(B), THE ASSET SELLING
CORPORATIONS DO NOT HAVE ANY OBLIGATION TO COMPENSATE OR ACCOUNT TO ANY PERSON
FOR THE USE OF ANY OF THE PURCHASED IP RIGHTS. NO PERSON WHO HAS LICENSED
INTELLECTUAL PROPERTY OR TECHNOLOGY TO THE ASSET SELLING CORPORATIONS FOR USE IN
THE CONVEYED ASSETS HAS OWNERSHIP RIGHTS OR LICENSE RIGHTS TO IMPROVEMENTS MADE
BY THE ASSET SELLING CORPORATIONS IN SUCH INTELLECTUAL PROPERTY OR TECHNOLOGY.
(C)
SCHEDULE 3.9(C) ACCURATELY IDENTIFIES AS OF THE DATE OF THIS
AGREEMENT EACH CONTRACT PURSUANT TO WHICH ANY PERSON HAS BEEN GRANTED ANY
LICENSE UNDER, OR OTHERWISE HAS RECEIVED OR ACQUIRED ANY RIGHT (WHETHER OR NOT