THAT
ARE CURRENTLY SOLD, PUBLISHED, OFFERED, OR UNDER DEVELOPMENT BY SELLER OR ITS
AFFILIATES FOR THE BENEFIT OF THE BUSINESS; AND (III) ALL LICENSES (IN AND OUT),
SUBLICENSES AND OTHER AGREEMENTS TO WHICH SELLER OR ITS AFFILIATES IS A PARTY
AND PURSUANT TO WHICH SELLER OR ANY OTHER PERSON IS AUTHORIZED TO USE ANY OF THE
BUSINESS INTELLECTUAL PROPERTY OR EXERCISE ANY OTHER RIGHT WITH REGARD THERETO.
(B)
EACH ITEM OF THE BUSINESS INTELLECTUAL PROPERTY IS EITHER:
(I) OWNED SOLELY BY SELLER OR ITS AFFILIATES FREE AND CLEAR OF ANY LIENS (THE
"OWNED INTELLECTUAL PROPERTY"), AS LISTED ON SCHEDULE 3.12(B)(I); OR
(II) RIGHTFULLY USED AND AUTHORIZED FOR USE BY SELLER AND ITS SUCCESSORS
PURSUANT TO A VALID AND ENFORCEABLE WRITTEN LICENSE AS LISTED ON
SCHEDULE 3.12(B)(II). ALL OF THE BUSINESS INTELLECTUAL PROPERTY THAT IS USED BY
SELLER PURSUANT TO A LICENSE OR OTHER GRANT OF A RIGHT BY A THIRD PARTY TO USE
ITS PROPRIETARY INFORMATION IS SEPARATELY IDENTIFIED AS SUCH UNDER
SCHEDULE 3.12(B). SELLER HAS ALL RIGHTS IN THE BUSINESS INTELLECTUAL PROPERTY
NECESSARY TO CARRY OUT THE BUSINESS FORMER, CURRENT AND CURRENTLY PLANNED FUTURE
ACTIVITIES, INCLUDING WITHOUT LIMITATION (EXCEPT AS NOTED ON SCHEDULE 3.12(B))
RIGHTS TO MAKE, USE, EXCLUDE OTHERS FROM USING, REPRODUCE, MODIFY, ADAPT, CREATE
DERIVATIVE WORKS BASED ON, TRANSLATE, DISTRIBUTE (DIRECTLY AND INDIRECTLY),
TRANSMIT, DISPLAY AND PERFORM PUBLICLY, LICENSE, RENT, LEASE, ASSIGN AND SELL
THE BUSINESS INTELLECTUAL PROPERTY IN ALL GEOGRAPHIC LOCATIONS AND FIELDS OF
USE, AND TO SUBLICENSE ANY OR ALL SUCH RIGHTS TO THIRD PARTIES, INCLUDING THE
RIGHT TO GRANT FURTHER SUBLICENSES.
(C)
SELLER IS NOT IN MATERIAL VIOLATION OF ANY LICENSE, SUBLICENSE OR
OTHER AGREEMENT LISTED ON SCHEDULE 3.11 TO WHICH SELLER IS A PARTY OR OTHERWISE
BOUND RELATING TO ANY OF THE BUSINESS INTELLECTUAL PROPERTY. EXCEPT AS NOTED IN
SCHEDULE 3.12(C), NEITHER SELLER NOR ANY OF ITS AFFILIATES IS OBLIGATED TO
PROVIDE ANY CONSIDERATION (WHETHER FINANCIAL OR OTHERWISE) TO ANY THIRD PARTY,
NOR IS ANY THIRD PARTY OTHERWISE ENTITLED TO ANY CONSIDERATION, WITH RESPECT TO
ANY EXERCISE OF RIGHTS BY SELLER OR BUYER, AS SUCCESSOR TO SELLER, IN BUSINESS
INTELLECTUAL PROPERTY.
(D)
TO THE SELLER'S KNOWLEDGE, THE USE OF THE OWNED INTELLECTUAL
PROPERTY AND TO THE SELLER'S ACTUAL KNOWLEDGE, THE USE OF THE INTELLECTUAL
PROPERTY LISTED ON SCHEDULE 3.12(B)(II) BY SELLER AS CURRENTLY USED AND AS
CURRENTLY PROPOSED TO BE USED DOES NOT INFRINGE ANY OTHER PERSON'S COPYRIGHT,
TRADE SECRET RIGHTS, RIGHT OF PRIVACY, MORAL RIGHT, PATENT, TRADEMARK, SERVICE
MARK, TRADE NAME, FIRM NAME, LOGO, TRADE DRESS OR MASK WORK OR ANY OTHER
INTELLECTUAL PROPERTY RIGHT. NO CLAIMS (I) CHALLENGING THE VALIDITY,
ENFORCEABILITY, EFFECTIVENESS OR OWNERSHIP BY SELLER OF ANY OF THE OWNED
INTELLECTUAL PROPERTY OR (II) TO THE EFFECT THAT THE USE, REPRODUCTION,
MODIFICATION, MANUFACTURE, DISTRIBUTION, LICENSING, SUBLICENSING, SALE, OR ANY
OTHER EXERCISE OF RIGHTS IN ANY OF THE OWNED INTELLECTUAL PROPERTY BY SELLER,
INFRINGES OR WILL INFRINGE ON ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY OR
PERSONAL RIGHT OF ANY PERSON HAVE BEEN ASSERTED AGAINST SELLER OR, TO SELLER'S
KNOWLEDGE, ARE THREATENED