NO LOSS OR EXPIRATION OF ANY
OF THE SELLERS' INTELLECTUAL PROPERTY RIGHTS IS THREATENED, PENDING OR
REASONABLY FORESEEABLE, EXCEPT FOR TRADEMARKS OR SERVICE MARKS EXPIRING AT THE
END OF THEIR CURRENT REGISTRATION TERMS WITHOUT RENEWAL BY THE APPLICABLE SELLER
(AND NOT AS A RESULT OF ANY ACT OR OMISSION BY EITHER SELLER, INCLUDING A
FAILURE BY SUCH SELLER TO PAY ANY REQUIRED MAINTENANCE FEES); (II) ALL OF THE
SELLERS' INTELLECTUAL PROPERTY RIGHTS ARE VALID AND ENFORCEABLE AND NONE OF THE
SELLERS' INTELLECTUAL PROPERTY RIGHTS HAS BEEN MISUSED; (III) NO CLAIM BY ANY
THIRD PARTY CONTESTING THE VALIDITY, ENFORCEABILITY, USE OR OWNERSHIP OF ANY OF
THE SELLERS' INTELLECTUAL PROPERTY RIGHTS HAS BEEN MADE, IS CURRENTLY
OUTSTANDING OR IS THREATENED, AND THERE ARE NO GROUNDS FOR THE SAME; (IV) EACH
SELLER HAS TAKEN ALL NECESSARY AND DESIRABLE ACTION TO MAINTAIN AND PROTECT ALL
OF THE SELLERS' INTELLECTUAL PROPERTY RIGHTS AND WILL CONTINUE TO MAINTAIN AND
PROTECT ALL OF THE SELLERS'
26
INTELLECTUAL PROPERTY RIGHTS PRIOR TO THE CLOSING SO AS NOT TO ADVERSELY AFFECT
THE VALIDITY OR ENFORCEABILITY THEREOF; AND (V) NEITHER SELLER HAS DISCLOSED OR
ALLOWED TO BE DISCLOSED ANY OF ITS TRADE SECRETS OR CONFIDENTIAL INFORMATION TO
ANY THIRD PARTY OTHER THAN PURSUANT TO A WRITTEN CONFIDENTIALITY AGREEMENT AND
EACH SELLER HAS ENTERED INTO WRITTEN CONFIDENTIALITY AGREEMENTS WITH ALL OF ITS
EMPLOYEES AND INDEPENDENT CONTRACTORS ACKNOWLEDGING THE CONFIDENTIALITY OF THE
SELLERS' INTELLECTUAL PROPERTY RIGHTS.
(F)
EXCEPT AS SET FORTH ON SCHEDULE 4.19(F), TO EACH SELLER'S KNOWLEDGE, NO
PERSON HAS INFRINGED, DILUTED, MISAPPROPRIATED OR OTHERWISE CONFLICTED WITH ANY
OF THE SELLERS' INTELLECTUAL PROPERTY RIGHTS AND NEITHER SELLER IS AWARE OF ANY
FACTS THAT INDICATE A LIKELIHOOD OF ANY OF THE SAME.
(G)
EXCEPT AS SET FORTH ON SCHEDULE 4.19(G), ALL INTELLECTUAL PROPERTY RIGHTS
OWNED BY EACH SELLER WAS: (I) DEVELOPED BY EMPLOYEES OF SUCH SELLER WORKING
WITHIN THE SCOPE OF THEIR EMPLOYMENT; (II) DEVELOPED BY OFFICERS, DIRECTORS,
AGENTS, CONSULTANTS, CONTRACTORS, SUBCONTRACTORS OR OTHERS WHO HAVE EXECUTED
APPROPRIATE INSTRUMENTS OF ASSIGNMENT IN FAVOR OF SUCH SELLER AS ASSIGNEE THAT
HAVE CONVEYED TO SUCH SELLER OWNERSHIP OF ALL OF SUCH PERSON'S RIGHTS IN THE
INTELLECTUAL PROPERTY RIGHTS RELATING TO SUCH DEVELOPMENTS; OR (III) ACQUIRED IN
CONNECTION WITH ACQUISITIONS IN WHICH SUCH SELLER OBTAINED APPROPRIATE
REPRESENTATIONS, WARRANTIES AND INDEMNITIES FROM THE TRANSFERRING PARTY RELATING
TO THE TITLE TO SUCH INTELLECTUAL PROPERTY RIGHTS.
(H)
EXCEPT AS SET FORTH IN SCHEDULE 4.19(H), NONE OF THE SELLERS' INTELLECTUAL
PROPERTY RIGHTS IS SUBJECT TO ANY PROCEEDING OR OUTSTANDING DECREE, ORDER,
JUDGMENT, AGREEMENT OR STIPULATION RESTRICTING IN ANY MANNER THE USE, TRANSFER
OR LICENSING THEREOF BY EITHER SELLER, OR WHICH MAY AFFECT THE VALIDITY, USE OR
ENFORCEABILITY OF THE SELLERS' INTELLECTUAL PROPERTY RIGHTS.
(I)
EACH SELLER HAS COLLECTED, USED, IMPORTED, EXPORTED AND PROTECTED ALL
PERSONALLY IDENTIFIABLE INFORMATION, AND OTHER INFORMATION RELATING TO
INDIVIDUALS PROTECTED BY LAW, IN ACCORDANCE WITH THE PRIVACY POLICIES OF EACH
SELLER AND IN ACCORDANCE WITH APPLICABLE LAW, INCLUDING BY ENTERING INTO
AGREEMENTS, WHERE APPLICABLE, GOVERNING THE FLOW OF SUCH INFORMATION ACROSS
NATIONAL BORDERS.
(J)