STATEMENTS, TO NORMAL YEAR-END ADJUSTMENTS).
NONE OF THE INFORMATION
OR STATEMENTS (INCLUDING REPRESENTATIONS AND WARRANTIES) OF OR REGARDING THE
COMPANY MADE IN THIS AGREEMENT OR IN ANY OF THE INVESTOR PRESENTATION MATERIALS
PROVIDED TO THE PURCHASERS BY THE COMPANY AND IDENTIFIED IN SECTION 4.5(A) OF
THE SCHEDULE OF EXCEPTIONS CONTAINS ANY UNTRUE STATEMENT OF MATERIAL FACT OR
OMIT TO STATE A MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS MADE, IN LIGHT OF
THE CIRCUMSTANCES UNDER WHICH THEY WERE
4
MADE, NOT MISLEADING.
THE COPIES OF THE DOCUMENTS AND FILINGS SET FORTH ON
SCHEDULE 4.5(B) OF THE SCHEDULE OF EXCEPTIONS PROVIDED TO AND RELIED ON BY THE
PURCHASERS IN CONNECTION WITH ASSESSING WHETHER TO PURCHASE THE SECURITIES ARE
TRUE, COMPLETE AND CORRECT COPIES OF SUCH DOCUMENTS AS ENTERED INTO BY THE
COMPANY AND THE PARTIES THERETO OR AS FILED BY THE COMPANY WITH THE SECRETARY OF
STATE OF THE STATE OF CALIFORNIA, AS THE CASE MAY BE, AND NONE OF SUCH DOCUMENTS
OR FILINGS SUBSEQUENTLY HAVE BEEN AMENDED OR TERMINATED, ALL SUCH DOCUMENTS AND
FILINGS REMAIN IN FULL FORCE AND EFFECT IN ACCORDANCE WITH THEIR TERMS, THERE
HAVE BEEN NO BREACHES OR VIOLATIONS THEREOF BY THE COMPANY OR, TO THE COMPANY'S
KNOWLEDGE, BY ANY OTHER PARTY THERETO.
NONE OF THE STATEMENTS (INCLUDING
REPRESENTATIONS AND WARRANTIES) OF THE COMPANY IN THIS AGREEMENT ARE MATERIALLY
INCONSISTENT WITH THE INFORMATION AND STATEMENTS CONTAINED IN THE COMPANY'S
ANNUAL REPORT ON FORM 10-K FOR THE PERIOD ENDED DECEMBER 31, 2002.
4.6
INTELLECTUAL PROPERTY RIGHTS AND LICENSES.
(A)
DEFINITIONS.
AS USED HEREIN, THE TERM "INTELLECTUAL PROPERTY"
MEANS ALL INTELLECTUAL PROPERTY RIGHTS OWNED OR LICENSED BY THE COMPANY ARISING
FROM OR ASSOCIATED WITH THE FOLLOWING, WHETHER PROTECTED, CREATED OR ARISING
UNDER THE LAWS OF THE UNITED STATES OR ANY OTHER JURISDICTION:
(I) TRADE NAMES,
TRADEMARKS AND SERVICE MARKS (REGISTERED AND UNREGISTERED), DOMAIN NAMES AND
OTHER INTERNET ADDRESSES OR IDENTIFIERS, TRADE DRESS AND SIMILAR RIGHTS AND
APPLICATIONS (INCLUDING INTENT TO USE APPLICATIONS) TO REGISTER ANY OF THE
FOREGOING (COLLECTIVELY, "MARKS"); (II) PATENTS AND PATENT APPLICATIONS,
INCLUDING CONTINUATION, DIVISIONAL, CONTINUATION-IN-PART, REEXAMINATION AND
REISSUE PATENT APPLICATIONS AND ANY PATENTS ISSUING THEREFROM, AND RIGHTS IN
RESPECT OF UTILITY MODELS OR INDUSTRIAL DESIGNS (COLLECTIVELY, "PATENTS");
(III) COPYRIGHTS AND REGISTRATIONS AND APPLICATIONS THEREFOR (COLLECTIVELY,
"COPYRIGHTS"); (IV) NON-PUBLIC KNOW-HOW, INVENTIONS, DISCOVERIES, IMPROVEMENTS,
CONCEPTS, IDEAS, METHODS, PROCESSES, DESIGNS, PLANS, SCHEMATICS, DRAWINGS,
FORMULAE, TECHNICAL DATA, SPECIFICATIONS, RESEARCH AND DEVELOPMENT INFORMATION,
TECHNOLOGY AND PRODUCT ROADMAPS, DATA BASES AND OTHER PROPRIETARY OR
CONFIDENTIAL INFORMATION, INCLUDING CUSTOMER LISTS, BUT EXCLUDING ANY COPYRIGHTS
OR PATENTS THAT MAY COVER OR PROTECT ANY OF THE FOREGOING (COLLECTIVELY, "TRADE
SECRETS"); AND (V) ANY OTHER PROPRIETARY, INTELLECTUAL OR INDUSTRIAL PROPERTY
RIGHTS OF ANY KIND OR NATURE THAT DO NOT COMPRISE OR ARE NOT PROTECTED BY MARKS,
PATENTS, COPYRIGHTS, OR TRADE SECRETS.
(B)
COMPANY INTELLECTUAL PROPERTY.
SECTION 4.6(B) OF THE SCHEDULE OF
EXCEPTIONS SETS FORTH AN ACCURATE AND COMPLETE LIST, AS OF THE DATE HEREOF, OF
ALL MARKS, COPYRIGHTS AND PATENTS OWNED (IN WHOLE OR IN PART) OR LICENSED BY THE
COMPANY THAT ARE USED