OF
ANY SUIT, ACTION, REISSUE, REEXAMINATION, PUBLIC PROTEST, INTERFERENCE,
ARBITRATION, MEDIATION, OPPOSITION, CANCELLATION OR OTHER PROCEEDING; AND (V) TO
SELLER'S KNOWLEDGE, SELLER IS IN COMPLIANCE WITH ALL GOVERNMENT REGULATIONS
REGARDING THE MANUFACTURE, ADVERTISING, SALE, IMPORT, AND EXPORT OF ANY ACQUIRED
INTELLECTUAL PROPERTY AND ANY PRODUCT OF SELLER THAT INCORPORATES OR IS MADE
USING ANY ACQUIRED INTELLECTUAL PROPERTY.
(E)
SELLER HAS TAKEN ALL REASONABLE PRECAUTIONS TO PROTECT AND
PRESERVE THE SECRECY, CONFIDENTIALITY AND VALUE OF ALL MATERIAL CONFIDENTIAL
ACQUIRED INTELLECTUAL PROPERTY, INCLUDING ALL MATERIAL KNOW HOW AND/OR TRADE
SECRETS INCLUDED IN THE ACQUIRED INTELLECTUAL PROPERTY (OTHER THAN ACQUIRED
INTELLECTUAL PROPERTY THAT IS THE SUBJECT OF A PUBLISHED PATENT OR PUBLISHED
PATENT APPLICATION).
(F)
UPON THE CLOSING, BUYER SHALL HAVE THE RIGHTS THAT SELLER HAD
IMMEDIATELY PRIOR TO CLOSING TO:
(I) SUE FOR (AND OTHERWISE ASSERT CLAIMS FOR)
AND RECOVER DAMAGES AND OBTAIN ANY AND ALL OTHER REMEDIES AVAILABLE AT LAW OR IN
EQUITY FOR ANY PAST, PRESENT OR FUTURE INFRINGEMENT, MISAPPROPRIATION OR OTHER
VIOLATION OF ANY OF THE ACQUIRED INTELLECTUAL PROPERTY (AND TO SETTLE ALL SUCH
SUITS, ACTIONS AND PROCEEDINGS); (II) SEEK PROTECTION THEREFOR (INCLUDING THE
RIGHT TO SEEK AND OBTAIN COPYRIGHT, TRADEMARK AND SERVICE MARK REGISTRATIONS AND
CERTIFICATES OF PATENT IN THE UNITED STATES AND ALL OTHER COUNTRIES AND
GOVERNMENTAL DIVISIONS); AND (III) TO CLAIM ALL RIGHTS AND PRIORITY THEREUNDER.
(G)
(I) THERE ARE NO RESTRICTIONS ON THE DIRECT OR INDIRECT TRANSFER
OF ANY LICENSE OR OTHER CONTRACT OR AGREEMENT PURSUANT TO WHICH SELLER HAS BEEN
GRANTED ANY RIGHT TO USE ANY
12
INTELLECTUAL PROPERTY OF A THIRD PARTY THAT IS MATERIAL TO THE BUSINESS
("INTELLECTUAL PROPERTY CONTRACT"); (II) THERE EXISTS NO EVENT, CONDITION OR
OCCURRENCE WHICH, WITH OR WITHOUT THE GIVING OF NOTICE OR LAPSE OF TIME, OR
BOTH, WOULD CONSTITUTE A MATERIAL BREACH OR DEFAULT BY SELLER UNDER ANY
INTELLECTUAL PROPERTY CONTRACT, AND SELLER HAS NOT RECEIVED NOTICE OF ANY SUCH
EVENT, CONDITION OR OCCURRENCE; (III) NO PARTY HAS GIVEN SELLER NOTICE OF ANY
BREACH OF ANY INTELLECTUAL PROPERTY CONTRACT OR OF ITS INTENTION TO CANCEL,
TERMINATE OR FAIL TO RENEW ANY INTELLECTUAL PROPERTY CONTRACT; (IV) TO SELLER'S
KNOWLEDGE, EACH PERSON WHO IS A PARTY TO ANY INTELLECTUAL PROPERTY CONTRACT HAD
AND HAS ALL RIGHTS, POWER AND AUTHORITY NECESSARY TO ENTER INTO, BE BOUND BY AND
FULLY PERFORM SUCH LICENSE, CONTRACT OR AGREEMENT; (V) SELLER HAS TIMELY MADE
ALL ROYALTY PAYMENTS AND OTHER PAYMENTS REQUIRED TO BE MADE UNDER EACH
INTELLECTUAL PROPERTY CONTRACT AND NO SUCH PAYMENTS WILL BE DUE AND OWING AS OF
THE CLOSING DATE EXCEPT IN THE ORDINARY COURSE AS SET FORTH IN ANY OF THE
INTELLECTUAL PROPERTY CONTRACTS; AND (VI) NO SUIT IS PENDING AGAINST SELLER OR,
TO SELLER'S KNOWLEDGE, AGAINST ANY OTHER PERSON, NOR, TO SELLER'S KNOWLEDGE, HAS
ANY CLAIM BEEN THREATENED OR ASSERTED (IN WRITING OR OTHERWISE) AGAINST SELLER
OR ANY OTHER PERSON CONCERNING ANY INTELLECTUAL PROPERTY OWNED BY ANY THIRD
PARTY, WHICH INTELLECTUAL PROPERTY IS A SUBJECT OF AN INTELLECTUAL PROPERTY
CONTRACT OR IS OTHERWISE MATERIAL TO THE BUSINESS, TO