(III) EACH TRANSFERRED IP
AGREEMENT, UPON CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
AND THE ANCILLARY AGREEMENTS, SHALL CONTINUE IN FULL FORCE AND EFFECT WITHOUT
PENALTY, IMPAIRMENT OR OTHER ADVERSE CONSEQUENCE.
THE SELLER IS NOT IN MATERIAL
BREACH OF, OR DEFAULT UNDER, ANY IP AGREEMENT AND NO EVENT HAS OCCURRED THAT,
WITH NOTICE OR LAPSE OF TIME, WOULD CONSTITUTE A MATERIAL BREACH OR DEFAULT OR
PERMIT TERMINATION OR MODIFICATION OF SUCH IP AGREEMENT.
TO THE BEST KNOWLEDGE
OF THE SELLER AFTER DUE INQUIRY, THERE IS NO MATERIAL DISPUTE CONCERNING ANY IP
AGREEMENT REGARDING THE SCOPE OF SUCH AGREEMENT, OR PERFORMANCE UNDER SUCH
AGREEMENT INCLUDING WITH RESPECT TO ANY PAYMENTS TO BE MADE OR RECEIVED BY
SELLER THEREUNDER.
(C)
THE SELLER HAS MADE AVAILABLE TO THE PURCHASER TRUE AND COMPLETE
COPIES OF ALL MATERIAL CONTRACTS.
(D)
EXCEPT AS SET FORTH ON SECTION 3.11(D) OF THE DISCLOSURE SCHEDULE,
THERE IS NO CONTRACT, AGREEMENT OR OTHER ARRANGEMENT GRANTING ANY PERSON ANY
PREFERENTIAL RIGHT TO PURCHASE ANY OF THE PURCHASED ASSETS.
(E)
EXCEPT AS SET FORTH IN SECTION 3.11(E) OF THE DISCLOSURE
SCHEDULE AND EXCEPT WHERE THE FAILURE OF A REPRESENTATION CONTAINED HEREIN WOULD
NOT HAVE A MATERIAL ADVERSE EFFECT, (I) THE SELLER IS NOT IN DEFAULT UNDER ANY
MATERIAL CONTRACTS, AND, TO THE BEST KNOWLEDGE OF THE SELLER, NO OTHER PARTY IS
IN DEFAULT UNDER ANY OF THE MATERIAL CONTRACTS; (II) THERE IS NO OUTSTANDING
NOTICE OF CANCELLATION OR TERMINATION IN CONNECTION WITH ANY MATERIAL CONTRACTS;
AND (III) EACH OF THE MATERIAL CONTRACTS IS A VALID AND BINDING OBLIGATION OF
THE SELLER AND EACH OF THE OTHER PARTIES TO SUCH MATERIAL CONTRACT AND IS IN
FULL FORCE AND EFFECT IN ACCORDANCE WITH ITS TERMS.
SECTION 3.12.
Intellectual Property.
(a)
Section 3.12(a) of the Disclosure
Schedule sets forth a true and complete list of (i) all patents and patent
applications, registered copyrights (including computer software programs and
mask works) and copyright applications included in the Owned Intellectual
Property; (ii) all IP Agreements; and (iii) all other Owned Intellectual
Property and Licensed Intellectual Property material to the Business.
(B)
TO THE BEST KNOWLEDGE OF THE SELLER AFTER DUE INQUIRY, THE
OPERATION OF THE BUSINESS AS CURRENTLY CONDUCTED OR AS CONTEMPLATED TO BE
CONDUCTED AND THE USE OF THE OWNED INTELLECTUAL PROPERTY AND LICENSED
INTELLECTUAL PROPERTY IN CONNECTION THEREWITH DO NOT CONFLICT WITH, INFRINGE,
MISAPPROPRIATE OR OTHERWISE VIOLATE THE INTELLECTUAL PROPERTY OR OTHER
PROPRIETARY RIGHTS, INCLUDING RIGHTS OF PRIVACY, PUBLICITY AND ENDORSEMENT, OF
ANY THIRD PARTY, AND NO ACTIONS OR CLAIMS ARE PENDING OR, TO THE BEST KNOWLEDGE
OF THE SELLER AFTER DUE INQUIRY, THREATENED AGAINST THE SELLER ALLEGING ANY OF
THE FOREGOING, EXCEPT AS SET FORTH IN SECTION 3.12(B) OF THE DISCLOSURE
SCHEDULE.
(C)
EXCEPT AS DISCLOSED IN SECTION 3.12(C) OF THE DISCLOSURE SCHEDULE,
THE SELLER IS THE EXCLUSIVE OWNER OF THE ENTIRE AND UNENCUMBERED RIGHT, TITLE
AND INTEREST IN AND TO THE OWNED INTELLECTUAL PROPERTY, AND TO THE BEST
KNOWLEDGE OF THE SELLER AFTER DUE INQUIRY, THE SELLER HAS A
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VALID