AS NOW CONDUCTED AND PRESENTLY PROPOSED TO
BE CONDUCTED DO NOT AND WILL NOT INFRINGE, MISAPPROPRIATE, OR CONFLICT WITH, ANY
INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PERSONS, AND THE COMPANY GROUP HAS NOT
RECEIVED ANY NOTICES REGARDING ANY OF THE FOREGOING (INCLUDING ANY DEMANDS OR
OFFERS TO LICENSE ANY INTELLECTUAL PROPERTY RIGHTS FROM ANY PERSON), AND THE
COMPANY GROUP IS NOT AWARE OF ANY FACTS OR CIRCUMSTANCES THAT INDICATE A
LIKELIHOOD OF ANY OF THE FOREGOING, AND (C) TO THE COMPANY'S KNOWLEDGE, NO
PERSON HAS INFRINGED, MISAPPROPRIATED OR OTHERWISE CONFLICTED WITH ANY OF THE
COMPANY INTELLECTUAL PROPERTY RIGHTS.
THE COMPANY GROUP HAS TAKEN ALL
REASONABLY NECESSARY ACTION TO MAINTAIN AND PROTECT ALL OF THE COMPANY
INTELLECTUAL PROPERTY RIGHTS.
ALL COMPANY INTELLECTUAL PROPERTY RIGHTS SHALL BE
OWNED OR AVAILABLE FOR USE BY THE MEMBER(S) OF THE COMPANY GROUP, AS APPLICABLE,
IMMEDIATELY AFTER THE CLOSING ON TERMS AND CONDITIONS SUBSTANTIALLY SIMILAR TO
THOSE UNDER WHICH SUCH MEMBER(S) OF THE COMPANY GROUP OWNED OR USED SUCH
INTELLECTUAL PROPERTY RIGHTS IMMEDIATELY PRIOR TO CLOSING.
(IV)
EXCEPT AS SET FORTH ON THE "INTELLECTUAL PROPERTY SCHEDULE", (A)
ONLY THE OBJECT CODE RELATING TO ANY COMPANY SOFTWARE HAS BEEN DISCLOSED TO ANY
THIRD PARTY (EXCEPT TO A SOURCE CODE ESCROW AGENT FOR THE BENEFIT OF CUSTOMERS
IN THE ORDINARY
27
COURSE OF BUSINESS);AND (B) NO PERSON HAS ASSERTED ANY RIGHT TO ACCESS ANY
SOURCE CODE FOR ANY COMPANY SOFTWARE, INCLUDING, WITHOUT LIMITATION, PURSUANT TO
A SOURCE CODE ESCROW AGREEMENT.
NO SOURCE CODE LICENSED TO ANY PERSON AS
DISCLOSED ON THE "INTELLECTUAL PROPERTY SCHEDULE" IS MATERIAL TO THE CURRENT
BUSINESSES OF THE COMPANY GROUP.
(V)
TO THE COMPANY'S KNOWLEDGE, ALL PRODUCTS OF THE COMPANY GROUP (AND
ALL PARTS THEREOF) ARE FREE OF ANY DISABLING CODES OR INSTRUCTIONS AND ANY "BACK
DOOR," "TIME BOMB," "TROJAN HORSE," "WORM," "DROP DEAD DEVICE," "VIRUS" OR OTHER
SOFTWARE ROUTINES OR HARDWARE COMPONENTS THAT PERMIT UNAUTHORIZED ACCESS OR THE
UNAUTHORIZED DISABLEMENT OR ERASURE OF SUCH PRODUCT (OR PARTS THEREOF) OR DATA
OR OTHER SOFTWARE OF USERS OF THE COMPANY GROUP'S PRODUCTS OR THE SOFTWARE
OWNED, DISTRIBUTED OR MAINTAINED BY THE COMPANY GROUP (COLLECTIVELY, "MALICIOUS
CODE") AND THE COMPANY GROUP USES COMMERCIALLY REASONABLE EFFORTS TO INSURE THAT
ITS PRODUCTS ARE FREE OF SUCH MALICIOUS CODE.
THE COMPANY GROUP IS IN
POSSESSION OF THE SOURCE AND OBJECT CODE FOR ALL SOFTWARE OWNED BY THE COMPANY
AND, TO THE EXTENT NECESSARY FOR THE CONDUCT OF THE BUSINESSES OF THE COMPANY
GROUP AS NOW CONDUCTED AND PRESENTLY PROPOSED TO BE CONDUCTED, FOR ALL THIRD
PARTY SOFTWARE INCORPORATED INTO ANY COMPANY GROUP PRODUCTS, AND COPIES OF ALL
OTHER MATERIAL RELATED THERETO, EXCEPT FOR THOSE MATERIALS WHERE COMPANY GROUP'S
FAILURE TO POSSESS SUCH MATERIALS WOULD NOT BE REASONABLY EXPECTED TO HAVE A
MATERIAL ADVERSE EFFECT.
(VI)
EXCEPT AS SET FORTH ON THE "INTELLECTUAL PROPERTY SCHEDULE," ALL
PAST AND PRESENT EMPLOYEES OF, AND CONSULTANTS TO, THE COMPANY GROUP HAVE
ENTERED INTO AGREEMENTS PURSUANT TO WHICH SUCH EMPLOYEE OR CONSULTANT AGREES TO
PROTECT THE CONFIDENTIAL INFORMATION OF THE COMPANY GROUP AND