EITHER FOR THE BENEFIT OF ANY PERSON (OTHER THAN
GISH) OR TO
THE DETRIMENT OF GISH.
NO TRADE SECRET IS SUBJECT TO ANY ADVERSE CLAIM OR HAS
BEEN CHALLENGED OR, TO THE KNOWLEDGE OF SELLER AND GISH, THREATENED IN ANY WAY.
(H)
WITHOUT LIMITING SECTIONS 3.22(D)(IV), 3.22(E)(V) AND
3.22(F)(III), NO INTELLECTUAL PROPERTY ASSET IS INFRINGED OR MISAPPROPRIATED
(EXCEPT FOR THE INFRINGEMENT OF THE GISH OXYGENATOR PATENT, USA PATENT
NO. 5,762,869, BY THE HILITE FAMILY OF PRODUCTS PRODUCED AND SOLD BY AN
AFFILIATE OF BUYER) OR HAS BEEN CHALLENGED OR, TO SELLER'S KNOWLEDGE, THREATENED
42
IN ANY WAY.
NONE OF THE INTELLECTUAL PROPERTY ASSETS AND NONE OF THE PRODUCTS
MANUFACTURED OR SOLD BY, OR ON BEHALF OF, GISH INFRINGES OR MISAPPROPRIATES OR
IS ALLEGED TO INFRINGE OR MISAPPROPRIATE ANY INTELLECTUAL PROPERTY, INDUSTRIAL
PROPERTY RIGHT OR OTHER PROPRIETARY RIGHT OF A THIRD PARTY.
(I)
THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT WILL NOT (I) RESULT IN THE LOSS OF, OR OTHERWISE ADVERSELY AFFECT, ANY
RIGHTS OF GISH IN ANY INTELLECTUAL PROPERTY ASSETS; (II) GRANT OR REQUIRE GISH
TO GRANT TO ANY PERSON ANY RIGHTS WITH RESPECT TO ANY INTELLECTUAL PROPERTY
ASSETS; (III) SUBJECT GISH TO ANY INCREASE IN ROYALTIES OR OTHER PAYMENTS IN
RESPECT OF ANY INTELLECTUAL PROPERTY ASSETS; OR (IV) DIMINISH ANY ROYALTIES OR
OTHER PAYMENTS GISH WOULD OTHERWISE BE ENTITLED TO IN RESPECT OF ANY
INTELLECTUAL PROPERTY ASSETS.
(J)
INFORMATION TECHNOLOGY.
(I)
THE IT SYSTEMS HAVE BEEN PROPERLY MAINTAINED BY TECHNICALLY
COMPETENT PERSONNEL IN ACCORDANCE WITH STANDARDS SET BY THE MANUFACTURERS OR
OTHERWISE IN ACCORDANCE WITH STANDARDS PRUDENT IN THE BUSINESS FOR PROPER
OPERATION, MONITORING AND USE.
THE IT SYSTEMS ARE IN GOOD WORKING CONDITION TO
EFFECTIVELY PERFORM ALL INFORMATION TECHNOLOGY OPERATIONS NECESSARY OR ADVISABLE
FOR THE CONDUCT OF THE BUSINESS.
GISH HAS NOT EXPERIENCED WITHIN THE PAST
TWELVE (12) MONTHS ANY MATERIAL DISRUPTION TO, OR MATERIAL INTERRUPTION IN, ITS
CONDUCT OF THE BUSINESS ATTRIBUTABLE TO A DEFECT, BUG, BREAKDOWN OR OTHER
FAILURE OR DEFICIENCY ON THE PART OF THE IT SYSTEMS.
(II)
EXCEPT FOR SCHEDULED OR ROUTINE MAINTENANCE WHICH WOULD NOT
REASONABLY BE EXPECTED TO CAUSE ANY MATERIAL DISRUPTION TO, OR MATERIAL
INTERRUPTION IN, THE CONDUCT OF THE BUSINESS, THE IT SYSTEMS ARE AVAILABLE FOR
USE DURING NORMAL WORKING HOURS.
GISH HAS TAKEN COMMERCIALLY REASONABLE STEPS
TO PROVIDE FOR THE BACKUP AND RECOVERY OF THE DATA AND INFORMATION CRITICAL TO
THE CONDUCT OF THE BUSINESS (INCLUDING SUCH DATA AND INFORMATION THAT IS STORED
ON MAGNETIC OR OPTICAL MEDIA IN THE ORDINARY COURSE OF BUSINESS) WITHOUT
MATERIAL DISRUPTION TO, OR MATERIAL INTERRUPTION IN, THE CONDUCT OF THE
BUSINESS.
(III)
GISH IS IN COMPLIANCE WITH ALL LEGAL REQUIREMENTS REGARDING THE
COLLECTION, USE AND PROTECTION OF PERSONAL INFORMATION AND GISH'S PUBLISHED AND
INTERNAL PRIVACY AND DATA SECURITY POLICIES AND PROCEDURES, INCLUDING WITHOUT
LIMITATION THE U.S. HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996
(AS MAY BE AMENDED FROM TIME TO TIME), AND ANY FOREIGN EQUIVALENTS THEREOF.
43
3.23.
NO INTRAGROUP LIABILITIES.
AS OF THE CLOSING DATE, GISH WILL