THOSE ENTERED INTO IN THE ORDINARY COURSE AND CONSISTENT WITH PAST PRACTICE;
(XIV)
ALL SETTLEMENTS OF ADMINISTRATIVE, JUDICIAL,
MEDIATION OR ARBITRATION PROCEEDINGS;
(XV)
ALL LEASES OR SUBLEASES OF LEASED REAL PROPERTY;
(XVI)
ALL LEASES OR SUBLEASES OF TANGIBLE PERSONAL
PROPERTY WHICH REQUIRE A PAYMENT IN 2004 IN EXCESS OF $100,000;
(XVII)
ALL TRANSFERRED IP AGREEMENTS; AND
(XVIII)
ALL OTHER CONTRACTS AND AGREEMENTS, WHETHER OR NOT
MADE IN THE ORDINARY COURSE OF BUSINESS, WHICH ARE MATERIAL TO THE SELLER OR THE
CONDUCT OF THE BUSINESS, OR THE ABSENCE OF WHICH WOULD HAVE A MATERIAL ADVERSE
EFFECT.
(B)
EXCEPT AS SET FORTH IN SECTION 3.14(B) OF
THE DISCLOSURE SCHEDULE, EACH MATERIAL CONTRACT IS VALID AND BINDING ON THE
SELLER THERETO AND IS IN FULL FORCE AND EFFECT.
THE SELLER IS NOT IN MATERIAL
BREACH OF, OR DEFAULT UNDER, ANY MATERIAL CONTRACT.
(C)
TO THE BEST KNOWLEDGE OF THE SELLER, NO
OTHER PARTY TO ANY MATERIAL CONTRACT IS IN MATERIAL BREACH THEREOF OR DEFAULT
THEREUNDER AND THE SELLER HAS NOT RECEIVED ANY NOTICE OF TERMINATION,
CANCELLATION, BREACH OR DEFAULT UNDER ANY MATERIAL CONTRACT.
(D)
THE SELLER HAS MADE AVAILABLE TO THE
PURCHASER TRUE AND COMPLETE COPIES OF ALL MATERIAL CONTRACTS, INCLUDING ALL
AMENDMENTS, SUPPLEMENTS AND MODIFICATIONS THERETO OR WAIVERS CURRENTLY IN EFFECT
THEREUNDER.
(E)
EXCEPT AS SET FORTH IN SECTION 3.14(E) OF
THE DISCLOSURE SCHEDULE, THERE IS NO CONTRACT, AGREEMENT OR OTHER ARRANGEMENT
GRANTING ANY PERSON ANY PREFERENTIAL RIGHT TO
36
PURCHASE, OTHER THAN IN THE ORDINARY COURSE OF BUSINESS CONSISTENT WITH PAST
PRACTICE, ANY OF THE PURCHASED ASSETS.
SECTION 3.15.
Intellectual Property.
(a)
Section 3.15(a) of the Disclosure
Schedule sets forth a true and complete list of (i) all patents and patent
applications, registered trademarks and trademark applications, and registered
copyrights and copyright applications, and domain names included in the Owned
Intellectual Property, (ii) all Transferred IP Agreements and (iii) all other
Owned Intellectual Property (other than trade secrets) material to the Business.
(B)
EXCEPT AS SET FORTH IN SECTION 3.15(B) OF
THE DISCLOSURE SCHEDULE TO THE BEST KNOWLEDGE OF THE SELLER, THE OPERATION OF
THE BUSINESS AS CURRENTLY CONDUCTED OR AS CONTEMPLATED TO BE CONDUCTED, THE USE
OF THE OWNED INTELLECTUAL PROPERTY, THE LICENSED INTELLECTUAL PROPERTY, THE
SHARED MIS SYSTEMS AND THE DEVELOPED SOFTWARE IN CONNECTION THEREWITH AND THE
SELLER'S TRANSMISSION, USE, LINKING AND OTHER PRACTICES RELATED TO THE OPERATION
OF THEIR WEB SITES IN CONNECTION WITH THE BUSINESS, THE CONTENT THEREOF AND THE
ADVERTISEMENTS CONTAINED THEREIN, DO NOT, IN ANY MATERIAL RESPECTS, 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, THREATENED AGAINST THE SELLER ALLEGING ANY OF THE
FOREGOING.
(C)
THE SELLER IS THE EXCLUSIVE OWNER OF THE
ENTIRE AND UNENCUMBERED RIGHT, TITLE AND INTEREST IN AND TO THE OWNED
INTELLECTUAL PROPERTY AND THE TRANSFERRED IP AGREEMENTS, AND THE SELLER HAS A
VALID RIGHT TO USE THE