PROPERTY OWNED OR USED BY ANY THIRD PARTY WHICH REASONABLY COULD BE
EXPECTED TO SUPERSEDE OR MAKE OBSOLETE ANY PRODUCT OR PROCESS OF THE COMPANY
ENTITIES, OR TO LIMIT THE BUSINESS.
ALL OF THE COMPUTER FIRMWARE, COMPUTER
HARDWARE, AND COMPUTER SOFTWARE (WHETHER GENERAL OR SPECIAL PURPOSE) AND OTHER
SIMILAR OR RELATED ITEMS OF AUTOMATED, COMPUTERIZED, AND/OR SOFTWARE
SYSTEM(S) USED OR RELIED UPON BY THE COMPANY ENTITIES AND IN THE CONDUCT OF ITS
BUSINESS ARE IN GOOD OPERATING CONDITION, REPAIR, SUBJECT ONLY TO THE PROVISION
OF USUAL AND CUSTOMARY MAINTENANCE, AND SUFFICIENT FOR THE CONDUCT OF THE
BUSINESS.
(H)
ALL COMPANY INTELLECTUAL PROPERTY OWNED BY
EACH OF THE COMPANY ENTITIES HAS BEEN (I) DEVELOPED BY EMPLOYEES OF SUCH COMPANY
ENTITY, (II) DEVELOPED BY INDEPENDENT CONTRACTORS TO SUCH COMPANY ENTITY,
(III) ACQUIRED FROM A THIRD PARTY UNDER A CONTRACT LISTED ON
SCHEDULE 2.10(A) AND/OR (IV) CREATED AS WORKS MADE FOR HIRE.
EVERY CURRENT AND
FORMER OFFICER, DIRECTOR, CONSULTANT, INDEPENDENT CONTRACTOR AND EMPLOYEE OF THE
COMPANY ENTITIES HAS EXECUTED A CONTRACT THAT ASSIGNS TO SUCH COMPANY ENTITY ALL
OF THEIR INTERESTS IN ANY AND ALL INVENTIONS, IMPROVEMENTS, DISCOVERIES,
WRITINGS AND OTHER WORKS OF AUTHORSHIP, AND INFORMATION RELATING TO THE BUSINESS
OR ANY OF THE PRODUCTS OR SERVICES BEING RESEARCHED, DEVELOPED, MANUFACTURED OR
SOLD BY SUCH COMPANY ENTITY OR THAT MAY BE USED WITH ANY SUCH PRODUCTS OR
SERVICES, AND ALL RIGHTS IN INTELLECTUAL PROPERTY RELATING THERETO.
NO SUCH
PERSON IS IN BREACH OF
12
HIS OR HER OBLIGATIONS UNDER SUCH CONTRACTS, AND NO SUCH PERSON IS PARTY TO ANY
CONFLICTING CONTRACT, INCLUDING ANY CONTRACT THAT RESTRICTS THEM FROM ENGAGING
IN ACTIVITIES FOR THE COMPANY ENTITIES.
(I)
THE COMPANY ENTITIES HAVE NOT (EXCEPT IN
THE ORDINARY COURSE OF BUSINESS UNDER OBLIGATIONS OF CONFIDENTIALITY) DISCLOSED
OR PERMITTED TO BE DISCLOSED OR UNDERTAKEN OR ARRANGED TO DISCLOSE TO ANY PERSON
OTHER THAN BUYER ANY TRADE SECRETS OWNED BY ANY COMPANY ENTITY OR USED OR HELD
FOR USE BY ANY COMPANY ENTITY IN THE BUSINESS (THE "COMPANY TRADE SECRETS").
THE COMPANY ENTITIES HAVE TAKEN ALL REASONABLE SECURITY MEASURES TO PROTECT THE
SECRECY, CONFIDENTIALITY AND VALUE OF THE COMPANY TRADE SECRETS, INCLUDING,
WITHOUT LIMITATION, REQUIRING EACH EMPLOYEE AND CONSULTANT OF THE COMPANY
ENTITIES AND ANY OTHER PERSON WITH ACCESS TO COMPANY TRADE SECRETS TO EXECUTE A
BINDING CONFIDENTIALITY AGREEMENT, COPIES OR FORMS OF WHICH HAVE BEEN PROVIDED
TO THE BUYER AND THERE HAS NOT BEEN ANY BREACH BY ANY PARTY TO SUCH
CONFIDENTIALITY AGREEMENTS.
(J)
NONE OF THE PRODUCTS CONTAIN,
INCORPORATE, LINK OR CALL TO OR OTHERWISE USE OPEN SOURCE SOFTWARE, AND THE
INCORPORATION, LINKING, CALLING OR OTHER USE IN OR BY ANY SUCH PRODUCT OF ANY
SUCH OPEN SOURCE SOFTWARE DOES NOT OBLIGATE ANY COMPANY ENTITY TO DISCLOSE, MAKE
AVAILABLE, OFFER OR DELIVER ANY PORTION OF THE SOURCE CODE OF SUCH PRODUCT OR
COMPONENT THEREOF TO ANY THIRD PARTY OTHER THAN THE APPLICABLE OPEN SOURCE
SOFTWARE.
2.11
Litigation, Etc.
Except as set forth on
Schedule 2.11, there are no Actions pending or threatened against or affecting