Intellectual Property; Computer Software. (a) The Company owns or otherwise holds the right to use all Intellectual Property Rights necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted (the “Necessary IP Rights”, except where the failure to hold such rights would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. The consummation of the transactions contemplated by this Agreement will not (i) restrict, encumber, impair or extinguish any material Necessary IP Rights in any material respect, or (ii) result in the creation of any material Lien with respect to any of the material Intellectual Property Rights owned or otherwise held by the Company or any of its Subsidiaries. (b) To the knowledge of the Company, there are no pending or threatened material Proceedings (i) alleging infringement, misappropriation or any other violation of any Intellectual Property Rights of any Person by the Company or its Subsidiaries or by any of its products or services, or (ii) challenging the scope, ownership, validity, or enforceability of the Company IP, or of the Company’s or any of its Subsidiaries’ rights under the Necessary IP Rights, other than ordinary course correspondence between the Company and any patent, trademark, or copyright Governmental Authority in connection with the prosecution of any Registered IP. The Company and its Subsidiaries have not infringed, misappropriated or otherwise violated any Intellectual Property Rights of any Person, except where such infringement, misappropriation or violation would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. (c) (i) The Company IP is not jointly owned by any Third Party and is free and clear of any Lien, and (ii) there are no material restrictions on the disclosure, use, license or transfer of the Necessary IP Rights, the Company IP or the Company Software Products, including any restrictions that would impair in any material respect Parent’s ability to operate the business immediately after the Effective Time, or that will cause the Necessary IP Rights owned by the Company, the Company IP or the Company Software Products to be forfeited or changed adversely in any material respect as a result of the transactions contemplated by this Agreement. (d) Section 5.20(d)(i) of the Company Disclosure Schedule contains a true and complete list in all material respects of all Registered IP as of the date of this Agreement. The Company and its Subsidiaries have taken all commercially reasonable actions to maintain and protect the Registered IP. None of the material Registered IP has been adjudged invalid or unenforceable in whole or part and, to the knowledge of the Company, all Registered IP is valid and enforceable. (e) Section 5.20(e)(i) of the Company Disclosure Schedule contains as of the date of this Agreement, a true and complete list (in all material respects) of all material licenses and other material Contracts pursuant to which the Company or any Subsidiary is granted rights in any third-party Intellectual Property Rights (x) sold with or incorporated into any Company Software Product, or (y) used or held for use by the Company for any other purpose (excluding, for purposes of clause (y) only, any generally available software programs licensed by the Company on standard terms and used by Company or any of its Subsidiaries solely for internal purposes); provided that with respect to Publicly Available Software, this representation is made to the knowledge of the Company as of the date of this Agreement. Section 5.20(e)(ii) of the Company Disclosure Schedule contains as of the date of this Agreement, a true and complete list (in all material respects) of all agreements granting any third party any current or contingent material rights to further license, sell or otherwise distribute products or services other than for the Company or any of its Subsidiaries (e.g., other than any marketing, reseller, partner, OEM and distributor agreement for the Company or any of its Subsidiaries) utilizing the Company IP. (f) The Company and its Subsidiaries have taken commercially reasonable steps to protect their rights in confidential information and trade secrets and to protect any confidential information provided by any other Person under obligation of confidentiality. To the Company’s knowledge, the Company and its Subsidiaries have obtained from all parties (including current or former directors, officers or employees) who have created any portion of, or otherwise who would have any rights in or to, any Company IP or Company Software Product valid and enforceable written assignments of any such rights to the Company and its Subsidiaries. (g) Section 5.20(g) of the Company Disclosure Schedule contains a true and complete list of all Company Software Products. (h) To the knowledge of the Company, as of the date hereof, the Company and its Subsidiaries have not incorporated or otherwise used Publicly Available Software in a manner that would require, or condition the use or distribution of any Company Software Product on the disclosure, licensing or distribution of any source code for any material portion of such Company Software Product. “Publicly Available Software” means any code that is, in whole or in part, subject to the provisions of any license to software that is made generally available to the public without requiring payment of fees or royalties (including any obligation or condition under any “open source” license such as, without limitation, the GNU General Public License, GNU Lesser General Public License, Mozilla Public License or BSD licenses.
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Intellectual Property; Computer Software. (a) The Company owns or otherwise holds the right to use all Intellectual Property Rights necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted (the “Necessary IP Rights”Rights , except where the failure to hold such rights would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. The consummation of the transactions contemplated by this Agreement will not (i) restrict, encumber, impair or extinguish any material Necessary IP Rights in any material respect, or (ii) result in the creation of any material Lien with respect to any of the material Intellectual Property Rights owned or otherwise held by the Company or any of its Subsidiaries.
(b) To the knowledge of the Company, there are no pending or threatened material Proceedings (i) alleging infringement, misappropriation or any other violation of any Intellectual Property Rights of any Person by the Company or its Subsidiaries or by any of its products or services, or (ii) challenging the scope, ownership, validity, or enforceability of the Company IP, or of the Company’s or any of its Subsidiaries’ rights under the Necessary IP Rights, other than ordinary course correspondence between the Company and any patent, trademark, or copyright Governmental Authority in connection with the prosecution of any Registered IP. The Company and its Subsidiaries have not infringed, misappropriated or otherwise violated any Intellectual Property Rights of any Person, except where such infringement, misappropriation or violation would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(c) (i) The Company IP is not jointly owned by any Third Party and is free and clear of any Lien, and (ii) there are no material restrictions on the disclosure, use, license or transfer of the Necessary IP Rights, the Company IP or the Company Software Products, including any restrictions that would impair in any material respect Parent’s ability to operate the business immediately after the Effective Time, or that will cause the Necessary IP Rights owned by the Company, the Company IP or the Company Software Products to be forfeited or changed adversely in any material respect as a result of the transactions contemplated by this Agreement.
(d) Section 5.20(d)(i) of the Company Disclosure Schedule contains a true and complete list in all material respects of all Registered IP as of the date of this Agreement. The Company and its Subsidiaries have taken all commercially reasonable actions to maintain and protect the Registered IP. None of the material Registered IP has been adjudged invalid or unenforceable in whole or part and, to the knowledge of the Company, all Registered IP is valid and enforceable.
(e) Section 5.20(e)(i) of the Company Disclosure Schedule contains as of the date of this Agreement, a true and complete list (in all material respects) of all material licenses and other material Contracts pursuant to which the Company or any Subsidiary is granted rights in any third-party Intellectual Property Rights (x) sold with or incorporated into any Company Software Product, or (y) used or held for use by the Company for any other purpose (excluding, for purposes of clause (y) only, any generally available software programs licensed by the Company on standard terms and used by Company or any of its Subsidiaries solely for internal purposes); provided that with respect to Publicly Available Software, this representation is made to the knowledge of the Company as of the date of this Agreement. Section 5.20(e)(ii) of the Company Disclosure Schedule contains as of the date of this Agreement, a true and complete list (in all material respects) of all agreements granting any third party any current or contingent material rights to further license, sell or otherwise distribute products or services other than for the Company or any of its Subsidiaries (e.g., other than any marketing, reseller, partner, OEM and distributor agreement for the Company or any of its Subsidiaries) utilizing the Company IP.
(f) The Company and its Subsidiaries have taken commercially reasonable steps to protect their rights in confidential information and trade secrets and to protect any confidential information provided by any other Person under obligation of confidentiality. To the Company’s knowledge, the Company and its Subsidiaries have obtained from all parties (including current or former directors, officers or employees) who have created any portion of, or otherwise who would have any rights in or to, any Company IP or Company Software Product valid and enforceable written assignments of any such rights to the Company and its Subsidiaries.
(g) Section 5.20(g) of the Company Disclosure Schedule contains a true and complete list of all Company Software Products.
(h) To the knowledge of the Company, as of the date hereof, the Company and its Subsidiaries have not incorporated or otherwise used Publicly Available Software in a manner that would require, or condition the use or distribution of any Company Software Product on the disclosure, licensing or distribution of any source code for any material portion of such Company Software Product. “Publicly Available Software” means any code that is, in whole or in part, subject to the provisions of any license to software that is made generally available to the public without requiring payment of fees or royalties (including any obligation or condition under any “open source” license such as, without limitation, the GNU General Public License, GNU Lesser General Public License, Mozilla Public License or BSD licenses.
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Sources: Merger Agreement (Oracle Corp)