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This excerpt taken from the MRVL 10-Q filed Sep 8, 2005. Personnel”) has
executed and delivered to Seller a proprietary information agreement
restricting such Person’s right to disclose proprietary information of Seller.
(e) Ownership; Sufficiency of Transferred Intellectual Property. Seller owns or possesses adequate licenses or other rights to use, free and clear of Liens (other than Permitted Liens), orders, arbitration awards and contingent licenses arising from termination provisions (or other causes) in agreements between Seller and any other Person, all of the Transferred Technology and Transferred Intellectual Property. Except (i) as provided on Section 3.6(e) of the Seller Disclosure Letter, (ii) for generally available desktop software used in the conduct of the Business pursuant to licenses (as referenced on Section 3.3 of the Seller Disclosure Letter), and (iii) for the assets to which Buyer shall have access as provided in the Transition Services Agreement or a license pursuant to the Retained Patent License Agreement or the IP and Technology License Agreement, the Transferred Intellectual Property and Transferred Technology constitutes all the Intellectual Property and Technology used in the operation of the Business as currently conducted and is all such Intellectual Property necessary to operate the Business after the Closing in substantially the same manner as the Business has been operated by Seller during the six (6) months prior to the Closing.
(f) No Infringement by Seller. Except as set forth on Section 3.6(f) of the Seller Disclosure Letter, the Transferred Intellectual Property and the Transferred Technology, and all related products and services used, marketed, sold or licensed by Seller in the conduct of the Business, do not infringe upon, violate or constitute the unauthorized use of any rights owned or controlled by any third party, including any Intellectual Property of any third party. Except as set forth in Section 3.6(f) of the Seller Disclosure Letter, no litigation is now, or since January 1, 2003 has been, pending and no notice or other claim has been received by Seller, with respect to the Transferred Technology or the Business, (A) alleging that any of Seller has engaged in any activity or conduct that infringes upon, violates or constitutes the unauthorized use of the Intellectual Property of any third party, including any contamination or misappropriation
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of trade secrets claims, or (B) challenging the ownership, use, validity or enforceability of any Intellectual Property owned or exclusively licensed by or to Seller.
(g) No Infringement by Third Parties. To Seller’s Knowledge, no third party is misappropriating, infringing, diluting or violating any of the Transferred Intellectual Property and no claims for any of the foregoing have been brought against any third party by Seller. Seller has taken commercially reasonable steps to protect the Transferred Intellectual Property.
(h) Assignment. The execution, delivery and performance by Seller of this Agreement and the related agreements to which Seller is a party, and the consummation of the transactions contemplated hereby and thereby, will not result in the loss or impairment of, or give rise to any right of any third party to terminate, any of Seller’s rights to own any of the Transferred Intellectual Property, nor require the consent of any Governmental Entity or third party in respect of any such Transferred Intellectual Property.
(i) Technology. The Transferred Technology was: (i) developed by employees of Seller within the scope of their employment; (ii) developed by independent contractors who have assigned their rights to Seller pursuant to written agreements; or (iii) otherwise acquired by Seller from a third party who assigned the Technology to Seller. To Seller’s Knowledge, none of the current officers and employees of Seller has any patents issued or applications pending for any method, device, process, design or invention of any kind now used or needed by Seller in the furtherance of the Business, which patents or applications have not been assigned to Seller, with such assignment duly recorded in the United States Patent and Trademark Office and foreign patent office, as applicable.
(j) Royalties and Licenses. Seller has no obligation to compensate or account to any Person for the use of any of the Transferred Intellectual Property.
(k) Export Control. Seller has obtained all approvals necessary for exporting from any country in which Seller’s products of the Business are developed and exported, including the Transferred Technology, in accordance with all applicable export control regulations and importing the products and Transferred Technology into any country in which the products and Transferred Technology are now sold or licensed for use, and all such export and import approvals throughout the world are valid, current, outstanding and in full force and effect.
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