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This excerpt taken from the ROL 8-K filed Apr 1, 2008. Intellectual
Property.
(a) Schedule 4.18(a)
contains a list of (i) all Seller Intellectual Property described in clauses
(i), (iii) and (iv) of the definition of Intellectual Property, (ii) any
software owned by any Seller and (iii) any Contracts pursuant to which any
software is licensed to any Seller (other than any Contracts licensing Excluded
Intellectual Property or which are shrink wrap, off-the-shelf or click-through
licenses).
(b) No Seller
Intellectual Property that is owned by Sellers or Centex Assigned IP is subject
to any proceeding or outstanding decree, order, judgment, agreement or
stipulation restricting in any manner the use, transfer or licensing thereof by
Sellers or Centex, or which may affect the validity thereof except as would not
reasonably be expected to have a Material Adverse Effect. Except as
addressed in the immediately preceding sentence, to the Knowledge of Sellers, no
Seller Intellectual Property that is licensed to Sellers is subject to any
proceeding or outstanding decree, order, judgment, agreement or stipulation
restricting in any manner the use, transfer or licensing thereof by Sellers, or
which may affect the validity thereof except as would not reasonably be expected
to have a Material Adverse Effect. Except for the items of Seller
Registered Intellectual Property and Centex Registered Intellectual Property
listed in Schedule 4.18(b),
each item of Seller Registered Intellectual Property and Centex Registered
Intellectual Property is subsisting and, to the Knowledge of Sellers,
valid. All necessary registration, maintenance and renewal fees
currently due in connection with Seller Registered Intellectual Property and
Centex Registered Intellectual Property have been made and all necessary
documents, recordations and certifications that are due in respect of such
Seller Registered Intellectual Property and Centex Registered Intellectual
Property have been filed with the relevant patent, copyright, trademark or other
authorities in the United States or foreign jurisdictions, as the case may be,
for the purpose of maintaining such Seller Registered Intellectual Property and
Centex Registered Intellectual Property.
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(c) To the
Knowledge of Sellers, Sellers own and have good and exclusive title to, or have
licenses (sufficient for the conduct of the Business as currently conducted) to,
each item of Seller Intellectual Property free and clear of any Liens (excluding
licenses and related restrictions and terminal disclaimers) other than Permitted
Liens. Centex owns and has good and exclusive title to each of the
Assigned Trademarks and, to the Knowledge of Sellers, each of the Assigned
Patents, free and clear of any Liens (excluding licenses and related
restrictions and terminal disclaimers) other than Permitted
Liens. Except as set forth on Schedule 4.18(c),
none of Sellers or Centex or its Affiliates have granted any rights or interest
in the Seller Intellectual Property or Centex Assigned IP to a third
party.
(d) To the
extent that any Seller Intellectual Property or Centex Assigned IP has been
developed or created by a third party for Sellers or Centex or its Affiliates
and is material to the operations of the Business as currently conducted, to the
Knowledge of Sellers, Sellers or Centex, as applicable, (i) have obtained
ownership of and are the exclusive owners of, or (ii) have obtained a
license (sufficient for the conduct of the Business as currently conducted and
as proposed to be conducted) to all of such third party’s Intellectual Property
in such work, material or invention by operation of law or by valid assignment,
to the fullest extent it is legally possible to do so.
(e) To the
Knowledge of Sellers, the operation of the Business as it is currently
conducted, including Sellers’ design, development, marketing and sale of the
products or services of the Business (including with respect to products
currently under development), does not infringe or misappropriate in any
manner the Intellectual Property of any third party or, to the Knowledge of
Sellers, constitute unfair competition or trade practices under the Laws of any
jurisdiction.
(f) In the
past three (3) years, Sellers have not received written notice or any other
overt threats from any third party, that the operation of the Business as it is
currently conducted, or any act, product or service of the Business, materially
infringes or misappropriates the Intellectual Property of any third party or
constitutes unfair competition or trade practices under the Laws of any
jurisdiction.
(g) To the
Knowledge of Sellers, no Person has or is infringing or misappropriating any
Seller Intellectual Property or Centex Assigned IP, except for any infringement
or misappropriation which would not reasonably be expected to have a Material
Adverse Effect.
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