AMENDED AND RESTATED
ASSET PURCHASE AGREEMENT
THIS
AMENDED AND RESTATED ASSET PURCHASE AGREEMENT (this
"AGREEMENT"),
dated as of March 9, 2006, is by and among OneTravel Holdings,
Inc., a Delaware
corporation ("OTV"), FS SunTours, Inc., a Delaware corporation
("SELLER"), and
CRYSTAL HOSPITALITY HOLDINGS, INC., a Delaware corporation
("BUYER").
RECITALS
--------
A. OTV,
Seller and Buyer entered into that certain Asset Purchase
Agreement dated as of January 28, 2006 (the "ORIGINAL AGREEMENT")
whereby Seller
agreed to sell to Buyer, and Buyer agreed to purchase from Seller,
upon the
terms and conditions set forth in the Original Agreement,
substantially all of
the assets of Seller.
B.
Pursuant to the Original Agreement, Seller agreed to assign to
Buyer,
and Buyer agreed to assume from Seller, upon the terms and
conditions of the
Original Agreement, certain specified liabilities of Seller.
C.
Pursuant to the Original Agreement, Seller, a wholly-owned
subsidiary
of OTV, and OTV made certain agreements in order to facilitate the
transactions
contemplated in the Original Agreement.
D. OTV,
Seller and Buyer now desire to amend and restate the Original
Agreement as set forth herein.
AGREEMENT
---------
In
consideration of the premises and mutual covenants, agreements
and
provisions of the parties set forth in this Agreement and other
good and
valuable consideration, the receipt and sufficiency of which are
hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
-----------
1.1 For
purposes of this Agreement, the following terms have the
meaning
set forth below:
1
<PAGE>
"AFFILIATE" means, with respect to any Person: (i) any other
Person
directly or indirectly controlling, controlled by or under common
control with
the subject Person (including any partnership in which the subject
Person serves
as a general partner, any corporation in which the subject Person
owns greater
than 10% of the issued and outstanding voting capital stock or any
limited
liability company or joint venture in which the subject Person owns
greater than
10% of the equity interests of such limited liability company or
joint venture);
(ii) any officer, director, trustee or general partner of the
subject Person;
(iii) any individual which is a spouse, descendant (natural and
adopted) or
ancestor (natural and adopted) of the subject Person, or (iv) any
Person in
which more than 10% of the voting or beneficial interests are owned
by a Person
who has a relationship with the subject Person described in clause
(i), (ii) or
(iii) above; provided that, for the purposes of this definition,
"control"
(including, with correlative meanings, the terms "controlled by"
and "under
common control with"), as used with respect to any Person, shall
mean the
possession, directly or indirectly, of the power to direct or cause
the
direction of the management and policies of such Person, whether
through the
ownership of voting securities, by Contract or otherwise.
"BUSINESS"
means the business of Seller, namely the design, advertisement,
sale and distribution of leisure travel products and services,
including,
without limitation, charter and tour packages including
transportation and/or
lodging.
"BUYER
INDEMNIFIED PARTIES" means Buyer and its Affiliates and
Subsidiaries, and the officers, directors, shareholders, members,
employees,
attorneys, agents and fiduciaries of any of the foregoing.
"CODE" means the
Internal Revenue Code of 1986, as amended.
"CONSENT"
means any consent, approval, authorization, waiver, permit,
grant, franchise, concession, agreement, license, exemption or
order of,
registration, certificate, declaration or filing with, or report or
notice to,
any Person, including any Governmental Body.
"CONTRACT"
means any agreement, contract, license, lease, obligation,
promise, or undertaking (whether written or oral and whether
express or implied)
that is legally binding.
"GAAP"
means United States generally accepted accounting principles.
"GOVERNMENTAL AUTHORIZATION" means any approval, consent, license,
Permit,
waiver, or other authorization issued, granted, given, or otherwise
made
available by or under the authority of any Governmental Body or
pursuant to any
Legal Requirement.
"GOVERNMENTAL BODY" means any:
(a) federal, state, county, municipal, city, town, village,
district, or other jurisdiction or government of any nature;
(b) governmental or quasi-governmental authority or any nature
(including any governmental agency, branch, department, official,
or other
entity and any court or other tribunal); or
(c) body exercising, or entitled or purporting to exercise, any
administrative, executive, judicial, legislative, police,
regulatory, or taxing
authority or power of any nature.
"LEGAL
REQUIREMENT" means any federal, state, local, municipal or
other
constitution, ordinance, regulation, statute, rule or other law
adopted,
enacted, implemented, or promulgated by or under the authority of
any
Governmental Body or by the eligible voters of any jurisdiction,
and any
agreement, approval, consent, injunction, judgment, license, Order,
or Permit by
or with any Governmental Body or to which Seller is a party or by
which any of
Seller or the Purchased Assets are bound.
2
<PAGE>
"LIEN"
means any mortgage, pledge, hypothecation, claim, security
interest, encumbrance, lease, sublease, license, occupancy
agreement, adverse
claim or interest, easement, encroachment, burden, title defect,
title retention
agreement, voting trust agreement, interest, equity, option, lien
or right of
first refusal.
"ORDER"
means any award, injunction, judgment, order, ruling, subpoena,
or
verdict or other decision entered, issued, made, or rendered by any
court,
administrative agency, or other Governmental Body or by any
arbitrator.
"ORGANIZATIONAL DOCUMENTS" means (a) the articles or certificate
of
incorporation and the bylaws of a corporation; (b) any charter or
similar
document adopted or filed in connection with the creation,
formation, or
organization of a Person (e.g., a certificate of formation,
articles of
organization or certificate of limited partnership) and any
agreement governing
such Person (e.g., a limited liability company agreement, operating
agreement or
partnership agreement); and (c) any amendment to any of the
foregoing.
"PERMITS"
means all permits, licenses, approvals and authorizations by or
of any Governmental Body or any other party.
"PERSON"
means any individual, sole proprietorship, partnership, limited
liability company, joint venture, trust, unincorporated
association,
corporation, other entity or government (whether federal,
provincial, state,
county, city or otherwise, including, but not limited to, any
instrumentality,
division, agency or department thereof).
"PROCEEDING" means any claim, suit, litigation, arbitration,
hearing,
audit, charge, investigation, or other action (whether civil,
criminal,
administrative, investigative, or informal) commenced, brought,
conducted, or
heard by or before, or otherwise involving, any Governmental Body,
judge,
arbitrator or mediator.
"PROPRIETARY RIGHTS" means all intellectual property,
confidential
information, and proprietary information owned by or licensed to
Seller,
including, without limitation, registered company names and assumed
names;
patents and patent applications (including all reissuances,
continuations,
continuations-in-part, revisions, extensions and reexaminations
thereof) and
patent disclosures and inventions (whether or not patentable and
whether or not
reduced to practice); trademarks, service marks, trade dress, trade
names and
company names, together with the goodwill of Seller associated with
and
symbolized by such trademarks, service marks, trade dress, trade
names and
company names, in each case whether or not registered; registered
and
unregistered statutory and common law copyrights; domain names;
all
registrations, applications, extensions and renewals for any of the
foregoing;
trade secrets; lists of customers and potential customers;
marketing and sales
data and research; computer software; business plans, ideas,
formulae,
compositions, know-how, inventions, manufacturing and production
processes and
techniques, research and development information, drawings,
specifications, list
of suppliers, pricing and cost-information and records, blueprints,
surveys,
engineering reports, test reports, manuals, materials standards,
processing
standards, performance standards, catalogs, production methods,
business and
marketing proposals, plans, improvements, works of authorship,
proposals,
technical and computer data, databases, domain names, documentation
and
software, financial, business and marketing plans, and related
information and
other intellectual property, confidential information and
proprietary rights.
3
<PAGE>
"SELLER
INDEMNIFIED PARTIES" means Seller, OTV and their respective
Affiliates and Subsidiaries, and the officers, directors,
shareholders,
employees, attorneys, agents and fiduciaries of any of the
foregoing.
"STATEMENT
OF FIXED ASSETS" [Omitted].
"TAX" means any and
all federal, provincial, state, local or foreign
taxes, assessments and other governmental charges, duties,
impositions and
liabilities relating to taxes, including taxes, assessments and
other
governmental charges based on or measured by gross receipts,
income, profits,
sales, use and occupation, and franchise, estimated, alternative
minimum, add-on
minimum, sales, use, transfer, registration, value added, place of
business,
excise, natural resources, capital, severance, stamp, occupation,
premium,
windfall profit, environmental, customs, (or similar) duties, real
or immovable
property, personal or movable property, intangible property,
capital stock,
social security, employment, unemployment, disability, payroll,
license,
deductions at source employee or other withholding, or other tax,
of any kind
whatsoever, including any interest, penalties or additions to tax
or additional
amounts in respect of the foregoing; whether disputed or not, and
including any
transferee or secondary liability in respect of any tax (whether by
law,
contractual agreement, or otherwise) and any liability in respect
of any tax as
a result of being a member of any affiliated, consolidated,
combined, unitary,
or similar group.
"TAX
RETURNS" means returns, declarations, reports, claims for
refund,
information returns or other documents (including any related or
supporting
schedules, statements or information and any amendment thereof)
filed or
required to be filed in connection with the determination,
assessment or
collection of any Taxes of any party or the administration of any
laws,
regulations or administrative requirements relating to any
Taxes.
"TRANSACTION DOCUMENTS" means each agreement being executed and
delivered
by a party to this Agreement pursuant hereto.
ARTICLE II
PURCHASE AND SALE OF ASSETS
---------------------------
2.1
PURCHASED ASSETS.
(a) Purchased Assets. On the terms and subject to the conditions
set
forth in this Agreement, at the Closing, Seller shall sell,
transfer, convey,
assign and deliver to Buyer, and Buyer shall purchase from Seller,
all of
Seller's right, title and interest in and to all Proprietary Rights
of Seller
(collectively, the "PURCHASED ASSETS").
4
<PAGE>
(b) Excluded Assets. All assets of Seller other than the
Proprietary
Rights of Seller are retained by Seller and are expressly excluded
from the
purchase and sale contemplated by this Agreement (collectively, the
"EXCLUDED
ASSETS").
2.2
LIABILITIES.
(a)
Assumed Liabilities. On the terms and subject to the
conditions set forth in this Agreement, at the Closing, Buyer shall
assume and
agree to fully and timely perform, pay, satisfy and discharge all
the
liabilities and obligations arising under the Purchased Assets
solely relating
to Buyer's use of the Purchased Assets subsequent to Closing
(collectively, the
obligations and liabilities assumed under this Section 2.2, the
"ASSUMED
LIABILITIES").
(b) Excluded Liabilities. Notwithstanding Section 2.2, Buyer
shall
not assume, be or become liable for any claims, demands,
liabilities or
obligations of Seller other than the Assumed Liabilities (the
"EXCLUDED
LIABILITIES"), including, without limitation, any liability or
obligation
whether arising prior to or subsequent to the Closing, arising out
of the
Seller's operation of the Business prior to or subsequent to the
Closing,
including, without limitation, any liability or obligation under
any litigation
relating to or arising out of Seller's operation of the Business,
relating to or
arising out of Seller's employment of persons prior to Closing
(including under
the Federal Worker Adjustment and Retraining Notification Act of
1988, as
amended, and any successor law (the "WARN ACT"), or for any Taxes
of Seller
arising out of the transactions contemplated by this Agreement.
2.3
CONVEYANCE AND ASSUMPTION. At the Closing, Seller and Buyer
shall
execute and deliver a Bill of Sale, Assignment and Assumption
Agreement in the
form reasonably acceptable to Buyer and Seller (the "BILL OF
SALE"), pursuant to
which Seller shall convey to Buyer the Purchased Assets and Buyer
shall assume
from Seller the Assumed Liabilities.
2.4
CONSIDERATION AND ALLOCATION.
(a) In consideration for the transfer and assignment of the
Purchased Assets, on an annual basis until the earlier of the seven
(7) year
anniversary of the Closing or the termination of this Agreement,
Buyer shall
assume, pay or otherwise cause the discharge, waiver, forgiveness
or release of
an amount, measured at the full face amount, of Excluded
Liabilities set forth
on Schedule 2.4(a) (the "BUYER CREDIT") equal to or greater than
$1,200,000.
Buyer and Seller agree that the Buyer Credit shall be cumulative
and shall be
carried forward to all future annual obligations until such Buyer
Credit is
exhausted. In the event that during any annual period, the
cumulative Buyer
Credit is less than $1,200,000, Buyer shall pay Seller the
difference in cash.
Buyer shall pay each installment, if any, no later than ten days
following the
yearly anniversary of the Closing. Notwithstanding anything to the
contrary
contained in this Agreement, Buyer shall have no obligation to take
any action
relating to any Excluded Liability at any time.
(b) All consideration paid pursuant to Section 2.4(a) shall be
allocated for tax purposes among the Purchased Assets and the
other
consideration provided by Seller in accordance with the allocation
as is
reasonably acceptable to Seller, which acceptance shall not be
unreasonably
withheld. OTV, Buyer and Seller (a) agree to be bound, and to cause
their
respective Affiliates to be bound, by such allocation, (b) shall
act, and cause
their respective Affiliates to act, in accordance with such
allocation in the
preparation, filing and audit of any Tax Return and for all other
tax and
accounting purposes, and (c) shall not take any position or action
inconsistent
with such allocation.
5
<PAGE>
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
----------------------------------------
As a
material inducement to Buyer to enter into this Agreement,
Seller
represents and warrants to Buyer with respect to Seller, the
Business, the
Purchased Assets, the Excluded Assets, the Assumed Liabilities and
the Excluded
Liabilities, as applicable, and OTV represents and warrants to
Buyer solely with
respect to the representations and warranties contained in Sections
3.1(c),
3.1(d), 3.2, 3.3(b), 3.5(b), 3.6(c), 3.7(b), and 3.8(b) (the
representations and
warranties of Seller and OTV being several and not joint and not
joint and
several), as follows:
3.1
AUTHORITY.
(a) Seller has the absolute and unrestricted right, power,
authority
and capacity to execute and deliver, and to enter into and perform
its
obligations under, this Agreement and each of the Transaction
Documents to which
it is a party. The execution, delivery and performance of this
Agreement and
each of the Transaction Documents by Seller and the consummation of
the
transactions contemplated hereby by Seller have been duly and
validly authorized
by all requisite corporate action, and no other proceedings on the
part of
Seller are necessary to authorize the execution, delivery and
performance of
this Agreement and each of the Transaction Documents to which it is
a party.
This Agreement has been duly executed and delivered by Seller. Each
of the
Transaction Documents to which Seller is a party will, at Closing,
be duly
executed and delivered by Seller.
(b) Upon due execution and delivery, this Agreement and each of
the
Transaction Documents to which Seller is a party will constitute
the valid and
binding obligation of Seller, enforceable against Seller in
accordance with
their respective terms, except (i) as limited by general equitable
principles
and applicable bankruptcy, insolvency, reorganization, moratorium
and other laws
of general application affecting enforcement of creditors' rights
generally,
(ii) as limited by laws relating to the availability of specific
performance,
injunctive relief or other equitable remedies, and (iii) insofar
as
indemnification and contribution provisions may be limited by
applicable law.
(c) OTV has the absolute and unrestricted right, power,
authority
and capacity to execute and deliver, and to enter into and perform
its
obligations under, this Agreement and each of the Transaction
Documents to which
it is a party. The execution, delivery and performance of this
Agreement and
each of the Transaction Documents by OTV and the consummation of
the
transactions contemplated hereby by OTV have been duly and validly
authorized by
all requisite corporate action, and no other proceedings on the
part of OTV are
necessary to authorize the execution, delivery and performance of
this Agreement
and each of the Transaction Documents to which it is a party. This
Agreement has
been duly executed and delivered by OTV. Each of the Transaction
Documents to
which OTV is a party will, at Closing, be duly executed and
delivered by OTV.
6
<PAGE>
(d) Upon due execution and delivery, this Agreement and each of
the
Transaction Documents to which OTV is a party will constitute the
valid and
binding obligation of OTV, enforceable against OTV in accordance
with their
respective terms, except (i) as limited by general equitable
principles and
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of
general application affecting enforcement of creditors' rights
generally, (ii)
as limited by laws relating to the availability of specific
performance,
injunctive relief or other equitable remedies, and (iii) insofar
as
indemnification and contribution provisions may be limited by
applicable law.
3.2 OTV
SHAREHOLDER AUTHORIZATION. The sale of the Purchased Assets
pursuant to this Agreement does not constitute all or substantially
all of the
property and assets of OTV as such concept is defined under
Delaware General
Corporation Law Section 271 and does not require the approval or
consent of the
stockholders of OTV.
3.3 NO
CONFLICT.
(a) Neither the execution and delivery of this Agreement or any
Transaction Document by Seller nor the performance by Seller of the
transactions
contemplated hereby or thereby will conflict with or result in
(with or without
notice or lapse of time or both) a violation, breach, or default
under, or
result in the acceleration of or give rise to any party the right
to terminate,
modify or cancel under, or result in the loss of any rights,
privileges, options
or alternatives under, or result in the creation of any Lien on any
of the
Purchased Assets as the case may be, of (i) any provision of
Seller's
Organizational Documents, (ii) any resolution adopted by Seller's
directors,
(iii) any Legal Requirement or any Order to which Seller or any of
the Purchased
Assets may be subject, or (iv) any Contract or other agreement or
instrument to
which Seller is a party or by which Seller or any of its properties
or assets
are bound, other than in the case of this clause (iv) any such
conflicts,
violations or defaults that, individually or in the aggregate, (A)
have not had
and could not reasonably be expected to have a material adverse
effect, and (B)
have not impaired and could not reasonably be expected to impair
Seller's
ability to perform its obligations hereunder. No Governmental
Authorization is
required to be obtained or made by Seller in connection with the
execution and
delivery of this Agreement or the consummation of the transactions
contemplated
hereby by Seller, other than any required Consent in connection
with the
transfer of any Permit.
(b) Neither the execution and delivery of this Agreement or any
Transaction Document by OTV or Seller nor the performance by OTV or
Seller of
the transactions contemplated hereby or thereby to be performed by
OTV or
Seller, respectively, will conflict with or result in (with or
without notice or
lapse of time or both) a violation, breach, or default under, or
result in the
acceleration of or give rise to any party the right to terminate,
modify or
cancel under, or result in the loss of any rights, privileges,
options or
alternatives under, or result in the creation of any Lien on any of
the
Purchased Assets as the case may be, of (i) any Legal Requirement
or any Order
to which OTV may be subject, or (ii) any Contract or other
agreement or
instrument to which OTV is a party or by which OTV, or any of its
properties or
assets other than the Seller or the properties or assets of the
Seller, are
bound, other than in the case of this clause (ii) any such
conflicts, violations
or defaults that, individually or in the aggregate, (A) have not
had and could
not reasonably be expected to have a material adverse effect, and
(B) have not
impaired and could not reasonably be expected to impair OTV's
ability to perform
their respective obligations hereunder. No Governmental
Authorization is
required to be obtained or made by OTV in connection with the
execution and
delivery of this Agreement or the consummation of the transactions
contemplated
hereby by OTV. OTV is an "ultimate parent entity" within the
meaning of Section
801.1(a)(3) of the rules of the Federal Trade Commission
promulgated under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended.
7
<PAGE>
3.4
[OMITTED] .
3.5
LITIGATION.
(a) Except as set forth on Schedule 3.5(a) hereto, there is no
pending Proceeding that has been commenced or threatened in writing
by or
against Seller that (i) challenges, or that may have the effect of
preventing,
delaying, making illegal, or otherwise interfering with, any of the
transactions
contemplated by this Agreement, or (ii) is by or against or
relating to Seller
in connection with the Purchased Assets or the Business seeking
unspecified
damages, damages in excess of $10,000 or any injunctive or other
equitable
relief. There are no judgments unsatisfied against Seller or
consent decrees or
injunctions to which Seller or the Purchased Assets are
subject.
(b) Except as set forth on Schedule 3.5(b) hereto, there is no
pending Proceeding that has been commenced or threatened in writing
by or
against OTV that challenges, or that may have the effect of
preventing,
delaying, making illegal, or otherwise interfering with, any of the
transactions
contemplated by this Agreement.
3.6
TITLE.
(a) Seller is the sole and exclusive owner of and has good title
to
the Purchased Assets, has not granted any option, right, privileges
or license
to any third party that interferes or conflicts with the rights and
privileges
granted to Buyer hereunder, and has the full and sufficient right
and authority
to possess and convey, and, subject to the terms hereof, upon the
consummation
of the transactions contemplated by this Agreement, Seller will
have conveyed
and Buyer will be vested with, good and marketable title and
interest in and to
the Purchased Assets and all rights therein, free and clear of any
and all
Liens.
(b) To the knowledge of Seller, no claims or actions have been
asserted or are pending or threatened overtly in writing against
Seller or
against any third party (i) based upon or challenging or seeking to
expressly
deny or restrict the use of any of the Purchased Assets, (ii)
alleging expressly
that any products or services manufactured, marketed or sold by
Seller infringe
on any patent, trademark, copyright, or any other right of any
third party or
(iii) alleging expressly that the use of the Purchased Assets does
or may
infringe upon the rights of any third party.
(c) Prior to the Closing, OTV has sold, transferred, set over,
conveyed, assigned and delivered to Seller all interest held by
OTV, if any, in
any Purchased Assets, which excludes all Toyota Scions.
8
<PAGE>
3.7
BROKERS OR FINDERS.
(a) Other than in connection with that certain Consulting
Agreement,
dated October 26, 2005, by and among Seller, OTV and Crystal
Finance LLC, none
of Seller or any of its Affiliates or agents other than OTV has
incurred and no
action taken by Seller or any of its Affiliates or agents other
than OTV in
connection with this Agreement or the Transaction Documents or any
transaction
contemplated hereby or thereby, could be reasonably expected to
give rise to any
valid claim against Seller or its Affiliates other than OTV, or any
obligation
or liability, contingent or otherwise, for brokerage or finders'
fees or agents'
commissions or other similar payment in connection with this
Agreement or the
Transaction Documents or the transactions contemplated hereby and
thereby. Other
than in connection with that certain Consulting Agreement, dated
October 26,
2005, by and among Seller, OTV and Crystal Finance LLC, none of OTV
or any of
its Affiliates or agents other than Seller has incurred and no
action taken by
OTV or any of its Affiliates or agents other than Seller in
connection with this
Agreement or the Transaction Documents or any transaction
contemplated hereby or
thereby, could be reasonably expected to give rise to any valid
claim against
OTV or its Affiliates other than Seller, or any obligation or
liability,
contingent or otherwise, for brokerage or finders' fees or agents'
commissions
or other similar payment in connection with this Agreement or the
Transaction
Documents or the transactions contemplated hereby and thereby.
3.8 DUE
INCORPORATION.
(a) Seller is a corporation duly organized, validly existing and
in
good standing under the laws of the State of Delaware. Seller has
full corporate
power and authority to carry on the Business as presently conducted
and to own
or lease and to operate the properties of the Business presently
owned or leased
and operated.
(b) OTV is a corporation duly organized, validly existing and
in
good standing under the laws of the State of Delaware.
3.9
ABSENCE OF UNDISCLOSED LIABILITIES : EXCEPT AS SET FORTH IN
SCHEDULE
3.5(A), Seller has no known existing debts, claims, commitments,
liabilities or
obligations of any nature arising out of or relating to the
Purchased Assets.
3.10
[OMITTED]
3.11
[OMITTED]
3.12
COMPLIANCE WITH LAWS; GOVERNMENTAL APPROVALS AND CONSENTS.
(a) To the knowledge of Seller, Seller has complied in all
material
respects with all Applicable Laws required to be complied with by
Seller
applicable to the Purchased Assets.
(b) [Omitted]
(c) All Governmental Authorizations and Consents have been duly
obtained and are in full force and effect, to the extent required
and Seller is
in compliance in all material respects with each of such
Governmental
Authorizations and Consents held by it with respect to the
Purchased Assets.
9
<PAGE>
3.13
[OMITTED].
3.14
[OMITTED].
3.15
PROPRIETARY RIGHTS.
(a) None of the Proprietary Rights owned by Seller is subject to
any
Lien in favor of any third party. None of Seller's rights in or to
any of its
Proprietary Rights shall be adversely affected by its execution or
delivery of
this Agreement or by the performance of its obligations hereunder.
No claims
with respect to any Proprietary Rights have been asserted or, to
Seller's
knowledge, threatened by any Person (i) against Seller, or (ii) to
Seller's
knowledge, against any other Person based on its use of any of the
Proprietary
Rights. To the knowledge of Seller, no use of any of the
Proprietary Rights by
any Person (including Seller) constitutes or has constituted an
unauthorized
use, infringement, misappropriation or other violation of the
intellectual
property or rights therein of any other Person and no valid grounds
exist for
any bona fide claims against Seller or any such Person with respect
to any
Proprietary Rights. Without limiting the generality of the
foregoing, no Person
ever employed or otherwise engaged by Seller has asserted or, to
Seller's
knowledge, threatened any claim against Seller alleging
infringement,
misappropriation or violation of any rights of such Person's
intellectual
property or rights therein or alleging or claiming any right or
interest in or
to the Proprietary Rights. To the knowledge of Seller, there has
not been, nor
is there presently, any unauthorized use, infringement,
misappropriation or
violation of any of the Proprietary Rights by any Person. Seller
has the full
right to possess, use, copy, distribute, display, transfer and
license all
Proprietary Rights used in the Business or covering any aspect of
the Business.
(b) No Proprietary Rights are subject to any outstanding order,
award, decision, injunction, judgment, decree, stipulation or
agreement in any
manner restricting the transfer, use, enforcement or licensing
thereof by
Seller. Seller has not entered into any agreement to indemnify any
other Person
against any charge of infringement of any Proprietary Rights,
except in
connection with certain customer contracts made in the ordinary
course of its
business. Seller has not entered into any agreement granting any
third party the
right to bring infringement actions with respect to, or otherwise
to enforce
rights with respect to, any of the Proprietary Rights.
(c) To the knowledge of Seller, Seller has paid all material
fees,
annuities and all other payments which have heretofore become due
to any
Governmental Body with respect to the Proprietary Rights Seller has
not
transferred its title in or to any of the Proprietary Rights. To
the knowledge
of Seller, no Proprietary Rights (including any source code and any
algorithm or
documentation contained in or relating to such source code) has
been supplied by
Seller to any Person except pursuant to a binding license
prohibiting further
distribution and disclosure. All computer programs and software
which are owned,
used or licensed by Seller, and all computer p
