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Exhibit 10.2
Joseph Stevens & Company, Inc.
59 Maiden Lane
32nd Floor
New York, NY 10038
Attention: Joseph Glodek
Dear Sirs:
1. Introductory .
HYBRID DYNAMICS CORPORATION, a Nevada corporation (the
“Company”), offers and proposes to sell (the
“Offering”) a minimum of 30 and a maximum of 50 Units
(the “Units”) each Unit composed of (i) 2,000 shares
its Series A Convertible 8% Preferred Stock, $5.00 stated value per
share (the “Preferred Stock”), (ii) Class A Warrants
for the purchase of 20,000 shares of its $0.00015 par value common
stock at an exercise price of $1.00 (“Warrants”), and
(iii) 5,000 shares of common stock $0.00015 par value (“Unit
Common Stock”), at a purchase price of $10,000.00 per Unit.
The Preferred Stock is convertible into the Company’s Common
Stock, $0.00015 par value (the “Common Stock”) at the
rate of ten (10) shares of Common Stock per each one (1) Preferred
Share. The Unit; Preferred Stock, Warrant and Unit Common
Stock are sometimes referred to collectively as the
“Securiites”.
The Company hereby agrees with the Selling Agent, as follows:
2. Representations and
Warranties of the Company . The Company represents and warrants
to, and agrees with, the Selling Agent that:
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(a) A final Private Placement
Memorandum dated November 20, 2007, with respect to the Offering
and proposed sale of the Units, together with the exhibits thereto
and the documents incorporated by reference therein (collectively,
the “Memorandum”), copies of which have heretofore been
delivered to the Selling Agent, has been prepared by the Company in
conformity with the Securities Act of 1933, as amended (the
“Securities Act”), the rules and regulations of the
Securities and Exchange Commission (the “Commission”)
promulgated thereunder, and all other applicable securities
laws.
(b) Neither the Memorandum (including
any amendment or supplement thereto) nor any supplemental sales
material relating to the Offering (when read in conjunction with
the Memorandum, whether designated only for broker-dealer use or
otherwise), includes any untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the foregoing representation does not apply to
statements in or omissions from the Memorandum (including any
amendment or supplement) or supplemental sales material based upon,
and in conformity with, written information furnished to the
Company by the Selling Agent specifically for use therein.
(c) The Company has been duly
incorporated, and is validly existing and in good standing under
the laws of the State of Nevada. The Company has all requisite
corporate power and authority to own and operate its properties and
assets and to conduct its business as described in
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the Memorandum, and to execute, deliver and perform under this
Agreement; the Memorandum; the Subscription Agreements to be
executed and entered into by the Company and purchasers in the
Offering prior to, on or after the date hereof (the
“Subscription Documents”), the Certificate of
Designation of Series A Preferred Stock of Hybrid Dynamics
Corporation, as executed and filed with the State of Nevada (the
“Certificate”); the Warrant to be executed by the
Company in favor of the Selling Agent on or about the date of
termination of the Offering (the “Agent’s
Warrant”) and the Class A Warrants to be executed by the
Company in favor of subscribers on or about the date of termination
of the Offering (collectively, the “Warrants”); and any
other agreements, instruments, certificates or documents to which
the Company is a party that relate to or arise from the Offering or
the transactions contemplated thereby, together with all exhibits,
schedules and agreements thereto and contemplated therein
(collectively, the “Transaction Documents”). The
Company is duly qualified, authorized to do business and in good
standing as a foreign corporation in all jurisdictions in which its
activities, business and properties (both owned and leased) makes
such qualification necessary, except for those jurisdictions in
which failure to be so qualified, authorized or in good standing
would not have a material adverse effect on the financial
condition, business, properties or results of operations of the
Company.
(d) All corporate action on the part
of the Company, its officers, directors and stockholders necessary
for the due authorization, execution and delivery of this Agreement
and the other Transaction Documents, and the performance of all
obligations of the Company hereunder and thereunder, including
without limitation the authorization, sale, issuance and delivery
of the Shares and the Conversion Shares (as defined in Section
2(e)), as the case may be, has been taken. This Agreement and the
other Transaction Documents, when executed and delivered by or on
behalf of the Company, will be legal, valid and binding obligations
of the Company enforceable in accordance with their respective
terms, except as such enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of
creditors’ rights and (ii) general principals of equity that
restrict the availability of equitable remedies.
(e) All action required to be taken
by the Company as a condition to the due and proper authorization,
issuance, sale, and delivery of the Shares to the subscribers
therefor in accordance with the terms of the Transaction Documents
(including without limitation the Memorandum and the Certificate)
has been taken. Upon the payment of the consideration for such
Units as specified in the Transaction Documents, the securities
underlying such Units when issued will be validly issued, fully
paid, and non-assessable, with no personal liability attaching to
the ownership thereof, will be free and clear of all liens imposed
by or through the Company, will conform in all material respects to
the description thereof contained in the Memorandum and the
Certificate, and will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their
terms, except as (i) the enforcement thereof may be limited by
bankruptcy, insolvency, or similar laws affecting creditors’
rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability. The shares of the Common Stock
issuable upon conversion of the Shares in accordance with the terms
of the Certificate (the “Conversion Shares”) and
issuable upon exercise of the Warrants (the “Warrant
Shares”) have been duly and validly authorized and reserved
for issuance upon such conversion and/or exercise, and, immediately
after such conversion and/or exercise, will be validly issued,
fully paid and non-assessable, with no personal liability attaching
to the ownership thereof, will conform in all material respects to
the description thereof contained in the Memorandum, and will be
free and clear of all liens imposed by or through the Company.
(f) The authorized capital stock of
the Company consists of 99,000,000 shares of the Common Stock, of
which 5,187,285 shares is issued and outstanding as of November 20,
2007, and 1,000,000 shares of preferred stock, $0.00015 par value,
of which 660,000 shares have been
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designated Series A Convertible 8% Preferred Stock, and no
shares of which are issued and outstanding as of the date hereof,
and the designations, powers, preferences, rights, qualifications,
limitations, and restrictions in respect of each class and series
of authorized capital stock of the Company, as set forth in the
Company’s articles of incorporation, as amended (the
“Articles of Incorporation”) and the Certificate, will
be valid, binding and enforceable, and in accordance with all
applicable laws. Except as disclosed in the Memorandum, (i) there
is no commitment by or obligation of the Company to issue any
shares of capital stock, subscriptions, warrants, options,
convertible securities, or other similar rights to purchase or
receive Company securities or to distribute to the holders of any
of its equity securities any evidence of indebtedness, cash, or
other assets, (ii) the Company is under no obligation (contingent
or otherwise) to purchase, redeem, or otherwise acquire any of its
equity or debt securities or any interest therein or to pay any
dividend or make any other distribution in respect thereof, and
(iii) there are no voting trusts or similar agreements,
stockholders’ agreements, pledge agreements, transfer
restrictions, buy-sell agreements, rights of first refusal,
preemptive rights, or proxies relating to any securities of the
Company. Except as set forth in the Memorandum, no person holds of
record or, to the best of the Company’s knowledge,
beneficially, 5% or more of the outstanding shares of the capital
stock of the Company. All outstanding securities of the Company
were issued in compliance with applicable Federal and state
securities laws. The capital stock of the Company conforms in all
material respects to the description thereof contained in the
Memorandum. Except as disclosed in the Memorandum, the Offering or
sale of the Shares as contemplated in the Transaction Documents
will not give rise to any rights for or relating to the
registration of any shares of Common Stock other than the
registration rights of the holders of the Shares and pursuant to
the Warrants.
(g) The Offering and sale of the
Units in the manner contemplated by the Transaction Documents is
intended to be exempt from registration requirements of the
Securities Act by reason of Section 4(2) thereof and Regulation D
thereunder. Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf (i) has made, during the six
months prior to the date hereof, or (ii) will make, throughout the
Offering Period (as herein defined) or during the six-month period
commencing on the latest Closing Date (as herein defined), any
offer to sell or any sale of any security to be issued by it or any
security issued or to be issued by any other corporation,
partnership, or similar entity formed or to be formed by it, that
would invalidate the exemption from registration relied on to offer
and sell the Units.
(h) The Company is not in violation
of its Articles of Incorporation or bylaws, or, except as disclosed
in the Memorandum or in Schedule 2(h) hereto, in default, or with
the giving of notice or lapse of time or both, would be in default,
in the performance of any obligation, agreement, or condition
contained in any lease, license, contract, indenture, or loan
agreement or in any bond, debenture, note, or any other evidence of
indebtedness, except for such defaults as would not have a material
adverse effect on the Company. The execution, delivery and
performance of the Transaction Documents, the incurrence of the
obligations arising under the Transaction Documents, the issuance,
sale, and delivery of the Shares, the issuance and delivery of the
Conversion Shares, and the consummation of the other transactions
contemplated by the Transaction Documents, have been duly
authorized by all requisite corporate action on the part of the
Company and will not (i) conflict with or result in a breach of, or
default under, the Articles of Incorporation or bylaws of the
Company, or any loan agreement, mortgage, lease, deed of trust,
indenture, or other agreement or instrument to which the Company is
a party or by which it is bound, or any judgment, law, statute,
order, rule, administrative regulation, or decree of any court, or
governmental authority, agency or body having jurisdiction over the
Company or its properties, or (ii) result in the creation or
imposition of any lien, charge, claim, or encumbrance upon any
property or asset of the Company.
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(i) Since the dates for which
information is given in the Memorandum, except as set forth in the
Memorandum (including the financial statements contained therein),
the Company has not incurred any material liabilities or
obligations, direct or contingent, except in the ordinary course of
business, and there has not been any material adverse change or any
development involving a prospective material adverse change in the
financial condition, business, properties or results of operations
of the Company, or any change in the capital or increase in the
long-term debt of the Company, nor has the Company declared, paid
or made any dividend or distribution of any kind on any class of
its capital stock.
(j) Subject to the assumptions and
qualifications contained therein, the Company’s financial
statements set forth in the Memorandum fairly present the financial
condition of the Company at the respective dates therein specified
and the results of operations and cash flows of the Company for the
respective periods covered thereby, and such financial statements
have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods
covered thereby except as otherwise noted therein. The assumptions
used in preparing the pro forma financial statements included in
the Memorandum provide a reasonable basis for presenting the
significant effects directly attributable to the transactions or
events described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma columns
therein reflect the proper application of those adjustments to the
corresponding historical financial statement amounts.
(k) Except as disclosed in the
Memorandum or in Schedule 2(h), there is no action, suit,
proceeding or investigation pending or, to the Company’s
knowledge, currently threatened against the Company that, if
determined adversely to the Company’s interests, could have a
material adverse effect on the financial condition, business,
properties or results of operations of the Company, or that could
affect the validity of the Transaction Documents or the right of
the Company to enter into any of such Transaction Documents, or to
consummate the transactions contemplated hereby or thereby, or
which might result, either individually or in the aggregate, in any
change in the current equity ownership of the Company. The
foregoing includes, without limitation, actions pending or, to the
Company’s knowledge, threatened or any basis therefore known
by the Company involving the prior employment of any of the
Company’s employees, their use in connection with the
Company’s business of any information or techniques allegedly
proprietary to any of their former employers, or their obligations
under any agreements with prior employers. Except as disclosed in
the Memorandum or in Schedule 2(h) hereto, the Company is not a
party or subject to the provisions of any order, writ, injunction,
judgment or decree of any court or government agent or
instrumentality.
(l) Except where such failure would
not have a material adverse effect on the business, assets, results
of operation, condition, or prospects of the Company, except as
disclosed in the Memorandum or in Schedule 2(h) hereto, the Company
has good and valid title, free and clear from all liens and
encumbrances, to all of its assets, whether personal or real
property, owned or leased. All of the Company’s tangible
personal property has been maintained in accordance with generally
accepted industry practice and is, in all material respects, in
good operating condition and repair, ordinary wear and tear
excepted. All leased personal property is, in all material
respects, in the condition required of such property by the terms
of the lease applicable thereto, and all such leases are in full
force and effect and have not been modified or amended, and no
party thereto is in default in any material respect thereunder. The
Company owns no real property or any interest in real property,
other than as described in the Memorandum and leasehold interests
granted pursuant to written leases; the Company has neither granted
nor is subject to any options to purchase or rights of first
refusal with respect to any real property; and all of the
Company’s leases of real property are in full force and
effect and have not been modified or amended, and no party thereto
is in default in any material respect thereunder.
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(m) No consent, approval,
authorization, or order of, or filing with, any court or
governmental authority, agency or body is required for the
consummation by the Company of the transactions contemplated by
this Agreement, except such filing as may be required by the
Securities Act, or state securities or Blue Sky laws.
(n) Except as would not have a
material adverse effect on the business, assets, results of
operation, condition, or prospects of the Company, the Company has
filed, or caused to be filed, on a timely basis, all tax returns
(including payroll, unemployment, and other taxes related to its
employees and independent contractors) required to be filed with
any government, any state or political subdivision thereof or any
agency or entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to,
government (each a “Governmental Body”), and has paid
or caused to be paid all taxes, levies, assessments, tariffs,
duties or other fees imposed, assessed, or collected by any
Governmental Body that may have become due and payable pursuant to
those tax returns or otherwise. No deficiency assessment with
respect to or proposed adjustment of any of the Company’s
Federal, state, municipal, or local tax returns has occurred or, to
the Company’s knowledge, is threatened. There has been no tax
lien imposed by any Governmental Body outstanding against the
Company’s assets or properties, except the lien for current
taxes not yet due. The charges, accruals, and reserves on the books
of the Company with respect to taxes for all fiscal periods are
adequate in the opinion of the Company, and the Company does not
know of any actual or proposed tax assessment for any fiscal period
or of any basis therefor against which adequate reserves have not
been set up. The Company has not been advised that any Federal
income tax return of the Company has been, or will be, examined or
audited by the Internal Revenue Service.
(o) The Company is not and, after
giving effect to the offering and sale of the Units and the
application of the proceeds thereof as described in the Memorandum,
will not be an “investment company” as defined in the
United States Investment Company Act of 1940, as amended, or a
“holding company” within the meaning of, or subject to
regulation under, the Public Utility Holding Company Act of 1935,
as amended, and the rules and regulations promulgated by the
Commission thereunder.
(p) Except as disclosed in the
Memorandum, and except for such matters that, individually or in
the aggregate, would not have a Material Adverse Effect on the
business, operations or financial results of the Company (either
individually or in the aggregate):
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(i) the Company is, and has been, in compliance
with all Environmental Laws (as defined below), and the Company has
not received any (A) communication that alleges that the Company is
in violation of, or has liability under, any Environmental Law, (B)
written request for information pursuant to any Environmental Law,
or (C) notice regarding any requirement that is proposed for
adoption or implementation under any Environmental Law and that
would be applicable to the operations of the Company;
(ii) the Company has obtained and is in compliance with
all permits, licenses and governmental authorizations pursuant to
all Environmental Laws (collectively, “ Environmental
Permits ”) necessary for their operations as currently
conducted, (B) all such Environmental Permits are valid and in good
standing, and (C) the Company has not been advised by any
governmental entity or authority of any actual or potential change
in the status or terms and conditions of any Environmental
Permit;
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(iii) there are no
Environmental Claims (as defined below) pending or, to the
knowledge of the Company, threatened, against the Company;
(iv) there have been no Releases (as defined below) of
any Hazardous Material that could reasonably be expected to form
the basis of any Environmental Claim against the Company or against
any person whose liabilities for such Environmental Claims the
Company has, or may have, retained or assumed, either contractually
or by operation of law; and
(v) (A) the Company has not retained or assumed, either
contractually or by operation of law, any liabilities or
obligations that could reasonably be expected to form the basis of
any Environmental Claim against the Company, and (B) to the
knowledge of the Company, no Environmental Claims are pending
against any person or entity whose liabilities for such
Environmental Claims the Company has, or may have, retained or
assumed, either contractually or by operation of law. |
As used
in this Agreement, the terms: (A) “ Environmental
Claim ” means any and all administrative, regulatory or
judicial actions, suits, orders, demands, directives, claims,
investigations, proceedings or notices of violation by or from any
person or entity alleging liability of whatever kind or nature
arising out of, based on or resulting from (y) the presence or
release of, or exposure to, any Hazardous Materials at any
location; or (z) the failure to comply with any Environmental Law;
(B) “ Environmental Laws ” means all applicable
federal, state, local and foreign laws, rules, regulations, orders,
decrees, judgments, legally binding agreements or Environmental
Permits issued, promulgated or entered into by or with any
governmental entity or authority, relating to pollution, natural
resources or protection of endangered or threatened species, human
health or the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata); (C) “
Hazardous Materials” means (y) any petroleum or
petroleum products, radioactive materials or wastes, asbestos in
any form, urea formaldehyde foam insulation and polychlorinated
biphenyls; and (z) any other radioactive, chemical, material,
substance or waste that in relevant form or concentration is
prohibited, limited or regulated under any Environmental Law; and
(D) “ Release” means any actual or threatened
release, spill, emission, leaking, dumping, injection, pouring,
deposit, disposal, discharge, dispersal, leaching or migration into
or through the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any
building, structure, facility or fixture
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(q) Except as disclosed in
the Memorandum, since December 31, 2006, there has been no material
adverse change (or any development involving a prospective material
adverse change), whether or not arising from transactions in the
ordinary course of business, in or affecting: (i) the business,
condition (financial or otherwise), results of operations,
shareholders’ equity, properties or prospects of the Company,
taken as a whole; (ii) the long-term debt or capital stock of the
Company; or (iii) the Placement or consummation of any of the other
transactions contemplated by this Agreement. Since the date
of the latest balance sheet presented in or attached to the
Memorandum, the Company has not incurred or undertaken any
liabilities or obligations, whether direct or indirect, liquidated
or contingent, matured or unmatured, or entered into any
transactions, including any acquisition or disposition of any
business or asset, which are material to the Company taken as a
whole, except for liabilities, obligations and transactions which
are disclosed in the Memorandum and/or the exhibits thereto.
(r) The Company maintains a
system of internal accounting and other controls sufficient to
provide reasonable assurances that: (i) transactions are executed
in accordance with management's general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation
of reliable financial statements in conformity with United States
generally accepted accounting principles and to maintain
accountability for assets, (iii) access to assets is
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permitted only in accordance with management's general or
specific authorization, and (iv) the recorded accounting for assets
is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any material
differences.
(s) The Company has not violated or
is currently in violation of any provisions of: (a) Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder (“
ERISA ”), (b) the Bank Secrecy Act, as amended, (c)
the Money Laundering Control Act of 1986, as amended, (e) the
Foreign Corrupt Practices Act, or (d) the Uniting and Strengthening
of America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, and the rules and
regulations promulgated under any such law, or any successor law,
except for such violations which, singly or in the aggregate, would
not have a Material Adverse Effect.
(t) No relationship,
direct or indirect, exists between or among any of the Company or
any affiliate of the Company, on the one hand, and any director,
officer, stockholder, customer or supplier of the Company or any
affiliate of the Company, on the other hand, which is required by
the Securities Act, the Exchange Act or the Rules and Regulations
to be described in the Memorandum which is not so described
therein. There are no outstanding loans (except for mortgage
loans made in the ordinary course of business), advances (except
normal advances for business expenses in the ordinary course of
business) or guarantees of indebtedness by the Company to or for
the benefit of any of the officers or directors of the Company or
any of their respective family members, except as disclosed in the
Memorandum.
(u) Intellectual
Property
(i) “
Intellectual Property ” consists of the following:
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(A) all
patents, trademarks, trade names, service marks, trade dress,
copyrights and any renewal rights therefor, mask works, net lists,
schematics, technology, manufacturing processes, supplier lists,
trade secrets, know-how, moral rights, computer software programs
or applications (in both source and object code form), applications
and registrations for any of the foregoing owned by the Company,
specifically including but not limited to the proprietary processes
embodied in the Company's pending patents;
(B) all goodwill associated with
trademarks, trade names, service marks and trade dress owned by the
Company;
(C) all documents, records and files
relating to design, end user documentation, manufacturing, quality
control, sales, marketing or customer support for all intellectual
property described herein owned by the Company;
(D) all other tangible or intangible
proprietary information and materials owned by the Company; and
(E) all license and other rights in
any third party product, intellectual property, proprietary or
personal rights, documentation, or tangible or intangible property,
including without limitation the types of intellectual property and
tangible and intangible proprietary information described in (a)
through (e) above (other than license agreements for standard
“shrink wrapped, off the shelf,” commercially
available, third party products used by the Company); |
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(ii) that are owned or
held by or on behalf of the Company or that are being, and/or have
been, used, or are currently under development for use, in the
business of the Company as it has been, is currently or is
currently anticipated to be conducted. Intellectual Property
described in clauses (a) to (e) above is referred to herein as
“ Company Intellectual Property ” and
Intellectual Property described in clause (f) above is referred to
herein as “ Company Licensed Intellectual Property
.” Unless otherwise noted, all references to
“Intellectual Property” shall refer to both Company
Intellectual Property and Company Licensed Intellectual
Property.
(iii) Company Intellectual Property consists solely of
items and rights that are either: (a) owned by the Company, (b) in
the public domain, or (c) rightfully used and authorized for use by
the Company and its successors pursuant to a valid license or other
agreement. All Company Intellectual Property which consists of
license or other rights to third party property. Except
as set forth in this Memorandum, the Company has all rights in the
Company Intellectual Property reasonably necessary to carry out the
Company's current, and anticipated future activities and has or had
all rights in Company Intellectual Property reasonably necessary to
carry out Company's former activities, including without
limitation, if necessary to carry out such activities, rights to
make, use, exclude others from using, reproduce, modify, adapt,
create derivative works based on, translate, distribute (directly
and indirectly), transmit, display and perform publicly, license,
rent, lease, assign, and sell the Company Intellectual Property in
all geographic locations and fields of use, and to sublicense any
or all such rights to third parties, including the right to grant
further sublicenses.
(iv) Except as set forth in this Memorandum, the Company
is not, nor as a result of the execution or delivery of this
Agreement, or performance of the Company's obligations hereunder or
thereunder, will the Company be, in violation of any license,
sublicense or other agreement relating to the Company Intellectual
Property to which the Company is a party or otherwise bound. The
Company is not obligated to provide any consideration (whether
financial or otherwise) to any third party, nor is any third party
otherwise entitled to any consideration, with respect to any
exercise of rights by the Company or its successors in Company
Intellectual Property.
(v) Except as set forth in this Memorandum, the use,
reproduction, modification, distribution, licensing, sublicensing,
sale, or any other exercise of rights in any Company Intellectual
Property or any other authorized exercise of rights in or to
Company Intellectual Property by the Company or its licensees does
not and to the best of the Company's knowledge will not infringe
any copyright, patent, trade secret, trademark, service mark, trade
name, firm name, logo, trade dress, mask work, moral right, other
intellectual property right, right of privacy, right of publicity
or right in personal or other data of any person. Further, except
as set forth in this Memorandum to the best of the Company’s
knowledge, the use, reproduction, modification, sale, or any other
exercise of rights in any Company Intellectual Property or any
other authorized exercise of rights in or to Company Intellectual
Property by the Company or its licensees does not and will not
infringe any copyright, patent, trade secret, trademark, service
mark, trade name, firm name, logo, trade dress, mask work, moral
right, other intellectual property right, right of privacy, right
of publicity or right in personal or other data of any
person. Except as set forth in the Memorandum, no claims (a)
challenging the validity, effectiveness, or ownership by the
Company of any of Company Intellectual Property, or (b) to the
effect that the use, reproduction, modification, manufacturing,
distribution, licensing, sublicensing, sale or any other |
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exercise of rights in any Company
Intellectual Property by the Company or its licensees infringes or
will infringe on any intellectual property or other proprietary or
personal right of any person have been asserted or, to the
Company's knowledge, are threatened by any person nor to the best
of the Company's knowledge are there any valid grounds for any bona
fide claim of any such kind. Except as set forth in the
Memorandum, all granted or issued patents and mask works and all
registered trademarks and all copyright registrations held by the
Company are valid, enforceable and subsisting. Except as set
forth in this Memorandum, to the Company’s knowledge, there
is no unauthorized use, infringement or misappropriation of any of
Company Intellectual Property by any third party, employee or
former employee or other third party.
(vi) The |
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