Netgear 2012 Annual Report Download - page 193

applications of Transferred IP that constitutes Registered IP and material correspondence with any Governmental Authority related to
such unpublished applications filed or received by Sellers and their Subsidiaries. To the Knowledge of Sellers, each item of Registered
IP included in the Transferred IP is subsisting, valid and enforceable. For purposes of the foregoing sentence, “
subsisting, valid and
enforceable”
with respect to applications shall mean that the application for the registration of the Transferred Intellectual Property has
been properly filed and is pending, and that such application or registration is true and complete.
(b) Sellers or one or more of their Subsidiaries exclusively own all Transferred IP. Except as set forth in
Section
5.12(b)
of the Sellers Disclosure Schedule, no licenses, covenants not to sue, or other similar rights (i) under the Transferred Patents
have been granted to any Person; (ii) under the Transferred IP have been granted exclusively to any Person.
(c) Except as set forth in Section 5.12(c)
of the Sellers Disclosure Schedule, there is not currently pending, and
during the six (6) years prior to the date of this Agreement there has not been, any Action filed by any third party challenging the use,
ownership, validity, enforceability or registrability of any Transferred IP or Licensed IP (excluding the Sagemcom and Wavecom
Patents).
(d) Except as set forth in Section 5.12(d)
of the Sellers Disclosure Schedule, to the Knowledge of Sellers (and for the
purposes of this Section 5.12(d) only, Knowledge shall be limited to the actual Knowledge only of the individuals named on
Schedule
1.1(xx)
), neither (i) the operation of the AirCard Business as conducted as of the date hereof, including the use of the Transferred
Technology and the Licensed Technology (excluding the 9x15 Modules Technology, other than the 9x15 Modules Technology that is
otherwise within the Transferred Technology) in existence as of the date hereof and as used by Sellers in the operation of the AirCard
Business as of the date hereof, nor (ii) the use, sale, import, export and manufacture of the AirCard Products and Business Software that
are, as of the date hereof, offered for sale or distribution infringes, misappropriates or otherwise violates or constitutes the unauthorized
use of any Patent owned by any Person, and to the Knowledge of Sellers, such conduct will not constitute infringement,
misappropriation or other violation of such Patent of any Person when conducted by Buyers in the same manner post-
Closing. For
clarity, nothing in this Section 5.12(d) expands or limits any of Sellers’ indemnification obligations or the Buyers Indemnified Parties’
rights to recover Liabilities incurred in respect of the Specified Matters.
(e)
To the Knowledge of Sellers neither (i) the operation of the AirCard Business as conducted as of the date hereof,
including the use of the Transferred Technology and the Licensed Technology in existence as of the date hereof and as used by Sellers
as of the date hereof, nor (ii) the use, sale, import, export and manufacture of the AirCard Products and Business Software that are, as of
the date hereof, offered for sale or distribution, infringes, misappropriates or otherwise violates or constitutes the unauthorized use of
any Non-
Patent IP owned by any Person, and to the Knowledge of Sellers, such conduct will not constitute infringement,
misappropriation or other violation of such Non-Patent IP of any Person when conducted by Buyer in the same manner post-
Closing.
For clarity, nothing in this Section 5.12(e) expands or limits any of Sellers’
indemnification obligations or the Buyers Indemnified
Parties’ rights to recover Liabilities incurred in respect of the Specified Matters.
(f) Except as set forth in Section 5.12(f)
of the Sellers Disclosure Schedule, (i) none of William Waung, the
executive officers or outside U.S. intellectual property counsel of any Seller has received written notice from any Person during the four
(4) years prior to the date of this Agreement, and (ii) no Employee attorney has received written notice from any Person during the two
(2) years prior to the date of this Agreement, in each of the preceding clauses (i) and (ii), (A) claiming that the operation of the AirCard
Business, or any Transferred Technology, Licensed Technology or other Licensed IP (excluding the Sagemcom and Wavecom Patents)
related to the operation of the AirCard Business, or the use, sale, import,
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