(b) Other than the inventions made by F. Nicholas Franano that are the subject of the JHU Assignment Documents identified in Section 3.8.9 of the Disclosure Schedule, and subject to Section 3.8.10 of the Disclosure Schedule, the Company has not developed or invented any Company Intellectual Property using any government funding or third party grant funding
(c) Other than with respect to (i) commercially available software products under standard end-user object code license agreements, (ii) the agreement between Johns Hopkins University and Nicholas Franano, dated February 4, 2002, which agreement subsequently was assigned by Franano to Company, and (iii) U. S. government rights pursuant to the Bayh-Dole Act, and subject to Sections 3.8.7, 3.8.9(a) and 3.8.9(d) of the Disclosure Schedule, there are no outstanding options, licenses, agreements, claims, encumbrances of any kind relating to the Company Intellectual Property, nor is the Company bound by or a party to any options, licenses or agreements of any kind with respect to the Intellectual Property Rights of any other Person. In addition, there are no shared ownership interests of any kind relating to the Company Intellectual Property identified in Sections 3.8.1 through 3.8.4 of the Disclosure Schedule.
(d) The Company has not received any communications alleging that the Company has violated or, by conducting its business, would violate any of the Intellectual Property Rights of any other Person.
(e) The Company has obtained and possesses valid licenses to use all of the software programs present on the computers and other software-enabled electronic devices that it owns or leases or that it has otherwise provided to its employees for their use in connection with the Companys business.
(f) To the Companys knowledge, the Companys business as presently conducted, or as is currently planned to be conducted, does not and will not use any inventions of any of its employees or consultants (or Persons it currently intends to hire) made prior to their employment by the Company other than the inventions made by F. Nicholas Franano that are the subject of the JHU Assignment Documents as set forth in Section 3.8.9 of the Disclosure Schedule. Each Key Employee has assigned to the Company all patents, patent applications, and other Intellectual Property Rights he or she owns that are related to the Companys business as now conducted and as presently proposed to be conducted. Each employee and consultant has assigned to the Company all patents, patent applications, and other Intellectual Property Rights he or she owns that were developed by such person within the scope of his/her employment.
(g) Sections 3.8.1 through 3.8.4 of the Disclosure Schedule list all registered Intellectual Property owned by the Company; the Company is the sole owner of such registered Intellectual Property; except as indicated in Section 3.8.1 of the Disclosure Schedule all necessary registration, maintenance, annuity and renewal fees currently due in connection with such registered Intellectual Property have been paid and all necessary documents and certificates in connection with such 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 purposes of maintaining such registered Intellectual
Property; and each patent application included in such registered Intellectual Property that has issued as a patent or is currently pending has been prosecuted in accordance with applicable law.
(h) The Company has not embedded any open source, copyleft or community source code in any of its products generally available or in development, including but not limited to any libraries or code licensed under any General Public License, Lesser General Public License or similar license arrangement.
(i) For purposes of this Section 3.8, the Company shall be deemed to have knowledge of a patent right if the Company has actual knowledge of the patent right or would be found to be on notice of such patent right for the purposes of willful infringement as determined by reference to United States patent laws.
3.9. Compliance with Other Instruments. The Company is not in violation or default (i) of any provisions of its Restated Certificate or Bylaws, (ii) of any instrument, judgment, order, writ or decree, (iii) under any note, indenture or mortgage, or (iv) under any lease, agreement, contract or purchase order to which it is a party or by which it is bound that is required to be listed on the Disclosure Schedule, or of any provision of federal or state statute, rule or regulation applicable to the Company, the violation of which would have a Material Adverse Effect. The execution, delivery and performance of the Transaction Agreements and the consummation of the transactions contemplated by the Transaction Agreements will not result in any such violation or be in conflict with or constitute, with or without the passage of time and giving of notice, either (i) a default under any such provision, instrument, judgment, order, writ, decree, contract or agreement or (ii) an event which results in the creation of any lien, charge or encumbrance upon any assets of the Company (other than any lien, charge, or encumbrance contemplated or created by the terms of the Option Agreement) or the suspension, revocation, forfeiture, or nonrenewal of any material permit or license applicable to the Company.
3.10. Agreements; Actions.
(a) Except for the Transaction Agreements or the Option Agreement, there are no agreements, understandings, instruments, contracts or proposed transactions to which the Company is a party or by which it is bound that involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 per annum, (ii) the license of any patent, copyright, trademark, trade secret or other proprietary right to or from the Company, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other Person that limit the Companys exclusive right to develop, manufacture, assemble, distribute, market or sell its products, or (iv) indemnification by the Company with respect to infringements of proprietary rights.
(b) The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of $50,000 per annum or in excess of $100,000 in the aggregate, (iii) made any loans or advances to any Person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its