EX-10.16 INTELLECTUAL PROPERTY AGREEMENT

EX-10.16 17 g78889exv10w16.txt EX-10.16 INTELLECTUAL PROPERTY AGREEMENT EXHIBIT 10.16 EXECUTION COPY INTELLECTUAL PROPERTY AGREEMENT BETWEEN TIME WARNER ENTERTAINMENT COMPANY, L.P. AND WARNER COMMUNICATIONS INC. TABLE OF CONTENTS

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iv SCHEDULE A Excluded TWE Broadband Group Software SCHEDULE B TWE Broadband Group Patents SCHEDULE C Excluded TWE Broadband Group Patents SCHEDULE D TWE Non-Broadband Group Patents SCHEDULE E Excluded TWE Broadband Group Trademarks EXHIBIT I Copyright and Technology Assignment EXHIBIT II Patent Assignment EXHIBIT III Trademark and Service Mark Assignment v INTELLECTUAL PROPERTY AGREEMENT This Intellectual Property Agreement (the "Agreement"), dated as of August 20, 2002 is by and among Time Warner Entertainment Company, L.P., a Delaware limited partnership ("TWE") and Warner Communications Inc., a Delaware corporation ("Holdco") (together, the "Parties"). Capitalized terms used herein and not otherwise defined shall have the respective meanings assigned to them in Article 1. WHEREAS, the TWE Broadband Group and the TWE Non-Broadband Group desire to establish the rights and licenses each enjoys in certain intellectual property; WHEREAS, effective concurrently with the TWE Distribution (as defined in the Restructuring Agreement), TWE desires to assign and transfer to Holdco all of its rights, title and interest in any and all intellectual property owned by TWE related to the TWE Non-Broadband Business as provided in the Patent Assignment, the Copyright and Technology Assignment, and the Trademark and Service Mark Assignment; WHEREAS, effective concurrently with the TWE Distribution, TWE further desires to assign and transfer to Holdco all TWE Non-Broadband IP Licenses, together with the rights and licenses granted to the TWE Non-Broadband Group pursuant to this Agreement, as provided herein; WHEREAS, effective immediately following the TWE Distribution, Holdco desires to assign and transfer to TWE all of its rights, title and interest in any and all intellectual property owned by Holdco related to the TWE Broadband Business as provided in the Patent Assignment, the Copyright and Technology Assignment, and the Trademark and Service Mark Assignment; WHEREAS, effective immediately following the TWE Distribution, Holdco further desires to assign and transfer to TWE all TWE Broadband IP Licenses, together with the rights and licenses granted to the TWE Broadband Group pursuant to this Agreement, as provided herein; and WHEREAS, the Parties desire to enter into this Agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. DEFINITIONS For the purposes of this Agreement, certain terms have been defined below and elsewhere in this Agreement to encompass meanings that may differ from, or be in addition to, the normal connotation of the defined word. 1 1.1 "Affiliate" of any Person shall mean a Person that controls, is controlled by, or is under common control with such Person. As used herein, "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or other interests, by contract or otherwise; and provided further, that, unless otherwise specified, for purposes of this Agreement, no TWE Broadband Member or TWE Non-Broadband Member shall be deemed to be an Affiliate of the other Group. 1.2 "Ancillary Agreements" shall mean the Copyright and Technology Assignment, the Patent Assignment and the Trademark and Service Mark Assignment. 1.3 "Authorization" shall mean any waiver, amendment, consent, approval, license, franchise, permit (including construction permits) certificate, exemption, variance or authorization of, expiration or termination of any waiting period requirement (including pursuant to the HSR Act) or other action by, or notice, filing registration, qualification, declaration or designation with any Person (including any Governmental Authority). 1.4 "Authorized Person" shall have the meaning set forth in Section 3.4.1. 1.5 "Closing" shall have the meaning set forth in the Restructuring Agreement. 1.6 "Content" shall mean all works of authorship and products commonly understood as content in the entertainment, media, music and publishing industries, including products such as programming content, motion pictures, television programs and other audiovisual works or series, advertising and promotional materials, photographs, illustrations, images and other pictorial, graphic and sculptural works, dramatic works, choreographic works, sound recordings, musical compositions, books, articles and other publications, characters, animation, cartoons, video games, scripts, storyboards, titles, screenplays, synopses, plots, dialogue, stories, themes, treatments and other text, in any media, whether digital or otherwise, and any ideas, concepts or information contained therein, all copies, phonorecords and other physical materials embodying any of the foregoing, any materials used in the preparation, development, promotion or advertising thereof and merchandise related thereto, in each case, whether or not protectable by Copyright, and all Copyrights, licenses and interests in Copyrights in and to any of the above. The list of items included in the above definition of Content is intended by way of example only and is not to be construed in any manner as an exhaustive or complete list of items covered by the definition of Content. Content does not include Software, Proprietary Information or Trademarks, and does not include any Software that is used to create Content. 1.7 "Copyright and Technology Assignment" shall mean that certain Copyright and Technology Assignment contemporaneously executed by TWE and Holdco in the form attached hereto as Exhibit I. 1.8 "Copyrights" shall mean all copyrights and related rights and interests in copyrights and related rights, moral rights, licenses and all other rights, privileges and priorities relating to any works of authorship or any subject matter protected by related 2 rights, including all works of authorship under Section 102 of Title 17 of the United States Code, under the copyright and related rights laws of every country and jurisdiction throughout the world, now or hereafter known, whether registered or unregistered, for their entire term of protection, including all extensions, licenses, renewals or reversions thereof. 1.9 "Customer-Related Proprietary Information" shall have the meaning set forth in Section 3.1. 1.10 "Derivative Work" shall mean a work which is based upon one or more preexisting works, and which is a derivative work, including any revision, modification, translation, abridgment, condensation, expansion, collection, compilation, or any other form in which such preexisting works may be recast, transformed, or adapted, and which, if prepared without authorization by the owner of a preexisting work, would constitute Copyright infringement. 1.11 "Existing TWE Broadband Group Patents" shall have the meaning set forth in Section 5.1.1. 1.12 "Existing TWE Non-Broadband Group Patents" shall have the meaning set forth in Section 5.1.2. 1.13 "Governmental Authority" shall have the meaning set forth in the Restructuring Agreement. 1.14 "Group" shall mean either of the TWE Broadband Group or the TWE Non-Broadband Group, as the context requires. 1.15 "Holdco" shall have the meaning set forth in the Preamble. 1.16 "HSR Act" shall have the meaning set forth in the Restructuring Agreement. 1.17 "IPR Futures" shall have the meaning set forth in Section 8.1.1. 1.18 "Joint Patents" shall have the meaning set forth in Section 5.1.3. 1.19 "Licensee" shall mean a Party receiving a license of any intellectual property hereunder. 1.20 "Licensor" shall mean a Party licensing any intellectual property hereunder. 1.21 "Mystro Business" shall mean the personal television service under development by AOLTW Interactive Video, Inc., a Delaware corporation and the TWE Non-Broadband Group, which service is a network-based cable television service that offers customized television viewing, including but not limited to, pausing live broadcasts, re-starting television programs, fast-forwarding and rewinding television programs and simultaneously recording multiple television programs. 3 1.22 "Mystro Patents" shall have the meaning set forth in Section 5.1.1. 1.23 "Mystro Proprietary Information" shall have the meaning set forth in Section 3.1.1. 1.24 "Mystro Software" shall have the meaning set forth in Section 2.1.1. 1.25 "Parties" shall have the meaning assigned to it in the Preamble. 1.26 "Patents" shall mean patents and patent applications, all foreign counterparts, continuations, divisions, reissues, reexaminations and renewals of such patents and patent applications, all prosecution files and databases for such patents and patent applications and all inventions created or first reduced to practice as of the Closing on which a patent later issues. 1.27 "Patent Assignment" shall mean that certain Patent Assignment contemporaneously executed by TWE and Holdco, in the form attached hereto as Exhibit II. 1.28 "Person" shall have the meaning set forth in the Restructuring Agreement. 1.29 "Proprietary Information" shall mean (i) business and technical information, including ideas, data, knowledge, trade secrets, know-how and algorithms, existing as of the Closing, which is proprietary and/or that derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy and (ii) all physical manifestations of the business and technical information described in the preceding clause (i), including documents, specifications, designs, plans, records, drawings and databases. Proprietary Information does not include any Content or Software. 1.30 "Restructuring Agreement" shall mean the Restructuring Agreement, dated as of the date hereof, by and among, AOL Time Warner Inc., a Delaware corporation, AT&T Corp., a New York corporation, Comcast Corporation, a Pennsylvania corporation, and the other parties named therein. 1.31 "Software" shall mean computer programs, including all source code or object code, and (i) all intellectual property rights, including Patent rights and Copyrights embodied therein, (ii) all physical manifestations thereof, including storage media and (iii) all documentation related thereto. Software does not include any Content, even though Software and Content may be combined or contained in the same media. 1.32 "Subsidiary" shall have the meaning set forth in the TWE Distribution Agreement. 1.33 "Third Party" shall mean any Person other than a member of a Group. 4 1.34 "Trademark" shall mean any word, name, corporate name, trade name, domain name (including, without limitation, IP addresses and ASNs), logo, design, mark, trademark, service mark, symbol, device, trade dress, any common law marks, trademark or service mark application or registration, or any other indicia of origin or any combination thereof and all goodwill associated therewith. 1.35 "Trademark and Service Mark Assignment" shall mean that certain Trademark and Service Mark Assignment contemporaneously executed by TWE and Holdco in the form attached hereto as Exhibit III. 1.36 "Transaction Expenses" shall mean with respect to any Party, all out-of-pocket expenses (including, without limitation, all fees and expenses of counsel, accountants, investment bankers, experts, consultants or agents to such Party or any of its Affiliates and including governmental transfer taxes, recording fees and other similar fees and impositions) incurred by such Party or its Affiliates (or on such Party's or Affiliate's behalf) in connection with or related to the Authorization, preparation, negotiation, execution or performance of this Agreement. 1.37 "TWE" shall have the meaning set forth in the Preamble. 1.38 "TWE Broadband Business" shall have the meaning set forth in the TWE Distribution Agreement and as the TWE Broadband Business may reasonably be expanded within the industry in which it operates as of the Closing. 1.39 "TWE Broadband Group" shall have the meaning set forth in the TWE Distribution Agreement. 1.40 "TWE Broadband Group Content" shall have the meaning set forth in Section 4.1.1. 1.41 "TWE Broadband Group Proprietary Information" shall have the meaning set forth in Section 3.1.1. 1.42 "TWE Broadband Group Software" shall have the meaning set forth in Section 2.1.1. 1.43 "TWE Broadband Group Trademarks" shall have the meaning set forth in Section 7.1.1. 1.44 "TWE Broadband IP Licenses" shall mean all 1.44.1 licenses, permissions and covenants granted by any Person, including TWE Non-Broadband Members, to TWE or any Subsidiary of TWE to, in any way, exploit or use intellectual property owned, controlled or otherwise licensable by such Person, and the corresponding agreements by which such licenses, permissions or covenants are granted, which are licenses, permissions or covenants (i) to use or exploit Software, Patents or Proprietary Information and that primarily relate to, arise out of or result from the TWE Broadband Business or (ii) that (A) were assigned, transferred, 5 conveyed to or otherwise owned by the TWE Broadband Group to use or exploit Content or Trademarks and (B) primarily relate to, arise out of or result from the TWE Broadband Business, (such licenses, permissions and covenants, and their corresponding agreements, being collectively referred to as "Inbound TWE Broadband IP Licenses"); and 1.44.2 licenses, permissions and covenants granted by TWE or any Subsidiary of TWE to any Person to, in any way, exploit or use intellectual property owned, controlled or otherwise licensable by the TWE Broadband Group, and the corresponding agreements by which such licenses, permissions or covenants are granted, which are licenses, permissions or covenants (i) to use or exploit Software, Patents or Proprietary Information and that primarily relate to, arise out of or result from the TWE Broadband Business or (ii) that (A) were assigned, transferred, conveyed to or otherwise owned by the TWE Broadband Group to use or exploit Content or Trademarks and (B) primarily relate to, arise out of or result from the TWE Broadband Business, (such licenses, permissions and covenants, and their corresponding agreements, being collectively referred to as "Outbound TWE Broadband IP Licenses"). Notwithstanding the foregoing, this Agreement shall not be deemed a TWE Broadband IP License. With respect to any TWE Broadband IP License that qualifies as both an Inbound TWE Broadband IP License and an Outbound TWE Broadband IP License, unless TWE in its discretion decides otherwise, that portion of such TWE Broadband IP License that qualifies as an Inbound TWE Broadband IP License shall be treated as such and that portion of such TWE Broadband IP License that qualifies as an Outbound TWE Broadband IP License shall be treated as such. 1.45 "TWE Broadband Member" shall have the meaning set forth in the definition of TWE Broadband Group in the TWE Distribution Agreement. 1.46 "TWE Broadband Technology Licenses" shall mean Inbound TWE Broadband IP Licenses that license to TWE or any of its Subsidiaries Software, Patents or Proprietary Information. 1.47 "TWE Distribution" shall have the meaning set forth in the Restructuring Agreement. 1.48 "TWE Distribution Agreement" shall mean the Distribution Agreement, dated as of the date hereof, by and between TWE, AOL Time Warner Inc., a Delaware corporation, and Holdco. 1.49 "TWE Non-Broadband Business" shall have the meaning set forth in the TWE Distribution Agreement and as the TWE Non-Broadband Business may reasonably be expanded within the industry in which it operates as of the Closing. 1.50 "TWE Non-Broadband Group" shall have the meaning set forth in the TWE Distribution Agreement. 1.51 "TWE Non-Broadband Group Content" shall have the meaning set forth in Section 4.1.2. 6 1.52 "TWE Non-Broadband Group Proprietary Information" shall have the meaning set forth in Section 3.1.3. 1.53 "TWE Non-Broadband Group Software" shall have the meaning set forth in Section 2.1.3. 1.54 "TWE Non-Broadband IP Licenses" shall mean all 1.54.1 licenses, permissions and covenants granted by any Person, including TWE Broadband Members, to TWE or any Subsidiary of TWE to, in any way, exploit or use intellectual property owned, controlled or otherwise licensable by such Person, and the corresponding agreements by which such licenses, permissions or covenants are granted, which are licenses, permissions or covenants (i) to use or exploit Software, Patents or Proprietary Information, other than Software, Patents or Proprietary Information that primarily relate to, arise out of or result from the TWE Broadband Business or (ii) to use or exploit Content or Trademarks, other than Content and Trademarks that (A) were assigned, transferred, conveyed or otherwise owned by the TWE Broadband Group and that (B) primarily relate to, arise out of or result from the TWE Broadband Business, (such licenses, permissions and covenants, and their corresponding agreements, being collectively referred to as "Inbound TWE Non-Broadband IP Licenses"); and 1.54.2 licenses, permissions and covenants granted by TWE or any Subsidiary of TWE to any Person to, in any way, use or exploit intellectual property owned, controlled or otherwise licensable by the TWE Non-Broadband Group, and the corresponding agreements by which such licenses, permissions or covenants are granted, which are licenses, permissions or covenants (i) to use or exploit Software, Patents or Proprietary Information, other than Software, Patents or Proprietary Information that primarily relate to, arise out of or result from the TWE Broadband Business or (ii) to use or exploit Content or Trademarks, other than Content and Trademarks that (A) were assigned, transferred, conveyed or otherwise owned by the TWE Broadband Group and that (B) primarily relate to, arise out of or result from the TWE Broadband Business, (such licenses, permissions and covenants, and their corresponding agreements, being collectively referred to as "Outbound TWE Non-Broadband IP Licenses"). Notwithstanding the foregoing, this Agreement shall not be deemed a TWE Non-Broadband IP License. With respect to any TWE Non-Broadband IP License that qualifies as both an Inbound TWE Non-Broadband IP License and an Outbound TWE Non-Broadband IP License, unless Holdco in its discretion decides otherwise, that portion of such TWE Non-Broadband IP License that qualifies as an Inbound TWE Non-Broadband IP License shall be treated as such and that portion of such TWE Non-Broadband IP License that qualifies as an Outbound TWE Non-Broadband IP License shall be treated as such. 1.55 "TWE Non-Broadband Member" shall have the meaning set forth in the definition of TWE Non-Broadband Group in the TWE Distribution Agreement. 7 1.56 "TWE Non-Broadband Technology Licenses" shall mean Inbound TWE Non-Broadband IP Licenses that license to TWE or any of its Subsidiaries Software, Patents or Proprietary Information. 1.57 "TWE Non-Broadband Group Trademarks" shall have the meaning set forth in Section 7.1.2. 2. SOFTWARE 2.1 Existing Software Ownership. As between the TWE Non-Broadband Group and the TWE Broadband Group, any Software existing as of the Closing that was: 2.1.1 created by or for or assigned, transferred, conveyed to, or otherwise owned by TWE or any other member of either Group that primarily relates to, arises out of or results from the TWE Broadband Business, shall be owned by the TWE Broadband Group; provided that, Software set forth on Schedule A hereto, to the extent it is owned by, or licensed to, either Group as of the Closing (the "Mystro Software") shall not be allocated to the TWE Broadband Group. Software owned by the TWE Broadband Group pursuant to this Section 2.1.1 is referred to as "TWE Broadband Group Software"; 2.1.2 created by or for or assigned, transferred, conveyed to, or otherwise owned by TWE or any other member of either Group that primarily relates to, arises out of or results from the TWE Non-Broadband Business shall be owned by the TWE Non-Broadband Group; and 2.1.3 created by or for or assigned, transferred, conveyed to, or otherwise owned by TWE and that is not covered under Section 2.1.1 or Section 2.1.2 shall be owned by the TWE Non-Broadband Group. The Mystro Software shall also be allocated to the TWE Non-Broadband Group. Software owned by the TWE Non-Broadband Group pursuant to Section 2.1.2 and this Section 2.1.3 is referred to as "TWE Non-Broadband Group Software." 2.2 Allocation of Software Ownership Within a Group. Each Group may allocate ownership of Software owned by that Group to the appropriate member or members within that Group. 2.3 Software License Grants. 2.3.1 Subject to the terms and conditions of this Agreement, and subject to rights of Third Parties and licenses in effect as of the Closing, concurrently with the TWE Distribution, TWE hereby grants, and agrees to cause each other TWE Broadband Member to grant, to Holdco a non-exclusive, fully paid-up, worldwide, perpetual, non-sublicensable (except as provided in Section 10.2), non-assignable (except as provided in Section 10.1), royalty-free and irrevocable license to, in the conduct of the TWE Non-Broadband Business, use, reproduce, distribute, display and prepare Derivative Works based upon, any TWE Broadband Group Software that is used in the TWE Non-Broadband Business as of the Closing and any Software relating to the Mystro Business that is not 8 otherwise defined as Mystro Software, regardless of whether such Software is used in the TWE Non-Broadband Business as of the Closing. 2.3.2 Subject to the terms and conditions of this Agreement, and subject to rights of Third Parties and licenses in effect as of the Closing, effective immediately following the Closing, Holdco hereby grants, and agrees to cause each other TWE Non-Broadband Member to grant to TWE a non-exclusive, fully paid-up, worldwide, perpetual, non-sublicensable (except as provided in Section 10.2), non-assignable (except as provided in Section 10.1), royalty-free and irrevocable license to, in the conduct of the TWE Broadband Business, use, reproduce, distribute, display and prepare Derivative Works based upon, any TWE Non-Broadband Group Software, other than the Mystro Software, that is used in the TWE Broadband Business as of the Closing. 2.4 Furnishing of Software. Subject to reasonable confidentiality restrictions and Third Party rights, until the date that is three months after the Closing, a Group may request a copy of Software licensed pursuant to Section 2.3, including the source code, which Software such Group reasonably believes is required in the conduct of its business, and the other Group shall provide a copy of such Software; provided that, in each case, such Software exists in the same form in which it existed as of the Closing. Following such three-month period, for an additional two-year period, each Group shall use reasonable efforts to supply a copy of such Software to the requesting Group. Notwithstanding anything to the contrary herein, the Party in possession of the licensed Software need only furnish a copy of such software in the form in which it existed as of the Closing and in no event shall a Party be required to furnish to the other Party any upgrades, updates, enhancements or other modifications to the licensed Software. 2.5 Subsequent Derivative Works. After the Closing, a Group creating a Derivative Work of Software licensed from another Group shall own all rights in and to the particular modifications, additions or changes made to such Software by the creating Group, subject to the intellectual property rights of the licensing Group. No license is granted hereunder to such modifications, additions or changes by the Group creating such a Derivative Work to the Group that owns the Software on which such Derivative Work is based and the Group creating such a Derivative Work shall not, by virtue of creating any Derivative Work, gain any greater rights in and to such licensed Software than are expressly granted pursuant to this Agreement. 2.6 Confidentiality of Software. Each Group shall treat any source code for Software owned by the other Group as Proprietary Information of the other Group and shall hold it in confidence in accordance with the terms of Section 3.4. 2.7 No Contravention Of Existing License Agreements. Nothing in this Agreement, the TWE Distribution Agreement or any Ancillary Agreement changes, alters, limits or expands any current rights that any TWE Broadband Member or any TWE Non-Broadband Member may have been granted as of the Closing by any Person to reproduce, distribute, display or otherwise use Software. For purposes of clarity, the Parties understand and agree that the purpose of the Software licenses granted herein is to allow to continue after Closing certain incidental uses by one Group of the other Group's Software 9 which have taken place in the Groups prior to Closing and neither Group shall seek to use any license to Software granted hereunder to exploit Software in a manner that was not granted prior to the Closing. 3. PROPRIETARY INFORMATION 3.1 Ownership of Existing Proprietary Information. As between the TWE Non-Broadband Group and the TWE Broadband Group, any Proprietary Information existing as of the Closing: 3.1.1 created or developed by or for or assigned, transferred, conveyed to, or otherwise owned by TWE or any other member of either Group that primarily relates to, arises out of or results from the TWE Broadband Business, shall be owned by the TWE Broadband Group; provided that, Proprietary Information that primarily relates to, arises out of or results from the Mystro Business, to the extent it is owned by or licensed to either Group as of the Closing (the "Mystro Proprietary Information"), shall not be allocated to the TWE Broadband Group. Proprietary Information owned by the TWE Broadband Group pursuant to this Section 3.1.1 is referred to as "TWE Broadband Group Proprietary Information"; 3.1.2 created or developed by or for or assigned, transferred, conveyed to, or otherwise owned by TWE or any other member of either Group that primarily relates to, arises out of or results from the TWE Non-Broadband Business, shall be owned by the TWE Non-Broadband Group; and 3.1.3 created or developed by or for or assigned, transferred, conveyed to, or otherwise owned by TWE, and that is not covered under Section 3.1.1 or Section 3.1.2 shall be owned by the TWE Non-Broadband Group. The Mystro Proprietary Information shall also be allocated to the TWE Non-Broadband Group. Proprietary Information owned by the TWE Non-Broadband Group pursuant to Section 3.1.2 and this Section 3.1.3 is referred to as "TWE Non-Broadband Group Proprietary Information." Notwithstanding the foregoing, except with respect to the Mystro Proprietary Information, Proprietary Information consisting of marketing and sales information concerning the provision of services to customers by either the TWE Broadband Group or the TWE Non-Broadband Group, including without limitation, customer contact information, projections, plans and user data, shall remain owned by the Group providing such services and shall be deemed "Customer-Related Proprietary Information" of that Group, but such information shall not be included in the license grants of "TWE Broadband Group Proprietary Information" or "TWE Non-Broadband Group Proprietary Information" pursuant to Section 3.3. 3.2 Allocation of Proprietary Information Within a Group. Each Group may allocate ownership of Proprietary Information owned by that Group to the appropriate member or members within that Group. 3.3 License Grants for Proprietary Information. 10 3.3.1 Subject to the terms and conditions of this Agreement, and subject to rights of Third Parties and licenses in effect as of the Closing, effective concurrently with the TWE Distribution, TWE hereby grants, and agrees to cause each other TWE Broadband Member to grant, to Holdco a non-exclusive, fully paid-up, worldwide, perpetual, non-sublicensable (except as provided in Section 10.2), non-assignable (except as provided in Section 10.1), royalty-free and irrevocable license to, in the conduct of the TWE Non-Broadband Business, use any TWE Broadband Group Proprietary Information (other than Customer-Related Proprietary Information) that is used in the TWE Non-Broadband Business as of the Closing and to use any Proprietary Information relating to the Mystro Business that is not otherwise defined as Mystro Proprietary Information, regardless of whether such Proprietary Information is used in the TWE Non-Broadband Business as of the Closing. 3.3.2 Subject to the terms and conditions of this Agreement, and subject to rights of Third Parties and licenses in effect as of the Closing, effective immediately following the Closing, Holdco hereby grants, and agrees to cause each other TWE Non-Broadband Member to grant, to TWE a non-exclusive, fully paid-up, worldwide, perpetual, non-sublicensable (except as provided in Section 10.2), non-assignable (except as provided in Section 10.1), royalty-free and irrevocable license to, in the conduct of the TWE Broadband Business, use any TWE Non-Broadband Group Proprietary Information (other than Customer-Related Proprietary Information and other than the Mystro Proprietary Information) that is used in the TWE Broadband Business as of the Closing. 3.4 Confidentiality Obligations. With respect to Proprietary Information owned by the other Group, each Group shall: 3.4.1 restrict disclosure of such Proprietary Information to its employees, contractors, Affiliates and advisors with a need to know ("Authorized Persons") and obligate such Authorized Persons to conduct themselves in accordance with the obligations assumed herein, and 3.4.2 not disclose such Proprietary Information to any Third Party without the prior written approval of such other Group. 3.5 Limitations on Confidentiality Restrictions. The restrictions concerning the use or disclosure of Proprietary Information contained in Section 3.4 shall not apply to information: 3.5.1 lawfully received free of restriction from another source that was not legally or contractually prohibited from disclosing such information; 3.5.2 after it has become generally available to the public without breach of this Agreement; 3.5.3 independently developed or derived by the recipient without use of the Proprietary Information; or 11 3.5.4 that the Group who owns such information agrees, in writing, may be used or disclosed and then only to the extent of such agreement. 3.6 Compelled Production. The restrictions concerning the use or disclosure of Proprietary Information contained in Section 3.4 shall not preclude a member of either Group, on the good faith advice of counsel, from complying with applicable law or other demand under lawful process, including a discovery request in a civil litigation or from a governmental agency or official, if the member first gives the Group owning the relevant Proprietary Information prompt notice of the required disclosure and cooperates with the owning Group, at the owning Group's sole expense, in seeking reasonable protective arrangements with the party requiring disclosure under applicable law or other demand under lawful process. In no event shall such cooperation require any member of a Group to take any action which, on the advice of its counsel, could result in the imposition of any sanctions or other penalties against that member. 3.7 Furnishing of Proprietary Information. Except as required by the terms of this Agreement, no member of any Group is required to furnish any physical manifestations of any Proprietary Information to any member of any other Group. 3.8 No Contravention Of Existing License Agreements. Nothing in this Agreement, the TWE Distribution Agreement or any Ancillary Agreement changes, alters, limits or expands any current rights that any TWE Broadband Member or any TWE Non-Broadband Member may have been granted as of the Closing by any Person to use Proprietary Information. For purposes of clarity, the Parties understand and agree that the purpose of the licenses to use Proprietary Information granted herein is to allow to continue after Closing certain incidental uses by one Group of the other Group's Proprietary Information which have taken place in the Groups prior to Closing and neither Group shall seek to use any license to Proprietary Information granted hereunder to exploit Proprietary Information in a manner that was not granted prior to the Closing. 4. CONTENT 4.1 Existing Content Ownership. As between the TWE Non-Broadband Group and the TWE Broadband Group, any Content existing as of the Closing that: 4.1.1 was created by or for or assigned, transferred, conveyed to, or otherwise owned by the TWE Broadband Group and primarily relates to, arises out of or results from the TWE Broadband Business, shall be owned by the TWE Broadband Group. Content retained by the TWE Broadband Group pursuant to this Section 4.1.1 is referred to as "TWE Broadband Group Content"; and 4.1.2 constitutes all Content other than TWE Broadband Group Content created by or for or assigned, transferred, conveyed to, or otherwise owned by TWE or any other member of either Group shall be owned by the TWE Non-Broadband Group. Content allocated to the TWE Non-Broadband Group pursuant to this Section 4.1.2 is referred to as "TWE Non-Broadband Group Content." 12 4.2 Allocation of Content Within a Group. Each Group may allocate ownership of Content owned by that Group to the appropriate member or members within that Group. 4.3 No rights in TWE Non-Broadband Group Content. For the avoidance of doubt, and notwithstanding anything to the contrary contained herein, in any Ancillary Agreement or in the TWE Distribution Agreement, all Content other than TWE Broadband Group Content shall be exclusively owned by the TWE Non-Broadband Group. Nothing in this Agreement, the TWE Distribution Agreement or any Ancillary Agreement changes, alters, limits or expands any current rights that any TWE Broadband Member or any TWE Non-Broadband Member may have been granted as of the Closing by any Person to reproduce, distribute, publicly perform or otherwise use Content. 5. PATENTS. 5.1 Ownership of Existing Patents. As between the TWE Non-Broadband Group and the TWE Broadband Group, any Patents existing as of the Closing that: 5.1.1 were invented or developed by or for or assigned, transferred, conveyed to, or otherwise owned by the TWE Broadband Group, including but not limited to, those set forth on Schedule B hereto, shall be owned by the TWE Broadband Group; provided that, Patents set forth on Schedule C hereto, to the extent they are owned by or licensed to either Group as of the Closing, (the "Mystro Patents") shall not be allocated to the TWE Broadband Group. Patents owned by the TWE Broadband Group pursuant to this Section 5.1.1 are referred to as "Existing TWE Broadband Group Patents"; 5.1.2 were invented or developed by or for or assigned, transferred, conveyed to, or otherwise owned by the TWE Non-Broadband Group, including but not limited to, those set forth on Schedule D hereto, shall be owned by the TWE Non-Broadband Group. Mystro Patents shall also be allocated to the TWE Non-Broadband Group. Patents owned by the TWE Non-Broadband Group pursuant to this Section 5.1.2 are referred to as "Existing TWE Non-Broadband Group Patents"); and 5.1.3 were invented or developed by one or more TWE Broadband Members and one or more TWE Non-Broadband Members shall be owned jointly by the TWE Non-Broadband Group and the TWE Broadband Group. Patents jointly owned by the TWE Non-Broadband Group and the TWE Broadband Group pursuant to this Section 5.1.3 are referred to as "Joint Patents." 5.2 License to Existing Patents. 5.2.1 Subject to the terms and conditions of this Agreement, and subject to rights of Third Parties and licenses in effect as of the Closing, effective concurrently with the TWE Distribution, TWE hereby grants, and agrees to cause each other TWE Broadband Group Member to grant, to Holdco (i) under Existing TWE Broadband Group Patents, including, for the purpose of clarification, all counterparts, continuations, divisions, reissues, reexaminations and renewals thereof, that are used in the TWE Non-Broadband Business as of the Closing and (ii) under Patents relating to the Mystro Business that are not otherwise defined as Mystro Patents, regardless of whether such 13 Patents are used in the TWE Non-Broadband Business as of the Closing, a nonexclusive, fully paid-up, worldwide, perpetual, non-sublicensable (except as provided in Section 10.2), non-assignable, (except as provided in Section 10.1), royalty-free and irrevocable license to make, have made, use, offer to sell, sell and import any and all products and services in the conduct of the TWE Non-Broadband Business. 5.2.2 Subject to the terms and conditions of this Agreement, and subject to rights of Third Parties and licenses in effect as of the Closing, effective immediately following the Closing, Holdco hereby grants, and agrees to cause each other TWE Non-Broadband Group Member to grant, to TWE under Existing TWE Non-Broadband Group Patents (other than the Mystro Patents), including, for the purpose of clarification, all counterparts, continuations, divisions, reissues, reexaminations and renewals thereof, that are used in the TWE Broadband Business as of the Closing, a nonexclusive, fully paid-up, worldwide, perpetual, non-sublicensable (except as provided in Section 10.2), non-assignable (except as provided in Section 10.1), royalty-free and irrevocable license to make, have made, use, offer to sell, sell and import any and all products and services in the conduct of the TWE Broadband Business. 5.2.3 Customer Pass-Through. The license grants in Section 5.2 further include the right of each Group to pass through to its customers the right to use and resell products and services sold by that Group alone or in combination with any other products and services sold by that Group, whether or not furnished at the same time. 6. JOINTLY OWNED PATENTS 6.1 Rights as Joint Owners. Each of Holdco (and each other TWE Non-Broadband Member) and TWE (and each other TWE Broadband Member) shall have the right to (i) use and exploit the Joint Patents, (ii) subject to the rights set forth in Section 6.3, license the Joint Patents to Third Parties on a non-exclusive basis and (iii) subject to the prior written consent of the other Group, transfer its ownership interest in any or all Joint Patents to any Third Party provided that such Third Party agrees in writing to the provisions of Section 6, in each case without restriction and without the obligation to account to the other Group for compensation or profits derived therefrom. 6.2 Obtaining Patent Protection. With respect to any Joint Patents, Holdco shall have the right, but not the obligation, to prepare and file patent applications on behalf of both Parties and to prosecute same. Prior to the contemplated filing, Holdco shall submit a substantially completed draft of such patent applications to TWE for approval, which approval shall not be unreasonably withheld or delayed. In the event of an imminent statutory bar to patenting, Holdco shall have the right to file a patent application, for the invention on which a patent would be barred, without first receiving approval from TWE, in order to preserve the patent rights to such invention. Holdco and TWE shall equally bear the reasonable costs of preparing, filing, prosecuting and maintaining any Joint Patents. Should Holdco not wish to prepare, file, prosecute, maintain or issue any patent application for a Joint Patent, or maintain a patent issuing from any such patent applications, in any particular country, Holdco shall grant TWE any necessary authority to file, prosecute, maintain or issue such patent application, or maintain such Patent, in the 14 name of TWE. Likewise, should TWE not wish to prepare, file, prosecute, maintain or issue any patent application for a Joint Patent, or maintain a patent issuing from such patent applications, in any particular country, TWE shall grant Holdco any necessary authority to prepare, file, prosecute, issue and maintain such patent application, or maintain such a patent, in the name of Holdco. 6.3 Infringement by Third Parties. Should either Holdco or TWE become aware of any infringement or misappropriation of Joint Patents, such Party shall communicate promptly the details to the other Party and the Parties will meet and confer regarding any enforcement action with respect to such Joint Patent. If the Parties decide jointly to bring an action for infringement or misappropriation of each Joint Patent, the Parties shall equally share all actual and reasonable expenses associated herewith (except for the value of the time of each Party's employees in connection with the action; each Party shall alone bear its employee expenses) and any resulting damages or compensation, including any amounts paid in settlement. If the Parties decide not to jointly bring such an action, either Party or any of its Affiliates may, at its own expense (including, as the Parties shall agree on a case by case basis, compensation, if any, of the other Party for the value of time of the other Party's employees as reasonably required, in connection with the action), enforce the Joint Patent against any Third Party infringer or misappropriating Person without the consent of the other Party, subject to the following: (i) neither Party shall have any obligation to be joined as a party plaintiff in such action without its prior written consent, which may be granted or withheld in its sole discretion, regardless of whether such joinder is required in order to confer jurisdiction in the jurisdiction in which the action is to be brought; (ii) if either Party brings any such action on its own, including cases in which the other Party consents to be named as party plaintiff, the Party bringing the action agrees to defend, indemnify and hold harmless the other Party for all losses, costs, liabilities and expenses arising out of or related to the bringing of such action; and (iii) the Party bringing such action shall not take any action, or make any admissions, that may affect the validity or enforceability of any Joint Patents without the prior written consent of the other Party. (For avoidance of doubt, the bringing of an action for infringement or misappropriation of a Joint Patent that results in an adverse judgment shall not be deemed such an action affecting the validity or enforceability of such Joint Patent). If the enforcing Party or an Affiliate thereof recovers any damages or compensation for any action the enforcing Party or such Affiliate takes hereunder, including any settlement, the enforcing Party or such Affiliate shall retain one hundred percent (100%) of such damages. If the Parties cooperate in any such enforcement action, then any recovery of damages or compensation shall be allocated pursuant to mutual agreement. For the avoidance of doubt, this Section shall not serve to restrict or in any way limit the rights of each joint owner granted in Section 6.1. 7. TRADEMARKS. 7.1 Ownership of Trademarks. As between the TWE Non-Broadband Group and the TWE Broadband Group, any Trademarks existing as of the Closing that: 7.1.1 were created or developed by or for or assigned, transferred, conveyed to, or otherwise owned by the TWE Broadband Group and primarily relate to, 15 arise out of or result from the TWE Broadband Business, shall be owned by the TWE Broadband Group; provided that, Trademarks set forth on Schedule E, to the extent they are owned by or licensed to either Group as of the Closing, shall not be allocated to the TWE Broadband Group. Trademarks owned by the TWE Broadband Group pursuant to this Section 7.1.1 are referred to as "TWE Broadband Group Trademarks"; and 7.1.2 constitute all Trademarks other than the TWE Broadband Group Trademarks created or developed by or for or assigned, transferred, conveyed to, or otherwise owned by TWE or any other member of either Group shall be owned by the TWE Non-Broadband Group. Trademarks set forth on Schedule E, to the extent they are owned by or licensed to either Group as of the Closing, shall also be allocated to the TWE Non-Broadband Group. Trademarks owned by the TWE Non-Broadband Group pursuant to this Section 7.1.2 are referred to as "TWE Non-Broadband Group Trademarks." 7.2 Allocation of Trademarks Within a Group. Each Group may allocate ownership of Trademarks owned by that Group to the appropriate member within that Group. 7.3 No rights in TWE Non-Broadband Group Trademarks. For the avoidance of doubt, and notwithstanding anything to the contrary herein, in any Ancillary Agreement or in the TWE Distribution Agreement, all Trademarks other than the TWE Broadband Group Trademarks shall be exclusively owned by the TWE Non-Broadband Group. Nothing in this Agreement, the TWE Distribution Agreement or any Ancillary Agreement changes, alters, limits or expands any current rights that any TWE Broadband Member or any TWE Non-Broadband Member may have been granted as of the Closing by any party to use Trademarks. 8. IPR FUTURES AND ISSUES OF OWNERSHIP 8.1 Ownership Unaffected by this Agreement. 8.1.1 All Software, Proprietary Information, Patents, Content and Trademarks (a) created, developed or made, or, (b) other than by operation of this Agreement, otherwise acquired or controlled, by a member of a Group after the Closing ("IPR Futures") shall be owned in accordance with applicable law or agreement and such ownership is not covered or in any way provided by this Agreement (other than Section 8.3 and 9 below), the TWE Distribution Agreement or any Ancillary Agreement, except that (i) Patents issuing on applications contained in the definition of Existing TWE Broadband Group Patents and all counterparts, continuations, divisions, reissues, reexaminations and renewals of Existing TWE Broadband Group Patents shall be owned by the TWE Broadband Group and (ii) Patents issuing on applications contained in the definition of 16 Existing TWE Non-Broadband Group Patents and all counterparts, continuations, divisions, reissues, reexaminations and renewals of Existing TWE Non-Broadband Group Patents shall be owned by the TWE Non-Broadband Group. 8.2 No Rights or Licenses Granted. Other than 8.2.1 with respect to Patents included in the definitions of Existing TWE Non-Broadband Group Patents and Existing TWE Broadband Group Patents; and 8.2.2 as provided in the Patent Assignment, the Trademark and Service Mark Assignment, or the Copyright and Technology Assignment, no rights or licenses under any IPR Futures are granted pursuant to this Agreement, the TWE Distribution Agreement or any Ancillary Agreement. 8.3 Issues as to Ownership. In the event that an issue should arise under this Agreement as to the ownership of, or license rights in, particular Software, Proprietary Information, Copyrights, Content, Patents, Trademarks or IPR Futures, the Parties shall discuss and negotiate reasonably in good faith to resolve any such issue. 8.4 License of Intellectual Property Relating to the Mystro Business. To the extent the Mystro Patents, Mystro Software and the Mystro Proprietary Information is transferred to Holdco, the Parties agree to negotiate in good faith to enter into a license agreement pursuant to which Holdco grants the TWE Broadband Group a non-exclusive, non-transferable, royalty-free license, without the right to sublicense, to the Mystro Patents, the Mystro Software and the Mystro Proprietary Information. 9. ASSIGNMENT AND SUBLICENSES 9.1 Assignment Agreements. By the Patent Assignment, the Copyright and Technology Assignment and the Trademark and Service Mark Assignment, (i) concurrently with the TWE Distribution, TWE, on behalf of itself and each of its Subsidiaries, assigns to Holdco any and all right, title and interest of TWE and each of its Subsidiaries in, to and under the Existing TWE Non-Broadband Group Patents, TWE Non-Broadband Group Content, TWE Non-Broadband Group Trademarks, TWE Non-Broadband Group Software and TWE Non-Broadband Group Proprietary Information, and (ii) immediately following the Closing, Holdco, on behalf of itself and each of its Subsidiaries, assigns to TWE any and all rights, title and interest of any TWE Non-Broadband Members in, to and under any Existing TWE Broadband Group Patents, TWE Broadband Group Content, TWE Broadband Group Trademarks, TWE Broadband Group Software and TWE Broadband Group Proprietary Information. 9.2 Assignment of TWE Non-Broadband IP Licenses. TWE, on behalf of itself and each of its Subsidiaries, does hereby assign, convey, transfer and deliver to Holdco effective concurrently with the TWE Distribution, all of TWE's and each of its Subsidiaries' entire right, title and interest, to, in and under all TWE Non-Broadband IP Licenses, in accordance with the terms of such licenses and only to the extent TWE has the right to do so (subject to its obligations in Section 17.3.1), together with any and all rights 17 and licenses granted to the TWE Non-Broadband Group pursuant to this Agreement. Immediately after the assignment to Holdco set forth in this Section 9.2, TWE and the other TWE Broadband Members shall no longer retain any rights or licenses granted to the TWE Non-Broadband Group pursuant to this Agreement. 9.3 Assignment of TWE Broadband IP Licenses. Holdco, on behalf of itself and each of its Subsidiaries, does hereby assign, convey, transfer and deliver to TWE effectively immediately following the Closing, all of Holdco's and each of its Subsidiaries' entire right, title and interest, to, in and under all TWE Broadband IP Licenses, in accordance with the terms of such licenses and only to the extent Holdco has the right to do so (subject to its obligations in Section 17.3.1), together with any and all rights and licenses granted to the TWE Broadband Group pursuant to this Agreement. Immediately after the assignment to TWE set forth in this Section 9.3, Holdco and the other TWE Non-Broadband Members shall no longer retain any rights or licenses granted to the TWE Broadband Group pursuant to this Agreement. 9.4 Sublicense of TWE Non-Broadband Technology Licenses. Effective immediately following the Closing and subject to the terms and conditions of this Agreement, Holdco hereby grants to TWE a non-exclusive, fully paid-up, worldwide, perpetual, non-sublicensable (except as provided in Section 10.2), non-assignable (except as provided in Section 10.1), royalty-free and irrevocable sublicense to use TWE Non-Broadband Technology Licenses that were used in the TWE Broadband Business as of the Closing, in accordance with the terms set forth in such license agreements and only to the extent that Holdco has the right to do so (subject to its obligations in Section 17.3.2 herein). 9.5 Sublicense of TWE Broadband Technology Licenses. Effective concurrently with the TWE Distribution and subject to the terms and conditions of this Agreement, TWE, on behalf of itself and each other TWE Broadband Member, hereby grants to Holdco a non-exclusive, fully paid-up, worldwide, perpetual, non-sublicensable (except as provided in Section 10.2), non-assignable (except as set forth as provided in Section 10.1), royalty-free and irrevocable sublicense to use TWE Broadband Technology Licenses that were used in the TWE Non-Broadband Business as of the Closing, in accordance with the terms set forth in such license agreements and only to the extent TWE has the right to do so (subject to its obligations in Section 17.3.2 herein). 9.5.1 Copies of Licensed Software. If certain copies of licensed Software are used exclusively by the TWE Non-Broadband Group and other copies of the Software are used exclusively by the TWE Broadband Group (and assuming those other copies are licensed to TWE as of the Closing), then those copies of the Software used exclusively by the TWE Non-Broadband Group shall be treated as provided in Section 9.2 and those copies of the Software used exclusively by the TWE Broadband Group shall be retained by the TWE Broadband Group. 9.6 Acquisition of Subsidiary by Holdco. The Parties recognize that one or more Subsidiaries of TWE will no longer be Subsidiaries of TWE following the Closing but will become Subsidiaries of Holdco. Such Subsidiaries shall not be required to assign 18 to Holdco any TWE Non-Broadband IP Licenses under Section 9.2 or any other intellectual property allocated to the TWE Non-Broadband Group pursuant to this Agreement because Holdco will obtain control of such TWE Non-Broadband IP License or other intellectual property through equity ownership of that Subsidiary. Accordingly, to the extent that Holdco obtains as a Subsidiary a Subsidiary of TWE, which Subsidiary would, but for the operation of this Section 9.6, have assigned to Holdco its TWE Non-Broadband IP Licenses by operation of Section 9.2 or other intellectual property by operation of the Copyright and Technology Assignment, the Patent Assignment or the Trademark and Service Mark Assignment, then the assignment of such rights, and only such rights, shall not be deemed to have been made by operation of the Copyright and Technology Assignment, the Patent Assignment, the Trademark and Service Mark Assignment or Section 9.2. Otherwise, the assignments of this Agreement are unaffected by this Section 9.6. 9.7 Failure of Assignment of TWE Non-Broadband IP Licenses. In the event that a particular TWE Non-Broadband IP License cannot be assigned by TWE to Holdco after assistance has been fully rendered in accordance with the obligations set forth in Section 17.3.1, then, with respect to such a TWE Non-Broadband IP License that is 9.7.1 an Outbound TWE Non-Broadband IP License, TWE hereby irrevocably appoints Holdco as TWE's exclusive agent for administering such Outbound TWE Non-Broadband IP License and hereby irrevocably assigns to Holdco any and all right, title and interest in and to all royalties and other payments to be paid to TWE pursuant to such Outbound TWE Non-Broadband IP License. TWE shall, on behalf of itself and each of its Subsidiaries, at any time without charge to Holdco, sign all papers, take all rightful oaths, and do all acts which Holdco believes to be necessary, desirable or convenient to effect such appointment and assignment, including sending such letters as Holdco may request directing licensees under such Outbound TWE Non-Broadband IP Licenses to make payments to Holdco. 9.7.2 an Inbound TWE Non-Broadband IP License, TWE shall, to the fullest extent permitted by such Inbound TWE Non-Broadband IP License, exercise its rights for the maximum benefit and protection of Holdco, and TWE, to the fullest extent permitted without jeopardizing Holdco's license rights under such Inbound TWE Non-Broadband IP License, hereby irrevocably appoints Holdco as an agent for TWE under such Inbound TWE Non-Broadband IP License with full authority to act on behalf of TWE to ensure that the TWE Non-Broadband Group enjoys the maximum benefit and protection of such Inbound TWE Non-Broadband IP License. TWE shall, on behalf of itself and each of its Subsidiaries, at any time without charge to Holdco, sign all papers, take all rightful oaths, and do all acts which Holdco believes to be necessary, desirable or convenient to effect such appointment, including sending such letters as Holdco may request advising licensors of such appointment. 9.8 Failure of Assignment of TWE Broadband IP Licenses. In the event that a particular TWE Broadband IP License cannot be assigned by Holdco to TWE after assistance has been fully rendered in accordance with the obligations set forth in Section 17.3.1, then, with respect to such a TWE Broadband IP License that is 19 9.8.1 an Outbound TWE Broadband IP License, Holdco hereby irrevocably appoints TWE as Holdco's exclusive agent for administering such Outbound TWE Broadband IP License and hereby irrevocably assigns to TWE any and all right, title and interest in and to all royalties and other payments to be paid to Holdco pursuant to such Outbound TWE Broadband IP License. Holdco shall, on behalf of itself and each of its Subsidiaries, at any time without charge to TWE, sign all papers, take all rightful oaths, and do all acts which TWE believes to be necessary, desirable or convenient to effect such appointment and assignment, including sending such letters as TWE may request directing licensees under such Outbound TWE Broadband IP Licenses to make payments to TWE. 9.8.2 an Inbound TWE Broadband IP License, Holdco shall, to the fullest extent permitted by such Inbound TWE Broadband IP License, exercise its rights for the maximum benefit and protection of TWE, and Holdco, to the fullest extent permitted without jeopardizing TWE's license rights under such Inbound TWE Broadband IP License, hereby irrevocably appoints TWE as an agent for Holdco under such Inbound TWE Broadband IP License with full authority to act on behalf of Holdco to ensure that the TWE Broadband Group enjoys the maximum benefit and protection of such Inbound TWE Broadband IP License. Holdco shall, on behalf of itself and each of its Subsidiaries, at any time without charge to TWE, sign all papers, take all rightful oaths, and do all acts which TWE believes to be necessary, desirable or convenient to effect such appointment, including sending such letters as TWE may request advising licensors of such appointment. 9.9 Order of Precedence. In the event of any inconsistency between the terms and conditions of this Agreement and those of the Patent Assignment, the Copyright and Technology Assignment, or the Trademark and the Service Mark Assignment, the order of priority shall be first the Patent Assignment, the Copyright and Technology Assignment, or the Trademark and Service Mark Assignment, as applicable, and second this Agreement. 10. ASSIGNMENT/SUBLICENSING 10.1 Assignments. 10.1.1 Neither Party shall assign its rights or obligations under this Agreement without the prior written consent of the other Party, unless such assignment is to a Person who is or becomes an Affiliate of such Party. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors, legal representatives and permitted assigns of each of the Parties. 10.1.2 Except as provided in Section 10.2 below and subject to the terms and conditions of this Agreement and the Ancillary Agreements, as applicable, each Party shall have the right to assign, transfer, convey, license or use in any manner, any intellectual property, including Software, Proprietary Information, Patents, Content and Trademarks, owned by such Party, whether as a result of allocations, assignments or transfers set forth in or contemplated by this Agreement, the Ancillary Agreements or otherwise. 20 10.2 Sublicense Rights. Neither Party shall sublicense any of the intellectual property rights licensed to it pursuant to Sections 2.3, 3.3 or 5.2 hereof without the prior written consent of the other Party, unless such sublicense is to a Person who is or becomes an Affiliate of such Party; provided that, the sublicense granted to such Person shall only be effective for so long as such Person remains an Affiliate of such Party. 11. INFRINGEMENT TWE and Holdco agree to reasonably cooperate with each other in the protection and enforcement of the intellectual property licensed to the other Party pursuant to this Agreement. Licensor may, in its sole discretion, commence or prosecute and effect the disposition of any claims or suits relative to the infringement, misappropriation and/or unlawful use of the licensed intellectual property in its own name and may, with Licensee's permission, such permission not to be unreasonably withheld or delayed, join Licensee as a party in the prosecution of such claims or suits. Licensee agrees to reasonably cooperate with Licensor in connection with any such claims or suits and undertakes to furnish reasonable assistance to Licensor in the conduct of all proceedings in regard thereto. Both Parties shall promptly notify the other party in writing of any infringement, misappropriation or illegal uses by others of the licensed intellectual property. 12. NO WARRANTIES OR REPRESENTATIONS ALL SOFTWARE, PROPRIETARY INFORMATION, PATENTS AND CONTENT COVERED UNDER THIS AGREEMENT ARE FURNISHED "AS IS," WITHOUT ANY SUPPORT, ASSISTANCE, MAINTENANCE OR WARRANTIES OF ANY KIND, WHATSOEVER. EACH GROUP ASSUMES TOTAL RESPONSIBILITY AND RISK FOR ITS USE OF ANY SOFTWARE, PATENTS, PROPRIETARY INFORMATION OR CONTENT COVERED BY THIS AGREEMENT. NEITHER GROUP MAKES, AND EACH GROUP EXPRESSLY DISCLAIMS, ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR ANY WARRANTY THAT SUCH SOFTWARE, PATENTS, PROPRIETARY INFORMATION OR CONTENT IS "ERROR FREE." 13. GOVERNING LAW; IP CLAIMS 13.1 Choice of Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York without regard to its principles of conflicts of law. Except as otherwise provided herein, TWE and Holdco, each on behalf of itself and the members of its respective Group, hereby irrevocably submit to the exclusive jurisdiction of the United States District Court for the Southern District of New York, or absent subject matter jurisdiction in that court, the state courts of 21 the State of New York located in New York County for all actions, suits or proceedings arising in connection with this Agreement. 13.2 Intellectual Property Rights. Notwithstanding any provision in this Agreement, the TWE Distribution Agreement or any Ancillary Agreement, in no event shall any claims, disputes or controversies between the Parties which potentially concern the validity, enforceability, infringement or misappropriation of any intellectual property rights, including any rights protectable under intellectual property law anywhere throughout the world such as Patent, Copyright, trade secret and Trademark law, be subject to resolution by arbitration. 13.3 Equitable Remedies. The Parties recognize that money damages alone may not be an adequate remedy for any breach or threatened breach of any obligation hereunder involving intellectual property rights or either Party exceeding the scope of its license and rights hereunder. The Parties therefore agree that in addition to any other remedies available hereunder, by law or otherwise, the non-breaching Party shall be entitled to seek injunctive relief against any such continued action by the other Parties. 13.4 Bankruptcy. This Agreement constitutes a license of "intellectual property" within the meaning of Section 365(n) of the United States Bankruptcy Code. If Section 365(n) of the United States Bankruptcy Code (or any successor provision) is applicable, and the trustee or debtor-in-possession has rejected this Agreement and if the Licensee has elected pursuant to Section 365(n) to retain its rights hereunder, then upon written request of Licensee, to the extent Licensee is otherwise entitled hereunder, the trustee or debtor-in-possession shall provide to Licensee any intellectual property (including embodiments thereof) held or controlled by the trustee or debtor-in-possession. 14. NOTICE Unless otherwise provided in this Agreement, all notices, consents, approvals, waivers and the like made hereunder shall be in written English addressed as provided below, shall reference this Agreement and shall be sent by any of the following methods: (a) certified mail, postage-prepaid, return-receipt requested, (b) a delivery service which requires proof of delivery signed by the recipient or (c) properly-transmitted facsimile followed by written confirmation in accordance with methods (a), (b) or first-class U.S. mail. The date of notice shall be deemed to be the date it was received (in the case of method (c) above, the date of notice shall be deemed to be the date that the facsimile copy is received). A Party may change its address for notice by written notice delivered in accordance with this Section 14. If to Holdco to: Warner Communications Inc. c/o AOL Time Warner Inc. 75 Rockefeller Plaza New York, NY 10019 Attn: General Counsel Fax: 212 ###-###-#### 22 If to TWE to: Time Warner Entertainment Company, L.P. 75 Rockefeller Plaza New York, NY 10019 Attn: General Counsel Fax: 212 ###-###-#### In each case with a copy to: Paul, Weiss, Rifkind, Wharton & Garrison 1285 Avenue of the Americas New York, New York 10019 Attn: Robert B. Schumer, Esq. Fax: 212 ###-###-#### Prior to the consummation of the AT&T Comcast Merger: AT&T Corp. 295 North Maple Avenue Basking Ridge, New Jersey 07920 Attn: Secretary Fax: 908 ###-###-#### With a copy to: Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, New York 10019 Attn: Trevor S. Norwitz Fax: 212 ###-###-#### Following the consummation of the AT&T Comcast Merger: Comcast Corporation 1500 Market Street Philadelphia, Pennsylvania 19102 Attn: General Counsel Fax: 215 ###-###-#### With a copy to: 23 Davis Polk & Wardwell 450 Lexington Avenue New York, New York 10017 Attn: Dennis S. Hersch William L. Taylor Fax: 212 ###-###-#### 15. FURTHER DUE DILIGENCE TWE and Holdco acknowledge that following the execution of this Agreement and prior to the Closing, TWE and Holdco will be conducting further due diligence into the Patents, Content and other intellectual property owned by the Groups. TWE and Holdco agree to work in good faith to ensure that the intellectual property covered by this Agreement has been properly allocated, assigned and licensed to each Group according to principles set forth in this Agreement. 16. FEES AND EXPENSES All Transaction Expenses incurred by either of the Parties or its Affiliates shall be paid as set forth in the Restructuring Agreement. 17. MISCELLANEOUS 17.1 No Other Rights. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR THE ANCILLARY AGREEMENTS, NO OTHER RIGHTS OR LICENSES ARE GRANTED. 17.2 No Enforcement Against Third-Party. Notwithstanding any provision of this Agreement or the Ancillary Agreements, in no event shall any member of any Group be required to enforce or otherwise assert against any Person any intellectual property rights. 17.3 Further Assurances. Each Party covenants to execute upon request any further documents reasonably necessary to effect the express terms and conditions of this Agreement, including such documents as are reasonably necessary to vest title in intellectual property rights as provided in this Agreement. All expenses incurred in connection with such actions shall be paid in accordance with Section 16. 17.3.1 Assistance with Assignment. TWE, on behalf of itself and each other TWE Broadband Member, and Holdco, on behalf of itself and each other TWE Non-Broadband Member, shall, at any time without charge to the other Party, sign all papers, take all rightful oaths, and do all acts which the other Party believes are necessary, desirable or convenient to assign, convey, transfer and deliver to such other Party any licenses to be assigned pursuant to Section 9.2 or 9.3, and to record such assignments with the appropriate Governmental Authorities, including without limitation, using reasonable efforts to seek consent of any party to any such license for the assignment of the same to the other Party. It is understood and agreed that neither Party shall be required to 24 undertake extraordinary or unreasonable measures to obtain any necessary consent, including making any expenditures or accepting any material changes in the terms of any license agreement for which consent is sought. 17.3.2 Assistance with Sublicense. TWE, on behalf of itself and each other TWE Broadband Member, and Holdco, on behalf of itself and each other TWE Non-Broadband Member, shall at any time without charge to the other Party, sign all papers, take all rightful oaths, and do all acts which the other Party believes is necessary, desirable or convenient to sublicense to such other Party any licenses to be sublicensed pursuant to Section 9.4. or 9.5, including without limitation, using reasonable efforts to seek consent of any party to any such license for the sublicense of the same to such other Party. It is understood and agreed that neither Party shall be required to undertake extraordinary or unreasonable measures to obtain any necessary consent, including making any expenditures or accepting any material changes in the terms of any license agreement for which consent is sought. 17.4 Rules of Construction. As used in this Agreement, (i) neutral pronouns and any derivations thereof shall be deemed to include the feminine and masculine and all terms used in the singular shall be deemed to include the plural and vice versa, as the context may require; (ii) the words "hereof," "herein," "hereunder" and other words of similar import refer to this Agreement as a whole, including all exhibits and schedules as the same may be amended or supplemented from time to time, and not to any subdivision of this Agreement; (iii) the word "including" or any variation thereof means "including, without limitation" and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it; (iv) descriptive headings and titles used in this Agreement are inserted for convenience of reference only and do not constitute a part of and shall not be utilized in interpreting this Agreement; (v) the words "Party" and "Parties" refer, respectively, to each or both parties to this Agreement (vi) reference to a work of authorship or information as being created or developed by a Party means that the work of authorship or information is created or developed by employees of that Party or by such other individuals, such as contractors, who have a duty to assign ownership in such work of authorship or information to such Party. This Agreement shall be fairly interpreted in accordance with its terms and without any strict construction in favor of or against either Party. 17.5 Amendments. This Agreement may not be amended, changed, supplemented, waived or otherwise modified except by an instrument in writing signed by the Parties. 17.6 No Waiver. The failure of either Party to exercise any right, power or remedy provided under this Agreement or otherwise available in respect hereof at law or in equity, or to insist upon compliance by the other Party with its obligations hereunder, and any custom or practice of the Parties at variance with the terms hereof, shall not constitute a waiver by such Party of its right to exercise any such or other right, power or remedy or to demand such compliance. 25 17.7 Third Party Beneficiaries. The provisions of this Agreement and each Ancillary Agreement are solely for the benefit of the Parties and are not intended to confer upon any Person except the Parties any rights or remedies hereunder and there are no third party beneficiaries of this Agreement or any Ancillary Agreement and neither this Agreement nor any Ancillary Agreement shall provide any third person with any remedy, claim, liability, reimbursement, claim of action or other right in excess of those existing without reference to this Agreement or any Ancillary Agreement. No Party hereto shall have any right, remedy or claim with respect to any provision of this Agreement or any Ancillary Agreement to the extent such provision relates solely to the other Party hereto or the members of such other party's respective Groups. No Party shall be required to deliver any notice under this Agreement or under any Ancillary Agreement to any other Party with respect to any matter in which such other Party has no right, remedy or claim. 17.8 Force Majeure. No Party shall be deemed in default of this Agreement or any Ancillary Agreement during the period of extension referred to in the next sentence to the extent that any delay or failure in the performance of its obligations under this Agreement or any Ancillary Agreement results from any cause beyond its reasonable control and without its fault or negligence, such as acts of God, criminal or terrorist acts, acts of civil or military authority, embargoes, epidemics, war, riots, insurrections, fires, explosions, earthquakes, floods, unusually severe weather conditions, labor problems or unavailability of parts, or, in the case of computer systems, any failure in electrical or air conditioning equipment. In the event of any such excused delay, the time for performance shall be extended for a period equal to the time lost by reason of the delay, but in no event shall such period of extension exceed 45 days. 17.9 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies each signed by less than all, but together signed by all, the Parties. 17.10 Severability. The provisions of this Agreement are severable, and in the event that any one or more provisions, or any portion thereof, are deemed illegal or unenforceable, the remaining provisions or portions thereof, as the case may be, shall remain in full force and effect unless the deletion of such provision or portion thereof shall cause this Agreement to become materially adverse to either Party, in which event the Parties shall use commercially reasonable efforts to arrive at an accommodation that best preserves for the Parties the benefits and obligations of the offending provision or portion thereof. 17.11 Entire Agreement. This Agreement together with the Ancillary Agreements set forth the entire agreement and understanding between the Parties as to the subject matter hereof and thereof and merge all prior discussions between them. Neither of the Parties shall be bound by any warranties, understandings or representations with respect to such subject matter other than as expressly provided herein, in prior written agreements, or in a writing executed with or subsequent to the execution of this Agreement by an authorized representative of the Party to be bound thereby. 26 IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be duly executed on its behalf by one of its duly authorized officers as of the date first written above. TIME WARNER ENTERTAINMENT COMPANY, L.P. By: /s/ Spencer B. Hays -------------------------------------- Name: Spencer B. Hays Title: Senior Vice President WARNER COMMUNICATIONS INC. By: /s/ Robert D. Marcus -------------------------------------- Name: Robert D. Marcus Title: Senior Vice President 27 Schedule A Excluded TWE Broadband Group Software None 1 Schedule B TWE Broadband Group Patents

Schedule C Excluded TWE Broadband Group Patents

Schedule D TWE Non-Broadband Group Patents

Schedule E Excluded TWE Broadband Group Trademarks TRADEMARK NAME: STATUS CLASS APPLICATION NO: FILING DATE: -------------------------------------------------------------------- MAESTRO Pending 38,41 76/362074 22-Jan-2002 -------------------------------------------------------------------- MYSTRO Pending 38,41 76/364952 31-Jan-2002 -------------------------------------------------------------------- MYSTRO TV Pending 38,41 76/373223 21-Feb-2002 -------------------------------------------------------------------- TV AT YOUR Pending 38,41 76/364953 31-Jan-2002 COMMAND -------------------------------------------------------------------- TV YOU COMMAND Pending 38,41 76/365255 31-Jan-2002 -------------------------------------------------------------------- rr.com -------------------------------------------------------------------- roadrunner.com -------------------------------------------------------------------- Domain names incorporating "rr" or "roadrunner" or relating thereto -------------------------------------------------------------------- EXHIBIT I COPYRIGHT AND TECHNOLOGY ASSIGNMENT This Copyright and Technology Assignment, dated as of [ ], is by and between Time Warner Entertainment Company, L.P., a Delaware limited partnership (hereinafter "TWE"), and Warner Communications Inc., a Delaware corporation (hereinafter "Holdco"). Capitalized terms used herein and not otherwise defined shall have the respective meanings assigned to them in the Intellectual Property Agreement, dated as of the date hereof (the "TWE Intellectual Property Agreement"), by and between Holdco and TWE. WHEREAS, TWE presently owns and controls certain intellectual property related to the TWE Broadband Business and the TWE Non-Broadband Business; WHEREAS, pursuant to the Distribution Agreement, dated as of the date hereof, by and between TWE and Holdco (the "TWE Distribution Agreement"), the parties thereto determined, among other things, to separate TWE's business; WHEREAS, pursuant to the TWE Intellectual Property Agreement, the parties have allocated to Holdco and the TWE Non-Broadband Group rights in and to intellectual property related to the TWE Non-Broadband Business; WHEREAS, pursuant to the TWE Intellectual Property Agreement, the parties have allocated to TWE and the TWE Broadband Group rights in and to intellectual property related to the TWE Broadband Business; WHEREAS, in furtherance of the foregoing, it is appropriate and desirable to transfer the intellectual property allocated in the TWE Intellectual Property Agreement to the TWE Non-Broadband Business to Holdco; and WHEREAS, in furtherance of the foregoing, it is appropriate and desirable to transfer the intellectual property allocated in the TWE Intellectual Property Agreement to the TWE Broadband Business to TWE. NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: ARTICLE I TRANSFER FROM TWE TO HOLDCO 1.1 Assignment. Effective concurrently with the TWE Distribution, TWE, on behalf of itself and each of its Subsidiaries, does hereby assign, convey, transfer and deliver (to the extent not already assigned pursuant to Section 9.2 of the TWE Intellectual Property Agreement) to Holdco (or the TWE Non-Broadband Member designated by Holdco), and its successors, assigns and legal representatives or nominees, TWE's and each of its Subsidiaries' entire rights, title and interest, for all countries, jurisdictions and political entities of the world, along with the right to sue for past infringement and collect I-1 damages therefor, to and in all (i) TWE Non-Broadband Group Content (the "Non-Broadband Transferred Content"), (ii) TWE Non-Broadband Group Software and (iii) TWE Non-Broadband Group Proprietary Information (together with the Software set forth in clause (ii) above, the "Non-Broadband Transferred Technology") with respect to which, and to the extent to which, TWE and each of its Subsidiaries now have or hereafter acquire the right to so assign, convey, transfer and deliver. For the avoidance of doubt, this assignment shall not be construed as limiting TWE's license rights in any TWE Non-Broadband Group Proprietary Information or TWE Non-Broadband Group Software licensed to TWE pursuant to Sections 2.3.2, 3.3.2 or 9.4 of the TWE Intellectual Property Agreement. 1.2 Further Assurances. TWE, on behalf of itself and each of its Subsidiaries, agrees that upon request it will, at any time without charge to Holdco, sign all papers, take all rightful oaths, and do all acts which may be necessary, desirable or convenient (as determined in Holdco's sole discretion) for vesting title to the Non-Broadband Transferred Content and Non-Broadband Transferred Technology in Holdco (or the TWE Non-Broadband Member designated by Holdco), its successors, assigns and legal representatives or nominees, including but not limited to, any acts which may be necessary, desirable or convenient for claiming said rights and for securing and maintaining the Non-Broadband Transferred Content and the Non-Broadband Transferred Technology, as applicable, in any and all countries and for vesting title thereto in Holdco, its successors, assigns, legal representatives and nominees. TWE, on behalf of itself and each of its Subsidiaries, hereby appoints Holdco and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-of-fact with full irrevocable power and authority in place and stead of TWE and in the name of TWE or in its own name, for the purposes of carrying out the terms of this Agreement, to take any and all appropriate actions and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement. Furthermore, TWE agrees that upon request it will, at any time without charge to Holdco, cooperate fully with Holdco in the protection and enforcement of the Non-Broadband Transferred Content and Non-Broadband Transferred Technology, including but not limited to, cooperating fully with Holdco in connection with any claims or suits brought by or against Holdco relating to the Non-Broadband Transferred Content and Non-Broadband Transferred Technology. 1.3 No Retention of Records. TWE agrees that once it fulfills its obligations under paragraph 1.1, it will not maintain any copies or records of the Non-Broadband Transferred Content or Non-Broadband Transferred Technology, except for such Non-Broadband Transferred Technology for which TWE has a license pursuant to Sections 2.3.2, 3.3.2 and 9.4 of the TWE Intellectual Property Agreement. ARTICLE II TRANSFER FROM HOLDCO TO TWE 2.1 Assignment. Effective immediately following the Closing, Holdco, on behalf of itself and each of its Subsidiaries, does hereby assign, convey, transfer and I-2 deliver (to the extent not already assigned pursuant to Section 9.3 of the TWE Intellectual Property Agreement) to TWE, its successors, assigns and legal representatives or nominees, Holdco's and each of its Subsidiaries' entire rights, title and interest, for all countries, jurisdictions and political entities of the world, along with the right to sue for past infringement, and collect damages therefor, to and in all (i) TWE Broadband Group Content (the "Broadband Transferred Content"), (ii) TWE Broadband Group Proprietary Information and (iii) TWE Broadband Group Software (together with the Proprietary Information set forth in clause (ii) above, the "Broadband Transferred Technology"). For the avoidance of doubt, this assignment shall not be construed as limiting Holdco's license rights in any TWE Broadband Group Proprietary Information or TWE Broadband Group Software licensed to Holdco pursuant to Sections 2.3.1, 3.3.1 or 9.5 of the TWE Intellectual Property Agreement. 2.2 Further Assurances. Holdco, on behalf of itself and each of its Subsidiaries, agrees that following the Closing, upon request it will, at any time without charge to TWE, sign all papers, take all rightful oaths, and do all acts which may be necessary, desirable or convenient (as determined in TWE's sole discretion) for vesting title to the Broadband Transferred Content and Broadband Transferred Technology in TWE (or the TWE Broadband Group Member designated by TWE), its successors, assigns and legal representatives or nominees, including but not limited to any acts which may be necessary, desirable or convenient for claiming said rights and for securing and maintaining the Broadband Transferred Content or the Broadband Transferred Technology transferred to TWE pursuant to this Agreement, as applicable, in any and all countries and for vesting title thereto in TWE, its successors, assigns, legal representatives and nominees. Holdco, on behalf of itself and each of its Subsidiaries, hereby appoints TWE and any agent thereof, with full power of substitution, as its true and lawful attorney-of-fact with full irrevocable power and authority in place and stead of Holdco and in the name of Holdco or in its own name, for the purposes of carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement. Furthermore, Holdco agrees that upon request it will, at any time without charge to TWE, cooperate fully with TWE in the protection and enforcement of the Broadband Transferred Content and Broadband Transferred Technology transferred to TWE pursuant to this Agreement, including but not limited to, cooperating fully with TWE in connection with any claims or suits brought by or against TWE relating to the Broadband Transferred Content and Broadband Transferred Technology transferred to TWE pursuant to this Agreement. 2.3 No Retention of Records. Holdco agrees that once it fulfills its obligations under paragraph 2.1, it will not maintain any copies or records of the Broadband Transferred Content or Broadband Transferred Technology, except for such Broadband Transferred Technology for which it has a license pursuant to Sections 2.3.1, 3.3.1 and 9.5 of the TWE Intellectual Property Agreement. I-3 ARTICLE III MISCELLANEOUS 3.1 The Parties recognize that one or more Subsidiaries of TWE will no longer be subsidiaries of TWE following the Closing but will become Subsidiaries of Holdco. Such Subsidiaries shall not be required to assign to Holdco any Non-Broadband Transferred Content or Non-Broadband Transferred Technology because Holdco will obtain control of such Non-Broadband Transferred Content and Non-Broadband Transferred Technology through equity ownership of that Subsidiary. Accordingly, to the extent that Holdco obtains as a Subsidiary a Subsidiary of TWE, which Subsidiary would, but for the operation of this Agreement, have assigned to Holdco its Non-Broadband Transferred Copyrights and Non-Broadband Transferred Technology by operation of this Agreement, then the assignment of such rights, and only such rights, shall not be deemed to have been made by operation of this Agreement. Otherwise the assignments of this Agreement are unaffected by this Section 3.1. 3.2 All Transaction Expenses incurred by either of the Parties in connection with or related to this Agreement shall be paid as set forth in Section 16 of the TWE Intellectual Property Agreement. IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be duly executed on its behalf by one of its duly authorized officers as of the date first written above. TIME WARNER ENTERTAINMENT COMPANY, L.P. By: --------------------------------- Name: Title: WARNER COMMUNICATIONS INC. By: --------------------------------- Name: Title: I-4 State of New York ) ) ss: County of ) On the _____ day of ____________, 2002, before me came ___________, to me know, who, being by me duly sworn, did depose and say that he/she is XXXXX of TIME WARNER ENTERTAINMENT COMPANY, L.P., the limited partnership described in and which executed the foregoing instrument; that he/she knows the seal of said limited partnership; that the seal affixed to said instrument is such limited partnership seal; that it was so affixed by authority of the general partners of said limited partnership and that he/she signed his/her name thereto by like authority. - ------------------ Notary Public State of New York ) ) ss: County of ) On the ______ day of ____________, 2002, before me came ___________, to me known, who, being by me duly sworn, did depose and say that he/she is XXXXX of Warner Communications Inc., the corporation described in and which executed the foregoing instrument; that he/she knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the members of said corporation and that he/she signed his/her name thereto by like authority. - ------------------ Notary Public I-5 EXHIBIT II PATENT ASSIGNMENT This Patent Assignment, dated as of [ ], is by and between Time Warner Entertainment Company, L.P., a Delaware limited partnership (hereinafter "TWE") and Warner Communications Inc., a Delaware corporation (hereinafter "Holdco"). WHEREAS, TWE presently owns and controls certain intellectual property related to the TWE Broadband Business and the TWE Non-Broadband Business; WHEREAS, pursuant to the Distribution Agreement, dated as of the date hereof, by and between TWE and Holdco (the "TWE Distribution Agreement"), the parties thereto determined, among other things, to separate TWE's business; WHEREAS, pursuant to the TWE Intellectual Property Agreement, dated as of the date hereof, by and between TWE and Holdco (the "TWE Intellectual Property Agreement"), the parties have allocated to Holdco and the TWE Non-Broadband Group rights in and to intellectual property related to the TWE Non-Broadband Business; WHEREAS, pursuant to the TWE Intellectual Property Agreement, the parties have allocated to TWE and the TWE Broadband Group rights in and to intellectual property related to the TWE Broadband Business; WHEREAS, in furtherance of the foregoing, it is appropriate and desirable to transfer the Patents allocated in the TWE Intellectual Property Agreement to the TWE Non-Broadband Business to Holdco; and WHEREAS, in furtherance of the foregoing, it is appropriate and desirable to transfer the Patents allocated in the TWE Intellectual Property Agreement to the TWE Broadband Business to TWE. NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: ARTICLE I DEFINITIONS 1.1 Capitalized terms used herein and not otherwise defined shall have the respective meanings assigned to them in the TWE Intellectual Property Agreement. 1.2 "Existing TWE Broadband Group Patents" has the meaning assigned to it in the TWE Intellectual Property Agreement. 1.3 "Existing TWE Non-Broadband Group Patents" has the meaning assigned to it in the TWE Intellectual Property Agreement. II-1 ARTICLE II TRANSFER FROM TWE TO HOLDCO 2.1 Assignment. Effective concurrently with the TWE Distribution, TWE, on behalf of itself and each of its Subsidiaries, does hereby assign, convey, transfer and deliver (to the extent not already assigned pursuant to Section 9.2 of the TWE Intellectual Property Agreement) to Holdco (or the TWE Non-Broadband Group Member designated by Holdco), its successors, assigns and legal representatives or nominees, TWE's and each of its Subsidiaries' entire right, title and interest, for all countries, jurisdictions and political entities of the world, in, to and under the Existing TWE Non-Broadband Group Patents, along with the right to sue for past infringement and collect damages therefor. 2.2 Further Assurances. TWE, on behalf of itself and each of its Subsidiaries, agrees that upon request it will, at any time without charge to Holdco, sign all papers, take all rightful oaths, and do all acts which may be necessary, desirable or convenient (as determined in Holdco's discretion) for vesting title to the Existing TWE Non-Broadband Group Patents in Holdco (or the TWE Non-Broadband Group Member designated by Holdco), its successors, assigns and legal representatives or nominees, including, but not limited to, any acts which may be necessary, desirable or convenient for claiming said rights and for securing and maintaining the Existing TWE Non-Broadband Group Patents in any and all countries and for vesting title thereto in Holdco, its successors, assigns and legal representatives or nominees (including, but not limited to, the transfer of patent prosecution files and databases and execution of patent assignments and powers of attorney for domestic and foreign patents and patent applications). TWE, on behalf of itself and each of its Subsidiaries, hereby appoints Holdco and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-of-fact with full irrevocable power and authority in place and stead of TWE and in the name of TWE or in its own name, for the purposes of carrying out the terms of this Agreement, to take any and all appropriate actions and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement. Furthermore, TWE agrees that upon request it will, at any time without charge to Holdco, cooperate fully with Holdco in the protection and enforcement of the Existing TWE Non-Broadband Group Patents, including, but not limited to, cooperating fully with Holdco in connection with any claims or suits brought by or against Holdco relating to the Existing TWE Non-Broadband Group Patents. ARTICLE III TRANSFER FROM HOLDCO TO TWE 3.1 Assignment. Effectively immediately following the Closing, Holdco, on behalf of itself and each of its Subsidiaries, does hereby assign, convey, transfer and deliver (to the extent not already assigned pursuant to Section 9.3 of the TWE Intellectual Property Agreement) to TWE (or the TWE Broadband Group Member designated by TWE), its successors, assigns and legal representatives or nominees, Holdco's and each of its Subsidiaries' entire right, title and interest, for all countries, jurisdictions and II-2 political entities of the world, in, to and under all Existing TWE Broadband Group Patents that it owns immediately following the Closing, along with the right to sue for past infringement and collect damages therefor. 3.2 Further Assurances. Holdco, on behalf of itself and each of its Subsidiaries, agrees that upon request it will, at any time without charge to TWE, sign all papers, take all rightful oaths, and do all acts which may be necessary, desirable or convenient (as determined in TWE's discretion) for vesting title to the Existing TWE Broadband Group Patents transferred pursuant to this Agreement in TWE (or the TWE Broadband Group Member designated by TWE), its successors, assigns and legal representatives or nominees, including, but not limited to, any acts which may be necessary, desirable or convenient for claiming said rights and for securing and maintaining the Existing TWE Broadband Group Patents in any and all countries and for vesting title thereto in TWE, its successors, assigns and legal representatives or nominees (including, but not limited to, the transfer of patent prosecution files and databases and execution of patent assignments and powers of attorney for domestic and foreign patents and patent applications). Holdco, on behalf of itself and each of its Subsidiaries, hereby appoints TWE and any agent thereof, with full power of substitution, as its true and lawful attorney-of-fact with full irrevocable power and authority in place and stead of Holdco and in the name of Holdco or in its own name, for the purposes of carrying out the terms of this Agreement, to take any and all appropriate actions and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement. Furthermore, Holdco agrees that upon request it will, at any time without charge to TWE, cooperate fully with TWE in the protection and enforcement of the Existing TWE Broadband Group Patents transferred pursuant to this Agreement, including, but not limited to, cooperating fully with TWE in connection with any claims or suits brought by or against TWE relating to the Existing TWE Broadband Group Patents transferred pursuant to this Agreement. ARTICLE IV MISCELLANEOUS 4.1 The Parties recognize that one or more Subsidiaries of TWE will no longer be subsidiaries of TWE following the Closing but will become Subsidiaries of Holdco. Such Subsidiaries shall not be required to assign to Holdco any TWE Existing Non-Broadband Patents because Holdco will obtain control of such TWE Existing Non-Broadband Patents through equity ownership of that Subsidiary. Accordingly, to the extent that Holdco obtains as a Subsidiary a Subsidiary of TWE, which Subsidiary would, but for the operation of this Agreement, have assigned to Holdco its TWE Existing Non-Broadband Patents by operation of this Agreement, then the assignment of such rights, and only such rights, shall not be deemed to have been made by operation of this Agreement. Otherwise the assignments of this Agreement are unaffected by this Section 4.1. II-3 4.2 All Transaction Expenses incurred by either of the Parties in connection with or related to this Agreement shall be paid as set forth in Section 16 of the TWE Intellectual Property Agreement. II-4 IN WITNESS WHEREOF, each of the parties has caused this Agreement to be duly executed on its behalf by one of its duly authorized officers as of the date first written above. TIME WARNER ENTERTAINMENT COMPANY, L.P. By: --------------------------------- Name: Title: WARNER COMMUNICATIONS INC. By: --------------------------------- Name: Title: II-5 State of New York ) ) ss: County of ) On the _______ day of ______________, 2002 before me came __________________________, to me known, who, being by me duly sworn, did depose and say that he/she is XXXXXX of Time Warner Entertainment Company, L.P., the limited partnership described in and which executed the foregoing instrument; that he/she knows the seal of said limited partnership; that the seal affixed to said instrument is such limited partnership seal; that it was so affixed by authority of the general partners of said limited partnership and that he/she signed his/her name thereto by like authority. - ---------------------------- Notary Public State of New York ) ) ss: County of ) On the _______ day of ______________, 2002 before me came __________________________, to me known, who, being by me duly sworn, did depose and say that he/she is XXXXXX of Warner Communications Inc., the corporation described in and which executed the foregoing instrument; that he/she knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the members of said corporation and that he/she signed his/her name thereto by like authority. - ---------------------------- Notary Public II-6 EXHIBIT III TRADEMARK AND SERVICE MARK ASSIGNMENT This Trademark and Service Mark Assignment, dated as of [ ], is by and between Time Warner Entertainment Company, L.P., a Delaware limited partnership (hereinafter "TWE"), and Warner Communications Inc., a Delaware corporation (hereinafter "Holdco"). WHEREAS, TWE presently owns and controls certain intellectual property related to the TWE Broadband Business and the TWE Non-Broadband Business; WHEREAS, pursuant to the Distribution Agreement, dated as of the date hereof, by and between TWE and Holdco (the "TWE Distribution Agreement"), the parties thereto determined, among other things, to separate TWE's business; WHEREAS, pursuant to the TWE Intellectual Property Agreement, dated as of the date hereof, by and between TWE and Holdco (the "TWE Intellectual Property Agreement"), the parties have allocated to Holdco and the TWE Non-Broadband Group rights in and to intellectual property related to the TWE Non-Broadband Business; WHEREAS, pursuant to the TWE Intellectual Property Agreement, the parties have allocated to TWE and the TWE Broadband Group rights in and to intellectual property related to the TWE Broadband Business; WHEREAS, pursuant to this Trademark and Service Mark Assignment, TWE transfers to Holdco all of the TWE Broadband Group Trademarks and related goodwill; and WHEREAS, pursuant to this Trademark and Service Mark Assignment, Holdco transfers to TWE all of its right, title and interest in and to the TWE Non-Broadband Group Trademark and related goodwill. NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: ARTICLE I DEFINITIONS 1.1 Capitalized terms used herein and not otherwise defined shall have the respective meanings assigned to them in the TWE Intellectual Property Agreement. 1.2 "TWE Broadband Group Trademarks" has the meaning assigned to it in the TWE Intellectual Property Agreement. 1.3 "TWE Non-Broadband Group Trademarks" has the meaning assigned to it in the TWE Intellectual Property Agreement. III-1 ARTICLE II ASSIGNMENT FROM TWE TO HOLDCO 2.1 Assignment. Effective concurrently with the TWE Distribution, TWE, on behalf of itself and each of its Subsidiaries, does hereby assign, convey, transfer and deliver (to the extent not already assigned pursuant to Section 9.2 of the TWE Intellectual Property Agreement) to Holdco (or the TWE Non-Broadband Member designated by Holdco), and its successors, assigns and legal representatives or nominees, TWE's and each of its Subsidiaries' entire right, title and interest in and to the TWE Non-Broadband Group Trademarks in the United States and throughout the world, any common law rights relating to the TWE Non-Broadband Group Trademarks, the goodwill of the business associated with and represented by the TWE Non-Broadband Group Trademarks, and rights to proceeds of the foregoing, including, without limitation, any claim by TWE against third parties for past, present or future infringement of the TWE Non-Broadband Group Trademarks. 2.2 Intent-to-Use Applications. Effective concurrently with the TWE Distribution, TWE, on behalf of itself and each of its Subsidiaries, hereby irrevocably transfers and assigns to Holdco all of its right, title and interest in and to that portion of TWE's business in connection with which it has a bona fide intent to use those TWE Non-Broadband Group Trademarks that are the subject of applications filed on an intent-to-use basis and/or for which an Amendment to Allege Use, a Statement of Use or a specimen of use has not yet been filed and accepted by the relevant Trademark Office or other governing authority. 2.3 No Registration of Similar Marks. TWE will neither use nor attempt to register any TWE Non-Broadband Group Trademarks or any Trademark confusingly similar thereto for so long as said TWE Non-Broadband Group Trademark has not been abandoned by Holdco or any of its Affiliates. TWE shall not oppose, attempt to cancel or in any way challenge Holdco's use of, or the use by any of Holdco's licensees of, or any applications or registrations in the name of Holdco or any of its Affiliates for the TWE Non-Broadband Group Trademarks. TWE shall not oppose, attempt to cancel or in any way challenge Holdco's use of, or the use by any of Holdco's licensees of, any applications or registrations in the name of Holdco or its Affiliates for any future Trademarks on the grounds that they incorporate "Time Warner," "TW," "TWE," "Roadrunner," or any Trademarks similar thereto. 2.4 Further Assurances. TWE, on behalf of itself and each of its Subsidiaries, agrees that upon request it will, at any time without charge to Holdco, sign all papers, take all rightful oaths, and do all acts which may be necessary, desirable or convenient (as determined in Holdco's discretion) to effect, transfer and record all of the TWE Non-Broadband Group Trademarks to Holdco (or the TWE Non-Broadband Group Member designated by Holdco), its successors, assigns and legal representatives, including, but not limited to, any acts which may be necessary, desirable or convenient for claiming said rights and for securing and maintaining the TWE Non-Broadband Group Trademarks in any and all countries and for vesting title thereto in Holdco (including, but not limited to, III-2 the transfer of all prosecution files and databases for the TWE Non-Broadband Group Trademarks). TWE, on behalf of itself and each of its Subsidiaries, hereby appoints Holdco and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-of-fact with full irrevocable power and authority in place and stead of TWE and in the name of TWE or in its own name, for the purposes of carrying out the terms of this Agreement, to take any and all appropriate actions and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement. Furthermore, TWE agrees that upon request it will, at any time without charge to Holdco, cooperate fully with Holdco in the protection and enforcement of the TWE Non-Broadband Group Trademarks, including, but not limited to, cooperating fully with Holdco in connection with any claims or suits brought by or against Holdco relating to the TWE Non-Broadband Group Trademarks. If any domain name registrar refuses to permit TWE to transfer the domain name registrations, then TWE shall grant Holdco a perpetual, exclusive, royalty-free license to use such domain names and shall, at Holdco's expense, continue to renew such domain name registrations until further notice from Holdco. ARTICLE III ASSIGNMENT FROM HOLDCO TO TWE 3.1 Assignment. Effective immediately following the Closing, Holdco, on behalf of itself and each of its Subsidiaries, does hereby assign, convey, transfer and deliver to TWE (or the TWE Broadband Group Member designated by TWE), its successors, assigns and legal representatives or nominees, Holdco's and each of its Subsidiaries' right, title and interest in and to the TWE Broadband Group Trademarks in the United States and throughout the world, any common law rights relating to the TWE Broadband Group Trademarks, the goodwill of the business associated with and represented by the TWE Broadband Group Trademarks, and rights to proceeds of the foregoing, including, without limitation, any claim by TWE against third parties for past, present or future infringement of the TWE Broadband Group Trademarks. 3.2 Intent-to-Use Applications. Effective immediately following the Closing, Holdco, on behalf of itself and each of its Subsidiaries, hereby irrevocably transfers and assigns to TWE all of its right, title and interest in and to that portion of Holdco's business in connection with which it has a bona fide intent to use those TWE Broadband Group Trademarks that are the subject of applications filed on an intent-to-use basis and/or for which an Amendment to Allege Use, a Statement of Use or a specimen of use has not yet been filed and accepted by the relevant Trademark Office or other governing authority. 3.3 No Registration of Similar Marks. Holdco will neither use nor attempt to register any TWE Broadband Group Trademarks or any Trademark confusingly similar thereto for so long as said TWE Broadband Group Trademark has not been abandoned by TWE or any of its Affiliates. Holdco shall not oppose, attempt to cancel or in any way challenge TWE's use of, or the use by any of TWE's licensees of, or any applications or III-3 registrations in the name of TWE or any of its Affiliates for the TWE Broadband Group Trademarks. 3.4 Further Assurances. Holdco, on behalf of itself and each of its Subsidiaries, agrees that upon request it will, at any time without charge to TWE, sign all papers, take all rightful oaths, and do all acts which may be necessary, desirable or convenient (as determined in TWE's discretion) to effect, transfer and record all of the TWE Broadband Group Trademarks to TWE (or the TWE Broadband Group Member designated by TWE), its successors, assigns and legal representatives including, but not limited to, any acts which may be necessary, desirable or convenient for claiming said rights and for securing and maintaining the TWE Broadband Group Trademarks in any and all countries and for vesting title thereto in TWE (including, but not limited to, the transfer of all prosecution files and databases for the TWE Broadband Group Trademarks). Holdco, on behalf of itself and each of its Subsidiaries, hereby appoints TWE and any agent thereof, with full power of substitution, as its true and lawful attorney-of-fact with full irrevocable power and authority in place and stead of Holdco and in the name of Holdco or in its own name, for the purposes of carrying out the terms of this Agreement, to take any and all appropriate actions and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement. Furthermore, Holdco agrees that upon request it will, at any time without charge to TWE but at TWE's expense, cooperate fully with TWE in the protection and enforcement of the TWE Broadband Group Trademarks, including, but not limited to, cooperating fully with TWE in connection with any claims or suits brought by or against TWE relating to the TWE Broadband Group Trademarks. If any domain name registrar refuses to permit Holdco to transfer the domain name registrations, then Holdco shall grant TWE a perpetual, exclusive, royalty-free license to use such domain names and shall, at TWE's expense, continue to renew such domain name registrations until further notice from TWE. ARTICLE IV MISCELLANEOUS 4.1 The Parties recognize that one or more Subsidiaries of TWE will no longer be Subsidiaries of TWE following the Closing but will become Subsidiaries of Holdco. Such Subsidiaries shall not be required to assign to Holdco any TWE Non-Broadband Group Trademarks because Holdco will obtain control of such TWE Non-Broadband Group Trademarks through equity ownership of that Subsidiary. Accordingly, to the extent that Holdco obtains as a Subsidiary a Subsidiary of TWE, which Subsidiary would, but for the operation of this Agreement, have assigned to Holdco its TWE Non-Broadband Group Trademarks by operation of this Agreement, then the assignment of such rights, and only such rights, shall not be deemed to have been made by operation of this Agreement. Otherwise the assignments of this Agreement are unaffected by this Section 4.1. III-4 4.2 All Transaction Expenses incurred by either of the Parties in connection with or related to this Agreement shall be paid as set forth in Section 16 of the TWE Intellectual Property Agreement. III-5 IN WITNESS WHEREOF, each of the parties has caused this Agreement to be duly executed on its behalf by one of its duly authorized officers as of the date hereof. TIME WARNER ENTERTAINMENT COMPANY, L.P. By: -------------------------------- Name: Spencer B. Hays Title: Senior Vice President WARNER COMMUNICATIONS INC. By: -------------------------------- Name: Robert D. Marcus Title: Senior Vice President III-6 ACKNOWLEDGMENT STATE OF NEW YORK ) ss.: COUNTY OF NEW YORK ) I CERTIFY that on ______________, 2002, _____________ personally came before me and this person acknowledged under oath, to my satisfaction that: a) this person signed, sealed and delivered the attached Trademark and Service Mark Assignment as ______________ of Time Warner Entertainment Company, L.P., and b) the proper limited partnership seal was affixed; and c) this Trademark and Service Mark Assignment was signed and made by Time Warner Entertainment Company, L.P. as its voluntary act and deed by virtue of the proper authority. ------------------------------ Name: Notary Public: My Commission Expires: [Notarial Seal] Prepared by: III-7 ACKNOWLEDGMENT STATE OF NEW YORK ) ss.: COUNTY OF NEW YORK ) I CERTIFY that on ______________, 2002, _____________ personally came before me and this person acknowledged under oath, to my satisfaction that: a) this person signed, sealed and delivered the attached Trademark and Service Mark Assignment as ______________ of Warner Communications Inc., and b) the proper corporate seal was affixed; and c) this Trademark and Service Mark Assignment was signed and made by Warner Communications Inc. as its voluntary act and deed by virtue of the proper authority. Name: Notary Public: My Commission Expires: [Notarial Seal] Prepared by: III-8