Exhibit 10.10
SERVICE XXXX LICENSE AGREEMENT
THIS AGREEMENT made as of the 9th day of June, 1998 by and between
XXXXXX X. XXXXXXX, XX., an individual and citizen of the United States (the
"Licensor"), and XXXXXXX CAPITAL MANAGEMENT HOLDINGS, INC., a Maryland
corporation, and its wholly owned subsidiary, XXXXXXX CAPITAL MANAGEMENT,
INC., a District of Columbia corporation (the "Licensees") (the "Agreement").
WITNESSETH:
WHEREAS, Licensor owns certain valuable service marks described in
Appendix A hereto (hereinafter the "Marks"), said Marks having been used by
Licensor in connection with investment advisory, administrative services, and
mutual fund services (collectively the "Services"), and said Marks are well
known and recognized by the general public and associated in the public mind
with Licensor;
WHEREAS, Licensees desire to use the Marks in their business operations
as an investment advisory and investment management company; and
WHEREAS, on the terms set forth herein, Licensor is willing to grant
unto Licensees a license to use the Marks.
NOW THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, it is hereby agreed:
1. Grant of License.
1.1 Upon the terms and conditions herein set forth, Licensor grants to
Licensees, and Licensees hereby accept, a revocable, non-exclusive,
non-transferable license to utilize the Marks in connection with the Services.
1.2 Licensees shall not be required to make any further payments for the
use of the Marks as contemplated herein.
1.3 Licensees shall use the Marks only in the United States and its
territories.
2. Services
2.1 For the preservation of Licensor's rights in the Marks, the parties
understand and agree that Licensor must maintain control over the nature and
quality of the Services, and advertising, promotional activities, and other
activities in connection with which Licensees use the Marks. Licensor
authorizes the Licensees to use the Marks for the Services, but Licensor has
the right, prior to use by Licensees of the Marks (or any one of them) in any
manner on or in connection with the Services to examine and approve the
manner in which Licensees use the Marks. Licensees shall ensure that the
Services meet or exceed the highest quality standards of the investment
management and investment advisory industry. Licensor reserves the right, at
any time during the term of this License, to review Licensees' use of the
Marks to insure that Licensees' use is in compliance with this Agreement. In
addition, Licensees, if Licensor so requests, shall submit to Licensor for
its prior approval, all advertising, promotional or display material proposed
to bear the Marks.
2.2 Licensees agree to cooperate fully with Licensor for the purpose of
securing and preserving Licensor's rights or registrations in and to the
Marks. All artwork and designs involving the Marks, or any reproduction
thereof, shall remain the property of Licensor (notwithstanding their
invention or use by Licensees), and Licensor shall be entitled to use the
same and to license the use of the same by others except where inconsistent
with the terms of this Agreement. During the term hereof, Licensees agree to
diligently and continually use and advertise the Marks in connection with the
Services subject to the provisions of this Agreement.
3. Effect of Licensee's Use.
Any use of the Marks by Licensees in accordance with this Agreement
shall enure to the benefit of Licensor and this Agreement shall not operate
to transfer or convey any proprietary interest in the Marks to Licensees.
4. Acknowledgment of Validity and Goodwill of the Marks.
Licensees acknowledge and admit the validity of the Marks and any
registrations thereof, Licensor's exclusive right, title and interest
therein, the goodwill pertaining thereto and the secondary meaning of the
Marks in the mind of the public. Licensees covenant that they will not,
directly or indirectly, attack or assist another in attacking the validity of
the Marks or any registrations therefor. This paragraph shall survive the
termination for any reason whatsoever of this Agreement.
5. Trademark Notice.
Where feasible, practical and appropriate, Licensees shall xxxx all
advertising and promotional materials utilizing the Marks with proper
trademark notices as prescribed by Licensor.
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6. Infringement by Third Parties.
6.1 Licensor has the first right, but not the obligation, to enforce its
rights in any of the marks against any third parties and, if it so desires,
may commence or prosecute any claim or suit in its own name or in the names
of Licensees or join Licensees as a party. Licensor shall bear the expense
of, and receive any recovery from, any action resulting from any such
infringement; provided, however, that if Licensor and Licensees agree
that Licensees shall bear part of the expense of such litigation, Licensees
shall be entitled to share in any monetary judgement recovered in the same
proportion as the amount that their contribution of expenses bears to the
total expense of the litigation. Licensees shall not institute any suit or
take any action on account of the Marks without first obtaining Licensor's
written consent.
6.2 In the event tat suit for infringement by the Marks is brought
against Licensees, Licensees shall immediately notify Licensor in writing of
such suit. Upon timely notice of such suit, Licensor shall provide a defense
at Licensor's sole cost and expense.
7. Term and Termination.
7.1 Licensor shall have the right to terminate this Agreement for any
reason or for no reason at all upon thirty (30) days' written notice to
Licensees.
7.2 Licensor shall have the right to immediately terminate this
Agreement upon the occurrence of any of the following:
7.2.1 Any attempt by Licensees to assign or otherwise transfer this
Agreement or any rights granted under this Agreement without the prior
written consent of Licensor.
7.2.2 The sale by Licensees of substantially all of its assets,
whether by sale of shareholder interest or sale of assets, or a change in
control of Licensees.
7.2.3 The insolvency of Licensees.
7.2.4 The cessation of the use of the Marks in Licensees' business.
7.2.5 The receivership or bankruptcy of Licensees, or if Licensees
should make an assignment for the benefit of creditors.
8. Indemnification.
Licensees shall indemnify, defend and hold Licensor harmless from and
against all claims, losses, liabilities, judgements and expenses (as provided
below)
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resulting from or attributable to claims against Licensor by virtue of
Licensee's use of the Marks. If a claim is asserted against Licensor,
Licensor shall promptly advise Licensees in writing of such claim and
Licensor shall cooperate fully in the defense thereof and furnish to
Licensees all evidence and assistance in Licensor's control. To the extent
that Licensees control the defense, agree to have Licensor control the
defense, or to the extent Licensees enter into or agree to a settlement
agreement, Licensees shall indemnify Licensor from and against any and all
liability, damages, and reasonable costs (including attorneys' fees but not
including attorneys' fees incurred by Licensor in monitoring or participating
in any defense provided by Licensees) incurred by Licensor as a result of any
such claim or any resulting judgement or settlement.
9. Assignment.
Licensees shall not assign or otherwise transfer this Agreement or the
license granted under this Agreement without the prior written consent of
Licensor, which consent may be withheld in Licensor's sole and absolute
discretion, for any reason or for no reason whatsoever.
10. Use of Marks After Termination.
Upon the termination of this Agreement, for any reason whatsoever,
Licensees shall immediately discontinue the use of the Marks and thereafter
shall no longer use or have the right to use the Marks, any variation thereof
or any word(s) and or logo(s) similar thereto. Licensees hereby agree that at
the termination of this Agreement, Licensees shall be deemed to have
assigned, transferred and conveyed to Licensor any rights, equities,
goodwill, titles or other rights in and to the Marks which have been obtained
by Licensees pursuant to this Agreement or otherwise. If requested by
Licensor, Licensees shall, without further consideration therefor, execute
any instrument to accomplish or confirm the foregoing.
11. Licensor's Remedies.
Licensees acknowledge that their failure to comply with the obligations
and covenants as set forth in this Agreement (after notice, if applicable, in
accordance with Section 7), will result in immediate and irremediable damage
to Licensor. Licensees acknowledge and admit that there is no adequate remedy
at law for such default, and Licensees agrees that in the event of such
default, Licensor shall be entitled to equitable relief by way of temporary
and permanent injunctions and such other further relief as any court may deem
just and proper. Resort to any remedies referred to herein shall not be
construed as a waiver of any other rights and remedies to which Licensor is
entitled under this Agreement or otherwise at law or equity. In addition,
Licensees agree to publish, at its sole expense, a statement (approved by
Licensor) in such trade journals and other periodicals that collectively have
a circulation reasonably likely to be seen by Licensees' customers
acknowledging Licensees' breach of this Agreement.
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12. Notices.
Any and all notices or communications hereunder shall be in writing and
duly given if mailed or transmitted via any standard form of transmittal
telecommunication to the Licensor and Licensees c/o Xxxxxx X. Xxxxxxx, Xx.,
000 X. Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, XX 00000-0000.
13. Severability.
The provisions of this Agreement shall not be severable, and if any
provision of this Agreement shall be held or declared to be illegal, invalid,
or unenforceable, this Agreement shall be deemed to be terminated in
accordance with the terms regarding termination. Notwithstanding the
foregoing, Licensor may in its sole discretion determine that the illegality,
invalidity or unenforceability of any provision is not material, in which
event such illegality, invalidity or unenforceability shall not affect any
other provision hereof, and the remainder of this Agreement, disregarding
such invalid portion, shall continue in full force and effect as though such
invalid provision had not been contained herein.
14. Entire Agreement.
This Agreement contains the entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes and cancels all
previous written or oral understandings, agreements, negotiations,
commitments, or any other writing or communications in respect of such
subject matter. This Agreement may not be released, discharged, abandoned,
changed, or modified in any matter except by an instrument in writing signed
by each of the parties hereto.
15. Governing Law; Venue.
This Agreement shall be deemed to be made and entered into pursuant to
the laws of the State of Maryland and, in the event of any dispute, shall be
governed by and shall be construed and interpreted in accordance with the
laws of the State of Maryland and the United States of America. Each of the
parties hereto (a) consents to submit itself to the personal jurisdiction of
any federal court located in the State of Maryland or any Maryland state
court in the event any dispute arises out of this Agreement, (b) agrees that
it will not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court, and (c) agrees that it will not
bring any action relating to this Agreement or any of the transactions
contemplated by this Agreement in any court other than a federal court
sitting in the State of Maryland or a Maryland state court.
16. Waiver.
The waiver by either of the parties hereto of any breach of any
provision hereof by the other party shall not be construed to be either a
waiver of any succeeding breach of any such provision or a waiver of the
provision itself.
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17. Nature of Relationship.
Nothing herein shall be construed to place the parties in a relationship
of partners or joint venturers, and neither party shall have the power to
obligate or bind the other in any manner whatsoever.
18. Survival.
The provisions of Sections 4, 8, 10, 11 and 15 hereof shall survive
termination or expiration of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date specified above.
WITNESS LICENSOR:
/s/ M. Xxxx Xxxxxxx /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------ ------------------------------
Xxxxxx X. Xxxxxxx, Xx.
ATTEST: LICENSEES:
XXXXXXX CAPITAL MANAGEMENT
HOLDINGS, INC.
By: /s/ M. Xxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------ ------------------------------
Xxxxxx X. Xxxxxxx, Xx.
President
ATTEST: XXXXXXX CAPITAL
MANAGEMENT, INC.
By: /s/ M. Xxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------ ------------------------------
Xxxxxx X. Xxxxxxx, Xx.
President
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Appendix
1. Domestic Emerging Markets-Registered Trademark-
2. DEM-Registered Trademark-
3. LOGO-TM-
4. DEM Index-TM-
5. DEM Profile-TM-
6. DEM Universe-TM-
7. DEM Company-TM-
8. DEM Multi-Manager-TM-
9. Xxxxxxx-TM-
