EXHIBIT 99.H 3
LICENSE AGREEMENT
This License Agreement (this "Agreement") is entered into as of the 25th
day of June, 2004, by and between XXXXXXXX Xxxxxxxxxx Company, a California
corporation ("PMC"), and PRIMECAP Odyssey Funds, a Delaware statutory trust (the
"Trust").
WHEREAS, PMC was organized under the laws of the State of California and
commenced doing business under a name including the word "PRIMECAP" in 1983, and
has used such name at all times thereafter; and
WHEREAS, PMC is the owner of service xxxx registration applications for
the service xxxx "PRIMECAP" (Serial No. 78/416,745) and the service xxxx
"PRIMECAP Odyssey"; and
WHEREAS, the Trust was organized under the laws of the State of Delaware
on June 8, 2004; and
WHEREAS, the Trust has requested PMC's consent to the use of the phrase
"PRIMECAP Odyssey" (the "Service Xxxx") in the name of the Trust and/or one or
more of the series of shares of beneficial interest of the Trust (collectively
"Series"), and PMC wishes to permit such use; and
WHEREAS, the parties wish to enter into a written agreement to confirm the
terms of such use by the Trust and the Series;
NOW, THEREFORE, in consideration of the premises and of the covenants
hereinafter contained, PMC and the Trust hereby agree as follows:
1. The Trust hereby acknowledges and agrees that the name "PRIMECAP" and,
by extension, the Service Xxxx, are valuable proprietary rights of PMC and that
the Trust has no rights to use such name or Service Xxxx in the name of the
Trust or that of any of its Series except as are provided to the Trust by PMC
pursuant to this License Agreement. The Trust shall not in any manner represent
that it has any rights of ownership or use with respect to the name "PRIMECAP"
or the Service Xxxx except as set forth herein, and acknowledges that all uses
of such name and Service Xxxx by it shall inure to the benefit of PMC.
2. PMC hereby grants the Trust a non-exclusive, personal, indivisible,
nontransferable and royalty-free license to use the Service Xxxx in the names of
the Trust and/or any one or more of its Series, so long as such Service Xxxx is
used in conjunction with other descriptive words such as "Fund" or "Funds" or
phrases describing the investment objectives or purposes of a Series (such as
"Aggressive Growth"). PMC hereby consents to the qualification of the Trust to
do business under the laws of any state of the United States with the name
"PRIMECAP Odyssey" in its name or that of any of its Series and agrees to
execute such formal consents as may be necessary in connection with such
qualifications.
3. PMC reserves and retains the right to grant to any other person,
including without limitation any other investment company, the right to use the
name "PRIMECAP" and the Service Xxxx or variations thereof in its name and no
consent or permission of the Trust shall be necessary for such use; provided,
however, that if required by the applicable law of any state, the
1
Trust shall forthwith grant all requisite consents. The Trust shall take such
actions as PMC may reasonably require to protect the rights of PMC to such name
and Service Xxxx.
4. The Trust shall reproduce and include trademark and/or service xxxx
symbols and legends, or other proprietary markings as required by PMC, whenever
the Service Xxxx is used for any purpose. In addition, the Trust shall not use
any other trademark, service xxxx, trade name or logotype in combination with
the Service Xxxx without the prior express written approval of PMC. The Trust
agrees it will not alter, modify, dilute or otherwise misuse the Service Xxxx.
The Trust agrees that it shall not, without the express prior written consent of
PMC, apply for registration, seek to obtain ownership, or contest or challenge
PMC's exclusive ownership of the Service Xxxx or any similar, related or
derivative right, in any state or nation. The provisions of this Section 4 shall
survive the expiration or termination of this Agreement, irrespective of the
reasons therefor. The Trust acknowledges and agrees that the quality of the
services provided by the Trust under the Service Xxxx shall conform to
applicable industry standards for the applicable services and shall be subject
to a once a year independent third party inspection, upon reasonable notice to
the Trust, of such materials upon which the Service Xxxx appears. During the
term of this Agreement, the Trust shall furnish at the Trust's expense samples
of advertising brochures and other materials bearing the Service Xxxx for
inspection and analysis as PMC may reasonably request.
5. To the fullest extent permitted by law, the Trust shall indemnify,
protect, defend and hold harmless PMC from and against any and all losses,
costs, expenses (including without limitation reasonable attorneys' fees),
damages, injuries, liabilities, claims, demands, penalties or causes of action
arising out of or relating to (a) any breach by the Trust of this Agreement, or
(b) the exercise or use by the Trust of the rights granted by this Agreement.
6. The Trust shall promptly notify PMC of the assertion of any claim that
the Service Xxxx or the Trust's use thereof infringes on the trademark, trade
name, service xxxx, service name, copyright or other proprietary right of any
other party, and shall cooperate with and otherwise assist PMC in the
investigation and resolution of any such claim at PMC's expense. In addition,
the Trust shall promptly notify PMC of any known or suspected use of the Service
Xxxx by others not duly authorized by PMC. Notification of such infringement
shall include all details known by the Trust that would enable PMC to
investigate such infringement. Nothing in this Section 6 shall require PMC to
bring suit for the infringement of the Service Xxxx. The Trust shall have no
right to initiate an action of its own against an alleged infringer without
first obtaining the prior express written approval of PMC. The Trust agrees to
fully cooperate with PMC in prosecution of any action against an infringer,
including without limitation the provision of evidence and testimony in such
action. In the event that PMC should attempt to pursue any infringer and obtain
a recovery from such infringer, whether by adjudication or settlement, PMC shall
be entitled to retain the entirety of any such recovery to the exclusion of the
Trust.
7. The Trust shall have no right to grant to any other person a sublicense
to use a name containing the Service Xxxx. The Trust shall have no right to
assign its interest in this Agreement or any part thereof to any other person
without the prior written consent of PMC.
2
8. The license provided to the Trust hereunder shall terminate and be of
no further force or effect at such time as PMC no longer provides investment
advisory services to the Trust or any of its Series. The license provided to the
Trust for use by any Series hereunder shall terminate with respect to such
Series and be of no further force or effect at such time as PMC no longer
provides investment advisory services to such Series. In either such event, the
Trust shall as promptly as practicable take such actions as may be necessary to
change its name and/or the names of the Series to names that do not include the
names "PRIMECAP" or "PRIMECAP Odyssey."
9. This Agreement contains the entire understanding of the parties with
respect to the subject matter hereof and may not be amended at any time except
by a writing signed by the parties hereto.
10. All of the terms of this Agreement shall be binding upon, and except as
set forth herein shall inure to the benefit of, the successors and assigns of
the parties.
11. PMC acknowledges that it has received a copy of the Declaration of
Trust of the Trust dated June 25, 2004. PMC further acknowledges and agrees that
the obligations of the Trust under this Agreement are not binding on any
officers, trustees or shareholders of the Trust individually, but are binding
only upon the assets and properties of the Trust.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXXXX XXXXXXXXXX COMPANY
/s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx, its Chairman
PRIMECAP ODYSSEY FUNDS
/s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxxx X. Xxxxxx, its President
3
