EXHIBIT 9.3
LICENSE AGREEMENT
This License Agreement (this "Agreement") is entered into as of the ____
day of ________________, 1996, by and between Xxxxxxxx-Xxxxxxxxx Capital
Management, a California limited partnership ("NACM") and Xxxxxxxx-Xxxxxxxxx
Series Trust, a Delaware business trust (the "Trust").
WHEREAS, NACM was organized under the laws of the State of California and
commenced doing business under a name including the phrase "Xxxxxxxx-Xxxxxxxxx"
in 1984, and has used such name at all times thereafter; and
WHEREAS, NACM has registered and is the owner of the service xxxx
"Xxxxxxxx-Xxxxxxxxx," Registration No. 1,888,843 (the "Service Xxxx"); and
WHEREAS, the Trust was organized under the laws of the State of Delaware on
July 21, 1995; and
WHEREAS, the Trust has requested from NACM a license to the use of the
phrase "Xxxxxxxx-Xxxxxxxxx" 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 NACM is willing to grant such license, subject to the terms and conditions
set forth below;
NOW, THEREFORE, in consideration of the premises and of the covenants
hereinafter contained, NACM and the Trust hereby agree as follows:
1. The Trust hereby acknowledges and agrees that the name "Xxxxxxxx-
Xxxxxxxxx" and the Service Xxxx are valuable proprietary rights of NACM and that
the Trust has no rights to use such name or Service Xxxx except as are expressly
provided to the Trust by NACM pursuant to this Agreement. The Trust shall at
all times use the Service Xxxx in a manner which is designed to enhance the
reputation and goodwill associated with the Service Xxxx, and shall comply with
all laws, rules, regulations, ordinances and orders of all local, state and
national authorities. The Trust shall not in any manner represent that it has
any rights of ownership or use with respect to the name "Xxxxxxxx-Xxxxxxxxx" or
the Service Xxxx except as set forth
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herein, and acknowledges and agrees that all uses of such name and Service Xxxx
by it shall inure to the benefit of NACM. The Trust agrees that it shall do
nothing inconsistent with NACM's ownership in the Service Xxxx, and shall not
apply for registration or seek to obtain ownership of the Service Xxxx, or any
similar xxxx, in any state or nation. The provisions of this Section 1 shall
survive the termination of this Agreement, irrespective of the reason therefor.
2. NACM hereby grants to the Trust a non-exclusive and non-transferrable
license to use the name "Xxxxxxxx-Xxxxxxxxx" and the Service Xxxx in the names
of the Trust and/or any one or more of its Series, only so long as such name and
Service Xxxx are used in conjunction with descriptive phrases such as "Series
Trust" or phrases describing the investment objectives or purposes of a Series
(such as "Core Growth Series"). NACM hereby consents to the qualification of
the Trust to do business under the laws of any state of the United States with
the name "Xxxxxxxx-Xxxxxxxxx" 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. NACM reserves and retains the right to grant to any other person or
entity, including without limitation any other investment company, the right to
use the name "Xxxxxxxx-Xxxxxxxxx" and the Service Xxxx, or any derivatives or
variations thereof, 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 Trust shall forthwith grant all requisite consents. The Trust shall
take such actions as NACM may reasonably require to protect the rights of NACM
to such name and Service Xxxx.
4. The Trust shall have no right to grant to any other person or entity a
sublicense to use a name containing the name "Xxxxxxxx-Xxxxxxxxx" or the Service
Xxxx. The Trust shall have no right to assign its interest in this Agreement,
or any part thereof, to any other person or entity without the prior written
consent of NACM.
5. The license provided to the Trust hereunder shall immediately and
automatically terminate and be of no further force or effect at such time as
NACM no longer provides investment advisory services to the Trust, any Series or
(in the event all assets of the Trust or any Series are invested in Xxxxxxxx-
Xxxxxxxxx Investment Trust, a Delaware business trust) Xxxxxxxx-Xxxxxxxxx
Investment
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Trust, a Delaware business trust) Xxxxxxxx-Xxxxxxxxx Investment Trust.
In addition, NACM may terminate this Agreement immediately upon notice to the
Trust in the event of any breach of this Agreement by the Trust. Upon
termination of this Agreement, the Trust shall as promptly as practicable
take such actions as may be necessary to change its name and the names of
the Series to names that do not include the names "Xxxxxxxx" or "Applegate,"
or any derivatives or variations thereof, and shall forever cease all use of
the name "Xxxxxxxx-Xxxxxxxxx" and the Service Xxxx, and any derivatives or
variations thereof or any similar xxxx.
6. 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.
7. 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.
8. NACM acknowledges that it has received a copy of the Declaration of
Trust of the Trust dated July 20, 1995. NACM 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.
9. If any term or provision of this Agreement is held to be void or
unenforceable by any court of competent jurisdiction, only that objectionable
term or provision shall be deleted herefrom while the remainder of the term,
provision and agreement shall be enforceable.
10. No party's failure to enforce any provision or provisions of this
Agreement shall be deemed or in any way construed as a waiver of any such
provision or provisions, nor prevent that party thereafter from enforcing each
and every provision of this Agreement. The rights granted the parties herein
are cumulative and shall not constitute a waiver of any party's right to assert
all other legal remedies available to it under the circumstances.
11. This Agreement shall be construed and interpreted in accordance with
the internal, substantive laws of the State of California.
12. The Trust acknowledges that money damages alone are not an adequate
remedy for any breach by the Trust of any provision of this Agreement.
Therefore, in the event
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of a breach or threatened breach of any provision of this Agreement by the
Trust, the Trust agrees and consents that NACM, in addition to all other
remedies, shall have the right to immediately seek, obtain and enforce
injunctive relief prohibiting the breach or compelling specific performance,
without the need to post any bond. Unless expressly set forth herein to the
contrary, all remedies set forth herein are cumulative and are in addition to
any and all remedies provided either party at law or in equity.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
XXXXXXXX-XXXXXXXXX CAPITAL
MANAGEMENT, A CALIFORNIA
LIMITED PARTNERSHIP
By: Xxxxxxxx-Xxxxxxxxx Capital
Management Holdings, L.P., a
California limited
partnership, its General
Partner
By: Xxxxxxxx-Xxxxxxxxx Capital
Management Holdings, Inc.,
Its General Partner
By:
--------------------------------
E. Xxxxx Xxxxx, Jr.
Title: Secretary
XXXXXXXX-XXXXXXXXX SERIES TRUST
By:
--------------------------------
E. Xxxxx Xxxxx, Jr.
Title: Secretary
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