TRADEMARK LICENSE AGREEMENT
EXECUTION COPY
This TRADEMARK LICENSE AGREEMENT (this “Agreement”), dated June 22, 2005, is by and
between THE TORONTO-DOMINION BANK, a Canadian chartered bank (“Licensor”) and AMERITRADE
HOLDING CORPORATION, a Delaware corporation (“Licensee”). Hereafter, each of Licensor and
Licensee may be referred to individually as a “Party” and collectively as the
“Parties.”
WHEREAS, Licensor is the owner of the trademark “TD” for use in connection with banking and
related financial services, investment services and securities’ underwriting, issuance, brokerage
and dealership services;
WHEREAS, Licensor and Licensee have entered into an Agreement of Sale and Purchase dated June
22, 2005 (the “Agreement of Sale and Purchase”), pursuant to which Licensee shall purchase
from Licensor all of the capital stock of TD Waterhouse Group, Inc., a Delaware corporation and a
wholly owned subsidiary of Licensor (“TWG”);
WHEREAS, Licensee wishes to obtain the right to use the name and trademark “TD” (the
“TD Brand”) and the forest green rectangular logo “TD” attached as Schedule A (the
“XX Xxxxx Logo” and, together with the TD Brand, the “Name”) as part of trademarks,
service marks, trade names, corporate names and domain names incorporating “TD AMERITRADE” (the
“Composite Name”), under which it will do business in connection with providing securities
brokerage services to retail traders, individual investors and registered investment advisers (the
“Business”);
NOW THEREFORE, in consideration of the promises and the mutual covenants and agreements
contained herein, and for other good and valuable consideration (including that recited in the
Agreement of Sale and Purchase), the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
Capitalized words or phrases used and not otherwise defined herein shall have the respective
meanings ascribed thereto in the Agreement of Sale and Purchase.
“Action” shall mean action, claim, suit, proceeding or inquiry of any kind.
“Affiliate” means, with respect to any Person, any other Person directly or indirectly
Controlling or Controlled by or under direct or indirect common Control with such Person.
“Change of Control,” with respect to a given entity, means any transaction or series
of related transactions that would occasion and/or result in: (i) the sale or transfer of all or
substantially all of such entity’s business or assets; (ii) any merger, consolidation, share
or other equity exchange, recapitalization, business combination or other transaction resulting in
the exchange of the outstanding equity interests of such entity for securities or consideration
issued,
or caused to be issued, by the acquiring party or its subsidiary, unless the owners of such
entity as of the date prior to the closing date of such transaction (or series of related
transactions) hold more than fifty percent (50%) of the voting securities in the surviving entity
in such transaction, computed on a fully diluted basis; or (iii) any person or entity (other than
the owners of such entity as of the date prior to the closing date of such transaction (or series
of related transactions)) having acquired beneficial ownership or the right to acquire beneficial
ownership of, or any “group” (as “group” is defined under Section 13(d) of the United States
Securities Exchange Act of 1934) having been formed that beneficially owns or has the right to
acquire beneficial ownership of, more than fifty percent (50%) of the outstanding voting securities
of such entity.
“Competitor of Licensee” means any Person, other than Licensor or Licensee, in the
business of providing securities brokerage services to retail traders, individual investors and
registered investment advisers.
“Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ownership of
voting securities or general partnership or managing member interests, by contract or otherwise.
“Controlling” and “Controlled” shall have correlative meanings. Without limiting
the generality of the foregoing, a Person shall be deemed to Control any other Person in which it
owns, directly or indirectly, a majority of the ownership interests representing the power to vote.
“Corporate Identity Materials” shall mean materials that are used to communicate
corporate identity, including forms for incorporation or qualifying for or registering to do
business, SEC filings, press releases, business cards, letterhead, stationery, signage, telephone
listings, bank accounts, and website content.
“Infringement” shall mean infringement, imitation, dilution, misappropriation or any
other unauthorized use or conduct in derogation.
“Marketing Materials” shall mean all packaging, tags, labels, advertising, press
releases, promotions, promotional materials, displays, instructions and written warranties, whether
displayed or communicated in print, electronic, optical, broadcast or any other medium, and other
materials of any and all types associated with sales, marketing, promotional or advertising efforts
relating to Licensee’s products or services.
“Person” means any individual, corporation, partnership, joint venture, limited
liability company, limited liability partnership, association, joint stock company, trust,
unincorporated organization or other organization, whether or not a legal entity, or any
governmental authority.
“Territory” shall mean worldwide, except Canada.
ARTICLE II
GRANT OF LICENSE; OBLIGATIONS FOR AND LIMITATIONS ON USE
GRANT OF LICENSE; OBLIGATIONS FOR AND LIMITATIONS ON USE
SECTION 2.1. Grant of License. (a) During the Term set forth in Article VII, and
subject to the terms and conditions contained herein, Licensor hereby grants to Licensee an
irrevocable (subject to Licensor’s rights pursuant to Sections 7.2), royalty-free, fully paid-up,
non-exclusive license to use each of the TD Brand and XX Xxxxx Logo solely (i) throughout the
Territory; (ii) as part of the trademark, service xxxx, trade name, corporate name or domain name
“TD AMERITRADE;” (iii) in connection with Licensee’s Business; (iv) as part of other trademarks,
service marks, trade names, corporate names or domain names approved by Licensor; and (v) in
Marketing Materials and Corporate Identity Materials related thereto. Licensee expressly
acknowledges, except as otherwise provided in this Agreement, that it has no right to use the name
“TD” standing alone, as part of a trademark or service xxxx, or as part of any corporate name that
is registered or filed with any governmental authority or agency.
(b) Notwithstanding anything contained in Section 2.1 to the contrary, during the Term set
forth in Article VII, and subject to the terms and conditions contained herein, Licensee’s right to
use trademarks, service marks, trade names, corporate names and domain names incorporating “TD
AMERITRADE” shall be exclusive to Licensee.
(c) Licensee shall have the right to use each of the TD Brand and XX Xxxxx Logo as a
trademark, service xxxx, trade name, corporate name or domain name in the Territory. If either the
TD Brand or XX Xxxxx Logo has not been registered, applied for or used by Licensor (i) in a country
in which Licensee intends to utilize the TD Brand and/or XX Xxxxx Logo consistent with this
Agreement, or (ii) for the class of products or services on which or in connection with which
Licensee intends to utilize the TD Brand and/or XX Xxxxx Logo, then, upon the request of Licensee,
which shall not be unreasonably rejected, delayed or conditioned, Licensor agrees that it will use
all reasonable efforts to register such TD Brand and/or XX Xxxxx Logo in such country and/or with
respect to such class of product or service
(d) Consistent with Section 4.2, Licensee shall be permitted to adopt and use formatives or
variations of the Composite Name without the prior written consent of Licensor; provided,
however, that Licensee’s use of any such formatives or variations is consistent with
Licensee’s Business. Licensee shall not use any formatives or variations of the Composite Name for
any purpose other than one consistent with Licensee’s Business without the prior written consent of
Licensor, such consent not to be unreasonably withheld, conditioned or delayed. Any such
formatives or variations used or approved pursuant to this Section 2.1(d) shall be subject to the
terms and conditions of this Agreement.
SECTION 2.2. Sublicenses. Licensee may not sublicense any of its rights under this
Agreement without the prior written consent of Licensor; provided, however, that
Licensee may (i) sublicense any of its rights granted under this Agreement to any of its Controlled
Affiliates with the prior written consent of Licensor, such consent not to be unreasonably
withheld, conditioned or delayed, and (ii) sublicense any of its rights granted under this
Agreement to any wholly-owned Affiliates without the prior written consent of Licensor.
SECTION 2.3. Licensee’s Obligation to Use Composite Name as Corporate Name. During
the term of this Agreement, Licensee shall be required to use the Composite Name in the United
States as its exclusive corporate entity name, and shall be required to use the Composite Name with
the XX Xxxxx Logo in the United States in its Corporate Identity Materials and in its Marketing
Materials. Licensor and Licensee hereby agree that the foregoing sentence shall apply to
Licensee’s use of the Composite Name and the XX Xxxxx Logo in all other countries within the
Territory; provided, however, that in the event Licensee in its reasonable business
judgment
determines it is not consistent with or to the benefit of its Business to use the
Composite Name and the XX Xxxxx Logo in any particular country, it shall notify Licensor of such
determination and Licensor shall consent to Licensee’s non-use.
SECTION 2.4. Limit on Licensor’s Ability to Use Name. Licensor may not use the Name
or any trademarks, service marks, trade names, corporate names and domain names incorporating the
Name in connection with any business or activity prohibited under Section 5.4 of the Stockholders
Agreement.
SECTION 2.5. Reservation of Rights. All rights not granted to Licensee pursuant to
this Agreement are expressly reserved to Licensor. Except as otherwise prohibited by this
Agreement or the Stockholders Agreement, Licensor reserves the right to use the Name for any
purpose throughout the world.
ARTICLE III
OWNERSHIP OF NAME
OWNERSHIP OF NAME
SECTION 3.1. Ownership.
(a) Subject to the provisions of Articles II and III, Licensee agrees that, as between
Licensor and Licensee, Licensor is the sole and exclusive owner of the Name and all right, title
and interest in the Name. Subject to the provisions of Articles II and III of this Agreement,
Licensee shall not contest, oppose or challenge Licensor’s rights in the Name, including without
limitation thereto, Licensee shall not willingly become a party adverse to Licensor in litigation
in which a third party contests the validity of the Name or Licensor’s rights therein. Subject to
the provisions of Articles II and III of this Agreement, Licensee shall not, either during the Term
or after expiration or termination of this Agreement, attempt to use or register any trademark,
service xxxx, trade name, corporate name or domain name identical or confusingly similar to the
Name (including without limitation, the Composite Name) or assist any third parties in doing the
same without the prior written consent of the Licensor, such consent not to be unreasonably
withheld, conditioned or delayed. Any and all goodwill arising from Licensee’s use of the Name
shall inure to the benefit of Licensor.
(b) Licensor and Licensee agree that they shall be joint owners of the Composite Name, and
that the registration of the Composite Name and all other trademarks related thereto shall be
governed by Section 3.2 of this Agreement. Any Licensor-approved xxxx variant or formative adopted
pursuant to Section 2.1(d) shall be jointly owned by Licensor and Licensee, shall be subject to the
terms and conditions of this Agreement, and any such trademark registrations of Licensor-approved
xxxx variants or formatives shall be governed by Section 3.2 of this Agreement. Any and all
goodwill arising from Licensee’s use of the
Composite Name and any Licensor-approved xxxx variant or formative shall inure to the benefit
of Licensor and Licensee. Licensor and Licensee shall each use their commercially reasonable
efforts not take any action that is detrimental to the Name, the Composite Name or the goodwill
associated therewith.
(c) Licensor agrees that, as between Licensor and Licensee, Licensee is the sole and exclusive
owner of all right, title and interest in elements of (i) the Composite Name,
(ii) any marks and
domain names that incorporate the Composite Name, and (iii) any variant or formative of the
Composite Name used by Licensee pursuant to Section 2.1(d); provided, however, that
Licensee shall have no ownership right, title or interest in the Name itself and nothing contained
in this Section 3.1(c) shall be intended to be inconsistent with Licensor’s ownership rights
contained in Section 3.1(a). Other than with respect to rights to the Name itself, (x) Licensor
shall not contest, oppose or challenge Licensee’s rights in elements of the Composite Name, of any
marks and domain names that incorporate the Composite Name, and of any variant or formative of the
Composite Name used by Licensee pursuant to Section 2.1(d), and (y) Licensor shall not willingly
become a party adverse to Licensee in litigation in which a third party contests Licensee’s rights
to, or the validity of elements of, the Composite Name, of any marks and domain names that
incorporate the Composite Name, and of any variant or formative of the Composite Name used by
Licensee pursuant to Section 2.1(d). Other than as to the Name itself, Licensor shall not, either
during the Term or after expiration or termination of this Agreement, attempt to use or register
any trademark, service xxxx, trade name, corporate name or domain name identical or confusingly
similar to elements of the Composite Name, of any marks and domain names that incorporate the
Composite Name, or any formative or variant of the Name used by Licensee pursuant to Section
2.1(d), or assist any third parties in doing the same without the prior written consent of the
Licensee, such consent not to be unreasonably withheld, conditioned or delayed. Other than any and
all goodwill arising from Licensee’s use of the Name itself, any and all goodwill arising from
Licensee’s use of elements of the Composite Name, of any marks and domain names that incorporate
the Composite Name, and of any formative or variant of the Composite Name used by Licensee pursuant
to Section 2.1(d) shall inure to the benefit of Licensee. Licensor shall use its commercially
reasonable efforts not take any action that is detrimental to the elements of the Composite Name,
of any marks and domain names that incorporate the Composite Name, and any formative or variant of
the Composite Name used by Licensee pursuant to Section 2.1(d) or the goodwill associated
therewith.
SECTION 3.2. Registration of Trademarks. Except as provided below, Licensor shall
be responsible for the registration, maintenance and prosecution of any trademark applications and
registrations for the Name and any marks substantially or confusingly similar thereto. Licensor
and Licensee shall jointly own and Licensee shall bear responsibility for the registration,
maintenance and prosecution of any trademark applications and registrations for, the Composite
Name, any marks and domain names that incorporate the Composite Name, and any formative or variant
of the Composite Name used by Licensee pursuant to Section 2.1(d). In registering, maintaining and
prosecuting any trademark applications and registrations for the Composite Name, any marks and
domain names that incorporate the Composite Name, or any formative or variant of the Composite Name
used by Licensee pursuant to Section 2.1(d), Licensee shall use commercially reasonable efforts to
keep Licensor informed and to allow Licensor to provide reasonable input as to the registration,
maintenance and prosecution strategy. Licensor and Licensee shall each be responsible for fifty
percent (50%) of the costs and expenses
associated with the registration, maintenance and prosecution of any trademark applications
and registrations for, the Composite Name, any marks and domain names that incorporate the
Composite Name, and any formative or variant of the Composite Name used by Licensee pursuant to
Section 2.1(d). In the event Licensee seeks registration of the Composite Name, any new xxxx or
domain name used or approved pursuant to Section 2.1(d) above, it shall file such application in
the name of both Licensor and Licensee as joint owners.
SECTION 3.3. Further Documents. Licensor and Licensee shall, during the Term and
after expiration or termination of this Agreement, execute such documents as the other may
reasonably request from time to time to ensure, record and maintain that (i) all right, title and
interest in the Name resides in Licensor or to maintain any service xxxx application or
registration for the Name, which Licensor shall maintain during the term of this Agreement; (ii)
except for the Name itself, all right, title and interest in the other elements of the Composite
Name and any marks and domain names that incorporate the Composite Name resides in Licensee; and
(iii) all right, title and interest in the Composite Name and any formatives or variants of the
Composite Name used by Licensee pursuant to Section 2.1(d) resides jointly in Licensor and
Licensee. Without limiting the generality of the foregoing, in the event that Licensee later
inadvertently obtains or is deemed to obtain any ownership interest in the Name in the Territory by
operation of law or otherwise, Licensee agrees to assign any and all such interest to Licensor at
Licensor’s expense. Without limiting the generality of the foregoing, in the event that, other
than as to the Name itself, Licensor later inadvertently obtains or is deemed to obtain any
ownership interest in the elements of the Composite Name or any marks and domain names that
incorporate the Composite Name in the Territory by operation of law or otherwise, Licensor agrees
to assign any and all such interest to Licensee at Licensee’s expense.
ARTICLE IV
FORM OF USE
FORM OF USE
SECTION 4.1. Quality of Use. Licensee agrees to use the Name in good faith and
agrees to use its commercially reasonable efforts to maintain the quality of its goods and services
in such manner so as to preserve the value of the Name. Licensee shall use its commercially
reasonable efforts to ensure that graphic usages shall be in a style conforming to Licensor’s
reasonable requirements as communicated by Licensor to Licensee in writing from time to time.
SECTION 4.2. Other Trademarks. Except as required by law or as part of the
Composite Name, a xxxx or domain name incorporating the Composite Name, or a formative or variant
of the Composite Name used by Licensee pursuant to Section 2.1(d), Licensee agrees not to use the
Name or Composite Name in direct combination with any other third-party name, logo, trademark,
service xxxx, inscription or designation as a name for a service offered by Licensee, without
Licensor’s prior written approval, which shall not be unreasonably withheld, conditioned or
delayed. Except as provided in Articles II and III, Licensee shall at no time adopt or use any
variation of the Name, or any word or xxxx confusingly similar thereto without Licensor’s prior
written consent, which shall not be unreasonably withheld, conditioned or delayed.
SECTION 4.3. Notices. Licensee shall use its commercially reasonable efforts to
include on all displays of the Name to third parties appropriate notices and legends required by
applicable law or regulations to preserve and protect the validity of, and all of Licensor’s
right, title and interest in the Name, and/or any notices or legends reasonably requested by
Licensor. Licensor and Licensee agree to cooperate with respect to the inclusion of appropriate
notices and legends on all displays of the Composite Name to third parties.
ARTICLE V
QUALITY CONTROL
QUALITY CONTROL
SECTION 5.1. Quality Standard. Licensee shall use its commercially reasonable
efforts to maintain the quality of its products and services in order to meet and maintain the
quality reputation and goodwill of the Name historically associated with the Name (the “Quality
Standards”). In connection therewith, Licensee agrees to provide, upon the reasonable request of
Licensor upon at least thirty (30) days prior written notice and no more than twice per year,
representative samples and documentation of (i) products and services sold by Licensee, and (ii)
uses of the Name and the Composite Name in Licensee’s Marketing Materials and Corporate Identity
Materials, so that Licensor can verify that adequate quality standards are being maintained. If
Licensor reasonably believes, based on the representative samples and documentation provided by
Licensee, that Licensee is not meeting or maintaining the Quality Standards, Licensor shall have
the right upon fifteen (15) days notice to Licensee to visit Licensee’s premises and meet with
Licensee’s personnel to the extent reasonably necessary to help Licensee meet the Quality
Standards.
SECTION 5.2. Compliance. Without restricting the generality of Section 5.1,
Licensee shall use its commercially reasonable efforts to comply with all laws, regulations,
permits and approvals (including government, labor union and guild approvals) applicable to the
packaging, handling, manufacture, distribution or sale of its products and services. Upon
reasonable request upon at least forty-five (45) days prior written notice and no more than once
per year, Licensee shall furnish to Licensor written evidence of any governmental license, permit,
clearance authorization, approval, or recording in its possession.
SECTION 5.3. Quality Control by Licensor. Licensor shall not use nor permit any
third party to use the Name in any manner that, or in connection with any activity that, disparages
Licensor or Licensee or any of their respective products or services, or otherwise damages the
reputation for quality inherent in the Name.
ARTICLE VI
INDEMNIFICATION
INDEMNIFICATION
SECTION 6.1. By Licensee. Licensee agrees, at its own expense, to defend,
indemnify, and hold harmless Licensor and its officers, directors, employees, representatives and
agents (“Licensor Parties”) against all liabilities, losses, damages, claims, costs, interests,
judgments, fines, amounts paid in settlement and expenses (including reasonable attorneys’ fees and
litigation expenses) (“Claims”) incurred by any Licensor Party resulting from or arising out of or
in connection with claims by third parties, whether for personal injury or otherwise, to the extent
and as a result of Licensee’s (or its respective sublicensees’) breach of its obligations under
this Agreement.
SECTION 6.2. By Licensor. Licensor agrees, at its own expense, to defend,
indemnify, and hold harmless Licensee and its officers, directors, employees, representatives and
agents (“Licensee Parties”) against all Claims incurred by any Licensee Party resulting from or
arising out of or in connection with claims by third parties, whether for personal injury or
otherwise, to the extent and as a result of Licensor’s or Licensee’s (or their respective
sublicensees’) use of the
Name (including as part of the Composite Name or other marks and domain
names as permitted by this Agreement) in accordance with the terms of this Agreement.
Notwithstanding the foregoing sentence, Licensor’s indemnity obligation pursuant to this Section
6.2 in connection with Licensee’s use of the Name shall apply solely to the extent that Licensee’s
use of the TD Brand Name or XX Xxxxx Logo, as the case may be, is in a jurisdiction where Licensor
has trademark applications or registrations or is using or has used the TD Brand or XX Xxxxx Logo,
as the case may be.
SECTION 6.3. Indemnification Procedures. The indemnification procedures set forth
in Section 8.4 of the Agreement of Sale and Purchase are hereby incorporated by reference.
ARTICLE VII
TERM AND TERMINATION
TERM AND TERMINATION
SECTION 7.1. Term. The term of this Agreement (“Term”) shall be ten (10) years
commencing on the date hereof, automatically renewable without any prior notice to, or action by,
either Party or their successors or assignees for additional periods of ten (10) years each, unless
termination occurs earlier subject to Section 7.2.
SECTION 7.2. Option to Terminate.
(a) Licensor’s Option to Terminate. Licensor shall have the right to terminate this
Agreement immediately upon written notice in the event:
| (i) | that Licensee shall generally not pay its debts as such debts become due, makes an assignment for the benefit of creditors, a trustee or receiver or the foreign equivalent is appointed for a material part of Licensee’s assets, or a proceeding in bankruptcy is instituted against Licensee which is acquiesced in, is not dismissed within 120 days, or results in an adjudication of bankruptcy of Licensee; | ||
| (ii) | that Licensee commits a breach of any of its material obligations, covenants or agreements under this Agreement (including but not limited to Section 9.1) that is not cured pursuant to Section 7.3; | ||
| (iii) | that there occurs the entry of any order, judgment or decree in any proceedings against Licensee decreeing the dissolution of Licensee, which order, judgment or decree remains unstayed and in effect for more than thirty (30) days; | ||
| (iv) | that there is a Change of Control of Licensee that results in Licensee being Controlled by a competitor of Licensor; | ||
| (v) | that any Termination Event (as defined in the Stockholders Agreement) set forth in clauses (a) through (c) below occurs. All terms not defined in clauses (a) through (c) below shall have the meanings set forth in the Stockholders Agreement. |
| (a) | the date on which Licensor Beneficially Owns Voting Securities representing 4.17% or less of the Total Voting Power; | ||
| (b) | the consummation by a Third Party of a bona fide tender or exchange offer for not less than 25% of the outstanding shares of Common Stock; or | ||
| (c) | the consummation by the Board of a Takeover Proposal from a Third Party; or |
| (vi) | the Name becomes materially damaged or tarnished based on any action or use by Licensee, the determination of which shall be made by a neutral third-party arbitrator to be agreed upon by Licensor and Licensee. |
(b) Licensee’s Option to Terminate. Licensee shall have the right to terminate this
Agreement immediately upon written notice in the event:
| (i) | that Licensor shall generally not pay its debts as such debts become due, makes an assignment for the benefit of creditors, a trustee or receiver or the foreign equivalent is appointed for a material part of Licensor’s assets, or a proceeding in bankruptcy is instituted against Licensor which is acquiesced in, is not dismissed within 120 days, or results in an adjudication of bankruptcy of Licensor; | ||
| (ii) | that Licensor commits a breach of any of its material obligations, covenants or agreements under this Agreement (including but not limited to Section 9.1) that is not cured pursuant to Section 7.3; | ||
| (iii) | that there occurs the entry of any order, judgment or decree in any proceedings against Licensor decreeing the dissolution of Licensor, which order, judgment or decree remains unstayed and in effect for more than thirty (30) days; | ||
| (iv) | that there is a Change of Control of Licensor that results in Licensor being Controlled by a Competitor of Licensee; | ||
| (v) | that any Termination Event (as defined in the Stockholders Agreement) set forth in clauses (a) through (c) below occurs. All terms not defined in clauses (a) through (c) below shall have the meanings set forth in the Stockholders Agreement. |
| (a) | the date on which Licensor Beneficially Owns Voting Securities representing 4.17% or less of the Total Voting Power; | ||
| (b) | the consummation by a Third Party of a bona fide tender or exchange offer for not less than 25% of the outstanding shares of Common Stock; or | ||
| (c) | the consummation by the Board of a Takeover Proposal from a Third Party; or |
| (vi) | the Name becomes materially damaged or tarnished based on any action or use by Licensor, the determination of which shall be made by a neutral third-party arbitrator to be agreed upon by Licensor and Licensee. |
SECTION 7.3. Cure Periods. If a Party becomes aware for any reason that the other
Party has committed a breach of any of its material obligations, such Party shall notify the other
Party in writing, which notice shall set forth in reasonable detail a written description of the
material breach and any reasonable requested action for curing such material breach. The breaching
Party shall then have thirty (30) days from receipt of such notice (the “Initial Cure Period”) to
correct such breach or submit to the non-breaching Party a written plan to correct such breach with
a reasonable explanation of why conformance cannot be effected within thirty (30) days. The
non-breaching Party may, in the exercise of reasonable business judgment, accept or reject any such
plan. If the non-breaching Party reasonably rejects such plan, then the breaching Party shall have
thirty (30) days from receipt of such rejection notice to correct such breach (the “Second Cure
Period”). If the breaching Party has not corrected such breach by the later of (i) the end of the
Initial Cure Period, (ii) the end of the Second Cure Period or (iii) the end of any period
specified in a compliance plan that was accepted by the non-breaching Party, then the non-breaching
Party may declare the breaching Party in material breach of this Agreement. Notwithstanding the
foregoing, where Licensee has used commercially reasonable efforts to cause a third-party
sublicensee (approved by Licensor pursuant to Section 2.2 of this Agreement) to correct a breach
but such third-party sublicensee has failed to make the necessary corrections, then Licensee agrees
to terminate the third-party sublicensee’s sublicense until the correction is made, and Licensor
agrees that termination of the third-party sublicensee’s sublicense shall be Licensee’s sole
obligation.
SECTION 7.4. After Expiration/Termination. Upon expiration or termination of this
Agreement, Licensee agrees to stop all new uses of the Name within six (6) months and in no later
than twelve (12) months (i) to discontinue all use of the Name, and (ii) to destroy, return or
remove the Name from any and all inventory, Marketing Materials and Corporate Identity Materials
that exist as of the expiration or termination date, and (iii) to remove or obliterate the Name
from all signs, billboards, vehicles and other places and media in which it appears, and
destroy or return to Licensor all other materials of whatever nature which bear or refer in
any way to the Name, except for record retention purposes or as required by applicable law or
regulation. Any such destruction and removal of the Name pursuant to subsections (i) through
(iii) above shall be at Licensor’s sole expense, except where termination of this Agreement occurs
pursuant to Section 7.2(a)(ii), in which case any such destruction and removal of the Name shall be
at Licensee’s sole expense. Upon Licensor’s reasonable request, Licensee shall cooperate with
Licensor or its appointed agent, at Licensor’s expense, to apply to the appropriate authorities to
record the termination of this Agreement in all applicable government records, and agrees that all
rights in the Name and the goodwill connected therewith shall remain the sole property of Licensor;
provided, however, that (x) neither party shall be entitled to use the Composite
Name and (y) any applications or registrations for the Composite Name shall be expressly abandoned.
Notwithstanding the foregoing and for the avoidance of doubt, other than as to the Name and
Composite Name, Licensee shall own and be able to continue to use and register any other elements
of marks and domain names used by it that incorporate the Name or Composite Name. Upon Licensee’s
reasonable request, Licensor shall cooperate with Licensee or its appointed agent, at Licensee’s
expense, to apply to the appropriate authorities to record the termination of this Agreement in all
applicable government records, and agrees that all rights in the any elements of marks and domain
names (other than the Name itself) used by Licensee that incorporate the Name or Composite Name and
the goodwill connected therewith shall remain the sole property of Licensee.
ARTICLE VIII
INFRINGEMENT
INFRINGEMENT
SECTION 8.1. Infringement. Licensee shall use commercially reasonable efforts to
notify Licensor promptly after it becomes aware of any actual or threatened Infringement of the
Name. Licensee may not file any Action alleging Infringement of the Name without the prior written
approval of Licensor. Licensor, in its absolute discretion, may file an Action alleging
Infringement of the Name without the consent of Licensee, so long as such Action does not inhibit
or impair the rights granted to Licensee under this Agreement. Upon Licensor’s reasonable request,
Licensee agrees to cooperate with Licensor, at Licensor’s expense, in any such Action.
SECTION 8.2. Procedure. Licensor and Licensee may agree at a later date to pay
jointly for an Action alleging Infringement of the Name or otherwise share such costs and any
resulting damages, money judgment, settlement and/or compensation paid for such Infringement. In
the absence of such agreement, Licensor shall pay all costs and expenses associated with, and
retain any and all such proceeds received in connection with any Infringement of the Name.
ARTICLE IX
MISCELLANEOUS PROVISIONS
MISCELLANEOUS PROVISIONS
SECTION 9.1. Assignment. This Agreement and the licenses granted in Article II may
not be assigned by a Party, in whole or in part, without the prior written consent of the other
Party. In the event of a permitted assignment, this Agreement shall be binding on the Parties’
respective permitted successors and assigns. Any purported assignment, transfer or sale in
violation of this Agreement shall be void ab initio and of no force or effect.
SECTION 9.2. Remedy For Breach. Each Party acknowledges and agrees that a material
breach of any of the covenants, agreements or undertakings hereunder may cause the other party
irreparable injury which cannot be remedied in damages or by termination of this Agreement and that
each Party, in addition to all other legal and equitable remedies including costs and reasonable
attorneys’ fees, shall have the right to an injunction without posting bond for any material breach
of this Agreement.
SECTION 9.3. Further Assurances. From time to time during the Term each Party
hereto shall execute and deliver such documents to the other Party and take such other action as
such other Party may reasonably request in order to consummate more effectively the transactions
contemplated hereby.
SECTION 9.4. Governing Law and Jurisdiction. This Agreement shall be governed and
construed in accordance with the laws of the State of New York. Any Action between the Parties
relating to this Agreement may be brought only in the state or federal courts located in New York.
SECTION 9.5. Notices. All notices, requests, claims, demands or other communication
under this Agreement shall be in writing, shall be either personally delivered, sent by reputable
overnight courier service (charges prepaid), sent by facsimile to the address for such Party set
forth below or such other address as the recipient Party has specified by prior written notice to
the other Party hereto and shall be deemed to have been given hereunder on (i) the date of delivery
if sent by messenger, (ii) on the Business Day following the Business Day on which delivered to a
recognized courier service if sent by overnight courier or (iii) upon confirmation of receipt, if
sent by facsimile:
| If to Licensee: | ||
| Ameritrade Holding Corporation | ||
| 0000 Xxxxxxxx Xxxxxxx Xxxxx, Xxxxx 000 | ||
| Xxxxxxxx, Xxxxxxxx 00000 | ||
| Attention: Xxxxx Xxxxxx, General Counsel | ||
| Facsimile: (000) 000-0000 | ||
| with a copy to: | ||
| Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx | ||
| Professional Corporation | ||
| 000 Xxxx Xxxx Xxxx | ||
| Xxxx Xxxx, Xxxxxxxxxx 00000 | ||
| Attention: Xxxxx X. Xxxxxxx, Esq. | ||
| Facsimile: (000) 000-0000 | ||
| If to Licensor: | ||
| The Toronto-Dominion Bank |
| 00 Xxxx Xxxxxx Xxxx, 0xx Xxxxx | ||
| Xxxxxxx, XX | ||
| X0X, 0X0 | ||
| Attention: Xxxxxxxxxxx Xxxxxxxx | ||
| Facsimile: (000) 000-0000 | ||
| with a copy to: | ||
| Xxxxxxx Xxxxxxx & Xxxxxxxx LLP | ||
| 000 Xxxxxxxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxx Xxxxxxxx, Esq. | ||
| Facsimile: (000) 000-0000 |
SECTION 9.6. Third Party Beneficiaries. Nothing in this Agreement, express or
implied, is intended to confer on any person other than the Parties hereto any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
SECTION 9.7. Amendments and Waivers. This Agreement may not be modified or amended
except by a written instrument signed by the Parties. Any Party may waive in writing the
compliance by another Party with any provision of this Agreement. The waiver by any Party hereto
of a breach of any term or provision of this Agreement will not operate or be construed as a waiver
of any subsequent breach or a waiver of any other provision of this Agreement.
SECTION 9.8. Severability. If any provision of this Agreement shall be declared by
any court of competent jurisdiction to be illegal, void or unenforceable, all other provisions of
this Agreement shall not be affected and shall remain in full force and effect.
SECTION 9.9. Integration. Except as otherwise expressly set forth herein, this
Agreement, together with any exhibits or schedules hereto, constitutes the complete agreement and
understanding among the Parties hereto with respect to the subject matter hereof and supersede and
preempt any prior understandings, agreements or representations by or among the Parties, written or
oral, that may have related to the subject matter hereof in any way.
SECTION 9.10. Headings. The section and article headings contained in this
Agreement are inserted for convenience of reference only and will not affect the meaning or
interpretation of this Agreement.
SECTION 9.11. Counterparts. This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same agreement, and will become effective
when one or more counterparts have been signed by each of the Parties and delivered to the other
Parties.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their
respective, duly authorized officers, as of the date first above written.
| THE TORONTO-DOMINION BANK | ||||
| By: | /s/ Xxxxx Xxxxxxxxxx | |||
| Name: Xxxxx Xxxxxxxxxx | ||||
| Title: Executive Vice President, Corporate Development | ||||
| AMERITRADE HOLDING CORPORATION | ||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: Xxxxxx X. Xxxxxx | ||||
| Title: Chief Executive Officer | ||||
