TRADEMARK LICENSE AGREEMENT
EXHIBIT 99.2
EXECUTION COPY
This TRADEMARK LICENSE AGREEMENT (the “Agreement”) is made this 15th day of
November, 2007, by and among BROOKE CORPORATION, a Kansas corporation (“Licensor”), and
BROOKE CAPITAL CORPORATION, a Kansas corporation (“Licensee”).
RECITALS
A. Licensor is the owner of certain rights and goodwill associated therewith for the
trademarks, service marks, and trade names identified on Schedule A (each, a “Xxxx” and
collectively, the “Marks”) and the exclusive right to use and license the use thereof;
B. As of August 31, 2007, Licensor and Licensee are parties to that certain Agreement and Plan
of Merger pursuant to which Brooke Franchise Corporation will be merged (the “Merger”) into and
with Licensee (the “Merger Agreement”);
C. Pursuant to the Merger Agreement, Licensor has agreed to license to Licensee, under the
terms and conditions of this Agreement, the Marks; and
D. The Merger was effected on and as of the date first above written.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the respective covenants,
agreements, representations and warranties contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending
to be legally bound, agree as follows:
1. | LICENSE |
1.1. | Licensor hereby grants to Licensee a non-exclusive, worldwide, fully paid-up,
royalty-free, non-transferable, sub-licensable (as specifically set forth in Section 1.2,
below) right and license to use the Marks solely in connection with Licensee’s insurance
business. |
||
1.2. | Licensee may sub-license its right to use the Marks to any franchisees and subsidiaries
of Licensee (each, a “Sub-Licensee”) provided that (a) such entity remains a franchisee or
subsidiary of Licensee at the time of and during the limited term of any such sub-license;
and (b) such entity agrees in writing, in a form to be approved by Licensor, to
limitations, restrictions, and obligations no less protective of Licensor than as set forth
in this Agreement. Except as set forth herein, Licensee may not sub-license without
Licensor’s prior written consent. Nothing herein shall be interpreted to give any
Sub-Licensee the right to further sub-license the Marks without prior written consent of
Licensor. |
1.3. | Notwithstanding anything herein, Licensee shall remain liable for the actions of any
Sub-Licensee to whom Licensor sub-licenses its rights hereunder. For any Sub-Licensee,
Licensee agrees to assist and cooperate with Licensor in Licensor’s enforcement and
protection of the use of the Marks so as to conform to the quality standards set forth in
Section 4, below. |
2. | TERM |
This Agreement and the license granted hereunder shall commence on the date hereof (the
“Effective Date”) and shall continue until terminated in accordance with the provisions of
this Agreement.
3. | TRADEMARKS |
3.1. | Licensee hereby acknowledges Licensor’s right, title and interest in and to the Xxxx
and Licensor’s exclusive right to use and license the use of the Marks and agrees not to
claim any title to the Marks or any right to use the Marks except as permitted by this
Agreement. |
||
3.2. | Licensee shall at no time adopt or use, without Licensor’s prior written consent, any
variation of the Marks, including translations, or any xxxx likely to be similar to or
confusing with the Marks. In the event that Licensor consents to any variation of the
Marks, Licensee hereby agrees that Licensor shall own such new xxxx and shall, at its cost
and expense, file and obtain in Licensor’s name all United States and international
trademark registrations. Licensor agrees to give Licensee reasonable assistance, including
execution and delivery of all documents required by Licensee, in filing such applications
for trademark registration. |
||
3.3. | Licensee shall, during the term of this Agreement and after termination hereof, execute
such documents as Licensor may request from time to time to ensure that all right, title
and interest in and to the Marks reside with Licensor. |
||
3.4. | The provisions of this Section 3 shall survive any termination of this Agreement. |
4. | QUALITY STANDARDS |
Licensee shall furnish to Licensor, upon Licensor’s reasonable request, copies of all material
on which the Xxxx(s) appears (the “Materials”). Licensee shall maintain the use of the
Marks so as to conform to (a) the written standards of quality as set by Licensor from time to time
and provided to Licensee; and (b) the usage guidelines for the Xxxx(s) as set forth in Schedule A
or as designated by Licensor from time to time and provided to Licensee.
5. | INFRINGEMENT |
5.1. | Licensee shall notify Licensor promptly of any infringement or unauthorized use of the
Xxxx(s) by others of which Licensee becomes aware. Licensor shall have the sole right, at
its expense, to bring any action on account of any such infringement or unauthorized use,
and Licensee shall cooperate with Licensor, as Licensor may request, in connection
with any such action brought by Licensor. Licensor shall retain any and all damages,
settlement and/or compensation paid in connection with any such action brought by Licensor.
If Licensor does not undertake such action within ninety (90) calendar days after notice
from Licensee of such alleged infringement, Licensee may prosecute the same, at its expense,
provided that no settlement shall be made without the prior written approval of Licensor.
In the event that any damages, settlement and/or compensation are paid in connection with
any such action, Licensee shall first retain an amount in reimbursement of its expenses; any
remaining amount shall be divided equally between Licensor and Licensee. |
2
5.2. | Licensor shall have the sole right, at its expense, to defend and settle for other than
money damages any action that may be commenced against Licensor or Licensee alleging that
the Xxxx(s) infringes any rights of third parties. Licensee shall, at the direction of
Licensor, promptly discontinue its use of the Xxxx(s) alleged to infringe rights of such
third parties. If Licensor does not give notice to Licensee of its intent to defend or
settle such action within ninety (90) calendar days after notice from Licensee of such
alleged infringement, Licensee may defend the same, at its expense, provided that no
settlement shall be made without the prior written approval of Licensor and Licensee shall
advise Licensor periodically of the status of the action and promptly of any material
developments. Licensor reserves the right to participate at any time in such proceedings. |
||
5.3. | NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, LICENSOR SHALL HAVE NO LIABILITY TO
LICENSEE FOR OR IN RESPECT OF ANY CLAIM BY ANY THIRD PARTY THAT LICENSEE’S USE OF THE
XXXX(S) PURSUANT TO THIS AGREEMENT INFRINGES UPON OR OTHERWISE VIOLATES ANY PROPRIETARY OR
OTHER RIGHTS OF SUCH THIRD PARTY OTHER THAN A CLAIM THAT LICENSEE’S USE OF THE XXXX(S)
PURSUANT TO THIS AGREEMENT VIOLATES THE CONTRACTUAL RIGHTS OF ANY OTHER LICENSEE OF
LICENSOR. |
6. | TERMINATION |
|
Either party shall have the right to terminate this Agreement upon the following: |
(a) | if either Licensor or Licensee defaults in the performance or observance of any of the
terms or conditions of this Agreement and such default is not remedied within thirty (30)
calendar days after written notice specifying the nature of the default is received by the
defaulting party, then the nondefaulting party shall have the right to terminate this
Agreement by written notice to the defaulting party; or |
||
(b) | if any of the following events occur: (1) insolvency or the making by a party to this
Agreement of an assignment for the benefit of creditors; (2) the filing by or against a
party hereto of, or the entry of an order for relief against a party hereto in, any
voluntary or good faith involuntary proceeding under any bankruptcy, insolvency,
reorganization or receivership law, including, but not limited to, the Bankruptcy Code, or
an admission seeking relief as therein allowed, which filing or order shall not have been
vacated within sixty (60) calendar days from the entry thereof; (3) the appointment of a
receiver for all or a substantial portion of such party’s property and such appointment shall not be
discharged or vacated within sixty (60) calendar days of the date thereof; or (4) the
assumption of custody, attachment or sequestration by a court of competent jurisdiction of
all or a significant portion of such party’s property, then the other party to the Agreement
shall have the right to terminate this Agreement by written notice to the party affected by
such occurrence. No assignee for the benefit of creditors, receiver, liquidator, trustee in
bankruptcy, sheriff or any other officer of the court or official charged with taking over
custody of the assets or business of a party to this Agreement shall have any right to
continue performance of this Agreement, and this Agreement may not be assigned by operation
of law. |
3
7. | EFFECTS OF AND PROCEDURE ON TERMINATION |
Unless otherwise agreed to in writing between the parties, upon the termination of this
Agreement all rights of Licensee granted hereunder shall terminate and automatically revert to
Licensor and Licensee and Sub-Licensees, if any, shall immediately discontinue the use of the Marks
and thereafter shall no longer use or have the right to use the Marks or any variation or
simulation thereof, or any word or xxxx similar thereto. Licensee acknowledges that Licensee’s or
any Sub-Licensees’ failure to cease the use of the Marks upon termination of this Agreement shall
result in immediate and irreparable damage to Licensor and to the rights of any subsequent
licensee. Licensee acknowledges and admits that there is not adequate remedy at law for such
failure, and agrees that in the event of such failure, Licensor shall be entitled to equitable
relief by way of temporary and permanent injunction and such other and further relief as any court
with jurisdiction may deem just and proper.
8. | ENTIRE AGREEMENT |
This Agreement, together with the Schedule hereto, sets forth the entire agreement between the
parties with regard to the subject matter hereof, and supersedes all other prior agreements and
understandings, written or oral, between the parties with respect to such subject matter.
9. | GOVERNING LAW |
This Agreement shall be construed and interpreted according to the internal laws of the State
of Kansas, excluding any choice of law rules that may direct the application of the laws of another
jurisdiction. The parties hereby stipulate that any action or other legal proceeding arising under
or in connection with this Agreement may be commenced and prosecuted in its entirety in the federal
or state courts having jurisdiction over Xxxxxxx County, Kansas, each party hereby submitting to
the personal jurisdiction thereof, and the parties agree not to raise the objection that such
courts are not a convenient forum. Process and pleadings mailed to a party at the address provided
in Section 15 shall be deemed properly served and accepted for all purposes.
10. | WAIVER AND AMENDMENT |
This Agreement may be amended, supplemented, modified and/or rescinded only through an express
written instrument signed by all parties or their respective successors and permitted
assigns. Any party may specifically and expressly waive in writing any portion of this
Agreement or any breach hereof, but only to the extent such provision is for the benefit of the
waiving party, and no such waiver shall constitute a further or continuing waiver of any preceding
or succeeding breach of the same or any other provision. The consent by one party to any act for
which such consent was required shall not be deemed to imply consent or waiver of the necessity of
obtaining such consent for the same or similar acts in the future, and no forbearance by a party to
seek a remedy for noncompliance or breach by another party shall be construed as a waiver of any
right or remedy with respect to such noncompliance or breach.
4
11. | ASSIGNMENT |
Except as specifically set forth herein, neither this Agreement nor all or any portion of the
rights licensed to Licensee herein shall be assigned by either party (voluntarily, involuntarily,
by judicial process, operation of law or otherwise) without the prior written consent of the other
party.
12. | SUCCESSORS |
Each of the terms, provisions and obligations of this Agreement shall be binding upon, shall
inure to the benefit of, and shall be enforceable by the parties and their respective legal
representatives, successors and permitted assigns.
13. | NO THIRD PARTY BENEFICIARIES |
Nothing in this Agreement will be construed as giving any person, other than the parties to
this Agreement and their successors and permitted assigns, any right, remedy or claim under, or in
respect of, this Agreement or any provision hereof.
14. | NO PERSONAL LIABILITY. |
This Agreement shall not create or be deemed to create or permit any personal liability or
obligation on the part of (a) any direct or indirect stockholder of Licensor or Licensee, or (b)
any officer, director, employee, agent or representative of Licensor or Licensee.
15. | NOTICES |
All notices, requests, demands and other communications made under this Agreement shall be in
writing, correctly addressed to the recipient as follows:
If to Licensee: | Brooke Capital Corporation 00000 Xxxxxxxxx Xxxxx, Xxxxx 000 Xxxxxxxx Xxxx, Xxxxxx 00000 Attention: Xx. Xxxx X. Xxxxx, CEO and President Facsimile: (000) 000-0000 |
5
with a copy to Xxxxxxx X. Xxxxxxx, Esq. Xxxxxxxxxx Xxxxxxx Xxxxxxxx Suelthaus PC 0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000 Xxxxxxxx Xxxx, XX 00000-0000 Facsimile: (000) 000-0000 |
||||
If to Licensor: | Brooke Corporation 0000 Xxxxxxx Xxxxxxxxx Xxxxxxxx Xxxx, Xxxxxx 00000 Attention: Xx. Xxxxx X. Xxxxxxx, CEO and President Facsimile: (000) 000-0000 |
|||
with a copy to: | ||||
P. Xxxxxxxx Xxxxxxx, Esq. Xxxxx Xxxx LLP Suite 500 0000 Xxxxx Xxxxxxxxx Xxxxxx Xxxx, XX 00000-0000 Facsimile: (000) 000-0000 |
Notices, requests, demands and other communications made under this Agreement shall be deemed
to have been duly given (i) upon delivery, if served personally on the party to whom notice is to
be given, (ii) on the date of receipt, refusal or non-delivery indicated on the receipt if mailed
to the party to whom notice is to be given by registered or certified, postage prepaid or by
overnight courier or (iii) upon confirmation of transmission, if sent by facsimile. Any party may
give written notice of a change of address in accordance with the provisions of this Section 15 and
after such notice of change has been received, any subsequent notice shall be given to such party
in the manner described at such new address.
16. | SEVERABILITY |
It is the desire and intent of the parties that the provisions of this Agreement be enforced
to the fullest extent permissible under the law and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any term or provision of this Agreement, or the
application thereof to any person or circumstance, is adjudicated by a court of competent
jurisdiction to be invalid, prohibited or unenforceable in any jurisdiction: (a) a substitute and
equitable provision shall be substituted therefor in order to carry out, so far as may be valid and
enforceable in such jurisdiction, the intent and purpose of the invalid, prohibited or
unenforceable provision; and (b) the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected by such invalidity, prohibition
or unenforceability, nor shall such invalidity, prohibition or unenforceability of such provision
affect the validity or enforceability of such provision, or the application thereof, in any other
jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so
as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other jurisdiction.
6
17. | COUNTERPARTS |
This Agreement may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute a single agreement.
18. | NO PRESUMPTION |
This Agreement shall be construed without regard to any presumption or rule requiring
construction or interpretation against the party drafting or causing any instrument to be drafted.
19. | FACSIMILE SIGNATURES |
This Agreement and any other document or agreement executed in connection herewith (other than
any document for which an originally executed signature page is required by law) may be executed by
delivery of a facsimile copy of an executed signature page with the same force and effect as the
delivery of an originally executed signature page. In the event any party delivers a facsimile
copy of a signature page to this Agreement or any other document or agreement executed in
connection herewith, such party shall deliver an originally executed signature page within three
business days of delivering such facsimile signature page or at any time thereafter upon request;
provided, however, that the failure to deliver any such originally executed signature page shall
not affect the validity of the signature page delivered by facsimile, which has and shall continue
to have the same force and effect as the originally executed signature page.
[Next page is signature page]
7
IN WITNESS WHEREOF, each of the parties has executed this Agreement as of the date first set
forth above.
BROOKE CAPITAL CORPORATION | ||||
By: | /s/ Xxxxxxx X. Xxxx | |||
Name: | Xxxxxxx X. Xxxx | |||
Its: | Vice Chairman | |||
BROOKE CORPORATION | ||||
By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Its: | President and CEO |
[Signature page to Trademark License Agreement]
8
SCHEDULE A
XXXXX
XXXXX
Xxxx | Registration No. | Registration Date | ||||
![]() |
1,588,160 | 12/26/1989 | ||||
![]() |
3,043,891 | 1/17/2006 |
9
TRADE NAMES
Brooke Franchise
Brooke Insurance
Brooke Insurance and Financial Services
Brooke Insurance and Financial Services, LLC
Brooke Auto Insurance
Brooke Business Insurance
10
USAGE GUIDELINES
(2004 version)
(2004 version)
Brooke 13-line Logo:
• | Font type for “B” = Times Bold |
||
• | Font type for BROOKE = Times Bold |
||
• | Font type for Tag = Times Bold |
||
• | Font size ratio for Tag line = 0.15 of total logo height |
||
• | Local tag line ratio: 0.1 of total logo height |
||
• | Background Color = WHITE |
||
• | “B” starts 5th line from bottom |
||
• | BROOKE Block ends 4 lines from bottom |
||
• | Width is 3X’s height |
||
• | “B” and “BROOKE” are exactly centered |
||
• | 13 total lines |
11