TRADEMARK LICENSE AGREEMENT
THIS Trademark License Agreement ("License"), effective this _____day of
_________, 2003 is made and entered into by LINCOLN NATIONAL CORPORATION, an
Indiana corporation, located at 0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000 (hereinafter "Licensor") and LINCOLN VARIABLE INSURANCE
PRODUCTS TRUST, located at 0000 X. Xxxxxxx Xx., Xxxx Xxxxx, Xxxxxxx 00000
(hereinafter "Licensee").
WHEREAS, Licensor holds diversified interests, primarily in insurance and
related financial services companies. Licensor and its subsidiary companies use
the word "LINCOLN" in their name and business, and this word, when used by such
companies, have a recognized business acceptance and identity throughout the
United States and in foreign countries. The right to use the word "LINCOLN" as a
part of the corporate name and business is an asset of Licensor, and it is
entitled to protect its valuable property right against improper use by others.
WHEREAS, Licensee desires to use the word "LINCOLN" as part of its name,
i.e. LINCOLN VARIABLE INSURANCE PRODUCTS TRUST, to be used in connection with
its services to its customers.
WHEREAS, Licensor, together with its subsidiaries, are the collective
owners of the following registered service marks:
ALINCOLN Design, U.S. Reg. No. 2,048,697
Silhouette w/LINCOLN, U.S. Reg. No. 2,265,715
LINCOLN ANNUITIES, U.S. Reg. No. 2,576,701
LINCOLN FINANCIAL ADVISORS, U.S. Reg. No. 2,191,355
LINCOLN FINANCIAL GROUP, U. S. Reg. Nos. 2,147,299 and 2,236,520
LINCOLN LIFE, U.S. Reg. No. 2,086,851
LINCOLN NATIONAL, U.S. Reg. No. 1,030,256
In addition to the above marks, Licensor has used and obtained common law
rights on numerous other marks in the financial services industry, all of which
contain the "LINCOLN" name (hereinafter "the Xxxx"). Licensor and its
subsidiaries have acquired recognition and goodwill associated with the xxxx
"LINCOLN" in the financial services industry.
THEREFORE, in consideration of the mutual covenants and agreements herein
specified, Licensor and Licensee covenant and agree as follows:
1. GRANT OF LICENSE.
Licensor hereby grants to Licensee while this License is in force, a
nonexclusive, nonassignable license to use the Xxxx as above described, as long
as a fund participation agreement is in place between Licensor's subsidiaries,
The Lincoln National Life Insurance Company and/or
Lincoln Life & Annuity Company of New York and Licensee, (hereinafter "a
Participation Fund Agreement"). If the Xxxx is used for any purpose other than
herein specified or if the referenced Participation Fund Agreement is
terminated, this License shall be null and void.
The use of the Xxxx by Licensee shall not prevent Licensor or any of its
subsidiaries or affiliates, or any of their respective successors or assigns,
from using or permitting the use of the Xxxx alone or with any other word or
words by or in connection with any other entity or business, whether or not the
same directly or indirectly competes or conflicts with Licensee or its business
in any manner.
2. OWNERSHIP. Both parties agree that Licensor owns the Xxxx and any
goodwill associated therewith, regardless of when acquired. All use thereof
inures to the benefit of Licensor. Licensee agrees that it shall not register or
attempt to register any portion of the Xxxx or any similar Xxxx in its own name
and shall not contest the validity of the Xxxx or any registrations thereof.
3. TERM. This License shall remain in force for as long as Licensee
is a party to a Participation Fund Agreement and for a period of ninety (90)
days following the termination of any such Participation Fund Agreement. In the
event that Licensee ceases to be a party to a Participation Fund Agreement,
Licensee shall promptly take such steps as may be necessary to change its trust
name and business practices so as to eliminate the words "LINCOLN" or any name
that, in Licensor's opinion, is confusingly similar or indicates an affiliation
with Licensor or any of its subsidiaries and affiliates.
4. PAYMENT. Neither party shall pay the other any fee for this license.
5. USE OF XXXX.
A. Licensee shall maintain high and uniform standards of operation and
perform its services and activities in connection with its use of the Xxxx
in accordance with such quality standards as are generally accepted in the
insurance and financial industry and as may be reasonably prescribed by
Licensor from time to time, and shall comply with all laws, ordinances and
regulations relating to the services.
B. Licensee shall not use the Xxxx except as herein prescribed, and
shall not use the Xxxx, in whole or in part, in connection with any other
service, business or product.
6. LICENSOR'S RIGHT TO PROTECT ITS PROPRIETARY INTEREST. The following
terms apply to any infringement by third parties, claim(s) of infringement by
third parties, or claim(s) against any other proprietary interest held by
Licensor related to the Xxxx furnished to Licensee under this License or in
contemplation thereof.
A. In the event that Licensee discovers, learns, or otherwise becomes
aware of any infringement of the Xxxx by third parties, unauthorized use of
the Xxxx by third parties, imitation of the Xxxx by third parties, use of
any symbol or design similar to the Xxxx by third
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parties, or any other action(s) by third parties that may constitute unfair
competition with the Xxxx, Licensee will promptly notify Licensor of the
infringement.
B. Licensor, in its sole discretion and at its own expense, shall have
the right to participate in and/or control the negotiation, prosecution,
and/or defense of any infringement of the Xxxx by third parties,
unauthorized use of the Xxxx by third parties, imitation of the Xxxx by
third parties, use of any symbol or design similar to the Xxxx by third
parties, or any other action(s) by third parties that may constitute unfair
competition with the Xxxx.
C. Licensee shall have no right to take any action, including but not
limited to negotiation, prosecution, or defense, concerning any
infringement of the Xxxx by third parties, unauthorized use of the Xxxx by
third parties, imitation of the Xxxx by third parties, use of any symbol or
design similar to the Xxxx by third parties, or any other action(s) by
third parties that may constitute unfair competition with the Xxxx without
the prior written approval of Licensor.
D. Each party shall notify the other immediately upon the learning of
the commencement of any actions whose outcome may affect the rights of the
other party herein granted or use of the Xxxx. Licensor shall have the
right in its SOLE discretion and at its own expense to participate in
and/or control the negotiation, prosecution, and/or defense of such actions
that impact its Xxxx.
7. TERMINATION. Licensor may terminate the license granted by this
License at any time if any breach by Licensee remains uncured for a period of
ten (10) days after written notice thereof.
Either party may terminate this License at any time, with or without
cause, by giving thirty (30) days written notice to the other party.
8. NON-USE OF XXXX AFTER TERMINATION.
A. Upon expiration or termination of this License or a underlying
Participation Fund Agreement, (i) Licensee will immediately cease using and
thereafter abstain from using the Xxxx and any names or trademarks similar
thereto, (ii) Licensee will surrender and assign and hereby surrenders and
assigns to Licensor any and all rights and goodwill which it may have
acquired by reason of its use of the Xxxx, and (iii) Licensee will return
all copies of the Xxxx in its direct or indirect possession. No property
right in or privilege to use the Xxxx is created by this License which will
extend beyond the expiration or termination of this License.
B. Licensee agrees to reimburse Licensor for all costs, expenses and
attorneys' fees incurred by Licensor in efforts to require Licensee to
cease using the Xxxx after expiration or termination of this License.
C. The provisions of this Section 8 shall survive after termination of
the license granted by this License.
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9. NON-WAIVER. Any failure of Licensor to enforce any of the provisions
of this License, or to exercise any option herein provided, or to require
performance by the other of any of the provisions hereof, shall not constitute a
waiver of such provisions, nor in any way affect the validity of this License or
the right of Licensor to thereafter enforce each and every such provision.
10. NOTICES. All notices shall be sent by certified or registered mail
addressed as follows:
IF TO LICENSOR: LINCOLN NATIONAL CORPORATION
Attn: Gloster B. Current, Jr.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
IF TO LICENSEE: LINCOLN VARIABLE INSURANCE PRODUCTS TRUST
Attn: Secretary
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
or as otherwise specified by such notices of change of address.
11. PARTIES AND SUCCESSORS. This License shall be binding upon the parties
and shall inure to the benefit of the successors and assigns of Licensor. The
license granted to Licensee is not transferable and shall not be sold, pledged,
hypothecated, assigned, licensed or transferred, without the prior written
consent of Licensor.
IN WITNESS WHEREOF, the parties have executed this License this _____
day of _________________ 2003.
LICENSOR: LICENSEE:
LINCOLN NATIONAL CORPORATION LINCOLN VARIABLE INSURANCE PRODUCTS TRUST
By: By:
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Name: Name:
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Title: Title:
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