SERVICE MARK AND NAME LICENSE AGREEMENT
SERVICE
XXXX AND NAME LICENSE AGREEMENT
THIS AGREEMENT, effective as
of the 19th day of
February, 2009 (“Effective Date”), is by and among GAMCO Investors, Inc., a corporation organized
under the laws of New York (“GAMCO” or “Licensor”) and Teton Advisors, Inc., a corporation organized
under the laws of Delaware and GAMCO Westwood Funds, a Massachusetts business
trust (each a “Licensee” or collectively the Licensees).
WHEREAS, Licensor is currently
the holder of certain shares of common stock of Teton (“Teton”);
WHEREAS, substantially
simultaneously with entering into this Agreement, Licensor will distribute these
shares to the shareholders of Licensor;
WHEREAS, substantially
simultaneously with entering into this Agreement, Licensor and Teton Advisors,
Inc. will enter into a Transitional Administrative and Management Services
Agreement pursuant to which Licensor will provide certain services to Teton
Advisors, Inc. in exchange for Teton’s payment of certain fees to Licensor (the
“Services
Agreement”);
WHEREAS, the word “GAMCO” is
the property of the Licensor and Licensor is the owner of the names and marks
and the goodwill symbolized by the word “GAMCO” (collectively, the “GAMCO
Xxxx”);
WHEREAS, Licensor is the owner
of all right, title and interest in and to the servicemark “MightyMites” (the
“MightyMites Xxxx”, and together with the GAMCO Xxxx, the “Licensed
Marks”);
WHEREAS, Licensees desires to
license the right to use the Licensed Marks in connection with the use by the
GAMCO Westwood Funds and the following investment portfolios: the GAMCO Westwood
Balanced Fund, GAMCO Westwood Equity Fund, GAMCO Westwood SmallCap Equity Fund,
GAMCO Westwood Income Fund, GAMCO Westwood Intermediate Bond Fund, and the GAMCO
Westwood MightyMites Fund (collectively the “Funds”).
WHEREAS, Licensor will license
the Licensed Marks to Licensees pursuant to the terms of this Agreement.
NOW, THEREFORE, in
consideration of the recitals above and the mutual promises set forth below, and
the payment of the fees pursuant to the Services Agreement and other good and
valuable consideration, the receipt and sufficiency of which the Parties
acknowledge, the Parties hereto agree as follows
1. License.
1.
1.1. Grant. Licensor
hereby grants to Licensees, a non-exclusive right and license to use the
Licensed Marks in connection with the operation, advertising, promotion and
marketing of the Funds during the Term of this Agreement.
1.2. No Other
Use. Licensees shall not use, except as permitted hereunder,
or register or apply to register, the Licensed Marks, or any name which is the
same as or confusingly similar to the Licensed Marks. All
rights in and to the Licensed Marks not expressly granted herein are reserved by
Licensor.
2. Quality Control.
2. 1
2.1. Quality
Control. All use of the Licensed Marks by Licensees and the
nature and quality of all services sold or offered by Licensees in connection
with the Licensed Marks are subject to Licensor’s quality control
standards.
2.2. Inspection. Licensor
may periodically inspect Licensees’ operations to ensure compliance with the
standards described above with reasonable advance notice and in such manner as
not to interfere unreasonably with the normal operations of the business of
Licensees.
2.3. Advertising. The
use of the Licensed Marks whether in advertising and promotional materials or
otherwise, shall be subject to the prior written approval of
Licensor.
3. 3
3. Acknowledgment of Rights.
3.1. Licensees
acknowledge and agree that:
A. Licensor
owns all rights, title and interest in and to Licensed Marks, and throughout the
Term of this Agreement and thereafter, Licensees shall not contest the validity
of the Licensed Marks, or claim adversely to any right, title and interest of
Licensor in and to the Licensed Marks; and
B. All
goodwill that arises from Licensees’ use of the Licensed Marks shall inure to
the sole benefit of Licensor.
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4. Trademark Protection.
4.1. Notice of
Infringement. Licensees shall give notice to Licensor of any
infringement of the Licensed Marks that comes to their attention during the Term
of this Agreement. Licensees agree to cooperate reasonably with
Licensor, when requested and at Licensor’s expense, in stopping such
infringement, but Licensees shall not take any action against an infringer in
its own name or on behalf of Licensor without Licensor’s prior written
approval. Licensor, in its sole discretion, shall decide what, if
any, action to take with respect to any infringement or alleged infringement of
the Licensed Marks. Nothing in this License Agreement shall impose on
Licensees any obligation to investigate any alleged infringement of the Licensed
Marks.
5. Term; Termination.
5. Ter
5.1. Term. The
initial term of this Agreement shall commence upon the Effective Date, and shall
continue until the one (1) year anniversary thereof, unless otherwise terminated
as provided in Section 5.2 below (“Initial Term”); provided that the Initial
Term shall automatically renew for successive one (1) year periods (each a
“Renewal Term”, and collectively with the Initial Term, the “Term”) unless
either Party notifies the other Party in writing within 30 days of the
expiration of the Initial Term or the then current Renewal Term that it will not
renew the Agreement.
5.2. Termination. This
Agreement is terminable, for any or no reason, by Licensor upon thirty (30) days
written notice of termination to Licensees.
5.3. Effect of
Termination. Upon the expiration or termination of this
Agreement:
A. Licensees
shall discontinue, and cease and desist from all use of the Licensed Marks and
any and all terms confusingly similar to the Licensed Marks.
B. All
rights of Licensees hereunder shall terminate and revert automatically to
Licensor, and Licensees shall not have any right to use or otherwise exploit in
any manner the Licensed Marks.
6. Miscellaneous.
6.1. Governing
Law. This Agreement and the rights and obligations of the
Parties hereunder shall be governed by and will be construed in accordance with
the laws of the State of New York, and all rights and remedies shall be governed
by such laws without regard to principles of conflict of laws.
6.2. Complete
Agreement. This Agreement constitutes the entire agreement
between the Parties with respect to the subject matter hereof and supersedes all
previous proposals, negotiations, representations, commitments, writings and all
other communications, whether oral and written, between the
Parties.
6.3. Assignment. This
Agreement may not be assigned or transferred by Licensees in any manner, nor
shall Licensees have the right to grant any sublicenses under this Agreement,
except with Licensor’s prior written consent.
6.4. Amendment. This
Agreement may not be modified, amended, rescinded, canceled or waived, in whole
or in part, except by written instrument signed by a duly authorized
representative of each Party.
6.5. Severability. In
the event that any provision of this Agreement conflicts with the law under
which this Agreement is to be construed, or if any such provision is held
invalid by a court with jurisdiction over the Parties to this Agreement, and the
subject matter of this Agreement, (i) such provision will be deemed to be
restated to reflect as nearly as possible to the original intentions of the
Parties in accordance with applicable law, and (ii) the remaining terms,
provisions, covenants and restrictions of this Agreement will remain in full
force and effect.
6.6. Counterparts. This
Agreement may be executed in counterparts, each of which will be deemed an
original and all of which together will constitute one and the same
document.
6.7. Waiver. The
failure of either Party to insist upon or enforce strict performance of any
provision of this Agreement, or to partially or fully exercise any right, or any
waiver by either Party of any breach, shall not prevent a subsequent enforcement
of strict performance or the exercise of any such right, or be deemed a waiver
of any subsequent breach of the same or any other term of this
Agreement.
6.8. Remedies. Except
where otherwise specified in this Agreement, the rights and remedies of each
Party set forth in this Agreement are not exclusive and are in addition to any
other rights and remedies available to it at law or in equity.
6.9. Headings. The
various headings in this Agreement are inserted for convenience only and shall
not affect the meaning or interpretation of this Agreement or any section
hereof.
6.10. Notices. All
notices provided for herein will be in writing and will, unless otherwise
provided, be delivered personally or sent by confirmed facsimile transmission,
overnight courier service or United States certified mail, proper postage
prepaid, addressed as follows:
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If to
GAMCO:
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GAMCO
Investors, Inc.
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Xxx
Xxxxxxxxx Xxxxxx
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Xxx,
XX 00000
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Attn:
Legal Department
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Fax:
(000) 000-0000
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If to
Teton:
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Xxx
Xxxxxxxxx Xxxxxx
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Xxx,
XX 00000
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Attn:
Chief Executive Officer
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Fax:
(914)
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If to the
GAMCO Westwood Funds
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The
GAMCO Westwood Funds
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Xxx
Xxxxxxxxx Xxxxxx
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Xxx,
XX 00000
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Attn:
President
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Fax:
(000) 000-0000
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IN
WITNESS WHEREOF, each Party hereto has executed, or has caused the execution by
its duly authorized representative of, this Agreement as of the Effective
Date.
/s/
Xxxxxxxx X. Xxxxxxxxx
Xxxxxxxx X. Xxxxxxxxx
Chief Executive Officer and
President
By: GAMCO
Investors, Inc.
/s/
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
President and Chief Operating
Officer
By: The
GAMCO Westwood Funds
/s/
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
President
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