TRADEMARK LICENSE AGREEMENT dated as of November 30, 2009 between and Investment Managers Series Trust
dated
as of November 30, 2009
between
X.X. Xxxxxxx & Co., Inc.
and
TABLE
OF CONTENTS
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Page
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ARTICLE
1
Definitions
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Section
1.01. Definitions
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1
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Section
1.02. Other
Definitional and Interpretative Provisions
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3
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ARTICLE
2
Grant
of License
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Section
2.01. Grant
of License
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3
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Section
2.02. Warranties,
Disclaimers; Limitation of Liability
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3
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ARTICLE
3
Ownership
and Use of Licensed Marks
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Section
3.01. Ownership of
Licensed Marks
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4
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Section
3.02. Quality
Standards and Inspection
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4
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Section
3.03. Third
Party Notices
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5
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ARTICLE
4
Infringement
and Indemnification
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Section
4.01. Infringement of Licensed Marks
by Third Party
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5
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Section
4.02. Third
Party Actions
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5
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Section
4.03. Indemnification by
Licensee
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5
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ARTICLE
5
Term
and Termination
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Section
5.01. Term
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6
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Section
5.02. Termination by
Licensor
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6
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Section
5.03. Effect
of Termination; Survival
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6
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ARTICLE
6
General
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Section
6.01. Assignment
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6
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Section
6.02. Notices.
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6
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Section
6.03. Specific
Performance
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7
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Section
6.04. Amendments and
Waivers
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7
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Section
6.05. Successors and
Assigns
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7
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Section
6.06. Governing
Law
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7
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Section
6.07. Jurisdiction
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7
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Section
6.08. WAIVER
OF JURY TRIAL
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8
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Section
6.09. Counterparts;
Effectiveness; No Third Party Beneficiaries
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8
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Section
6.10. Entire
Agreement
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8
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Section
6.11. Severability
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8
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Exhibit
A
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Licensed
Marks
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This
TRADEMARK LICENSE AGREEMENT (this “Agreement”) dated [∙], 2009
(the “Effective Date”),
between X.X. Xxxxxxx & Co., Inc., (“Licensor”) a Delaware
corporation, and having its principal place of business at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
and Investment Management Series Trust (the “Licensee”), a Delaware
statutory trust, and having its principal place of business at 000 Xxxx Xxxxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000 (each a
“Party” and
collectively, the “Parties”).
Terms
that are not defined in this Agreement shall have the meaning set forth in the
Reorganization Agreement (as defined below).
W
I T N E S S E T H :
WHEREAS,
pursuant to an Agreement and Plan of Reorganization (the “Reorganization Agreement”)
dated as of [∙], 2009, the Acquired Fund, for which Licensor serves as
investment advisor, is transferring all of its Assets to a series of the
Licensee to be established prior to Closing (the “Acquiring Fund”);
WHEREAS,
pursuant to an Investment Advisory Agreement (the “Advisory Agreement”) dated as
of the date hereof, the Licensor has agreed to provide certain advisory services
for a certain period to the Acquiring Fund; and
WHEREAS,
the Licensee desires to obtain, and the Licensor is willing to grant, certain
rights to enable the Licensee to use certain of the Licensor’s marks in
connection with the Acquiring Fund;
NOW,
THEREFORE, the Parties agree as follows:
ARTICLE
1
Definitions
Section
1.01. Definitions.
Article 1 The following
terms, as used herein, have the following meanings:
“Affiliate” means, with respect
to any Person, any other Person directly or indirectly controlling, controlled
by, or under common control with such Person.
“Applicable Law” means, with
respect to any Person, any federal, state or local law (statutory, common or
otherwise), constitution, treaty, convention, ordinance, code, rule, regulation,
order, injunction, judgment, decree, ruling or other similar requirement
enacted, adopted, promulgated or applied by a Governmental Authority that is
binding upon or applicable to such Person, as amended unless expressly specified
otherwise.
“Business Day” means a day,
other than Saturday, Sunday or other day on which commercial banks in New York,
New York are authorized or required by Applicable Law to close.
“Governmental Authority” means
any transnational, domestic or foreign federal, state or local, governmental
authority, department, court, agency or official, including any political
subdivision thereof with jurisdiction over a party hereof.
“Licensed Marks” means the
trademarks set forth in Exhibit A hereto.
“Person” means an individual,
corporation, partnership, limited liability company, association, trust or other
entity or organization, including a Governmental Authority.
“Promotional Material” means
all material used in the promotion of, or otherwise in connection with, the
Acquiring Fund (whether written or recorded in any other medium) and includes
artwork, advertising materials (irrespective of the medium in which they are
record), display materials, packaging materials, brochures, posters, sales
materials, internet sites, enrollment materials, prospectuses, shareholder
reports, regulatory filings of all types, and internal and external
signage.
“Regulatory Filing” means any
filing regarding the Acquiring Fund required to be made with any Governmental
Authority which is not also distributed to the investors or prospective
investors in the Acquiring Fund. For the avoidance of doubt,
Regulatory Filings do not include prospectuses and statements of additional
information, annual reports or semi-annual reports of the Fund filed with the
Commission.
“Subsidiary” means any entity
of which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at any time directly or indirectly owned by Licensee.
“URL” means universal resource
locator, the computer internet address of a website.
(b) Each
of the following terms is defined in the Section set forth opposite such
term:
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Term
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Section
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Agreement
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Preamble
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Effective
Date
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Preamble
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License
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2.01
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Licensee
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Preamble
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Licensor
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Preamble
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Acquiring
Fund
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Preamble
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Party
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Preamble
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Parties
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Preamble
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Reorganization
Agreement
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Preamble
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Advisory
Agreement
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Preamble
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Term
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5.01
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Section
1.02. Other
Definitional and Interpretative Provisions. The words
“hereof”, “herein” and “hereunder” and words of like import used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof. References to Articles, Sections and Exhibits
are to Articles, Sections and Exhibits of this Agreement unless otherwise
specified. All Exhibits annexed hereto or referred to herein are
hereby incorporated in and made a part of this Agreement as if set forth in full
herein. Any capitalized terms used in any Exhibit but not otherwise
defined therein, shall have the meaning as defined in this
Agreement. Any singular term in this Agreement shall be deemed to
include the plural, and any plural term the singular. Whenever the
words “include”, “includes” or “including” are used in this Agreement, they
shall be deemed to be followed by the words “without limitation”, whether or not
they are in fact followed by those words or words of like
import. “Writing”, “written” and comparable terms refer to printing,
typing and other means of reproducing words (including electronic media) in a
visible form. References to any agreement or contract are to that
agreement or contract as amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof. References to any
Person include the successors and permitted assigns of that
Person. References from or through any date mean, unless otherwise
specified, from and including or through and including,
respectively. References to “law”, “laws” or to a particular statute
or law shall be deemed also to include any and all Applicable Law.
ARTICLE
2
Grant
of License
Section
2.02. Warranties, Disclaimers;
Limitation of Liability. THE LICENSE GRANTED HEREIN IS MADE ON
AN “AS IS” BASIS, AND LICENSOR HEREBY DISCLAIMS ANY EXPRESS OR IMPLIED
REPRESENTATIONS OR WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION, THOSE
REGARDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OF
NON-INFRINGEMENT. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS HEREIN,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE UNDER
ANY LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY KIND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
ARTICLE
3
Ownership
and Use of Licensed Marks
Section
3.03. Third Party
Notices. If requested in writing by Licensor, Licensee shall
ensure that any Promotional Material which includes a reference to any Licensed
Marks contains a written statement to the effect that such Licensed Marks are
trademarks of Licensor and are used by Licensee under license, or such other
statement as Licensor may reasonably require from time to time.
ARTICLE
4
Infringement
and Indemnification
Section
4.01. Infringement
of Licensed Marks by Third Party. Licensee shall immediately
notify Licensor of any unauthorized or improper use by any Person of any
Licensed Marks of which Licensee becomes aware. Licensee shall notify
Licensor of the known particulars of such infringement and provide any other
information which it may have relating to such infringement. In the
event that a Licensed Xxxx is infringed upon by a third party, Licensor shall
have the sole right to xxx for infringement and to recover and retain any and
all damages. Licensor is in no way obligated to initiate suit against
alleged infringers of the Licensed Marks. Licensee shall reasonably
cooperate with Licensor or its Affiliates, at Licensor’s cost and expense, when
any such suit is brought by Licensor or its Affiliates or defended by
Licensor.
Section
4.02. Third Party
Actions. Licensee shall immediately notify Licensor of any
allegations, claims or demands (actual or threatened) against Licensee or any of
its Affiliates for infringement of any intellectual property rights of third
parties by reason of the Licensee’s use of the Licensed Marks and provide all
particulars requested by Licensor. Licensee shall not enter into any
settlement, admit any liability or consent to any adverse judgment that would
adversely affect the rights or interest of Licensor in and to the Licensed Marks
without the prior written consent of Licensor. Licensor shall have
the right to employ separate counsel and participate in the defense of such
action at its own expense.
Section
4.03. Indemnification by
Licensee. Licensee shall defend, indemnify,
save and hold harmless Licensor
and its Affiliates and their partners, officers, employees, agents,
independent contractors and representatives from and against any and all costs,
losses, liabilities, obligations, damages, claims, demands and expenses (whether
or not arising out of third party claims), including interest, penalties, costs
of mitigation, reasonable attorneys’ fees and all amounts paid in investigation,
defense or settlement of any of the foregoing, incurred in connection with,
arising out of, resulting from or incident to Licensee’s use of the Licensed Marks
other than in accordance with the terms of this Agreement.
Term
and Termination
Section 5.01. Term. This
Agreement is effective as of the Effective Date and continues in full force and
effect for so long as Licensor acts as advisor to the Acquiring Fund pursuant to
the terms of the Advisory Agreement and a period of 30 days thereafter unless
terminated in accordance with
Section 5.02 (the “Term”).
Section
5.02. Termination
by Licensor. Licensor may terminate this Agreement by written
notice to Licensee immediately upon written notice to Licensee in the event that
Licensee materially breaches any term of this Agreement and fails to correct
such breach within thirty (30) days of written notice detailing such
breach.
Section
5.03. Effect of
Termination; Survival. Upon expiration or termination of this
Agreement, Licensee shall cease using the Licensed Marks or any derivation
thereof in any form. In the event the Acquiring
Fund ceases operations, the Licensee shall be permitted to the use the Licensed
Marks for regulatory filings, as the Licensee deems necessary or appropriate
under the circumstances. In the event that Licensee fails to
cease using the Licensed Marks, Licensee agrees and hereby specifically consents
to Licensor obtaining a decree of a court having jurisdiction over
Licensee ordering Licensee to stop the use of the Licensed Marks in any
form. Notwithstanding anything in this Agreement to the
contrary, Sections 2.02, 4.03 and 5.03 and Article 6 survive any expiration or
termination of this Agreement.
General
Section
6.01. Assignment. Neither this Agreement nor any rights
hereunder may be assigned or otherwise transferred by Licensee, in whole or in part, whether
voluntarily or by operation of law, without the prior written consent of
Licensor.
Section 6.02. Notices. All
notices, requests and other communications to any Party shall be in writing
(including facsimile transmission) and shall be given,
if to
Licensee, to:
Investment
Management Series Trust
000 Xxxx
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxxxx 00000
Attention:
[]
Facsimile
No.: [∙]
if to
Licensor, to:
X.X. Xxxxxxx Co.,
Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxx,
Esq.
Facsimile No.:
000-000-0000
or such
other address or facsimile number as such Party may hereafter specify for the
purpose by notice to the other Parties. All such notices, requests
and other communications shall be deemed received on the date of receipt by the
recipient thereof if received prior to 5:00 p.m. in the place of receipt and
such day is a Business Day. Otherwise, any such notice, request or
communication shall be deemed not to have been received until the next
succeeding Business Day in the place of receipt.
Section 6.03. Specific
Performance. The
Parties acknowledge that money damages
are not an adequate remedy for any violation of this Agreement and that
either Party may, in its sole discretion, apply
to the court set forth in Section 6.07 for specific performance, or
injunctive, or such other relief as such court may deem just and proper, in
order to enforce this Agreement or prevent any violation hereof, and to the
extent permitted by Applicable Law, each Party waives the posting of
bond.
Section 6.04. Amendments and
Waivers. Article 5 Any provision of this Agreement may be
amended or waived if, but only if, such amendment or waiver is in writing and is
signed, in the case of an amendment, by each Party, or in the case of a waiver,
by the Party against whom the waiver is to be effective.
(b) No
failure or delay by any Party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section
6.05. Successors
and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the Parties and
their respective successors and assigns.
Section
6.06. Governing
Law. This Agreement shall be governed by and construed in
accordance with the law of the State of Delaware, without regard to the
conflicts of law rules of such state.
Section
6.07. Jurisdiction. All
actions arising out of or relating to this Agreement shall be heard and
determined exclusively in any federal court in Delaware, provided, however, that if such
federal court does not have jurisdiction over such action, such action shall be
heard and determined exclusively in any Delaware state
court. Consistent with the preceding sentence, the parties hereto
hereby Article 6 submit to the exclusive jurisdiction of any federal or state
court sitting in Delaware for the purpose of any action arising out of or
relating to this Agreement brought by any party hereto and Article 7 irrevocably
waive, and agree not to assert by way of motion, defense, or otherwise, in any
such action, any claim that it is not subject personally to the jurisdiction of
the above-named courts, that its property is exempt or immune from attachment or
execution, that the action is brought in an inconvenient forum, that the venue
of the action is improper, or that this Agreement or the transactions
contemplated by this Agreement may not be enforced in or by any of the
above-named courts.
Section
6.08. WAIVER OF
JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section
6.09. Counterparts;
Effectiveness; No Third Party Beneficiaries. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each Party
shall have received a counterpart hereof signed by the other Party. Until and
unless each Party has received a counterpart hereof signed by the other Party,
this Agreement shall have no effect and no Party shall have any right or
obligation hereunder (whether by virtue of any other oral or written agreement
or other communication). No provision of this Agreement is intended
to confer any rights, benefits, remedies, obligations, or liabilities hereunder
upon any Person other than the Parties and their respective successors and
assigns.
Section
6.10. Entire
Agreement. This Agreement constitutes the entire agreement
between the Parties with respect to the subject matter hereof and thereof and
supersedes all prior agreements and understandings, both oral and written,
between the Parties with respect to the subject matter hereof and
thereof.
Section 6.11. Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other Governmental Authority to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any Party. Upon such a determination, the
Parties shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the Parties as closely as possible in an acceptable
manner in order that the transactions contemplated hereby be consummated as
originally contemplated to the fullest extent possible.
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as
of the date first written above.
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X.X.
XXXXXXX & CO., INC.
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By:
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Name:
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Title:
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INVESTMENT
MANAGEMENT
SERIES TRUST |
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By:
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Name:
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Title:
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Exhibit
A
Licensed
Marks
“Licensed
Marks” means the words “X.X. Xxxxxxx”, whether used alone or in combination with
other words, names or marks.
