TRADEMARK LICENSE AGREEMENT
Exhibit (k)(3)
This TRADEMARK LICENSE AGREEMENT (this “Agreement”) is made and effective as of January , 2007 (the “Effective Date”), by and between Pennant Investment Advisers, LLC a Delaware limited liability company (the “Licensor” or “Adviser”), and Pennant Investment Corporation, a corporation organized under the laws of the State of Maryland (“Corporation”) (each a “party,” and collectively, the “parties”).
RECITALS
WHEREAS, Adviser is the owner of the trade name “PENNANT” (the “Licensed Xxxx”) and has filed an application to register the xxxx in the United States of America (the “Territory”) for investment management, investment consultation and investment advisory services.
WHEREAS, Corporation is a newly organized closed-end management investment company that has filed notice with the Securities and Exchange Commission that it intends to elect to be treated as a business development company under the Investment Company Act of 1940 (the “1940 Act”);
WHEREAS, the Corporation is entering into an investment advisory and management agreement with Adviser (the “Advisory Agreement”), wherein Corporation will engage Adviser to act as the investment adviser to the Corporation; and
WHEREAS, Corporation desires to use the Licensed Xxxx in connection with the operation of its business, and Adviser is willing to permit Corporation to use the Licensed Xxxx, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1.
LICENSE GRANT
1.1. License. Subject to the terms and conditions of this Agreement, Adviser hereby grants to Corporation, and Corporation hereby accepts from Adviser, a personal, non-exclusive, royalty-free right and license to use the Licensed Xxxx solely and exclusively as an element of Corporation’s own corporate name and in connection with marketing the investment management, investment consultation and investment advisory services that Adviser may provide to Corporation. During the term of this Agreement, Corporation shall use the Licensed Xxxx only to the extent permitted under this License, and except as provided above, neither Corporation nor any affiliate, owner, director, officer, employee, or agent thereof shall otherwise use the Licensed Xxxx or any derivative thereof in the Territory without the prior express written consent of Adviser in its sole and absolute discretion and shall not use the Licensed Xxxx for any purpose outside the Territory. All rights not expressly granted to Corporation hereunder shall remain the exclusive property of Adviser.
1.2. Licensor’s Use. Nothing in this Agreement shall preclude Licensor or any of its successors or assigns from using or permitting other entities to use the Licensed Xxxx, whether or not such entity directly or indirectly competes or conflicts with Corporation’s business in any manner.
ARTICLE 2.
OWNERSHIP
2.1. Ownership. Corporation acknowledges and agrees that Adviser is the owner of all right, title, and interest in and to the Licensed Xxxx, and all such right, title and interest shall remain with the Adviser. Corporation shall not contest, dispute, challenge, oppose or seek to cancel Adviser’s right, title, and interest in and to the Licensed Xxxx. Corporation shall not prosecute any application for registration of the Licensed Xxxx, or seek to register the Licensed Xxxx as a domain name or part of any domain name.
2.2. Goodwill. Corporation acknowledges that Corporation shall not acquire any right, title, or interest in the Licensed Xxxx by virtue of this Agreement other than the license granted hereunder, and disclaims any such right, title, interest, or ownership. All goodwill and reputation generated by Corporation’s use of the Licensed Xxxx shall inure to the exclusive benefit of Adviser. Corporation shall not by any act or omission use the Licensed Xxxx in any manner that disparages or reflects adversely on Adviser or its business or reputation. Corporation shall not take any action that would interfere with or prejudice Adviser’s ownership or registration of the Licensed Xxxx, the validity of the Licensed Xxxx or the validity of the license granted by this Agreement.
ARTICLE 3.
COMPLIANCE
3.1. Quality Control. In order to preserve the inherent value of the Licensed Xxxx, Corporation agrees to use reasonable efforts to ensure that it maintains the quality of the Corporation’s business and the operation thereof equal to the standards prevailing in the operation of Adviser’s and Corporation’s business as of the date of this Agreement. Adviser shall oversee the quality of the services provided under the Licensed Xxxx by virtue of its role as investment adviser to the Corporation, and shall approve, prior to their use, all prospectuses, advertisements, and other materials upon which Corporation uses the Licensed Xxxx. The Corporation further agrees to use the Licensed Xxxx in accordance with such quality standards as may be reasonably established by Licensor and communicated to the Corporation from time to time in writing, or as may be agreed to by Licensor and the Corporation from time to time in writing.
3.2. Compliance With Laws. Corporation agrees that the business operated by it in connection with the Licensed Xxxx shall comply with all laws, rules, regulations and requirements of any governmental body in the Territory or elsewhere as may be applicable to the operation, advertising and promotion of the business and shall notify Adviser of any action that must be taken by Corporation to comply with such law, rules, regulations or requirements.
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3.3. Notification of Infringement. Each party shall immediately notify the other party and provide to the other party all relevant background facts upon becoming aware of (a) any registrations of, or applications for registration of, marks in the Territory that do or may conflict with any Licensed Xxxx, and (b) any infringements, imitations, or illegal use or misuse of the Licensed Xxxx in the Territory. Adviser shall have the exclusive right, but not the obligation, to prosecute, defend and/or settle in its sole discretion, all actions, proceedings and claims involving any Third Party Infringement or Third Party Claim, and to take any other action that it deems necessary or proper for the protection and preservation of its rights in the Licensed Xxxx. Corporation shall cooperate with Adviser in the prosecution, defense, or settlement of such actions, proceedings, or claims.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES
4.1. Corporation acknowledges that Adviser has applied for registration in the Territory of PENNANT, that Adviser’s application for registration has not yet been examined or approved for registration, and that Corporation accepts this license on an “as is” basis. Corporation acknowledges that Adviser makes no explicit or implicit representation or warranty as to the registrability, validity, enforceability, or ownership of the Licensed Xxxx, or as to Corporation’s ability to use the Licensed Xxxx without infringing or otherwise violating the rights of others, and Adviser has no obligation to indemnify Corporation with respect to any claims arising from Corporation’s use of the Licensed Xxxx.
4.2. Mutual Representations. Each party hereby represents and warrants to the other party as follows:
(a) Due Authorization. Such party is a corporation duly incorporated and in good standing as of the Effective Date, and the execution, delivery and performance of this Agreement by such party have been duly authorized by all necessary action on the part of such party.
(b) Due Execution. This Agreement has been duly executed and delivered by such party and, with due authorization, execution and delivery by the other party, constitutes a legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
(c) No Conflict. Such party’s execution, delivery and performance of this Agreement do not: (i) violate, conflict with or result in the breach of any provision of the charter or by-laws (or similar organizational documents) of such party; (ii) conflict with or violate any law or governmental order applicable to such party or any of its assets, properties or businesses; or (iii) conflict with, result in any breach of, constitute a default (or event which with the giving of notice or lapse of time, or both, would become a default) under, require any consent under, or give to others any rights of termination, amendment, acceleration, suspension, revocation or cancellation of any contract, agreement, lease, sublease, license, permit, franchise or other instrument or arrangement to which it is a party.
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ARTICLE 5.
TERM AND TERMINATION
5.1. Term. This Agreement shall expire (a) upon expiration or termination of the Advisory Agreement; (b) if the Adviser ceases to serve as investment adviser to Corporation; (c) by Adviser or Corporation upon sixty (60) days’ written notice to the other party, or (d) by Adviser at any time in the event Corporation assigns or attempts to assign or sublicense this Agreement or any of Corporation’s rights or duties hereunder without the prior written consent of Adviser.
5.2. Upon Termination. Upon expiration or termination of this Agreement, all rights granted to Corporation under this Agreement with respect to the Licensed Xxxx shall cease, and Corporation shall immediately discontinue all use of the Licensed Xxxx. Corporation shall immediately change its corporate name by deleting the term “PENNANT.” For twenty-four (24) months following termination of this Agreement, Corporation shall specify on all public-facing materials in a prominent place and in prominent typeface that Corporation is no longer operating under the Licensed Xxxx and is no longer associated with Licensor.
ARTICLE 6.
MISCELLANEOUS
6.1. Assignment. Corporation will not sublicense, assign, pledge, grant or otherwise encumber or transfer to any third party all or any part of its rights or duties under this Agreement, in whole or in part, without the prior written consent from Adviser, which consent Adviser may grant or withhold in its sole and absolute discretion. Any purported transfer without such consent shall be void ab initio.
6.2. Independent Contractor. Except as expressly provided or authorized in the Advisory Agreement, neither party shall have, or shall represent that it has, any power, right or authority to bind the other party to any obligation or liability, or to assume or create any obligation or liability on behalf of the other party.
6.3. Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service (with signature required), by facsimile, or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the following addresses:
| If to Adviser: | If to Corporation: | |
| Pennant Investment Advisers, LLC 000 Xxxx Xxxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 Tel. No.: (000) 000-0000 Fax No.: (000) 000-0000 Attn: Chief Compliance Officer |
Pennant Investment Corporation 000 Xxxx Xxxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 Tel. No.: (000) 000-0000 Fax No.: (000) 000-0000 Attn: Chief Compliance Officer | |
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6.4. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York . The parties unconditionally and irrevocably consent to the exclusive jurisdiction of the courts located in the State of New York and waive any objection with respect thereto, for the purpose of any action, suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
6.5. Amendment. This Agreement may not be amended or modified except by an instrument in writing signed by each party hereto.
6.6. No Waiver. The failure of either party to enforce at any time for any period the provisions of or any rights deriving from this Agreement shall not be construed to be a waiver of such provisions or rights or the right of such party thereafter to enforce such provisions, and no waiver shall be binding unless executed in writing by all parties hereto.
6.7. Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect 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 determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto 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 are consummated as originally contemplated to the greatest extent possible.
6.8. Headings. The descriptive headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.
6.9. Counterparts. This Agreement may be executed in one or more counterparts, each of which when executed shall be deemed to be an original instrument and all of which taken together shall constitute one and the same agreement.
6.10. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, between the parties with respect to such subject matter.
6.11. Third party Beneficiaries. Nothing in this Agreement, either express or implied, is intended to or shall confer upon any third party any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
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IN WITNESS WHEREOF, each party has caused this Agreement to be executed as of the Effective Date by its duly authorized officer.
| ADVISER: | ||
| PENNANT INVESTMENT ADVISERS, LLC | ||
| By: | /s/ Xxxxxx X. Xxxx | |
| Name: Xxxxxx X. Xxxx | ||
| Title: Manager | ||
| CORPORATION: | ||
| PENNANT INVESTMENT CORPORATION | ||
| By: | /s/ Xxxxxx X. Xxxx | |
| Name: Xxxxxx X. Xxxx | ||
| Title: Chief Executive Officer | ||
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