EXHIBIT 99.2
EXECUTION COPY
TRADEMARK LICENSE AGREEMENT
This TRADEMARK
LICENSE AGREEMENT (the “ Agreement ”) is made
this 15 th 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 “Mark” 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:
| |
1.1. |
|
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.
|
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.
| |
3.1. |
|
Licensee hereby acknowledges
Licensor’s right, title and interest in and to the Mark 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 mark 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 mark 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.
|
Licensee shall
furnish to Licensor, upon Licensor’s reasonable request,
copies of all material on which the Mark(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 Mark(s) as set forth in
Schedule A or as designated by Licensor from time to time and
provided to Licensee.
| |
5.1. |
|
Licensee shall notify Licensor
promptly of any infringement or unauthorized use of the Mark(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 Mark(s) infringes any rights of third
parties. Licensee shall, at the direction of Licensor, promptly
discontinue its use of the Mark(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 MARK(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 MARK(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 n
|
|
