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TRADE NAME AND TRADEMARK AGREEMENT

Trademark License Agreement

TRADE NAME AND TRADEMARK AGREEMENT | Document Parties: BROADPOINT GLEACHER SECURITIES GROUP, INC. | Broadpoint Securities Group, Inc | Gleacher Advisors LLC | Gleacher Fund Advisors LP | Gleacher Mezzanine Fund I, LP | Gleacher Mezzanine Fund P, LP | Gleacher Mezzanine LLC | Magnolia Advisory LLC | Parent, Merger Sub, Gleacher Partners, Inc You are currently viewing:
This Trademark License Agreement involves

BROADPOINT GLEACHER SECURITIES GROUP, INC. | Broadpoint Securities Group, Inc | Gleacher Advisors LLC | Gleacher Fund Advisors LP | Gleacher Mezzanine Fund I, LP | Gleacher Mezzanine Fund P, LP | Gleacher Mezzanine LLC | Magnolia Advisory LLC | Parent, Merger Sub, Gleacher Partners, Inc

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Title: TRADE NAME AND TRADEMARK AGREEMENT
Date: 6/8/2009
Industry: Investment Services     Sector: Financial

TRADE NAME AND TRADEMARK AGREEMENT, Parties: broadpoint gleacher securities group  inc. , broadpoint securities group  inc , gleacher advisors llc , gleacher fund advisors lp , gleacher mezzanine fund i  lp , gleacher mezzanine fund p  lp , gleacher mezzanine llc , magnolia advisory llc , parent  merger sub  gleacher partners  inc
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Exhibit 10.3

EXECUTION VERSION

TRADE NAME AND TRADEMARK AGREEMENT

This TRADE NAME AND TRADEMARK AGREEMENT (this “ Agreement ”), dated and effective as of June 5, 2009, is entered into by and between Broadpoint Securities Group, Inc., a New York corporation (“ Parent ”); Magnolia Advisory LLC, a Delaware limited liability company (“ Merger Sub ” and together with Parent the “ Buying Parties ”); Mr. Eric Gleacher, an individual (“ Mr. Gleacher ”); Gleacher Fund Advisors LP, a Delaware limited partnership (“ Gleacher Fund Advisors ”); Gleacher Advisors LLC, a Delaware limited liability company (“ Gleacher Advisors ”); Gleacher Mezzanine Fund I, L.P., a Delaware limited partnership (“ Gleacher Mezzanine Fund I” ); and Gleacher Mezzanine Fund P, L.P., a Delaware limited partnership (“ Gleacher Mezzanine Fund P ”, together with Gleacher Fund Advisors, Gleacher Advisors, Gleacher Mezzanine Fund I and Gleacher Mezzanine Fund P being collectively referred to as the “ Gleacher Entities ” and together with Mr. Gleacher the “ Gleacher Parties ”).

RECITALS

      WHEREAS , Parent, Merger Sub, Gleacher Partners, Inc. and Mr. Gleacher, a shareholder of Gleacher Partners, Inc., are parties to that certain Agreement and Plan of Merger entered into as of March 2, 2009 (the “ Merger Agreement ”), as amended, under the terms of which (a) Augusta Advisory Inc. is to be merged into Gleacher Partners, Inc., with Gleacher Partners Inc. as the surviving company, and (b) Gleacher Partners, Inc. is to be merged into Merger Sub, with Merger Sub as the surviving company;

      WHEREAS , the assets of Gleacher Partners, Inc. include rights in the trade name and trademark Gleacher, either alone or in combination with the words “Partners” or “Holdings”, in connection with the investment banking and advisory business of Gleacher Partners, Inc. and its subsidiaries;

      WHEREAS , following the closing of the transactions under the Merger Agreement, it is contemplated that Parent, Merger Sub and one or more subsidiaries or controlled Affiliates of Parent will use a trade name or trademark containing the word GLEACHER, including Broadpoint Gleacher in combination with each other, in connection with investment banking, securities brokerage and related businesses;

      WHEREAS , Mr. Gleacher has previously authorized the Gleacher Entities to use the Gleacher name in their respective trade names and to use those trade names in connection with their respective businesses; and

      WHEREAS , following the Closing the parties wish to continue using their respective names in harmony throughout the world, with each giving respect to the rights and privileges of the other in accordance with the transactions contemplated by the Merger Agreement.

      NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound, the parties hereto agree as follows:

 


 

ARTICLE I

DEFINITIONS

     1.1 Definitions . Capitalized terms used herein and not otherwise defined shall have the meaning ascribed to such terms in the Merger Agreement. The following definitions shall apply to this Agreement:

     “ Affiliate ” shall mean another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such first Person. The term “control” (including its correlative meanings “controlled by” and “under common control with”), as used in the immediately preceding sentence, shall mean possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of the controlled Person (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise).

     “ Buying Parties ” shall mean the entities identified as such in the introductory paragraph of this Agreement.

     “ Buying Parties Field of Use ” shall mean any business activity in the financial services industry other than the Investment Management Business.

     “ Effective Date ” shall be the date indicated in the introductory paragraph of this Agreement.

     “ Investment Banking Business ” shall mean the investment banking business of Gleacher Partners, Inc. as conducted immediately prior to the Effective Date, consisting of mergers and acquisitions and restructuring transaction services and corporate strategic advisory services. For the avoidance of doubt, the Investment Banking Business excludes the Investment Management Business.

     “ Investment Management Business ” shall mean the investment management businesses of certain of the Gleacher Entities, consisting of: (i) the active management for investors of portfolios of hedge funds (such a portfolio sometimes referred to a “fund of hedge funds”), substantially as conducted immediately prior to the Effective Date by Gleacher Fund Advisors; and (ii) the active management of mezzanine funds (including Gleacher Mezzanine Fund I, Gleacher Mezzanine Fund II and Gleacher Mezzanine Fund P) providing capital in the form of subordinated debt, preferred stock and non-control common equity for buyouts and recapitalizations of middle-market companies, substantially as conducted immediately prior to the Effective Date by JGKP Management, LLC, Mr. Gleacher or other entities controlled by Mr. Gleacher. For the avoidance of doubt, the Investment Management Business excludes the Investment Banking Business.

     “ Merger Agreement ” shall have the meaning given that term in the first Recital.

     “ Gleacher Entities ” shall mean the entities identified as such in the introductory paragraph of this Agreement.

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     “ Gleacher Entity Names ” shall mean the legal names of the Gleacher Entities identified in the introductory paragraph and signature pages of this Agreement.

     “ Gleacher Mezzanine Fund I ” shall mean the entity identified as such in the introductory paragraph of this Agreement.

     “ Gleacher Mezzanine Fund II ” shall have the meaning given that term in Section 2.5 .

     “ Gleacher Mezzanine Fund P ” shall mean the entity identified as such in the introductory paragraph of this Agreement.

     “ Gleacher Name and Mark ” shall mean the trade name and trademark GLEACHER, either alone or in combination with the other words including “Partners” or “Holdings”.

     “ Gleacher Parties ” shall mean the entities and individual identified as such in the introductory paragraph of this Agreement.

     “ Gleacher Shacklock ” shall have the meaning given that term in Section 2.4 .

     “ Gleacher Shacklock Agreement ” shall mean the Agreement dated as of June 17, 2005, by and among Gleacher Partners Inc., Gleacher Holdings LLC, Gleacher Partners LLC, Gleacher Fund Advisors, Gleacher Advisors, Gleacher Shacklock LLP, Gleacher Shacklock UK Limited, Mr. Gleacher and Timothy A. Shacklock.

     “ Mr. Gleacher ” shall mean the individual identified in the introductory paragraph of this Agreement.

     “ Name or Mark ” shall mean any trademark, service mark, trade name, logo, domain name or other identifier of source.

     “ Parties ” shall mean collectively the Buying Parties and the Gleacher Parties.

     “ Passive Investment Vehicles ” shall mean collectively the following passive investment vehicles: Gleacher CBO-1 E Note Investors LLC; Gleacher Mezzanine II Investors LLC; Gleacher China LLC; Gleacher/Craven Investors, LLC; Gleacher/Craven Investors, L.P.; Gleacher Intermediate LLC; Gleacher Management LLC; Gleacher/Unext Investors LLC; Gleacher Equity LLC.

     “ Person ” shall mean any individual, sole proprietorship, corporation, general partnership, limited partnership, limited liability company or partnership, joint venture, association, joint stock company, bank, trust, estate, unincorporated organization, any federal, state, county or municipal government (or any agency or political subdivision thereof), endowment fund or any other form of entity.

     1.2 Interpretation . For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (i) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (ii) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance

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with generally accepted accounting principles as at the time applicable; (iii) all references in this Agreement to designated “Articles,” “Sections” and other subdivisions are to the designated Articles, Sections and other subdivisions of this Agreement; (iv) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision; and (v) the term “including” and words of similar import shall be deemed to be followed by the phrase “without limitation.”

ARTICLE II

ACKNOWLEDGEMENTS

     2.1 By Parties . The Parties mutually acknowledge and agree that the use of the Gleacher Name and Mark by the Buying Parties and by the Gleacher Entities, Gleacher Shacklock and Gleacher Mezzanine Fund II in accordance with the terms of this Agreement are separate and distinct so as not to create confusion in the markets for their respective businesses.

     2.2 By Gleacher Parties . The Gleacher Parties acknowledge and agree that the Buying Parties own all right, title and interest in and to the Gleacher Name and Mark in the Investment Banking Business. The Gleacher Parties further acknowledge and agree that use of the Gleacher Name and Mark by the Buying Parties shall not create in the Gleacher Parties’ favor any right, title or interest in or to the Gleacher Name and Mark, and that all uses of the Gleacher Name and Mark by the Buying Parties shall inure solely to the benefit of the Buying Parties. The Gleacher Parties acknowledge and agree that, except as otherwise expressly provided in this Agreement, the Gleacher Parties shall not have any rights in the Gleacher Name and Mark within the Buying Party Field of Use.

     2.3 By Buying Parties . The Buying Parties acknowledge and agree that the Gleacher Entities have used and will continue to use the Gleach


 
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