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 ”).
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:
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.”
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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