EX-10.3






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.



-2-









 





     “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



-3-









 




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 Gleacher Name and Mark in their respective trade
names and businesses. The Buying Parties will not contest the use of the Gleacher Name and Marks
by the Gleacher Entities in connection with the Investment Management Business. The Buying Parties
further acknowledge and agree that use of the Gleacher Name and Marks by the Gleacher Entities
shall not create in the Buying Parties’ favor any right, title, or interest in or to the Gleacher
Name and Marks, and that all uses of the Gleacher Name and Marks by the Gleacher Entities shall
inure solely to the benefit of the Gleacher Entities.



     2.4 Gleacher Shacklock. The Buying Parties acknowledge that Gleacher Shacklock LLP,
its subsidiaries, associates and Affiliates (collectively “Gleacher Shacklock”) have the
right to use and are using the Gleacher Shacklock name under the terms of the Gleacher Shacklock
Agreement, a full and correct copy of which has been provided by the Gleacher Entities to the
Buying Parties. The Gleacher Parties make no representation, warranty or covenant under this
Agreement with respect to the use by Gleacher Shacklock of the Gleacher Name or Mark.



     2.5 Gleacher Mezzanine Fund II. The Buying Parties acknowledge that Gleacher
Mezzanine Fund II, L.P., its subsidiaries and controlled Affiliates (collectively “Gleacher
Mezzanine Fund II”) have the right to use and are using the Gleacher Name and Marks and any
subsequent related mezzanine fund may likewise do so if Mr. Gleacher is an investor therein and



-4-









 




is authorized by Mr. Gleacher to do so. The Gleacher Parties make no representation, warranty
or covenant under this Agreement with respect to the use by Gleacher Mezzanine Fund II of the
Gleacher Name or Mark.




     2.6 For the avoidance of doubt, nothing herein shall place any limitations on the use of the
Gleacher Name and Marks by Mr. Gleacher’s children, grandchildren or other familial relations in
any of their business or other pursuits, and the Buying Parties shall not contest, or permit any
affiliate, successor or assignee to contest, any such use (including as the name of a business,
provided that the Buying Parties’ commitment hereunder shall not apply to the extent that any of
such relations is using the Gleacher Name as the name of an Investment Banking Business during the
five (5) year period following the Effective Time) so long as Mr. Gleacher is not involved in
conducting, managing or overseeing such business (provided that Mr. Gleacher may be involved in any
asset management business operated or engaged in by his son, Jay Gleacher (the “Protected
Business”)).



ARTICLE III




COVENANTS




     3.1 The Gleacher Parties. Each Gleacher Party will not at any time do or cause to be
done any act or thing contesting or in any way knowingly impairing the ownership by the Buying
Parties of the Gleacher Name and Mark within the Buying Parties Field of Use, including: (i)
objecting to the use by the Buying Parties or any subsidiary or controlled Affiliate of Parent of
the Gleacher Name or Mark in the Buying Parties Field of Use in accordance with the terms of this
Agreement; (ii) opposing an application to register or seeking to cancel a registration for a
trademark containing the Gleacher Name or Mark in the Buying Parties Field of Use; or (iii)
representing that it has ownership of the Gleacher Name and Mark in the Buying Parties Field of
Use. For the avoidance of doubt, the preceding sentence shall apply to a Name or Mark containing
the words Broadpoint Gleacher.



     3.2 The Gleacher Entities. In addition to its obligations under Section 3.1,
each Gleacher Entity shall: (i) use the Gleacher Name and Mark only in connection with the
Investment Management Business; (ii) not license or otherwise authorize any third party to use the
word GLEACHER for any purpose except in connection with the conduct of the Investment Management
Business; and (iii) not file an application to register its Gleacher Entity Name or any other
Gleacher Name or Mark as a trademark or service mark. Although Mr. Gleacher may authorize other
Persons to use the Gleacher Name and Marks in connection with Investment Management Business, he
will not do so if he is not an investor or otherwise involved in such Investment Management
Business (provided that any Person permitted to use the Gleacher Name and Mark shall continue to be
able to use the Gleacher Name and Mark notwithstanding the withdrawal of Mr. Gleacher from any such
investment or involvement).



     3.3 Mr. Gleacher. In addition to his obligations under Section 3.1, Mr.
Gleacher shall not: (i) use, or authorize any third party to use the Gleacher Name or Mark in the
Buying Parties Field of Use, provided nothing herein shall prevent Mr. Gleacher from using his full
personal name on business cards, resumes or similar materials to identify his personal activities
or



-5-









 




participating in the Protected Business; or (ii) apply to register the Gleacher Name or Mark
for any goods or services in the Buying Parties Field of Use.




     3.4 The Buying Parties. Each Buying Party will not at any time do or cause to be done
any act or thing contesting or in any way knowingly impairing the ownership by the Gleacher
Entities or Gleacher Mezzanine Fund II of the Gleacher Name and Mark outside the Buying Parties
Field of Use, including: (i) objecting to the use by a Gleacher Entity or Gleacher Fund II of the
Gleacher Name and Mark in connection with the Investment Management Business in accordance with the
terms of this Agreement; or (ii) representing that it has ownership of the Gleacher Name and Mark
outside the Buying Parties Field of Use. Each Buying Party will not at any time do or cause to be
done any act or thing contesting or in any way impairing or tending to impair: (x) the use by Mr.
Gleacher, or by a third party authorized by Mr. Gleacher of the Gleacher Name and Mark for business
purposes outside the Buying Parties Field of Use; or (y) the registration by Mr. Gleacher or a
third party authorized by Mr. Gleacher of a Name or Mark containing the name GLEACHER for any
entity engaged in business outside the Buying Parties Field of Use or as a trademark or service
mark for any goods or services outside the Buying Parties Field of Use.



     3.5 Further Assurances. The Parties will execute such additional documents and take
such other actions as may be necessary or desirable to record or memorialize the Parties applicable
rights in the Gleacher Name or Mark.



ARTICLE IV




REPRESENTATIONS AND WARRANTIES




     4.1 By The Buying Parties And The Gleacher Entities. Each of the Buying Parties and
the Gleacher Entities hereby represent and warrant to the other Parties as follows:



     (a) The Party is duly organized, validly existing and in good standing under the laws of its
state of organization, and has authority to conduct business and is in good standing in all other
states where the nature and extent of the business transacted by it or the ownership of its assets
makes such authorization necessary.



     (b) The execution, delivery and performance by a Party of this Agreement: (i) are within the
Party’s corporate, limited liability company or partnership powers, as the case may be; (ii) have
been duly authorized by all necessary corporate, limited liability company or partnership actions,
as applicable; (iii) do not contravene the Party’s certificate of incorporation or other
organizational documents; and (iv) do not contravene nor result in a default under, nor result in
the creation of a lien under, any law or any contractual restriction binding on or affecting the
Party.



     (c) This Agreement constitutes the valid, binding and legal obligation of the Party
enforceable in accordance with its terms. No consent or approval of any holder of any indebtedness
or obligation of the Party, and no consent, permission, authorization, order or



-6-









 




license of any governmental authority, is necessary in connection with the execution, delivery
and performance of this Agreement.




     4.2 By Mr. Gleacher. Mr. Gleacher hereby represents and warrants to each of the other
Parties as follows:



     (a) The execution, delivery and performance by Mr. Gleacher of this Agreement do not
contravene or result in a default under, or result in the creation of a lien under, any law or any
contractual restriction binding on or affecting Mr. Gleacher.



     (b) This Agreement constitutes the valid, binding and legal obligation of Mr. Gleacher
enforceable in accordance with its terms. No consent or approval of any holder of any indebtedness
or obligation of Mr. Gleacher, and no consent, permission, authorization, order or license of any
governmental authority, is necessary in connection with the execution, delivery and performance of
this Agreement.



     (c) Except for Gleacher Partners, Inc, Gleacher Holdings, LLC, Gleacher Partners, LLC,
Gleacher Shacklock, Gleacher Mezzanine Fund II, Gleacher CBO 2000-1 Corp., Gleacher CBO 2000-1 Ltd
and the Passive Investment Vehicles, the Gleacher Parties are the only entities presently
authorized by Mr. Gleacher to use the Gleacher Name or Mark. For the avoidance of doubt, nothing
herein shall require Gleacher Mezzanine Fund II, Gleacher CBO 2000-1 Corp., Gleacher CBO 2000-1 Ltd
or the Passive Investment Vehicles to modify its name.



ARTICLE V




NOTICES




     All notices and other communications required or permitted hereunder will be in writing and,
unless otherwise provided in this Agreement, will be deemed to have been duly given when delivered
in person or sent via facsimile (with confirmation), or one (1) Business Day after having been
dispatched by a nationally recognized overnight courier service to the appropriate party at the
address specified below:




	 	(a)	 	If to the Buying Parties, to:
	 
	 	 	 	Broadpoint Securities Group, Inc.

12 East 49th Street, 31st Floor

New York, New York 10117

Attention: General Counsel

Fax: 212-273-7320




-7-









 






	 	 	 	with a copy to:
	 
	 	 	 	Sidley Austin llp

787 Seventh Avenue

New York, New York 10019

Attention: Duncan N. Darrow

               Gabriel Saltarelli

Fax: 212-839-5599
	 
	 	(b)	 	If to the Gleacher Entities or Mr. Gleacher to:
	 
	 	 	 	Gleacher Partners Inc.

660 Madison Avenue

New York, New York 10065

Attention: Eric Gleacher
Fax: 212-752-2711
	 
	 	 	 	with a copy to:
	 
	 	 	 	Wachtell, Lipton, Rosen & Katz

51 West 52nd Street

New York, New York 10019

Attention: Edward D. Herlihy

               Nicholas G. Demmo

Fax: 212-403-2000




or to such other address or addresses or facsimile number as any such party may from time to time
designate as to itself by like notice.




ARTICLE VI




MISCELLANEOUS




     6.1 Severability. If any term or provision of this Agreement or any application
thereof shall be invalid or unenforceable: (i) the remainder of this Agreement and any other
application of such term or provision shall not be affected thereby; and (ii) this Agreement shall
be deemed amended by modifying such provision to the extent necessary to make it valid while
preserving its intent or, if such a modification is not possible, substituting another valid
provision so as to materially effectuate the parties’ intent.



     6.2 Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.



     6.3 Entire Agreement. This Agreement contains the entire agreement between the
Parties with respect to the subject matter hereof.



-8-









 





     6.4 Governing Law. This Agreement shall be construed with respect to the substantive
laws of the State of New York, but otherwise without regard to its conflicts of law rules.



     6.5 No Waiver. No waiver of any condition or covenant herein contained, or of any
breach of any such condition or covenant, shall be held or taken to be a waiver of any subsequent
breach of such covenant or condition, or to permit or excuse its continuance or any future breach
thereof or of any condition or covenant herein construed as a waiver of such default, or the right
to exercise any other remedy granted herein on account of such existing default. To the extent
permitted by law, no waiver of any breach shall affect or alter this Agreement, which shall
continue in full force and effect with respect to any other then existing or subsequent breach.



     6.6 Modifications in Writing. This Agreement may only be modified by a writing signed
by all of the Parties.



     6.7 Effect of Delay or Omission. No delay or omission by a Party to exercise any
right or power accruing upon any noncompliance or default by another Party with respect to any of
the terms hereof shall impair any such right or power or be construed to be a waiver thereof.



     6.8 Third Party Beneficiaries. Nothing in this Agreement shall be deemed to create
any right in any Person not a Party hereto, and this Agreement shall not be construed in any
respect to be a contract in whole or in part for the benefit of any third Person.



     6.9 Execution in Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which together will constitute
one and the same agreement.



[remainder of page intentionally left blank]




-9-









 







          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date above first written.




	 	 	 	 	 
	 	 	BROADPOINT SECURITIES GROUP, INC.
	 
	 	 	 	 
	 

	 	By:	 	/s/ Lee Fensterstock
	 

	 	 	 	 
	 

	 	Name:
	 	Lee Fensterstock
	 

	 	Title:
	 	Chairman and Chief Executive Officer
	 
	 	 	 	 
	 	 	MAGNOLIA ADVISORY LLC
	 
	 	 	 	 
	 	 	By: Broadpoint Securities Group, Inc.

Its Managing Member
	 
	 	 	 	 
	 

	 	By:	 	/s/ Lee Fensterstock 
	 

	 	 	 	 
	 

	 	Name:
	 	Lee Fensterstock
	 

	 	Title:
	 	Chairman and Chief Executive Officer






Signature Page to Trade Name and Trademark Agreement






 









 









          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date above first written.




	 	 	 	 	 
	 	 	GLEACHER FUND ADVISORS LP
	 
	 	 	 	 
	 

	 	By:	 	/s/ Jeffrey H. Tepper 
	 

	 	 	 	 
	 

	 	Name:	 	Jeffrey H. Tepper
	 

	 	Title:	 	President






Signature Page to Trade Name and Trademark Agreement




 









 





          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date above first written.




	 	 	 	 	 
	 	 	GLEACHER ADVISORS LLC
	 
	 	 	 	 
	 

	 	By:	 	/s/ Jeffrey H. Tepper
	 

	 	 	 	 
	 

	 	Name:	 	Jeffrey H. Tepper
	 

	 	Title:	 	President






Signature Page to Trade Name and Trademark Agreement




 









 





          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date above first written.




	 	 	 	 	 
	 	 	GLEACHER MEZZANINE FUND I, L.P.
	 
	 	 	 	 
	 

	 	By:	 	/s/ Eric J. Gleacher
	 

	 	 	 	 
	 

	 	Name:	 	Eric J. Gleacher
	 

	 	Title:	 	Managing Member of Gleacher
Mezzanine LLC,
General Partner






Signature Page to Trade Name and Trademark Agreement




 









 





          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date above first written.




	 	 	 	 	 
	 	 	GLEACHER MEZZANINE FUND P, L.P.
	 
	 	 	 	 
	 

	 	By:	 	/s/ Eric J. Gleacher 
	 

	 	 	 	 
	 

	 	Name:	 	Eric J. Gleacher
	 

	 	Title:	 	Managing Member of Gleacher
Mezzanine LLC,
General Partner






Signature Page to Trade Name and Trademark Agreement




 









 





          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date above first written.




	 	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 

	 	 	 	/s/ Eric Gleacher
	 

	 	 	 	 
	 

	 	 	 	Eric Gleacher






Signature Page to Trade Name and Trademark Agreement