Exhibit 10.27.4
LICENSE AGREEMENT
LICENSE AGREEMENT, dated as of October 3, 2002 among ISKO
DOKUMA ISLETMELERI SANAYI VE TICARET A.S. ("Isko"), a corporation organized
under the laws of Turkey, CONE XXXXX CORPORATION ("Cone"), a corporation
organized under the laws of the State of North Carolina, United States of
America, and ISKONE DENIM PAZARLAMA A.S. (the "Licensee"), a corporation
organized under the laws of Turkey.
RECITALS
A. Isko and Cone have established a joint venture to sell
denim fabrics to Levi Xxxxxxx Europe or its 100% owned subsidiaries ("LSE") for
Levi's(R) 501(R) jeans, such fabrics to be marketed to LSE by Cone and produced
by Isko upon orders allocated by Cone and accepted by Isko (the "Project").
B. The Licensee has been formed and organized by Isko and Cone
for the purpose of carrying out the Project, and Isko and Cone own 49% and 51%,
of the capital stock of the Licensee, respectively.
C. Isko and Cone have entered into a Joint Venture Agreement,
dated as of June 17, 2002 (as the same may from time to time be amended or
extended, the "Joint Venture Agreement"), between Isko and Cone, setting forth
their agreement as to the management of the Licensee, transfers of stock of the
Licensee and certain other maters relating to the Licensee.
D. Isko, directly or indirectly, owns the trade name "ISKO"
(the "Isko Name") and ______ (the "Isko Logo", and together with the Isko Name,
the "Isko Marks").
X. Xxxx, directly or indirectly, owns the trade name "CONE"
(the "Cone Name") and the globe logo (the "Cone Logo", and together with the
Cone Name, the "Cone Marks").
F. Each of Isko and Cone desires to license to the Licensee
the Isko Marks and the Cone Marks, respectively, for use on the denim fabrics to
be sold to LSE (the "Products"), and the Licensee desires to accept such
licenses, all upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used in this
Agreement without definition shall have the respective meanings given in the
Joint Venture Agreement.
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Section 2. Grant. Subject to the terms and conditions of this
agreement, (i) Isko grants to the Licensee a non-exclusive, non-assignable
right, for the term of this Agreement, to use the Isko Logo and the Isko Name
solely for use as composite "ISKONE" and solely in connection with the Project,
and (ii) Cone grants to the Licensee a non-exclusive, non-assignable right, for
the term of this Agreement, to use the Cone Logo and the Cone Name solely for
use as composite "ISKONE" and solely in connection with the Project.
Section 3. Restriction, Ownership of the Marks. Except as
otherwise expressly provided herein, the Licensee shall not grant, assign,
convey or transfer any of its rights or obligations hereunder in any
circumstances, and any purported sublicense, assignment or other transfer shall
be void. The Licensee acknowledges and agrees that the Isko Marks and the Cone
Marks, and all variations and deviations thereof, are owned exclusively by Isko
and Cone, respectively, and remain their respective exclusive property. The
Licensee shall acquire no right, title or interest in any Xxxx Xxxx or in any
Xxxx Xxxx, other than the specific licenses to use the Isko Marks and the Cone
Marks in the manner expressly permitted by this Agreement.
Section 4. Conditions. The specific licenses permitted by this
Agreement are granted upon the following conditions, and the Licensee's failure
to observe any of the following conditions shall be a breach of this Agreement:
(i) All uses of the Isko Marks and the Cone Marks shall
faithfully reproduce their respective designs and appearances, as
modified by Isko or Cone, as the case may be, from time to time in its
sole discretion. (Each of Isko and Cone agrees to give the Licensee 90
days prior written notice of any such modification.)
(ii) All uses of the Isko Marks and the Cone Marks shall
include, wherever practicable, any notice that Isko or Cone deems
advisable or as required by applicable law.
(iii) Except as expressly herein provided or agreed upon by
the parties, the Isko Marks and the Cone Marks shall not be used as
part of or in juxtaposition or conjunction with any other names or
marks and the parties shall not use identical or confusingly similar
trademarks, service marks, trade names and designs.
(iv) All Products and other material bearing any Xxxx Xxxx or
Xxxx Xxxx shall be in strict conformity with the specifications of Isko
and Cone, respectively, as modified by Isko or Cone, as the case may
be, from time to time in its sole discretion. (Each of Isko and Cone
agrees to give the Licensee 90 days prior written notice of any change
in such specifications.)
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Section 5. Quality Control. (a) In order to assure that all
Products and the Licensee's use of the licenses granted by this Agreement meet
the specifications and other applicable requirements of Cone, Cone shall have
the right, on reasonable notice, to visit and inspect the facilities of Isko and
Isko's inventories of JV Products and of ingredients and materials. Isko further
agrees to provide, at its own expense, such reasonable samples of JV Products,
ingredients and materials as Cone may require from time to time for purposes of
inspection and testing.
(b) If Cone determines, after such tests or inspections, that
any JV Product, material or ingredient does not meet the specifications or
applicable requirements established from time to time by Cone, Cone shall give
Isko written notice describing the deficiencies with reasonable particularity.
If Isko fails to correct all such deficiencies to Cone's reasonable satisfaction
within 15 days after notice is given, Cone may, in its discretion, terminate
this Agreement.
Section 6. Infringements (a) If any action or proceeding is
commenced alleging that the Licensee's use of the Isko Marks or the Cone Marks
pursuant to the terms of this Agreement infringe the proprietary rights of any
Person, the party served shall give the other parties immediate verbal notice
thereof, followed by written notice, stating full particulars, within 15 days
after service of the citation or summons. Each of Isko and Cone shall be
obligated to defend the Licensee against such allegations relating to the Isko
Marks and the Cone Marks, respectively, and shall hold the Licensee harmless
from and against all liability for such infringements.
(b) The Licensee shall notify Isko and Cone of any
infringement, limitation or other use of the Isko Marks and the Cone Marks by
any Person which comes to the Licensee's attention. Each of Isko and Cone shall
have the right to decide whether or not to commence any such action or
proceeding concerning such infringement relating to the Isko Marks and the Cone
Marks, respectively. If Isko or Cone elects to commence any action or
proceeding, the Licensee shall provide whatever cooperation and assistance Isko
or Cone, as the case may be, may reasonably require in its investigation and
prosecution.
Section 7. Termination. (a) This Agreement may be terminated
(i) at any time by mutual written agreement of the parties, (ii) in the event
the Joint Venture Agreement is terminated pursuant to the terms thereof, upon
notice by either Isko or Cone to the other parties, (iii) at any time pursuant
to Section 5(b), (iv) in the event Isko, together with its Permitted
Transferees, owns less than 49% of outstanding JV Stock, and upon notice by Isko
to Cone and the Licensee of Isko's desire to terminate this Agreement, or (v) in
the event Cone, together with its Permitted Transferees, owns less than 51% of
outstanding JV Stock, and upon notice by Cone to Isko and the Licensee of Cone's
desire to terminate this Agreement.
(b) Upon any termination of this Agreement in whole or in
part, the parties shall (i) remove from their premises, within a reasonable
period, all signs bearing the others', and discontinue all use of such or any
identical or confusingly similar
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trademarks, service marks, trade names or designs, and (ii) return or destroy,
as Isko or Cone may instruct, all products, materials, signs and other tangible
things of every kind that bear the Isko Marks or the Cone Marks, as the case may
be.
(c) The provisions of Section 8 (b) shall survive any
termination of this Agreement.
Section 8. Governing Law; Arbitration. (a) This Agreement
shall be governed by and construed in accordance with the laws of Turkey,
without giving effect to the conflict of law rules thereof.
(b) Any and all disputes, controversies and claims arising out
of, involving, or relating to the Agreement shall be referred to, settled and
finally resolved exclusively by arbitration under the Rules of Conciliation and
Arbitration of the International Chamber of Commerce by three arbitrators
appointed in accordance with such rules. Cone and Isko shall each appoint one
arbitrator and a third arbitrator will be appointed by the two arbitrators
appointed by the parties. The place of the arbitration shall be Zurich,
Switzerland. The language to be used in the arbitral proceedings shall be
English.
Section 9. Notices. All notices, consents, requests,
instructions, approvals and other communications provided for herein shall be in
writing and shall be deemed validly given upon personal delivery of one day
after being sent by telecopy or overnight courier service, (i) if to Isko at:
Isko Dokuma Isletmeleri Sanayi ve Ticaret A.S., Organize Xxxxxx Xxxxxxx, 0.
Cadde 16425, Inegol/BURSA, telecopy: x00-000-000-0000, with copy to Cone, (ii)
if to Cone at: c/o Cone Xxxxx Corporation 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxxx,
Xxxxx Xxxxxxxx 00000, attention: General Counsel, telecopy: 000-000-0000, with
copy to Isko and (iii) if to the Licensee at: Organize Xxxxxx Xxxxxxx, 0. Cadde
16425, Inegol/BURSA, telecopy: x00-000-000-0000, with copies to Cone and Isko;
or at such other address or the telecopy number as Isko, Cone or the Licensee
may designate by notice to the other parties.
Section 10. Miscellaneous. (a) Except as otherwise
specifically provided in this Agreement, each party hereto shall pay all its own
costs and expenses incident to this Agreement and the transactions contemplated
hereby, including legal and accounting fees and disbursements.
(b) If any provision of this Agreement is held to be
unenforceable for any reason, it shall be adjusted rather than voided, if
possible, in order to achieve the intent of the parties to this Agreement to the
extent possible. In any event, the invalidity or unenforceability of any
provision of this Agreement in any jurisdiction shall not affect the validity or
enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of this Agreement, including that provision, in any
other jurisdiction.
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(c) Nothing in this Agreement will be construed as giving any
Person, other than the parties hereto and their successors and permitted
assigns, any right, remedy or claim under or in respect of this Agreement or any
provision hereof.
(d) This Agreement has been concluded in the English language
and in the event of any inconsistency between the original English version and
any translation, such English version shall govern.
(e) Neither this Agreement nor any term hereof may be amended,
changed, waived, discharged or terminated orally, but only by an instrument in
writing, signed by the party against which enforcement or such amendment,
change, waiver, discharge or termination is sought. This Agreement shall be
binding upon the respective successors and permitted assigns of the parties
hereto.
(f) This Agreement and the other documents delivered pursuant
hereto constitute the entire agreement of the parties relating to the subject
matter hereof and supersede any and all prior agreements, arrangements and
understandings relating thereto.
(g) The section headings of this Agreement are for convenience
of reference only and are not to be considered in construing this Agreement.
(h) This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute on and the same instrument.
(i) Neither this Agreement or any transaction contemplated
hereby shall create the relationship of partners, joint venturers or principal
and agent among the parties hereto, except as expressly provided herein or
therein. None of the parties hereto have any authority to represent or bind the
other parties in any manner whatsoever, except as agreed in writing by the
parties.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
ISKO DOKUMA ISLETMELERI SANAYI
VE TICARET A.S.
By /s/Zekeriye Konukoglu
Name: Zekeriye Konukoglu
Title:
CONE XXXXX CORPORATION
By /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
ISKONE DENIM PAZARLAMA A.S.
By /s/ Oguzhan Gurdogan
Name: Oguzhan Gurdogan
Title: Dept Vice President
By /s/ Xxxxxxx Xxxxx Erpamukeu
Name: Xxxxxxx Xxxxx Erpamukeu
Title:
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