Exhibit 10.27.2
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COMMERCIAL AGREEMENT
among
ISKO DOKUMA ISLETMELERI SANAYI VE TICARET A.S.
CONE ▇▇▇▇▇ CORPORATION
and
ISKONE DENIM PAZARLAMA A.S.
Dated as of October 3, 2002
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TABLE OF CONTENTS
Page
Section 1. Definitions......................................... 1
Section 2. Sale and Distribution of Products................... 2
Section 3. Purchase of Products; Terms and Conditions of Sale.. 3
Section 4. Quantities.......................................... 3
Section 5. Specifications....................................... 3
Section 6. Claims............................................... 4
Section 7. Product Quality and Development...................... 4
Section 8. Trademarks and Trade Names........................... 4
Section 9. Confidentiality; Public Announcements................ 5
Section 10. Other Covenants and Agreements....................... 5
Section 11. Termination.......................................... 6
Section 12. Force Majeure........................................ 6
Section 13. Governing Law; Arbitration........................... 7
Section 14. Notices.............................................. 7
Section 15. Miscellaneous........................................ 7
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COMMERCIAL AGREEMENT
COMMERCIAL 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 ▇▇▇▇▇ CORPORATION ("Cone"), a corporation
organized under the laws of the State of North Carolina, United States of
America, and ISKONE DENIM PAZARLAMA A.S. ("JV"), a corporation organized under
the laws of Turkey.
RECITALS
A. Isko and Cone have established a joint venture to sell
denim fabrics to Levi ▇▇▇▇▇▇▇ 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 based upon orders allocated by Cone and accepted by Isko (the
"Project").
B. Isko and Cone have entered into a Joint Venture Agreement,
dated as of June 17, 2002 (and 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 JV, transfers of stock of JV and certain
other matters related to JV.
C. Isko has agreed to provide support services to JV with
certain administrative services and assistance, all upon the terms and
conditions of an administrative services agreement dated as of the date hereof.
▇. ▇▇▇▇ has agreed to provide Isko and JV with certain
confidential technology, trade secrets, manufacturing and processing methods and
other know-how relating to the production, processing and distribution of denim
fabrics, all upon the terms and conditions set forth herein.
E. In order to induce Cone to provide the foregoing
confidential know-how to Isko and JV and in order to induce Isko and Cone to
carry out the Joint Venture, the parties hereto desire to enter into this
Agreement to set forth their agreement as to the manufacturing and marketing to
LSE by Cone of 501(R) jeans denim fabrics produced by Isko.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants set forth herein, the parties hereto agree as follows:
Section 1. Definitions. (a) Each of the following terms
is defined in the section set forth below opposite such term:
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Cone ....................................Introduction
Confidential Information.................9 (a)
JV.......................................Introduction
Isko.....................................Introduction
Levi ▇▇▇▇▇▇▇ Europe......................Recital A
(b) The following terms, as used herein, have the following
meanings:
"Business Plan" means the initial business plan and each
annual business plan for JV, as set forth in or adopted pursuant to the Joint
Venture Agreement.
"Commercial Operation Date" means the date on which JV
commences commercial sales, as specified in a resolution of the Board of
Directors of JV.
"Joint Venture Agreement" means the joint Venture Agreement,
dated as of June 17 2002, between Isko and Cone, relating to, among other
things, the management of JV and transfers of capital stock of JV, as amended
from time to time.
"JV Products" means the denim fabrics produced by Isko for
Levi's(R) 501(R) jeans and marketed to LSE by Cone, which are sold from time to
time to LSE by JV.
"License Agreement" means the License Agreement, dated as of
the date hereof, among Isko, Cone and JV, as amended from time to time.
"Person" means an individual, corporation, partnership, trust
or other entity, including a government or political subdivision or an agency or
instrumentality thereof.
"Product" means any JV Product.
"US$" means United States Dollars.
(c) When used in this Agreement in connection with the grant
by one party to the other party of the exclusive right to sell and distribute
certain products to certain customers, the term "exclusive" shall mean that the
granting party shall not, and shall cause its employees, agents and
representatives not to, (i) sell such products to such customers or solicit,
directly or indirectly, any such sales, or (ii) grant any similar rights to any
other Person, except in either case as expressly provided herein.
Section 2. Sale and Distribution of Products. Upon the terms
and conditions set forth in this Agreement, (i) Isko hereby grants to JV the
exclusive right to sell denim fabrics produced by Isko to LSE for Levi's(R)
501(R) jeans, and (ii) Isko and JV hereby grant to Cone the exclusive right to
market JV Products. In addition, Isko will not market or sell, directly or
indirectly, denim fabrics to any other part of Levi ▇▇▇▇▇▇▇ & Co. for Levi's(R)
501(R) jeans.
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Section 3. Purchase of Products; Terms and Conditions of Sale.
(a) Upon the terms and conditions hereof, (i) Cone shall market denim fabrics to
LSE, (ii) Isko shall produce such fabrics pursuant to orders allocated by Cone,
and (iii) JV shall purchase such fabrics from Isko and sell and invoice such
fabrics to LSE, under JV's name on normal open terms of sixty (60) days or other
mutually acceptable terms in US$ and will remit payments pursuant to the
Transfer Price Agreement upon receipt of funds from LSE.
(b) (i) The purchase price of denim fabric from Isko to JV
shall be in accordance with the Transfer Price Agreement between the parties of
even date herewith as amended from time to time, and (ii) the invoice price to
LSE shall be as determined from time to time by Cone, and accepted by Isko. All
amounts payable hereunder shall be stated and paid in US$ in accordance with
this Section 3.
Section 4. Quantities. (a) (i) For 2002, the parties will work
together to have denim fabrics produced by Isko approved by Cone as soon as
practicable with a target flow rate of up to 100,000 yards per week. Initially,
Cone will allocate a basic shrink-to-fit style to Isko with a longer-term goal
of Isko also producing specialty-finished styles for Cone to market. Cone and
Isko will target production in 2003 of 200,000 yards per week. Actual production
in 2003 and future years will be dependent on orders by LSE, and (ii) Cone shall
notify Isko no later than ten days following receipt of any purchase order from
LSE to be allocated by Cone to Isko, which has previously been agreed to by Isko
and Cone and said notification shall constitute a binding agreement of Isko to
produce the denim fabric indicated in the purchase order.
(b) No later than 60 days prior to the beginning of each
fiscal quarter, Cone shall deliver to the other parties, in writing, an
estimated non-binding purchase forecast setting forth the anticipated quantities
of denim fabric expected to be purchased during the next fiscal year or quarter
by LSE. Such forecasts shall be supplied for planning assistance only and shall
be subject to revision at any time.
Section 5. Specifications. (a) Under the fabric approval
process, Cone will provide fabric specifications and constructions to Isko. Isko
will then provide an estimated product cost, produce yarns required for the
product, and forward the yarn to Cone for approval. Upon yarn approval, Isko
will produce a fabric sample matching the shade standard produced by Cone within
the established parameters, which will then be forwarded to Cone for approval.
Isko will produce finalized fabric cost upon approval of the sample. Once a
product is approved it will be available for marketing to LSE by Cone.
(b) Isko warrants that all denim fabrics produced by Isko for
sale by JV to LSE shall conform to the customary standards and specifications
applicable with respect to such product from time to time, or otherwise
specified in the purchase order relating to such product and shall benefit from
such other warranties as are set forth in the Terms and Conditions of Sale
applicable thereto.
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(c) Upon receipt of an order for LSE, Isko will produce the
product for sale to LSE by JV. All such fabric shall meet LSE specifications for
physical properties, shade band and defect levels.
(d) Denims produced that do not met LSE specifications will be
Sanforized(R), assigned a new (unrelated) product style number and sold by Isko
to others.
(e) Cone and LSE will certify Isko's laboratories as part of
the approval process.
Section 6. Claims. (a) Isko shall be responsible for LSE
quality claims should JV issue a credit or pay damages. Such claims may be for
either patent or latent fabric defects and/or physical property or shade
problems resulting in garment seconds.
(b) On behalf of JV, Cone will work with LSE to resolve any
claim. If Cone reaches an agreement with LSE as to the validity of any claim and
Isko accepts such agreement (which shall not be unreasonably withheld), JV will
then issue a credit to LSE for the amount of the claim. The claim will be shared
equally between Isko and Cone. Cone shall bear a loss to the extent of its
earned commission, license fee, and marketing contribution plus any other
compensation on the sale. Isko will issue a credit to JV for the goods being
returned and received by Isko.
(c) In situations where the claim is in excess of the sales
price of the fabric, i.e. garment defects, Isko shall indemnify JV for such
losses in excess of the sales price, subject to negotiation between the parties.
(d) Isko shall be responsible for any other liability claims
arising from the manufacture and sale of Isko's products.
Section 7. Product Quality and Development. At the written
request of Isko, Cone shall make available to Isko, as necessary, the services
and assistance of its product development and product testing groups (including
causing employees and agents of Cone in such groups to provide such services and
assistance as long as provision of such does not impede the ordinary course of
business of Cone) for the development and testing of any denim fabrics
manufactured or proposed to be manufactured by Isko for JV in accordance with
LSE specifications. Cone shall not charge Isko for such technical support for
one year from the date hereof. For the following years, Cone agrees to provide
minimal technical support (two visits per year) at no charge. Extensive
technical support (more than two visits) for the following years will be charged
at Cone's payroll plus 30% and travel expenses. Isko shall promptly reimburse
Cone for all such costs and expenses incurred, plus be responsible for any
applicable taxes, duties or other governmental charges deducted, paid or
withheld.
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Section 8. Trademarks and Trade Names. All JV Products shall
be sold or distributed by the parties under a trademark or trademarks owned or
designated by Isko, Cone and JV, respectively. Except as otherwise specifically
provided in the License Agreement, neither Isko nor JV shall use the name "Cone"
or any of Cone's trademarks and trade names, and neither Cone nor JV shall use
the name "Isko" or any of Isko's trademarks and trade names, for the purpose of
advertising, publicizing or promoting the sale or other use of any Product
without the prior written consent of such party. Other than the rights JV may
have to trade names and trademarks of Isko and Cone pursuant to the License
Agreement, no proprietary or other rights with respect to the trademarks, trade
names or brand names of Isko, Cone or JV is conferred, either expressly or by
implication, upon any other party. The use by JV of trademarks and/or trade
names of Isko and Cone shall be subject to the terms and conditions of the
License Agreement.
Section 9. Confidentiality; Public Announcements. (a) None of
Isko, Cone or JV shall use or disclose to any third party (other than their
respective financial advisors, attorneys and other agents and representatives)
any information ("Confidential Information") relating to this Agreement or the
transactions contemplated hereby, except (i) such information as is required to
be disclosed by applicable law or is or becomes generally available to the
public other than through a breach of this Agreement or (ii) for transactions
Isko specifically contemplated by this Agreement. Each of Isko, Cone and JV
shall, and shall cause each of its affiliates to, take such reasonable
precautions as are necessary to prevent use or disclosure of Confidential
Information by or to others.
(b) Each party hereto agrees (except as necessary to perform
the express terms of this Agreement) not to use, copy or disclose to any third
party any trade secrets, designs, plans, inventions, practices, processes,
procedures, manufacturing and processing methods, technologies and know-how
(whether or not patented or patentable) and similar proprietary rights of the
other parties, or any documents obtained upon request from the other parties and
designated confidential, and shall, at such party's expense, return to such
other party all confidential documents, papers and other written material
obtained from such other party relating to the transactions contemplated by this
Agreement.
(c) Except as ordered or required by any applicable law or
competent judicial, governmental or other authority or in accordance with the
requirements of any stock exchange, no Stockholder shall issue any press release
or make any other public statement relating to this Agreement or any of the
transactions contemplated by this Agreement without obtaining the prior written
approval of each other Stockholder, where such approval shall not be
unreasonably withheld, as to the contents and the manner of presentation and
publication of such press release or public statement.
Section 10. Other Covenants and Agreements. (a) Each of Isko,
Cone and JV shall, upon reasonable request from time to time, furnish the other
parties such information as is required for the performance of their respective
obligations hereunder or for the purposes of verifying sales and deliveries to
customers and computing the amounts payable under this Agreement (if any);
provided that none of the parties shall be required to disclose any proprietary
information. Subject to the foregoing sentence, Isko,
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Cone and JV shall each permit representatives of the other parties to visit, at
their own expense, their facilities upon reasonable notice during normal working
hours for purposes relating to the performance of this Agreement.
(b) Each of the parties shall use its best efforts to take or
cause to be taken all action and to do or cause to be done all things necessary,
proper or advisable to effect the transactions contemplated by this Agreement.
(c) Products developed by Isko for sale to JV for sale to LSE
shall not be duplicated or sold to other parties by Isko or JV.
Section 11. Termination. (a) This Agreement may be terminated
(i) at any time by mutual written agreement of Isko, Cone and JV, (ii) in the
event the Joint Venture Agreement is terminated pursuant to the terms thereof,
upon notice by Isko or Cone to the other parties, or (iii) in the event either
Isko or Cone commits a material breach of any provision of this Agreement or
defaults in the performance of any of its material obligations hereunder, and
such breach or default has not been cured within fifteen (15) days of delivery
of notice thereof by any other party, upon notice by any such non-breaching or
non-defaulting party to the other parties.
(b) Upon termination of this Agreement:
(i) The following provisions of this Agreement shall survive
the termination of this Agreement: ▇▇▇▇▇▇▇▇ ▇, ▇, ▇, ▇▇ (▇), ▇▇, ▇▇, ▇▇
(▇) and 16 (f).
(ii) Any and all outstanding purchase orders under Section 4
shall terminate to the extent Isko has not commenced production
thereof. In the event Isko has commenced such production, Isko shall so
notify JV and Cone as promptly as practicable following the termination
of this Agreement, and the products covered by such purchase orders
shall be sold in accordance with Sections 3 and 4.
Section 12. Force Majeure. Any obligation (other than any
obligation to pay money) of any party shall be temporarily suspended during the
period in which such party is unable to perform such obligation by reason of
force majeure but only to the extent of such inability to perform. For purposes
of this Agreement, "force majeure" shall mean any event or condition that
prevents a party from performing its obligations hereunder, is beyond the
reasonable control of such party and could not, by the exercise of due
diligence, have been avoided by such party, including without limitation (i)
fire, explosion, labor disputes, casualty or accidents, lack of or failure of
transportation facilities, epidemic, cyclone, flood, earthquake, windstorm,
typhoons, riots, or other acts of God, (ii) war, revolution, civil commotion,
acts of public enemies, blockage or embargo, or (iii) any law, proclamation,
regulation, ordinance, demand or requirement of any governmental authority.
Upon the occurrence and until the cessation of any such force majeure, the party
suffering therefrom shall immediately give the other parties notice in writing
of the cause of delay. In the event force majeure lasts continuously for at
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least 60 days, the parties shall meet to consult and agree on the necessary
arrangements for the further implementation of the Agreement; provided that if
no such agreement is reached within 30 days thereafter, either Isko or Cone may
terminate this Agreement by giving notice to the other parties.
Section 13. 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 14. 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 or 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.
Cadde 16425, Inegol/BURSA, telecopy: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇, with copy to Cone,
(ii) if to Cone at: Cone ▇▇▇▇▇ Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention: General Counsel, telecopy: ▇▇▇-▇▇▇-▇▇▇▇, with
copy to Isko, and (iii) if to JV at: Organize ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇. Cadde 16425,
Inegol/BURSA, telecopy: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇, with copies to Cone and Isko; or at
such other address or the telecopy number as Isko, Cone or JV may designate by
written notice to the other parties.
Section 15. 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.
(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.
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(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) Each of the parties shall pay all taxes, duties or other
charges, including, without limitation, any sales, value-added or similar
transfer taxes, payable in respect of the sale or distribution by such party of
any JV Product and shall hold the other parties harmless from any claims or
demands made by any taxing or other governmental authority with respect thereto.
(g) This Agreement (including any Schedules and Exhibits
hereto) 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.
(h) The section headings of this Agreement are for convenience
of reference only and are not to be considered in construing this Agreement.
(i) This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
(j) Neither this Agreement nor 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 ▇▇▇▇▇ CORPORATION
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
ISKONE DENIM PAZARLAMA A.S.
By Oguzhan Gurdogan/Ibrahim Erpamukeu
Name: Oguzhan Gurdogan/Ibrahim Erpamukeu
Title: Dep. V. P.
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