Exhibit 10.1
TRADEMARK LICENCE AGREEMENT
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Party A ("Licensor"): GUANGZHOU PAN YU SAN YUET FASHION MANUFACTORY LTD
Address: 2/F, Factory No. 52, Ling Xing Industry Section,
Shilou Town, PanYu, Guangzhou, the People's
Republic of China
Party B ("Licensee"): ANN TAYLOR INC
Address: 7 Times Square, New York, NY 10036, United States
of America
Both Party A and Party B hereby agree:- Party A grants Party B the licence to
use the "ANN TAYLOR" trademark which is registered under its name in the
People's Republic of China. For the avoidance of doubt, in this Agreement, the
People's Republic of China shall not include the Hong Kong and Macau Special
Administrative Regions, nor Taiwan. The parties execute this Agreement to
clearly set out their respective rights and obligations and warrant that their
representatives who sign this Agreement are duly authorised to do so.
1. Licensed Trademark
Party A confirms that the "ANN TAYLOR" trademark is its trademark
registered in the People's Republic of China. Party A shall attach a
copy of the registration certificate of that trademark as an appendix
to this Agreement. The legal characteristics of that trademark are
consistent with its registration.
2. Grant of Licence
(i) Both parties hereby agree that Party A grants to Party B the right to
use the "ANN TAYLOR" trademark for the sole purposes of manufacturing
and export in accordance with the terms of this Agreement.
(ii) The licence to use the "ANN TAYLOR" mark, which Party A grants to
Party B, is a general and non-exclusive license. Whilst Party A grants
the licence to Party B, Party A reserves all its trademark rights.
(iii) In accordance with the scope of the trademark registration, Party A
allows Party B to use the "ANN TAYLOR" trademark in respect of the
registered goods, packaging, tags, labels and advertising materials,
etc.
(iv) Party A permits Party B to use the "ANN TAYLOR" trademark on all
registered goods subject to Clause 2(i). This Licence shall be
extended to the companies within Party B's group, and to Party B's and
its group companies' suppliers, manufacturers, sub-contractors, etc.
within the People's Republic of China to process, manufacture and
produce. However, all the goods and related articles bearing the "ANN
TAYLOR" trademark cannot be sold in the People's Republic of China.
Party B shall exercise reasonable commercial endeavours to supervise
its group companies' and all relevant suppliers, manufacturers and
sub-contractors's compliance with this clause. In the event of any
breach of this Agreement by any of its suppliers, manufacturers or
subcontractors, Party B shall take action to have them immediately
cease and if necessary, bring legal action against them. Party B shall
also give such reasonable assistance as may be required by Party A to
take action against such supplier, manufacturer or subcontractor for
infringement of the "ANN TAYLOR" trade mark. Party B warrants the
quality of its products bearing the "ANN TAYLOR" trademark and Party A
shall not bear any legal liabilities arising from the manufacturing
and export whether within or outside the territory.
3. Rights
(i) Party A agrees that it shall only assign, sell or transfer the "ANN
TAYLOR" trademark in accordance with this clause. Party A shall first
give written notice to Party B setting out the proposed terms of the
assignment, sale or transfer and give Party B the first right of
refusal to accept such proposed terms. If Party B fails to respond or
accept the terms within 21 days of receipt of notice, Party A shall be
allowed to proceed with the assignment, sale or transfer with a third
party provided that:-
(a) the terms of this Agreement shall be brought to the attention of
the third party;
(b) the third party agrees in writing to respect and honour the
obligations of Party A in this Agreement as if the third party
were a party to this Agreement in lieu of Party A and a copy of
the written agreement is provided to Party B; and
(c) Party B's rights under this Agreement shall not be affected.
Party A undertakes that the terms of any assignment, sale or transfer
offered to or entered into with a third party shall not be more
favourable than the terms offered to Party B for first right of
refusal.
(ii) Notwithstanding Clause 3(i) above, Party B agrees that Party A can
assign the "ANN TAYLOR" trademark to either Madam Poon Suk Yuen
(bearer of Hong Kong Identity Card No. B525267(4)) or Mr Lee Yu Ming
(bearer of Hong Kong Identity Card No. G542953(5)) and not be bound by
the restriction in Clause 3(i) provided that the assignee shall
confirm in writing to Party B, at the time of the assignment, that
he/she (and their successors-in-title/interest) will be bound by the
terms of this Agreement as if he/she were a party to this Agreement in
the place of Party A.
(iii) During the term of this Agreement, if Party A pledges the "ANN TAYLOR"
trademark, Party A shall inform the pledgee the terms of this
Agreement and obtain a written confirmation from the pledgee in
respect of its acknowledgement of the terms of this Agreement.
4. Licence Term
This Agreement shall be deemed to have come into force as from the
date of registration of the "ANN TAYLOR" trademark. It shall remain in
force when the said trademark continues to remain validly registered
and shall expire on 30 June 2015, unless terminated by Party B by
giving not less than six (6) months' written notice and payment of one
additional year of licence fee, i.e US$250,000 upon termination. Party
A undertakes to maintain the registration and validity of the "ANN
TAYLOR" trademark and to renew its registration.
5. Licence Fee
Both parties agree that during the term of this Agreement, Party B
shall pay an annual licence fee for the use of the trademark to Party
A in the sum of United States Dollars Two Hundred & Fifty Thousand
(US$250,000) payable as from the year commencing 1 July 2005. The
first payment shall be paid within 15 days from execution of this
Agreement and thereafter annually before 1 July of each year during
the Licence Term.
6. Liabilities of Breach
In case of arrears of licence fee, a sum of RMB10,000 shall be payable
to Party A as compensation for each day of delay; if the delay shall
exceed 30 days after Party A has notified Party B in writing of the
delay, Party A shall have the right to terminate this Agreement. It
shall not be considered a delay on the part of Party B if any delay in
crediting the Licence Fee to Party A's account is caused by Party A's
bank or financial institution or by an act of government.
7. This Agreement shall be written in both English and Chinese languages.
In the event of any discrepancy, the Chinese version shall prevail. If
any dispute arises, the parties should mediate in good faith, if that
fails, the dispute shall be referred to the jurisdiction of the court
where Party A is situated and PRC laws shall apply.
8. This Agreement shall become effective as from the date of execution by
both parties. Both parties shall jointly apply for the recordal of
this Agreement.
All notices under this Agreement shall be in writing and shall be
couriered to the following address of the respective parties: Party A
- 2/F Factory No. 52, Ling Xing Industry Section, Shilou Town, PanYu,
Guangzhou, the People's Republic of China - for the attention of Lee
Yu Ming and Party B - AnnTaylor Inc, 7 Times Square, New York, NY
10036, United States of America - for the attention of General Counsel
with a copy to Mr Kenny Wong, Johnson Stokes & Master, 19/F, Prince's
Building, 10 Chater Road, Central, Hong Kong (Ref: 6720680/1). Notices
will only be considered received with a receipt acknowledgment of the
courier company. Notice period begins from the date of receipt of the
notice.
Party A Party B
/s/ Poon Suk Yuen /s/ Barbara Eisenberg
SIGNED by: Poon Suk Yuen SIGNED by: Barbara Eisenberg
Date: August 2, 2005 Date: August 2, 2005
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