Exhibit 10.3
NOTE: PORTIONS OF THIS EXHIBIT ARE THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST BY THE REGISTRANT TO THE SECURITIES AND EXCHANGE COMMISSION. SUCH
PORTIONS HAVE BEEN REDACTED AND ARE MARKED WITH A "[*]" IN PLACE OF THE
REDACTED LANGUAGE.
NATIONAL DISTRIBUTION AGREEMENT
AGREEMENT made as of the 3rd day of September, 2004 by and between
Castle Brands (USA) Corp., a Delaware corporation and wholly owned subsidiary of
Castle Brands Inc., which has its principal place of business at 000 Xxxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 XXX ("Importer") and Gosling's Export
(Bermuda) Limited, which has its principal place of business at 00 Xxxxxxxxx
Xxxxxx, Xxxxxxxx, XX 10 Bermuda ("Supplier"). This agreement is being entered
into in counterparts and shall be effective as of January 1, 2005, or such
earlier date that the Producer has completed the termination of its pre-existing
Import Agreement (the "Effective Date").
1. Definitions.
(a) "Products" shall mean all products listed in Schedule A
(b) "Territory" shall mean the domestic market of the 50 states
of the United States of America, and such other markets as may be added by
mutual consent.
(c) Trademarks shall mean the trademarks Gosling's Black Seal
Rum, Gosling's Gold Bermuda Rum, Gosling's Family Reserve Old Rum, Dark 'n
Stormy and all other trademarks, brand names and logo designs used on or in
connection with the Products.
(d) "Initial Term" shall mean the period commencing January 1,
2005 (or such earlier date that the Producer has completed the termination of
its pre-existing Import Agreement) and continuing until January 1, 2010.
(e) "Renewal Term" shall mean the period commencing the first day
following the end of the Initial Term or any prior Renewal Term and continuing
for five (5) years thereafter.
(f) "Contract Year" shall mean the twelve (12) month period
commencing January 1 and ending December 31 of that calendar year.
(g) "Case" shall mean 12 bottles of 750 ml. each, or a nine liter
equivalent.
2. Appointment.
(a) Supplier hereby appoints Importer as the sole and exclusive
importer and distributor of the Products for the Territory.
(b) Importer hereby accepts appointment as the sole and exclusive
importer of the Products for the Territory and shall, during the term of this
Agreement, use all reasonable efforts to distribute the Products throughout the
Territory.
3. Duration.
(a) The term of this Agreement shall be the Initial Term, unless
sooner terminated in accordance with Section 11, and shall include any Renewal
Term provided renewal occurs in accordance with Section 3(b).
(b) Provided this Agreement is otherwise still in effect at the
end of the Initial Term or any Renewal Term and subject to the provisions of
Section 11, the parties agree to negotiate in good faith for an additional
Renewal Term of five (5) years.
4. Terms of Sale and Payment.
(a) All sales of the Products by Supplier to Importer shall be on
an FOB Heaven Hill basis at the prices set in accordance with Schedule A, and as
amended hereafter from time to time pursuant to Section 4(b) below. Payment
shall be made in Bermuda to a bank designated by Supplier and shall be due sixty
(60) days from the date of the xxxx of lading. Because Supplier will be funding
marketing programs in the Territory with the aforementioned receivables, time
shall be of the essence for receipt of payments sixty (60) days from the date of
bills of lading.
(b) All carriers engaged to ship the Products within the
Territory for Importer (or any distributor designated by Importer in the
Territory) shall be the agents of Importer. The risk of loss thereon shall pass
immediately to Importer upon delivery of the Products from Heaven Hill (the
"Bottler") to such carrier for shipment within the Territory. Importer shall
have the right to determine the point of destination in the Territory and the
method of shipment of the Products.
(c) It is the intention of this agreement that Importer will
receive a net margin amount as set forth in the following table (the "Net
Margin"). Importer will also be entitled to reimbursement for Control State (18
states plus Xxxxxxxxxx County) brokers' commissions as approved by Supplier, any
mutually agreed salaries, warehousing, insurance and other costs of
distribution, such that Importer is able to net the agreed Net Margin, but not
amounts above or below the agreed Net Margin. The reimbursements shall not
include the normal salaries, travel and entertainment and other overhead costs
of the Importer, except with respect to certain mutually agreed personnel that
will be hired and directed by Importer but will follow the strategic marketing
plan prepared by the Supplier's U.S. marketing affiliate ("Supplier Sales
Personnel"). The costs of Supplier Sales Personnel, including normal health or
other benefits, will be reimbursed by Supplier.
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NET MARGIN
YEAR VOLUME RANGE TO IMPORTER
-------------------- ------------------- ---------------
2004 (if applicable) All sales * per case
2005 Up to * cases * per case
Over * cases * per case
2006 and later Up to * cases * per case
Over * cases * per case
(d) Importer will pay to the Supplier's U.S. Marketing Affiliate
(the "Affiliate") an agreed amount per month, to help defray the normal overhead
costs of the Affiliate. Importer will also pay to the Affiliate a marketing fee
of $1.50 per case. All of such overhead and fee payments by Importer will be
reimbursable by Supplier, but in no event will reduce the Net Margin.
(e) Importer may xxxx Supplier monthly for reimbursements, and
should be reimbursed by Supplier within 15 days by wire transfer to Importer's
designated account. Importer and Supplier will work together to coordinate
mutual payments and reimbursements, to minimize the levels of net funding
required by either party.
(f) Any excess funds received by Importer, net of agreed Net
Margins, reimbursements or payments to the Affiliate, shall be promptly
forwarded to Supplier. It is the intention of this payments section to assure
Importer that it receive its agreed Net Margin, but not amounts above or below
the agreed Net Margin, except as relates to agreed reimbursements.
5. Marketing and Advertising.
(a) Supplier and/or its U.S. marketing affiliate shall be
responsible for the creation, development and implementation of all marketing,
advertising and promotional efforts of the products. At least four times per
Contract Year, Supplier shall review with Importer the Supplier's plans for the
current and following Contract Year. Importer will be responsible for sales
efforts in the field, and will coordinate with the Supplier with respect to
field-based marketing programs, including local promotions, product tastings,
discounts, etc., with the cost of such programs borne entirely by the Supplier.
(b) The costs of marketing and advertising will be borne by
Supplier. To the extent that the Importer pays for any xxxxxxxx relative to
marketing or advertising, Supplier agrees to reimburse Importer within 15 days
of receipt of a detailed invoice, unless there is a legitimate dispute relative
to any such invoice.
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6. Representations and Warranties of Importer. Importer represents,
warrants and covenants to Supplier as follows:
(a) Importer and its agent MHW Ltd. hold in full force and effect
the federal, state and local licenses or permits that are necessary to conduct
its business as an importer of the Products and to engage in the transactions
intended by this Agreement.
(b) Importer shall maintain a distributor network of adequate
size to represent and promote the sales of the Products throughout the
Territory. Such sales force shall be kept properly informed as to all
advertising, marketing and promotional programs and policies regarding the
Products.
(c) Importer shall conduct its activities under this Agreement in
accordance with local, state and federal laws and regulations regarding the sale
of the Products.
(d) Importer shall monitor its customers' inventories of the
Products to ensure that quantities are adequate to service the requirements of
the markets in the Territory. Importer shall promptly deliver, or arrange for
direct import shipments of the Products, to its customers in the Territory in
accordance with good business practice and local custom.
(e) Importer shall timely file all price schedules and reports as
may be required by applicable laws and regulations.
(f) Importer shall not terminate any existing wholesaler, or
appoint any new wholesaler, in the Territory without the prior written consent
of Supplier; which consent shall not be unreasonably withheld.
7. Representations and Warranties of Supplier. Supplier represents,
warrants and covenants to Importer as follows:
(a) Supplier has the authority to enter into and carry out its
obligations under this Agreement.
(b) The execution of this Agreement and the consummation of the
transactions contemplated by this Agreement will not act as a breach of any
agreement or understanding to which Supplier is a party.
(c) Subject to expiration or earlier termination of Supplier's
current import agreement, Supplier has the right to designate and appoint the
Importer as the exclusive distributor of the Products in the Territory.
(d) The Products sold to Importer under this Agreement shall be
merchantable and fit for human consumption. The Products shall be manufactured,
packaged and labeled in conformity with applicable U.S. federal, state and local
laws, rules and regulations
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and, specifically, the rules and regulations of the Federal Alcohol Tax and
Trade Bureau [new name] and the Food and Drug Administration. Samples of the
Product have been provided to Importer. All shipments of the Products shall
conform to any samples provided.
(e) The Products sold to Importer shall be free and clear of any
liens or encumbrances. Neither the execution of this Agreement, nor compliance
with its terms, will result in the creation or imposition of any lien, charge,
encumbrance or restriction of any nature by any third party upon the Products
sold to Importer.
(f) Supplier shall maintain an adequate inventory of the Products
with which to supply Importer. Supplier shall accept all orders reasonably
submitted by Importer, with shipment to follow not later than thirty (30) days
from receipt of an order, unless excused by Section 15 below, or as otherwise
agreed upon by the parties.
(g) Supplier shall use its best efforts to prevent the sale of
unauthorized shipments of the Products in the Territory by entities or persons
other than Importer. In this regard, Supplier shall not sell or otherwise
transfer any of the Products to any distributor located outside the Territory
whom Supplier knows, or has reason to believe, will, either directly or
indirectly, sell or otherwise transfer the Products into the Territory.
(h) Subject to the provisions of Sections 8 and 10 below and in
all events, with the full right to select counsel and supervise the legal and
any settlement processes, Supplier shall defend, indemnify and hold harmless
Importer from and against any and all damages and liability, costs or expenses,
including attorneys' fees, it may incur as a result of product liability,
trademark infringement, product recall, breach of contract or other action
relating to breach of warranty or representation by Supplier.
(i) Supplier warrants that the shelf life of all Products sold to
Importer shall be not less than twelve (12) months provided all such Products
are properly handled, stored and shelved by Importer and its customers.
8. Product Liability and Returns.
(a) During the term of this Agreement, each party shall maintain,
in full force and effect, general liability insurance with product hazard
coverage regarding the sale of the Products in the Territory in an amount of not
less than five million dollars ($5,000,000) aggregately and one million dollars
($1,000,000) for single accident occurrence. Such insurance shall contain a
broad form vendor's endorsement inuring to the benefit of the other party. Each
party shall, on an annual basis, furnish to the other party a certificate
confirming such coverage.
(b) Subject to the provisions of Paragraph 7(i) above, any
Products not merchantable due to quality deficiencies, packaging problems or
errors committed by Supplier or its suppliers, may be returned to Supplier at
Supplier's cost, for full credit or replacement, provided that notice of such
defect, if patent, is given to Supplier within six (6) months of receipt of
shipment of the Products and, if latent, within six (6) months after Importer's
knowledge of the defect. Supplier shall not be obliged to issue a credit for any
Products that have been
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rendered unmerchantable by inordinate delays in shipping, improper handling or
other negligent acts on the part of Importer or its customers. Notice of
unmerchantable Products shall be given to all parties upon receipt of such
information.
9. Rights of First Refusal. During the term of this Agreement,
Importer shall have the right of first refusal regarding:
(a) any other current or future products Supplier currently
maintains in, or adds to, its product line for sale in the Territory.
(b) If Importer exercises its option pursuant to paragraph 9(a)
above, paragraph 1(a) shall be automatically amended and the term "Products" as
used in this Agreement shall be deemed to include such additional product. In
the event that Importer declines to exercise such option, Supplier shall be free
to negotiate with other Importers for such products, but Supplier shall not
thereafter enter into an importation agreement with any other importer upon
terms more favorable than those offered to Importer
10. Intellectual Property.
(a) Supplier represents and warrants that it is the exclusive
Producer of the Products and in connection with these rights: it has the
authority to market and sell the Products into the Territory for resale; it is
authorized to hold or claim for itself or for its licensor(s) all common law or
statutory rights in all symbols, designs, words and other trade dress features
used upon or associated with the Products, whether registered as trademarks,
service marks or copyrights, or not (the "Intellectual Property"); and it is
authorized to grant rights or sublicenses to its customers for non-exclusive and
limited use of the Intellectual Property in connection with the sale and
distribution of the Products within the Territory.
(b) Supplier hereby grants to Importer a non-exclusive license to
use the Intellectual Property in the Territory for the Term of this Agreement
for the limited purposes of the sale, promotion and distribution of the
Products, subject to the following, to which the Importer hereby agrees:
Importer shall use the Intellectual Property only in
connection with the sale, promotion and distribution of the Products, and
All uses of the Intellectual Property shall reproduce
faithfully the design and appearance of the Intellectual Property as represented
in or on the labels and packaging or as is otherwise provided by Supplier,
including claims of copyright or trademark protection and/or registration, and
Any uses of the Intellectual Property by Importer, shall
first be approved by Supplier. E-mail approval shall be sufficient for this
purpose.
The Intellectual Property shall not be used in juxtaposition
or conjunction with intellectual property associated with any product or service
other than the
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Products and shall always be used in good taste and in a manner which is not in
any way denigrating to the Supplier or the Intellectual Property, and
Importer shall have no right to sublicense to any third
party the right to reproduce the Intellectual Property for any purpose, except
in connection with media advertising, which shall first be reviewed and approved
in writing or provided (e.g., advertising mats) by the Supplier.
(c) Notwithstanding any rights granted in any provision of this
Agreement, Importer expressly acknowledges and agrees that the Intellectual
Property is the property of the Supplier and/or its licensor(s) and Importer
neither shall make claim nor assert any right to, or interest in, the
Intellectual Property during or after the expiration or termination of this
Agreement, except the right to limited non-exclusive use during the Term hereof
in accordance with the foregoing provisions.
11. Termination.
(a) Supplier may terminate this Agreement prior to its expiration
by giving notice to the Importer for any of the following reasons:
(i) Importer has failed to purchase seventy five thousand
(75,000) cases of Products in the third Contract Year or one hundred thousand
(100,000) cases of Products in the Fifth Contract Year. If Supplier elects to
exercise its option to terminate this Agreement pursuant to this paragraph it
must do so within ninety (90) days after the end of the relevant Contract Year.
Failure to exercise said termination option during the aforementioned ninety
(90) day period shall be deemed to be a waiver of said option to terminate and
the Agreement shall continue.
(ii) Importer, through failure to renew, or because of
cancellation, suspension or revocation continuing for a period in excess of
sixty (60) days, has suffered the loss of any material license or permit
required by law and necessary to carry out the provisions of this Agreement;
(iii) Importer has failed to make payment of any invoice in
accordance with Supplier's credit terms and has not remedied the failure after
thirty (30) days' written notice of such failure and no bona fide dispute
regarding said invoice(s) exists between the parties;
(iv) Importer has breached or failed to fulfill any other
material term or condition of this Agreement and has not remedied the breach or
failure after thirty (30) days' written notice of said breach or failure to
perform and there is no bona fide dispute that a material breach has occurred.
(v) Importer has changed ownership through a sale, merger,
acquisition or other major change in equity control without the prior written
approval of
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Importer, with such approval not to be unreasonably withheld. For purposes of
this provision a major change shall be defined as change affecting more than
twenty five percent (25%) of control at any one time or a cumulative series of
changes affecting fifty one percent (51%) of control.
(b) Importer may terminate this Agreement prior to its expiration
by giving notice to Supplier for either of the following reasons:
(i) Supplier has failed to honor any commitment regarding
sales, delivery, credits, allowances, returns, packaging quality or product
quality, and that such failure has continued for a period of thirty (30) days
after written notice to Supplier.
(ii) Supplier has failed to fulfill any other material term
or condition of this Agreement and has not remedied this failure after thirty
(30) days' notice thereof and there is no bona fide dispute that a material
breach has occurred.
(c) This Agreement shall terminate automatically and without
notice for any of the following reasons:
(i) Either party has filed a voluntary petition in
bankruptcy or entered into an arrangement under a national or federal bankruptcy
statute or other voluntary proceeding under any federal, state, or local law for
the settlement or extension of payment of its obligations to general creditors;
or
(ii) An involuntary lien or petition in bankruptcy has been
filed against either party and such involuntary lien or petition has not been
dismissed within thirty (30) days; or
(iii) Either party ceases to do business.
12. Events Upon Expiration or Termination.
12.1 Upon the expiration of the final Term or upon the effective
date of any termination of this Agreement, the following shall occur:
(a) Subject to the provisions of Section 12.2 below, all
outstanding, but unshipped orders for Product by the Importer shall be deemed
cancelled, whether previously accepted by Supplier or not.
(b) All outstanding invoices of Supplier to Importer for Product
sold and delivered to carriers, whether due in accordance with their terms or
not, shall become due and payable immediately.
(c) Importer promptly shall release and deliver to Supplier (FOB
Importer's facility loading dock) all point-of-sale or other materials in its
possession that
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Supplier furnished to it without charge and any items in its possession (other
than Product) that bear Intellectual Property (as described in Section ten,
above).
(d) Importer and its employees immediately shall cease all use of
the Intellectual Property referred to in Section ten above, except as required
to sell any remaining inventory held by Importer.
(e) Supplier or its designee, shall have the option, for thirty
(30) days after the effective date of expiration or termination, to repurchase,
at Importer's laid-in-cost, its inventory of factory sealed cases of the Product
and/or point-of sale material for the Product purchased by Importer, less any
sums for payments Importer owes to Supplier. Importer hereby agrees to sell said
inventory to Supplier, or Supplier's designee, provided said Designee is a
licensed vendor of alcoholic beverages, on said terms, in the event Supplier
provides timely written notice of the exercise of the aforementioned option.
(f) Both parties warrant and covenant that, upon expiration or
termination, neither party will take any action to impair or diminish the
goodwill or business of the other party and neither party will disclose any
confidential information about the other party.
12.2 Upon the occurrence of a termination event or following
notice of termination to Importer, but prior to the effective date thereof:
Supplier shall honor Importer's outstanding and unshipped
orders or orders submitted prior to the effective date of termination only on a
payment-before-shipment basis, provided the following conditions are met:
(a) All outstanding invoices due and owing to Supplier have been
paid in full;
(b) Such orders are in accord with past purchasing practices;
(c) Such orders are scheduled for delivery prior to the effective
date of termination; and
(d) Such orders for the Product shall be sufficient to satisfy
only Importer's demand for the Product in the Territory prior to the date of
termination and not thereafter.
13. Choice of Law and Disputes.
The rights and obligations of the parties under this agreement shall
not be governed by the provisions of the United Nations Convention on Contracts
for the International Sale of Goods but instead shall be construed and enforced
in accordance with the laws of the State of New York in the United States of
America without giving effect to principles of conflict of laws. In the event
any disagreement or dispute between the parties arises under or out of this
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Agreement, such disagreement or dispute shall be submitted to Judicial Mediation
Services, Inc., a professional mediating service consisting of retired Federal
and State judges ("JAMS") or a mutually agreed upon dispute resolution service.
The mediation shall be conducted in accordance with the rules of JAMS or such
other dispute resolution service as might be agreed upon and shall be held in
New York, New York. Any award made by JAMS or such other dispute resolution
service as might be agreed upon shall be binding upon the parties. Mediation
shall be the exclusive remedy for breach of this Agreement by either party. The
parties shall share equally all costs of mediation other than representation by
counsel which shall be at each party's own expense.
14. Miscellaneous.
(a) All notices or consents provided for by this Agreement shall
be in writing and shall be delivered by hand or registered or certified mail to
the party to whom notice or consent is to be given at the address set forth
above. Such notice may be given by facsimile but a confirming copy must be
delivered by hand or registered or certified mail. The date of delivery of the
written confirmation will be considered the effective date of delivery of
notice. For required Marketing and Intellectual Property approval, e-mail
notification shall be acceptable when confirmed by the receiving party.
(b) This agreement represents the entire agreement between the
parties, supersedes all their prior oral or written agreements or
understandings, and shall not be changed except by a further written agreement
or a written amendment to this Agreement executed by both parties.
(c) The failure by either party to exercise any of its rights
under this Agreement shall not be construed as a waiver of such rights. Any such
failure shall not preclude the exercise of such rights at any later time.
15. Force Majeure. If any party is prevented from performing any of
its obligations hereunder by an occurrence beyond its reasonable control such
as, but not limited to, acts of God, fire, flood, war, insurrection, government
regulations, raw material shortage, strikes, or lack of common carrier
facilities, then the affected party shall be excused from performance for so
long as such occurrence exists.
16. Severability. If any term of this Agreement is in violation of, or
prohibited by, any applicable law or regulation, such term shall be deemed as
amended or deleted to conform to such law or regulation without invalidating or
amending or deleting any other term of this Agreement.
17. Assignment. Neither party may assign this Agreement without the
prior written consent of the other party. Any purported assignment without such
consent shall be null and void.
18. Notice. Any required notices pursuant to this Agreement shall be
sent to:
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For Importer:
Castle Brands (USA) Corp.
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxx, Chairman and CEO
with a copy to:
Mr. E. Xxxxxxx X'Xxxxx, Esq.
Xxxxx Xxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
For Supplier:
Gosling's Export (Bermuda) Limited
P. O. Box HM 827
17 Dundonald Street
Xxxxxxxx, XX 10 Bermuda
Attn: E. Xxxxxxx X. Xxxxxxx, President
with a copy to:
19. Relationship of the Parties. The parties acknowledge that no joint
venture has been created by this Agreement and that neither party can take any
action that is legally binding on the other party without the prior consent of
the party to be charged.
IN WITNESS WHEREOF, the parties have caused this agreement to be
executed on the day and year first above written.
Gosling's Export (Bermuda) Limited
By: /s/ E. Xxxxxxx X. Xxxxxxx
---------------------------------
E. Xxxxxxx X. Xxxxxxx, President
Castle Brands (USA) Corp.
By: /s/ Xxxx Xxxxxxx
---------------------------------
Xxxx Xxxxxxx, Chairman and CEO
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SCHEDULE "A"
PRICES
Product Price per case FOB
------------------------------------------
Note: This Schedule will be finalized prior to the commencement of purchases and
sales of the product by the Importer, based on updated cost and tax information.
The parties have agreed that the Importer will be entitled to receive a net
payment equal to the Net Margin referred to in Section 4(c), net of agreed
reimbursements, including taxes and payments to the marketing affiliate, as set
forth in that section:
I.E., NET OF:
"mutually agreed salaries, warehousing, insurance and other costs of
distribution, such that Importer is able to net the agreed Net Margin, but not
amounts above or below the agreed Net Margin. The reimbursements shall not
include the normal salaries, travel and entertainment and other overhead costs
of the Importer, except with respect to certain mutually agreed personnel that
will be hired and directed by Importer but will follow the strategic marketing
plan prepared by the Supplier's U.S. marketing affiliate ("Supplier Sales
Personnel"). The costs of Supplier Sales Personnel, including normal health or
other benefits, will be reimbursed by Supplier."
The parties will determine prior to the marketing period the appropriate flow of
funds, including payments to the marketing affiliate, to achieve the agreed
result.
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