Exhibit 10.51
CASTLE BRANDS INC.
BUSINESS DEVELOPMENT CONSULTING CONTRACT
CASTLE BRANDS INC.
This Contract is made effective April 1, 2005 by and between CASTLE BRANDS INC.
having its office at 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000
(hereinafter referred to as "CBI") and BPW LLC having its place of business at
c/o MHW Ltd., 000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 (hereinafter
referred to as the "Consultant").
ARTICLE 1. TERM
1.01 The Performance under this Contract shall commence on April 1, 2005 and
continue up to and including September 30, 2005.
ARTICLE 2. CONTRACT DOCUMENTS AND SCOPE OF WORK
2.01 The work to be performed under this Contract is set out in Addendum A of
the Contract.
2.02 The Contract Documents consist of: (a) this Contract document and (b)
Statement of Work (Addendum A).
2.03 In the event of a conflict between the terms of the Contract and any other
of the Contract documents, the provisions of this Contract shall govern,
unless otherwise agreed by CBI in writing.
2.04 As this Contract is modified or changed during its term, the Contract
Documents shall include all modifications or changes to said documents
agreed upon between the parties and issued after the execution of the
Contact. Any such modification or change shall supersede the original
Contract Documents, where modified or changed.
ARTICLE 3. CONTRACT ADMINISTRATION
3.01 CBI:
CBI designates Xxxx Xxxxxxx Project Manager ("PM") for this Contract. He
shall monitor administration and completion of the Contract according to
its terms and conditions as described below:
(i) The PM will be CBI's authorized representative during the Contract and
shall be responsible for the coordination of activities between CBI
and the Consultant under this Contract.
(ii) The PM will receive all communications of whatever nature which the
Consultant is obligated to submit to CBI under the Contract, including
but not limited to changes to the Contract involving the quality
level, Statement of Work, price, rates, delivery and/ or completion
dates / schedules.
(iii) The PM's responsibilities include but are not limited to receiving
and approving the Consultant's invoices for payment, and accepting the
work and/or deliverables on behalf of CBI.
3.02 CONSULTANT:
Xxxx Xxxxxxxxx is designated the Consultant's Representative ("CR"). He
shall be responsible for the coordination of all contract activities
between CBI and the Consultant under this Contract.
(i) Consultant agrees to provide the services required hereunder in
accordance with the requirements set forth in the Contract Documents.
Consultant undertakes to perform the services hereunder in accordance
with the highest standards of professional and ethical competence and
integrity in Consultant's industry. The Services will be rendered by
the Consultant in 1) an efficient, safe, courteous, and businesslike
manner and 2) in accordance with any specific instructions issued from
time to time by the PM.
(ii) Consultant shall provide the services of qualified personnel through
all stages of this Contract. Consultant represents and warrants that
he is in compliance with all the Applicable laws of the United States
and any other jurisdiction in which the services shall be performed.
(iii) Consultant shall perform the Services as an Independent Contractor
under the general guidance of the PM.
ARTICLE 4. CONFIDENTIALITY
4.01 Consultant shall keep all work and services carried out hereunder for CBI
entirely confidential, and not use, publish, or make known, without CBI's
written approval, any information, developed by the Consultant or by CBI,
to any persons other than personnel of the parties to the Contract.
However, the forgoing obligations shall not apply to any information that
was in Consultant's possession prior to commencement of work under this
Contract, or which is or shall become available to the general public in a
printed publication, but not by the Consultant, and provided further that
this obligation shall in no way limit Consultant's internal use of such
work. Any public representation regarding CBI shall be made by CBI and any
requests for information made to the Consultant by the news media, or
others, shall be referred to CBI. Additionally, the Consultant shall not
reference CBI nor the work performed for
CBI without prior written approval. Information Consultant considers as
proprietary or confidential and which it has indicated/marked as
proprietary or confidential will be treated by CBI in the same manner as
CBI treats its own proprietary or confidential information.
4.02 Consultant further agrees to include the contents of this Article in all
subcontracts and consulting agreements entered into by Consultant for the
performance of work under this Contract.
ARTICLE 5. ASSIGNMENT
5.01 Neither this Contract nor any duty or right under it shall be delegated,
subcontracted or assigned by Consultant, except for the subsidiaries of the
Consultant; without the prior written consent of CBI, except that claims
for monies due or to become due under this Contract may be assigned to CBI,
trust company, or other financial institution, including any Federal
lending agency as provided below, by Consultant without such consent.
ARTICLE 6. CBI NAME / LOGO
6.01 Consultant may not use CBI's name and/or logo in any manner other than as
identified below without first obtaining written permission from the PM.
6.02 Consultant further agrees to include the contents of this Article in all
subcontracts and consulting agreements entered into by Consultant for the
performance of work under this Contract.
6.03 Consultant may use CBI's name only, with no use of CBI's logo or discussion
of the work performed by the Consultant for CBI, among its references, in
its customer lists or resumes without prior approval of CBI.
ARTICLE 7. TERMINATION FOR CONVENIENCE
7.01 Either party may terminate the Contract, by thirty (30) days written notice
sent to Consultant, in whole or in part, at any time for its convenience.
Notice of such termination shall state that termination is for CBI's
convenience, the extent to which performance of services under the Contract
is terminated, and the termination date. Unless otherwise instructed by
CBI, Consultant shall stop work immediately on receipt of notice.
7.02 For services that have been performed by Consultant in accordance with the
Contract terms, prior to the effective date of termination, CBI shall pay
Consultant at the Contract prices and in accordance with the Contract.
ARTICLE 8. TERMINATION FOR DEFAULT
8.01 If Consultant fails to deliver any or all goods, services, equipment,
materials or work ("Contract Work") within the time period(s) specified in
the Contract or any work order issued thereunder, and/or if the Contract
Work does not conform, in all respects, to the requirements listed in
Addendum A, CBI will give Consultant written notice describing the reasons
for default and an opportunity to cure.
8.02 If the Consultant does not cure the default to the satisfaction of CBI
within the period specified, CBI may terminate the Contract for default by
written notice, specifying the reason for the default, the portion(s) of
the Contract defaulted and the effective date of default.
ARTICLE 9. SEVERABILITY
9.01 If any term or provision of this Contract shall to any extent be invalid
and unenforceable, the remainder of the Contract shall be valid and shall
be enforced to the extent permitted by law.
ARTICLE 10. COMPENSATION
10.01 Consultant shall receive a monthly retainer of $3,500 and shall invoice
same to CBI at the end of the month for which services have been rendered.
Invoices shall be submitted to the PM.
10.02 CBI shall make payment to the Consultant within fifteen (15) days of
invoice submission to the PM.
10.03 Consultant shall receive a bonus upon the finalization of those agency
brand agreements for which it represented CBI, either by providing the
initial introduction of the agency brand principal(s) to Castle Brands'
management and/or assisting CBI in the negotiation of the final agency
brand agreement. This bonus shall be based upon the approximate annual case
sales of the agency brand at the time CBI becomes the agent. The payment
will be $1 per 9 liter case of volume, less any retainer amounts previously
paid. The bonus shall be payable to the Consultant in four equal quarterly
installments commencing with the execution of the underlying agency brand
agreement.
10.04 Consultant shall also be entitled to a commission based upon actual future
sales of the agency brand. The guideline for this commission will be the
higher of 5% of net margins generated by the brand (gross margin less all
costs incurred by CBI relative to the brand) or 2.5% of gross margin and
will be payable on actual cases sold during the initial term of the agency
agreement. The actual formula for this commission may
vary from this guideline on a brand-by-brand basis, since the volumes and
margins of agency brands will vary based upon specific product
characteristics.
10.05 Commissions earned by the Consultant will be in addition to the
aforementioned bonus and retainer payments.
ARTICLE 11. COPYRIGHT
11.01 The deliverable report(s) and other creative work of Consultant called for
by this Contract, including all written, graphic, audio, visual and any
other materials, contributions, applicable work product and production
elements contained therein, whether on paper, disk tape, digital file or
any other media, (the "Deliverable Work") is being specially commissioned
as work made for hire in accordance with the copyright laws of the United
States. CBI is the proprietor of the Deliverable Work from the time of its
creation and owns all right, title and interest therein throughout the
world including, without limitation, the copyright and all related rights.
11.02 To the extent that it is determined that the Deliverable Work does not
qualify as a work made for hire within the meaning of the copyright laws of
the United States, then Consultant hereby irrevocably transfers and assigns
to CBI all of its right, title and interest, throughout the world and in
perpetuity, in and to the Deliverable Work, including without limitation
all of its right, title and interest in copyright and related rights free
of any claim by Consultant or any other person or entity.
ARTICLE 12. NOTICES
12.01 A written notice shall be deemed to have been given if 1) sent by
registered or certified mail or 2) transmitted by any other means if and
when receipt is acknowledged by the person identified below:
12.02 CBI:
Castle Brands Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxx
12.03 CONSULTANT:
Xx. Xxxx Xxxxxxxxx
BPW LLC
c/o MHW Ltd.
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
ARTICLE 13. SIGNATURE REQUIRED
13.01 This Contract shall not become binding unless and until signed by CBI's
Authorized Representative and the Consultant's Authorized Representative.
ARTICLE 14. ENTIRE CONTRACT
14.01 This Contract, including the Contract Documents attached hereto and
referenced herein, constitutes the entire, integrated understanding and
agreement between the parties and supercedes any oral or prior written
agreements with respect to the subject matter of this Contract.
IN WITNESS WHEREOF the parties have caused this Contract to be executed.
CASTLE BRANDS INC.
/s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Chairman and CEO
BPW LLC
/s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: President
ADDENDUM A
STATEMENT OF WORK
Consultant shall represent Castle Brands Inc. as its "advocate" in connection
with developing a successful agency brand business. Specifically, Consultant
shall assist CBI's management in identifying and recruiting appropriate agency
brand candidates. In this connection, Consultant shall facilitate introductions
of agency brand principals to CBI management based upon Consultant's extensive
contacts in the wine and spirits industry. Consultant shall also assist CBI's
management by making agency brand presentations to prospective candidates,
assisting CBI during agency brand negotiations, and by providing tactical and
strategic advice regarding how agency brands might be managed and promoted by
CBI to maximum advantage of both.
