CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.80(b)(4),
200.83 AND 230.406 * INDICATES OMITTED
MATERIAL THAT IS THE SUBJECT OF
CONFIDENTIAL TREATMENT REQUEST
THAT IS FILED SEPARATELY WITH THE
COMMISSION
DELTA-AGI NEWGEN AGREEMENT
This Agreement is entered into as of the 1st day of December, 1995 in
San Diego, California among DELTA MAILING AND FULFILLMENT (hereinafter "Delta")
and ALUMNI GRAPHICS INCORPORATED (hereinafter "AGI"), Corporations formed under
the laws of the State of California of the first part, and NEWGEN RESULTS
CORPORATION (hereinafter "Newgen"), a corporation formed under the laws of the
State of California of the first part, and NEWGEN RESULTS CORPORATION
(hereinafter "Newgen"), a corporation formed under the laws of the State of
California of the second part. Each of Delta, AGI, and Newgen are defined as a
Party, and collectively defined as "the Parties".
1. TERM OF AGREEMENT
This Agreement shall terminate on January 15, 1997 unless, prior to
January 15, 1997, the Parties mutually agree in writing to extend the term for
an agreed upon period ("renewal period"). However, in the event that Delta or
AGI are unable to provide service which is satisfactory to Newgen, Newgen shall
have the right to terminate this agreement without penalty at any time prior to
the effective date.
Newgen shall also have the right to terminate this agreement prior to its
termination without cause. However, if Newgen terminates this agreement without
cause, then Newgen will pay Delta-AGI the sum of $[****] ([****]
dollars) for every month remaining from the date of termination until January
15, 1997. No payment under this clause will be required if Newgen ceases
operations.
2. PERFORMANCE AND SERVICE
Delta-AGI agrees to provide services for processing customized
printing and imprinting for Newgen as it applies to Newgen's existing and future
Accounts (account being automobile dealership representing 150 to date with an
anticipated growth potential to a total of 1300 additional automobile
dealerships). The above service shall include the printing and imprinting of a
customized letters and logos on stationery, letter folding, inserting the letter
into a two-window envelope, and delivering the letter in the envelope to the
Valencia Central post office. Delta-AGI warrants and represents that the mail
will be presorted to enable Newgen to receive the pre-sort rates available to
bulk sorted mail Postage will be paid by Newgen as provided for on Schedule I
attached hereto the terms of which are incorporated herein. There are presently
5,000 units (A unit being a single piece of stationary) a day produced by Newgen
which will potentially grow to [****] units a day, (A day being defined as a
twenty-four hour period with 20 working days in a month) Delta-AGI guarantees
that there will be no disruption of service except
* Confidential Treatment Requested
for disruption of services caused by acts over which Delta-AGI have no
control. To the extent that Delta-AGI uses third parties to complete the
work, Delta-AGI agree that they will cause such third parties to execute a
confidentiality agreement, in a form acceptable to Newgen, prohibiting those
third parties from disclosing any confident information relating to Newgen or
its Customers if Delta-AGI utilizes the services of a third party support
vendor to assure Newgen the daily production requirements are fulfilled.
Delta-AGI will cause such support vendor to execute a confidentially
agreement. For the services provided hereunder Newgen shall send Delta/AGI
all data necessary for Delta-AGI to complete daily production on a timely
basis but in no event later than sixteen hours prior to daily post office
delivery. All data by Newgen to Delta-AGI will be sent either by modem or as
a diskette via overnight mail, subject to the agreement of the parties prior
to performance of the contract Newgen shall pay to Delta-AGI such amounts at
such times as set forth in Schedule I attached hereto terms of which are
incorporated herein.
3. UNFAIR BUSINESS PRACTICES
Newgen will not at any time during the term of this Agreement, or at
any time thereafter, divulge, publish or otherwise reveal, either directly or
through another, to any person, firm or corporation, any knowledge or
information of fact concerning Delta or AGI's prices, costs, customers, methods,
programs, inventions, discoveries, or devices, or any other information
specifically relating to the business of Delta or AGI, that is not then in the
public domain and that (i) Newgen acquired at any time prior to the date hereof
as a result of prior relationships between Delta or AGI, or (ii) Newgen may
acquire during the term of this Agreement as a result of Delta or AGI's
performance hereof, and all such knowledge, information and facts shall be
retained by each party in trust, in a fiduciary capacity for the sole benefit of
the other parties.
Delta or AGI will not at any time during the term of this Agreement, or at
any time thereafter, divulge, publish or otherwise reveal, either directly or
through another, to any person, firm or corporation, any knowledge or
information of fact concerning Newgen's prices, costs, customers, methods,
programs, inventions, discoveries, or devices, or any other information
specifically relating to the business of Newgen, that is not then in the public
domain and that (i) Delta or AGI acquired at any time prior to the date hereof
as a result of prior relationships between Newgen, or (ii) Delta or AGI may
acquire during the term of this Agreement as a result of Newgen's performance
hereof, and all such knowledge, information and facts shall be retained by each
party in trust, in a fiduciary capacity for the sole benefit of the other
parties.
4. SUCCESSORS
In the event that Delta-AGI no longer engages in the providing of
services as described in Paragraph 2 of this Agreement, then Delta-AGI will
transfer to Newgen the technology and inventions utilized by Delta-AGI to
provide such services at no cost. Subject to the foregoing, this Agreement
shall not be assigned by any party. This Agreement shall be binding upon and
inure the benefit of the parties hereto, their successors and assigns.
5. ENTIRE AGREEMENT
This Agreement constitutes and contains the entire Agreement and
understanding concerning the subject matter hereof and supersedes and replaces
all prior negotiations, all proposed Agreements, and all Agreements whether
written or oral, express, or implied, between or among such parties or any of
them with respect to such subject matter. Each party acknowledges that it has
not signed this Agreement in reliance on any promise, representation, or
warranty whatsoever, express or implied, written, or oral, not contained herein
concerning the subject matters hereof. The parties hereto further agree that
any supplement to or modification of this Agreement or waiver of any provision
hereof shall be of no force or effect unless agreed to in writing by each party
hereto.
6. SEVERABILITY
If any provision or portion of this Agreement shall be held, for any
reason, to be unenforceable or illegal, that provision or portion, to the extent
that it is unenforceable or illegal, shall be severed from this Agreement and
the remainder shall be valid and enforceable among the parties just as if the
provision or portion held to be illegal or unenforceable had never been
included.
7. CHOICE OF LAW
This Agreement is executed and delivered within the State of
California and shall in all respects be interpreted, enforced, and governed by
and under the laws of the State of California applicable to instruments,
persons, and transactions which have legal contacts and relationships solely
within the State of California.
8. CONSTRUCTION
The language of this Agreement shall be construed as a whole according
to its fair meaning and not strictly for or against any of the parties hereto,
each of whom has participated in its drafting.
9. RELATIONSHIP OF PARTIES
The parties hereto agree that Delta and AGI will be treated as one
party for the proposes of this agreement, and that each of Delta and AGI will be
jointly and severally liable for the obligations of each other.
10. NOTICE
Notices may be given to each of the parties as follows:
TO DELTA-AGI
Delta Mailing and Fulfillment
00000 Xxxxxx Xxxxx #X-0
Xxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxx
TO NEWGEN:
Newgen Results Corporation
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxx Xxxxxx
SCHEDULE I
PRICE SCHEDULE
To print 8 1/2" X 11" letterhead and letter on 20# bond. Letterhead and logos
in any color 2,3, and 4 color and letter text in black with occasional color
highlighting. Based on volume of 5,000 units a day which are reasonably
expected to exceed [****] daily over the next two years. Pricing is based on
70% 2 Color and remaining 30% to print 3 and 4 Color.
To fold to letter size and insert into #10 envelope (to be supplied at no
additional cost by Delta-AGI), including delivery to Valencia Post office.
All inclusive price - January 1 - March 31, 1996 - $[****]([****]) per sheet
April 1, 1996 until termination of agreement - $[****]
([****]) per sheet
Price increases can be implemented only on the anniversary date of this
agreement, with at least 30 days prior written notice. Any price increase
cannot exceed this increase in the adjusted Consumer Price Index for San Diego
County.
Postage shall be paid by Newgen 5 days in advance of delivery to the Valencia
post office.
One time logo scans per Automobile dealer at $[****] each.
Supplied envelope price included.
Payments shall be made by the 21st of each month.
* Confidential Treatment Requested
Delta Mailing and Fulfillment
by
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J. Xxxxxxx Xxxxxxx, President Date
Alumni Graphics, Incorporated
by
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Xxxxxxx Xxxxxxxx, CEO Date
Newgen Results Corporation
by
/s/ Xxx Xxxxxx Dec 26/95
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Xxx Xxxxxx, Vice President and CFO Date
