EXHIBIT 10.33
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "Agreement") is entered into as of July 1,
2000 (the "Effective Date") by and between NEWGEN RESULTS CORPORATION ("Newgen")
and GEOMEL ENTERPRISES, INC., ("Xxxxxxxx").
RECITALS
WHEREAS, Newgen provides integrated database management, personalized
direct-marketing and related services to automobile manufacturers and
dealerships (e.g. Newgen offers personalized vehicle maintenance reminders to a
dealership's customers);
WHEREAS, Xxxxxxxx possesses experience and expertise in commercial
printing and mailing; and
WHEREAS, Newgen desires to purchase from Xxxxxxxx, and Xxxxxxxx desires
to sell to Newgen, the Products (as defined below) on the terms and subject to
the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, the parties hereto hereby agree as follows:
AGREEMENT
1. DEFINITIONS
1.1 "PRODUCT" means a four-color, laser printed, personalized letter
folded and inserted into a corresponding window envelope, or a 1 color reminder
notice on preprinted forms which meets the Product Specifications,
1.2 "PRODUCT SPECIFICATIONS" means the product specifications set forth
on Exhibit A attached hereto.
1.3 "PRODUCTION SCHEDULE" means the schedule for the production of
Products set forth on Exhibit B attached hereto.
2. PURCHASE OF PRODUCTS
2.1 PURCHASE AND SALE. In accordance with the terms and subject to the
conditions set forth in this Agreement, Newgen hereby orders and agrees to
purchase from Xxxxxxxx, and Xxxxxxxx hereby accepts and agrees to sell to
Newgen, Products at the price set forth herein.
2.2 PRODUCT SPECIFICATIONS. Products supplied pursuant to this
Agreement shall comply with the applicable Product Specifications.
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3. PURCHASE PRICE AND PAYMENT; VOLUME REQUIREMENTS
3.1 PURCHASE PRICE. . The purchase price will depend upon volume and
shall remain fixed for the term of this Agreement, as set forth on Exhibit C.
Notwithstanding the foregoing, in the event the cost of paper is in excess of
120% of the cost of paper in effect on the date of this Agreement (the "Initial
Paper Cost") for three consecutive months, Newgen agrees to pay Xxxxxxxx the
difference between the increased paper cost at the end of such three month
period and the Initial Paper Cost.
3.2 PAYMENT. Xxxxxxxx will invoice Newgen twice each month, and Newgen
shall pay all undisputed invoices amounts issued under this Agreement within 30
days from the date of invoice, unless otherwise mutually agreed upon in writing
by Newgen and Xxxxxxxx. Time is of the essence herein.
3.3 VOLUME. As of the Effective Date, Newgen operates its business such
that its volume requirements equal approximately 3,000,000 Products per month.
After the Effective Date, Newgen expects its volume requirements to initially
equal at least 3,000,000 Products per month, but there can be no assurance that
Newgen's volume requirements will be consistent or meet any particular threshold
level.
3.4 REQUIREMENTS. .Not consistent with volume pricing in exhibit C In
the event Newgen's requirements exceed Xxxxxxxx'x capacity for such Product
Newgen shall have the right to purchase such excess Product (or substitute
products) from third parties without any obligation to Xxxxxxxx; provided,
however, in all other respects this contract shall remain in full force and
effect.
4. PRODUCTION; SHIPMENT; PACKAGING; TITLE AND RISK OF LOSS
4.1 PRODUCTION.
(a) Newgen shall provide to Xxxxxxxx in a timely manner all data
necessary for Xxxxxxxx to produce the Products in accordance with the Production
Schedule. Newgen shall send such data to Xxxxxxxx by computer mail or other
electronic means or on a diskette; and
(b) Xxxxxxxx shall produce the Products in accordance with the
Production Schedule.
4.2 SHIPMENT. A presort bureau designated by Newgen will arrange for
pick-up at its sole cost and expense of any and all finished Products, within a
reasonable period following completion thereof.
4.3 PACKAGING. Xxxxxxxx shall package and deliver each Product in bulk
containers that are standard for such Product.
4.4 TITLE AND RISK OF LOSS. Title and risk of loss for Products
purchased hereunder shall transfer to Newgen upon delivery of such Products by
Xxxxxxxx to a common carrier or a third party intermediary approved by Newgen
(including a presort bureau).
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5. REPRESENTATIONS AND WARRANTIES
5.1 CORPORATE POWER. Each party hereby represents and warrants that it
is duly organized, validly existing and in good standing under the laws of the
state or country of its incorporation and has full corporate power and authority
to enter into this Agreement and to carry out the provisions hereof.
5.2 DUE AUTHORIZATION. Each signatory hereto represents and warrants
that such person is duly authorized to execute and deliver this Agreement and to
perform its obligations hereunder.
5.3 BINDING AGREEMENT. Each party hereby represents and warrants that
this Agreement is a legal and valid obligation binding upon it and is
enforceable in accordance with its terms. The execution, delivery and
performance of this Agreement by such party does not conflict with any
agreement, instrument or understanding, oral or written, to which it is a party
or by which it may be bound, nor violate any law or regulation of any court,
governmental body or administrative or other agency having authority over it.
5.4 WARRANTY. XXXXXXXX WARRANTS THAT THE PRODUCTS SUPPLIED TO NEWGEN
SHALL COMPLY WITH THE APPLICABLE PRODUCT SPECIFICATIONS AND SHALL BE FREE FROM
DEFECTS IN MATERIALS AND WORKMANSHIP.
5.5 LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE ENTITLED TO RECOVER
FROM THE OTHER PARTY ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES
IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS PURCHASED HEREUNDER.
6. CONFIDENTIALITY
6.1 CONFIDENTIAL INFORMATION. Each party acknowledges that all
information relating to any marketing, business plan or financial matter
relating to the other party, its present or future products, sales, suppliers,
customers, employees, operations, investors or business, whether in oral,
written, graphic or electronic form, constitutes confidential or proprietary
information of the other party (collectively, "Confidential Information");
PROVIDED, HOWEVER, that Confidential Information shall not include any
information which the receiving party can prove by competent evidence (a) is
now, or hereafter becomes, through no act or failure to act on the part of the
receiving party, generally known or available in the public domain, (b) is known
by the receiving party at the time of receiving such information, as evidenced
by its records, or (c) is hereafter furnished to the receiving party by a Third
Party, as a matter of right and without restriction on disclosure.
6.2 NONDISCLOSURE. During the term of this Agreement and for a period
of five years thereafter, each party will maintain all Confidential Information
of the other party as confidential and will not disclose any Confidential
Information of the other party to any Third Party or use any Confidential
Information of the other party for any purpose, except (a) as expressly
authorized by this Agreement, (b) as required by law, rule, regulation or court
order (provided that the disclosing party shall use commercially reasonable
efforts to obtain confidential treatment of any such information required to be
disclosed), or (c) to its affiliates, employees,
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agents, consultants and other representatives (including third party support
vendors), to accomplish the purposes of this Agreement so long as such persons
are under an obligation of confidentiality no less stringent than as set forth
herein; and without limiting the generality of the foregoing exceptions, Newgen
may disclose Confidential Information to the extent deemed necessary, in its
reasonable discretion, to the Securities and Exchange Commission. Each party may
use such Confidential Information only to the extent required to accomplish the
purposes of this Agreement. Each party will use at least the same standard of
care as it uses to protect its own Confidential Information to ensure that its
affiliates, employees, agents, consultants and other representatives do not
disclose or make any unauthorized use of Confidential Information of the other
party. Each party will promptly notify the other upon discovery of any
unauthorized use or disclosure of the Confidential Information of the other
party.
7. TERM AND TERMINATION
7.1 TERM. This Agreement shall commence as of the April 1, 2000, and
shall continue for three years thereafter, unless terminated earlier as provided
herein.
7.2 TERMINATION. Either party may terminate this Agreement prior to the
expiration of the term of this Agreement upon the occurrence of any of the
following:
(a) Upon or after the bankruptcy, insolvency, dissolution or
winding up of the other party (other than dissolution or winding up for the
purposes of reconstruction or amalgamation); or
(b) Upon or after the breach of any material provision of this
Agreement by the other party if the breaching party has not cured such breach
within 30 days after written notice thereof by the non-breaching party.
7.3 TERMINATION BY NEWGEN. Newgen shall have the right to terminate
this Agreement prior to the expiration of the term of this Agreement at any time
following Xxxxxxxx'x third failure to meet the Product Specifications within 60
days as required herein. Newgen shall also have the right to terminate this
agreement at any time prior to the expiration of the term without cause, so long
as Newgen pays Xxxxxxxx a termination fee equal to the number of months
remaining under the term of this agreement multiplied by one hundred and fify
five thousand dollars ($155,000).
7.4 EFFECT OF TERMINATION. Expiration or termination of this Agreement
shall not relieve the parties of any obligation accruing prior to such
expiration or termination. The provisions of Sections 1, 6.1, 6.2, and 7 shall
survive termination or expiration of this Agreement.
8. GENERAL PROVISIONS
8.1 FORCE MAJEURE. Neither party shall be held liable or responsible to
the other party nor be deemed to have defaulted under or breached this Agreement
for failure or delay in fulfilling or performing any term of this Agreement when
such failure or delay is caused by or results from causes beyond the reasonable
control of the affected party, including, without limitation, fire, floods,
earthquakes, natural disasters, embargoes, war, acts of war (whether war
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be declared or not), insurrections, riots, civil commotions, strikes, lockouts
or other labor disturbances, acts of God or acts, omissions or delays in acting
by any governmental authority or the other party. If Xxxxxxxx is unable to
perform its obligations hereunder due to one of the foregoing events, Newgen
shall have the right to purchase Products (or substitute products) from third
parties without any obligation to Xxxxxxxx.
8.2 ASSIGNMENT. Except as expressly provided hereunder, neither this
Agreement nor any rights or obligations hereunder may be assigned or otherwise
transferred by either party without the prior written consent of the other party
(which consent shall not be unreasonably withheld). The rights and obligations
of the parties under this Agreement shall be binding upon and inure to the
benefit of the successors and permitted assigns of the parties. Any assignment
not in accordance with this Agreement shall be void. Newgen shall remain liable
for payment of all outstanding invoices and charges accrued up to the date of
any valid assignment hereunder.
8.3 ENTIRE AGREEMENT; AMENDMENT. This Agreement (including the exhibits
attached hereto) sets forth all of the covenants, promises, agreements,
warranties, representations, conditions and understandings between the parties
with respect to the subject matter hereof, and supersedes and terminates all
prior agreements and understanding between the parties with respect to the
subject matter hereof. There are no covenants, promises, agreements, warranties,
representations conditions or understandings with respect to the subject matter
hereof, either oral or written, between the parties other than as set forth
herein. No subsequent alteration, amendment, change or addition to this
Agreement shall be binding upon the parties hereto unless reduced to writing and
signed by the respective authorized officers of the parties.
8.4 HEADINGS. The captions contained in this Agreement are not a part
of this Agreement, but are merely guides or labels to assist in locating and
reading the several Sections hereof.
8.5 NOTICES. All notices and other communications provided for
hereunder shall be in writing and shall be mailed by first-class, registered or
certified mail, postage paid, or delivered personally, by overnight delivery
service or by facsimile, computer mail or other electronic means, with
confirmation of receipt, addressed as follows:
IF TO NEWGEN: NEWGEN RESULTS CORPORATION
00000 Xxxx Xxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attn: Chief Financial Officer
Fax No. (000) 000-0000
IF TO XXXXXXXX: Xxxxxxxx Direct
. 0000 Xxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attn: President
Fax No. (000) 000-0000
Either party may by like notice specify or change an address to which
notices and communications shall thereafter be sent. Notices sent by facsimile,
computer mail or other
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electronic means shall be effective upon confirmation of receipt, notices sent
by mail or overnight delivery service shall be effective upon receipt, and
notices given personally shall be effective when delivered.
8.6 INDEPENDENT CONTRACTORS. It is expressly agreed that Xxxxxxxx and
Newgen shall be independent contractors and that the relationship between the
two parties shall not constitute a partnership, joint venture or agency of any
kind. Neither party shall have the authority to make any statements,
representations or commitments of any kind, or to take any action, which shall
be binding on the other, without the prior written consent of the other party.
8.7 SEVERABILITY. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
8.8 WAIVER. Except as specifically provided for herein, the waiver from
time to time by either of the parties of any of their rights or their failure to
exercise any remedy shall not operate or be construed as a continuing waiver of
the same rights or remedies or of any other of such party's rights or remedies
provided in this Agreement.
8.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above set forth.
NEWGEN RESULTS CORPORATION GEOMEL ENTERPRISES, INC.
By: /s/ Xxx Xxxxxx By: /s/ Xxx Xxxxxx
--------------------------- ---------------------------
Name: Xxx Xxxxxx Name: Xxx Xxxxxx
------------------------- -------------------------
Title: Senior VP & Chief Title: Chief Financial Officer
Financial Officer ------------------------
------------------------
PURCHASE AGREEMENT
EXHIBIT A
RESULTS PACKAGE #1:
LETTERS Size: 8.5" x 11.0"
Paper: White copy paper. Usage at 95%.
Pastel colored. Usage at 5%.
Print: Laser printed and personalized
4 color laser on one side.
Average 10% toner coverage
ENVELOPES #10 Standard left-hand window - 95% of total envelopes.
Size: 4.2" x 9.5"
Paper: White. Usage at 95%.
Pastel colored. Usage at 5%.
Print: Offset print.
1 color on one side.
ENVELOPES #10 Double window - 5% of total envelopes.
Size: 4.2" x 9.5"
Paper: White.
Print: Offset print.
1 color on one side.
MAIL PREPARATION
Machine letter fold
Machine insert into specified preprinted # 10 envelope
Submit to presort bureau
COMPUTER CARE PACKAGE #2:
LETTERS Size: 8.5" x 11.0", 6.0" x 11.0", 7.25" x 11.0"
Paper: Preprinted 4 color letterhead "shells" - 50% of total
Preprinted 2 color letterhead "shells" - 50% of total
Approximately 50 letterhead types.
Print: Laser printed and personalized
Black laser on one side.
Average 10% toner coverage
Retain original one-up / two-up print configuration.
ENVELOPES 3 sizes of window envelope
Size: 4.2" x 9.5", 4.4" x 6.6", 3.9" x 7.8"
Print: Offset print. 4 color on one side - 20% of usage.
1 color on one side - 80% of usage.
Approximately 13 envelope types.
MAIL PREPARATION
Machine letter fold
Machine insert into specified preprinted envelope
Submit to presort bureau
COMPUTER CARE (AUTO NATION) PACKAGE #3:
LETTERS Size: 8.5" x 14.0"
Paper: Preprinted 3 color letterhead "shells".
Print: Laser printed and personalized
Black laser on two sides.
Average 10% toner coverage
ENVELOPES #10 Standard left-hand window.
Size: 4.2" x 9.5"
Paper: White.
Print: Offset print.
1 color on one side.
MAIL PREPARATION
Machine letter fold
Machine insert into specified preprinted envelope
Submit to presort bureau
EXHIBIT B
FIVE DAY
PRODUCTION SCHEDULE
DAY ONE: Xxxxxxxx receives variable letter copy and data from Newgen.
DAY TWO: Xxxxxxxx prints and folds letters.
DAY THREE: Xxxxxxxx inserts letters into appropriate envelopes.
DAY FOUR: Xxxxxxxx resolves all data irregularities from day one, and
processes all reprints. Presort bureau picks up mail.
DAY FIVE: Mail enters mail stream.
* Computer Care printing to be done on a weekly basis by manufacturing grouping.
EXHIBIT C
Pricing for Newgen
Results Letters $0.155
Computer Care Letters $0.087
Autonation Letters $0.112
Credit For Existing Letterhead ($0.011) - For Computer Care & Autonation
Credit For Existing Envelopes ($0.015) - For Computer Care & Autonation
Monthly volume is based on the combined total for Results, Computer Care and
Autonation letters. Pricing for each product will be adjusted by applying the
price multiplier, indicated below, if total monthly volume falls below 2,500,000
letters.
Monthly Volume Price Multiplier
2,500,000 - Plus -
2,400,000 - 2,499,000 1.016
2,300,000 - 2,399,000 1.032
2,200,000 - 2,299,000 1.048
2,100,000 - 2,199,000 1.065
2,000,000 - 2,099,000 1.081
1,900,000 - 1,999,000 1.097
1,800,000 - 1,899,000 1.113
1,700,000 - 1,799,000 1.129
1,600,000 - 1,699,000 1.145
1,500,000 - 1,599,000 1.161
1,400,000 - 1,499,000 1.177
1,399,000 1.194
Example
Actual monthly volume falls to 2,000,000 letters, pricing would be:
PRODUCT BASE PRICE PRICE MULTIPLIER NEW PRICE
------- ---------- ----------------- ---------
Results letters $.155 1.081 $.1675
Computer Care $0.087 1.081 $0.094
Autonation $0.112 1.081 $0.121
