Exhibit 10.3
STRATEGIC COLLABORATION AGREEMENT
STRATEGIC COLLABORATION AGREEMENT, dated June 28, 2000, by and between
eMarketer, Inc., a corporation organized under the laws of Delaware
("eMarketer"), New Generation Holdings, Inc., a corporation organized under the
laws of Delaware ("NGH"), and New Generation Partners, Inc., a Delaware
corporation and a wholly-owned subsidiary of NGH ("NGP").
W I T N E S S E T H:
WHEREAS, NGP desires to retain eMarketer to provide information
aggregation services in connection with NGP's Internet venture development and
acceleration activities in Europe and to grant to eMarketer a preferred position
as a provider of information and statistical aggregation services required by
NGP and its network companies (for purposes of this Agreement, NGP Network
Companies shall mean those companies in which NGP or its affiliates invest or
for which NGP or its affiliates provide development and acceleration services);
and
WHEREAS, eMarketer desires to provide NGP with such information and
statistical aggregation services as described herein;
NOW, THEREFORE, in consideration of the mutual agreements herein, the
parties hereto, intending to be legally bound, do hereby agree as follows:
1. RETENTION OF EMARKETER. Upon the terms and subject to the conditions
in this Agreement, NGP hereby retains eMarketer to provide the services
described herein and eMarketer accepts such retention and agrees to provide such
services.
2. EQUITY PARTICIPATION. eMarketer shall receive 50,000 shares of NGH
(NASDAQ BB: NGPX) (the "Shares") pursuant to a separate agreement among Bachkine
& Xxxxx Industries S.A., NGH and eMarketer dated concurrently herewith.
eMarketer acknowledges that, as of the date of this Agreement, the Shares are
"restricted securities" within the meaning of Rule 144 promulgated by the
Securities and Exchange Commission under the Securities Exchange Act of 1933, as
amended. eMarketer further acknowledges, however, that the Shares are to be
included in NGH's Registration Statement on Form SB-2 filed with the United
States Securities and Exchange Commission, and that, upon effectiveness of such
Registration Statement, the Shares may be sold without restriction (subject to
any restrictions that may be applicable to the extent that eMarketer is deemed
to be an "affiliate" of NGH under the Securities Act of 1933, as amended, or the
Securities Exchange Act of 1934, as amended). Notwithstanding the foregoing,
eMarketer agrees that it will not sell or dispose the Shares without the prior
consent of NGP for a period of six months from the date of this Agreement.
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3. SERVICES TO BE PROVIDED BY EMARKETER. eMarketer agrees to provide
the following services to NGP or its network companies:
(a) eMarketer will provide the necessary resources to provide, in a
timely manner, information services which includes the aggregation of statistics
and a market analysis of the Internet marketplace, including business to
business e-commerce ("B2B") and wireless applications.
(b) eMarketer will from time to time as events warrant provide NGP
with market information regarding incubation and accelerator businesses,
Internet oriented direct investment companies and the b2b and wireless market
segments in Europe and worldwide.
(c) eMarketer shall provide NGP, at no cost, all of its regular
published reports. Specialized reports may be ordered by NGP or network
companies designated from time to time by NGP and shall be provided to the
extent eMarketer agrees to produce such reports on a case by case basis at an
agreed upon preferential price structure.
(d) eMarketer shall be a preferred provider of information services
relating to the Internet for NGP and its all of its designated network
companies. In this regard, NGP agrees to use its reasonable best efforts to
introduce eMarketer to its network companies and to facilitate the provision by
eMarketer of such services to NGP's network companies.
4. FEES. In connection with the services to be provided by eMarketer
hereunder, NGP and NGH agree to pay (or arrange for the delivery) of the
following:
(a) eMarketer shall be reimbursed in cash for its actual direct
costs incurred by eMarketer in providing such services, including eMarketer's
direct personnel. eMarketer shall provide to NGP such documentation of the
actual costs incurred by eMarketer as NGP may reasonably request.
(b) NGH shall issue to eMarketer (or cause one of its stockholders
to transfer to eMarketer) shares of NGH Common Stock in an amount necessary to
reimburse eMarketer's overhead and "profit" (to be mutually agreed but not fall
short of eMarketer's normal margins) in respect of the services provided by
eMarketer. Such shares of NGH stock shall be issued quarterly and calculated
using the average price of NGH Common Stock (calculated by adding the high and
the low sale prices for each trading day during the applicable quarterly period
and dividing the result by the product of two (2) and the number of trading days
during the applicable quarterly period.
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5. COLLABORATION; BOARD MEMBERSHIP.
(a) NGP agrees to introduce eMarketer for the purpose of the mutual
development of beneficial relationships, to NGP's partners in its "Global Impact
Group", consisting of Double Impact (San Francisco - U.S.), Strathmore Group
(New Zealand), ECOne-Tokyo (Japan) and NGP. The purpose of this group is to
develop "global" solutions to new economy entrepreneurs.
(b) NGH agrees to nominate Xx. Xxxxx Xxxxxxxx, Chief Financial
Officer and Chief Technical Officer of eMarketer, to be a member of NGH's Board
of Directors.
6. TERM. This Agreement shall commence as of the date of this Agreement
and shall continue for an indefinite term. This Agreement may be terminated on
90 days written notice by any party to the others.
7. CONFIDENTIALITY. Each party agrees that, in providing its services
to the other party (or in the case of NGP, its investee companies), and by
virtue of the relationship of trust and confidence between the parties, each
possesses and will possess certain knowledge of operations and other
confidential information of the other party which are of a special and unique
nature and value to them. Each party covenants and agrees that it will not, at
any time, whether during the term of this Agreement or otherwise, reveal,
divulge or make known to any person or entity (other than the other party) or
use for its own account, any proprietary records, data, plans, trade secrets,
policies, strategies, methods or practices of obtaining or doing business,
computer programs, know-how or knowledge relating to customers, sales,
suppliers, market developments, equipment, processes, products or any other
confidential or proprietary information whatsoever of the other party (the
"CONFIDENTIAL INFORMATION"), whether or not obtained with knowledge and
permission of the other party and whether or not developed, devised or otherwise
created in whole or in part through the efforts of the other party. Each party
further covenants and agrees that it shall retain all Confidential Information
which it acquires or develops in trust for the sole benefit of the other party
and their successors and assigns. Confidential Information shall not include any
information which has entered the public domain otherwise than by reason of a
disclosure by the disclosing party. Each party agrees to deliver to the other
party at the termination of this Agreement or at any other time the requesting
party may request all Confidential Information which it then may possess or have
under its control.
8. LAW APPLICABLE. This Agreement shall be governed by and construed
pursuant to the laws of New York, without giving effect to conflicts of laws
principles.
9. NOTICES. Any notices required or permitted to be given pursuant to
this Agreement shall be sufficient, if in writing and sent by electronic mail
(with confirmation receipt), to Xxxxx Xxxxxxxx at 000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, in the case of eMarketer, and in the case of the NGH and NGP to Xxxx
Hokfelt at rue des Xxxxxxx xx Xxxxx 00, 0000 Xxxxxx, Xxxxxxxxxxx.
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10. ASSIGNMENT, ETC. The parties acknowledge and agree that they cannot
assign or delegate any of their rights, duties, responsibilities or obligations
hereunder to any other person or entity.
11. SEVERABILITY. If any provision of this Agreement shall be held to
be invalid or unenforceable, and is not reformed by a court of competent
jurisdiction, such invalidity or unenforceability shall attach only to such
provision and shall not in any way affect or render invalid or unenforceable any
other provision of this Agreement, and this Agreement shall be carried out as if
such invalid or unenforceable provision were not contained herein.
12. NO WAIVER. A waiver of any breach or violation of any term,
provision or covenant contained herein shall not be deemed a continuing waiver
or a waiver of any future or past breach or violation. No oral waiver shall be
binding.
13. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same instrument and it shall not be necessary in making proof of this
agreement to account for all such counterparts.
IN WITNESS WHEREOF, the undersigned have hereunto set their
hands to this Agreement on the day and year first above written.
eMARKETER, INC.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer
NEW GENERATION PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
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NEW GENERATION HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
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