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 A
CONFIDENTIAL TREATMENT REQUEST
THAT IS FILED SEPARATELY WITH THE
COMMISSION
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "Agreement") is entered into as of
September 4, 1998 (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 "[****]" means a [****] and [****] the [****].
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.
3. PURCHASE PRICE AND PAYMENT; VOLUME REQUIREMENTS
3.1 PURCHASE PRICE. Newgen shall pay to Xxxxxxxx $[****] for each
Product purchased under this Agreement for each month Newgen purchases
greater than [****]
1.
* CONFIDENTIAL TREATMENT REQUESTED
Products. 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 from time to time is in excess
of [****]% of the cost of paper in effect on the date of this Agreement (such
cost of paper in effect on the date of this agreement hereinafter referred to
as "Initial Paper Cost" and set out in Exhibit D hereto) for [****]
consecutive months, Newgen agrees to pay Xxxxxxxx the difference between the
paper cost at the end of such [****] month period and [****]% of the Initial
Paper Cost. Xxxxxxxx will notify Newgen within 30 days of the date on which
the cost of paper exceeds [****]% of 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 [****] Products per month.
After the Effective Date, Newgen expects its volume requirements to initially
equal at least [****] 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. During the term of this Agreement, Newgen shall
purchase from Xxxxxxxx, so long as Xxxxxxxx is in compliance herewith, at
least [****]% of its Product volume requirements; and Xxxxxxxx shall supply
to Newgen each Product in the amount of such requirements. 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.
* CONFIDENTIAL TREATMENT REQUESTED
2.
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).
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
3.
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,
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 date of delivery of
the first Product pursuant hereto 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.
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
4.
limitation, fire, floods, earthquakes, natural disasters, embargoes, war,
acts of war (whether war 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); provided,
however, that Newgen may assign this Agreement and its rights and obligations
hereunder without Xxxxxxxx'x consent to any affiliate of Newgen. 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: GEOMEL ENTERPRISES, INC.
0000 Xxxxxx Xx.
Xxx Xxxxx, XX 00000-0000
Attn: President
Fax No. (000) 000-0000
5.
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 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.
6.
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 XXX
--------------------------------- ---------------------------------
Name: XXXXXX XXXXXX Name: XXX XXX
------------------------------- -------------------------------
Senior Vice President and
Title: Chief Financial Officer Title: President
------------------------------ ------------------------------
PURCHASE AGREEMENT
EXHIBIT A
PRODUCT SPECIFICATIONS
[****]
LETTERS
SIZE: [****]
PRINT: [****]
[****] AND [****]
[****]
PAPER: [****]
COLORS -- [****] OF [****]
ENVELOPES
[****] -- [****] OF TOTAL ENVELOPES
SIZE: [****]
PRINT: [****]
PAPER: [****]
COLORS -- [****] OF [****]
[****] -- [****] OF [****] ENVELOPES
SIZE: [****]
PRINT: [****]
PAPER: [****]
MAIL PREPARATION
[****] AND [****] INTO APPROPRIATE [****]
INSERT [****] UPON REQUEST [****] OF [****] AND
[****] THE [****]
SUBMIT TO [****]
* CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT B
[****] AND [****]
- Provide [****] to [****]
- Facilitate [****] from [****] to [****] to [****]
- Provide a [****] that [****]
as [****]
- Provide [****] and [****] of [****] in [****]
- Meet [****] in the [****] and [****]:
[****]
[****]
[****] of [****], [****] and [****]
* CONFIDENTIAL TREATMENT REQUESTED
[****]
[****] [****] [****] [****] [****]
------- ------- --------- -------- --------
[****] [****] [****] [****] [****]
and with [****] into [****]
[****] [****] that [****] are
to [****] [****] [****]
[****] [****]
* CONFIDENTIAL TREATMENT REQUESTED
[****]
[****] OF [****]
- [****] will be [****] the [****], with the [****].
- Each [****] will be [****] of [****], with
these [****] having been [****] to [****] on [****].
- There are some [****] and [****] or [****] of these [****].
- The total [****] making up [****] will [****].
- The [****] will be [****] the [****].
- There will be [****] with [****], as is [****] the
[****].
- [****] will be [****] to [****] in [****] ([****]
and [****]). The [****] will be [****] from [****] to [****].
- Each [****] will be [****] by a [****] the [****]
and [****] for [****].
* CONFIDENTIAL TREATMENT REQUESTED
[****]
[****] AT [****] & [****] THE [****] THE
[****] FROM [****] ARE [****] AND [****] FOR [****].
- It is [****] that a [****] was [****] with the [****].
- It is [****] that [****] is [****] on the [****].
- It is [****] whether, for [****] on the [****], a [****].
- It is [****] that for [****] is a [****].
- [****] that are [****] are [****] to a [****] to
[****].
- [****] is [****] of any [****] to [****] by
the [****].
- The [****] are [****] in
[****] with their [****] and [****].
[****] ARE [****] TO [****] AND [****].
- [****] are [****] by [****] to [****]
and [****]. [****] are [****] and
[****] by the [****].
- Each [****] the [****].
- [****] are [****] and [****] at [****], [****], and
[****].
- [****] do a [****] of a [****]
of [****] as it is [****] the
[****]:
[****]
[****]
[****]
* CONFIDENTIAL TREATMENT REQUESTED
- As [****] are [****] are [****] on [****] and [****]
for [****]. There will be [****] at a [****] at one time.
- When a [****] of a [****] has [****], that [****] is
[****] to a [****] in the [****].
- A [****] be [****] from the [****] the [****]
for each [****] that [****]. The [****] will be
[****] the [****].
[****]
[****] - [****] ALL [****] ARE [****] TO [****] THE [****].
- [****] are [****] on [****] and [****] as [****]
to [****] in the [****]. [****] will [****].
- The [****] will [****]
and [****].
- [****] for [****] are [****] and [****]
the [****]. [****] are [****] an [****].
- Any [****] are [****] and [****] to a [****].
- The [****] and [****] to be [****] are [****] by
[****].
* CONFIDENTIAL TREATMENT REQUESTED
[****]
[****] [****] OF [****] IS [****] BY GROUP TO [****].
- Each [****] will [****].
- At any given time, only [****] of [****] is [****] at [****].
- At [****] the [****] will [****] with the [****]
and both will [****] and [****] .
- [****] will periodically (approximately [****]) [****]
and [****].
- [****] will be [****] with the [****].
- [****] for each [****] are [****] by the [****]. [****] are
[****] an [****].
- Any [****] are [****] out and [****] to a [****].
- The [****] and any [****] to be [****] are left for [****] by
the [****].
- [****] will be [****] to a [****].
* CONFIDENTIAL TREATMENT REQUESTED
[****]
ALL [****] ARE [****]. THESE [****] ARE THEN
[****] WITH THEIR [****] IN THE [****].
- Any [****] arising from [****] are
[****]. The [****] these [****] before the [****] is [****].
- The [****] all [****] from the [****], [****] that it is [****]
and [****]. It is seen that all [****] has been [****] to the [****].
- [****] are [****] to [****] to be [****] for [****].
- The [****] does a [****] that the [****] and [****] of
the [****] are [****].
- The [****] the [****] to the [****].
[****]
[****] TO [****].
[****]
THE [****] WILL [****] OF [****] TO [****]. THESE [****]
WILL BE [****] AND [****] THE [****].
[****] WITH [****], [****] AND [****]
WILL BE [****] TO [****].
* CONFIDENTIAL TREATMENT REQUESTED
[****]: Date: July 9, 1998
------------------------------------------ --------------------
[****]:
---------------------------------------
[****] [****]
[****]
------------------- -------------------
[****]
------------------- -------------------
[****] [****]
------------------- -------------------
[****] [****]
------------------- -------------------
[****] [****]
------------------- -------------------
[****] [****]
------------------- -------------------
[****]
------------------- -------------------
[****]
------------------- -------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
[****] [****] [****]
8:00 am (S)
----------- ----------- ----------- ----------- -----------
8:00 am (O)
----------- ----------- ----------- ----------- -----------
10:00 am (S)
----------- ----------- ----------- ----------- -----------
10:00 am (O)
----------- ----------- ----------- ----------- -----------
1:00 pm (S)
----------- ----------- ----------- ----------- -----------
1:00 pm (O)
----------- ----------- ----------- ----------- -----------
3:00 pm (S)
----------- ----------- ----------- ----------- -----------
3:00 pm (O)
----------- ----------- ----------- ----------- -----------
* CONFIDENTIAL TREATMENT REQUESTED
[****]: Date: July 9, 1998
------------------------------------------ --------------------
[****]:
---------------------------------------
[****] [****]
[****] [****]
------------------- -------------------
[****]
------------------- -------------------
[****] [****]
------------------- -------------------
[****] [****]
------------------- -------------------
[****] [****]
------------------- -------------------
[****] [****]
------------------- -------------------
[****]
------------------- -------------------
[****]
------------------- -------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
[****] [****] [****] [****]
8:00 am (S)
----------- ----------- ----------- ----------- -----------
8:00 am (O)
----------- ----------- ----------- ----------- -----------
10:00 am (S)
----------- ----------- ----------- ----------- -----------
10:00 am (O)
----------- ----------- ----------- ----------- -----------
1:00 pm (S)
----------- ----------- ----------- ----------- -----------
1:00 pm (O)
----------- ----------- ----------- ----------- -----------
3:00 pm (S)
----------- ----------- ----------- ----------- -----------
3:00 pm (O)
----------- ----------- ----------- ----------- -----------
* CONFIDENTIAL TREATMENT REQUESTED
[****]: Date: July 9, 1998
--------------------------------------- --------------------
[****]:
---------------------------------------
[****] [****]
[****] [****]
------------------- -------------------
[****]
------------------- -------------------
[****] [****]
------------------- -------------------
[****] [****]
------------------- -------------------
[****] [****]
------------------- -------------------
[****] [****]
------------------- -------------------
[****]
------------------- -------------------
[****]
------------------- -------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
[****] [****] [****] [****] [****]
8:00 am (S)
----------- ----------- ----------- ----------- -----------
8:00 am (O)
----------- ----------- ----------- ----------- -----------
10:00 am (S)
----------- ----------- ----------- ----------- -----------
10:00 am (O)
----------- ----------- ----------- ----------- -----------
1:00 pm (S)
----------- ----------- ----------- ----------- -----------
1:00 pm (O)
----------- ----------- ----------- ----------- -----------
3:00 pm (S)
----------- ----------- ----------- ----------- -----------
3:00 pm (O)
----------- ----------- ----------- ----------- -----------
* CONFIDENTIAL TREATMENT REQUESTED
[****]
Date:
---------------------------------------------------------------
[****]:
------------------------------------------------------------
[****]:
-----------------------------------------------------------
[****]:
------------------------------------------------------------
[****]:
--------------------
[****].......................... / /
------------------------------
[****].......................... / /
------------------------------
[****].......................... / /
------------------------------
[****].......................... / /
[****].......................... / /
------------------------------
[****].......................... / /
------------------------------
[****].......................... / /
------------------------------
[****].......................... / /
------------------------------
[****]:
---------------------------------------------
[****]:
-----------------------------------------------------
[****]:
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* CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT C
[****] FOR NEWGEN RESULTS
[****]
[****] - PLUS $[****]
[****] - [****] $[****]
[****] - [****] $[****]
[****] - [****] $[****]
[****] - [****] $[****]
[****] - [****] $[****]
[****] - [****] $[****]
[****] - [****] $[****]
[****] - [****] $[****]
[****] - [****] $[****]
[****] - [****] $[****]
[****] - [****] $[****]
[****] $[****]
* CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT D
INITIAL PRICE OF PAPER
THE INITIAL PRICE OF PAPER IS $[****] PER '000.
* CONFIDENTIAL TREATMENT REQUESTED
