Exhibit 10(iv)
Exhibit 10(iv) Strategic Collaboration Agreement
STRATEGIC COLLABORATION AGREEMENT
THIS STRATEGIC COLLABORATION AGREEMENT (the "Agreement") is made and
entered into as of this 31st day of March, 2000, by and between New Generation
Plastic, Inc., a Delaware corporation, with an address of 000 Xxxx Xxxxxx, Xxx
Xxxx, XX 00000 ("NGH") and New Generation Partners, Inc. with an address of 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("NGPartners"), on the one hand, and
Double Impact, Inc., a California corporation, with an address of 000 Xxxxxx,
Xxx Xxxxxxxxx, XX 00000 ("DI"), on the other.
W I T N E S S E T H:
WHEREAS, NGH is executing a name change to New Generation Holdings,
Inc. and forming two private subsidiaries, New Generation Plastic, Inc. and
NGPartners. NGPartners will engage in the incubation of European Internet
companies to create a collaborative network of business to business e-commerce,
Internet infrastructure and wireless Internet companies; and
WHEREAS, DI is a global venture catalyst firm which helps to accelerate
the development of early stage Information Technology and Internet ventures; and
WHEREAS, NGH, NGPartners and DI desire to collaborate in developing the
business of NGPartners; and
WHEREAS, NGH, NGPartners and DI desire to set forth in this Agreement
the terms and conditions applicable to their collaboration.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
ARTICLE I
NGPARTNERS RESPONSIBILITIES
1.1 Management of NGPartners. NGPartners and NGH will be responsible
for the overall management and operation of NGPartners, including organization,
planning, capitalization, staffing, recruitment of board members and advisors,
establishment of facilities and management of all operations.
1.2 Delivery of Information. NGPartners and NGH will also be
responsible for delivering to DI in a timely manner all information reasonably
required by DI to execute DI's responsibilities under this Agreement.
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ARTICLE II
DI RESPONSIBILITIES
2.1 NGPartners Advisory Services. DI will work closely with NGH and
NGPartners to achieve the goals and objectives of NGH and NGP's business plans.
DI will provide advisory services to NGH and NGPartners ("NGP Advisory") in the
areas of board of directors composition, board of advisors composition,
partnering, incubators structuring, incubator process, investment criteria and
process, deal flow generation, due diligence on incubator candidates and other
investment opportunities ("Direct Investments") and catalyst services for
incubator companies.
2.2 Portfolio Advisory Services. Once NGH or NGPartners has made an
investment in a "Direct Investment" company, DI will offer its services to these
companies directly ("Portfolio Advisory"), and will inform NGH of any
communications with the Direct Investment companies. If a Direct Investment
company desires to engage DI to perform services for them, DI will work with
such company pursuant to its normal and customary procedures. In the event such
Direct Investment company originates from Phase 1(a) or 1(b) NGP Incubation,
then DI shall consult with NGP prior to its offer of services and NGP shall have
right of approval with regards to the terms and compensation of DI for such
services. Such services shall be agreed to between DI and any such Direct
Investment company, although it is anticipated that the services to be performed
may include market and industry assessment, strategy review and development,
business model analysis, business development and partnering, valuation,
advisory on capital raising, M&A strategy/execution and referral to other
resources required by any such company. No other party shall be deemed a third
party beneficiary of any such contract that DI may enter into with a Direct
Investment company.
2.3 Limited non-compete. In the event DI has a potential incubatee
candidate or a potential investment opportunity, DI shall provide notice and a
reasonable opportunity to participate to NGH/NGP before making it available to
other competitive companies or service providers, namely other European
incubators. DI shall not directly take on another European incubator as a client
nor enter into a strategic alliance with such incubator without the prior
consent of NGH/NGP, such consent not to be unreasonably withheld.
ARTICLE III
COMPENSATION
3.1 Fees for NGPartners Advisory Services. DI will present to NGP no
later than March 20, 2000 a project plan outlining the specific NGP Advisory
Services to be performed for the remainder of Calendar Year 2000. This project
plan will be based upon the NGH/NGPartners business plan and assumptions. Based
upon this project plan, DI will receive cash fees for the services described
according to the following schedule. The parties hereto acknowledge and agree
that DI is providing the services described in this Section 3.1 at a discount to
its normal and ordinary rates.
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a. Corporate Advisory. Such services include advice relating to board
of directors composition, board of advisors composition, partnering, incubators
structuring, incubator process, investment criteria and process, and deal flow
generation. DI will provide these services for US$20,000 per month, payable in
advance, commencing on March 15, 2000. Payment of the first month's fee may be
deferred until the later of the time that NGH raises its initial $5,000,000
round of capital, or March 31st, 2000.
b. Review of Phase 1(A) Incubator Candidates. $1,000 per review,
payable upon completion of the review.
c. Catalyst Services for Phase 1(B) Companies. DI will perform catalyst
services for Phase 1(B) companies at the request of NGPartners. Such services
may include market landscape, industry landscape, general strategy, business
model analysis, business development strategy and/or capital advisory. The price
of such services shall be agreed on a case-by-case basis, but is anticipated to
be $20,000-$40,000 per month for three months for each company at a discounted
rate.
d. Due Diligence on Phase 1(B) ("Incubator Companies") and Phase 2 and
3 Companies ("Direct Investments"). This due diligence focuses on market
opportunities, business model, competition and management team, but does not
include legal or financial due diligence. These services will be priced at
$5,000, $10,000 or $15,000 per due diligence, depending on the nature and scope
required, the specifics of which are described in Exhibit B (which shall be
provided by DI not later than 10 days after the date of this Agreement), payable
upon completion of the review.
e. DI will not take direct equity stakes in the Incubator Companies,
but will instead satisfy its equity participation in these companies by virtue
of DI's equity ownership in NGH, as outlined below.
f. The project plan and associated fees can be adjusted by mutual
agreement between the parties.
g. The NGH Business Plan is attached hereto as Exhibit A, and is
incorporated by reference herein, including the terms "1(A) Incubator
Candidates," "1(B) Companies," and "Phase 2 and 3 Companies."
3.2 Fees for Portfolio Advisory Services for Phase 2 and 3 Companies.
The specific services to be provided by DI to Phase 2 and 3 Companies shall be
at the discretion of each individual Phase 2 and 3 Company's management, but
such services are anticipated to include market landscape, industry landscape,
general strategy, business model analysis, business development strategy,
business development, capital advisory, resource referral and/or strategy and
execution of mergers and acquisitions. Upon request of a Phase 2 and 3 Company's
management, DI will formulate customized proposals for services to be provided
to such company; provided, that the particular Phase 2 and 3 Company's operation
fits DI's client criteria. The specifics of each agreement with a Phase 2 and 3
Company will be negotiated with the management of each such company. All
agreements with Phase 2 and 3 Companies will be
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fully disclosed to NGH and NGPartners. DI's fees, including cash and equity,
will be set according to DI's normal and customary pricing in connection with
such investments. Cash fees shall be in the form of a prepaid monthly retainer.
DI reserves the right to receive equity fees upon a variety of terms and
conditions acceptable to DI. Success fees, which can be paid in a combination of
cash and equity, shall be tied to revenue generated by arrangements catalyzed by
DI and additional outside financing raised with DI's assistance. Although
agreements remain to be negotiated with such Phase 2 and 3 Companies, it is
anticipated that (a) the monthly retainer fees for the services to be provided
by DI shall be between $20,000-$40,000 per company per month for six to nine
months, (b) the equity fees shall be between 1%-3% of the Phase 2 and 3 Company,
measured as of the valuation of the most recent equity financing, and (c) the
success fees shall be 5%-15% of the gross revenue generated and/or approximately
5% of capital raised. In the case of Phase 2 and 3 Companies originating from
the NGH/NGP incubation, NGH/NGP shall have the right to exchange any DI equity
for a comparable amount of equity in NGH/NGP, the valuation of the DI equity
based on the fair value of the equity. In the case of non- originating incubator
Phase 2 and 3 investment companies, both parties shall consider exchanging any
equity DI may have acquired in the Phase 2 and 3 companies for NGH stock on a
case-by-case basis.
3.3 Equity Participation. In consideration of DI's contribution to the
co-founding of NGPartners, including the initial NGP Advisory, and ongoing
contribution to creating value in NGPartners, DI shall receive 500,000 shares of
NGH (NASDAQ BB: NGPX) as per a separate agreement among Bachkine & Xxxxx
Industries S.A., NGH and DI dated concurrently herewith. Six months after
signing of this Agreement, both parties will determine if they wish to continue
working together in the capacity outlined above. If so, DI shall receive an
additional 500,000 shares of NGH at that time. The exact terms and nature of
this stock participation will be determined as soon as possible by mutual
agreement, and the parties agree in good faith to work towards agreement that
minimizes the tax impact upon DI as a result of the consideration received under
this Section 3.3.
3.4 Bonus Payments. Not later than one year from the date of this
Agreement, depending on NGH's and NGPartner's performance and DI's contribution
thereto, NGH and/or NGP may, in its sole discretion, determine to make a further
bonus payment to DI of up to 500,000 shares of NGH and/or $500,000. DI's
contribution may be measured by NGH and NGPartners in the form of the deal flow
or financing contributed by DI, strategic relationships fostered by DI and/or in
others ways
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ARTICLE III
EMPLOYMENT TAXES AND BENEFITS
4.1 Compensation of DI's Personnel. DI shall bear sole responsibility
for payment of compensation to its employees and consultants. DI shall pay and
report, for all personnel assigned to NGH' work, income tax withholding,
workers' compensation, social insurance contributions, and unemployment
insurance applicable to such personnel as employees or consultants of DI. DI
shall bear sole responsibility for any health or disability insurance,
retirement benefits, other welfare or pension benefits, or dismissal indemnities
or any other type of payments to employees who leave the employment of DI, if
any, to which such personnel may be entitled. DI agrees to defend, indemnify,
and hold harmless NGH, its officers, directors, employees and agents, and the
administrators of NGH' benefit plans, from and against any claims, liabilities,
or expenses relating to such compensation, tax, insurance, or benefit matters,
including, but not limited to all claims under any applicable labor law
provisions, including, but not limited to claims concerning the dismissal of
personnel, provided, that NGH shall notify DI of each such claim and cooperate
with DI in the defense and resolution of such claim.
ARTICLE IV
TERM AND TERMINATION
5.1 Term. This Agreement will become effective on the date first shown
above and will continue in effect for an initial term of six (6) months (the
"Initial Term"), unless sooner terminated as provided herein or extended by
written agreement signed by both parties. At the end of the Initial Term the
parties will determine whether to continue this Agreement for an additional
period to be determined by the parties (the "Renewal Term").
5.2 Termination for Breach. In the event either party fails to perform
any material term in this Agreement (the "Defaulting Party") and fails to cure
such breach within thirty (30) days of receipt of written notice from the other
party specifically identifying the breach or breaches, the other party may,
without limitation of its other rights, and at its election, terminate this
Agreement, without further obligation or liability to the Defaulting Party
thereunder by giving at least ten (30) days advance written notice to the
Defaulting Party of the intended termination date.
5.3 Return of Materials. Upon the termination of this Agreement, each
party shall promptly return to the other all materials furnished by the other
party pursuant to this Agreement.
5.4 Survival. Articles 4 and 5 hereof shall survive termination or
expiration of this Agreement. In addition, all obligations of a party, including
payment obligations, incurred prior to the termination or expiration of this
Agreement shall survive such termination or expiration.
5.5 Independent Contractor. Each party expressly acknowledges and
agrees that for all purposes with respect to this Agreement, the status of the
parties hereto as between themselves is solely that of independent contractors.
This Agreement shall not constitute either
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party as the legal representative, employee, partner, joint venturer or agent of
the other, nor shall either party have the right or authority to assume, create,
or incur any liability or any obligation of any kind, express or implied,
against, or in the name of or on behalf of the other party.
ARTICLE V
GENERAL PROVISIONS
6.1 Board Participation. During the term of this Agreement, DI shall be
entitled to nominate one person to be elected to the Board of Directors of NGH.
NGH shall use its best efforts to see that such person is initially appointed by
the Board and when necessary recommend that such person be elected to the Board
by the shareholders. In the event that NGPartners has an initial public
offering, is merged with another entity or otherwise becomes an independent
entity, DI will receive one seat on its Board of Directors.
6.2 NGH/NGPartners Investment in DI. NGH and/or NGPartners will have
the right to invest $500,000 in the Series D round of DI, contingent upon making
a binding investment commitment no later than March 24, 2000 and paying in an
initial $100,000 no later than April 20, 2000 and the balance of $400,000 no
later than May 31, 2000. The Series D round is anticipated to close no later
than March 31, 2000. The terms and conditions of the investment will be the same
as those provided to other investors in the Series D round.
6.3 Notices. Any notices to be given hereunder by any party to the
other party may be effected either by personal delivery in writing or by
registered or certified mail (postage prepaid with return receipt requested),
overnight delivery service or facsimile (with a copy by registered mail). Mailed
notices shall be addressed to the parties at the addresses appearing in the
introductory paragraph of this Agreement, but each party may change such address
by written notice in accordance with this paragraph. The date upon which any
such notice is received at the designated address shall be deemed to be the date
of such notice.
6.4 Assignment. In view of the nature of the Services to be performed
by DI hereunder, this Agreement may not be assigned by either party without the
prior written consent of the other party.
6.5 Arbitration. In the event of a dispute between the parties arising
under this Agreement, the parties shall submit to binding arbitration in New
York County, New York, under the Commercial Arbitration Rules of the American
Arbitration Association ("AAA") before a single arbitrator chosen by the parties
(or, in the event that the parties are unable to agree on an arbitrator, by the
AAA) who is knowledgeable of the venture capital financial markets and the
internet industry. Pre-trial and trial procedures in the arbitration shall
generally be governed by the Federal Rules of Civil Procedure and the Federal
Rules of Evidence. The decision of the arbitrator shall be final and binding
with respect to the dispute subject to arbitration and shall be enforceable in
any court of competent jurisdiction. Each party shall bear its own expenses and
costs incurred in such arbitration. Nothing in this paragraph shall derogate
from the rights of the parties to seek preliminary injunctive relief before the
courts of New York to preserve the status quo.
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6.6 Waivers. Any delay or forbearance by either party in exercising any
right hereunder shall not be deemed a waiver of that right.
6.7 Entire Agreement. This Agreement, the attached schedules and
exhibits constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes any and all agreements, either oral or
written, between the parties hereto with respect to the subject matter hereof.
Each party to this Agreement acknowledges that no representations, inducements,
promises, or agreements, orally or otherwise, have been made by any party, or
anyone acting on behalf of any party, that are not embodied herein, and that no
other agreement, statement, or promise not contained in this agreement shall be
valid or binding. Any modification of this Agreement will be effective only if
it is in writing signed by the party to be charged.
6.8 Severability. If any provision of this Agreement shall be held to
be invalid or unenforceable in any jurisdiction in which this Agreement is being
performed, then the meaning of such provision shall be construed so as to render
it enforceable, to the extent feasible; and if no feasible interpretation would
save such provision, it shall be severed from this Agreement and the remainder
shall remain in full force and effect. However, in the event such provision is
considered an essential element of this Agreement, the parties shall promptly
negotiate a replacement thereof
6.9 Partial Invalidity. If any provision in this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions will nevertheless continue in full force without being
impaired or invalidated in any way.
6.10 Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York, without regard to conflicts
of law principles.
6.11 Public Announcements. The parties agree to cooperate in the
preparation of any public announcement or communication with any news media in
respect of this Agreement or the services performed.
6.12 Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the parties, their successors, and permitted assigns.
6.13 Negotiated Agreement. This Agreement is the result of negotiations
between the parties. Accordingly, no party to this Agreement shall be deemed to
be the author of this Agreement and there shall be no presumption that this
Agreement is to be construed for or against any party to this Agreement on the
basis of the authorship of this Agreement.
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6.14 Headings. The headings in this Agreement are inserted merely for
the purpose of convenience and shall not affect the meaning or interpretation of
this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first written above.
NEW GENERATION PLASTIC,INC.
By: /s/ Xxxx Hokfelt
-------------------------------
Name: Xxxx Hokfelt
Title: Chief Executive Officer
NEW GENERATION PARTNERS, INC.
By: /s/ Xxxx Hokfelt
-------------------------------
Name: Xxxx Hokfelt
Title: Chief Executive Officer
DOUBLE IMPACT, INC.
By: /s/ D. Xxxxxxx Xxxxx
-------------------------------
Name: D. Xxxxxxx Xxxxx
Title: President
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