CATCHER(TM) DEVICE FINDER'S AGREEMENT

 

 

                                                  CONFIDENTIAL TREATMENT REQUEST

                                            [ * ] INDICATES INFORMATION THAT HAS

                                                      BEEN OMITTED PURSUANT TO A

                                              CONFIDENTIAL TREATMENT REQUEST AND

                                           THIS INFORMATION HAS BEEN FILED UNDER

                                              SEPARATE COVER WITH THE COMMISSION

 

 

                      CATCHER(TM) DEVICE FINDER'S AGREEMENT

 

        This Finder's Agreement ("AGREEMENT") is entered into this __ day of

September, 2005 (the "EFFECTIVE DATE") by and between Innerwall, Inc., a

Delaware corporation with principal offices at 2060 Briargate Pkwy., Colorado

Springs, CO 80920 ("INNERWALL"), and Catcher, Inc., a Delaware corporation with

principal offices at 39526 Charlestown Pike, Hamilton, VA 20158 ("Catcher").

Catcher and Innerwall are sometimes individually referred to as a "party" and

collectively referred to as the "parties."

 

                                   RECITALS:

 

        WHEREAS, Catcher desires to appoint Innerwall as a non-exclusive finder

of customers for the Catcher(TM) device and to pay Innerwall a finder's fee for

such services in accordance with the terms of this Agreement; and

 

        WHEREAS, Innerwall desires to perform services for Catcher as a finder

of customers for the Catcher(TM) device in accordance with the terms of this

Agreement;

 

        NOW, THEREFORE, based upon the foregoing premises and the mutual

covenants set forth herein and for other good and valuable consideration, the

receipt and sufficiency of which is hereby acknowledged, intending to be legally

bound, the parties hereby agree as follows:

 

1.      DEFINITIONS. The following terms, when used with initial capital letters

will have the meaning set forth below unless the clearly context requires

otherwise:

 

        (a)     "BUSINESS RELATIONSHIP" will mean, and be deemed to be

established by, the communication of a request for proposal, quotation or

information, bid, or other similar communications with respect to the sale or

purchase, or the prospective sale or purchase, of the Catcher(TM) device.

 

        (b)     "CATCHER(TM) DEVICE" will mean the communications and telemetry

computing hand-held device for emergency responses sold by Catcher, as well as

accessories therefor, that Catcher may make available from time to time, all as

listed in the most current price list issued by Catcher.

 

        (c)     CONFIDENTIAL INFORMATION" will mean all proprietary information

possessed by a party relating to its business activities and plans, including

without limitation, financial and cost information, information relating to the

party's technology, trade secrets, manufacturing methods, marketing, business

plans, customers, products, services, and employees, as well as the provisions

of this Agreement, that a party may provide to the other party or about which

the other party may learn in connection with this Agreement, EXCEPT THAT,

"Confidential Information" will not include any information that: (i) can be

clearly demonstrated by a party by written evidence to have been known by it

prior to beginning its relationship with the other party; (ii) is or becomes

generally available to the public through no fault of such party; (iii) is

obtained by such party in good faith from a third party who discloses such

information to such party on a non-confidential basis without violating any

obligation of confidentiality or secrecy

 

 

* Portions of this exhibit have been omitted and filed separately pursuant to an

application for confidential treatment filed with the Securities and Exchange

Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as

amended.

 

                                        1

<PAGE>

 

 

relating to the information disclosed; or (iv) can be clearly demonstrated to

have been independently developed by such party without access to Confidential

Information.

 

        (d)     "CATCHER DISTRIBUTOR PARTNERS" will mean resellers,

distributors, value-added resellers, systems integrators and OEM licensees or

other entities, other than Innerwall, each of which purchase the Catcher(TM)

device solely from Catcher for internal use or resale to End Users.

 

        (e)     "CUSTOMERS" will mean Catcher Distributor Partners and End

Users.

 

        (f)     "END USER" will mean a person or entity, including governmental

and institutional entities, which obtain the Catcher(TM) device solely from a

Catcher Distributor Partner for its own use and not for resale.

 

        (g)     "FINDER'S FEE" will mean the fee earned by Innerwall for its

finder's services solely as set forth in paragraph 3 of this Agreement.

 

        (h)     "INNERWALL REGISTERED CUSTOMER" will mean a potential customer,

the name and Innerwall contacts for which are submitted in writing by Innerwall

to Catcher, and accepted in writing by Catcher as a new potential Catcher

business opportunity, entitling Innerwall to a Finder's Fee if the conditions of

paragraph 3 are met.

 

        (i)     "NET SELLING PRICE" will mean the invoice price at which Catcher

sells the Catcher(TM) device, less: the actual cost of freight charges or of

freight absorption separately stated on the invoice; all discounts, allowances

and rebates; associated fees and commissions; duties and taxes on sale,

transportation or delivery separately stated on the invoice (unless in the

nature of a value added tax, which need not be separately stated); credit and

cash refunds for returned goods; and allowances for damaged, obsolete or

defective goods.

 

        (j)     "ORDER" will mean a firm order for Catcher(TM) devices from a

Catcher Distributor Partner placed with Catcher or a firm order for Catcher(TM)

devices from an End User placed with a Catcher Distributor Partner during the

Term.

 

        (k)     "TERRITORY" will mean the any country in the world where Catcher

(or a subsidiary or affiliate sells the Catcher(TM) device to Catcher

Distributor Partners.

 

        (l)     "TERM" will mean the Initial Term and any Renewal Term (both as

defined in paragraph 5).

 

        (m)     "SALES REPORT" will mean Catcher's report to Innerwall

identifying sales to Customers for which Innerwall earns a Finder's Fee, such

report to include the name and address of Customer (if Catcher has such

information and is permitted to release it), the number of units of the

Catcher(TM) device sold to such Customer and the Finder's Fee earned during the

period covered by the report.

 

2.      APPOINTMENT AND SERVICES.

 

        Innerwall is hereby appointed a non-exclusive finder to find within the

Territory Customers to purchase from Catcher or a Catcher Distributor Partner,

as the case may be, Catcher(TM) devices. If the Customers are End Users, Catcher

will recommend to Innerwall the names of Catcher Distributor Partners that may

be willing to sell the Catcher(TM) device to such End Users; PROVIDED THAT,

Catcher will have no

 

 

* Portions of this exhibit have been omitted and filed separately pursuant to an

application for confidential treatment filed with the Securities and Exchange

Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as

amended.

 

                                       2

<PAGE>

 

 

responsibility to find a Catcher Distributor Partner for such purpose. In

performing its services under this Agreement, Innerwall will not interfere with

the existing business relationships between or among Catcher, a Catcher

Distributor Partner and an End User or engage in any unfair or unlawful trade

practice.

 

3.      FINDER'S FEE.

 

        (a)     FINDER'S FEE. Innerwall will earn a Finder's Fee equal to [ * ]

([ * ]%) percent of the Net Selling Price of Catcher(TM) devices that are sold

by Catcher during the Term (i) to a Catcher Distributor Partner that submits as

its first Order to Catcher an Order from an Innerwall Registered Customer, or

(ii) to a Catcher Distributor Partner for resale to an End User that submits as

its first Order to such Catcher Distributor Partner an Order from an Innerwall

Registered Customer. For the avoidance of doubt, Innerwall will not earn a

second Finder's Fee in respect of any purchase or resale of the Catcher(TM)

device that is made by Innerwall to an Innerwall registered customer.

 

                (i)     CONDITIONS TO FINDER'S FEE. The payment of the Finder's

Fee is absolutely conditioned upon each of the following: (1) Innerwall not

being in material default of its obligations under this Agreement; (2) the

customer is an Innerwall Registered Customer; and (3) Catcher having received

full payment for the Catcher(TM) devices sold to such Catcher Distributor

Partner at the time that the Finder's Fee is due.

 

                (ii)    NO OBLIGATION TO SELL. Notwithstanding anything in this

Agreement to the contrary, neither Catcher nor a Catcher Distributor Partner

will have an obligation to accept an order for the Catcher(TM) device from any

Customer.

 

        (b)     SUNSET PROVISION. If a Customer with respect to which Innerwall

is due a Finder's Fee under this Agreement does not purchase Catcher(TM) devices

for a period of six (6) months or more, no further Finder's Fee will be due to

Innerwall under this Agreement with respect to such Customer.

 

4.      SALES REPORT AND PAYMENT OF FINDER'S FEE.

 

        (a)     SALES REPORT. Catcher will provide Innerwall with a Sales Report

within 30 days after the end of each calendar quarter. The information contained

in each Sales Report will be based upon the activity in the previous calendar

quarter. The information in the Sales Report will deemed correct unless

Innerwall protests the accuracy of such information in detail within 10 days

after receipt of the Sales Report. Catcher will pay the uncontested portion of

the Finder's Fee due to Innerwall for the prior quarter within 30 days after

issuing the Sales Report.

 

        (b)     AUDIT. Innerwall may, at its sole cost and expense and at any

reasonable time during the Term but no more than once eac