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 each fiscal quarter during
the Term and with no less than seven (7)
days' prior written notice, request and
gain access to Catcher's premises during
normal business hours subject to
Catcher's security procedures, for the
limited purpose of conducting an audit to
determine and verify that Catcher is in
compliance with it's obligations to pay
the Finder's Fee. The audit will be
restricted in scope, manner and duration to
that reasonably necessary to achieve its
purpose and may not, in any event,
disrupt Catcher's operations. Catcher will
promptly contest (in accordance with
paragraph 10) any findings of the audit
that it believes are not grounded in
verifiable fact and will promptly pay all
underpayments revealed by the audit
that it does not contest.
* 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.
3
<PAGE>
5. TERM AND
TERMINATION.
(a)
TERM. Unless earlier terminated, the initial term of this
Agreement is three (3) years from the
Effective Date (the "Initial Term"). The
Initial Term will automatically renew for
an unlimited number of successive
one-year terms (each a "Renewal Term");
PROVIDED, HOWEVER, that in any Renewal
Term, either party may terminate this
Agreement by giving at least 60 days'
advance written notice of termination with
or without cause for any reason or no
reason.
(b)
TERMINATION. Either party may terminate this Agreement at any
time immediately upon written notice to the
other party if the other party is in
material default of this Agreement. A party
is in material default of this
Agreement if it (i) files or has filed
against it a
