ENCLAVE(TM) SOFTWARE 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

 

 

                     ENCLAVE(TM) SOFTWARE 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, Innerwall desires to appoint Catcher as a non-exclusive finder

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

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

 

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

of customers for the ENCLAVE(TM) software 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 licensing,

or the prospective licensing, of the ENCLAVE(TM) software.

 

        (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)     CATCHER REGISTERED CUSTOMER" will mean a potential customer, the

name and Catcher contacts for which are submitted in writing by Catcher to

Innerwall, and accepted in writing by Innerwall as a new potential Innerwall

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

paragraph 3 are met.

 

        (d)     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

 

 

* 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.

 

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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 relating to the

information disclosed; or (iv) can be clearly demonstrated to have been

independently developed by such party without access to Confidential

Information.

 

        (e)     "CUSTOMERS" will mean Intermediaries and End Users.

 

        (f)     "ENCLAVE(TM) SOFTWARE" will mean the network security software

solution that Innerwall offers for license from time to time, all as listed in

the most current license fee schedule issued by Innerwall.

 

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

and institutional entities, that licenses the ENCLAVE(TM) software from an

Intermediary or Innerwall (as well as an Intermediary that licenses the

ENCLAVE(TM) software) for its own use and not for resale.

 

        (h)     "FINDER'S FEE" will mean the fee earned by Catcher for its

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

 

        (i)     "NET PROCEEDS" will mean the invoice price at which Innerwall

licenses the licenses the ENCLAVE(TM) software, 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)     "INTERMEDIARY" will mean a reseller, distributor, value-added

reseller, systems integrator, OEM licensee or other entity that may license the

ENCLAVE(TM) software from Innerwall for use by an End User.

 

        (k)     "ORDER" will mean a firm order placed with Innerwall from a

Customer for a license under the ENCLAVE(TM) software during the Term.

 

        (l)     "TERRITORY" will mean any country in the world where Innerwall

licenses the ENCLAVE(TM) software to Customers.

 

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

defined in paragraph 5).

 

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

identifying licenses to Customers for which Catcher earns a Finder's Fee, such

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

information and is permitted to release it), a description of the licenses taken

by such Customer and the Finder's Fee earned during the period covered by the

report.

 

2.      APPOINTMENT AND SERVICES.

 

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

Territory Customers to

 

 

* 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>

 

 

license from Innerwall licenses the ENCLAVE(TM) software. In performing its

services under this Agreement, Catcher will not interfere with the existing

business relationships between or among Innerwall, an Intermediary and an End

User or engage in any unfair or unlawful trade practice.

 

3.      FINDER'S FEE.

 

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

* ] %) percent of the Net Proceeds from the licensing of the ENCLAVE(TM)

Software by Innerwall during the Term (i) to an Intermediary or an End User that

submits as its first Order of ENCLAVE(TM) software an Order from a Catcher

Registered Customer. For the avoidance of doubt, Catcher will earn a Finder's

Fee as a result of any license of the ENCLAVE(TM) software taken from Innerwall

by a Customer in connection with the purchase by the Customer of a Catcher(TM)

device[, WHICH CUSTOMER IS NOT AN INNERWALL REGISTERED CUSTOMER]. [FOR THE

PURPOSES OF THIS PARAGRAPH 3(A) AN INNERWALL REGISTERED CUSTOMER IS A CUSTOMER

ACCEPTED IN WRITING BY CATCHER AS A NEW POTENTIAL BUSINESS OPPORTUNITY,

ENTITLING INNERWALL TO A FINDER'S FEE UNDER THE CATCHER(TM) DEVICE FINDER'S

AGREEMENT BETWEEN THE PARTIES OF EVEN DATE HEREWITH.]

 

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

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

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

a Catcher Registered Customer; and (3) Innerwall having received full payment

for the ENCLAVE(TM) software licensed to such Customer at the time that the

Finder's Fee is due.

 

                (ii)    NO OBLIGATION TO LICENSE. Notwithstanding anything in

this Agreement to the contrary, Innerwall will have no obligation to accept an

order for the ENCLAVE(TM) software from any Customer.

 

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

due a Finder's Fee under this Agreement does not maintain a relationship with

Innerwall from which Innerwall receives fees or other proceeds related to the

ENCLAVE(TM) software for a period of six (6) months or more, no further Finder's

Fee will be due to Catcher under this Agreement with respect to such Customer.

 

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

 

        (a)     SALES REPORT. Innerwall will provide Catcher 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 Catcher

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 Catcher for the prior quarter within 30 days after issuing the Sales

Report.

 

        (b)     AUDIT. Catcher 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 not