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.
<PAGE>
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 notice, request and
gain access to Innerwall'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 Innerwall 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 Innerwall'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 petition in bankrupt
