Exhibit 10(fg)
FINDER AGREEMENT
Finder Agreement, dated as of August 1, 2004 ("Agreement") between Artera Group,
Inc., a Delaware corporation having a place of business at 00 Xxxxxxx Xxxxxx,
Xxxxxxxx, XX 00000 ("Artera"), and Spyder Technologies Group, LLC, a Connecticut
limited liability company having a place of business at 000 Xxxxxxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000, a Federal Employer Identification Number of 00-0000000, a
primary telephone number of 000-000-0000, a primary e-mail address of
xxx@xxxxxxxxxxx.xxx and a primary World Wide Web site address of
xxx.xxxxxxxxxxx.xxx ("Finder").
In consideration of the mutual promises contained in this Agreement, Artera and
Finder hereby agree as follows:
1. Duties and Rights of Finder. Finder shall assist Artera in finding master
distributors and resellers (collectively, "Distributors") for Artera's
"Artera Turbo" service (the "Service"). Finder shall describe the Service
to prospective Distributors and generate sufficient interest in the Service
to set up introductory and other meetings between Artera and Finder's
prospects. Such meetings shall be at times, places and manners (whether by
conference, telephone, letter or otherwise) as Artera and Finder mutually
determine. Finder shall be responsible for obtaining sufficient knowledge
about the Service to enable Finder to describe the Service accurately and
otherwise to perform its duties hereunder. Finder shall make available such
time as Finder, in its sole discretion, deems appropriate for the
performance of its duties under this Agreement. Finder may perform similar
services for other companies during the term of this Agreement, except that
Finder may not do so for companies whose products or services directly
compete with the Service. All expenses incurred by Finder in performing its
duties under this Agreement shall be the sole responsibility of Finder
unless otherwise agreed in writing by Artera.
2. Term and Termination.
(a) The term of this Agreement shall commence as of the date hereof and
shall continue until terminated (i) by either party via 30 days' prior
written notice to the other party; or (ii) by either party via written
notice to the other party for the material breach of this Agreement by
the other party or for the willful misconduct or gross negligence by
the other party in the course of performing under this Agreement.
(b) In the event of a termination of this Agreement, the obligations of
the parties hereunder shall cease as of termination, except (i) for
obligations that accrued prior to termination; (ii) that if the
termination was not by Artera under Section 2(a)(ii), Finder shall be
entitled to commissions at the applicable rates in Section 3 hereof
until 48 months after the date of termination or, if earlier, the date
on which commissions would have ended under Section 3; (iii) any
person or entity that is a Protected Account (as defined in Section 4
hereof) on the date of termination shall, for purposes of determining
whether Finder's right to commissions under Section 3 is triggered,
remain a Protected Account until the expiration of its Protected
Account period under Section 4 and Schedule A; and (iv) as may
otherwise be expressly provided in this Agreement.
3. Compensation. As sole compensation for the services provided under this
Agreement, Artera shall pay Finder a monthly commission, as mutually agreed
by Artera and Finder in writing and listed in Schedule B attached hereto,
either as a fixed amount per End User (as defined below) or a percentage of
Net Revenues (as defined below) actually received by Artera for the Service
that arise out of or through agreements with Distributors reached by Artera
as a result of Finder's performance under this Agreement. For purposes
hereof, "End User" shall mean a client computer of an individual user
configured to utilize the Service under a subscription to use the Service
that arose out of or through agreements with Distributors reached by Artera
as a result of
Finder's performance under this Agreement and "Net Revenues" shall mean
Service royalties received by Artera, or gross Service retail revenues less
sales taxes and commissions to or deductions by Distributors and their
subdistributors. Each month's commission to Finder shall be payable 30 days
after the end of the calendar month in which Artera receives the Net
Revenues giving rise to the commission.
4. Protected Accounts. Certain persons or entities may be "Protected Accounts"
under this Agreement. For purposes of the commission rules of Section 3
hereof, a Distribution Agreement entered into by Artera with a Protected
Account during the period of its Protected Account status shall
automatically be deemed to have been reached as a result of Finder's
performance under this Agreement. Only persons or entities with at least
25,000 potential Service end users are eligible to be Protected Accounts.
Any Protected Accounts as of the date of this Agreement are set forth in
Schedule A hereto. After the date hereof, Finder may in writing propose to
add persons or entities to Schedule A. A person or entity so proposed shall
become a Protected Account if Artera grants its written consent to the
addition. Artera shall be under no obligation to grant such consent, and
may condition such consent on its entering into a Distribution Agreement
with the applicable Protected Account within a specified period of time or
on any other conditions.
5. Confidentiality. Except to its accountants or attorneys, as required by law
or upon the prior written consent of the other party hereto, (a) neither
party shall disclose the terms or conditions of this Agreement to any third
party and (b) Finder shall not disclose any trade secret, know-how or other
proprietary information of Artera to any third party. Such confidentiality
obligations shall survive the expiration or any termination of this
Agreement. This confidentiality provision shall not limit the generality of
any separate confidentiality or nondisclosure agreement in effect between
Artera and Finder; provided, however, that if such other agreement and this
provision cover the same information, the stricter of the two shall apply
with respect thereto.
6. Notice. All notices under this Agreement shall be in writing and shall be
deemed duly given upon delivery by hand, by fax, by recognized commercial
courier or by certified mail (return receipt requested), in each case with
postage or delivery charges pre-paid, as follows:
If to Artera: If to Finder:
------------ ------------
Artera Group, Inc. Spyder Technologies Group, LLC
00 Xxxxxxx Xx. 000 Xxxxxxxxxxx Xxx.
Xxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Fax: 000-000-0000 Fax: 000-000-0000
Attn: Chairman & President Attn: Xxxxxxxx Xxxxxxxx
with a copy to:
--------------
Artera Group, Inc.
00 Xxxxxxx Xx.
Xxxxxxxx, XX 00000
Fax: 000-000-0000
Attn: General Counsel
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7. Miscellaneous.
(a) No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the
party against whom such waiver or modification is sought to be
enforced. No waiver of any breach of any provision of this Agreement
shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provision hereof. Any provision of
this Agreement that is prohibited or held to be void or unenforceable
shall be ineffective to the extent of such prohibition or
unenforceability, without invalidating the remaining provisions of
this Agreement.
(b) This Agreement shall bind and inure to the benefit of and be
enforceable by the parties hereto and their respective permitted
successors and assigns. Neither party may assign this Agreement nor
any rights or obligations hereunder except to its affiliated entities
or with the prior written consent of the other party, which consent
shall not be unreasonably withheld.
(c) Finder shall be considered an independent contractor to Artera, and
nothing in this Agreement shall be construed as creating an
employment, agency, partnership or joint venture relationship between
the parties.
(d) No provision of this Agreement shall be interpreted against a party
solely because such party or its attorney drafted such provision.
(e) Neither party shall be deemed in breach of this Agreement to the
extent that performance of its obligations is prevented or delayed by
reason of any act of God, fire, natural disaster, accident, riot, act
of government, shortage of materials or supplies, failure of
transportation or communication, third party nonperformance
(including, without limitation, failure of performance by common
carriers, interexchange carriers and local exchange carriers) or any
other cause beyond such party's reasonable control.
(f) This Agreement shall be construed in accordance with the laws of the
State of Connecticut (U.S.), without regard to the principles of
conflicts of laws thereof. Jurisdiction for any action under this
Agreement shall lie solely in the Federal or state courts located in
the State of Connecticut, and venue in any such action shall be proper
only therein.
(g) Except as may be expressly set forth herein, this Agreement
constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior and contemporaneous
written or oral agreements or communications between such parties with
respect to such subject matter.
IN WITNESS WHEREOF, Artera and Finder have duly executed this Agreement as of
the date first above written.
ARTERA GROUP, INC. SPYDER TECHNOLOGIES GROUP, LLC
By: /s/ Xx Xxxxxxx By: /s/ Xxxxxxxx Xxxxxxxx
----------------------------- ----------------------------
Cy. X. Xxxxxxx Xxxxxxxx Xxxxxxxx
Treasurer President
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Schedule A
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PROTECTED ACCOUNTS
This Schedule A lists the Protected Accounts, including any time limitations or
other conditions that apply with respect thereto. Unless otherwise specified in
writing, a person or entity is a Protected Account for an initial period of two
months. If a Protected Account does not enter into a Distribution Agreement with
Artera during the initial period, such person or entity automatically ceases to
be a Protected Account as of the end of the initial period unless Artera grants
extension(s) of the period in writing. Each such extension shall be for an
additional two-month period unless otherwise specified in writing. Artera shall
be under no obligation to grant any such extensions. If, after the date of this
Agreement, Finder proposes to add to the list of Protected Accounts or to extend
a Protected Account period, Finder shall provide Artera the information set
forth below, as well as the name and title of Finder's contact at the proposed
Protected Account, Finder's relationship to that contact, an estimate of the
number of potential Service end users for the Protected Account and such other
information as is requested by Artera. Any inaccuracy or error contained in a
proposal by Finder to add to the list of Protected Accounts or to extend a
Protected Account period shall void the addition or extension, notwithstanding
any consent to the addition or extension by Artera.
Start Date Extended End
Name of Protected Division As End Date As Date As
Account or Protected Protected Protected
(Person or Entity) Geographical Area Account Account Account
------------------ ----------------- ------- ------- ---------
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Schedule B
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MUTUALLY AGREED COMMISSIONS
Commission
Percentage Number Agreed Artera
Distributor Or Dollar of (President or Agreed Spyder
Name of Contract Amount Months Treasurer (President
Account Date Per End User Payable* signature) signature)
------- ---- ------------ -------- --------- ------------
Unete Tele- 8/14/03** 10% n/a
Comunicacione,
Ltda
Cable &
Wireless plc of
Jamaica
Incredibill, Ltd.
dba Adrenaline
Global Speed
Master
* If the commission percentages or dollar amounts for a given account vary
based on a number of months or otherwise, list each period and the
corresponding percentage or amount on a separate line above.
** Revenues are expected to begin to be generated under this distributor
contract after the date of this Agreement.
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