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 0000 Xxxxxxxxx Xxxx., Xxxxxxxx
Xxxxxxx, XX 00000 ("INNERWALL"), and Catcher, Inc., a Delaware corporation with
principal offices at 00000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, XX 00000 ("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.
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
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
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 bankruptcy,
makes a general assignment for the benefit of its creditors, has a receiver or
trustee appointed for its business, properties or assets, or ceases to do
business in the ordinary course, or (ii) fails to perform any of its material
duties or obligations under this Agreement, and does not undertake to
substantially cure and, in fact, substantially cure, the default within 30 days
after written notice of such default is given to the defaulting party. In
addition, a party may immediately terminate this Agreement without an
opportunity for cure upon a breach of its representation in paragraph 3(b) or a
breach of an obligation in paragraph 9(a).
(c) EFFECT OF TERMINATION. A Finder's Fee may be earned under this
Agreement only for as long as the Agreement remains in effect. Upon the
expiration or earlier termination of this Agreement, Innerwall will have no
further obligation or liability to pay Catcher a Finder's Fee with respect to
licenses of the ENCLAVE(TM) software made by Innerwall after such expiration or
earlier termination. Innerwall's obligation to pay a Finder's Fee with respect
to sales of the ENCLAVE(TM) software made prior to such expiration or earlier
termination will survive such expiration or earlier termination.
6. WARRANTIES AND REPRESENTATIONS.
(a) AUTHORITY. Each party represents and warrants to the other party
that it has the full right, power and authority to enter into this Agreement and
to carry out its obligations under this Agreement.
(b) STATEMENTS BY CATCHER. Catcher will not make any warranty,
representation or guarantee to any person, either orally or in writing, in the
name of or on behalf of Innerwall. Catcher will not make or publish any
technical description of the ENCLAVE(TM) software, including features and
specifications, beyond the description published by Innerwall.
7. INDEMNIFICATION.
(a) INDEMNITY BY INNERWALL. Subject to the liability, remedy and
damage limitations set forth in this Agreement, Catcher will indemnify and hold
harmless Catcher and its parent and affiliates, its and their successors and
assigns and its and their shareholders, officers, directors, agents, employees
and contractors, (collectively, the "Catcher Indemnitees") from and against any
and all loss or liability of any nature whatsoever cognizable at law
(collectively, "Losses") resulting from third-party claims (including
governmental entities) against a Catcher Indemnitee, that may be asserted
against the Catcher Indemnitee by such third party, arising out of the breach by
Catcher of its warranty, representation or obligations under this Agreement.
(b) INDEMNITY BY CATCHER. Subject to the liability, remedy and
damage limitations set forth in this Agreement, Catcher will indemnify and hold
harmless Innerwall and its parent and affiliates, its and their successors and
assigns and its and their shareholders, officers, directors, agents, employees
and
* 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.
4
contractors, (collectively, the "Innerwall Indemnitees") from and against any
and all Losses resulting from third-party claims (including governmental
entities) against an Innerwall Indemnitee, that may be asserted against the
Innerwall Indemnitee by such third party, arising out of the breach by Catcher
of its warranties, representations or obligations under this Agreement.
(c) PROCESSING INDEMNITY CLAIMS. Whenever a third party makes a
claim indemnified hereunder against a Catcher Indemnitee or Catcher Indemnitee
(the "Indemnified Party," as the case may be), upon receipt of such claim, the
Indemnified Party will promptly give to the other party (the "Indemnifying
Party") notice thereof and will, at no out-of-pocket expense to the Indemnified
Party, cooperate with the Indemnifying Party with respect to the investigation
and defense or settlement of such matter. The Indemnifying Party will, at it's
expense, including reasonable attorneys' fees, defend an Indemnified Party
against claims for Losses, whether or not frivolous, that may be asserted
against an Indemnified Party by such third party, The Indemnified Party shall
have the right, without affecting its indemnity hereunder, to participate in the
administration, defense and settlement of such matter at its own cost and
expense and with counsel of its own choosing, but the Indemnifying Party will
have the right in its sole, absolute, discretion to control such administration,
defense and settlement in all aspects. The Indemnifying Party will have the
sole, absolute right to settle the indemnified claim solely for money to be paid
wholly by the Indemnifying Party. Any other settlement may be offered or made
only with the prior written consent of the Indemnified Party, and the
indemnified claim may, in all events, be settled only upon obtaining a full and
unconditional release of the Indemnified Party.
8. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER, UNDER
ANY LEGAL THEORY, FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, LIQUIDATED OR
CONSEQUENTIAL DAMAGES, (INCLUDING CONSEQUENTIAL DAMAGES ALLEGED BY A THIRD PARTY
AND INDEMNIFIED BY EITHER PARTY UNDER THIS AGREEMENT), LOSS OF PROFITS OR OTHER
ECONOMIC LOSS, SUSTAINED BY EITHER PARTY OR BY ANY OTHER PERSON, IN CONNECTION
WITH THIS AGREEMENT, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF THE DAMAGES. THE ESSENTIAL PURPOSE OF THIS PARAGRAPH 8 IS TO LIMIT THE
POTENTIAL LIABILITY OF CATCHER AND CATCHER ARISING OUT OF THIS AGREEMENT.
9. CONFIDENTIALITY.
(a) CONFIDENTIALITY. During the Term and thereafter, each party will
take all reasonable steps to safeguard the confidentiality of, and proprietary
rights to, the Confidential Information of the other party (each, a "DISCLOSING
PARTY") which may be disclosed to a party (each, a "RECIPIENT") under this
Agreement or to which a party has access as a result of this Agreement. Without
the prior written consent of the disclosing party, no recipient may (a) use the
Confidential Information for its own benefit or the benefit of any third party,
or (b) disclose the Confidential Information to any third party. If a recipient
is issued a subpoena or court order requiring disclosure of Confidential
Information, it will provide the disclosing party notice and an opportunity to
contest the subpoena or court order. Catcher acknowledges that Catcher may
disclose the terms of this Agreement to the extent Catcher determines that they
are required to be disclosed under applicable securities laws.
(b) INJUNCTIVE RELIEF. The parties acknowledge that should it breach
or threaten breach of any of its covenants in paragraph 9(a), the non-breaching
party will be immediately and irreparably harmed and will be entitled to the
entry of restraining orders and injunctions, whether preliminary, mandatory,
temporary, or permanent, against a violation, threatened or actual, and whether
or not
* 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.
5
continuing, of such obligation preventing the breaching party from further
breaching such covenants without any further or more particularized showing of
irreparable injury and without the need to post bond or other security. Such an
injunction may be applied for before any Court having jurisdiction thereof. In
any such proceeding, the non-breaching party will be entitled to recover any
damages it suffers as a result of the breach, including the recovery of any
costs and reasonable attorneys' fees incurred in enforcing the its rights. The
provisions of paragraph 9 will survive the expiration or earlier termination of
this Agreement.
10. MANDATORY BINDING ARBITRATION.
Except as provided in the last sentence of this paragraph 10, any and
all claims and controversies arising out of or relating to this Agreement,
including the scope of this paragraph 10, or the breach or enforcement of this
Agreement, or any aspect of the relationship between the parties, whether such
claims are common law or statutory, including claims asserting violations of the
antitrust or racketeering laws, will be settled by final, binding arbitration
exclusively in, the state of Virginia. The arbitration will be heard before one
arbitrator to be chosen in accordance with the commercial rules of the American
Arbitration Association. As an exception to the foregoing, legal actions may be
commenced for injunctive relief of any nature as required to enforce a party's
rights as described under this paragraph 10.
(a) GOVERNING LAW. Except as set forth in the following sentence of
this paragraph 10(a), the execution, interpretation and performance of this
Agreement will be governed by the internal laws of the State of Virginia,
without regard to that State's conflict-of-laws principles. Notwithstanding the
foregoing, in respect of claims for indemnification of third-party claims: (i)
the rights and obligations of the parties will be governed by the same body of
law as applies to the determination of the principal claim for which
indemnification is sought; and (ii) the parties hereby irrevocably consent to
the personal jurisdiction of any court in which any such third-party claim is
commenced or pending. The purpose of this provision is to avoid inconsistent
adjudications. The arbitrator will not have the power to alter, modify, amend,
add to or subtract from any term or provision of this Agreement, or to award
remedies expressly prohibited or limited by this Agreement, or to grant
injunctive relief, including interim relief, of any nature. In all other
respects, the commercial rules of the American Arbitration Association will
govern the arbitration. The decision of the arbitrator will be final and
binding.
(b) DECISION. The arbitrator's decision will be in writing and must
provide a reasoned basis for the resolution of each dispute and for any award.
The arbitrators will not have power to award damages in connection with any
dispute in excess of actual compensatory damages and will not multiply actual
damages or award consequential or punitive damages of any nature or award any
other damages that are excluded under this Agreement, notwithstanding anything
to the contrary in Virginia or other applicable law.
(c) EXPENSES. Each party will bear its own fees and expenses with
respect to the arbitration and any related proceeding, and the parties will
share equally the fees and expenses of the American Arbitration Association and
the arbitrator.
(d) JURISDICTION. Judgment on the award of the arbitrators may be
entered and enforced by any court having jurisdiction to do so. The parties
hereby irrevocably consent to the personal jurisdiction of any court in which:
(i) this arbitration provision is not enforceable as a matter of law as to a
particular claim brought by one party against the other; (ii) an action to enter
judgment and to enforce the award of the arbitrator is commenced or pending;
(iii) a third-party claim pursuant to paragraph 7 is commenced or pending; and
(iv) an application for injunctive relief permitted by paragraph 10 is commenced
or pending.
* 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.
6
11. MISCELLANEOUS.
(a) ASSIGNMENT. Neither party may assign this Agreement or any
rights or obligations hereunder without the prior written approval of the
non-assigning party. Notwithstanding the foregoing, a party may assign this
Agreement to any acquirer of all or of substantially all of the party's equity
securities, assets, or business relating to the subject matter of this
Agreement, except to a direct competitor of the other party. Any attempted
assignment in violation of this paragraph 11(a) will be void and without effect.
Subject to the foregoing, this Agreement will benefit and bind the parties'
successors and assigns.
(b) NOTICES. All notices between the parties will be in writing and
will be deemed to have been given if personally delivered or sent by certified
or registered mail (return receipt) or telecopy to the addresses first set out
above, or the other address as is provided by notice as set forth herein.
Notices will be deemed effective upon receipt or, if delivery is not affected by
reason of some fault of the addressee, when tendered.
(c) RELATIONSHIP OF THE PARTIES. Each party is an independent
contractor in the performance of this Agreement, is solely responsible for all
of its employees and agents and its costs and expenses arising in connection
with this Agreement. Neither party nor its agents or employees are the agents or
representatives of the other party for any purpose and neither party has the
power or authority as agent, employee or in any other capacity to represent, act
for, bind or otherwise create or assume any obligation on behalf of the other
party for any purpose whatsoever. Without limiting the generality of the
foregoing, Catcher is not, nor shall it hold itself out as, a sales agent or
sales representative of Innerwall.
(d) GOVERNING LAW. This Agreement will be governed by the laws of
the State of Virginia, without reference to its conflict-of-laws principles.
(e) SEVERABILITY. In the event that a material provision of this
Agreement or the application of such provision to the either party with respect
to its respective obligations hereunder is held by a court or other tribunal of
competent jurisdiction to be unlawful, invalid, void or unenforceable, this
Agreement shall automatically terminate.
(f) PARAGRAPH HEADINGS. The captions, headings and titles used in
this Agreement are for convenience of reference only and shall not affect in any
way the meaning or interpretation of this Agreement.
(g) NO WAIVER. No delay or omission by a party to exercise any right
or power occurring upon any noncompliance or default by the other party with
respect to any of the terms of this Agreement impairs any the right or power or
will be construed to be a waiver of any the right or power. A waiver by a party
of any of the covenants, conditions, or agreements to be performed by the other
will not be construed to be a waiver of any succeeding breach or of any
covenant, condition, or agreement contained in this Agreement. Unless expressly
limited, all remedies provided in this Agreement are cumulative and in addition
to and not in lieu of any other remedies available to either party at law, in
equity, or otherwise.
(h) ENTIRE AGREEMENT. This Agreement, which includes its recitals,
sets forth the entire agreement between the parties with respect to the subject
matter hereof and supersedes and cancels any and all prior agreements and
understandings, both oral and written, as well as all contemporaneous oral
agreements and understandings between the parties, express or implied, with
respect to such subject matter, including without limitation the Joint Marketing
and Teaming Agreement effective March 10, 2005. The parties acknowledge that no
representations or promises have been made to induce either of
* 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.
7
them to enter into this Agreement other than as may be specifically set forth
herein. This Agreement may be changed only by mutual agreement of the parties in
writing.
(i) COUNTERPARTS. This Agreement may be executed in multiple
counterparts, which shall be deemed to be one and the same instrument and each
of which shall be deemed enforceable without production of the others.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
and delivered by their duly authorized officers, all as of the Effective Date.
CATCHER, INC. INNERWALL, INC.
By: /s/ Xxx Xxxxxxx By: /s/ Xxx Xxxxxxxx
Title: President Title: CTO
Date: September 26, 2005 Date: September 27, 2005
* 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.
8
