Exhibit
10.10


 


TRANSITION
SERVICES AGREEMENT


 


THIS TRANSITION SERVICES AGREEMENT the (“Agreement”)
is made and entered into this 15th day of March, 2002, by and between
Aether Systems, Inc., a Delaware corporation (the “Buyer”), and @Track
Communications, Inc., a Delaware corporation (the “Seller”).


 


RECITALS


 


Buyer and Seller have entered into that certain Asset
Purchase Agreement dated as of the date hereof (the “Purchase Agreement”),
whereby Seller has conveyed and Buyer has acquired the Acquired Assets used by
Seller with respect to the Business.


 


All capitalized terms used herein shall have the
meaning ascribed to them in the Purchase Agreement unless otherwise defined
herein.   Capitalized terms used but not
defined in the body of this Agreement shall have the respective meanings given
to such terms in Exhibit A attached hereto.


 


Buyer and Seller wish to make arrangements for the
transition of the Business from Seller to Buyer following the Closing of the
transactions contemplated by the Purchase Agreement, pursuant to this
Agreement.


 


NOW, THEREFORE, in consideration of the promises and
mutual covenants set forth in the Purchase Agreement and herein, and other good
and valuable consideration, and contingent upon the Closing, the parties hereby
agree as follows:


 


1.                   Transition of
the HM5600 Business.  Pursuant to
the Purchase Agreement, Seller has retained all obligations under the HM5000
Contracts and Buyer has acquired all rights under the HM5000 Contracts.  Therefore, pursuant to the Purchase,
Agreement, with respect to the HM5000 Customers, Seller has retained all
liability and responsibility under the HM5000 Contracts and Buyer has acquired
all rights under the HM5000 Contracts, including the sole right to enforce the
term thereof and, subject to the limitations set forth herein, to modify the
terms thereof (including the rates thereunder) and terminate the contract, in
each case in accordance with the terms of thereof.  However, as between Seller and Buyer, certain rights and
responsibilities with respect to the HM5000 Customers shall be as set forth in
this Section 1.


 


1.1                                 Provision
of HM5000 Airtime Services. 
Pursuant to the HM5000 Contracts, Seller shall remain obligated to the
HM5000 Customers to provide the Enhanced Services (as defined in the HM5000
Contracts) and the Enhanced Cellular Roaming (as defined in the HM5000
Contracts) during the respective terms of such contracts and in accordance with
the terms and conditions thereof (collectively, the “HM5000 Airtime Services”).
With respect to the Term HM5000 Customers, Seller hereby agrees with and
covenants to Buyer that Seller shall, unless and until otherwise directed by
Buyer, provide HM5000 Airtime Services to each such Term HM5000 Customer
pursuant to the terms of its HM5000 Contract until the later of (i) the
expiration of the fixed term of its HM5000 Contract and (ii) September 30,
2003, or such later date as may be mutually agreed by the parties. With respect
to the Month-to-Month HM5000 Customers, Seller hereby agrees with and covenants
to Buyer that Seller shall, unless and until otherwise directed by Buyer,
provide HM5000 Airtime Services to each such Month-to-Month HM5000 Customer
pursuant to the terms of its HM5000 Contract until September 30, 2003, or


 

















 


such later date as may be
mutually agreed by the parties.  Each
HM5000 Customer shall be permitted to renew its HM5000 Contract upon expiration
in accordance with the renewal terms thereof and, in the event of any such
renewal (whether automatic or otherwise), such expiration shall not constitute
a termination of such contract that would relieve Seller of its obligation to
Buyer to provide HM5000 Airtime Services to such HM5000 Customer pursuant to
this Section 1.1; provided, however, that no HM5000 Customer may
renew its HM5000 Contract for a term that extends beyond September 30,2003,
unless otherwise mutually agreed by the parties.  Upon instruction from Buyer, and provided that such suspension
would not result in Seller’s breach of the applicable HM5000 Contract, Seller
shall permanently cease or temporarily suspend providing HM5000 Airtime
Services to any HM5000 Customer. 
Because, subject to the limitations set forth above, all rights under
the HM5000 Contracts have been assigned to Buyer pursuant to the Purchase
Agreement, subject to Section 4.l(c), Seller shall have no right to terminate
or modify the HM5000 Contracts or to discontinue provision of the HM5000
Airtime Services, except as directed by Buyer in accordance with the foregoing.


 


1.2                                 Consideration
for Provision of HM5000 Airtime Services. 
In exchange for Seller’s promise to Buyer to provide the HM5000 Airtime
Services to the HM5000 Customers in accordance with Section 1.1, for so long as
Seller provides such HM5000 Airtime Services pursuant to Section 1.1, except as
otherwise provided in paragraph (g), Buyer hereby agrees to pay Seller Seller’s
actual costs of providing the HM5000 Airtime Services to the extent set forth
below:


 


(a)  Third
Party Cellular Services.


 


(i)                                     Seller
is charged for the HM5000 Airtime Services by Seller’s cellular carriers (the “Cellular
Carriers”), who charge Seller per minute of HM5000 Airtime Services. The
per minute rates for each Cellular Carrier that Seller uses to provide the
HM5000 Airtime Services are attached hereto, listed by carrier, as Exhibit
B-1.  Seller hereby represents and
warrants to Purchaser that the rates and information set forth on Exhibit
B-1 are true, correct and complete as of the date hereof.  Seller shall charge Buyer for the HM5000
Airtime Services invoiced to Seller by the Cellular Carriers at the applicable
rate Seller is charged for such HM5000 Airtime Services, as set forth in Exhibit
B-1.  Seller may amend Exhibit
B-1 only upon thirty (30) days prior written notice to Buyer and only to
the extent necessary to reflect actual rate increases imposed on Seller by the
Cellular Carriers and to reflect changes in Cellular Carriers.


 


(ii)                                  Seller
shall use commercially reasonable efforts (and in no event less than the same
level of efforts that Seller used in such situations prior to Closing) (A) to
audit the charges made to it by the Cellular Carriers for the HM5000 Airtime
Services in order to verify that Seller was charged at the correct rates and
(B) in the event such audit reveals an overcharge by such Cellular Carriers, to
seek a refund.  Seller shall inform
Buyer of any such overcharge, keep Buyer apprised of efforts to obtain a refund
of such overcharge, and promptly remit any such refund received to Buyer.


 


(b)  TSI
Services.  In connection with its
provision of the HM5000 Airtime Services, Seller uses services rendered to
Seller under the TSI Agreements (the “TSI Services”).  Seller shall charge Buyer for the TSI
Services used by Seller for the provision of the HM5000


 


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Airtime Services and
invoiced to Seller by Telecommunications Services, Inc. at the rate Seller is
charged for such TSI Services.  Seller
shall not enter into any amendments, renewal or replacement of the TSI Agreements
that would result in an increase in the amounts charged for the TSI Services
without the prior written consent of Buyer.


 


(c) 
Administrative Carrier Services. 
In connection with its provision of the HM5000 Airtime Services, Seller
uses services rendered to Seller under the Administrative Carrier Agreement
(the “Administrative Carrier Services”).  “Administrative Carrier Services” shall not, however, include any
charges of the Cellular Carriers that are passed through to Seller pursuant to
the Administrative Carrier Agreement but shall include only those charges in
respect of the services actually provided to Seller by Cingular Wireless
thereunder.  Seller shall charge Buyer
for the Administrative Carrier Services used by Seller for the provision of the
HM5000 Airtime Services and invoiced to Seller by Cingular Wireless at the rate
Seller is charged for such Administrative Carrier Services.  Seller shall not enter into any amendment,
renewal or replacement of the Administrative Carrier Agreement that would
result in an increase in the amounts charged for the Administrative Carrier
Services without the prior written consent of Buyer.


 


(d)  Long
Distance and Toll-Free Services.  In
connection with its provision of the HM5000 Airtime Services, Seller uses
long-distance and toll-free phone services provided by third parties (the ‘‘Long
Distance and Toll-Free Services”). 
Seller hereby agrees that it shall charge Buyer for the Long Distance
and Toll-Free Services used by Seller for the provision of the HM5000 Airtime
Services and invoiced to Seller by its long-distance/toll-free service
providers at the applicable rate Seller is charged for such Long Distance and
Toll-Free Services as set forth in Exhibit B-2.  Seller may amend Exhibit B-2 only
upon thirty (30) days prior written notice to Buyer and only to the extent
necessary to reflect actual rate increases imposed on Seller by its
long-distance/toll-free service providers and lo reflect changes in it its
providers.


 


(e)  Costs
of NSC Operation.  Buyer shall pay
Seller [*] to cover Seller’s costs of operating its Network Service
Center.  Payment for any partial
calendar month (i.e., the month in which Closing occurs and the month in which
Seller ceases to provide HM5000 Airtime Services hereunder) shall be prorated
accordingly.  In exchange for the
foregoing payment, Seller agrees to maintain and technically support the NSC
with same level of care as Seller used to perform these activities prior to
Closing, but in no event less than a commercially reasonable standard of care.  With respect to the Cellemetry Gateway, the
foregoing obligation to provide maintenance and technical support shall
continue only until Buyer has implemented a replacement of the Cellemetry
Gateway in accordance with Section 2.4. 
With respect to the HM5000 Gateway, the foregoing obligation to provide
maintenance and technical support shall continue for so long as Seller is
obligated to provide the HM5000 Airtime Services hereunder.


 


(f)  Invoicing.  Seller shall invoice Buyer for the charges
set forth in paragraphs (a) though (e) on a calendar month basis.  Seller shall invoice Buyer for the charges
incurred in each calendar month within ten (10) business days after the last
day of such calendar month.  Buyer shall
remit payment to Seller in respect of such charges with fifteen (15) business
days after receiving the applicable invoice. 
For a period of one year after Buyer receives any invoice under this
paragraph (f), Buyer shall have the right to audit the charges made to Seller
that were


 












* Confidential
Information.  Information has been
redacted.


 


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passed through to Buyer
pursuant to such invoice to verify that Seller has charged Buyer in accordance
with this Section 1.  For a period of
one year after Buyer receives my invoice under this paragraph (f), Seller shall
retain all documentation (including the bills Seller received from the
applicable service provider and the documentation recording the usage of the
HM5000 Airtime Services by the HM5000 Customers) necessary for Buyer to verify
the accuracy of the charges passed through to Buyer pursuant to such invoice
and Seller shall make such documentation available to Buyer in the event Buyer
exercises its audit right.  Seller shall
promptly remit to Buyer the amount of any overcharge revealed as a result of
any Buyer audit; provided, that Buyer shall provide Seller with the
documentation substantiating any such overcharge.  To the extent any Buyer audit reveals that Seller has overcharged
Buyer by greater than five percent (5%), Seller shall remit to Buyer the amount
of such overcharge plus twenty percent (20%) of such amount.


 


(g)  Direct
Payment to Third-Party Providers. 
Notwithstanding any other provision of this Section 1.2, in the event
that Seller is more than thirty (30) days past due on the payments it awes to
my third party provider of the HM5000 Airtime Services, the TSI Services, the
Administrative Carrier Services or the Long Distance or the Toll-Free Services,
Buyer may, at its option, choose to pay the mounts it would otherwise pay to
Seller pursuant to this Section 1.2 directly to the applicable third-party
provider instead.  In such case, Buyer
shall make clear to the third-party provider that it is making such payments on
Seller’s behalf and shall provide evidence to Seller that it has made such
payments.


 


1.3                                 Network
Service Level.


 


(a)  As further
described in Exhibit C, Seller shall guarantee Buyer that the HM5000
Customers will receive a certain level of network availability with respect to
the network that provides the HM5000 Airtime Services.  To the extent that Seller does not meet such
service levels, the amounts paid by Buyer to Seller pursuant to Sections 1.2(a)
and (d) shall be reduced accordingly, as further described in Exhibit C.


 


(b)  Seller
shall notify a Buyer Customer Care manager immediately in the event of any
unscheduled interruption of the Network Service and shall keep Customer Care
management updated on the status of any such interruption.


 


1.4                                 Warranty
Service.


 


(a)  As noted
above, pursuant to the Purchase Agreement, Seller has retained all liability
and responsibility under the HM5000 Contracts, including the obligation to
provide warranty service.  Buyer hereby
agrees with and covenants to Seller to perform all such warranty service under,
and pursuant to the terms and conditions of, the HM5000 Contracts.  Buyer shall indemnify, defend, protect and
hold harmless the Seller Indemnified Parties from, against and in respect of
any and all Damages suffered, sustained, incurred or paid by any of the Seller
Indemnified Parties in connection with, resulting from or arising out of,
directly or indirectly, claims made by the HM5000 Customers against the Seller
Indemnified Parties for warranty service that Buyer performs or fails to
perform after Closing, except for claims arising out of the gross negligence or
willful misconduct of the Seller Indemnified Parties.


 


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(b)  Seller
hereby represents and warrants to Buyer that it has not entered into extended
warranty contracts with the existing customers of the Business (including the
HM5000 Customers).


 


1.5                                 Customer
Introductions.  Seller shall use its
best efforts to arrange in-person meetings at the premises of each of the Major
HM5000 Customers within ninety (90) days after Closing.  Such personal meetings shall include (a) at
least one member of Buyer’s senior management team, (b) a representative of the
Major HM5000 Customer and (c) (i) with respect to the meetings with Wal-Mart
and CFI, respectively and (ii) upon request of Buyer, with respect to any other
Major HM5000 Customer, Seller’s CEO. 
Seller shall coordinate the timing of such meetings with Buyer and Buyer
shall use its best efforts to make its senior management team available for
such meetings.  At such meetings, Seller
shall introduce Buyer as the new contact for the HM5000 Non-Airtime
Services.  The purpose of such meeting
shall be to foster and encourage a future business relationship between Buyer
and such Major HM5000 Customers and the conduct of the meeting, by both
parties, shall be consistent with such purpose.  “Major HM5000 Customers” shall mean the top ten (10)
HM5000 Customers as measured by HM5000 mobile unit installation base as of the
Closing.


 


1.6                                 Indemnification.  Except as otherwise provided in this
Agreement, pursuant to the Purchase Agreement, Seller has retained all
liability and responsibility under the HM5000 Contracts.  Therefore, Seller covenants and agrees to
indemnify, defend, protect and hold harmless the Buyer Indemnified Parties
from, against, and in respect of, any claims against Buyer by a HM5000 Customer
(or its subrogee) arising out of or related to its HM5000 Contract, except for
claims arising out of the gross negligence or willful misconduct of the Buyer
Indemnified Parties.


 


1.7                                 No
Third Party Beneficiaries.  The
HM5000 Customers shall not be third party beneficiaries under this Agreement
and shall have no right to enforce the provisions of this Agreement against
either Seller or Buyer.  The rights of
tile HM5000 Customers shall remain entirely governed by their respective HM5000
Contracts.


 


1.8                                 Non-Standard
Versions of HM5000 Contract.  This
Agreement makes reference to the term and conditions of the standard version of
the HM5000 Contract, as provided by Seller to Buyer.  To the extent that this Agreement refers to terms and conditions
of the HM5000 Contracts that do not match the terms and conditions used in a
version of the HM5000 Contract (other than the standard version), the parties
intend that such terms shall refer to the most closely corresponding terms and
conditions in such HM5000 Contract so as to most closely reflect the intent of
the parties hereunder:


 


2.                   Transactions of
the TrackWare and 20/20V Business.


 


2.1                                 Provision
of Cellemetry Services.  Until such
time as Buyer has replaced the Cellemetry Gateway in accordance with Section
2.4 (and in no case later than September 30, 2003), Seller shall resell the
Cellemetry Services to Buyer for Buyer in turn to resell such services to its
present 2nd future customers of the TrackWare Product Line and 20/20V Product
Line.


 


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2.2                                 Consideration
for Provision of Cellemetry Services. 
In exchange for Seller’s prevision of the Cellemetry Services to Buyer,
Buyer hereby agrees to pay Seller the amounts Seller pays to Cellemetry
pursuant to the Cellemetry Reseller Agreement. 
Seller shall not modify or terminate the Reseller Agreement without the
prior consent of Buyer.  Seller shall
comply in all respects with the terms and provisions of the Cellemetry Reseller
Agreement.  To the extent that Seller
breaches the Cellemetry Reseller Agreement and such breach results in any
interruption, failure or delay of the Cellemetry Services provided by Seller to
Buyer pursuant to Section 2.1, Seller shall indemnify Buyer (a) for any loss of
business that results from such interruption, failure or delay in service and
(b) for any amount that Buyer may be contractually obligated to credit a
customer for such interruption, delay or failure in service, but in no event
shall such indemnification exceed. [*]


 


2.3                                 Assignment
of Cellemetry Reseller Agreement. 
As soon as Buyer has replaced the Cellemetry Gateway in accordance with
Section 2.4, Seller shall make effective its assignment to Buyer all of its
right and interest in the Cellemetry Reseller Agreement (which assignment is an
Acquired Asset pursuant to the terms of the Purchase Agreement) and Section
2.1, providing for the provision of the Cellemetry Services by Seller, shall be
of no further force and effect.


 


2.4                                 Replacement
of Cellemetry Gateway.  Buyer shall
use commercially reasonable efforts to replace the Cellemetry Gateway with its
own gateway, capable of enabling the provision of the Cellemetry Services, in
an expeditious manner and in no event later than September 30, 2003. Seller
shall provide Buyer with reasonable technical cooperation and shall transfer to
Buyer any technical information, in each case as reasonably necessary for Buyer
to implement such replacement gateway within the foregoing timeframe.


 


2.5                                 Website.


 


(a)  Seller
currently uses a Website located at the domain name “www.webhost.at-track.com”
to provide integral services to customers of the TrackWare Product Line and
20/20V Product Line.  Promptly after Closing,
Buyer shall display the content of this Website, which has been transferred to
Buyer pursuant to the Purchase Agreement, under a new domain name of Buyer’s
choosing (the “New Webhost Website”) and Seller shall provide Buyer with
technical assistance reasonably necessary for Buyer to implement the New
Webhost Website.  Until Buyer displays
such content at the New Webhost Website, Seller shall allow Buyer to continue
to display such content at “www.webhost.at-track.com.”


 


(b)  Seller
shall, at its own expense, maintain the “www.webhost.at-track.com” registration
and, within two (2) business days after instruction by Buyer to do so, Seller
shall display content at such website that automatically redirects users to the
New Webhost Website and notifies users of the domain name the New Webhost
Website (the “Link Content”). 
Seller shall continue to display the Link Content at the
“www.webhost.at-track.com” Website until the first anniversary of the
Closing.  Within five (5) business days
after Closing, Seller shall provide a draft version of the Link Content to
Buyer for review and comment.  Seller
shall incorporate all suggestions and changes reasonably requested by Buyer to
the Link Content.  Seller shall not
display any content at “www.webhost.at-track.com” that has not been previously
approved by Buyer in writing.  To the
extent that Buyer takes longer than two (2) business days to provide
suggestions and comments to Seller with respect to the proposed Link Content or
to notify


 












* Confidential information.  Information has been redacted.


 


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Seller that it has no
such suggestions or comments, the timeframe in which Seller shall be required
to display the Link Content shall be extended.


 


(c)  The
parties shall cooperate and communicate with respect to the activities set
forth in this Section 2.5 such that any lag time between when the New Webhost
Website becomes available for use by customers and when the Link Content is
displayed at “www.webhost.at-track.com” shall be eliminated or minimized to the
greatest extent possible and that any such lag time shall occur during non
peak-use hours.


 


3.                   Transition of
the Business in General.


 


3.1                                 Customer
Care.


 


(a)  Customer
Inquiries.  Seller shall promptly
refer all inquires it receives from customers or potential customers of the
Business (including the HM5000 Customers), e.g., all requests for “Customer
Care,” technical support, billing inquires, warranty service or non-warranty
service, whether written or verbal, in each case with respect to the Business,
to a Buyer Customer Care representative and Buyer shall have the sole right to
respond to all such inquiries.


 


(b)  Customer
Phone Calls.  All telephone numbers
to which the customers of the Business (including the HM5000 Customers) have
been directed for customer or technical support inquiries, including those
numbers listed in the customer contracts of the Business acquired by Buyer
pursuant to the Purchase Agreement (including the HM5000 Contracts) (the “Customer
Care Phone Numbers”) are an Acquired Asset.  To the extent that Buyer is using Seller’s phone system or
automated call distribution system pursuant to Section 9.2, Seller shall route
all calls that come in to the Customer Care Phone Numbers to the extensions of
Buyer’s Customer Care employees, as directed by Buyer.  To the extent that Buyer is no longer using
Seller’s phone system or automated call distribution system pursuant to Section
9.2, Seller shall use commercially reasonable efforts to have the Customer Care
Phone Numbers transferred to Buyer or shall forward all calls that come in to
such phone numbers as Buyer may direct.


 


(c)  Customer
Faxes.  All fax numbers to which the
customers of the Business (including the HM5000 Customers) have been directed
for customer or technical support inquiries, including those numbers listed in
the customer contracts of the Business acquired by Buyer pursuant to the
Purchase Agreement (including the HM5000 Contracts) (the “Customer Care Fax
Numbers”) are an Acquired Asset.  To
the extent that Buyer is using Seller’s phone system pursuant to Section 9.2
Seller shall route all fax transmissions that come in to the Customer Care Fax
Numbers to the fax machines of Buyer’s Customer Care employees, as directed by
Buyer.  To the extent that Buyer is no
longer using Seller’s phone system pursuant to Section 9.2, Seller shall use
commercially reasonable efforts to have the Customer Care Fax Numbers
transferred to Buyer or shall forward all fax transmissions that come in to such
fax numbers as Buyer may direct.


 


(d)  Customer
Mail.  Seller shall forward all
incoming mail, written or electronic, pertaining to the Business to Buyer’s
receptionist at the Office Space or to such other person as Buyer may
designate.


 


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3.2                                 Warranty
Claims.  Pursuant to Section 1.2(h)
of the Purchase Agreement, the Acquired Assets include Seller’s warranty rights
against third parties.  To the extent
that Seller has any warranty rights against the original equipment
manufacturer(s) of the Inventory Buyer has acquired from Seller pursuant to the
Purchase Agreement that are not assignable to Buyer, Seller hereby agrees, upon
the request of Buyer, to use commercially reasonably efforts, at Buyer’s
expense, to pursue such warranty claims against such original equipment
manufacturer(s), on Buyer’s behalf and for Buyer’s account.


 


3.3                                 Billing.


 


(a)  Provision
of HM5000 Billing Services.  As
noted in Section 1, pursuant to the Purchase Agreement, Seller has retained all
liability and responsibility under the HM5000 Contracts, including the
obligation to provide bills to the customers thereunder, which includes monthly
bills for the following: usage-based charges for HM5000 Airtime Services and
fixed monthly service charges for each unit. 
Seller hereby agrees with and covenants to Buyer that it shall continue
to provide the foregoing billing services under the HM5000 Contracts during the
respective terms of such contracts and in accordance with the terms and conditions
thereof (the “HM5000 Billing Services”).


 


(b)  Provision
of TrackWare and 20/20V Billing Services. 
Pursuant to the Purchase Agreement, Buyer has acquired all rights and
obligations under the contracts between Seller and the TrackWare Product Line
and 20/20V Product Line customers, including the obligation to provide bills to
such customers thereunder.  Pursuant to
the Purchase Agreement, Buyer has also acquired the TrackWare and 20/20V
Billing Software and related database currently used by Seller to perform
billing for the TrackWare Product Line and 20/20V Product Line customers (the “Cellemetry
Billing System”).  Until such time
as Buyer has replaced the Cellemetry Gateway pursuant to Section 2.4 and
integrated the replacement gateway with the Cellemetry Billing System, Buyer
shall not, however, have the ability to use the Cellemetry Billing System.  Therefore, until such time as Buyer has
replaced the Cellemetry Gateway pursuant to Section 2.4, but in no event later
than September 30, 2003, Seller shall provide billing services (i) under the
existing TrackWare Product Line and 20/20V Product Line customer contracts in
accordance with the terms and conditions thereof and (ii) under any future
contracts Buyer may enter with new TrackWare Product Line and 20/20V Product
Line customers which have substantially similar billing provisions (the “Cellemetry
Billing Services,” and together with the HM5000 Billing Services, the “Billing
Services”).  The Cellemetry Billing
Services shall include the provision of monthly bills for the following:
usage-based charges for the Enhanced Services (as defined in the existing
customer contracts), monthly service charges for Fixed-Price Reports (as
defined in the existing customer contracts), charges for additional Data Reports
(as defined the existing customer contracts) ordered above the number of
Fixed-Price Reports and occurrence event charges.  Buyer shall provide Seller with access to the Cellemetry Billing
System, and Seller shall maintain and support the Cellemetry Billing System in
each case as required for Seller to perform the Cellemetry Billing Services in
accordance with this Agreement.


 


(c)  Consideration
for Billing Services.  In exchange
for (i) Seller’s provision of the Cellemetry Billing Services and (ii) Seller’s
promise to Buyer to provide the HM5000 Billing Services to the HM5000
Customers, for so long as Seller provides the Billing Services, for each


 


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invoice sent by Seller to
a customer in the course of providing the Billing Services Buyer shall pay
Seller an amount equal to [*].  Seller
shall not invoice customers more frequently than monthly.  Seller shall invoice Buyer for such charges
on a calendar month basis.  Seller shall
invoice Buyer for the charges incurred in each calendar month within (10)
business days after the last day of such calendar month.  Buyer shall remit payment to Seller in
respect of such charges with fifteen (15) business days after receiving the
applicable invoice.


 


(d)  Buyer
Name and Logo.  At Buyer’s option,
upon ten (10) business days’ notice to Seller, Buyer’s name and corporate logo
shall appear in place of, or in addition to (as Buyer may decide),’ Seller’s
name and corporate logo on all invoices Seller sends to customers in the
performance of the Billing Services. 
Within ten (10) business days after Closing, Buyer’s payment information
shall appear in place of Seller’s payment information on all such invoices.


 


(e)  Service
Level Guarantees.  As further
described in Exhibit D, Seller shall guarantee Buyer that it shall
provide the Billing Services in a timely and accurate manner. To the extent
that Seller does not meet such service levels, the amounts paid by Buyer to
Seller pursuant to Section 3.3(c) shall be reduced accordingly, as further
described in Exhibit D.


 


(f)  Notification
to Customers.  Within ten (10)
business days after Closing, Seller shall notify all existing customers of the
Business (including the HM5000 Customers) that the rights under the applicable
contracts with Seller have been assigned to Buyer, that payment in respect of
all invoices under such contracts that are received by such customer after the
Closing shall be made payable to Buyer, and that all future inquiries regarding
the Business shall be made to Buyer (but may be still be made by calling the
same toll-free number as set forth in their contract or writing to the same
address as set forth in their contract). 
In addition, such notices shall provide Buyer’s email contact
information.  With respect to customers
of the TrackWare Product Line and 20/20V Product Line, the notification shall
also provide the website address of the New Webhost Website.  Within five (5) business days after Closing,
Seller shall provide a draft version of the foregoing notice to Buyer for
Buyer’s review and comment.  Seller
shall incorporate all suggestions and changes reasonably requested by Buyer to
such notice.  To the extent that Buyer
takes longer than two (2) business days either to provide suggestions and
comments to Seller or to notify Seller that it has no such suggestions or
comments, the timeframe in which Seller shall be required to send such notice
to the customers shall be extended.


 


(g)  Taxes
with Respect to HM5000 Business. 
Seller shall be responsible for remitting to the appropriate local,
state, federal or foreign government or governmental agency (“Taxing
Authority”) all Taxes owed in respect of the amounts billed to HM5000
Customers pursuant to Section 3.3(a) hereof (collectively, the “HM5000 Taxes”).  Seller shall invoice Buyer on a monthly
basis for any HM5000 Taxes paid by Seller. 
Upon receipt of an invoice and supporting documentation showing the
calculation of the HM5000 Taxes and evidencing that such Taxes have been
properly and timely paid to the appropriate Taxing Authorities, Buyer shall
reimburse Seller within fifteen (15) business days for the amount of such
HM5000 Taxes.  Notwithstanding the
foregoing, Buyer shall not be responsible for reimbursing Seller for any Taxes
With respect to the period prior to and on the Closing.  Seller shall indemnify, defend, protect and
hold harmless the Buyer Indemnified Parties from, against and with respect to
any Damages arising out of or related to (i) any failure by Seller to pay any
HM5000 Taxes owed and


 












* Confidential
information.  Information has been
redacted.


 


9

















 


(ii) any assertion,
allegation or claim, of whatever nature, by any Taxing Authority that any Buyer
Indemnified Party is liable for payment of or was required to remit any HM5000
Taxes, but in no event shall such indemnification exceed fifteen million
dollars ($15,000,000).  Seller shall
provide such Buyer Indemnified Party with such assistance as may be reasonably
requested in connection the with any claim for which Seller may have
indemnification responsibility pursuant to the preceding sentence.  In its performance of the HM5000 Billing
Services, Seller shall accommodate Buyer’s requests regarding the invoicing and
remittance of Taxes to the extent that Buyer has been advised by its outside
legal counsel or its outside accountants that Buyer is legally obligated to
collect from customers and remit to any Taxing Authority any such Tax.


 


(h)   Taxes
with Respect to TrackWare and 20/20V Business.  Buyer shall be responsible for remitting to the appropriate
Taxing Authority all Taxes owed in respect of the amounts billed to TrackWare
Product Line and 20/20V Product Line customers with respect to the period after
the Closing.  In addition, Buyer shall
have sole control over what Taxes are invoiced to such customers and, in its
performance of the Cellemetry Billing Services, Seller shall follow Buyer’s
instruction in the preparation of the invoice, including with respect to
invoicing of Taxes.


 


3.4                                 Buyer
Responsible for Collection Efforts. 
Although Seller will send out all invoices to customers pursuant to
performance of the Billing Services, Buyer shall control all collection and
posting of payment.  Buyer shall send
Seller a file containing the posting records of all moneys received in payment
of the invoices sent by Seller in the performance of the Billing Services
within one business day after posting in Buyer’s billing system.  Such file shall be in a format reasonably
specified by Seller, which format may be changed by Seller from time to time
upon reasonable advance notice to Buyer. 
All post office boxes listed as the address for payment in the customer
contracts of the Business acquired by Buyer pursuant to the Purchase Agreement
(including the HM5000 Contracts) (“Acquired Post Office Boxes”) are an
Acquired Asset and Seller shall take all action necessary to transfer ownership
of such post office boxes and keys to Buyer promptly after Closing.


 


3.5                                 Customer
Billing Inquiries.  Because Seller’s
performance of the Billing Services for Buyer will result in Seller employees
who have the knowledge and access to information to answer the billing inquires
of Buyer’s customers, Seller shall insure that personnel familiar with the
Billing Services and qualified to answer such inquiries will be available to
Buyer’s Customer Care representatives to answer such inquires during regular
business hours.


 


4.                   Accounts
Receivable and Payable.


 


4.1                                 Accounts
Receivable: General.


 


(a)  Pursuant
to the Purchase Agreement, it is generally understood that all receivables (i)
of the Business for activities on and before the Closing and (ii) in respect of
the provision of HM5000 Airtime Services on and before the Closing (“Pre-Closing
Receivables”) are the property of Seller, and that all receivables (x) of
the Business for activities after the Closing, and (y) in respect of the
provision of HM5000 Airtime Services after the Closing (“Post-Closing
Receivables”) are the property of Buyer. 
The parties shall cooperate to insure


 


10

















 


that Buyer receives
payment in respect of Post-Closing Receivables and Seller receives payment in
respect of Pre-Closing Receivables. 
However, to the extent that Buyer receives payment in respect of a
Pre-Closing Receivable it shall transfer such payment promptly to Seller and to
the extent that Seller receives payment in respect of a Post-Closing
Receivable, it shall transfer such payment promptly to Buyer.  For example, if a customer makes a payment
for the billing cycle in which Closing occurs, and such amount was billed in
arrears, Buyer shall remit the pre-Closing portion of such payment to Seller
and if such amount was billed in advance, Seller shall remit the post-Closing
portion of such payment to Buyer.  In
the event that (A) a payment is received by either party within the forty-five
(45) day period following Closing that is not designated by the payor as being
in respect of either a Pre-Closing Receivable or Post-Closing Receivable, (B) the
designation of such payment as a Pre-Closing or Post-Closing Receivable is not
otherwise addressed by Section 4.2, and (C) such payor owes money with respect
to at least one Pre-Closing Receivable and at least one Post-Closing
Receivable, Seller shall be entitled to such payment to the extent required to
cover all Recent Receivables owed by such payor and Buyer shall be entitled to
the balance thereof.  In the event that
(A) a payment is received by either party after the forty-five (45) day period
following Closing that is not designated by the payor as being in respect of
either a Pre-Closing Receivable or Post-Closing Receivable, (B) the designation
of such payment as a Pre-Closing or Post-Closing Receivable is not otherwise
addressed by Section 4.2, and (C) such payor owes money with respect to at
least one Pre-Closing Receivable and at least one Post-Closing Receivable,
Buyer shall be entitled to such payment to the extent required to cover all
Post-Closing Receivables owed by such payor and Seller shall be entitled to the
balance thereof to the extent required to cover all Recent Receivables owed by
such payor.


 


(b)  With
respect to Pre-Closing Receivables that, as of the Closing, have been
outstanding for more than ninety (90) days, Seller, agrees with and covenants
to Buyer that Seller shall not seek payment from or legal recourse against
customers with respect to such receivables or contact customers with respect to
such receivables.  For the avoidance of
doubt, to the extent that, after Closing, Buyer receives payment that is
designated by payor in respect of any Pre-Closing Receivable, including any
receivable that was outstanding for more than ninety (90) days as of the
Closing, Buyer shall promptly transfer such payment to Seller in accordance with
paragraph (a).


 


(c)  With
respect to Pre-Closing Receivables that, as of the Closing, have been
outstanding for ninety (90) days or less (the “Recent Receivables”),
during the sixty (60) day period following the Closing, Seller may contact
customers to seek payment of such Recent Receivables in the ordinary course,
but may not take or threaten to take legal action against such customers, or
terminate or threaten to terminate such customers’ HM5000 Airtime Services or
Cellemetry Services, as the case may be. 
After the first sixty (60) days following the Closing, in the event that
(A) a Recent Receivable is more than 90 days’ past due and (B) Seller has made
at least one post-Closing request for payment of such Recent Receivable from
such customer and customer either has not responded to such request or has not
provided any valid reason to Seller for non-payment in response to such
request, Seller shall be entitled to request in writing consent from Buyer for
Seller to terminate such customer’s HM5000 Airtime Services or request that
Buyer terminate such customer’s Cellemetry Services, as the case may be.  Buyer shall have thirty (30) days from the
time of such request to attempt to resolve the situation with the customer.  If, by the end of such thirty-day period,
Buyer has not (i) obtained payment of any


 


11

















 


Pre-Closing Receivable
from such customer or caused such customer to make payment of any Pre-Closing
Receivable to Seller, (ii) entered into a payment plan with such customer with
respect to the Recent Receivable that has been approved by Seller or (iii)
discovered a valid reason that such customer has not paid the Recent
Receivable, Buyer shall terminate, or shall authorize Seller to terminate, as
applicable, such customer’s services if requested by Seller in writing and, in
addition to the foregoing right to terminate service, Seller shall then be free
to pursue legal recourse against such customer with respect to such Recent
Receivable.


 


4.2                                 Accounts
Receivable: Specific.  Without
limiting the generality of the foregoing, the following specific receivables,
shall be allocated as “Pre-Closing Receivables” or “Post-Closing Receivables”
as follows:


 


(a)  Purchase
Orders.  Pursuant to the Purchase
Agreement, all outstanding purchase orders for the products in the Product
Lines and all outstanding purchase orders under the HM5000 Contracts have been
assigned to Buyer.  The unit purchase
price and shipping and handling charges of such products shall be allocated as
follows: If the product has been shipped on or prior to Closing, to Seller; if
the product has not slipped on or prior to Closing, to Buyer.


 


(b)  Security
Deposits.  Seller shall remit any,
security deposits received from customers with respect to the Business
(including the HM5000 Customers) to Buyer. 
Seller shall assign any security interests granted to Seller by
customers with respect to the Business (including the HM5000 Customers) to
Buyer.


 


(c)  Monthly
Service Charge.  Each of the
TrackWare Product Line and the 20/20V Product Line contracts charge a monthly
fixed service charge per unit billed in advance and the HM5000 Contracts charge
a monthly fixed service charge per unit billed in arrears.  In the case of the TrackWare Product Line
and 20/20V Product Line, such monthly fee is in respect of a fixed number of
data reports.  The amount of such
monthly service charges for the billing cycles in which Closing occurs shall be
allocated as follows: Buyer shall receive the pro-rata portion of the charge
for the days in the billing cycle falling after the Closing and Seller the
portion for the days falling on and before the Closing.


 


(d)  Data
Report Charges.  In the case of the
TrackWare Product Line and 20/20V Product Line, charges for each additional
data report above the fixed number to which customer is entitled shall be
allocated as follows: For reports delivered on or prior to Closing, the per
report fee shall be allocated to Seller, for reports delivered after Closing,
to Buyer.


 


(e)  Occurrence
Event Charges.  In the case of the
Track Ware Product Line and 20/20V Product Line, charges are made for events
such as a poll, group assignment, configuration, enablement, rate plan change,
etc.  Such occurrence event charges
shall be allocated as follows: If the event has been performed on or prior to
Closing, the corresponding event fee shall be allocated to Seller, if performed
after Closing, to Buyer,


 


(f)  Activation
Fee.  Pursuant to each of the
TrackWare Product Line contracts, the 20/20V Product Line contracts and the
HM5000 Contracts a one time charge due upon execution is charged for
over-the-air initial configuration of a Unit. 
Such charge shall be


 


12

















 


allocated as follows: If
the Unit has been activated on or prior to the Closing, to Seller; if activated
after the Closing, to Buyer.


 


(g)  Web
Subscription Fee.  In the case of
the Track-Ware Product Line and 20/20V Product Line, a monthly fee is charged
per customer (not per Unit) in arrears for website access.  The website fee shall be allocated as
follows: Buyer shall receive the pro-rata portion of the charge for the days in
the billing cycle falling after the Closing and Seller the portion for the days
falling on and before the Closing.


 


(h)  Billable
Telephone Support Services.  In the
case of the TrackWare Product Line and 20/20V Product Line, telephone support
services are available to the Customer at a charge [*] for technical support
issues.  These fees shall be allocated
as follows: For calls place on and before Closing, to Seller and for calls
placed after Closing, to Buyer.


 


(i)  Information
Management Services Agreements (a.k.a. Platinum Services Agreements).  Fees received in respect of services
performed under the Information Management Services Agreements assigned to
Buyer pursuant to the Purchase Agreement shall be allocated as follows: To the
extent the services were provided on or prior to Closing, to Seller and to
extent the services are provided after Closing, to Buyer.  These services fees are paid monthly by the
customers in advance.


 


4.3                                 Accounts
Payable.  Accounts payable shall be
allocated between the parties as a mirror image of accounts receivable - i.e.,
to the extent that a cost (e.g., taxes or a third-party provider costs) relates
to specific revenue, the party that receives the revenue shall be responsible
for such cost.  With respect to any
Units that Seller has sent to a third party to be repaired or refurbished prior
to Closing, whether pursuant to a warranty or otherwise, Seller shall be
responsible for any amount owed to such third party in consideration for such
repairs or refurbishment, regardless of whether the repair or refurbishment is
completed before or after the Closing and regardless of whether the bill for the
repair or refurbishment is received before or after the Closing.  Upon completion of the repair or
refurbishment, Seller shall direct any such repaired or refurbished Units to
Buyer and such Units shall be considered Inventory that is an Acquired Asset
pursuant to the Purchase Agreement.


 


5.                   Employment
Transition.  Seller shall provide
the services of the New Buyer Employees to Buyer until no later than April 30,
2002 pursuant to the terms of the Transition Consulting Reimbursement Agreement
dated as of even date herewith, during which period (the “Employment Transition
Period”) such employees (except to the extent their employment ends,
collectively or individually, for the reasons set forth in Section 2.1 of the
Transition Consulting Reimbursement Agreement) shall remain employees of
Seller, shall remain on the payroll of Seller and shall continue to participate
in Seller benefit plans.  Buyer shall
reimburse Seller for the employment expenses of the New Buyer Employees during
the Employment Transition Period pursuant to the terms of the Transition
Consulting Reimbursement Agreement. 
Effective no later than May 1, 2002, the arrangement shall terminate and
those New Buyer Employees who have been offered employment with Buyer and have
accepted such offer shall be employed by Buyer.


 












* Confidential
information.  Information has been
redacted.


 


13

















 


6.                   Division and
Sublease of Premises.


 


6.1                                 Division
of Premises.  As soon as practicable
after the Closing, Seller shall prepare a floor plan providing for the division
of Seller’s premises located at 1155 Kas Drive, Richardson, Texas (“Seller
Premises”) into a separate space for each of Seller and Buyer, which two
spaces shall be divided by internal walls and shall each be accessible only by
external entries (with the possible exception of an emergency exit internal
doorway between the two spaces).  Seller
shall consult with Buyer with respect to such floor plan and shall reasonably
consider Buyer’s recommendations to the extent Buyer is affected by any
decisions.  Seller shall be responsible
for implementing and constructing the new floor plan.  Buyer shall reimburse Seller for the reasonable costs incurred by
Seller in constructing any new internal walls required to divide Buyer and
Seller space.


 


6.2                                 Sublease.  Once the separation set forth above is
completed, Seller and Buyer shall enter into a sublease agreement pursuant to
which Seller shall sublease to Buyer for the period between Closing and
December 31, 2003 (the “Lease Transition Period”) the following space in
Buyer’s portion of the Seller Premises: (a) an amount of space no less than ten
thousand (10,000) square feet suitable to be used by Buyer as an office (the “Office
Space”) and (b) an amount of additional space sufficient in size and
suitable to be used by Buyer as ‘a warehouse for inventory (the “Warehouse
Space”).  The sublease agreement for
the Warehouse Space and Office Space shall contain the terms set forth in Exhibit
F attached hereto.  Between the
Closing and the time the sublease agreement is effected, Buyer shall pay Seller
a monthly rent for the Office Space and Warehouse Space of $15,417.


 


7.                   Inventory.


 


7.1                                 Temporary
Use of Warehouse.  From the Closing
until thirty (30) days after the Warehouse Space is ready for Buyer occupation
and the sublease agreement therefor has been executed by both parties (the “Warehouse
Transition Period”), Seller shall provide to Buyer, at no cost, the right
of Buyer to store inventory in Seller’s warehouse located in Plano, Texas (“Seller
Warehouse”), using the same amount of space as is dedicated to the
Inventory acquired by Buyer pursuant to the Purchase Agreement as of the
Closing.  By the end of the Warehouse
Transition Period, Seller shall have moved such inventory to the Warehouse
Space leased pursuant to Section 6.2. 
Seller shall provide Buyer employees with full access to Seller
Warehouse and to Seller’s staging, shipping and receiving areas in the Seller
Warehouse that were utilized in connection with the Business prior to the
Closing.


 


8.                   Fixed Assets.


 


8.1                                 Non-Personal
Equipment.  During the Lease
Transition Period, Seller shall allow Buyer to continue to use any storage,
servers or other equipment that is a Retained Asset which, prior to Closing,
was used both (a) in the Business and (b) in Seller’s retained business and
that cannot reasonably be divided between the parties.  Seller shall allow Buyer to continue to use
such assets in the same manner that such assets were used prior to Closing as
reasonably necessary for the conduct of the Business by Buyer in the
substantially the same manner as conducted by Seller prior to Closing.


 


14

















 


9.                   Systems
Transition.


 


9.1                                 In
General.  Within one hundred and
eighty (180) days after Closing, the parties shall have developed a complete
plan for the smooth transition from Seller systems to Buyer systems, including
a time frame for completing such transition. 
In general, Seller agrees to use all reasonable efforts to assist Buyer
in transitioning from Seller’s system to Buyer’s systems.  For example, Seller will continue to
maintain and support all Seller systems required (i) for Buyer to continue to
operate the Business in substantially the same manner as Seller operated the
Business prior to Closing during the agreed-upon transition period and (ii) for
Seller to perform its obligations under this Agreement.  The foregoing maintenance, activities shall
include performance of preventive maintenance and any reasonably required
software upgrades.  During the
agreed-upon transition period, Seller will grant Buyer access to Seller systems
and assets shared with Buyer pursuant to Section 8.1 to the extent required for
Buyer to operate the Business in substantially the same manner as Seller
operated the Business prior to Closing. 
In addition, Seller shall allow Buyer to keep certain Buyer equipment in
Seller’s data center, and shall allow Buyer access to the data center in order
for Buyer to maintain such equipment. 
Seller shall cooperate with Buyer to make all arrangements reasonably
necessary, as determined by Buyer, to facilitate the prompt integration of the
systems Buyer has acquired from Seller pursuant to the Purchase Agreement with
Buyer’s systems, as required for Buyer to continue to operate the Business in
substantially the same manner as Seller operated the Business prior to
Closing.  The foregoing shall include
the conversion and transfer of Seller’s customer files and supplier files (each
with respect to the Business) and all other information related to the Business
(from whatever form such files and information currently exist in, computerized
or non-computerized) to Buyer’s systems.


 


9.2                                 Specific
Systems.  Without limiting the
generality of the foregoing, with respect to the specific systems used in the
Business, the parties will act as follows:


 


(a)  Seller
Network, Phone System and ACD System. 
Seller shall, allow Buyer employees to continue using Seller network,
phone system and automated call distribution (ACD) system during the Lease
Transition Period.  The New Buyer
Employees will retain the same phones and phone numbers after Closing as they
had before Closing.  Seller will charge
Buyer a pro-rated portion of Seller’s monthly operation costs for its network,
phone system and ACD system based on the number of New Buyer Employees using
such systems as of the Closing versus the total number of persons using such
systems as of the Closing.  The
foregoing operation costs are itemized in Schedule 9.2(a) and shall not
be modified without the consent of both parties.  Buyer may terminate any or all of the network, phone system or
ACD system sharing arrangements upon thirty (30) days notice to Seller, in
which event Buyer shall no longer pay any portion of the applicable operation
costs.


 


(b)  General
Office Systems.  Buyer employees
working in the Office Space or the Warehouse Space shall retain access to
Seller’s general office software (e.g., e-mail, print functionality, word
processing, etc.) and to Seller’s voicemail system until such time as Buyer has
established connectivity between the Office Space and Warehouse Space and
Buyer’s network and has provided Buyer employees located at the Office Space
and Warehouse Space access to the equivalent Buyer office software on Buyer’s
network.  Buyer shall use


 


15

















 


commercially reasonable
efforts to establish such connectivity and provide such access in an
expeditious manner.


 


(c)  SCOPUS.  Seller shall obtain consent to assign twenty
(20) SCOPUS licenses to Buyer no later than ten (10) business days after
Closing.


 


(i)                                     In
the event that Seller obtains such SCOPUS licenses within such period, then
within thirty (30) days after Closing, Seller shall segregate the SCOPUS
database into two instances and transfer one to Buyer.  Prior to such transfer, Seller may purge the
Buyer’s instance of the SCOPUS database of any information not related to or
reasonably necessary for the conduct of the Business by Buyer in the
substantially the same manner as conducted by Seller prior to Closing.  During the period prior to which the
database instance is transferred to Buyer in accordance with the foregoing,
Seller shall make available its instance of the database to Buyer to the extent
reasonably necessary for the conduct of the Business by Buyer in the
substantially the same manner as conducted by Seller prior to Closing.


 


(ii)                                  In
the event that Seller does not obtain such SCOPUS licenses within such period,
then Buyer shall be permitted to continue to use twenty (20) of Seller’s SCOPUS
seats and have full access to the SCOPUS database until all current and
historical customer data contained in the SCOPUS database, current through the
date of migration, have been migrated to Buyer’s customer, service database, provided,
that Seller shall cooperate with Buyer to perform the foregoing migration in
accordance with the reasonable specifications provided by Buyer and provided,
further, that such migration shall be completed no later than one
hundred and twenty (120) days after the date on which Buyer has established
connectivity between the Office Space and Buyer’s network and has provided
Buyer employees located at the Office Space access to the Buyer customer
service software on Buyer’s network. 
The parties will use commercially reasonable efforts to establish such
connectivity expeditiously.


 


(d)  Provisioning
and Activation.  Provisioning and
activation of the Units shall be initiated by Buyer via SCOPUS.  However, to the extent that implementation
of such provisioning and activation functions involves systems other than
SCOPUS, Seller shall support such provisioning and activation activities: (i)
for the HM5000 mobile units, for so long as Seller provides the HM5000 Airtime
Services hereunder and (ii) for the TrackWare Product Line and 20/20V Product
Line, until the replacement of the Cellemetry Gateway pursuant to 2.4.  Notwithstanding the foregoing, in the event
that the twenty (20) SCOPUS licenses are not assigned to Buyer in accordance
with paragraph (c) above, after Buyer has transitioned off the SCOPUS system
pursuant to clause (ii) of paragraph (c) above, Seller shall support all
provisioning and activation activities: (i) for the HM5000 mobile units, for so
long as Seller provides the HM5000 Airtime Services hereunder and (ii) for the
TrackWare Product Line and 20/20V Product Line, until the end of the Lease
Transition Period or such earlier time as Buyer has implemented the capability
to perform such activities itself.


 


(e)  Billing.


 


(i)                                     For
so long as Seller performs any Billing Services hereunder, Seller shall send
Buyer a file containing the invoice records of all customers invoiced by Seller
pursuant to its performance of the Billing Services within one business day of
the billing run


 


16

















 


completion.  Such file shall be in a format reasonably
specified by Buyer, which format may be changed by Buyer from time to time upon
reasonable advance notice to Seller. 
Such file shall be transmitted to Buyer for manual input by Buyer into
Buyer’s billing systems until connectivity is established between Seller’s
billing systems (including, for so long as Seller performs the Cellemetry
Billing Services, the Cellemetry Billing System) and Buyer’s billing system,
after which Seller shall download the file to Buyer’s billing system on an
automated basis.  The parties will use
commercially reasonable efforts to establish such connectivity expeditiously.


 


(ii)                                  If
Seller has not already done so prior to Closing, no later than five (5)
business days after Closing, Seller shall provide Buyer with a file containing
all customer billing records of the Business which shall contain at least the
following information with respect to each customer: (i) such customer’s name,
billing address, customer number, and billing cycle information; (ii) for
HM5000 Customers, the activation fee and unit purchase prices applicable to
such customer; (iii) for 20/20V and TrackWare customers, the activation fee,
unit purchase prices and website subscription fee applicable to such to
customer; (iv) for Platinum Service customers, all fees applicable to such
customer pursuant to its Information Management Services Agreement.  Such file shall be in a format reasonably
specified by Buyer.  To the extent that
Buyer has not provided Seller with the format for such file, Seller’s
obligation to provide the records shall be extended.


 


(f)  Inventory
Management Stems.  If Seller has not
already done so prior to Closing, no later than three (3) business days after
Closing, Seller shall provide Buyer with a file containing the inventory
records with respect to all Inventory acquired by Buyer pursuant to the
Purchase Agreement.  Such file shall be
in a format reasonably specified by Buyer. 
To the extent that Buyer has not provided Seller with the format for
such file, Seller’s obligation to provide the records shall be extended.


 


10.            Manner of Performance.
 Each party shall provide the
services to be provided by it hereunder with the same degree of care, skill and
diligence with which it performs similar services for itself or others, but in
no event less than a commercially reasonable degree of care and, in the ease of
Seller, in no event less than the degree of care it used to perform such
services for itself prior to the Closing.


 


11.            General Provisions.


 


11.1                           Successors
and Assigns.  This Agreement and the
rights of the parties hereunder may not be assigned without the prior written
consent of the other party hereto (except by operation of law) and shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors, permitted assignees, heirs and legal representatives;
provided, however, that either party may assign its rights, obligations or
liabilities hereunder to any party that merges with or acquires all of its
stock or all or substantially all of its assets.


 


11.2                           Entire
Agreement.  This Agreement (which
includes the Exhibits hereto) and the documents and agreements referred to
herein (including the Purchase Agreement) sets forth the entire understanding
of the parties hereto with respect to the transactions contemplated
hereby.  It shall not be amended or
modified except by a written instrument duly executed by each of the parties
hereto.  Any and all previous agreements
and understandings between or among the


 


17

















 


parties regarding the
subject matter hereof, whether written or oral, are superseded by this
Agreement.  Each of the Exhibits to this
Agreement is incorporated herein by this reference and expressly made a part
hereof.  Unless specifically set forth
herein, nothing in this Agreement shall modify any rights or obligations under
the Purchase Agreement.


 


11.3                           Counterparts.  This Agreement shall become binding when one
or more counterparts taken together shall have been executed and delivered by
the parties.  It shall not be necessary
in making proof of this Agreement or any counterpart hereof to produce or
account for any of the other counterparts. 
Any party that delivers a signature page via facsimile agrees to later
deliver an original counterpart to any party that requests it.


 


11.4                           Expenses
and Fees.  Buyer shall be
responsible for its fees, costs and expenses incurred in connection with the
preparation, negotiation, execution and performance of this Agreement and
Seller shall be responsible for its fees, costs and expenses incurred in
connection with the preparation, negotiation, execution and performance of this
Agreement, including, but not limited to, commissions or fees of any broker or
finder referred by such party and any attorney’s fees incurred by such party in
connection with this Agreement.


 


11.5                           Specific
Performance; Remedies.  Each party
hereto acknowledges that the other party will be irreparably harmed and that
there will be no adequate remedy at law for any violation by it of any of the
covenants or agreements contained in this Agreement. It is accordingly agreed
that, in addition to any other remedies which may be available upon the breach
of any such covenants or agreements, each party hereto shall have the right to
obtain injunctive relief to restrain a breach or threatened breach of, or
otherwise to obtain specific performance of, the covenants and agreements
contained in this Agreement.


 


11.6                           Notices.  Any notice, request, claim, demand, waiver,
consent, approval or other communication which is required or permitted
hereunder shall be in writing and shall be deemed given if delivered personally
or sent by telefax (with confirmation of receipt), by registered or certified
mail, postage prepaid, or by recognized courier service, as follows:


 


	
  If to Buyer to:

  
	
   

  
	
  Aether Systems, Inc.

  
	
  11460 Cronridge Drive

  
	
  Owings Mills, M 21117

  
	
  Attn: David C. Reymann,
  Chief Financial Officer

  
	
  (410) 654-6400 (phone)

  
	
  (410) 654-6554
  (telefax) .

  
	
   

  
	
  and a required copy
  (which shall not constitute notice) to:

  
	
   

  
	
  Wilmer,
  Cutler & Pickering

  
	
  2445 M Street, N.W.

  
	
  Washington D.C. 20037

  
	
  Attn: Mark A. Dewire,
  Esquire

  
	
  (202) 663-6658 (phone)

  



 


18

















 


	
  (202) 663-6363
  (telefax)

  
	
   

  
	
  If to Seller to:

  
	
   

  
	
  @Track Communications,
  Inc.

  
	
  1155 Kas Drive, Suite
  100

  
	
  Richardson, Texas 75081

  
	
  Attn: General Counsel

  
	
  (972) 301-2733 (phone)

  
	
  (972) 301-2588
  (telefax)

  
	
   

  
	
  and a required copy (which
  shall not constitute notice to:

  
	
   

  
	
  Locke Liddell &
  Sapp LLP

  
	
  2200 Ross Avenue, Suite
  2200

  
	
  Dallas, Texas 75201

  
	
  Attn: Stephen L. Sapp,
  Esq.

  
	
  (214) 740-8570 (phone)

  
	
  (214) 542-6665
  (telefax)

  



 


or to
such other address as the Person to whom notice is to be given may have
specified in a notice duly given to the sender as provided herein.  Such notice, request, claim, demand, waiver,
consent, approval or other communication shall be deemed to have been given as
of the date so delivered, telefaxed, mailed or dispatched and, if given by any
other means, shall be deemed given only when actually received by the
addressees.


 


11.7                           Governing
Law.  This Agreement shall be
governed by and construed, interpreted and enforced in accordance with the laws
of the State of New York without giving effect to the choice of law provisions
thereof.


 


11.8                           Selection
of Forum.  EACH PARTY HERETO AGREES
THAT IT SHALL BRING ANY ACTION OR PROCEEDING IN RESPECT OF ANY CLAIM ARISING
OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTAINED IN OR
CONTEMPLATED BY THIS AGREEMENT, WHETHER IN TORT OR CONTRACT OR AT LAW OR IN
EQUITY, EXCLUSIVELY IN THE FEDERAL DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK, OR IF JURISDICTION DOES NOT LIE IN FEDERAL COURT, THE STATE COURTS OF
NEW YORK (THE “CHOSEN COURT”) AND (A) IRREVOCABLY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF THE CHOSEN COURT, (B) WAIVES ANY OBJECTION TO LAYING OF VENUE
IN ANY SUCH ACTION OR PROCEEDING IN THE CHOSEN COURT, (C) WAIVES ANY OBJECTION
THAT THE CHOSEN COURT IS AN INCONVENIENT FORUM OR DOES NOT HAVE JURISDICTION
OVER ANY PARTY HERETO, AND (D) AGREES THAT SERVICE OF PROCESS UPON SUCH PARTY
IN ANY SUCH ACTION OR PROCEEDING SHALL BE EFFECTIVE IF NOTICE IS GIVEN IN
ACCORDANCE WITH THIS AGREEMENT,


 


19

















 


11.9                           Severability.  If any provision of this Agreement or the
application thereof to any Person or circumstances is held invalid or
unenforceable in any jurisdiction, the remainder hereof, and the application of
such provision to such Person or circumstances in any other jurisdiction, shall
not be affected thereby, and to this end the provisions of this Agreement shall
be severable.


 


11.10                     Absence of
Third Party Beneficiary Rights.  No
provision of this Agreement is intended, nor will be interpreted, to provide or
to create any third party beneficiary rights, or any other rights of any kind
in any client, customer, Affiliate, stockholder, officer, director, employee,
partner of any parry hereto or any other Person, other than the parties hereto.


 


11.11                     Further
Representations.  Each party to this
Agreement acknowledges and represents that it has been represented by its own
legal counsel in connection with the transactions contemplated by this
Agreement, with the opportunity to seek advice as to its legal rights from such
counsel.  Each party further represents
that it is being independently advised as to the tax consequences of the
transactions contemplated by this Agreement and is not relying on any
representation or statements made by the other party as to such tax
consequences,


 


11.12                     Amendment;
Waiver.  This Agreement may be
amended by the parties hereto by execution of an instrument in writing signed
on behalf of each of the parties hereto. 
Any extension or waiver by any party of any provision hereto shall be
valid only if set forth in an instrument in writing signed on behalf of such
party, giving the waiver, and shall not be deemed a waiver of any other section
nor a continuing waiver,


 


11.13                     Independent
Contractors.  The relationship
between Buyer and Seller under this Agreement is that of independent
contractors.  Nothing contained in this
Agreement shall be construed to constitute or create a partnership, agency
relationship, joint venture or equity interest between Buyer and Seller.  No party has the power or authority to act
on behalf of the other party, except as authorized in writing by the other
party.


 


11.14                      General
Audit Right.  Each party (the “Auditing
Party”) shall have the right to review, and the other party (the “Audited
Party”) agrees to make available to the Auditing Party, any and all of the
Audited Party’s records that are relevant to the determinations of the
allocations made to and costs charged to the Auditing Party under this
Agreement, including the allocations with respect to accounts receivable and
accounts payable provided for in Section 4. 
For a period of three (3) years after Closing, each party shall retain
all documentation necessary for the other party to verify the accuracy of such
determinations and shall make such documentation available to the other party
in the event the other party exercises its audit right hereunder.  Each Audited Party shall promptly remit to
the Auditing Party the amount of any overcharges or under allocations revealed
as a result of any such audit; provided, that the Auditing Party shall
provide the Auditing Party with the documentation substantiating any such
overcharge or under allocation.


 


11.15                     Further
Assurances.  From time to time after
the Closing, upon request of either party and without further consideration,
each party hereto shall execute, acknowledge and deliver all such other
instruments and documents and shall take all such other actions required to
consummate and make effective the transactions contemplated by this Agreement
and all


 


20

















 


agreements and
instruments delivered in connection herewith. 
Without limiting the foregoing sentence, in connection therewith, if
required, the president or chief financial officer of the Seller will execute
any factually accurate documentation reasonably required by the Buyer or the
Buyer’s independent public accountants. 
Each party will also cooperate and use its commercially reasonable
efforts to have its present officers, directors and employees cooperate with
the other party hereto on and after the Closing in furnishing information,
evidence, testimony and other assistance. 
Seller shall use commercially reasonable efforts during the Lease
Transition Period to provide such assistance to Buyer as is reasonably
necessary for Buyer to continue to operate the Business in substantially the
same manner as Seller operated the Business prior to Closing.


 


11.16                     Interpretation.  The defined terms used herein shall apply
equally to both the singular and plural forms of the terms defined.  Whenever the context may require, any
pronoun shall include the corresponding masculine; feminine and neuter
forms.  All references herein to
Articles, Sections and Exhibits shall be deemed to be references to Articles
and Sections of, and Exhibits to, this Agreement unless the context shall
otherwise require.  All Exhibits
attached hereto shall be deemed incorporated herein as if set forth in full
herein and, unless otherwise defined therein, all terms used in any Exhibit
shall have the meaning ascribed to such term in this Agreement.  The words “include,” includes” and
“including” shall be deemed’ to be followed by the phrase “without limitation.”  All accounting terms not defined in this
Agreement shall have the meanings determined by GAAP.  Whenever any payment hereunder is to be made payment shall be
made in the legal tender of the United States. 
The words “hereof,” “herein” and “hereunder” and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement. 
This Agreement shall be deemed to have been drafted by each party hereto
and this Agreement shall not be construed against any party as a principal
draftsperson.  Unless otherwise
expressly provided, wherever the consent of any Person is required or permitted
herein, such consent may withheld in such person’s sole discretion.


 


(Signature page follows)


 


21

















 


IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.


 


	
   

  	
  AETHER SYSTEMS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  @TRACK COMMUNICATIONS,
  INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


22

















 


EXECUTION COPY


 


EXHIBIT
A


DEFINED
TERMS


 


“Administrative
Carrier Agreement” shall mean the Administrative Carrier Agreement entered
into between Seller and Southwestern Bell Mobile Systems, Inc. n/k/a Cingular
Wireless on March 30, 1999.


 


“Administrative
Carrier Services”  has the meaning
set forth in Section 1.2(c).


 


“Billing Services”
has the meaning set forth in Section 3.3(b).


 


“Business” has the
meaning set forth in the Purchase Agreement.


 


“Buyer Indemnified
Parties” has the meaning set forth in the Purchase Agreement.


 


“Buyer’s Scheduled
Maintenance Representative” shall be a person or person’s designated by
Buyer and responsible for receiving and reacting to notices from Seller
regarding scheduled maintenance and upgrades to the NSC.  The Buyer’s Scheduled Maintenance
Representative shall be accessible to Seller on a 24 hours a day, seven days a
week basis by carrying a pager with a number that has been provided to a member
of Seller’s NSC Technical Support group.


 


“Cellemetry Billing
Services” has the meaning set forth in Section 3.3(b).


 


“Cellemetry Billing
System” has the meaning set forth in Section 3.3(b).


 


“Cellemetry Gateway”
shall mean the equipment located at 1155 Kas Drive, Suite 100, Richardson,
Texas, 75081 and utilized by Seller to enable the provision of the Cellemetry
Services to the 20/20V and TrackWare customers.


 


“Cellemetry Services”
shall mean the transmission of short data messages across the existing forward
and reverse overhead control channels and existing IS-41 capabilities of the
AMPS cellular telephone network provided by Cellemetry LLC to Seller pursuant
to the Cellemetry Reseller Agreement.


 


“Cellemetry Reseller
Agreement” shall mean the Limited Usage Value Added Reseller Agreement
between seller and Cellemetry LLC executed as of October 4, 2001.


 


“Cellular Carriers”
has the meaning set forth in Section 1.2(a)(i).


 


“Damages” has the
meaning set forth in the Purchase Agreement.


 


“HM5000 Airtime
Services” has the meaning set forth in Section 1.1.


 


“HM5000 Billing
Services” has the meaning set forth in Section 3.3(a).


 


23

















 


“HM5000 Contracts”
shall mean those contracts set forth on Schedule 1.2(e) to the Purchase
Agreement, which are the corporate customer contracts for the HM5000 product
and services.


 


“HM5000 Customers”
shall mean those parties with whom Seller has entered into an HM5000 Contract
in their capacities as such.


 


“HM5000 Gateway”
has the meaning set forth in Exhibit C.


 


“HM5000 Non-Airtime
Services” shall mean the following services performed for the HM5000
customers: (i) warranty services (including shipping and receiving of return
material authorizations); (ii) non-warranty repair services; (iii) provisioning
and activation of the HM5000 mobile units; and (iv) customer care and technical
support.


 


“Lease Transition
Period” has the meaning set forth in Section 6.2.


 


“Long Distance and
Toll-Free Services” has the meaning set forth in Section 1.2(d).


 


“Mobile Unit” has
the meaning set forth in Exhibit C.


 


“Month-to-Month HM5000
Customers” shall mean an HM5000 Customer with an HM5000 contract that may
be terminated by Seller or such HM5000 Customer on thirty (30) days advance
written notice.


 


“Network Service”
has the meaning set forth in Exhibit C.


 


“Network Service
Center” or “NSC”  shall mean
the HM5000 Gateway and, until is replaced pursuant to Section 2.4, the
Cellemetry Gateway.


 


“New Webhost Website”
has the meaning set forth in Section 2.5(a).


 


“Office Space” has
the meaning set forth in Section 6.


 


“Product Lines”
has the meaning set forth in the Purchase Agreement.


 


“Recent Receivables”
has the meaning set forth in Section 4.1(c).


 


“Seller Indemnified
Parties” has the meaning set forth in Purchase Agreement.


 


“Seller’s NSC
Technical Support Group” shall mean the group of persons designated by
Seller to technically support the NSC and to respond to Buyer’s needs with
respect to such technical support.  One
or more members of Seller’s NSC Technical Support Group shall be accessible to
Buyer on a 24 hour a day, seven days a week basis by carrying a pager with a
number that has been provided to Buyer.


 


“Seller Premises”
has the meaning set forth in Section 6.1.


 


24

















 


“Taxes” shall mean
foreign, federal, state, or local excise, sales, use, property, utility,
telecommunications, or retailers’ taxes, duties, surcharges or other
governmental imposts, levies or assessments of a similar nature.


 


“Term HM5000 Customer”
shall mean an HM5000 Customer with an HM5000 Contract with a fixed service term
that, at any given time, has more than thirty (30) days remaining.


 


“TSI Agreements”
shall mean (a) the Fleet-on-Track Services Agreement entered into between GTE
Telecommunications Services Incorporated n/k/a Telecommunications Services,
Inc. and Seller on May 3, 1999 and (b) the Information and Network Products and
Services Agreement between Seller and GTE Telecommunications Services
Incorporated n/k/a Telecommunications Services, Inc. dated August 16, 1999.


 


“TSI Services” has
the meaning set forth in Section 1.2(b).


 


“Unit” shall mean
(i) the HM5000 mobile units, (ii) with respect to the TrackWare Product Line,
the TrackWare Remote Unites and (iii) with respect to the 230/20V Product Line,
the on-Board Tracking Units.


 


“Warehouse Space”
has the meaning set forth in Section 6.


 


25

















 


EXECUTION COPY


 


Exhibit
B-1


Third
Party Carrier Rates


 


[*]


 












*
Confidential information.  Information
has been redacted.


 


26

















 


Execution Copy


 


EXHIBIT
B-1


THIRD
PARTY CARRIER RATES


 


[To
be provided by Seller]


 


[*]


 












* Confidential
information.  Information has been
redacted.


 


27

















 


EXHIBIT
B-2


 


LONG
DISTANCE AND TOLL-FREE RATES


 


[To
be provided by Seller]


 


[*]


 












* Confidential
information.  Information has been
redacted.


 


28

















 


EXHIBIT C

HM5000 NETWORK

SERVICE LEVEL GUARANTEES


 


12.                                 Definitions.


 


Unless otherwise set forth below, capitalized terms
used in this Exhibit C will have the meanings set forth in the body of
the Agreement.  Unless otherwise noted,
section references are to those in this Exhibit C.


 


12.1                           “CommHandlers”
[*]


 


12.2                           “Frame
Relay Circuits” [*]


 


12.3                           “HM5000
Gateway” shall [*]


 


12.4                           “HM5000
Gateway Availability” [*]


 


12.5                           “Host
Software” shall mean the software utilized by each of the HM5000 Customers
at such customer’s premises in conjunction with the Mobile Units to receive the
Network Service.


 


12.6                           “Mobile
Units” shall mean the HM5000 mobile communications units utilized by each
of the HM5000 Customers to receive the Network Service.


 


12.7                           “Network
Availability Percentage” shall have the meaning set forth in Section 3.1
below.


 


12.8                           “Network
Downtown” shall mean the aggregate number of minutes in a calendar month
that the HM5000 Customers are unable to utilize the Systems on a Mobile Unit
basis as a direct result of the failure in Network Service.  For example, there are a total of ten HM5000
Customers with ten Mobile Units each, for a total of 100 Mobile Units.  If, during a given calendar month, the
Network Service is unable for 30 minutes and all ten HM5000 Customers are
unable to utilize the Systems as a result, then the Network Downtown for such
calendar month shall be 3000 minutes (30 minutes multiplied by 100 Mobile
Units).  If, during a given calendar
month, the Network Service is unavailable for 30 minutes but only one HM5000


 












* Confidential
information.  Information has been
redacted.


 


29

















 


Customer is unable to
utilize the Systems as a result, then the Network Downtime for such calendar
month shall be 300 minutes (30 minutes multiplied by 10 Mobile Units).


 


Network Downtown for all affected HM5000 Customers
shall commence at the earlier of the time that: (a) any affected HM5000
Customer reports such downtime to a Customer Care representative, (b) Buyer
reports such downtime to a member of Seller’s NSC Technical Support Group, or
(c) a member of Seller’s NSC Technical Support Group becomes aware of such
downtime.  For each affected HM5000
Customers, Network Downtime shall end at the time that Buyer has confirmed that
Network Service has been restored to such HM5000 Customer.  Seller, in its reasonable discretion, shall
determine whether Network Downtime has occurred after its reported by any
HM5000 Customer or by Buyer and whether any such Network Downtime should be
excluded pursuant to Section 4 below; provided, however, that Seller
shall provide Buyer with documentation supporting any such determinations,
which documentation shall include (i) Seller’s explanation as to when, where
and how any such Network Downtime occurred or, if Seller believes no such
Network Downtime ever occurred an explanation as to customer’s or Buyer’s
perception that it did occur; (ii) an accounting of all actions taken by
Seller, Buyer and/or customer to resolve such Network Downtime, whether or not
such actions were successful; and (iii) an explanation of when and how the
Network Downtime problem was finally resolved.


 


12.9                           “Network
Downtime Credits” shall mean credits issued by Seller to Buyer against the
charges made by Seller to Buyer pursuant to Sections 1.1(a) and (d) of the
Agreement, pursuant to which Buyer reimburses Seller for certain of its costs
and providing the HM5000 Airtime Services, as per the terms and conditions of
Section 3 below.


 


12.10                     “Network
Downtime Percentage” shall have the meaning set forth in Section 3.2 below.


 


12.11                     “Network
Services” shall mean HM5000 Gateway Availability, TSI HLR Availability and
WAN Availability.


 


12.12                     “Systems”
shall mean the Mobile Units and Host Software utilized by each of the HM5000
Customers to receive Network Service.


 


12.13                     “Total
Monthly Minutes” shall mean the total number of minutes in a calendar month
multiplied by the total number of Mobile Units then in service for the HM5000
Customers who are entitled to receive the Network Service during such calendar
month.


 


12.14                     “TSI HLR”
[*]


 


12.15                     “TSI HLR
Availability” [*]


 












*
Confidential information.  Information
has been redacted.


 


30

















 


12.16                     “WANs”
[*]


 


12.17                     “WAN
Availability” [*]


 


13.                                 Network
Service Availability.


 


13.1                           Network
Service shall be available for use by the HM5000 Customers seven (7) days a
week, twenty-four (24) hours a day, excluding any periods of scheduled upgrades
and maintenance to the HM5000 Gateway, TSI HLR, WAN, Frame Relay Circuits or
CommHandlers.  Scheduled upgrades or
maintenance shall include only planned maintenance or upgrades of no longer
than four hours per week in the aggregate, unless otherwise previously agreed
to by the parties.  To the extent that
scheduled upgrades and maintenance exceed four hours per week, such activities
shall not be considered “scheduled” and therefore shall not be excluded for
purposes of calculating the Network Downtime Percentage pursuant to Section 3
below unless otherwise previously agreed to by the parties.


 


13.2                           Seller
shall provide redundancy of the critical hardware and software components in
the HM5000 Gateway.


 


13.3                           Seller
shall provide Buyer with a formalized trouble reporting and escalation process.


 


13.4                           Unless
a shorter notice period is otherwise agreed to by the parties in any particular
case, Seller shall provide to Buyer’s Scheduled Maintenance Representative at
least forty-eight (48) hours advance notice of scheduled maintenance or upgrade
activity to the CommHandlers, Frame Relay Circuits, HM5000 Gateway, TSI HLR and
WAN.  Any maintenance or upgrade
activity for which forty-eight (48) hours advance notice is not provided to
Buyer Schedules Maintenance Representative shall not be considered “scheduled”
and therefore shall not be excluded for purposes of calculating the Network Downtime
Percentage pursuant to Section 3 below.


 


13.5                           Seller
shall provide to Buyer a monthly report on the availability of Network Service.


 


13.6                           Seller
shall coordinate with Buyer to conduct periodic service reviews for the purpose
of improving levels of Network Service.


 


14.                                 Network
Downtime Credits.


 


14.1                           Buyer
shall receive a credit against monthly charges made by Seller to Buyer pursuant
to Section 1.1 of the Agreement, based upon “Network Availability Percentage”
calculated as follows:


 












*
Confidential information.  Information
has been redacted.


 


31

















 


100% - Network Downtime Percentage = Network
Availability Percentage


 


14.2                           “Network
Downtime Percentage” shall be calculated as follows:


 


(Network Downtime  ̧
Total Monthly Minutes) x 100 = Network Downtime Percentages


 


14.3                           Based
on the Network Availability Percentage, the following Network Downtime Credits
will be applied:


 


	
  Network Availability Percentage

  	
   

  	
  Credit*

  	
   

  
	
  If <
  99.0% and 3 97%

  	
   

  	
  2

  	
  %

  
	
  If <
  97.0% and 3 96%

  	
   

  	
  4

  	
  %

  
	
  If <
  96.0% and 3 95%

  	
   

  	
  6

  	
  %

  
	
  If <
  95.0% and 3 93%

  	
   

  	
  8

  	
  %

  
	
  If <
  93.0% and 3 90%

  	
   

  	
  10

  	
  %

  
	
  If <
  90.%

  	
   

  	
  20

  	
  %

  



 












* The credit is
calculated as a percentage of the charges made by Seller to Buyer pursuant to
Sections 1.1(a) and (d) of the Agreement.


 


14.4                           If
during any given calendar month, the Network Availability Percentage is below
99.0%, Buyer shall be entitled to a financial credit in the form of a discount
on the charges made by Seller to Buyer pursuant to section 1.1 of the Agreement
applicable to such calendar month.  The
amount of such credit shall be determined based on the Network Availability
Percentage during such calendar month and the corresponding credit amount as
set forth above.  In addition, in the
event that is eight (8) hours or more of consecutive Network Downtime in any
given calendar month and at least four (4) hours of such consecutive Network
Downtime occurs during the hours between 7:00 a.m. and 7:00 p.m. central time,
Buyer shall be entitled to a fifty percent (50%) credit for such calendar
month.  The amount of any credit due
shall be applied against the invoice sent to Buyer pursuant to Section 1.1 that
is applicable to such calendar month; provided, however, that if
the calculation of the Network Availability Percentage cannot reasonably be
completed before such invoice is sent out, the credit shall be applied against
the invoice for the following calendar month.


 


15.                                 Exclusions.  Network Downtime caused by any of the
following is excluded for purposes of calculating the Network Downtime
Percentage:


 


15.1                           Modifications
or alterations by the HM5000 Customers to the Mobile Units, CommHandlers, Host
Software or Frame Relay Circuits at the customer’s premises.


 


15.2                           Failures
in local exchange service, interexchange service and cellular service.


 


15.3                           Subject
to Sections 2.1 and 2.4 above, scheduled maintenance to the HM5000 Gateway, TSI
HLR, WAN, Frame Relay Circuits and/or CommHandlers.


 


15.4                           Failures
in the CommHandlers, Mobile Units or Host Software.


 


32

















 


EXHIBIT D


BILLING SERVICES


SERVICE LEVEL
GUARANTEES


 


In its performance of the
Billing Services:


 


1.                                       Timeliness.  Seller shall send out invoices to customers
within six (6) business days after the end of the applicable billing cycle.


 


If during any given calendar month an invoice is sent
out more than six (6) business days after the end of the billing cycle Buyer
shall be entitled to a financial credit in the form of a discount on the
charges made by Seller to Buyer for sending such invoice pursuant to Section
3.3(c).  The amount of such credit shall
be determined based on the number of business days after the end of the billing
cycle such invoice is sent and the corresponding credit amount as set forth
below.  The amount of such credit shall
be applied against the invoice sent to Buyer by Seller pursuant to Section
3.3(c) that is applicable to such calendar month; provided, however,
that if the calculation of the credit amount cannot reasonably be completed
before such invoice is sent out, the credit shall be applied against the
invoice for the following calendar month.


 


	
  Number of Business Days after Bill Cycle

  That Invoice is Sent to Customer:

  	
   

  	
  Credit
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7

  	
   

  	
  10

  	
  %

  
	
  8

  	
   

  	
  20

  	
  %

  
	
  9

  	
   

  	
  30

  	
  %

  
	
  10

  	
   

  	
  40

  	
  %

  
	
  11 - 15

  	
   

  	
  50

  	
  %

  
	
  >15

  	
   

  	
  100

  	
  %

  



 


2.                                       Accuracy.  Buyer shall have the right to audit the
invoices sent by Seller to Buyer’s customers for accuracy.  For a period of one year after Seller sends
any invoice to a customer, Seller shall retain all documentation necessary for
Buyer to verify the accuracy of such invoice and Seller shall make such
documentation available to Buyer in the event Buyer exercises its audit
right.  Seller shall promptly remit to
Buyer the amount of any customer undercharges or overcharges revealed as a
result of any such Buyer audit; provided, that Buyer shall provide
Seller with the documentation substantiating any such overcharge or
undercharge.  To the extent any Buyer
audit reveals that Seller has overcharged or undercharged customers by greater
than five percent (5%), Seller shall remit to Buyer the amount of such
overcharge or undercharge plus twenty percent (20%) of such amount.


 


33

















 


EXHIBIT F


SUBLEASE TERMS


 


1.                                       Monthly
rent of no greater than $18.50 per square foot.


 


2.                                       Rent
shall be inclusive of all costs, including janitorial, utilities, costs of
security/fire system and maintenance of grounds, parking lot and building.


 


3.                                       Total
square footage shall be at least 10,000, which shall include both the Office
Space and Warehouse Space.  The office
Space shall include adequate restrooms, Xerox rooms and conference room space.


 


4.                                       Buyer
employees and guests shall have full access to parking lot.


 


5.                                       Seller
shall install security card readers at Buyer’s two external entries, shall
provide Buyer employees with security cards and shall operate and maintain the
security system (which shall be the same system Seller uses for the rest of the
Seller Premises).  Seller shall activate
and deactivate Buyer employee security cards at Buyer’s direction.  Buyer may install its own security system at
its option.


 


34

















 


SCHEDULE 9.2


COSTS OF NETWORK,
PHONE AND ACD SYSTEMS


 


35

















 


Attachment A -
Long Distance Usage Services - 2 Years


 


Unless otherwise
identified, section number references

are to sections within this Attachment


 


[*]


 












* Confidential
information.  Information has been
redacted.


 


36

















 


FIRST AMENDMENT TO
TRANSITION SERVICES AGREEMENT


 


THIS FIRST AMENDMENT TO TRANSITION SERVICES AGREEMENT
(“First Amendment”) is made and entered into this 8th day of
July, 2003, by and between Aether Systems, Inc., a Delaware corporation
(the “Buyer”), and Minorplanet Systems USA, Inc. formerly @Track
Communications, Inc., a Delaware corporation (the “Seller”) and is
effective July 8, 2003.   This Amendment
shall not be applied retroactively.


 


RECITALS


 


WHEREAS, Buyer and Seller have entered into that
certain Asset Purchase Agreement dated as of March 15, 2002 (the “Purchase
Agreement”), whereby Seller has conveyed and Buyer has acquired the
Acquired Assets used by Seller with respect to the Business


 


WHEREAS, Buyer and Seller entered into that certain
Transition Services Agreement dated as of March 15, 2002 (the “Transition
Agreement”);


 


WHEREAS, Buyer and Seller wish to amend the Transition
Agreement as more specifically set forth below herein:


 


NOW, THEREFORE, in consideration of the promises and
mutual covenants set forth herein, and other good and valuable consideration,
the parties hereby agree as follows:


 


1.               Section
1.1 of the Transition Agreement is deleted in its entirety and replaced with
the following new Section 1.1:


 


“1.1                           Provision
of HM5000 Airtime Services.  
Pursuant to the HM5000 Contracts, Seller shall remain obligated to the
HM5000 Customers to provide the Enhanced Services (as defined in the HM5000
Contracts) and the Enhanced Cellular Roaming (as defined in the HM5000
Contracts) during the respective terms of such contracts and in accordance with
the terms and conditions thereof (collectively, the “HM5000 Airtime
Services”).  With respect to the Term
HM5000 Customers, Seller hereby agrees with and covenants to Buyer that Seller
shall, unless and until otherwise directed by Buyer, provide HM5000 Airtime
Services to each such Term HM5000 Customer pursuant to the terms of its HM5000
Contract until the later of (i) the expiration of the fixed term of its HM5000
Contract and (ii) January 30, 2005, or such later date as may be mutually
agreed by the parties.  With respect to
the Month-to-Month HM5000 Customers, Seller hereby agrees with and covenants to
Buyer that Seller shall, unless and until otherwise directed by Buyer, provide
HM5000 Airtime Services to each such Month-to-Month HM5000 Customer pursuant to
the terms of its HM5000 Contract until January 30, 2005, or such later date as
may be mutually agreed by the parties. 
Each HM5000 Customer shall be permitted to renew its HM5000 Contract
upon expiration in accordance with the renewal terms thereof and, in the event
of any such renewal (whether automatic or otherwise), such expiration shall not
constitute a termination of such contract that would relieve Seller of its
obligation to Buyer to provide HM5000 Airtime Services to such HM5000 Customer
pursuant to this Section 1.1; provided, however, that no HM5000
Customer may renew its HM5000 Contract for a term that extends beyond January
30, 2005, unless otherwise mutually agreed by the parties.  Upon instruction from Buyer, and provided


 

















 


that such suspension would not result in Seller’s
breach of the applicable HM5000 Contract, Seller shall permanently cease or
temporarily suspend providing HM5000 Airtime Services to any HM5000
Customer.   Because, subject to the
limitations set forth above, all rights under the HM5000 Contracts have been
assigned to Buyer pursuant to the Purchase Agreement, subject to Section
4.l(c), Seller shall have no right to terminate or modify the HM5000 Contracts
or to discontinue provision of the HM5000 Airtime Services, except as directed
by Buyer in accordance with the foregoing.”


 


2.               The
first full sentence in Section 1.2 (e) of the Transition Agreement is deleted
in its entirety and replaced with the following:


 


[*]


 


3.               Section
6.2 of the Transition Agreement and Exhibit F to the Transition Agreement shall
be deleted in their entirety.


 


4.               Section
1.9 of Exhibit C to the Transition Agreement shall be deleted in its entirety
and replaced with the following new Section 1.9:


 


“1.9 “Network Downtime Credits” shall mean
credits issued by Seller to Buyer against the charges made by Seller to Buyer
pursuant to Sections 1.2(e) of the Agreement, pursuant to which Buyer
reimburses Seller for certain of its costs of providing the HM5000 Airtime
Services, as per the terms and conditions of Section 3 below.”


 


5.               The
second and third full sentences in Section 2.1 of Exhibit C to the Transition
Agreement shall be deleted in their entirety.


 


6.               Section
3.1 of Exhibit C to the Transition Agreement shall be deleted in its entirety
and replaced with the following new Section 3.1:


 


“Buyer shall receive a credit against the monthly
charges made by Seller to Buyer pursuant to Section 1.2(e) of the Agreement,
based upon “Network Availability Percentage” calculated as follows:”


 


100% – Network Downtime Percentage = Network
Availability Percentage


 


7.               Section
3.3 of Exhibit C to the Transition Agreement shall be deleted in its entirety
and replaced with the following new Section 3.3:


 


“3.3                           Based
on the Network Availability Percentage, the following Network Downtime Credits
will be applied: 


 












* Confidential
information.  Information has been
redacted.


 


38

















 


	
  Network Availability Percentage

  	
   

  	
  Credit*

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  If < 98.0%
  and L 96%

  	
   

  	
  2

  	
  %

  
	
  If < 95.9%
  and 2 90%

  	
   

  	
  4

  	
  %

  
	
  If < 89.9%

  	
   

  	
  6

  	
  %

  



 












*  The credit
is calculated as a percentage of the charges made by Seller to Buyer pursuant
to Sections 1.2(e) of the Agreement.”


 


8.               Section
3.4 of Exhibit C to the Transition Agreement shall be deleted in its entirety
and replaced with the following new Section 3.4:


 


“If during any given calendar month, the Network
Availability Percentage is below 98.0%, Buyer shall be entitled to a financial
credit in the form of a discount on the charges made by Seller to Buyer
pursuant to Section 1.2(e) of the Agreement applicable to such calendar
month.  The amount of such credit shall
be determined based on the Network Availability Percentage during such calendar
month and the corresponding credit amount as set forth above.  The amount of any credit due shall be
applied against the invoice sent to Buyer pursuant to Section 1.2(e) that is
applicable to such calendar month; provided, however, that if the
calculation of the Network Availability Percentage cannot reasonably be
completed before such invoice is sent out, the credit shall be applied against
the invoice for the following calendar month.”


 


9.               All
capitalized terms used herein shall have the meaning ascribed to them in the
Transition Agreement and its Exhibits unless otherwise defined herein.


 


IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above written.


 


	
   

  	
  AETHER SYSTEMS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MINORPLANET SYSTEMS
  USA, INC,. FORMERLY

  KNOWN AS @TRACK COMMUNICATIONS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


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