exv10w7



 




Exhibit 10.7



AETHER BUSINESS SYSTEMS SEPARATION: COST SHARING AGREEMENT



     This AETHER BUSINESS SYSTEMS SEPARATION: COST SHARING AGREEMENT (this
“Agreement”) is made as of January 13, 2004, by and among Aether
Systems, Inc., a Delaware corporation (“Aether”), TSYS Acquisition Corp,
a Maryland corporation (“TSYS”), TeleCommunication Systems Limited, a
corporation formed under the laws of the United Kingdom and a wholly owned
subsidiary of Parent (“TCS Ltd.” and together with TSYS, the
“Buyer”), and TeleCommunication Systems, Inc., a Maryland corporation
(“TCS”). Terms used but not otherwise defined herein, shall have the
meaning ascribed such term in the Purchase Agreement, as defined below.



WITNESSETH:



     WHEREAS, pursuant to that certain Purchase Agreement, dated as of December
18, 2003, by and among Aether, Buyer, and TCS relating to the purchase and sale
of all issued and outstanding shares of Aether European Holdings, B.V. and
certain assets of Aether comprising the company’s Enterprise Mobility Solutions
division (as amended, the “Purchase Agreement”), Aether has agreed to
sell, convey, transfer, assign and deliver to Buyer, and Buyer has agreed to
acquire certain assets and to assume the Assumed Liabilities from Aether, in
each case relating exclusively to the Business, which the parties agree will be
achieved pursuant to (i) the purchase and sale of the Purchased Assets, (ii)
the assumption of the Assumed Liabilities, and (iii) the purchase and sale of
the Purchased Shares, all on the terms and subject to the conditions set forth
in the Purchase Agreement; and



     WHEREAS, in connection therewith, each of Aether, Buyer and TCS desire,
that Aether provide Buyer with certain transition services upon the terms and
provisions and subject to the conditions of this Agreement.



     NOW, THEREFORE, in consideration of the foregoing premises and the
covenants and agreements set forth herein, each of Aether, Buyer and TCS agrees
as follows:



     1.   Services. During the Service Period (as defined in Section 5),
upon the request of Buyer, Aether agrees to provide, or cause its Affiliates to
provide, to Buyer from the date of this Agreement for the period of time
described on Annex A attached hereto with respect to each of the
services, the services set forth on Annex A. Such services shall be
provided under the terms set forth on Annex A. Aether’s obligation to
deliver any service is conditioned upon Aether’s obtaining the consent, where
necessary, of any relevant third party provider. Aether shall use its
commercially reasonable efforts, and Buyer and TCS shall cooperate fully with
Aether in all respects, to obtain any consents that may be required from such
licensors in order to provide any of the services hereunder. Buyer and TCS
shall be responsible for purchasing any and all required hardware and software
in support of any transitioned software systems unless specifically stated
otherwise in this agreement. Aether may, in Aether’s sole discretion, provide
Buyer with hardware to support Buyer’s implementation of transitioned software
systems.



 






 



     2.   Billing and Payment. In accordance with the provisions of this
Agreement, Buyer and TCS shall pay to Aether the following fees for the
transition services to be provided by Aether under this Agreement (regardless
of the nature or extent of the actual services rendered):



	 	 	 
	•  January 2004
	 	$20,000.00
	•  February 2004
	 	$20,000.00
	•  March 2004
	 	$20,000.00
	•  April 2004
	 	$20,000.00
	•  May 2004
	 	$10,000.00
	•  June 2004
	 	$10,000.00







     Such amount shall be paid by check in accordance with the instructions
provided by Aether in writing to Buyer, at the end of the calendar month
specified. Buyer and TCS shall be jointly and severally liable for all
payments required under this Section 2 and all the obligations under this
Agreement.



     3.   General Intent. Aether shall use its commercially reasonable
efforts to provide the transition services which are set forth on Annex
A and such other transition assistance as the parties may otherwise agree
during the Service Period. Each of Buyer, TCS and their respective Affiliates
agrees to use their respective commercially reasonable efforts to terminate
their need to use such assistance as soon as reasonably possible and (unless
the parties otherwise agree) in all events to terminate such need with respect
to each service specified in Annex A not later than the end of the
period specified in Annex A for the provision of each such service.
Buyer and TCS, on the one hand, and Aether, on the other hand, acknowledge that
during the Service Period, each party may be utilizing and/or have access to
software/systems of the other party. The parties shall cooperate to establish
policies, procedures and protocols over joint usage of each parties
software/systems to ensure the confidentiality and integrity of each party’s
data. Buyer and Aether acknowledge that in the event either party is unable to
migrate off of one or more of the software applications as described in this
Agreement, within the time frames specified then both Buyer and Aether shall
continue to cooperate and work in good faith with the other to complete the
migration of the software application(s) including allowing the party which is
migrating continued usage of the functioning software application, until such
time as the migrating party is able to successfully migrate and implement its
own software application(s).



     4.   Validity of Documents. The parties hereto shall be entitled to
rely upon the genuineness, validity or truthfulness of any document, instrument
or other writing presented in connection with this Agreement unless such
document, instrument or other writing appears on its face to be fraudulent,
false or forged.



     5.   Term of Agreement. The term of this Agreement shall commence on
the date hereof and shall continue (unless sooner terminated pursuant to the
terms hereof) until the services contemplated by this Agreement have been
provided and the obligations of the parties hereunder have been fulfilled
(such period the “Service Period,” or such shorter period as may be
specified in Annex A with respect to particular services described in
Annex A.) Upon termination of this Agreement, all rights and obligation
of each party, other than those set forth in Sections 8 and 11 of this Agreement and
other than any payments by Buyer and TCS for services provided through the date
of termination shall cease as of the effective date of such



2






 




termination, and any such unpaid amounts owed by Buyer and TCS shall be paid in accordance with
the payment provisions of Section 2.



     6.   Partial Termination. Any and all of the services provided by
Aether and its Affiliates hereunder are only terminable earlier than the period
specified in Annex A by Buyer or TCS on thirty (30) days prior written
notice to Aether. Any such termination shall be final.



     7.   Assignment. This Agreement shall not be assignable in whole or
in part by Buyer or TCS without the prior written consent of Aether. Aether
may assign, sell, delegate or otherwise transfer this Agreement or any of its
rights and obligations hereunder as part of a merger, consolidation, corporate
reorganization, joint venture, lease, sale of all or a portion of its assets,
sale of stock or similar event; provided that in connection with any
such transaction (a) the resulting, surviving or transferee Person (any such
Person, a “Successor Company”) by operation of law, becomes, without
more, bound by the terms and provisions of this Agreement or, if not so bound,
the Successor Company expressly assumes the rights and obligations of Aether
under this Agreement which are being transferred to such Successor Company, and
(b) Aether shall notify Buyer and TCS in writing promptly (and in no event more
than ten (10) days) after any such assignment, sale, delegation or transfer.



     8.   Confidentiality. Each party hereto agrees to hold, and use its
best efforts to cause its officers, directors, employees, accountants, counsel,
consultants, advisors and agents to hold, in confidence, unless compelled to
disclose by judicial or administrative process or by other requirements of law,
all confidential documents and information concerning this Agreement and any
services provided hereunder, provided, however, that to the
extent that any of them may become so legally compelled, they may only disclose
such information if they shall first have used best efforts to, and, if
practicable, shall have afforded the other party the opportunity to, obtain an
appropriate protective order or other satisfactory assurance of confidential
treatment for the information required to be disclosed. If this Agreement is
terminated, TCS and Buyer will, and will use their best efforts to cause their
respective officers, directors, employees, accountants, counsel, consultants,
advisors and agents to, destroy or deliver to Aether, upon request, all
documents and other materials, and all copies thereof, obtained by TCS and
Buyer and their respective Affiliates or on their behalf from Aether or any of
its Affiliates in connection with this Agreement that are subject to such
confidence. Notwithstanding anything herein to the contrary, the parties agree
(and each affiliate and person acting on behalf of such party) agree that each
party (and each employee, representative, and other agent of such party) may
disclose to any and all persons without limitation of any kind, the tax
treatment and tax structure of the transaction and all materials of any kind
(including opinions and other tax analyses) that are provided to such party or
such persons relating solely to such tax treatment and tax structure, except to
the extent necessary to comply with any applicable federal or state securities
laws.



     9.   Governing Law; Submission To Jurisdiction. This Agreement shall
be deemed to be made in and in all respects shall be interpreted, construed and
governed by and in
accordance with the law of the State of Maryland without regard to the
conflict of law principles thereof.



     10.   Limitation of Liability. Aether shall not be liable to Buyer,
TCS or any of their respective its Affiliates or any third party for any
special, consequential or exemplary damages (including lost or anticipated
revenues or profits relating to the same) arising from any claim



3






 




relating to this Agreement or any of the services provided hereunder, whether such claim is
based on warranty, contract, tort (including negligence or strict liability) or
otherwise, even if an authorized representative of Aether is advised of the
possibility or likelihood of the same. In addition, Aether shall not be liable
to Buyer or TCS, any of their respective Affiliates or any third party for any
direct damages arising from any claim relating to this Agreement or any of the
services provided hereunder or required to be provided hereunder, except to the
extent that such direct damages are caused by the gross negligence or willful
misconduct of Aether or its Affiliates.



     11.   Default. In the event that (a) TCS or Buyer fails to pay any
amount when due under this Agreement within sixty (60) days after written
notice that such payment is due; or (b) TCS or Buyer fails to perform, or
breaches or defaults under any other material term, condition or obligation of
this Agreement, and such failure, breach or default is not cured within 90 days
after written notice thereof, Aether shall have the right to terminate this
Agreement without penalty to Aether and without prejudice to any other rights
and remedies of Aether and its Affiliates.



     12.   Counterparts. This Agreement may be executed in one or more
counterparts (including by means of telecopied signature pages), all of which
shall be considered one and the same agreement, and shall become effective when
one or more such counterparts have been signed by each of the parties and
delivered to the other parties.



     13.   Notices. All notices or other communications required or
permitted to be delivered hereunder shall be in writing and shall be delivered
by hand or sent by prepaid telex or telecopy, or sent, postage prepaid, by
registered, certified or express mail, or reputable overnight courier service
and shall be deemed delivered when so delivered by hand, telexed or telecopied
with acknowledged receipt, or if mailed, five (5) calendar days after mailing
(one (1) Business Day in the case of express mail or overnight courier
service), as follows:



     If to Buyer or TCS:



	 
	TeleCommunication Systems, Inc.

275 West Street

Annapolis, Maryland 21401

Attn: Thomas Brandt

Telephone: (410) 280-1001

Facsimile: (410) 280-1048








     with a copy to:



	 
	Piper Rudnick LLP

6225 Smith Avenue

Baltimore, Maryland 21209

Attn: Wilbert H. Sirota, Esq.

Telephone: (410) 580-4264

Facsimile: (410) 580-3001








4






 



     If to Aether:



	 
	Aether Systems, Inc.

11460 Cronridge Dr.

Owings Mills, Maryland 21117

Attn: David Oros

Telephone: (410) 654-6400

Facsimile: (410) 654-6554








     and:



	 
	Kirkland & Ellis LLP

655 15th Street, N.W., Suite 1200

Washington, D.C. 20005

Attn: Mark D. Director, Esq.

Telephone: (202) 879-5000

Facsimile: (202) 879-5200







or such other address or facsimile number as such party may hereafter specify
in writing for the purpose by notice to the other parties hereto.



     14.   Amendment And Waiver. This Agreement may be amended, modified,
superseded or canceled, and any of the terms, covenants, representations,
warranties or conditions hereof may be waived, only by a written instrument
executed by the parties hereto, or, in the case of a waiver, by or on behalf of
the party waiving compliance. The failure of any party at any time or times to
require performance of any provision hereof shall in no manner affect the right
at a later time to enforce the same. No waiver by any party of any condition,
or of any breach of any term, covenant, representation or warranty contained in
this Agreement, in any one or more instances, shall be deemed to be or
construed as a further or continuing waiver of any such condition or breach or
a waiver of any other condition or of any breach of any other term, covenant,
representation or warranty.



     15.   Interpretation. The headings and captions contained in this
Agreement and in Annex A attached hereto are for reference purposes only
and shall not affect in any way the meaning or interpretation of this
Agreement. The use of the word “including” and all variants thereof herein
shall mean “including without limitation.”



     16.   No Strict Construction. The language used in this Agreement
shall be deemed to be the language chosen by the parties hereto to express
their mutual intent, and no rule of strict construction shall be applied
against any person.



     17.   Entire Agreement. This Agreement, the Purchase Agreement and
the other agreements contemplated therein contain the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersede all prior agreements and understandings, whether written
or oral, relating to such subject matter.



     18.   Relationship of Parties. Except as specifically provided
herein, none of the parties shall act or represent or hold itself out as having
authority to act as an agent or partner of



5






 




the other parties, or in any way
bind or commit the other party to any obligations. Nothing contained in this
Agreement shall be construed as creating a partnership, joint venture, agency,
trust or other association of any kind, each party being individually
responsible only for its obligations as set forth in this Agreement.



     19.   Force Majeure. If Aether or any of its Affiliates is prevented
from complying, either totally or in part, with any of the terms or provisions
of this Agreement by reason of fire, flood, hurricane, storm, strike, lockout
or other labor trouble, any law, order, proclamation, regulation, ordinance,
demand or requirement of any governmental authority, riot, war, rebellion or
other causes beyond the reasonable control of Aether or its Affiliates or other
acts of God, then upon written notice to TCS and Buyer, the affected provisions
and/or other requirements of this Agreement shall be suspended during the
period of such disability and Aether and its Affiliates shall have no liability
to TCS, Buyer, any of their respective Affiliates or any other party in
connection herewith. Aether shall use all commercially reasonable efforts to
remove such disability within thirty (30) days of giving notice of such
disability.



[END OF PAGE]

[SIGNATURE PAGES FOLLOW]




6






 





     IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the date and year first set
forth above.


	 	 	 	 	 
	 	AETHER SYSTEMS, INC.

 	 
	 	By:  	/s/
David S. Oros	 
	 	 	Name:  	David S. Oros 	 
	 	 	Title:  	Chief Executive Officer 	 
	 



	 	 	 	 	 
	 	TELECOMMUNICATION SYSTEMS, INC.

 	 
	 	By:  	/s/
Thomas M. Brandt, Jr.	 
	 	 	Name:  	Thomas M. Brandt, Jr. 	 
	 	 	Title:  	Senior Vice President and Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	TELECOMMUNICATION SYSTEMS, LTD.

 	 
	 	By:  	/s/
Thomas M. Brandt, Jr.	 
	 	 	Name:  	Thomas M. Brandt, Jr. 	 
	 	 	Title:  	Senior Vice President and Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	TSYS ACQUISITION CORP.

 	 
	 	By:  	/s/
Thomas M. Brandt, Jr.	 
	 	 	Name:  	Thomas M. Brandt, Jr. 	 
	 	 	Title:  	Senior Vice President and Chief Financial Officer 	 




 






 



	 	 	 	 	 




ANNEX A

TO

AETHER BUSINESS SYSTEMS SEPARATION: COST SHARING AGREEMENT




     This Annex A sets forth the transition services to be provided by Aether
to Buyer and TCS relating to the operation of the Business. To the extent that
transition services set forth on this Annex A may be provided to Buyer and TCS,
such services will be provided in a commercially reasonable manner. In the
event Aether reasonably determines that the performance of any of the
transition services is commercially unreasonable and Aether informs Buyer and
TCS it intends to cease the performance of such services, Buyer and TCS, on one
hand, and Aether, on the other hand, shall enter into prompt and good faith
negotiations to resolve Aether’s inability to provide the services in question.



	 	 	 
	Service	 	Service Period
	 
	 	 
	1.   Human Resources
	 	 
	 
	 	 
	 
	 	 
	 	 	 
	      (a)  Since all Transferred
Employees will
be terminated
effective with the Closing Date, there will be no need for a
payroll transition. Terminating employees will receive a
final pay check from Aether including a payout of all accrued
and unused paid time off (vacation).
	 	N/A
	 
	 	 
	 
	 	 
	 	 	 
	      (b)  Administration of Transferred
Employees’ 401(k) Plan: All
Transferred Employees will be terminated from Aether’s 401(k)
plan as a normal termination. Any Transferred Employee who
wishes to roll over their balances into TCS’s plan will do so
as new hires of TCS. Transferred Employees will also have
the option to keep their balances in Aether’s 401(k) Plan if
such balance exceeds $5,000.
	 	N/A
	 
	 	 
	 
	 	 
	 	 	 
	      (c)  Tuition Reimbursement –
Aether shall provide a schedule
detailing all amounts currently payable as of the date of
Closing or amounts committed and payable upon completion of
class work under the Aether Tuition Reimbursement Plan to
Transferred Employees. TCS shall be responsible for
reimbursement of all amounts payable or committed as of the
Closing Date.
	 	Within one week of
Closing
	 
	 	 
	 
	 	 
	 	 	 
	      (d)  Aether shall provide a complete
demographic report of all Transferred Employees.
	 	One day prior to Closing
	 
	 	 
	 
	 	 
	 	 	 
	      (e)  Stock Option/Restricted
Share Plans – Aether will
terminate each Transferred Employee’s participation in said
plans in accordance with both Aether’s customary policies and
procedures, as well as the terms and conditions of the
respective plans.
	 	N/A
	 
	 	 
	 
	 	 
	 	 	 
	      (f)  Transition
of Aether employees to TCS Benefit Programs – Transferred Employees will be terminated from all Aether
Employee Benefits Plans effective as of the date of Closing.
Health, dental and vision coverage shall continue in force
through the end of the month in which the termination occurs.
Transferred Employees will be eligible to purchase COBRA
through Aether if they so choose.
	 	N/A







 






 



	 	 	 
	Service	 	Service Period
	 
	 	 
	 
	 	 
	      (g)  Aether shall retain
ownership of its existing Plan View
Project Management system.
	 	N/A
	 
	 	 
	 
	 	 
	 	 	 
	      (h)  Aether will retain
ownership of the E-Time hourly
employee time reporting system. Aether will provide hourly
reporting services until Closing.
	 	N/A
	 
	 	 
	 
	 	 
	 	 	 
	2.   Legal Services
	 	 
	 
	 	 
	 
	 	 
	 	 	 
	      (a)  Aether shall provide Buyer
with access to employees in
its legal department, during normal business hours and on
reasonable notice, to answer questions regarding the Assigned
Contracts, as is deemed reasonable by Aether.
	 	6 Months
	 
	 	 
	 
	 	 
	 	 	 
	      (b)  Aether shall use
reasonable means to notify vendors and
customers of the Business which exists as of the date of
Closing, of the sale of the Business to Buyer.
	 	Within one month of
Closing
	 
	 	 
	 
	 	 
	 	 	 
	3.   Financial Services
	 	 
	 
	 	 
	 
	 	 
	 	 	 
	      (a)  Aether shall
provide Buyer with two (2) replicated
instances of its existing Solomon 5.0 accounting software
(Solomon Foundation, General Ledger, Accounts Receivable,
Inventory, Accounts Payable, Purchasing and Customization
manager modules only) along with any existing customizations
relating to the Business as it exists at Closing, including
but not limited to credit card billing, consolidated billing,
sales tax and lockbox receipts. Buyer to obtain requisite
licenses, at Buyer’s cost, for the Solomon 5.0 software and
supply necessary hardware, consistent with a specification
outlined by Aether, to support installation. Aether shall
install and configure all existing
customizations/integrations with AESOP, Global Payments
(existing Aether credit card processor) and customer support
website. Aether shall deliver a functional Solomon 5.0
environment to include AESOP and Soloman 5.0, as described in
this Section 3(a), to support the Business.
	 	Delivery to occur
subsequent to
Aether’s January
accounting close
which in no event
shall be later than
February 15, 2004
	 
	 	 
	 
	 	 
	 	 	 
	      (b)  Aether shall provide
Buyer with its existing Solomon 2.06
implementation, including hardware, databases and maintenance
agreements, if any, which is currently used to support the
domestic market data business.
	 	At Closing
	 
	 	 
	 
	 	 
	 	 	 
	      (c)  Aether shall assist
Buyer, where possible, in the
preparation of monthly financial information including
assistance in preparing certain schedules in support of
general ledger balances. Buyer will be utilizing its own
general ledger software and chart of accounts which differs
from that currently used by Aether. Aether shall provide
assistance to Buyer with preparation of financial statements
along with supporting schedules as needed by Buyer. Buyer
acknowledges that Buyer will be establishing its own unique
chart of accounts and utilizing existing general ledger and
accounts payable software systems subsequent to Closing.
	 	3 Months
	 
	 	 
	 
	 	 
	 	 	 
	      (d)  Aether shall
assist Buyer in the preparation of certain
revenue and sales tax withholding information in support of
the filing of Buyer’s sales tax returns. Buyer acknowledges
that Aether’s assistance shall be limited to reports of sales
by state and sales tax withholdings by state generated from
the Solomon 5.0 system. Aether shall not assist in the
preparation of any sales tax filings nor should
	 	3 Months







9






 






	 	 	 
	Service	 	Service Period
	 
	 	 
	Buyer
construe any assistance provided as advice relating to the
filing of any sales tax returns.

	 
	 	 
	 	 	 
	      (e)  Aether shall
generate reports using Solomon 5.0 standard
reporting (Crystal Reports) and SQL scripts, as feasible, to
assist in the operation of the Business and based upon
information available to Aether in Aether managed financial
and operational software applications. Aether will only be
able to produce those reports which can be generated from
information in systems it continues to manage during the
Service Period. Aether will not be able to run purchasing,
payable or various other reports which rely on systems not
supported by Aether (i.e. G/L). Aether shall provide
existing Crystal Reports Templates and SQL scripts used in
the operation of the Business.
	 	3 Months
	 
	 	 
	 
	 	 
	 	 	 
	      (f)  Aether shall
provide reporting and support, as
appropriate, to Buyer for the Crystal Reports reporting
software.
	 	Until such time as
Buyer is able to
acquire its own
license
	 
	 	 
	 
	 	 
	 	 	 
	4.   General Ledger
	 	 
	 
	 	 
	 
	 	 
	 	 	 
	      (a)  Aether has provided
Buyer with its existing chart of
accounts, including sub-ledger detail, for the Solomon
systems described in Section 3(a) and 3(b).
	 	N/A
	 
	 	 
	 
	 	 
	 	 	 
	      (b)  Aether shall
provide Buyer with opening general ledger
balances, along with supporting schedules, consistent with
Aether’s existing chart of accounts, which support the
Purchased Assets, Assumed Liabilities and AAE Purchased
Assets on the Closing Balance Sheet.
	 	At the delivery of
the Closing Balance
Sheet, which shall
not be later than
forty (40) days
from the date of
Closing.
	 
	 	 
	 
	 	 
	 	 	 
	      (c)  Aether shall prepare a
preliminary list of fixed assets
which shall include (i) all production network equipment, LAN
infrastructure and furniture and desktop computer equipment
used exclusively by Employees of the Business as of the
Closing Date and currently installed at 11460 Cronridge
Drive, Owings Mills, Maryland, (ii) all common area furniture
(ie. furniture located in the kitchen and conference room)
which is primarily used by Employees of the Business and
currently installed at 11460 Cronridge Drive, Owings Mills,
Maryland, and (iii) all production network equipment and
furniture and desktop computer equipment used exclusively by
Employees of the Business as of the Closing Date and
currently installed at 11445 Cronridge Drive, Owings Mills,
Maryland. Additionally, Aether shall provide Buyer with
approximately 45 file/application servers and 15 routers
which are not currently installed at 11460 Cronridge Drive,
Owings Mills, Maryland to be used to fulfill the hardware
requirements under this Agreement.
	 	Preliminary list
within fifteen (15)
days of Closing;
final list no later
than forty (40)
days from the date
of Closing.
	 
	 	 
	 
	 	 
	 	 	 
	5.   Accounts Payable
	 	 
	 
	 	 
	 
	 	 
	 	 	 
	      (a)  Aether shall provide
Buyer with copies of invoices along
with appropriate detail (such as receiving reports or
written approvals for payment) of accounts payable included
on the Closing Balance Sheet (“Closing Accounts.
	 	As applicable







10






 



	 	 	 
	Service	 	Service Period
	 
	 	 
	Payable Invoices”) no later than 15 days from the date of Closing.
Closing Accounts Payable Invoices may contain charges for
goods and services which pertain solely to the Business or,
both to the Business and to Aether (“Commingled Charges”).
All payments of Closing Accounts Payable Invoices containing
charges pertaining solely to the Business shall be presented
to Buyer and Buyer shall remit payment to the vendor when
due. All payments of Closing Accounts Payable Invoices with
Commingled Charges shall be remitted to the vendor by Aether.
Aether shall notify Buyer subsequent to payment of these
invoices and provide Buyer with detail of amounts paid on
behalf of Buyer. Buyer shall reimburse Aether by check, or
if the amount of reimbursement being requested exceeds
$100,000 in the aggregate, by wire transfer, within 5 days of
receipt of notice. Seller shall not provide notice
requesting reimbursement more frequently than bi-weekly.
	 	 
	 
	 	 
	 
	 	 
	 	 	 
	      (b)  During the Service
Period, Aether will continue to
receive invoices, addressed to Aether, for goods and services
provided to the Buyer for the period subsequent to Closing
(“Post Closing Invoices”). Post Closing Invoices shall be
handled in the same manner as Closing Accounts Payable
Invoices, as discussed in Section 5(a).
	 	As applicable
	 
	 	 
	 
	 	 
	 	 	 
	      (c)  Aether has provided
Buyer with a current vendor list
relating to the Business as of Closing.
	 	N/A
	 
	 	 
	 
	 	 
	 	 	 
	      (d)  Buyer and Aether
shall jointly develop a plan to transfer
vendor account relationships to Buyer. Vendor accounts for
goods and services pertaining solely to the Business shall be
transferred to Buyer. Vendor accounts for goods and services
pertaining to both the Business, as well as other Aether
business units, shall remain with Aether and Aether shall
assist Buyer in establishing new account relationships with
those particular vendors.
	 	As applicable
	 
	 	 
	 
	 	 
	 	 	 
	6.   Purchasing
	 	 
	 
	 	 
	 
	 	 
	 	 	 
	      (a)  Aether shall
provide to Buyer hard-copy detail, by
vendor, of all open purchase orders as well as receiving
information or payment approvals for items not yet paid which
exist as of the date of Closing.
	 	Within 1 week of
Closing
	 
	 	 
	 
	 	 
	 	 	 
	      (b)  Subsequent to
Closing, Buyer shall utilize its own
internal purchase order system.
	 	N/A
	 
	 	 
	 
	 	 
	 	 	 
	7.   Order Entry and Product Fulfillment
	 	 
	 
	 	 
	 
	 	 
	 	 	 
	      (a)  Order entry and product
fulfillment activities, including
those relating to the Blackberry product line, are
accomplished using Aether’s AESOP computer software. Aether
shall provide Buyer with its existing AESOP implementation,
including hardware, software data bases and maintenance
agreements, if any. The AESOP software was developed
internally by Aether however, Buyer will obtain licensing, if
required, for any underlying software. Buyer acknowledges
that Aether utilizes the AESOP software for its other
business lines and Buyer shall provide Aether with access
consistent with its existing usage, along with support
services. Aether to provide a list of third party licenses
before
	 	5 Months







11






 



	 	 	 
	Service	 	Service Period
	 
	 	 
	Closing.
	 	 
	 
	 	 
	 	 	 
	      (b)  All code base,
supporting custom web sites existing as of
Closing, which support customer ordering and customer service
for the Business, shall be transferred to Buyer. All email
addresses and domain names, relating to the Business, shall
be governed in accordance with the Trademark License
Agreement. Any websites currently hosted on Aether’s
existing Internet server hardware shall be transitioned to
hardware specified by Aether and provided by Buyer.
	 	2 Months
	 
	 	 
	 
	 	 
	 	 	 
	8.   Billing, Accounts Receivable and Collection
	 	 
	 
	 	 
	 
	 	 
	 	 	 
	      (a)  Billing and
collection will be performed by Buyer
personnel utilizing Aether’s existing Solomon 5.0 system
until delivery of the Solomon 5.0 environment as described in
Section 3(a). Aether shall provide support as required for
these functions.
	 	Until delivery of
environment
described in
Section 3(a)
	 
	 	 
	 
	 	 
	 	 	 
	      (b)  Aether shall
transfer to Buyer, a copy of Aether’s
database supporting all active customers and related customer
data files, including detailed accounts receivable history,
relating to the Business, as of a date to be determined by
Buyer. This database shall be integrated with delivery of
the Solomon 5.0 environment described in Section 3(a).
Aether shall also provide Buyer with a hard copy of accounts
receivable as of December 31, 2003 by January 15, 2004 and
January 31, 2004 by February 3, 2004.
	 	As applicable
	 
	 	 
	 
	 	 
	 	 	 
	      (c)  Buyer shall
establish its own lockbox accounts with which
to accept customer payments on behalf of the Business.
Aether shall assist Buyer in notifying existing Business
customers of new Payee and remittance address information.
Amounts received directly by Aether or in Aether’s lockbox,
on behalf of Buyer shall be remitted to Buyer on a bi-weekly
basis, by check or by wire transfer if the amount to be
remitted is greater than $100,000, and all such funds in
Aether hands in time to be deposited into Buyer’s bank
account by any quarter-end date
	 	As applicable
	 
	 	 
	 
	 	 
	 	 	 
	9.   Other Operations
	 	 
	 
	 	 
	 
	 	 
	 	 	 
	      (a)  Clarify CRM System
(“Clarify”) – Aether shall maintain
responsibility for Clarify subsequent to Closing and shall
provide Buyer with ongoing access consistent with prior
Business usage. No later than February 27, 2004, Buyer shall
notify Aether of its intent relative to the adoption of
Clarify. If Buyer notifies Aether of its intent not to adopt
Clarify as its CRM solution then Aether shall provide Buyer
with a copy of the then current Clarify database, excluding
all Aether data, as of a point in time mutually agreed upon
by Aether and Buyer. Conversely, if Buyer notifies Aether of
its intent to adopt Clarify as its CRM solution, Aether shall
have up to 7 months to procure new hardware and software, at
Buyer’s expense, and migrate from the existing implementation
of Clarify. Buyer and Aether agree to cooperate in support
of Aether’s migration.
	 	7 Months
	 
	 	 
	 
	 	 
	 	 	 
	      (b)  AT&T/Lucent
Telephone System – Buyer shall take ownership
of the AT&T/Lucent telephone system, the ACD software and
attendant maintenance agreements, if any, at Closing. Aether
shall work with Buyer to establish/transfer carrier
agreements supporting voice connectivity to Buyer. Aether
shall retain
	 	6 Months







12






 



	 	 	 
	Service	 	Service Period
	 
	 	 
	rights to all local and toll-free telephone
numbers except those which are exclusive to the Business.
Buyer acknowledges that the phone system discussed in this
section is Aether’s primary phone system used to support its
remaining operations. Subsequent to Closing, Buyer shall
provide Aether with ongoing access consistent with its
existing usage, along with support services, until such time
as Aether is able to implement a replacement telephone
system. Based on Automated Call Distribution data and other
sources, Buyer will provide detail and bill Aether for
monthly local and long distance charges incurred through
Aether’s usage of the AT&T/Lucent System, if any.
	 	 
	 
	 	 
	 
	 	 
	 	 	 
	      (c)  StarTeam Software
Configuration Management System (“SCM”)
– Buyer shall assume responsibility for the SCM subsequent to
Closing. Buyer shall provide Aether with ongoing access to
the existing SCM, consistent with Aether’s current usage,
until such time as Aether is able to migrate from the
existing implementation of the SCM. Buyer and Aether shall
cooperate to assist in deploying a new implementation of the
SCM for Aether. Buyer to provide Aether with a copy of its
existing SCM data repository relating to Aether’s remaining
business, as of a point in time mutually agreed upon. Aether
to obtain necessary hardware along with requisite licensing
for new SCM software, at Aether’s expense, to support
Aether’s new SCM implementation. Buyer and Aether
acknowledge that Aether is attempting to allocate its
existing SCM license between Buyer and Aether in lieu of
purchasing a new license for Aether.
	 	7 Months
	 
	 	 
	 
	 	 
	 	 	 
	      (d)  Network
Operations/PocketBlue/Pocket FD Service
	 	As applicable
	 
	 	 
	            (i)   Subsequent
to
Closing, Buyer shall continue
to host and provide on going support for
Aether’s hardware, software and connectivity
relating to its PocketBlue/Pocket FD service.
	 	 
	 
	 	 
	            (ii)   Buyer
shall
continue to provide licensing,
in accordance with the Deal License Agreement
for AIM and Certicom relating to Aether’s
Pocketblue/Pocket FD application.
	 	 
	 
	 	 
	            (iii)   Under
the
direction of Aether, Buyer shall
continue to bill Aether’s customers for
Pocketblue service at agreed upon amounts on a
monthly basis. Buyer shall remit amounts billed
to Aether on a monthly basis.
	 	 
	 
	 	 
	            (iv)   The
services
are deemed separate from the
scope of other transition services, and will be
provided indefinitely, at the option of Aether,
at a monthly price of $4,000.
	 	 
	 
	 	 
	 
	 	 
	 	 	 
	10.   Information Technology
	 	 
	 
	 	 
	 
	 	 
	 	 	 
	      (a)   Aether
shall provide the
following to Buyer during the
Service Period for the specified time periods:
	 	6 Months
	 
	 	 
	            (i)   Network
monitoring
and security support
using the following applications currently
utilized by Aether:
	 	 
	 
	 	 
	                        (A)   McAfee
anti-virus
	 	 
	                        (B)   Elron
	 	 







13






 



	 	 	 
	Service	 	Service Period
	 
	 	 
	                        (C)   ISS
Real Secure
	 	 
	 
	 	 
	            Aether
shall provide the above utilizing
existing licenses. Upon expiration of existing
licenses, Buyer shall procure its own licenses.
	 	 
	 
	 	 
	            (ii)   Remote
user access through use of VPN
(network) and Outlook Web Access (email).
	 	 
	 
	 	 
	            (iii)   User
access for Solomon and Clarify using
Citrix terminal servers.
	 	 
	 
	 	 
	            (iv)   Data
storage space during the Service
Period.
	 	 
	 
	 	 
	            (v)   Continued
support of Exchange email and
print and file services for Transferred
Employees.
	 	 
	 
	 	 
	 
	 	 
	 	 	 
	      (b)   Aether
shall provide
Buyer with its existing production
tape backup system located in Aether’s existing data center.
	 	At Closing
	 
	 	 
	 
	 	 
	 	 	 
	      (c)   Aether
shall provide
Buyer with its existing Micromuse
Netcool implementation, including hardware, software and
maintenance agreements, if any, which is currently used to
support data center operations. Buyer is responsible for
obtaining requisite licensing for the software from
Micromuse. Subsequent to Closing, Buyer shall provide Aether
with ongoing access to the existing implementation,
consistent with its existing usage, along with support
services, until such time as Aether is able to implement a
replacement system.
	 	4 Months
	 
	 	 
	 
	 	 
	 	 	 
	11.   Facilities
	 	 
	 
	 	 
	 
	 	 
	 	 	 
	      (a)   Continued
operation
of the Best Access building security
system (system to be retained by Aether) consistent with past
practice. At Buyer’s option, Buyer and Aether shall
cooperate to modify system as appropriate, at Buyer’s cost,
to meet the needs of Buyer.
	 	Within ninety (90)
days of Closing
	 
	 	 
	 
	 	 
	 	 	 
	      (b)   Aether
will endeavor to move its personnel from 11460
Cronridge Drive as soon as possible after closing. Aether
employees not directly supporting transition activities, as
outlined herein, shall vacate within 90 days of the date of
Closing. Remaining Aether employees shall move as soon as
reasonably possible subsequent to completing their transition
responsibilities.
	 	As applicable
	 
	 	 
	 
	 	 
	 	 	 
	12.   Network Connectivity and Airtime
	 	 
	 
	 	 
	 
	 	 
	 	 	 
	      (a)   During
the Service Period, for the specified interval,
Aether and Buyer shall jointly provide support as may be
required by Buyer to support network connectivity and airtime
through existing vendor relationships. Buyer acknowledges
that network connectivity is currently managed by certain
Aether employees who will become Transferred Employees
subsequent to Closing.
	 	6 Months
	 
	 	 
	 
	 	 
	 	 	 
	      (b)   Buyer
and Aether shall jointly develop a plan to transfer
certain airtime and network connectivity relationships to
Buyer. Relationships for airtime and network connectivity
pertaining solely to the Business shall be transferred to
	 	2 Months







14






 



	 	 	 
	Service	 	Service Period
	 
	 	 
	Buyer. Relationships for airtime and network connectivity
pertaining to both the Business, as well as other Aether
business units, shall remain with Aether and Aether shall
assist Buyer in establishing new account relationships with
those particular vendors.
	 	 
	 
	 	 
	 
	 	 
	 	 	 
	      (c)   Aether
will work with Buyer to transfer to Buyer the
Autonomous System (AS) number and ARIN IP address space
currently assigned to Aether in support of the EMS business.
	 	2 Months
	 
	 	 
	 
	 	 
	 	 	 
	13.   Employee Wireless Devices
	 	 
	 
	 	 
	 
	 	 
	 	 	 
	      (a)   Subsequent
to Closing, Aether shall provide Buyer with a
listing, by MAN number, of Rim devices running Blackberry by
Aether service, utilized by Aether and Aether’s employees.
Buyer and Aether shall enter into a Blackberry end user
license agreement with respect to those MAN numbers on terms
reasonably acceptable to Aether. The monthly fee to Aether
for Blackberry Service access shall be $46.99 for each
activated device. Subsequent to Closing, Aether shall not be
responsible for payment of any wireless service except as
indicated on the listing prepared in accordance with this
Section 13(a).
	 	Within one month of
Closing
	 
	 	 
	 
	 	 
	 	 	 
	      (b)   As
soon as practical, Aether and Buyer shall jointly
develop a plan to transfer cellular telephones and other
devices (aircards, etc), used by Transferred Employees, as of
Closing, from Aether’s accounts to either Buyer’s existing
accounts or to newly established Buyer accounts.
	 	Within one month of
Closing
	 
	 	 
	 
	 	 
	 	 	 
	14.   Marketing
	 	 
	 
	 	 
	 
	 	 
	 	 	 
	      (a)   MarketFirst
Lead Management System (“Marketfirst”): Buyer
shall assume responsibility for MarketFirst subsequent to
Closing. Buyer shall provide Aether with ongoing access to
the existing MarketFirst implementation, consistent with
Aether’s current usage, until such time as Aether is able
migrate off of the existing implementation. Buyer and Aether
shall cooperate to assist in deploying a new implementation
of MarketFirst for Aether. Buyer to provide Aether with a
copy of its existing MarketFirst data repository relating to
Aether’s remaining business, as of a point in time mutually
agreed upon. Aether to obtain necessary hardware along with
requisite licensing for new MarketFirst software, at Aether’s
expense, to support Aether’s new MarketFirst implementation.
	 	7 Months








15