**Exhibit10.10**

 

**TRANSITIONSERVICES AGREEMENT**

 

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

 

**RECITALS**

 

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

 

All capitalized terms used herein shall have themeaning ascribed to them in the Purchase Agreement unless otherwise definedherein.   Capitalized terms used but notdefined in the body of this Agreement shall have the respective meanings givento such terms in Exhibit A attached hereto.

 

Buyer and Seller wish to make arrangements for thetransition of the Business from Seller to Buyer following the Closing of thetransactions contemplated by the Purchase Agreement, pursuant to thisAgreement.

 

NOW, THEREFORE, in consideration of the promises andmutual covenants set forth in the Purchase Agreement and herein, and other goodand valuable consideration, and contingent upon the Closing, the parties herebyagree as follows:

 

# **1.****                   Transition ofthe HM5600 Business**.  Pursuant tothe Purchase Agreement, Seller has retained all obligations under the HM5000Contracts 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 allliability and responsibility under the HM5000 Contracts and Buyer has acquiredall rights under the HM5000 Contracts, including the sole right to enforce theterm thereof and, subject to the limitations set forth herein, to modify theterms thereof (including the rates thereunder) and terminate the contract, ineach case in accordance with the terms of thereof.  However, as between Seller and Buyer, certain rights andresponsibilities with respect to the HM5000 Customers shall be as set forth inthis Section 1.

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## 1.1                                 Provisionof HM5000 Airtime Services. Pursuant to the HM5000 Contracts, Seller shall remain obligated to theHM5000 Customers to provide the Enhanced Services (as defined in the HM5000Contracts) and the Enhanced Cellular Roaming (as defined in the HM5000Contracts) during the respective terms of such contracts and in accordance withthe terms and conditions thereof (collectively, the “HM5000 Airtime Services”).With respect to the Term HM5000 Customers, Seller hereby agrees with andcovenants to Buyer that Seller shall, unless and until otherwise directed byBuyer, provide HM5000 Airtime Services to each such Term HM5000 Customerpursuant to the terms of its HM5000 Contract until the later of (i) theexpiration 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 respectto the Month-to-Month HM5000 Customers, Seller hereby agrees with and covenantsto Buyer that Seller shall, unless and until otherwise directed by Buyer,provide HM5000 Airtime Services to each such Month-to-Month HM5000 Customerpursuant to the terms of its HM5000 Contract until September 30, 2003, or

 

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## such later date as may bemutually agreed by the parties.  EachHM5000 Customer shall be permitted to renew its HM5000 Contract upon expirationin accordance with the renewal terms thereof and, in the event of any suchrenewal (whether automatic or otherwise), such expiration shall not constitutea termination of such contract that would relieve Seller of its obligation toBuyer to provide HM5000 Airtime Services to such HM5000 Customer pursuant tothis Section 1.1; provided, however, that no HM5000 Customer mayrenew 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 suspensionwould not result in Seller’s breach of the applicable HM5000 Contract, Sellershall permanently cease or temporarily suspend providing HM5000 AirtimeServices to any HM5000 Customer. Because, subject to the limitations set forth above, all rights underthe HM5000 Contracts have been assigned to Buyer pursuant to the PurchaseAgreement, subject to Section 4.l(c), Seller shall have no right to terminateor modify the HM5000 Contracts or to discontinue provision of the HM5000Airtime Services, except as directed by Buyer in accordance with the foregoing.

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## 1.2                                 Considerationfor Provision of HM5000 Airtime Services. In exchange for Seller’s promise to Buyer to provide the HM5000 AirtimeServices to the HM5000 Customers in accordance with Section 1.1, for so long asSeller provides such HM5000 Airtime Services pursuant to Section 1.1, except asotherwise provided in paragraph (g), Buyer hereby agrees to pay Seller Seller’sactual costs of providing the HM5000 Airtime Services to the extent set forthbelow:

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### (a)  ThirdParty Cellular Services.

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#### (i)                                     Selleris charged for the HM5000 Airtime Services by Seller’s cellular carriers (the “CellularCarriers”), who charge Seller per minute of HM5000 Airtime Services. Theper minute rates for each Cellular Carrier that Seller uses to provide theHM5000 Airtime Services are attached hereto, listed by carrier, as ExhibitB-1.  Seller hereby represents andwarrants to Purchaser that the rates and information set forth on ExhibitB-1 are true, correct and complete as of the date hereof.  Seller shall charge Buyer for the HM5000Airtime Services invoiced to Seller by the Cellular Carriers at the applicablerate Seller is charged for such HM5000 Airtime Services, as set forth in ExhibitB-1.  Seller may amend ExhibitB-1 only upon thirty (30) days prior written notice to Buyer and only tothe extent necessary to reflect actual rate increases imposed on Seller by theCellular Carriers and to reflect changes in Cellular Carriers.

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#### (ii)                                  Sellershall use commercially reasonable efforts (and in no event less than the samelevel of efforts that Seller used in such situations prior to Closing) (A) toaudit the charges made to it by the Cellular Carriers for the HM5000 AirtimeServices 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, toseek a refund.  Seller shall informBuyer of any such overcharge, keep Buyer apprised of efforts to obtain a refundof such overcharge, and promptly remit any such refund received to Buyer.

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

 

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### Airtime Services andinvoiced to Seller by Telecommunications Services, Inc. at the rate Seller ischarged for such TSI Services.  Sellershall not enter into any amendments, renewal or replacement of the TSI Agreementsthat would result in an increase in the amounts charged for the TSI Serviceswithout the prior written consent of Buyer.

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### (c) Administrative Carrier Services. In connection with its provision of the HM5000 Airtime Services, Selleruses services rendered to Seller under the Administrative Carrier Agreement(the “Administrative Carrier Services”).  “Administrative Carrier Services” shall not, however, include anycharges of the Cellular Carriers that are passed through to Seller pursuant tothe Administrative Carrier Agreement but shall include only those charges inrespect of the services actually provided to Seller by Cingular Wirelessthereunder.  Seller shall charge Buyerfor the Administrative Carrier Services used by Seller for the provision of theHM5000 Airtime Services and invoiced to Seller by Cingular Wireless at the rateSeller is charged for such Administrative Carrier Services.  Seller shall not enter into any amendment,renewal or replacement of the Administrative Carrier Agreement that wouldresult in an increase in the amounts charged for the Administrative CarrierServices without the prior written consent of Buyer.

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

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### (e)  Costsof NSC Operation.  Buyer shall paySeller [*] to cover Seller’s costs of operating its Network ServiceCenter.  Payment for any partialcalendar month (i.e., the month in which Closing occurs and the month in whichSeller ceases to provide HM5000 Airtime Services hereunder) shall be proratedaccordingly.  In exchange for theforegoing payment, Seller agrees to maintain and technically support the NSCwith same level of care as Seller used to perform these activities prior toClosing, but in no event less than a commercially reasonable standard of care.  With respect to the Cellemetry Gateway, theforegoing obligation to provide maintenance and technical support shallcontinue only until Buyer has implemented a replacement of the CellemetryGateway in accordance with Section 2.4. With respect to the HM5000 Gateway, the foregoing obligation to providemaintenance and technical support shall continue for so long as Seller isobligated to provide the HM5000 Airtime Services hereunder.

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### (f)  Invoicing.  Seller shall invoice Buyer for the chargesset forth in paragraphs (a) though (e) on a calendar month basis.  Seller shall invoice Buyer for the chargesincurred in each calendar month within ten (10) business days after the lastday of such calendar month.  Buyer shallremit payment to Seller in respect of such charges with fifteen (15) businessdays after receiving the applicable invoice. For a period of one year after Buyer receives any invoice under thisparagraph (f), Buyer shall have the right to audit the charges made to Sellerthat were

 

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### passed through to Buyerpursuant to such invoice to verify that Seller has charged Buyer in accordancewith this Section 1.  For a period ofone year after Buyer receives my invoice under this paragraph (f), Seller shallretain all documentation (including the bills Seller received from theapplicable service provider and the documentation recording the usage of theHM5000 Airtime Services by the HM5000 Customers) necessary for Buyer to verifythe accuracy of the charges passed through to Buyer pursuant to such invoiceand Seller shall make such documentation available to Buyer in the event Buyerexercises its audit right.  Seller shallpromptly remit to Buyer the amount of any overcharge revealed as a result ofany Buyer audit; provided, that Buyer shall provide Seller with thedocumentation substantiating any such overcharge.  To the extent any Buyer audit reveals that Seller has overchargedBuyer by greater than five percent (5%), Seller shall remit to Buyer the amountof such overcharge plus twenty percent (20%) of such amount.

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### (g)  DirectPayment to Third-Party Providers. Notwithstanding any other provision of this Section 1.2, in the eventthat Seller is more than thirty (30) days past due on the payments it awes tomy third party provider of the HM5000 Airtime Services, the TSI Services, theAdministrative 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 toSeller pursuant to this Section 1.2 directly to the applicable third-partyprovider instead.  In such case, Buyershall make clear to the third-party provider that it is making such payments onSeller’s behalf and shall provide evidence to Seller that it has made suchpayments.

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## 1.3                                 NetworkService Level.

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### (a)  As furtherdescribed in Exhibit C, Seller shall guarantee Buyer that the HM5000Customers will receive a certain level of network availability with respect tothe network that provides the HM5000 Airtime Services.  To the extent that Seller does not meet suchservice 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.

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### (b)  Sellershall notify a Buyer Customer Care manager immediately in the event of anyunscheduled interruption of the Network Service and shall keep Customer Caremanagement updated on the status of any such interruption.

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## 1.4                                 WarrantyService.

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### (a)  As notedabove, pursuant to the Purchase Agreement, Seller has retained all liabilityand responsibility under the HM5000 Contracts, including the obligation toprovide warranty service.  Buyer herebyagrees 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 andhold harmless the Seller Indemnified Parties from, against and in respect ofany and all Damages suffered, sustained, incurred or paid by any of the SellerIndemnified Parties in connection with, resulting from or arising out of,directly or indirectly, claims made by the HM5000 Customers against the SellerIndemnified Parties for warranty service that Buyer performs or fails toperform after Closing, except for claims arising out of the gross negligence orwillful misconduct of the Seller Indemnified Parties.

 

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### (b)  Sellerhereby represents and warrants to Buyer that it has not entered into extendedwarranty contracts with the existing customers of the Business (including theHM5000 Customers).

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## 1.5                                 CustomerIntroductions.  Seller shall use itsbest efforts to arrange in-person meetings at the premises of each of the MajorHM5000 Customers within ninety (90) days after Closing.  Such personal meetings shall include (a) atleast one member of Buyer’s senior management team, (b) a representative of theMajor HM5000 Customer and (c) (i) with respect to the meetings with Wal-Martand CFI, respectively and (ii) upon request of Buyer, with respect to any otherMajor HM5000 Customer, Seller’s CEO. Seller shall coordinate the timing of such meetings with Buyer and Buyershall use its best efforts to make its senior management team available forsuch meetings.  At such meetings, Sellershall introduce Buyer as the new contact for the HM5000 Non-AirtimeServices.  The purpose of such meetingshall be to foster and encourage a future business relationship between Buyerand such Major HM5000 Customers and the conduct of the meeting, by bothparties, 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 theClosing.

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## 1.6                                 Indemnification.  Except as otherwise provided in thisAgreement, pursuant to the Purchase Agreement, Seller has retained allliability and responsibility under the HM5000 Contracts.  Therefore, Seller covenants and agrees toindemnify, defend, protect and hold harmless the Buyer Indemnified Partiesfrom, 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 forclaims arising out of the gross negligence or willful misconduct of the BuyerIndemnified Parties.

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## 1.7                                 NoThird Party Beneficiaries.  TheHM5000 Customers shall not be third party beneficiaries under this Agreementand shall have no right to enforce the provisions of this Agreement againsteither Seller or Buyer.  The rights oftile HM5000 Customers shall remain entirely governed by their respective HM5000Contracts.

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## 1.8                                 Non-StandardVersions of HM5000 Contract.  ThisAgreement makes reference to the term and conditions of the standard version ofthe HM5000 Contract, as provided by Seller to Buyer.  To the extent that this Agreement refers to terms and conditionsof the HM5000 Contracts that do not match the terms and conditions used in aversion of the HM5000 Contract (other than the standard version), the partiesintend that such terms shall refer to the most closely corresponding terms andconditions in such HM5000 Contract so as to most closely reflect the intent ofthe parties hereunder:

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# **2.****                   Transactions ofthe TrackWare and 20/20V Business**.

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## 2.1                                 Provisionof Cellemetry Services.  Until suchtime as Buyer has replaced the Cellemetry Gateway in accordance with Section2.4 (and in no case later than September 30, 2003), Seller shall resell theCellemetry Services to Buyer for Buyer in turn to resell such services to itspresent 2nd future customers of the TrackWare Product Line and 20/20V ProductLine.

 

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## 2.2                                 Considerationfor 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 Cellemetrypursuant to the Cellemetry Reseller Agreement. Seller shall not modify or terminate the Reseller Agreement without theprior consent of Buyer.  Seller shallcomply in all respects with the terms and provisions of the Cellemetry ResellerAgreement.  To the extent that Sellerbreaches the Cellemetry Reseller Agreement and such breach results in anyinterruption, failure or delay of the Cellemetry Services provided by Seller toBuyer pursuant to Section 2.1, Seller shall indemnify Buyer (a) for any loss ofbusiness that results from such interruption, failure or delay in service and(b) for any amount that Buyer may be contractually obligated to credit acustomer for such interruption, delay or failure in service, but in no eventshall such indemnification exceed. [*]

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## 2.3                                 Assignmentof Cellemetry Reseller Agreement. As soon as Buyer has replaced the Cellemetry Gateway in accordance withSection 2.4, Seller shall make effective its assignment to Buyer all of itsright and interest in the Cellemetry Reseller Agreement (which assignment is anAcquired Asset pursuant to the terms of the Purchase Agreement) and Section2.1, providing for the provision of the Cellemetry Services by Seller, shall beof no further force and effect.

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## 2.4                                 Replacementof Cellemetry Gateway.  Buyer shalluse commercially reasonable efforts to replace the Cellemetry Gateway with itsown gateway, capable of enabling the provision of the Cellemetry Services, inan expeditious manner and in no event later than September 30, 2003. Sellershall provide Buyer with reasonable technical cooperation and shall transfer toBuyer any technical information, in each case as reasonably necessary for Buyerto implement such replacement gateway within the foregoing timeframe.

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## 2.5                                 Website.

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### (a)  Sellercurrently uses a Website located at the domain name “www.webhost.at-track.com”to provide integral services to customers of the TrackWare Product Line and20/20V Product Line.  Promptly after Closing,Buyer shall display the content of this Website, which has been transferred toBuyer pursuant to the Purchase Agreement, under a new domain name of Buyer’schoosing (the “New Webhost Website”) and Seller shall provide Buyer withtechnical assistance reasonably necessary for Buyer to implement the NewWebhost Website.  Until Buyer displayssuch content at the New Webhost Website, Seller shall allow Buyer to continueto display such content at “www.webhost.at-track.com.”

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

 

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### Seller that it has nosuch suggestions or comments, the timeframe in which Seller shall be requiredto display the Link Content shall be extended.

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### (c)  Theparties shall cooperate and communicate with respect to the activities setforth in this Section 2.5 such that any lag time between when the New WebhostWebsite becomes available for use by customers and when the Link Content isdisplayed at “www.webhost.at-track.com” shall be eliminated or minimized to thegreatest extent possible and that any such lag time shall occur during nonpeak-use hours.

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# **3.****                   Transition ofthe Business in General**.

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## 3.1                                 CustomerCare.

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### (a)  CustomerInquiries.  Seller shall promptlyrefer all inquires it receives from customers or potential customers of theBusiness (including the HM5000 Customers), e.g., all requests for “CustomerCare,” technical support, billing inquires, warranty service or non-warrantyservice, 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 torespond to all such inquiries.

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### (b)  CustomerPhone Calls.  All telephone numbersto which the customers of the Business (including the HM5000 Customers) havebeen directed for customer or technical support inquiries, including thosenumbers listed in the customer contracts of the Business acquired by Buyerpursuant to the Purchase Agreement (including the HM5000 Contracts) (the “CustomerCare Phone Numbers”) are an Acquired Asset.  To the extent that Buyer is using Seller’s phone system orautomated call distribution system pursuant to Section 9.2, Seller shall routeall calls that come in to the Customer Care Phone Numbers to the extensions ofBuyer’s Customer Care employees, as directed by Buyer.  To the extent that Buyer is no longer usingSeller’s phone system or automated call distribution system pursuant to Section9.2, Seller shall use commercially reasonable efforts to have the Customer CarePhone Numbers transferred to Buyer or shall forward all calls that come in tosuch phone numbers as Buyer may direct.

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### (c)  CustomerFaxes.  All fax numbers to which thecustomers of the Business (including the HM5000 Customers) have been directedfor customer or technical support inquiries, including those numbers listed inthe customer contracts of the Business acquired by Buyer pursuant to thePurchase Agreement (including the HM5000 Contracts) (the “Customer Care FaxNumbers”) are an Acquired Asset.  Tothe extent that Buyer is using Seller’s phone system pursuant to Section 9.2Seller shall route all fax transmissions that come in to the Customer Care FaxNumbers to the fax machines of Buyer’s Customer Care employees, as directed byBuyer.  To the extent that Buyer is nolonger using Seller’s phone system pursuant to Section 9.2, Seller shall usecommercially reasonable efforts to have the Customer Care Fax Numberstransferred to Buyer or shall forward all fax transmissions that come in to suchfax numbers as Buyer may direct.

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### (d)  CustomerMail.  Seller shall forward allincoming mail, written or electronic, pertaining to the Business to Buyer’sreceptionist at the Office Space or to such other person as Buyer maydesignate.

 

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## 3.2                                 WarrantyClaims.  Pursuant to Section 1.2(h)of the Purchase Agreement, the Acquired Assets include Seller’s warranty rightsagainst third parties.  To the extentthat Seller has any warranty rights against the original equipmentmanufacturer(s) of the Inventory Buyer has acquired from Seller pursuant to thePurchase Agreement that are not assignable to Buyer, Seller hereby agrees, uponthe request of Buyer, to use commercially reasonably efforts, at Buyer’sexpense, to pursue such warranty claims against such original equipmentmanufacturer(s), on Buyer’s behalf and for Buyer’s account.

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## 3.3                                 Billing.

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### (a)  Provisionof HM5000 Billing Services.  Asnoted in Section 1, pursuant to the Purchase Agreement, Seller has retained allliability and responsibility under the HM5000 Contracts, including theobligation to provide bills to the customers thereunder, which includes monthlybills for the following: usage-based charges for HM5000 Airtime Services andfixed monthly service charges for each unit. Seller hereby agrees with and covenants to Buyer that it shall continueto provide the foregoing billing services under the HM5000 Contracts during therespective terms of such contracts and in accordance with the terms and conditionsthereof (the “HM5000 Billing Services”).

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### (b)  Provisionof TrackWare and 20/20V Billing Services. Pursuant to the Purchase Agreement, Buyer has acquired all rights andobligations under the contracts between Seller and the TrackWare Product Lineand 20/20V Product Line customers, including the obligation to provide bills tosuch customers thereunder.  Pursuant tothe Purchase Agreement, Buyer has also acquired the TrackWare and 20/20VBilling Software and related database currently used by Seller to performbilling for the TrackWare Product Line and 20/20V Product Line customers (the “CellemetryBilling System”).  Until such timeas Buyer has replaced the Cellemetry Gateway pursuant to Section 2.4 andintegrated the replacement gateway with the Cellemetry Billing System, Buyershall not, however, have the ability to use the Cellemetry Billing System.  Therefore, until such time as Buyer hasreplaced the Cellemetry Gateway pursuant to Section 2.4, but in no event laterthan September 30, 2003, Seller shall provide billing services (i) under theexisting TrackWare Product Line and 20/20V Product Line customer contracts inaccordance with the terms and conditions thereof and (ii) under any futurecontracts Buyer may enter with new TrackWare Product Line and 20/20V ProductLine customers which have substantially similar billing provisions (the “CellemetryBilling Services,” and together with the HM5000 Billing Services, the “BillingServices”).  The Cellemetry BillingServices shall include the provision of monthly bills for the following:usage-based charges for the Enhanced Services (as defined in the existingcustomer contracts), monthly service charges for Fixed-Price Reports (asdefined in the existing customer contracts), charges for additional Data Reports(as defined the existing customer contracts) ordered above the number ofFixed-Price Reports and occurrence event charges.  Buyer shall provide Seller with access to the Cellemetry BillingSystem, and Seller shall maintain and support the Cellemetry Billing System ineach case as required for Seller to perform the Cellemetry Billing Services inaccordance with this Agreement.

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### (c)  Considerationfor Billing Services.  In exchangefor (i) Seller’s provision of the Cellemetry Billing Services and (ii) Seller’spromise to Buyer to provide the HM5000 Billing Services to the HM5000Customers, for so long as Seller provides the Billing Services, for each

 

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### invoice sent by Seller toa customer in the course of providing the Billing Services Buyer shall paySeller an amount equal to [*].  Sellershall not invoice customers more frequently than monthly.  Seller shall invoice Buyer for such chargeson a calendar month basis.  Seller shallinvoice 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 inrespect of such charges with fifteen (15) business days after receiving theapplicable invoice.

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

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### (e)  ServiceLevel Guarantees.  As furtherdescribed in Exhibit D, Seller shall guarantee Buyer that it shallprovide the Billing Services in a timely and accurate manner. To the extentthat Seller does not meet such service levels, the amounts paid by Buyer toSeller pursuant to Section 3.3(c) shall be reduced accordingly, as furtherdescribed in Exhibit D.

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### (f)  Notificationto Customers.  Within ten (10)business days after Closing, Seller shall notify all existing customers of theBusiness (including the HM5000 Customers) that the rights under the applicablecontracts with Seller have been assigned to Buyer, that payment in respect ofall invoices under such contracts that are received by such customer after theClosing shall be made payable to Buyer, and that all future inquiries regardingthe Business shall be made to Buyer (but may be still be made by calling thesame toll-free number as set forth in their contract or writing to the sameaddress as set forth in their contract). In addition, such notices shall provide Buyer’s email contactinformation.  With respect to customersof the TrackWare Product Line and 20/20V Product Line, the notification shallalso 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 forBuyer’s review and comment.  Sellershall incorporate all suggestions and changes reasonably requested by Buyer tosuch notice.  To the extent that Buyertakes longer than two (2) business days either to provide suggestions andcomments to Seller or to notify Seller that it has no such suggestions orcomments, the timeframe in which Seller shall be required to send such noticeto the customers shall be extended.

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### (g)  Taxeswith Respect to HM5000 Business. Seller shall be responsible for remitting to the appropriate local,state, federal or foreign government or governmental agency (“TaxingAuthority”) all Taxes owed in respect of the amounts billed to HM5000Customers pursuant to Section 3.3(a) hereof (collectively, the “HM5000 Taxes”).  Seller shall invoice Buyer on a monthlybasis for any HM5000 Taxes paid by Seller. Upon receipt of an invoice and supporting documentation showing thecalculation of the HM5000 Taxes and evidencing that such Taxes have beenproperly and timely paid to the appropriate Taxing Authorities, Buyer shallreimburse Seller within fifteen (15) business days for the amount of suchHM5000 Taxes.  Notwithstanding theforegoing, Buyer shall not be responsible for reimbursing Seller for any TaxesWith respect to the period prior to and on the Closing.  Seller shall indemnify, defend, protect andhold harmless the Buyer Indemnified Parties from, against and with respect toany Damages arising out of or related to (i) any failure by Seller to pay anyHM5000 Taxes owed and

 

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### (ii) any assertion,allegation or claim, of whatever nature, by any Taxing Authority that any BuyerIndemnified Party is liable for payment of or was required to remit any HM5000Taxes, but in no event shall such indemnification exceed fifteen milliondollars ($15,000,000).  Seller shallprovide such Buyer Indemnified Party with such assistance as may be reasonablyrequested in connection the with any claim for which Seller may haveindemnification responsibility pursuant to the preceding sentence.  In its performance of the HM5000 BillingServices, Seller shall accommodate Buyer’s requests regarding the invoicing andremittance of Taxes to the extent that Buyer has been advised by its outsidelegal counsel or its outside accountants that Buyer is legally obligated tocollect from customers and remit to any Taxing Authority any such Tax.

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### (h)   Taxeswith Respect to TrackWare and 20/20V Business.  Buyer shall be responsible for remitting to the appropriateTaxing Authority all Taxes owed in respect of the amounts billed to TrackWareProduct Line and 20/20V Product Line customers with respect to the period afterthe Closing.  In addition, Buyer shallhave sole control over what Taxes are invoiced to such customers and, in itsperformance of the Cellemetry Billing Services, Seller shall follow Buyer’sinstruction in the preparation of the invoice, including with respect toinvoicing of Taxes.

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

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## 3.5                                 CustomerBilling Inquiries.  Because Seller’sperformance of the Billing Services for Buyer will result in Seller employeeswho have the knowledge and access to information to answer the billing inquiresof Buyer’s customers, Seller shall insure that personnel familiar with theBilling Services and qualified to answer such inquiries will be available toBuyer’s Customer Care representatives to answer such inquires during regularbusiness hours.

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# **4.****                   AccountsReceivable and Payable**.

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## 4.1                                 AccountsReceivable: General.

##  

### (a)  Pursuantto 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 ofthe provision of HM5000 Airtime Services on and before the Closing (“Pre-ClosingReceivables”) are the property of Seller, and that all receivables (x) ofthe Business for activities after the Closing, and (y) in respect of theprovision of HM5000 Airtime Services after the Closing (“Post-ClosingReceivables”) are the property of Buyer. The parties shall cooperate to insure

 

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### that Buyer receivespayment in respect of Post-Closing Receivables and Seller receives payment inrespect of Pre-Closing Receivables. However, to the extent that Buyer receives payment in respect of aPre-Closing Receivable it shall transfer such payment promptly to Seller and tothe extent that Seller receives payment in respect of a Post-ClosingReceivable, it shall transfer such payment promptly to Buyer.  For example, if a customer makes a paymentfor the billing cycle in which Closing occurs, and such amount was billed inarrears, Buyer shall remit the pre-Closing portion of such payment to Sellerand if such amount was billed in advance, Seller shall remit the post-Closingportion of such payment to Buyer.  Inthe 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 beingin respect of either a Pre-Closing Receivable or Post-Closing Receivable, (B) thedesignation of such payment as a Pre-Closing or Post-Closing Receivable is nototherwise addressed by Section 4.2, and (C) such payor owes money with respectto at least one Pre-Closing Receivable and at least one Post-ClosingReceivable, Seller shall be entitled to such payment to the extent required tocover all Recent Receivables owed by such payor and Buyer shall be entitled tothe balance thereof.  In the event that(A) a payment is received by either party after the forty-five (45) day periodfollowing Closing that is not designated by the payor as being in respect ofeither a Pre-Closing Receivable or Post-Closing Receivable, (B) the designationof such payment as a Pre-Closing or Post-Closing Receivable is not otherwiseaddressed by Section 4.2, and (C) such payor owes money with respect to atleast one Pre-Closing Receivable and at least one Post-Closing Receivable,Buyer shall be entitled to such payment to the extent required to cover allPost-Closing Receivables owed by such payor and Seller shall be entitled to thebalance thereof to the extent required to cover all Recent Receivables owed bysuch payor.

###  

### (b)  Withrespect to Pre-Closing Receivables that, as of the Closing, have beenoutstanding for more than ninety (90) days, Seller, agrees with and covenantsto Buyer that Seller shall not seek payment from or legal recourse againstcustomers with respect to such receivables or contact customers with respect tosuch receivables.  For the avoidance ofdoubt, to the extent that, after Closing, Buyer receives payment that isdesignated by payor in respect of any Pre-Closing Receivable, including anyreceivable that was outstanding for more than ninety (90) days as of theClosing, Buyer shall promptly transfer such payment to Seller in accordance withparagraph (a).

###  

### (c)  Withrespect to Pre-Closing Receivables that, as of the Closing, have beenoutstanding for ninety (90) days or less (the “Recent Receivables”),during the sixty (60) day period following the Closing, Seller may contactcustomers to seek payment of such Recent Receivables in the ordinary course,but may not take or threaten to take legal action against such customers, orterminate or threaten to terminate such customers’ HM5000 Airtime Services orCellemetry 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 madeat least one post-Closing request for payment of such Recent Receivable fromsuch customer and customer either has not responded to such request or has notprovided any valid reason to Seller for non-payment in response to suchrequest, Seller shall be entitled to request in writing consent from Buyer forSeller to terminate such customer’s HM5000 Airtime Services or request thatBuyer terminate such customer’s Cellemetry Services, as the case may be.  Buyer shall have thirty (30) days from thetime 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

 

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

###  

## 4.2                                 AccountsReceivable: Specific.  Withoutlimiting the generality of the foregoing, the following specific receivables,shall be allocated as “Pre-Closing Receivables” or “Post-Closing Receivables”as follows:

##  

### (a)  PurchaseOrders.  Pursuant to the PurchaseAgreement, all outstanding purchase orders for the products in the ProductLines and all outstanding purchase orders under the HM5000 Contracts have beenassigned to Buyer.  The unit purchaseprice and shipping and handling charges of such products shall be allocated asfollows: If the product has been shipped on or prior to Closing, to Seller; ifthe product has not slipped on or prior to Closing, to Buyer.

###  

### (b)  SecurityDeposits.  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 bycustomers with respect to the Business (including the HM5000 Customers) toBuyer.

###  

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

###  

### (d)  DataReport Charges.  In the case of theTrackWare Product Line and 20/20V Product Line, charges for each additionaldata report above the fixed number to which customer is entitled shall beallocated as follows: For reports delivered on or prior to Closing, the perreport fee shall be allocated to Seller, for reports delivered after Closing,to Buyer.

###  

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

###  

### (f)  ActivationFee.  Pursuant to each of theTrackWare Product Line contracts, the 20/20V Product Line contracts and theHM5000 Contracts a one time charge due upon execution is charged forover-the-air initial configuration of a Unit. Such charge shall be

 

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

###  

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

###  

### (h)  BillableTelephone Support Services.  In thecase of the TrackWare Product Line and 20/20V Product Line, telephone supportservices are available to the Customer at a charge [*] for technical supportissues.  These fees shall be allocatedas follows: For calls place on and before Closing, to Seller and for callsplaced after Closing, to Buyer.

###  

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

###  

## 4.3                                 AccountsPayable.  Accounts payable shall beallocated 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) relatesto specific revenue, the party that receives the revenue shall be responsiblefor such cost.  With respect to anyUnits that Seller has sent to a third party to be repaired or refurbished priorto Closing, whether pursuant to a warranty or otherwise, Seller shall beresponsible for any amount owed to such third party in consideration for suchrepairs or refurbishment, regardless of whether the repair or refurbishment iscompleted before or after the Closing and regardless of whether the bill for therepair or refurbishment is received before or after the Closing.  Upon completion of the repair orrefurbishment, Seller shall direct any such repaired or refurbished Units toBuyer and such Units shall be considered Inventory that is an Acquired Assetpursuant to the Purchase Agreement.

##  

# **5.****                   EmploymentTransition**.  Seller shall providethe services of the New Buyer Employees to Buyer until no later than April 30,2002 pursuant to the terms of the Transition Consulting Reimbursement Agreementdated as of even date herewith, during which period (the “Employment TransitionPeriod”) such employees (except to the extent their employment ends,collectively or individually, for the reasons set forth in Section 2.1 of theTransition Consulting Reimbursement Agreement) shall remain employees ofSeller, shall remain on the payroll of Seller and shall continue to participatein Seller benefit plans.  Buyer shallreimburse Seller for the employment expenses of the New Buyer Employees duringthe Employment Transition Period pursuant to the terms of the TransitionConsulting Reimbursement Agreement. Effective no later than May 1, 2002, the arrangement shall terminate andthose New Buyer Employees who have been offered employment with Buyer and haveaccepted such offer shall be employed by Buyer.

#  

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* Confidentialinformation.  Information has beenredacted.

 

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# **6.****                   Division andSublease of Premises**.

#  

## 6.1                                 Divisionof Premises.  As soon as practicableafter the Closing, Seller shall prepare a floor plan providing for the divisionof Seller’s premises located at 1155 Kas Drive, Richardson, Texas (“SellerPremises”) into a separate space for each of Seller and Buyer, which twospaces shall be divided by internal walls and shall each be accessible only byexternal entries (with the possible exception of an emergency exit internaldoorway between the two spaces).  Sellershall consult with Buyer with respect to such floor plan and shall reasonablyconsider Buyer’s recommendations to the extent Buyer is affected by anydecisions.  Seller shall be responsiblefor implementing and constructing the new floor plan.  Buyer shall reimburse Seller for the reasonable costs incurred bySeller in constructing any new internal walls required to divide Buyer andSeller space.

##  

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

##  

# **7.****                   Inventory.**

#  

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

##  

# **8.****                   Fixed Assets.**

#  

## 8.1                                 Non-PersonalEquipment.  During the LeaseTransition 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 andthat cannot reasonably be divided between the parties.  Seller shall allow Buyer to continue to usesuch assets in the same manner that such assets were used prior to Closing asreasonably necessary for the conduct of the Business by Buyer in thesubstantially the same manner as conducted by Seller prior to Closing.

 

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# **9.****                   SystemsTransition.**

#  

## 9.1                                 InGeneral.  Within one hundred andeighty (180) days after Closing, the parties shall have developed a completeplan for the smooth transition from Seller systems to Buyer systems, includinga time frame for completing such transition. In general, Seller agrees to use all reasonable efforts to assist Buyerin transitioning from Seller’s system to Buyer’s systems.  For example, Seller will continue tomaintain and support all Seller systems required (i) for Buyer to continue tooperate the Business in substantially the same manner as Seller operated theBusiness prior to Closing during the agreed-upon transition period and (ii) forSeller to perform its obligations under this Agreement.  The foregoing maintenance, activities shallinclude performance of preventive maintenance and any reasonably requiredsoftware upgrades.  During theagreed-upon transition period, Seller will grant Buyer access to Seller systemsand assets shared with Buyer pursuant to Section 8.1 to the extent required forBuyer to operate the Business in substantially the same manner as Selleroperated the Business prior to Closing. In addition, Seller shall allow Buyer to keep certain Buyer equipment inSeller’s data center, and shall allow Buyer access to the data center in orderfor Buyer to maintain such equipment. Seller shall cooperate with Buyer to make all arrangements reasonablynecessary, as determined by Buyer, to facilitate the prompt integration of thesystems Buyer has acquired from Seller pursuant to the Purchase Agreement withBuyer’s systems, as required for Buyer to continue to operate the Business insubstantially the same manner as Seller operated the Business prior toClosing.  The foregoing shall includethe conversion and transfer of Seller’s customer files and supplier files (eachwith respect to the Business) and all other information related to the Business(from whatever form such files and information currently exist in, computerizedor non-computerized) to Buyer’s systems.

##  

## 9.2                                 SpecificSystems.  Without limiting thegenerality of the foregoing, with respect to the specific systems used in theBusiness, the parties will act as follows:

##  

### (a)  SellerNetwork, 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 LeaseTransition Period.  The New BuyerEmployees will retain the same phones and phone numbers after Closing as theyhad before Closing.  Seller will chargeBuyer 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 usingsuch systems as of the Closing versus the total number of persons using suchsystems as of the Closing.  Theforegoing operation costs are itemized in Schedule 9.2(a) and shall notbe modified without the consent of both parties.  Buyer may terminate any or all of the network, phone system orACD system sharing arrangements upon thirty (30) days notice to Seller, inwhich event Buyer shall no longer pay any portion of the applicable operationcosts.

###  

### (b)  GeneralOffice Systems.  Buyer employeesworking in the Office Space or the Warehouse Space shall retain access toSeller’s general office software (e.g., e-mail, print functionality, wordprocessing, etc.) and to Seller’s voicemail system until such time as Buyer hasestablished connectivity between the Office Space and Warehouse Space andBuyer’s network and has provided Buyer employees located at the Office Spaceand Warehouse Space access to the equivalent Buyer office software on Buyer’snetwork.  Buyer shall use

 

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### commercially reasonableefforts to establish such connectivity and provide such access in anexpeditious manner.

###  

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

###  

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

####  

#### (ii)                                  Inthe 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 SCOPUSseats and have full access to the SCOPUS database until all current andhistorical customer data contained in the SCOPUS database, current through thedate of migration, have been migrated to Buyer’s customer, service database, provided,that Seller shall cooperate with Buyer to perform the foregoing migration inaccordance with the reasonable specifications provided by Buyer and provided,further, that such migration shall be completed no later than onehundred and twenty (120) days after the date on which Buyer has establishedconnectivity between the Office Space and Buyer’s network and has providedBuyer employees located at the Office Space access to the Buyer customerservice software on Buyer’s network. The parties will use commercially reasonable efforts to establish suchconnectivity expeditiously.

####  

### (d)  Provisioningand Activation.  Provisioning andactivation of the Units shall be initiated by Buyer via SCOPUS.  However, to the extent that implementationof such provisioning and activation functions involves systems other thanSCOPUS, Seller shall support such provisioning and activation activities: (i)for the HM5000 mobile units, for so long as Seller provides the HM5000 AirtimeServices hereunder and (ii) for the TrackWare Product Line and 20/20V ProductLine, until the replacement of the Cellemetry Gateway pursuant to 2.4.  Notwithstanding the foregoing, in the eventthat the twenty (20) SCOPUS licenses are not assigned to Buyer in accordancewith paragraph (c) above, after Buyer has transitioned off the SCOPUS systempursuant to clause (ii) of paragraph (c) above, Seller shall support allprovisioning and activation activities: (i) for the HM5000 mobile units, for solong as Seller provides the HM5000 Airtime Services hereunder and (ii) for theTrackWare Product Line and 20/20V Product Line, until the end of the LeaseTransition Period or such earlier time as Buyer has implemented the capabilityto perform such activities itself.

###  

### (e)  Billing.

###  

#### (i)                                     Forso long as Seller performs any Billing Services hereunder, Seller shall sendBuyer a file containing the invoice records of all customers invoiced by Sellerpursuant to its performance of the Billing Services within one business day ofthe billing run

 

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#### completion.  Such file shall be in a format reasonablyspecified by Buyer, which format may be changed by Buyer from time to time uponreasonable advance notice to Seller. Such file shall be transmitted to Buyer for manual input by Buyer intoBuyer’s billing systems until connectivity is established between Seller’sbilling systems (including, for so long as Seller performs the CellemetryBilling Services, the Cellemetry Billing System) and Buyer’s billing system,after which Seller shall download the file to Buyer’s billing system on anautomated basis.  The parties will usecommercially reasonable efforts to establish such connectivity expeditiously.

####  

#### (ii)                                  IfSeller has not already done so prior to Closing, no later than five (5)business days after Closing, Seller shall provide Buyer with a file containingall customer billing records of the Business which shall contain at least thefollowing information with respect to each customer: (i) such customer’s name,billing address, customer number, and billing cycle information; (ii) forHM5000 Customers, the activation fee and unit purchase prices applicable tosuch customer; (iii) for 20/20V and TrackWare customers, the activation fee,unit purchase prices and website subscription fee applicable to such tocustomer; (iv) for Platinum Service customers, all fees applicable to suchcustomer pursuant to its Information Management Services Agreement.  Such file shall be in a format reasonablyspecified by Buyer.  To the extent thatBuyer has not provided Seller with the format for such file, Seller’sobligation to provide the records shall be extended.

####  

### (f)  InventoryManagement Stems.  If Seller has notalready done so prior to Closing, no later than three (3) business days afterClosing, Seller shall provide Buyer with a file containing the inventoryrecords with respect to all Inventory acquired by Buyer pursuant to thePurchase Agreement.  Such file shall bein a format reasonably specified by Buyer. To the extent that Buyer has not provided Seller with the format forsuch file, Seller’s obligation to provide the records shall be extended.

###  

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

#  

# **11.****            General Provisions.**

#  

## 11.1                           Successorsand Assigns.  This Agreement and therights of the parties hereunder may not be assigned without the prior writtenconsent of the other party hereto (except by operation of law) and shall bebinding upon and shall inure to the benefit of the parties hereto and theirrespective successors, permitted assignees, heirs and legal representatives;provided, however, that either party may assign its rights, obligations orliabilities hereunder to any party that merges with or acquires all of itsstock or all or substantially all of its assets.

##  

## 11.2                           EntireAgreement.  This Agreement (whichincludes the Exhibits hereto) and the documents and agreements referred toherein (including the Purchase Agreement) sets forth the entire understandingof the parties hereto with respect to the transactions contemplatedhereby.  It shall not be amended ormodified except by a written instrument duly executed by each of the partieshereto.  Any and all previous agreementsand understandings between or among the

 

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## parties regarding thesubject matter hereof, whether written or oral, are superseded by thisAgreement.  Each of the Exhibits to thisAgreement is incorporated herein by this reference and expressly made a parthereof.  Unless specifically set forthherein, nothing in this Agreement shall modify any rights or obligations underthe Purchase Agreement.

##  

## 11.3                           Counterparts.  This Agreement shall become binding when oneor more counterparts taken together shall have been executed and delivered bythe parties.  It shall not be necessaryin making proof of this Agreement or any counterpart hereof to produce oraccount for any of the other counterparts. Any party that delivers a signature page via facsimile agrees to laterdeliver an original counterpart to any party that requests it.

##  

## 11.4                           Expensesand Fees.  Buyer shall beresponsible for its fees, costs and expenses incurred in connection with thepreparation, negotiation, execution and performance of this Agreement andSeller shall be responsible for its fees, costs and expenses incurred inconnection with the preparation, negotiation, execution and performance of thisAgreement, including, but not limited to, commissions or fees of any broker orfinder referred by such party and any attorney’s fees incurred by such party inconnection with this Agreement.

##  

## 11.5                           SpecificPerformance; Remedies.  Each partyhereto acknowledges that the other party will be irreparably harmed and thatthere will be no adequate remedy at law for any violation by it of any of thecovenants or agreements contained in this Agreement. It is accordingly agreedthat, in addition to any other remedies which may be available upon the breachof any such covenants or agreements, each party hereto shall have the right toobtain injunctive relief to restrain a breach or threatened breach of, orotherwise to obtain specific performance of, the covenants and agreementscontained in this Agreement.

##  

## 11.6                           Notices.  Any notice, request, claim, demand, waiver,consent, approval or other communication which is required or permittedhereunder shall be in writing and shall be deemed given if delivered personallyor sent by telefax (with confirmation of receipt), by registered or certifiedmail, 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)                                       |

 

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| (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 tosuch other address as the Person to whom notice is to be given may havespecified 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 asof the date so delivered, telefaxed, mailed or dispatched and, if given by anyother means, shall be deemed given only when actually received by theaddressees.

 

## 11.7                           GoverningLaw.  This Agreement shall begoverned by and construed, interpreted and enforced in accordance with the lawsof the State of New York without giving effect to the choice of law provisionsthereof.

##  

## 11.8                           Selectionof Forum.  EACH PARTY HERETO AGREESTHAT IT SHALL BRING ANY ACTION OR PROCEEDING IN RESPECT OF ANY CLAIM ARISINGOUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTAINED IN ORCONTEMPLATED BY THIS AGREEMENT, WHETHER IN TORT OR CONTRACT OR AT LAW OR INEQUITY, EXCLUSIVELY IN THE FEDERAL DISTRICT COURT FOR THE SOUTHERN DISTRICT OFNEW YORK, OR IF JURISDICTION DOES NOT LIE IN FEDERAL COURT, THE STATE COURTS OFNEW YORK (THE “CHOSEN COURT”) AND (A) IRREVOCABLY SUBMITS TO THE EXCLUSIVEJURISDICTION OF THE CHOSEN COURT, (B) WAIVES ANY OBJECTION TO LAYING OF VENUEIN ANY SUCH ACTION OR PROCEEDING IN THE CHOSEN COURT, (C) WAIVES ANY OBJECTIONTHAT THE CHOSEN COURT IS AN INCONVENIENT FORUM OR DOES NOT HAVE JURISDICTIONOVER ANY PARTY HERETO, AND (D) AGREES THAT SERVICE OF PROCESS UPON SUCH PARTYIN ANY SUCH ACTION OR PROCEEDING SHALL BE EFFECTIVE IF NOTICE IS GIVEN INACCORDANCE WITH THIS AGREEMENT,

 

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## 11.9                           Severability.  If any provision of this Agreement or theapplication thereof to any Person or circumstances is held invalid orunenforceable in any jurisdiction, the remainder hereof, and the application ofsuch provision to such Person or circumstances in any other jurisdiction, shallnot be affected thereby, and to this end the provisions of this Agreement shallbe severable.

##  

## 11.10                     Absence ofThird Party Beneficiary Rights.  Noprovision of this Agreement is intended, nor will be interpreted, to provide orto create any third party beneficiary rights, or any other rights of any kindin any client, customer, Affiliate, stockholder, officer, director, employee,partner of any parry hereto or any other Person, other than the parties hereto.

##  

## 11.11                     FurtherRepresentations.  Each party to thisAgreement acknowledges and represents that it has been represented by its ownlegal counsel in connection with the transactions contemplated by thisAgreement, with the opportunity to seek advice as to its legal rights from suchcounsel.  Each party further representsthat it is being independently advised as to the tax consequences of thetransactions contemplated by this Agreement and is not relying on anyrepresentation or statements made by the other party as to such taxconsequences,

##  

## 11.12                     Amendment;Waiver.  This Agreement may beamended by the parties hereto by execution of an instrument in writing signedon behalf of each of the parties hereto. Any extension or waiver by any party of any provision hereto shall bevalid only if set forth in an instrument in writing signed on behalf of suchparty, giving the waiver, and shall not be deemed a waiver of any other sectionnor a continuing waiver,

##  

## 11.13                     IndependentContractors.  The relationshipbetween Buyer and Seller under this Agreement is that of independentcontractors.  Nothing contained in thisAgreement shall be construed to constitute or create a partnership, agencyrelationship, joint venture or equity interest between Buyer and Seller.  No party has the power or authority to acton behalf of the other party, except as authorized in writing by the otherparty.

##  

## 11.14                      GeneralAudit Right.  Each party (the “AuditingParty”) shall have the right to review, and the other party (the “AuditedParty”) agrees to make available to the Auditing Party, any and all of theAudited Party’s records that are relevant to the determinations of theallocations made to and costs charged to the Auditing Party under thisAgreement, including the allocations with respect to accounts receivable andaccounts payable provided for in Section 4. For a period of three (3) years after Closing, each party shall retainall documentation necessary for the other party to verify the accuracy of suchdeterminations and shall make such documentation available to the other partyin the event the other party exercises its audit right hereunder.  Each Audited Party shall promptly remit tothe Auditing Party the amount of any overcharges or under allocations revealedas a result of any such audit; provided, that the Auditing Party shallprovide the Auditing Party with the documentation substantiating any suchovercharge or under allocation.

##  

## 11.15                     FurtherAssurances.  From time to time afterthe Closing, upon request of either party and without further consideration,each party hereto shall execute, acknowledge and deliver all such otherinstruments and documents and shall take all such other actions required toconsummate and make effective the transactions contemplated by this Agreementand all

 

20

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## agreements andinstruments delivered in connection herewith. Without limiting the foregoing sentence, in connection therewith, ifrequired, the president or chief financial officer of the Seller will executeany factually accurate documentation reasonably required by the Buyer or theBuyer’s independent public accountants. Each party will also cooperate and use its commercially reasonableefforts to have its present officers, directors and employees cooperate withthe other party hereto on and after the Closing in furnishing information,evidence, testimony and other assistance. Seller shall use commercially reasonable efforts during the LeaseTransition Period to provide such assistance to Buyer as is reasonablynecessary for Buyer to continue to operate the Business in substantially thesame manner as Seller operated the Business prior to Closing.

##  

## 11.16                     Interpretation.  The defined terms used herein shall applyequally to both the singular and plural forms of the terms defined.  Whenever the context may require, anypronoun shall include the corresponding masculine; feminine and neuterforms.  All references herein toArticles, Sections and Exhibits shall be deemed to be references to Articlesand Sections of, and Exhibits to, this Agreement unless the context shallotherwise require.  All Exhibitsattached hereto shall be deemed incorporated herein as if set forth in fullherein and, unless otherwise defined therein, all terms used in any Exhibitshall 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 thisAgreement shall have the meanings determined by GAAP.  Whenever any payment hereunder is to be made payment shall bemade in the legal tender of the United States. The words “hereof,” “herein” and “hereunder” and words of similar importwhen used in this Agreement shall refer to this Agreement as a whole and not toany particular provision of this Agreement. This Agreement shall be deemed to have been drafted by each party heretoand this Agreement shall not be construed against any party as a principaldraftsperson.  Unless otherwiseexpressly provided, wherever the consent of any Person is required or permittedherein, such consent may withheld in such person’s sole discretion.

##  

**(Signature page follows)**

 

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

 
|   | AETHER SYSTEMS, INC.         |
|--------|------------------------------|
|   |                         |
|   | By:                          |   |   |
|   |                         |
|   | Name:                        |   |   |
|   |                         |
|   | Title:                       |   |   |
|   |                         |
|   |                         |
|   | @TRACK COMMUNICATIONS,  INC. |
|   |                         |
|   | By:                          |   |   |
|   |                         |
|   | Name:                        |   |   |
|   |                         |
|   | Title:                       |   |   |
|        |                              |  |  |  |  |

 

22

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EXECUTION COPY

 

**EXHIBITA**

**DEFINEDTERMS**

 

“AdministrativeCarrier Agreement” shall mean the Administrative Carrier Agreement enteredinto between Seller and Southwestern Bell Mobile Systems, Inc. n/k/a CingularWireless on March 30, 1999.

 

“AdministrativeCarrier Services”  has the meaningset forth in Section 1.2(c).

 

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

 

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

 

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

 

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

 

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

 

“Cellemetry BillingSystem” 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 CellemetryServices to the 20/20V and TrackWare customers.

 

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

 

“Cellemetry ResellerAgreement” shall mean the Limited Usage Value Added Reseller Agreementbetween 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 themeaning set forth in the Purchase Agreement.

 

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

 

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

 

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

 

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

 

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

 

“HM5000 Non-AirtimeServices” shall mean the following services performed for the HM5000customers: (i) warranty services (including shipping and receiving of returnmaterial authorizations); (ii) non-warranty repair services; (iii) provisioningand activation of the HM5000 mobile units; and (iv) customer care and technicalsupport.

 

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

 

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

 

“Mobile Unit” hasthe meaning set forth in Exhibit C.

 

“Month-to-Month HM5000Customers” shall mean an HM5000 Customer with an HM5000 contract that maybe terminated by Seller or such HM5000 Customer on thirty (30) days advancewritten notice.

 

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

 

“Network ServiceCenter” or “NSC”  shall meanthe HM5000 Gateway and, until is replaced pursuant to Section 2.4, theCellemetry Gateway.

 

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

 

“Office Space” hasthe 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 IndemnifiedParties” has the meaning set forth in Purchase Agreement.

 

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

 

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

 

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

 

“Term HM5000 Customer”shall mean an HM5000 Customer with an HM5000 Contract with a fixed service termthat, 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 GTETelecommunications Services Incorporated n/k/a Telecommunications Services,Inc. and Seller on May 3, 1999 and (b) the Information and Network Products andServices Agreement between Seller and GTE Telecommunications ServicesIncorporated n/k/a Telecommunications Services, Inc. dated August 16, 1999.

 

“TSI Services” hasthe 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.

 

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EXECUTION COPY

 

**ExhibitB-1**

**ThirdParty Carrier Rates**

 

[*]

 

----

*Confidential information.  Informationhas been redacted.

 

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**Execution Copy**

 

**EXHIBITB-1**

**THIRDPARTY CARRIER RATES**

 

**[Tobe provided by Seller]**

 

[*]

 

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* Confidentialinformation.  Information has beenredacted.

 

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**EXHIBITB-2**

 

**LONGDISTANCE AND TOLL-FREE RATES**

 

**[Tobe provided by Seller]**

 

[*]

 

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* Confidentialinformation.  Information has beenredacted.

 

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**EXHIBIT CHM5000 NETWORKSERVICE LEVEL GUARANTEES**

** **

# 12.                                 Definitions.

#  

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

 

## 12.1                           “CommHandlers”[*]

##  

## 12.2                           “FrameRelay Circuits” [*]

##  

## 12.3                           “HM5000Gateway” shall [*]

##  

## 12.4                           “HM5000Gateway Availability” [*]

##  

## 12.5                           “HostSoftware” shall mean the software utilized by each of the HM5000 Customersat such customer’s premises in conjunction with the Mobile Units to receive theNetwork Service.

##  

## 12.6                           “MobileUnits” shall mean the HM5000 mobile communications units utilized by eachof the HM5000 Customers to receive the Network Service.

##  

## 12.7                           “NetworkAvailability Percentage” shall have the meaning set forth in Section 3.1below.

##  

## 12.8                           “NetworkDowntown” shall mean the aggregate number of minutes in a calendar monththat the HM5000 Customers are unable to utilize the Systems on a Mobile Unitbasis as a direct result of the failure in Network Service.  For example, there are a total of ten HM5000Customers with ten Mobile Units each, for a total of 100 Mobile Units.  If, during a given calendar month, theNetwork Service is unable for 30 minutes and all ten HM5000 Customers areunable to utilize the Systems as a result, then the Network Downtown for suchcalendar month shall be 3000 minutes (30 minutes multiplied by 100 MobileUnits).  If, during a given calendarmonth, the Network Service is unavailable for 30 minutes but only one HM5000

 

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* Confidentialinformation.  Information has beenredacted.

 

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## Customer is unable toutilize the Systems as a result, then the Network Downtime for such calendarmonth shall be 300 minutes (30 minutes multiplied by 10 Mobile Units).

##  

Network Downtown for all affected HM5000 Customersshall commence at the earlier of the time that: (a) any affected HM5000Customer reports such downtime to a Customer Care representative, (b) Buyerreports 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 suchdowntime.  For each affected HM5000Customers, Network Downtime shall end at the time that Buyer has confirmed thatNetwork Service has been restored to such HM5000 Customer.  Seller, in its reasonable discretion, shalldetermine whether Network Downtime has occurred after its reported by anyHM5000 Customer or by Buyer and whether any such Network Downtime should beexcluded pursuant to Section 4 below; provided, however, that Sellershall provide Buyer with documentation supporting any such determinations,which documentation shall include (i) Seller’s explanation as to when, whereand how any such Network Downtime occurred or, if Seller believes no suchNetwork Downtime ever occurred an explanation as to customer’s or Buyer’sperception that it did occur; (ii) an accounting of all actions taken bySeller, Buyer and/or customer to resolve such Network Downtime, whether or notsuch actions were successful; and (iii) an explanation of when and how theNetwork Downtime problem was finally resolved.

 

## 12.9                           “NetworkDowntime Credits” shall mean credits issued by Seller to Buyer against thecharges made by Seller to Buyer pursuant to Sections 1.1(a) and (d) of theAgreement, pursuant to which Buyer reimburses Seller for certain of its costsand providing the HM5000 Airtime Services, as per the terms and conditions ofSection 3 below.

##  

## 12.10                     “NetworkDowntime Percentage” shall have the meaning set forth in Section 3.2 below.

##  

## 12.11                     “NetworkServices” shall mean HM5000 Gateway Availability, TSI HLR Availability andWAN Availability.

##  

## 12.12                     “Systems”shall mean the Mobile Units and Host Software utilized by each of the HM5000Customers to receive Network Service.

##  

## 12.13                     “TotalMonthly Minutes” shall mean the total number of minutes in a calendar monthmultiplied by the total number of Mobile Units then in service for the HM5000Customers who are entitled to receive the Network Service during such calendarmonth.

##  

## 12.14                     “TSI HLR”[*]

##  

## 12.15                     “TSI HLRAvailability” [*]

##  

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*Confidential information.  Informationhas been redacted.

 

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## 12.16                     “WANs”[*]

##  

## 12.17                     “WANAvailability” [*]

##  

# 13.                                 NetworkService Availability.

#  

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

##  

## 13.2                           Sellershall provide redundancy of the critical hardware and software components inthe HM5000 Gateway.

##  

## 13.3                           Sellershall provide Buyer with a formalized trouble reporting and escalation process.

##  

## 13.4                           Unlessa shorter notice period is otherwise agreed to by the parties in any particularcase, Seller shall provide to Buyer’s Scheduled Maintenance Representative atleast forty-eight (48) hours advance notice of scheduled maintenance or upgradeactivity to the CommHandlers, Frame Relay Circuits, HM5000 Gateway, TSI HLR andWAN.  Any maintenance or upgradeactivity for which forty-eight (48) hours advance notice is not provided toBuyer Schedules Maintenance Representative shall not be considered “scheduled”and therefore shall not be excluded for purposes of calculating the Network DowntimePercentage pursuant to Section 3 below.

##  

## 13.5                           Sellershall provide to Buyer a monthly report on the availability of Network Service.

##  

## 13.6                           Sellershall coordinate with Buyer to conduct periodic service reviews for the purposeof improving levels of Network Service.

##  

# 14.                                 NetworkDowntime Credits.

#  

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

 

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*Confidential information.  Informationhas been redacted.

 

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100% - Network Downtime Percentage = NetworkAvailability Percentage

 

## 14.2                           “NetworkDowntime Percentage” shall be calculated as follows:

##  

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

 

## 14.3                           Basedon the Network Availability Percentage, the following Network Downtime Creditswill 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          | %      |

 

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

 

## 14.4                           Ifduring any given calendar month, the Network Availability Percentage is below99.0%, Buyer shall be entitled to a financial credit in the form of a discounton the charges made by Seller to Buyer pursuant to section 1.1 of the Agreementapplicable to such calendar month.  Theamount of such credit shall be determined based on the Network AvailabilityPercentage during such calendar month and the corresponding credit amount asset forth above.  In addition, in theevent that is eight (8) hours or more of consecutive Network Downtime in anygiven calendar month and at least four (4) hours of such consecutive NetworkDowntime 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 calendarmonth.  The amount of any credit dueshall be applied against the invoice sent to Buyer pursuant to Section 1.1 thatis applicable to such calendar month; provided, however, that ifthe calculation of the Network Availability Percentage cannot reasonably becompleted before such invoice is sent out, the credit shall be applied againstthe invoice for the following calendar month.

##  

# 15.                                 Exclusions.  Network Downtime caused by any of thefollowing is excluded for purposes of calculating the Network DowntimePercentage:

#  

## 15.1                           Modificationsor alterations by the HM5000 Customers to the Mobile Units, CommHandlers, HostSoftware or Frame Relay Circuits at the customer’s premises.

##  

## 15.2                           Failuresin local exchange service, interexchange service and cellular service.

##  

## 15.3                           Subjectto Sections 2.1 and 2.4 above, scheduled maintenance to the HM5000 Gateway, TSIHLR, WAN, Frame Relay Circuits and/or CommHandlers.

##  

## 15.4                           Failuresin the CommHandlers, Mobile Units or Host Software.

 

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EXHIBIT D

BILLING SERVICES

SERVICE LEVELGUARANTEES

 

In its performance of theBilling Services:

 

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

 

If during any given calendar month an invoice is sentout more than six (6) business days after the end of the billing cycle Buyershall be entitled to a financial credit in the form of a discount on thecharges made by Seller to Buyer for sending such invoice pursuant to Section3.3(c).  The amount of such credit shallbe determined based on the number of business days after the end of the billingcycle such invoice is sent and the corresponding credit amount as set forthbelow.  The amount of such credit shallbe applied against the invoice sent to Buyer by Seller pursuant to Section3.3(c) that is applicable to such calendar month; provided, however,that if the calculation of the credit amount cannot reasonably be completedbefore such invoice is sent out, the credit shall be applied against theinvoice 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 theinvoices sent by Seller to Buyer’s customers for accuracy.  For a period of one year after Seller sendsany invoice to a customer, Seller shall retain all documentation necessary forBuyer to verify the accuracy of such invoice and Seller shall make suchdocumentation available to Buyer in the event Buyer exercises its auditright.  Seller shall promptly remit toBuyer the amount of any customer undercharges or overcharges revealed as aresult of any such Buyer audit; provided, that Buyer shall provideSeller with the documentation substantiating any such overcharge orundercharge.  To the extent any Buyeraudit reveals that Seller has overcharged or undercharged customers by greaterthan five percent (5%), Seller shall remit to Buyer the amount of suchovercharge or undercharge plus twenty percent (20%) of such amount.

 

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EXHIBIT F

SUBLEASE TERMS

 

1.                                       Monthlyrent of no greater than $18.50 per square foot.

 

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

 

3.                                       Totalsquare footage shall be at least 10,000, which shall include both the OfficeSpace and Warehouse Space.  The officeSpace shall include adequate restrooms, Xerox rooms and conference room space.

 

4.                                       Buyeremployees and guests shall have full access to parking lot.

 

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

 

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SCHEDULE 9.2

COSTS OF NETWORK,PHONE AND ACD SYSTEMS

 

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**Attachment A -Long Distance Usage Services - 2 Years**

** **

**Unless otherwiseidentified, section number referencesare to sections within this Attachment**

 

[*]

 

----

* Confidentialinformation.  Information has beenredacted.

 

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**FIRST AMENDMENT TOTRANSITION SERVICES AGREEMENT**

 

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

 

**RECITALS**

 

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

 

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

 

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

 

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

 

1.               Section1.1 of the Transition Agreement is deleted in its entirety and replaced withthe following new Section 1.1:

 

“1.1                           Provisionof HM5000 Airtime Services.  Pursuant to the HM5000 Contracts, Seller shall remain obligated to theHM5000 Customers to provide the Enhanced Services (as defined in the HM5000Contracts) and the Enhanced Cellular Roaming (as defined in the HM5000Contracts) during the respective terms of such contracts and in accordance withthe terms and conditions thereof (collectively, the “HM5000 AirtimeServices”).  With respect to the TermHM5000 Customers, Seller hereby agrees with and covenants to Buyer that Sellershall, unless and until otherwise directed by Buyer, provide HM5000 AirtimeServices to each such Term HM5000 Customer pursuant to the terms of its HM5000Contract until the later of (i) the expiration of the fixed term of its HM5000Contract and (ii) January 30, 2005, or such later date as may be mutuallyagreed by the parties.  With respect tothe Month-to-Month HM5000 Customers, Seller hereby agrees with and covenants toBuyer that Seller shall, unless and until otherwise directed by Buyer, provideHM5000 Airtime Services to each such Month-to-Month HM5000 Customer pursuant tothe terms of its HM5000 Contract until January 30, 2005, or such later date asmay be mutually agreed by the parties. Each HM5000 Customer shall be permitted to renew its HM5000 Contractupon expiration in accordance with the renewal terms thereof and, in the eventof any such renewal (whether automatic or otherwise), such expiration shall notconstitute a termination of such contract that would relieve Seller of itsobligation to Buyer to provide HM5000 Airtime Services to such HM5000 Customerpursuant to this Section 1.1; provided, however, that no HM5000Customer may renew its HM5000 Contract for a term that extends beyond January30, 2005, unless otherwise mutually agreed by the parties.  Upon instruction from Buyer, and provided

 

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that such suspension would not result in Seller’sbreach of the applicable HM5000 Contract, Seller shall permanently cease ortemporarily suspend providing HM5000 Airtime Services to any HM5000Customer.   Because, subject to thelimitations set forth above, all rights under the HM5000 Contracts have beenassigned to Buyer pursuant to the Purchase Agreement, subject to Section4.l(c), Seller shall have no right to terminate or modify the HM5000 Contractsor to discontinue provision of the HM5000 Airtime Services, except as directedby Buyer in accordance with the foregoing.”

 

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

 

[*]

 

3.               Section6.2 of the Transition Agreement and Exhibit F to the Transition Agreement shallbe deleted in their entirety.

 

4.               Section1.9 of Exhibit C to the Transition Agreement shall be deleted in its entiretyand replaced with the following new Section 1.9:

 

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

 

5.               Thesecond and third full sentences in Section 2.1 of Exhibit C to the TransitionAgreement shall be deleted in their entirety.

 

6.               Section3.1 of Exhibit C to the Transition Agreement shall be deleted in its entiretyand replaced with the following new Section 3.1:

 

“Buyer shall receive a credit against the monthlycharges 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 = NetworkAvailability Percentage

 

7.               Section3.3 of Exhibit C to the Transition Agreement shall be deleted in its entiretyand replaced with the following new Section 3.3:

 

“3.3                           Basedon the Network Availability Percentage, the following Network Downtime Creditswill be applied: 

 

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* Confidentialinformation.  Information has beenredacted.

 

38

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| **Network Availability Percentage** |   | **Credit*** |   |
|-------------------------------------|--------|-------------|--------|
|                                |   |        |   |
| If < 98.0%  and L 96%            |   | 2           | %      |
| If < 95.9%  and 2 90%            |   | 4           | %      |
| If < 89.9%                       |   | 6           | %      |

 

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

 

8.               Section3.4 of Exhibit C to the Transition Agreement shall be deleted in its entiretyand replaced with the following new Section 3.4:

 

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

 

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

 

IN WITNESS WHEREOF, the parties hereto have executedthis 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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