HERETO.
ANY AND ALL PREVIOUS AGREEMENTS AND UNDERSTANDINGS
BETWEEN OR AMONG THE
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PARTIES REGARDING THE SUBJECT MATTER HEREOF, WHETHER WRITTEN OR ORAL, ARE
SUPERSEDED BY THIS AGREEMENT.
EACH OF THE EXHIBITS TO THIS AGREEMENT IS
INCORPORATED HEREIN BY THIS REFERENCE AND EXPRESSLY MADE A PART HEREOF.
UNLESS
SPECIFICALLY SET FORTH HEREIN, NOTHING IN THIS AGREEMENT SHALL MODIFY ANY RIGHTS
OR OBLIGATIONS UNDER THE PURCHASE AGREEMENT.
11.3
COUNTERPARTS.
THIS AGREEMENT SHALL BECOME
BINDING WHEN ONE OR MORE COUNTERPARTS TAKEN TOGETHER SHALL HAVE BEEN EXECUTED
AND DELIVERED BY THE PARTIES.
IT SHALL NOT BE NECESSARY IN MAKING PROOF OF THIS
AGREEMENT OR ANY COUNTERPART HEREOF TO PRODUCE OR ACCOUNT FOR ANY OF THE OTHER
COUNTERPARTS.
ANY PARTY THAT DELIVERS A SIGNATURE PAGE VIA FACSIMILE AGREES TO
LATER DELIVER AN ORIGINAL COUNTERPART TO ANY PARTY THAT REQUESTS IT.
11.4
EXPENSES AND FEES.
BUYER SHALL BE RESPONSIBLE
FOR ITS FEES, COSTS AND EXPENSES INCURRED IN CONNECTION WITH THE PREPARATION,
NEGOTIATION, EXECUTION AND PERFORMANCE OF THIS AGREEMENT AND SELLER SHALL BE
RESPONSIBLE FOR ITS FEES, COSTS AND EXPENSES INCURRED IN CONNECTION WITH THE
PREPARATION, NEGOTIATION, EXECUTION AND PERFORMANCE OF THIS AGREEMENT,
INCLUDING, BUT NOT LIMITED TO, COMMISSIONS OR FEES OF ANY BROKER OR FINDER
REFERRED BY SUCH PARTY AND ANY ATTORNEY'S FEES INCURRED BY SUCH PARTY IN
CONNECTION WITH THIS AGREEMENT.
11.5
SPECIFIC PERFORMANCE; REMEDIES.
EACH PARTY
HERETO ACKNOWLEDGES THAT THE OTHER PARTY WILL BE IRREPARABLY HARMED AND THAT
THERE WILL BE NO ADEQUATE REMEDY AT LAW FOR ANY VIOLATION BY IT OF ANY OF THE
COVENANTS OR AGREEMENTS CONTAINED IN THIS AGREEMENT. IT IS ACCORDINGLY AGREED
THAT, IN ADDITION TO ANY OTHER REMEDIES WHICH MAY BE AVAILABLE UPON THE BREACH
OF ANY SUCH COVENANTS OR AGREEMENTS, EACH PARTY HERETO SHALL HAVE THE RIGHT TO
OBTAIN INJUNCTIVE RELIEF TO RESTRAIN A BREACH OR THREATENED BREACH OF, OR
OTHERWISE TO OBTAIN SPECIFIC PERFORMANCE OF, THE COVENANTS AND AGREEMENTS
CONTAINED IN THIS AGREEMENT.
11.6
NOTICES.
ANY NOTICE, REQUEST, CLAIM, DEMAND,
WAIVER, CONSENT, APPROVAL OR OTHER COMMUNICATION WHICH IS REQUIRED OR PERMITTED
HEREUNDER SHALL BE IN WRITING AND SHALL BE DEEMED GIVEN IF DELIVERED PERSONALLY
OR SENT BY TELEFAX (WITH CONFIRMATION OF RECEIPT), BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, OR BY RECOGNIZED COURIER SERVICE, AS FOLLOWS:
If to Buyer to:
Aether Systems, Inc.
11460 Cronridge Drive
Owings Mills, M 21117
Attn: David C. Reymann, Chief Financial Officer
(410) 654-6400 (phone)
(410) 654-6554 (telefax) .
and a required copy (which shall not constitute notice) to:
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington D.C. 20037
Attn: Mark A. Dewire, Esquire
(202) 663-6658 (phone)
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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 to such other address as the Person to