TECHNICAL SERVICES
AGREEMENT
BETWEEN
HIGHWAYMASTER CORPORATION
AND
SOUTHWESTERN BELL WIRELESS HOLDINGS, INC.
TECHNICAL SERVICES AGREEMENT
This Agreement ("Agreement") is made this 27th day of September, 1996,
by and between HighwayMaster Corporation, a Delaware corporation
("HighwayMaster"), having its principal office at 16479 Dallas Parkway, Suite
710, Dallas, Texas 75240, and Southwestern Bell Wireless Holdings, Inc.
("Wireless Holdings"), a Delaware corporation having its principal office at
17330 Preston Road, Suite 100A, San Antonio, Texas 75252.
WITNESSETH
WHEREAS, HighwayMaster sells enhanced communications and information
services to the trucking industry;
WHEREAS, HighwayMaster seeks a telecommunications provider to offer
technical support to assist HighwayMaster with its communications services;
WHEREAS, HighwayMaster wishes to receive and Wireless Holdings or one
or more of its Affiliates is willing to provide technical and advisory
assistance subject to the terms hereof; and
WHEREAS, Wireless Holdings intends to acquire an equity interest in
HighwayMaster Communications, Inc., a Delaware corporation ("HMCI") of which
HighwayMaster is a wholly-owned subsidiary, and in furtherance of that intent,
the Parties have negotiated Transaction Documents outlining the terms of their
transaction;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth below, the Parties agree as follows:
1. DEFINITIONS
For the purpose of this Agreement, the following terms shall have the
following meanings:
a) "Affiliate" means any person that directly or indirectly, through one
or more of its intermediaries, has control of or is controlled by, or is
under common control with, the Person specified.
b) "Closing" means the final transfer of an ownership interest in HMCI to
Wireless Holdings on September 27, 1996 pursuant to the Transaction
Documents.
-2-
c) "Employee" or "Employees" means an employee or the employees of
Wireless Holdings or its Affiliates who perform services pursuant to this
Agreement.
d) "Party" or "Parties" means any or all of the parties hereto, either
individually or collectively, as the case may be and as the context
requires.
e) "Person" means any individual, partnership, corporation, association,
joint stock company, trust, joint venture, unincorporated organization or
governmental entity or department, agency or political subdivision thereof.
f) "Person-month" shall be 22 work days in any calendar month.
g) "Project" means the provisioning by Wireless Holdings and one or more
of its Affiliates of Technical Assistance and Technical Information to
HighwayMaster to assist HighwayMaster in the operation and improvement of
its communications transmission system.
h) "Regulatory Relief" means that SBC Communications Inc. or its
Affiliates, in their sole judgment, have obtained all necessary federal and
state regulatory approvals to provide landline, interLATA long-distance
service pursuant to the Communications Act of 1934, as amended by The
Telecommunications Act of 1996.
i) "Technical Assistance" means advisory services to be made available
pursuant to Section 2 hereof, but only to the extent that Wireless Holdings
can provide such advisory services rendered to HighwayMaster by Employees.
j) "Technical Information" means technical or test data, know-how,
manuals, and training materials (but not including material or technology
protected by copyrights or patents) employed and owned by Wireless
Holdings, or which become employed or owned by Wireless Holdings during the
term of this Agreement, and which in the sole discretion of Wireless
Holdings will be useful for the Project. Technical Information does not
include any such information in which any third party, other than an
Affiliate of Wireless Holdings, has legally enforceable rights which would
be contravened by the transfer of such information by Wireless Holdings to
HighwayMaster.
k) "Transaction Documents" shall mean (i) the Purchase Agreement,
(ii) the Certificate of Amendment to the HMCI's Certificate of
Incorporation setting forth the terms of the Class B Common Stock and the
Series D Participating Convertible Preferred Stock of HMCI and the
Amendments to HMCI's Bylaws, in each case adopted by HMCI's Board of
Directors on September 27, 1996; and (iii) the Amended and Restated
Stockholders' Agreement, among HMCI and the stockholders
-3-
parties thereto, the Warrant Certificate executed by HMCI in favor of
Wireless Holdings, and the Escrow Agreement among HMCI, Wireless Holdings
and Texas Commerce Bank, N.A., in each case dated as of September 27, 1996.
2. TECHNICAL ASSISTANCE SERVICES
Wireless Holdings will provide HighwayMaster with the non-exclusive
right to use in the HighwayMaster organization and in support of
HighwayMaster operations the Technical Information for and to obtain
Technical Assistance in the Project during the term hereof unless such
right is earlier terminated. The Technical Information and Technical
Assistance to be provided by Wireless Holdings or its Affiliates shall
include information and assistance relating to the following:
A. Operational and Technical Assistance
1. Engineering design, performance and specifications.
2. Operations and maintenance procedures and standards.
3. Procurement of necessary equipment.
4. Emergency operational and technical matters.
B. Financial Management Assistance
1. Financial management and accounting procedures.
2. Treasury and cash management.
3. Design of accounting controls.
C. Personnel Assistance
1. Recruitment of staff.
D. Data Processing Assistance
1. Design, procurement, operation and maintenance of computerized
billing and accounting systems.
2. Preliminary planning, design, specification and evaluation
associated with software and hardware upgrades and expansion.
-4-
E. Marketing Plan Assistance
1. Development, marketing and distribution of telecommunications
products and services. Neither Wireless Holdings nor any of its
Affiliates will perform marketing or distribution on behalf of
HighwayMaster for any product or service.
2. Development of tariff structures and negotiations.
3. Development of distribution outlets.
4. Development of distribution agreements, including service
provider and agency contracts.
5. Development of customer care provisions and monitoring
procedures.
6. Development of public relations and promotions programs.
7. Development of media advertising, including radio, print and
television.
F. System Planning
1. Planning of HighwayMaster's communications transmission system,
including long distance and cellular service and assistance in
the billing of those services to ultimate consumers;
2. Clarifying and improving procedures for installing
HighwayMaster's equipment for communications transmission;
3. Avoiding saturation and bottlenecks in HighwayMaster's
communications transmission system;
4. Monitoring and offering assistance on the quality of
HighwayMaster's communications transmission system.
3. STANDARD OF PERFORMANCE
The Technical Information and Technical Assistance provided by Wireless
Holdings shall be as technologically advanced and current as that used by
Wireless Holdings or its Affiliates in their operations in North America at the
time the Technical Information and Technical Assistance are conveyed to
HighwayMaster; PROVIDED, HOWEVER, that Wireless
-5-
Holdings shall have the discretion to provide less advanced or less current
technology if such technology is deemed by Wireless Holdings to be more
appropriate or more suitable for HighwayMaster's needs.
4. SUPPORT OF HIGHWAYMASTER PERSONNEL
All aspects of the Technical Assistance shall be accomplished in
cooperation with the personnel of HighwayMaster, with the objective of
supporting such personnel in operations which are the subject of the Project.
HighwayMaster will promptly supply to Wireless Holdings and its Affiliates all
information determined by Wireless Holdings or its Affiliates to be necessary or
useful in evaluating the assistance needs of HighwayMaster. HighwayMaster
acknowledges that such cooperation is crucial to achieving the goals of this
Agreement and, therefore, any failure to cooperate shall constitute a material
breach of this Agreement.
5. REQUEST FOR TECHNICAL ASSISTANCE BEYOND THE SCOPE OF THIS AGREEMENT
Wireless Holdings shall keep the Board of Directors of HighwayMaster
reasonably informed of the progress of the Technical Assistance. Any technical
support outside the scope of the Technical Assistance set forth in paragraph 2
shall be provided upon mutual agreement of the Parties and may be subject to a
separate obligation by HighwayMaster to compensate Wireless Holdings for the
reasonable expenses of the additional technical support subject to separate
billing.
6. OPERATIONAL SUPPORT AND IMPLEMENTATION
a) The Chief Executive Officer (CEO) of HighwayMaster or his or her
designee shall have the responsibility to implement this Agreement in the
HighwayMaster organization. In performing this responsibility, the CEO of
HighwayMaster or his or her designee shall work closely with the person
appointed by Wireless Holdings to coordinate the Technical Assistance.
b) As necessary and appropriate, HighwayMaster shall provide Employees
with all local administrative support, including, but not limited to,
office space, clerical assistance, telephones, and office supplies, at no
cost to Wireless Holdings.
7. SUBCONTRACTING AND OUT-SOURCING
Wireless Holdings will provide Technical Assistance through Employees. To
the extent that any form of Technical Assistance cannot be provided by an
Employee, Wireless Holdings will assist HighwayMaster in obtaining
subcontractors or other outside sources, but all costs associated with such
subcontractors or other outside sources will be the sole
-6-
obligation of HighwayMaster. Wireless Holdings shall not be liable for any
loss, damages, claims or breach of contract associated with the activities of
subcontractors or other outside sources for services.
8. AVAILABILITY OF EMPLOYEES
During the term of this Agreement, Wireless Holdings agrees to make
available Employees at a rate of no more than a total of 24 Person-months per
year. The particular Employee or Employees who provide Technical Assistance
shall be chosen in the sole discretion of Wireless Holdings or its Affiliates,
based upon the availability of such Employees, the needs of HighwayMaster, and a
determination by Wireless Holdings or its Affiliates that making such Employees
available will not disrupt other operations of Wireless Holdings or its
Affiliates.
9. REIMBURSEMENT FOR EMPLOYEES
a) Wireless Holdings or its Affiliates will be solely responsible for the
salary and benefits of Employees who provide Technical Assistance on a temporary
basis (as to any Employee, equal to or less than 45 continuous work days or
parts thereof, after accounting for intervening weekends and holidays) and
HighwayMaster will not be responsible for reimbursing Wireless Holdings for such
Employee salary and benefits. However, HighwayMaster will be responsible for
all out-of-pocket expenses that Wireless Holdings, its Affiliates or Employees
incur in providing Technical Assistance on a temporary basis including, but not
limited to:
1. Travel (including business flights), lodging, and food;
2. The full cost of all materials and supplies used in the
performance of the Technical Assistance;
3. The cost for reproduction of plans, reports, specifications, and
other data or documents;
4. Charges for long-distance and cellular telephone calls and
facsimile transmissions;
5. Any taxes levied on payments made by HighwayMaster to Wireless
Holdings under this Agreement (including appropriate gross-ups)
needed to ensure total cost recovery for Wireless Holdings;
6. Other reasonable out-of-pocket costs and expenses.
-7-
b) Should any Employee provide Technical Assistance in excess of 45
continuous work days, HighwayMaster shall become responsible to reimburse
Wireless Holdings or its Affiliates for each work day or part thereof (including
travel days) the Employee actually expended in performing the Technical
Assistance beyond the 45th work day, including the Employee's fully loaded
salary, benefits, overhead and appropriate gross up for taxes, in addition to
the out-of-pocket expenses set forth in paragraph 9a. This Agreement does not
contemplate that any Employee will permanently relocate to provide Technical
Assistance.
c) To the extent that HighwayMaster seeks Technical Assistance or
Technical Information from Wireless Holdings or any Employees which request
requires Employees to be available for more than 24 person-months per year,
HighwayMaster and SBC will separately negotiate the terms of such additional
assistance.
10. EMPLOYMENT RELATIONSHIP
a) Each Employee involved in the Project under this Agreement shall
remain an employee of Wireless Holdings or its Affiliates, and Wireless
Holdings and its Affiliates shall remain solely responsible to the Employee
for all salary, benefits, taxes, and expenses. This is not intended to
negate HighwayMaster's obligations to Wireless Holdings or its Affiliates
as set forth in paragraph 9.
b) Wireless Holdings' and its Affiliates' obligations under this
Agreement shall be subordinate to and subject to the obligations Wireless
Holdings and its Affiliates have to any Employee.
11. INDEMNITY
a) Solely in connection with this Agreement and the services provided
hereunder, and except as provided in this paragraph 11 and its subparts,
Wireless Holdings, its Affiliates and Employees shall have no liability to
HighwayMaster or to HighwayMaster employees, representatives, suppliers or
contractors, or to any other person or entity for any claim, loss, damage,
liability, attorney's fees or expenses of any kind whatsoever incurred by
reason of or arising out of any act or omission, including gross or simple
negligence, on the part of HighwayMaster, its Affiliates or employees or
Wireless Holdings, its Affiliates or Employees who provide Technical
Assistance Services under this Agreement.
b) HighwayMaster shall indemnify Wireless Holdings, its Affiliates and
Employees against all claims, losses, damages, liabilities, attorney's
fees, and expenses of any kind whatsoever to the extent incurred by reason
of or to the extent
-8-
arising out of any act or omission, including gross and simple negligence,
on the part of HighwayMaster, its Affiliates or employees.
c) HighwayMaster shall indemnify Wireless Holdings and its Affiliates
against any claims, losses, damages, liabilities, attorney's fees, or
expenses of any kind whatsoever incurred by Wireless Holdings or its
Affiliates (collectively "Claim"), where such Claim is made by an Employee
to the extent such Claim arises out of any act or omission, including gross
or simple negligence, on the part of HighwayMaster, its Affiliates or its
employees.
d) Except as described in Subsection (e) below, HighwayMaster agrees not
to implead or bring any action against Wireless Holdings, its Affiliates or
any Employees based on claims lodged against HighwayMaster by any entity or
person arising out of or alleged to arise out of Technical Assistance
Services furnished or performed by Wireless Holdings, its Affiliates or
Employees, or any subcontractor or outside source for any work arising out
of or in any way related to this Agreement to the extent that such claims
arise out of any act or omission, including gross and simple negligence on
the part of HighwayMaster, its Affiliates or employees.
e) Nothing in this paragraph 11 shall prevent HighwayMaster from bringing
an action against Wireless Holdings for breach of this Agreement.
12. PROPRIETARY INFORMATION OF WIRELESS HOLDINGS OR ITS AFFILIATES, NON-
DISCLOSURE TO THIRD PARTIES, AND USE OF TECHNICAL ASSISTANCE SERVICES AND
TECHNICAL INFORMATION
The Parties agree that all Technical Information disclosed by Wireless
Holdings, its Affiliates or Employees to HighwayMaster in connection with this
Agreement and any advice, report or other information delivered orally or in
writing by Wireless Holdings, its Affiliates or Employees to HighwayMaster is
owned by Wireless Holdings or its Affiliates, subject only to the right to use
granted by this Agreement (and similar agreements made by Wireless Holdings with
third parties), and shall be treated as trade secrets and proprietary and
confidential information. Such information shall be used only to the extent
necessary to implement the Technical Information into the HighwayMaster
organization and operations.
a) HighwayMaster shall not disclose such information to any person or
entity other than HighwayMaster personnel with an operational need to know,
except as may be authorized by Wireless Holdings or its Affiliates in
writing. HighwayMaster shall safeguard the Technical Information at least
to the extent that it would safeguard its own trade secrets and proprietary
and confidential information.
b) HighwayMaster undertakes the obligation to maintain in a confidential
manner the Technical Information, related materials provided by Wireless
Holdings,
-9-
its Affiliates or Employees, and the provisions of this Agreement
for the term of this Agreement and thereafter for a period of five (5)
years. Upon termination of this Agreement by reason of a breach or
substantial default by HighwayMaster, HighwayMaster shall immediately
return all Technical Information that is in HighwayMaster's possession or
under its control.
c) HighwayMaster shall immediately notify Wireless Holdings of any
request by any third person, court, or administrative body that the
Technical Information be disclosed and shall cooperate with Wireless
Holdings in its efforts to protect the Technical Information from
disclosure.
d) The non-disclosure obligations of HighwayMaster shall not apply to:
1) Information which is now in or hereafter enters the public domain
without breach of this Agreement;
2) Information known to HighwayMaster prior to the time of
disclosure by Wireless Holdings, its Affiliates or Employees or
independently developed by HighwayMaster without access to the
Technical Information; or
3) Information disclosed in good faith to HighwayMaster by third
persons legally entitled to disclose the same.
e) HighwayMaster agrees that effective enforcement of this Paragraph 12
requires that the remedies available for breach of HighwayMaster's non-
disclosure obligations include, but are not limited to, injunctive relief.
Therefore, HighwayMaster waives its rights to object to any applications
for injunctions based on this Agreement.
13. PROPRIETARY INFORMATION OF HIGHWAYMASTER AND NON-DISCLOSURE TO THIRD
PARTIES
The parties agree that all information disclosed by HighwayMaster to
Wireless Holdings, its Affiliates or Employees in connection with this Agreement
and any advice, report or other information delivered orally or in writing by
HighwayMaster to Wireless Holdings, its Affiliates or Employees under this
Agreement ("HighwayMaster Information") is owned by HighwayMaster and shall be
treated as trade secrets and proprietary and confidential information.
HighwayMaster Information shall be used only to the extent necessary to
implement the Agreement.
a. Wireless Holdings, its Affiliates and Employees shall not disclose
HighwayMaster Information to any person or entity other than Employees with
an
-10-
operational need to know, except as may be authorized by HighwayMaster
in writing. Wireless Holdings and its Affiliates shall safeguard the
HighwayMaster Information at least to the extent that it would safeguard
its own trade secrets and proprietary and confidential information.
b. Wireless Holdings and its Affiliates undertake the obligation to
maintain in a confidential manner the HighwayMaster Information, related
materials provided by HighwayMaster, and the provisions of this Agreement
for the term of this Agreement and thereafter for a period of five (5)
years. Upon termination of this Agreement by reason of a breach or
substantial default by Wireless Holdings, Wireless Holdings, its Affiliates
and Employees shall immediately return to HighwayMaster all HighwayMaster
Information that is in Wireless Holdings', its Affiliates' or Employees'
possession or under their control.
c. Wireless Holdings shall immediately notify HighwayMaster of any
request by any third person, court, or administrative body that the
HighwayMaster Information be disclosed and shall cooperate with
HighwayMaster in its efforts to protect the HighwayMaster Information from
disclosure.
d. The non-disclosure obligations of Wireless Holdings and its Affiliates
shall not apply to:
1) Information which is now in or hereafter enters the public domain
without breach of this Agreement;
2) Information known to Wireless Holdings, its Affiliates or
Employees prior to the time of disclosure by HighwayMaster or
independently developed by Wireless Holdings or its Affiliates without
access to the HighwayMaster Information; or
3) Information disclosed in good faith to Wireless Holdings, its
Affiliates or Employees by third persons legally entitled to disclose
the same.
e. Wireless Holdings agrees that effective enforcement of this Paragraph
13 requires that the remedies available for breach of Wireless Holdings'
non-disclosure obligations include, but are not limited to, injunctive
relief. Therefore, Wireless Holdings waives its rights to object to any
application for injunction based on this Agreement.
14. OWNERSHIP OR USE OF PROPRIETARY INFORMATION
-11-
All Technical Information shall be and remain the exclusive property of
Wireless Holdings or its Affiliates, and such Technical Information shall not be
used by HighwayMaster for any purpose other than the Project. No license of
such Technical Information is granted except as expressly provided in this
Agreement.
All HighwayMaster Information shall be and remain the exclusive property of
HighwayMaster and such HighwayMaster Information shall not be used by Wireless
Holdings or its Affiliates for any purpose other than the Project. No license
of such HighwayMaster Information is granted except as expressly provided in
this Agreement.
15. COMPLIANCE WITH LAWS
Wireless Holdings and HighwayMaster shall each comply with the provisions
of all applicable laws in connection with activities relating to the Technical
Assistance. In particular, the Parties shall cooperate to secure any necessary
approvals required for the transactions contemplated hereby. Nothing in this
Agreement shall be construed to obligate or require Wireless Holdings or its
Affiliates to:
a) Perform any service or engage in any activity which would cause
Wireless Holdings, any Affiliate or any Employee to be in violation of any
U.S., state or local statute or regulation.
b) Perform any service or engage in any activity, which in Wireless
Holdings' or its Affiliates' sole judgment, would cause Wireless Holdings
or any Affiliate to fail to comply with obligations under the
Communications Act of 1934, as amended.
c) Render any advice or provide any information, equipment, materials or
other property if doing so would cause Wireless Holdings or its Affiliates
to be in breach of a duty owed to a third party or would contravene the
rights of a third party in such information, equipment, materials or other
property; or
d) Grant any patent or copyright license or sublicense.
16. TECHNICAL IMPROVEMENTS
If during the term of this Agreement, HighwayMaster or any Affiliate of
HighwayMaster discovers or comes into possession of any improvements to the
Technical Information or the design, engineering, marketing and operation of the
same (hereafter collectively called "Wireless Holdings Improvements"),
HighwayMaster shall immediately furnish Wireless Holdings with information on
such Wireless Holdings Improvements, and shall grant Wireless Holdings a non-
exclusive, perpetual right to use, free of charge, such Wireless Holdings
Improvements.
-12-
If during the term of this Agreement, Wireless Holdings or its Affiliates
discover or come into possession of any improvements to the HighwayMaster
Information or the design, engineering, marketing and operation of the same
(hereafter collectively called "HighwayMaster Improvements"), Wireless Holdings
or its Affiliates shall immediately furnish HighwayMaster with information on
such HighwayMaster Improvements, and shall grant HighwayMaster a non-exclusive,
perpetual right to use, free of charge, such HighwayMaster Improvements.
17. ASSIGNMENT
Wireless Holdings shall have the right to assign its rights and obligations
under this Agreement to its Affiliates. Otherwise, neither Party shall assign
or otherwise transfer its rights or obligations under this Agreement without the
prior written consent of the other Party.
18. NO AGENCY
This contract does not establish a partnership or agency relationship
between Wireless Holdings and HighwayMaster. Neither Wireless Holdings, its
Affiliates or its Employees can obligate HighwayMaster, enter into contracts for
HighwayMaster, incur debts for HighwayMaster, or in any other way bind
HighwayMaster to third parties.
Likewise, HighwayMaster cannot obligate Wireless Holdings or its
Affiliates, enter into contracts for Wireless Holdings or its Affiliates, incur
debts for Wireless Holdings or its Affiliates or in any way bind Wireless
Holdings or its Affiliates to third parties.
19. SURVIVAL OF OBLIGATIONS
The Parties' obligations under this Agreement, which by their nature would
continue beyond the termination, cancellation or expiration of the Agreement,
shall survive any such termination, cancellation or expiration.
20. DISPUTE RESOLUTION
The Parties shall undertake in good faith to settle or compromise all
disputes, controversies, or differences which may arise between the Parties out
of the operation of this Agreement ("Disputes") by means of amicable
discussions. Except as set forth in paragraphs 12e and 13e, and except for
HighwayMaster's failure to make payments due under paragraph 9, and except for
matters requiring immediate injunctive relief, all Disputes which cannot be so
settled or compromised shall be dealt with as follows:
-13-
a) Neither of the Parties hereto shall be deemed to be in breach of any
of the terms of this Agreement and neither party shall seek or be entitled
to enforce any remedy for any breach, unless said breach is not cured or
corrected within thirty (30) calendar days following receipt of written
notice of claimed breach by the Party against whom such breach is claimed.
b) If the Dispute is not resolved during the first 30 days following
receipt of written notice of the Dispute as set forth in subparagraph (a)
above or the provisions of subparagraph (a) do not apply for any reason,
any Party may notify the other Party of its desire to have a Dispute
mediated by sending notice of such intention to the other Party. The
Parties will use their best efforts to agree on a mediator within 20 days
of receipt of the notice of the desire to have the Dispute mediated. If
the Parties cannot so agree, the matter shall be referred to the American
Arbitration Association ("AAA") for appointment of a mediator pursuant to
AAA's commercial mediation rules.
b) Promptly upon selection of a mediator, the Parties shall provide to
the mediator copies of the Parties' notices and shall request that the
mediator meet with the Parties within twenty (20) days to consider and
propose a resolution or a procedure for reaching a resolution.
c) The mediator shall devise a resolution on the basis of fairness and
practicality with reference to this Agreement and the fact situation
leading to the Dispute, and the Parties shall use their best efforts to
have the mediator propose a resolution to the Parties within ten (10) days
of the date of their first meeting.
d) Each Party shall, within ten (10) days after receiving the mediator's
proposed resolution, notify the other Party of its acceptance or non-
acceptance of the proposed resolution.
In case any Dispute cannot be resolved by the mediation procedures set
forth above, any Party may demand arbitration thereof, and the Dispute shall be
finally settled by arbitration according to the rules of the AAA. The Parties
agree that service of any document relating to such arbitration to their
addresses specified herein, shall be valid and sufficient. Each Party waives to
the fullest extent possible at law any entitlement it might otherwise have to
seek judicial review of any such arbitration award.
21. FORCE MAJEURE
Neither Party to this Agreement shall be liable for any default or delay
caused by any contingency beyond its reasonable control, including without
limitation war, strikes, lockouts, civil disturbances, unavoidable accidents,
natural calamities, orders of any national,
-14-
state municipal or other governmental authority or restraining orders or
decrees of any governmental bodies having jurisdiction of the Parties or this
Agreement. In the event of such force majeure event, the Party invoking this
section shall promptly give written notice to the other Party together with
full details.
22. ENTIRE AGREEMENT
This Agreement constitutes the full and complete understanding of the
Parties and supersedes all prior written or oral agreements or understandings or
agreements purporting to modify or vary the terms of this Agreement. No
modifications or additions to the Agreement shall be binding unless hereafter
made in writing and signed by a duly authorized representative of the Party to
be bound.
23. TERM
This Agreement shall be effective from the day it is signed and shall
terminate three (3) years after Closing.
24. HEADINGS
Section headings as to the contents of the particular sections are for
convenience only and are in no way to be construed as part of this Agreement or
as a limitation of the scope of the particular sequence to which they refer.
25. SEVERABILITY
In the event any term or provision of this Agreement shall for any reason
be held invalid, illegal or unenforceable in any respect, such invalidity,
illegally or unenforceability shall not affect any other term or provision of
the Agreement, and this Agreement shall be interpreted and construed as if such
term or provisions, the extent they are invalid, illegal or unenforceable, had
never been contained in this Agreement, provided, however, such invalidity
illegally or unenforceability shall not result in a material change of this
Agreement.
26. NOTICE
Any notice or other communication required or permitted to be given
under this Agreement shall be in writing and shall be deemed sufficiently
given if delivered by hand, by facsimile, by registered mail or by prepaid,
first class mail addressed as follows:
If to HighwayMaster: HighwayMaster Communications, Inc.
16479 Dallas Parkway, Suite 710
Dallas, Texas 75248
-15-
Attention: William Saunders,
Chief Executive Officer
Fax Number: 972-250-0182
If to Wireless Holdings: Southwestern Bell Wireless Holdings, Inc.
17330 Preston Road
Suite 100A
Dallas, Texas 75252
Fax Number: 972-733-2012
ATTENTION: President
or to such addressee or addresses as may be specified from time to time in
a written notice given by such party in the above specified manner. Any
notice shall be deemed to be served on the day on which personally served,
or if given by facsimile, on the second business day following the date of
confirmed receipt of such communications, or if given by prepaid mail or
prepaid registered or certified mail on the fourth (4th) day after being
posted or on the date of actual receipt, whichever date is later. The
Parties agree to acknowledge receipt of any notice delivered by hand.
27. BINDING EFFECT
This Agreement shall inure to the benefit of and be binding upon the
Parties hereto and their respective successors and permitted assigns.
28. CHOICE OF LAW
This Agreement shall be governed by and construed in accordance with the
laws of Texas without regard to that state's conflict of laws rules.
29. TERMINATION.
In the event that the Escrow Fund (as defined in a separate Escrow
Agreement among Wireless Holdings, HMCI and Texas Commerce Bank, N.A. dated as
of September 27, 1996 (the "Escrow Agreement")) is released to Wireless
Holdings, pursuant to the terms of the Escrow Agreement, this Agreement shall
thereafter become void and have no effect, and neither HighwayMaster nor
Wireless Holdings shall have any liability to the other or its Affiliates by
virtue of the provisions of this Agreement or in connection with the
transactions contemplated hereby.
-16-
IN WITNESS WHEREOF, the Parties have executed this Agreement on this
27th day of September, 1996.
HIGHWAYMASTER CORPORATION
By: /s/ William Saunders
-----------------------------------------
Title: President
--------------------------------------
Date: 9/27/1996
---------------------------------------
SOUTHWESTERN BELL WIRELESS HOLDINGS, INC.
By: /s/ Stan Sigman
-----------------------------------------
Title: President and Chief Executive Officer
--------------------------------------
Date: 9/27/1996
---------------------------------------
-17-