Exhibit 10.9
TRANSITION SERVICES AGREEMENT
THIS TRANSITION SERVICES AGREEMENT (this "Agreement") is made as of
December 29,
2005 by and between STAR NUMBER, INC., a Delaware corporation
("Vendor"), and
TELEPLUS WIRELESS, CORP., a Nevada corporation ("Purchaser").
RECITALS
CONCURRENTLY WITH THE EXECUTION OF THIS AGREEMENT, VENDOR AND
PURCHASER HAVE
ENTERED INTO AN ASSET PURCHASE AGREEMENT (THE "PURCHASE
AGREEMENT"), PURSUANT TO
WHICH PURCHASER HAS AGREED TO ACQUIRE FROM VENDOR CERTAIN ASSETS.
CAPITALIZED
TERMS USED BUT NOT DEFINED IN THIS AGREEMENT HAVE THE MEANING GIVEN
SUCH TERMS
IN THE PURCHASE AGREEMENT.
VENDOR DESIRES TO PERFORM, AND PURCHASER DESIRES TO HAVE VENDOR
PERFORM, VARIOUS
SERVICES AS AN INDEPENDENT CONTRACTOR TO PURCHASER FOR A LIMITED
PERIOD OF TIME
FOLLOWING THE EFFECTIVE TIME OF THE TRANSACTIONS CONTEMPLATED BY
THE PURCHASE
AGREEMENT AND TO PROVIDE FOR THE ORDERLY TRANSITION OF SUBSCRIBERS
TO PURCHASER.
THE PARTIES WISH TO FURTHER DEFINE THEIR RIGHTS AND THE SCOPE OF
THEIR
RELATIONSHIP WITH RESPECT TO VARIOUS OTHER MATTERS.
AGREEMENT
NOW, THEREFORE, the parties agree as follows:
1.
Services.
(a) Generally. From time to time during the Period of Service
(as
defined below), Vendor shall provide, or cause one or more of its
Affiliates to
provide, to Purchaser, through one or more third parties, the
services set forth
on Exhibit A hereto (the "Services"). The Services shall be
provided in the
manner and at a level of service generally consistent with that
provided by such
third party to Vendor or its Affiliates for its own account
immediately
preceding the Closing Date. Vendor does not make any warranty,
express or
implied, with respect to the Services. The Services shall be used
by Purchaser
solely in connection with the business related to the Purchased
Assets and for
no other purpose. Vendor shall be required to provide the Services
only to
Purchaser in connection with the business related to the Purchased
Assets and
for no other purpose. Purchaser shall not resell any of the
Services to any
person whatsoever or permit the use of the Services by any person
other than
solely in connection with Purchaser's operation of the business
related to the
Purchased Assets and for no other purpose in the ordinary course
consistent with
past practice of Vendor with respect to its use of the Purchased
Assets prior to
the Closing Date, as such past practice has been expressly
communicated in
writing to the Purchaser. Vendor shall not be required to (i)
obtain or provide
any facilities, incur any expenses, or employ personnel, or (ii)
provide
Services hereunder that are greater in nature and scope than the
comparable
services performed or obtained by Vendor for its own account prior
to the
Closing Date. In providing the Services, Vendor may (i) use the
personnel of
Vendor or its Affiliates, or (ii) to the extent not already
provided for in
Exhibit A hereto and with the prior written consent of the
Purchaser, arrange
for the provision of services of third parties to the extent such
third party
services have been routinely utilized to provide similar services
to Vendor or
its Affiliates in the past or are reasonably necessary for the
efficient
performance of any of such Services. Purchaser acknowledges that,
in connection
with providing the Services, neither Vendor nor its Affiliates will
be required
to use its own funds for any purpose.
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(b) Period of Service. The "Period of Service" with respect to
each
Service listed on Exhibit A attached hereto will commence at the
Effective Time
and will terminate on the earlier of March 15, 2006 and the date on
which
Purchaser obtains such Service on its own behalf. In addition, one
or more
selected Services may be terminated from time to time upon mutual
agreement of
the parties. Purchaser and Vendor agree to use their best efforts
to enable
Purchaser to obtain each of the Services on its own behalf as soon
as
practicable after the Effective Time.
(c) Payment for Services. During the Period of Service, the
Purchaser shall be responsible only for the payment to Vendor of
the cost to
Vendor (i) of the services listed in Exhibit A hereto or (ii) of
services not
listed in Exhibit A hereto but for which Vendor has obtained
Purchaser's prior
written consent, in both cases solely with respect to Services
provided for the
business related to the Purchased Assets. Purchaser shall pay to
Vendor the cost
to Vendor of such Services within fifteen (15) calendar days of
receiving from
Vendor the bill therefor from the applicable third party provider
of such
Services.
(d) Collection of Accounts Receivable. During the Period of
Service,
Vendor shall be responsible for the collection of funds for
hardware and related
accessories, subscriber funds and funds related to subscriber
services
("Post-Closing Receipts"). In accordance with the terms of Section
7.6 of the
Purchase Agreement, but subject to Section 3.4 of the Purchase
Agreement, Vendor
shall remit to Purchaser any funds collected with respect to such
accounts
within five (5) business days of receipt thereof.
(e) Disputes. If the parties cannot agree on the amount of
Post-Closing Receipts, the parties shall
