<\/p>\nA. List of Loaned Employees<\/p>\n
A(1). Stock Grant Recipients and Amounts<\/p>\n
B. Employee Letter of Agreement<\/p>\n
B.(addendum) Confidentiality Agreement<\/p>\n
C. Network Expansion Plan<\/p>\n
D. Performance (Stretch) Objectives<\/p>\n
E. Network Operations Plan<\/p>\n
F. Form for Notice of Election of Exercise of Grant Option<\/p>\n
G. Form of Option Agreement<\/p>\n
H. Collocations Services Agreement<\/p>\n
I. Software Development Plan<\/p>\n
<\/c><\/s><\/table>\n
SCHEDULES
\n ———<\/p>\n
1. Additional Covenants and Agreements regarding the grant and exercise
\n of Option Shares.<\/p>\n
2. Disclosure by CNC of grants of other options, warrants or other rights
\n to acquire shares of CNC stock or other equity securities of CNC.<\/p>\n
[***] EXHIBIT A<\/p>\n
————————-<\/p>\n
[***]Certain information in this exhibit has been omitted and filed
\nseparately with the Securities and Exchange Commission. A total of 3 pages
\ncontaining such information has been omitted from this exhibit. Confidential
\ntreatment has been requested with respect to the omitted portions.<\/p>\n
“EXHIBIT B (ADDENDUM)”<\/p>\n
CONFIDENTIALITY, NON-COMPETITION, AND COPYRIGHT AGREEMENT<\/p>\n
THIS AGREEMENT is made as of the _____ day of __________, 1995, between
\nCONCENTRIC RESEARCH CORPORATION, a Florida corporation (hereinafter referred to
\nas “CRC”), and __________________________ (hereinafter referred to as
\n“Employee”).<\/p>\n
WITNESSETH:<\/p>\n
WHEREAS, CRC owns and operates the Concentric Research Information System
\n(“CRIS”), a computerized, on-line interactive network that provides information,
\nentertainment and telecommunication services; and<\/p>\n
WHEREAS, in connection therewith CRC develops proprietary computer software
\nand uses proprietary know-how in such business, and now has and expects to
\ndevelop confidential information relating thereto and in connection with other
\nsoftware products or services CRC develops or offers in the future; and<\/p>\n
WHEREAS, the parties hereto desire to set forth certain agreements and
\nunderstandings regarding ownership of intellectual property by CRC and
\nconfidentiality and non-competition on the party of Employee, which agreements
\nand understandings are for the benefit of both CRC and Employee.<\/p>\n
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
\nherein contained, and of other good and valuable consideration, the receipt and
\nsufficiency of which is hereby acknowledged, it is hereby agreed as follows:<\/p>\n
1. Confidential Information.
\n ————————<\/p>\n
a. The term “Confidential Information” shall refer to any
\ninformation, not generally known in the relevant trade or industry, which was
\nobtained from CRC, or which was learned, discovered, developed, conceived,
\noriginated or prepared during or as a result of the performance hereunder on
\nbehalf of CRC and which falls within the following general categories:<\/p>\n
i. information relating to trade secrets of CRC;<\/p>\n
ii. information relating to existing or contemplated products,
\n services, technology, designs, processes, formulae; computer
\n systems, computer software, algorithms and research or
\n developments of CRC;<\/p>\n
iii. information relating to business plans, sale or marketing methods,
\n methods of doing business, customer lists, customer usages and\/or
\n requirements, names of sales representatives, and vendor and
\n supplier information or CRC;<\/p>\n
iv. information relating to proprietary computer software not
\n generally known to the public and related unpublished
\n documentation of proprietary computer programs;<\/p>\n
v. information relating to new developments;<\/p>\n
vi. any other information that CRC may wish to protect by patent,
\n copyright or by keeping it secret and confidential.<\/p>\n
b. Employee agrees not to divulge to anyone, at any time during or
\nafter the termination of his employment by CRC, any Confidential Information or
\nany other trade secrets of CRC. Upon the termination of his employment by CRC,
\nEmployee agrees to deliver up to CRC all notebooks, computer files and any other
\ndata in any tangible form whatsoever in relation thereto, containing, embodying
\nor evidencing any of the Confidential Information described herein.<\/p>\n
2. Non-Competition Covenant.
\n ————————<\/p>\n
a. The term “Competitor” shall refer to any person, firm,
\ncorporation, partnership or other business entity of any type whatsoever engaged
\nin or about to become engaged in the production, licensing, sale or marketing of
\nany product or service:<\/p>\n
i. which is similar to or competitive with CRIS or CRC’s proprietary
\n computer software or any product or service of CRC with which
\n Employee has been directly concerned through his work with CRC
\n during the preceding two (2) years;<\/p>\n
ii. with respect to which the Employee has acquired Confidential
\n Information.<\/p>\n
b. As material inducement to CRC’s willingness to employ Employee,
\nEmployee covenants and agrees that, for a period of two years following the
\ntermination of his employment, whether such termination be with or without
\ncause, he shall not enter the employ of any Competitor, nor himself engage
\nduring such period, directly or indirectly as principal, agent, officer,
\nemployee or otherwise, in any such business in competition with CRC, within any
\narea in which CRC is itself carrying on business at the time of such
\ntermination. Employee also covenants and agrees that for a period of two years
\nfollowing termination of his employment, he shall not recruit or attempt to
\nrecruit any of CRC’s other employees, or to contact either directly or
\nindirectly, any client of CRC for the purpose of soliciting such client from
\nCRC.<\/p>\n
3. Copyright Assignment. Employee hereby acknowledges that all works,
\n ——————–
\nincluding all program code and supporting documentation and all other
\ncopyrightable materials, written in whole<\/p>\n
-2-<\/p>\n
or in part by Employee, shall be deemed to be works made for hire. To the extent
\nthat any such writing may not, by operation of law, be works make for hire,
\nEmployee hereby assigns to CRC the ownership of copyright in such works, whether
\npublished or unpublished. Employee agrees to give CRC or its designees all
\nassistance reasonably required to perfect such rights, including but not limited
\nto, the identification of the works and supporting documentation and the
\nexecution of any instruments required to register copyrights.<\/p>\n
4. Remedies. The parties hereto recognize that the services to be
\n ——–
\nperformed hereunder by Employee are special and unique. It is understood and
\nagreed that Employee’s disclosure of Confidential Information, breach of the
\nNon-Competition Covenant, and\/or breach of the Copyright Assignment, may give
\nrise to irreparable injury to CRC, which may not be adequately compensated by
\ndamages. Accordingly, in the event of Employee’s breach or threatened breach of
\nthis Agreement, CRC shall be entitled to preliminary and permanent injunctive
\nrelief, without bond, restraining Employee from disclosing, in whole or in part,
\nthe Confidential Information protected by this Agreement, or from rendering any
\nservices to any person, firm, corporation, association, or other entity to whom
\nsuch Confidential Information, in whole or in part, has been disclosed or is
\nthreatened to be disclosed, or from marketing, selling, or otherwise exercising
\nproprietary rights to copyrightable material referenced in this Agreement.
\nNothing herein shall be construed as prohibiting CRC from pursing any other
\nrecovery of damages. These undertakings shall survive the termination or
\ncancellation of this Agreement or of Employee’s employment with CRC.<\/p>\n
5. Miscellaneous Provisions.
\n ———————— <\/p>\n
a. Employee acknowledges that he has no employment agreement of any
\ntype whatsoever, whether oral, written, expressed, or implied, that would alter
\nthe “at will” status of Employee’s employment with CRC. Both CRC and Employee
\ntherefore have the right to terminate this employment relationship at any time
\nfor any reason, with no obligation to provide advance notice of such termination
\nto the other party. Employee hereby acknowledges receipt of the CRC employment
\nmanual and agrees that CRC shall have the unilateral right to modify its
\nemployment policies therein described at any time. Employee further agrees and
\nacknowledges that these employment policies or other similar provisions are
\nreasonable and agrees not to contest them by way of unjust dismissal proceedings
\notherwise. By signing this Agreement, however, Employee is not agreeing to forgo
\nor waive any rights that he has or may have under federal, state and local
\nemployment laws or regulation.<\/p>\n
b. Employee represents to CRC, which relies on this representation,
\nthat Employee is free to enter into this Agreement in that he is not under any
\nrestrictions from a former employer or business that would preclude him from
\nmaking these arrangements. Employee acknowledges that CRC does not want him to
\ndisclose to it any confidential information that he may have obtained from a
\nformer employer.<\/p>\n
c. This Agreement will be binding upon, shall inure to the benefit
\nof, CRC and Employee, and their respective heirs, personal and legal
\nrepresentatives, successors and assigns.<\/p>\n
-3-<\/p>\n
d. This Agreement contains the entire agreement and understanding
\nbetween the parties hereto, and no modification hereof shall be binding unless
\nin writing and signed by the parties hereto.<\/p>\n
e. The provisions of this Agreement shall be deemed severable, and
\nthe invalidity or unenforceability of any provision shall not effect the
\nvalidity or enforceability of the other provisions hereof.<\/p>\n
f. This Agreement is executed in, and it is the intention of the
\nparties hereto that it shall be governed by the law of the State of Michigan.<\/p>\n
IN WITNESS WHEREOF, CRC has caused this Agreement to be executed by a duly
\nauthorized officer and Employee has duly executed this Agreement on the date and
\nyear above written.<\/p>\n
CONCENTRIC RESEARCH CORPORATION, EMPLOYEE\/CONTRACTOR:
\na Florida Corporation<\/p>\n
By:____________________________ ___________________________<\/p>\n
Witness:_______________________<\/p>\n
Witness:_______________________<\/p>\n
-4-<\/p>\n
EXHIBIT B<\/p>\n
Loaned Employee Letter of Agreement<\/p>\n
Concentric Network Corporation
\nCritical Technologies Incorporated
\nc\/o CNC<\/p>\n
Re: Conditions of Employment While Performing Services
\n Concentric Network Corporation<\/p>\n
Dear __________:<\/p>\n
I have agreed, as of ____________, 1995, to accept an assignment to
\nConcentric Network Corporation (“CNC”) to perform services for the Concentric
\nNetwork Corporation in the capacity of ____________. I understand that during
\nthe period in which I am performing services for CNC, I will still be an active
\nfull-time employee of Critical Technologies Incorporated (“CTI”). As such, I
\nwill be entitled to receive and be subject to the CTI compensation, benefits,
\nand other Human Resources plans and programs. I will not be considered an
\nemployee of CNC and I further agree that I will not make any claim of
\nentitlement to any compensation, benefits or other Human Resources plans and
\nprograms of CNC, if any.<\/p>\n
I further agree that any intellectual property rights as defined in the
\naddendum to this employee loan letter of agreement, created, written, developed
\nor made by me while performing services for CNC shall be and shall continue to
\nbe the property of CTI, as set forth in the addendum to this letter.<\/p>\n
I understand and agree that neither the provisions of my assignment to CNC
\nnor this Letter of Agreement constitute a contract of employment or set forth
\nemployment terms between me and CTI. I understand that my employment
\nrelationship with CTI is by mutual consent (employment at will) and that I have
\nthe right at any time to terminate my employment for any reason. I also
\nunderstand that CTI reserves the right to terminate my employment on the same
\nbasis.<\/p>\n
Sincerely,<\/p>\n
________________________________________<\/p>\n
-5- <\/p>\n
EXHIBIT C<\/p>\n
CONCENTRIC RESEARCH CORPORATION<\/p>\n
CRC 1995 EXPANSION PLAN<\/p>\n
SCOPE – EXPANSION PLAN
\n——————————————————————————–<\/p>\n
MANAGE THE SUCCESSFUL IMPLEMENTATION OF THE 1995 NETWORK EXPANSION UPGRADES.
\nPROVIDE THE BASIS FOR MANAGEMENT OF FUTURE NETWORK EXPANSION.<\/p>\n
. Implement Xylogics terminal server technology
\n. Install V.34 technology
\n. Immediately bring all T1 facilities to full utilization
\n. Implement CMS diagnostic upgrade
\n. Create basic statistics document
\n. Ongoing capacity requirement (i.e. Affinity Programs)
\n. Create change control procedures<\/p>\n
OBJECTIVES – EXPANSION PLAN
\n——————————————————————————–<\/p>\n
. Formulate all current and future (1995) capacity data
\n. Model capacity data against current network provisioning
\n. Develop budget requirements
\n. Procure all hardware, software and services
\n. Manage the implementation and capacity upgrades
\n. Quality assurance testing
\n. Document process and solutions<\/p>\n
METHODOLOGY – EXPANSION PLAN
\n——————————————————————————–<\/p>\n
The Rapid Expansion of existing network facilities is possible due to the
\nimmediate availability of all required components.<\/p>\n
. AT&T Frame-Relay services have been expanded to 600% of last
\n year’s capacity. This allows for rapid acquisition of additional
\n resources.<\/p>\n
. Frame Ports
\n . Frame Circuits
\n . Frame Committed Information Rates<\/p>\n
. Racal-Datacom product availability is excellent for the specific
\n networking components required in the expansion plan.<\/p>\n
. Networking Engineering and Operations personnel are well versed
\n in the coordination of the required LEC facilities. POP
\n locations are all currently provisioned with T1 facilities
\n capable of immediate expansion.<\/p>\n
METHODOLOGY – EXPANSION PLAN
\n——————————————————————————–<\/p>\n
. CRC and Vendor(s) Organizational Chart
\n Functional Responsibilities<\/p>\n
. Existing Statistics\/Hardware
\n. Future Documentation Implementation
\n Plan
\n. Network diagrams Define
\n. Budget approval Requirements<\/p>\n
. Define management requirements Define
\n. Document process and findings Change Control
\n. Quality Assurance review<\/p>\n
[This page intentionally left blank]<\/p>\n
METHODOLOGY – EXPANSION PLAN<\/p>\n
. Deliver Requirements to Vendors Hardware
\n Procurement Procedures
\n Document<\/p>\n
. Project Management Begin Phased
\n Installation
\n Close Project<\/p>\n
. Quality Assurance Review Network
\n Testing<\/p>\n
. As Built Network Documentation Network
\n Documentation<\/p>\n
METHODOLOGY – EXPANSION PLAN<\/p>\n
DEVELOP & DRIVE THE CAPACITY PLANNING METHODOLOGY AND PERFORM THE FOLLOWING
\nACTIVITIES TO ENSURE NETWORK PERFORMANCE.<\/p>\n
. Define the hardware\/ statistics report formatting
\n. Coordinating all activities with associated vendors
\n. Create change control procedures
\n. Define and document the detailed requirements
\n. Develop working design document
\n. Create detailed port cost contribution
\n. Manage to predictable implementation plan
\n. Provide detailed progress updates to management and the board as required
\n. Overall project management<\/p>\n
This approach will ensure that ongoing requirements be handled in a timely,
\ncost effective manner insuring superior customer support.<\/p>\n
SCOPE – NETWORK EVOLUTION PLAN<\/p>\n
. FINALIZE THE NETWORK RFP PROCESS AND WORKING NETWORK DESIGN. THIS
\n EFFORT WILL ENSURE COMPETITIVE COST STRUCTURES EXIST FOR THE NETWORK.
\n WHILE ENSURING HIGH CAPACITY, LOW LATENCY NETWORK PERFORMANCE<\/p>\n
. Methodology and approach
\n. Vendor(s) selection
\n. Working network design
\n. Manage the implementation and migration
\n. Document process and solutions<\/p>\n
OBJECTIVES – NETWORK EVOLUTION PLAN<\/p>\n
. Rapid completion of RFP process
\n. Provide a working network design that meets tactical and strategic
\n requirements
\n. Facilitate vendor “Proof Of Concept” against network design
\n. Define and analyze vendor pilot program(s)
\n. Implement final solution<\/p>\n
[This page intentionally left blank]<\/p>\n
METHODOLOGY – PHASE 1 NETWORK EVOLUTION PLAN<\/p>\n
. Complete Requires
\n Document<\/p>\n
. Complete Solicit
\n Vendors
\n Select Finalists
\n. Complete Vendor
\n Responses<\/p>\n
. Define scoring criteria
\n. Determine selection committee Vendor
\n. Evaluate vendors Scoring
\n. Document process and findings
\n. Quality assurance review
\n. Management update<\/p>\n
METHODOLOGY – PHASE 2 NETWORK EVOLUTION PLAN<\/p>\n
. Develop design vision Finalists
\n. Update detailed requirements Requirements Develop
\n. Present requirements to vendors Pilot Plan<\/p>\n
. Joint working design Conceptual
\n Designs Pilot
\n Solution(s)
\n. Vendor(s) proof of concept
\n. Vendor(s) presentations Vendor Proof
\n of Concept
\n Evaluate
\n Pilots
\n. Define scoring criteria
\n. Evaluate vendors Vendor
\n. Document process and findings Scoring
\n. Quality assurance review
\n. Management update<\/p>\n
METHODOLOGY – NETWORK EVOLUTION PLAN<\/p>\n
FINAL WORKING DESIGNS AND PROOF OF CONCEPT WILL ENCOMPASS DETAILS RELATED TO:<\/p>\n
. Cost
\n. Functionality
\n. Reliability
\n. Performance
\n. Management Capabilities<\/p>\n
This approach ensures that a working design can be implemented for a “Leading
\nEdge” network solution prior to large financial commitments.<\/p>\n
METHODOLOGY – NETWORK EVOLUTION PLAN<\/p>\n
MANAGE THE METHODOLOGY AND PERFORM THE FOLLOWING ACTIVITIES TO ENSURE ITS
\nSUCCESS.<\/p>\n
. Define the scoring matrix
\n. Manage the selection committee
\n. Document phased results
\n. Define and document the detailed requirements
\n. Develop working design document
\n. Define the pilot and facilitate vendor implementation
\n. Overall project management<\/p>\n
EXHIBIT “D”<\/p>\n
Concentric Network Corporation and Critical Technologies, Inc.<\/p>\n
PERFORMANCE OBJECTIVES<\/p>\n
1. Develop and establish the network control center in Critical’s St. Louis
\n facility.<\/p>\n
2. Design, build and implement the seven (7) Canadian POP sites.<\/p>\n
3. Rapidly harden the Bay City POP site.<\/p>\n
4. Rapidly bring live seventy-one (71) local markets utilizing the LA (Virtual
\n Local Access) techniques.<\/p>\n
5. Develop and implement a plan to segregate the CNC host systems.<\/p>\n
6. Rapidly develop the Intuit Registration Server.<\/p>\n
7. Deploy a total of [*] local and virtual access ports at a
\n targeted average cost\/port of [*].<\/p>\n
8. Successfully demonstrate the new network architecture. Included in this
\n demonstration will be the attainment of the following objectives:<\/p>\n
a) A latency factor of not more than _______. (to be determined by
\n 2\/10\/96)<\/p>\n
b) A through-put purport of _________. (to be determined by 2\/10\/96)<\/p>\n
c) The ability to reconfigure inbound port on a call-by-call basis.<\/p>\n
d) The ability to provide best-fit routing on the back bone network.<\/p>\n
9. Develop a field trial of a BRI ISDN connectivity.<\/p>\n
10. Develop a monthly network management report.<\/p>\n
11. Develop and implement on-line credit card authorization.<\/p>\n
12. Implement the Portal Back Office System or an equivalent next generation
\n “back office system”.<\/p>\n
13. Implement a proactive capacity management system that ensures we maintain a
\n mutually agreeable target grade-of-service.<\/p>\n
—————–
\n [*]Certain information on this page has been omitted and filed separately
\nwith the Securities and Exchange Commission. Confidential treatment has been
\nrequested with respect to the omitted portions.<\/p>\n
EXHIBIT E<\/p>\n
CONCENTRIC RESEARCH CORPORATION<\/p>\n
PLAN FOR <\/p>\n
NETWORK OPERATIONS<\/p>\n
NETWORK OPERATIONS
\n MISSION STATEMENT<\/p>\n
Provide convenient and cost effective
\n operations of customer networks while
\n controlling the rising and hidden costs
\n of network management and support<\/p>\n
[LOGO APPEARS HERE]<\/p>\n
[LOGO APPEARS HERE]
\n OBJECTIVE<\/p>\n
Pro-actively monitor and resolve network
\n conditions before they negatively affect
\n network users<\/p>\n
NETWORK OPERATIONS<\/p>\n
SCOPE<\/p>\n
DEVICE MANAGEMENT PHYSICAL MANAGEMENT
\n. Logical & Physical . Moves\/Adds\/Changes
\n. LAN & WAN
\n. Routers, Hubs, Servers
\n. Threshold Monitoring<\/p>\n
TROUBLESHOOTING ADMINISTRATION
\n. Fault Detection . Problem Management
\n. Event to Alarm . Trouble Tickets
\n. Correlation . Thresholds
\n. Impact Analysis . Security
\n. Corrective Action . Agents
\n . Backup<\/p>\n
ASSET MANAGEMENT
\n. Equipment Assignments
\n. Configuration Information
\n. Firmware & Software<\/p>\n
NETWORK OPERATIONS<\/p>\n
SERVICES<\/p>\n
. Continuous 7x24x365 day proactive network monitoring
\n. Problem determination, tracking and resolution
\n. Problem impact analysis
\n. Vendor dispatch and service performance monitoring
\n. System performance and availability reporting
\n. Equipment configuration and database management
\n. Coordination of network adds, deletes and changes<\/p>\n
NETWORK OPERATIONS<\/p>\n
STAFF EXPERIENCE<\/p>\n
. 2-5 years experience in data communications
\n. Operations training on all network management systems
\n. Operations training on communications equipment
\n. Network troubleshooting and restoration procedural training
\n. General operation training to include; trouble ticketing, escalation
\n procedures, vendor dispatch, report generation<\/p>\n
[LOGO APPEARS HERE]<\/p>\n
NETWORK OPERATIONS<\/p>\n
SENIOR SUPPORT STAFF<\/p>\n
. Consists of trained and experienced technical specialists who assist
\n network operators with problem diagnosis on an exception basis.<\/p>\n
. These specialists become involved in those problems requiring
\n engineering investigation or software reconfiguration<\/p>\n
NETWORK OPERATIONS<\/p>\n
SENIOR SUPPORT EXPERIENCE<\/p>\n
. 5-15 years experience in data communications
\n. Broad experience in data communication concepts and curriculum
\n. Emphasis on product and system specialization<\/p>\n
[LOGO APPEARS HERE]<\/p>\n
NETWORK OPERATIONS
\n[LOGO APPEARS HERE]<\/p>\n
MONTHLY REPORTING:<\/p>\n
. Network performance and availability
\n. Trouble tickets processed
\n. Network adds, changes and deletes
\n. Network failure trend analysis
\n. Vendor maintenance call performance<\/p>\n
ORGANIZATION OVERVIEW<\/p>\n
[FLOWCHART APPEARS HERE]<\/p>\n
EXHIBIT I<\/p>\n
SCOPE<\/p>\n
. SOFTWARE DEVELOPMENT MANAGEMENT<\/p>\n
. Manage registration server development effort for Intuit
\n . Manage host system software upgrades required for escalating
\n subscriber base<\/p>\n
-Business requirements
\n -Technical requirements
\n -General analysis and design
\n -Detailed analysis and design
\n -Coding
\n -Integration and QA testing
\n -Beta testing
\n -Implementation \/ Certification<\/p>\n
14. Implement a proactive network management process that achieves an average
\n time-to-response of less than ______ hours on urgent trouble tickets and
\n less than ______ hours on priority trouble tickets.<\/p>\n
-2-<\/p>\n
EXHIBIT F<\/p>\n
[not included]<\/p>\n
EXHIBIT G
\n ———<\/p>\n
CONCENTRIC NETWORK CORPORATION
\n ——————————<\/p>\n
OPTION AGREEMENT
\n —————-<\/p>\n
THIS OPTION AGREEMENT is entered into effective ____________, 19__, between
\nCONCENTRIC NETWORK CORPORATION, a Florida corporation (the “Company”), and
\n_________________________ (the “Optionee”).<\/p>\n
WHEREAS, the Company and CRITICAL TECHNOLOGIES INCORPORATED (“CTI”) are
\nparties to an Employee Services and Staffing Agreement (the “Employee
\nAgreement”) pursuant to which, among other things, CTI has leased certain
\nemployees to the Company and the Company has agreed to issue options to purchase
\nan aggregate of 900,000 shares of Common Stock of the Company (“Option Shares”)
\nto certain employees of CTI which, pursuant to the Employee Agreement, will be
\nleased to the Company, and to certain other principals and employees of CTI and
\nto CTI; and<\/p>\n
WHEREAS, an aggregate of ________ of the Option Shares (the “Performance
\nOption Shares”) are subject to forfeit in the event certain performance
\nobjectives set forth in an exhibit to the Employee Agreement are not timely
\nachieved (the balance of an aggregate of ________ Option Shares are referred to
\nherein as “Regular Option Shares”); and<\/p>\n
WHEREAS, the Optionee is one of the persons selected by CTI to receive an
\noption pursuant to the Employee Agreement;<\/p>\n
NOW, THEREFORE, in consideration of the premises and for other good and
\nvaluable consideration, the parties hereto do hereby agree as follows:<\/p>\n
1. Grant of Option. The Company hereby grants to the Optionee the
\n —————
\nright and option (the “Option”) to purchase all or any part of the number of
\nOption Shares set forth below, at a purchase price of $.25 per share and on the
\nother terms and conditions herein set forth.<\/p>\n
Total number of Regular Option Shares: _________<\/p>\n
Total number of Performance Option Shares: _________<\/p>\n
2. Dates When Option Exercisable.
\n —————————– <\/p>\n
a. Except as otherwise provided in paragraph 2(d), Options for
\neach of the Regular Option Shares and the Performance Option Shares (if any)
\nwill vest and become exercisable ratably over twelve (12) months, at the end of
\neach month after the date hereof, with Options for one-twelfth (1\/12) of the
\nshares subject to Option (rounded to the nearest whole share) becoming
\nexercisable at the end of each such month.<\/p>\n
b. Except as otherwise provided in paragraph 2(e) and paragraph
\n8, the Option shall expire, to the extent it has not already been exercised, at
\nthe close of business on ____________, 2005 (the tenth (10th) anniversary of the
\nEmployee Agreement) (the “Expiration Date”).<\/p>\n
c. Except as otherwise provided in paragraph 2(e), the Option
\nwith respect to all Regular and Performance Option Shares not then vested will
\nautomatically be assigned to CTI if the Optionee ceases to be an employee of CTI
\nprior to the time all Option Shares are vested hereunder. It is expressly
\nunderstood and agreed that nothing herein is intended or shall be construed as
\nan employment contract or as implying any obligation on the part of CTI or the
\nCompany to continue the Optionee’s employment for any period of time after the
\ndate hereof.<\/p>\n
d. Notwithstanding paragraph 2(a), the Option shall immediately
\nbecome exercisable in full upon the effective date of any merger or
\nconsolidation of the Company with or into any other entity, at which time the
\nOption shall automatically become an Option on exercise to purchase, with
\nrespect to each Option Share purchasable hereunder (whether vested or not)
\nimmediately before the consolidation or merger becomes effective, the securities
\nor other consideration to which a holder of one share of Common Stock is
\nentitled in the consolidation or merger without any change in or payment in
\naddition to the Exercise Price in effect immediately prior to the merger or
\nconsolidation. The Company shall take any necessary steps in connection with a
\nconsolidation or merger to assure that the provisions of this Option shall
\nthereafter be applicable, as nearly as reasonably may be, to any securities or
\nother consideration so deliverable on exercise of this Option. The Company shall
\nnot consolidate or merge unless, prior to consummation, the successor entity (if
\nother than the Company) assumes the obligations of this paragraph by written
\ninstrument executed and mailed to the Optionee at the address of the Optionee on
\nthe books of the Company.<\/p>\n
e. Notwithstanding paragraphs 2(b) and 2(c), in the event of
\n(i) the death of the Optionee, or (ii) termination of the Optionee’s employment
\nby reason of his or her disability or incapacity, then in any of such events the
\nOption may be exercised (but only to the extent it was exercisable by the
\nOptionee on the date of his or her death or of such termination of employment),
\nby the Optionee, or the Optionee’s personal representative, conservator (if any)
\nor guardian (if any), respectively, in the manner set forth below, for a period
\nof twelve (12) months (but not later than the Expiration Date) after the date of
\nthe Optionee’s death or of such termination of employment.<\/p>\n
3. Method of Exercising Option. The Optionee (or representative as
\n —————————
\nprovided above) may exercise the Option hereby granted on one or more occasions
\nat his or her discretion, on each occasion for all or any part of the Option
\nShares for which the Option is then exercisable, by each time delivering to the
\nmain business office of the Company, addressed to the attention of its Chief
\nExecutive Officer or Secretary, (i) a written notice stating his or her election
\nto exercise the Option and the number of Regular and Performance (if any) Option
\nShares to be purchased, together with (ii) cash or check in full payment of the
\npurchase price of the Option Shares to be purchased plus the amount of any
\nFederal and state withholding taxes payable by the Company as a result of such
\nexercise. The Option shall be deemed to be exercised only upon receipt of such
\nnotice and payment<\/p>\n
-2-<\/p>\n
by the Chief Executive Officer or Secretary. The Company will advise the
\nOptionee, upon the Optionee’s reasonable prior request, of the required amount
\nof such taxes.<\/p>\n
4. Non-Transferability of Option. The Option may be exercised only
\n —————————–
\nby the Optionee or as otherwise provided above or by the Employee Agreement. The
\nrights granted by this Option may not be assigned, transferred, pledged or
\nhypothecated in any way, other than by will or by operation of law, and except
\nfor automatic transfer to CTI pursuant to Section 2(c), above, and further
\nassignment by CTI, pursuant to the terms of the Employee Agreement. Such rights
\nshall not be subject to execution, attachment or similar process. In the event
\nof the bankruptcy of the Optionee, or in the event of any prohibited assignment,
\ntransfer, pledge, hypothecation or other disposition of the Option, or the levy
\nof any execution, attachment or similar process upon the Option, the Option
\nshall automatically expire and shall be null and void. Notwithstanding the
\nforegoing, however, with prior notice to the Company the rights granted by this
\nOption may be transferred between the Optionee in his or her personal capacity
\nand the Optionee as trustee of a trust (A) of which the Optionee is both sole
\ntrustee and sole beneficiary during his or her lifetime, and (B) all of which is
\ntreated under subpart E of Part I of Subchapter J of Chapter 1 of Subtitle A of
\nthe Internal Revenue Code of 1986, as amended, as owned by the Optionee.<\/p>\n
5. Share Adjustments. In the event of any stock dividend on,
\n —————–
\nreclassification, split-up or combination of, or other change in, the Company’s
\nCommon Stock, then the number or kind of Option Shares shall be correspondingly
\nadded to, reclassified, increased, diminished or changed proportionately,
\nwithout increase or decrease in the aggregate purchase price of all Option
\nShares.<\/p>\n
6. No Rights of Optionee as Shareholder. The Optionee shall have no
\n ————————————
\nrights respecting this Option or the Option Shares except as expressly set forth
\nherein or in the Employee Agreement; and the Optionee shall have no rights as a
\nshareholder with respect to any Option Shares until this Option has been duly
\nexercised as to such Option Shares in accordance with the terms hereof. The
\ngrant of this Option shall not affect in any way the right or power of the
\nCompany to make adjustments, reclassifications, reorganizations or changes of
\nits common stock or its capital or business structure, or to merge or to
\nconsolidate, or to dissolve or liquidate, or to sell or transfer any or all of
\nits business or assets.<\/p>\n
7. Securities Laws. Neither this Option nor any of the Option Shares
\n —————
\nhave been registered under the Securities Act of 1933, as amended, or the
\nsecurities laws of any state, in reliance on exemptions from the registration
\nprovisions thereof. By acceptance hereof, the Optionee acknowledges such fact
\nand agrees that, unless the Option Shares are so registered prior to exercise
\nhereof, this Option and any Option Shares will be held for investment and not
\nwith a view to distribution or resale, and may not be made subject to a security
\ninterest, pledged, hypothecated, or otherwise transferred without either an
\neffective registration statement under such Act and compliance with applicable
\nstate securities laws, which may not be possible, or an opinion of legal counsel
\nsatisfactory to the attorneys for the Company that such registration is not
\nrequired under such Act and that applicable state securities laws will not be
\nviolated by such action; and the Optionee further agrees that the certificates
\nfor such Option Shares shall bear a legend substantially to such effect.<\/p>\n
-3-<\/p>\n
8. Performance Option Termination and Repurchase Provisions. If
\n ——————————————————–
\nperformance objectives set forth in Exhibit E to the Employee Agreement have not
\nbeen achieved within twelve (12) months after the date of the Employee
\nAgreement, the Option for Performance Option Shares shall automatically
\nterminate and no longer be exercisable and the Company shall repurchase from the
\nOptionee at the purchase price of $.25 per share all Performance Option Shares
\ntheretofore purchased by the Optionee upon partial exercise of this Option.<\/p>\n
9. General. The Company shall at all times during the term of the
\n ——-
\nOption reserve and keep available a number of shares of common stock equal to
\nthe number of Option Shares, and shall pay all original issue and transfer taxes
\nwith respect to the issue of Option Shares pursuant hereto and all other fees
\nand expenses necessarily incurred by the Company incurred in connection
\ntherewith.<\/p>\n
IN WITNESS WHEREOF, the Company and the Optionee have executed this Option
\nAgreement as of the date first above written.<\/p>\n
Company: CONCENTRIC NETWORK CORPORATION<\/p>\n
By:___________________________________
\n President<\/p>\n
Optionee: ______________________________________<\/p>\n
-4-<\/p>\n
EXHIBIT H<\/p>\n
Colocation Services Agreement<\/p>\n
This Colocation Services Agreement between Critical Technologies, a Missouri
\ncorporation with principal offices at 1300 Baur Blvd., St. Louis, Missouri 83132
\n(hereinafter referred to as “Critical”), and Concentric Research Corporation
\n(hereinafter referred to as “CRC”) with offices located 400 Forty first Street,
\nBay City, Michigan 48708, is entered into this 1st day of November, 1994.<\/p>\n
WHEREAS, Critical is a provider of colocation services; and<\/p>\n
WHEREAS, CRC desires to engage Critical to provide colocation services as
\ndescribed herein; and<\/p>\n
WHEREAS, Critical desires to accept such engagement upon the terms and
\nconditions set forth herein.<\/p>\n
NOW THEREFORE, in consideration of the mutual promises herein contained and
\nother good and valuable consideration, the receipt of which is hereby
\nacknowledged, CRC and Critical agree as follows:<\/p>\n
I. DEFINITIONS
\n ———–<\/p>\n
a. Colocation sites (“Sites”)<\/p>\n
Physical space which shall have the characteristics specified on
\n Appendix A, and shall be fit for the purposes of containing the Racks
\n and Equipment, as hereinafter defined, in an environment that will
\n enable the Racks and Equipment to operate according to Racal-Data Com,
\n Inc. specifications.<\/p>\n
b. Optimum Locations<\/p>\n
Optimum Locations shall be geographic locations (within which a Site
\n may be selected) which locations shall be identified by Critical as
\n most closely matching the criteria provided by CRC from time to time
\n for purposes of Modeling and in the Optimum Location Requests, as
\n provided in Article V of this Agreement. In identifying Optimum
\n Locations, Critical shall consider:<\/p>\n
1. which metropolitan areas have the greatest potential customer
\n base<\/p>\n
2. the determination of which physical location provides the
\n greatest number of callers with a local dial-access number<\/p>\n
3. conclusions or indications from Modeling based upon CRC’s
\n expressed criteria.<\/p>\n
Critical shall provide a mathematical justification for each Optimum
\n Location to CRC, which mathematical justification shall be approved by
\n CRC.<\/p>\n
c. Modeling services (“Modeling”)<\/p>\n
The creation of a mathematical model built and maintained by Critical
\n which shall enable Critical to recommend to CRC and CRC to select
\n Optimum Locations pursuant to the criteria submitted by CRC. The Model
\n shall incorporate data, including but not limited to; CRC’s research
\n in the desired markets and\/or market places, the existing 800 number
\n service network traffic data ordered geographically, and existing
\n point of presence Site network traffic data.<\/p>\n
d. Colocation services (“Services”)<\/p>\n
The services being offered to CRC by Critical shall consist of
\n Modeling, locating, qualifying and providing Optimum Locations and
\n Sites, pursuant to Optimum Location Requests and Site Orders as
\n described in Article V of this Agreement, providing supervision for
\n any and all construction necessary at the Sites, accommodating
\n installation of Equipment and Racks as hereinafter defined, insuring
\n compliance with all codes, ordinances, rules and regulations,
\n providing consolidated billing for the Sites. Critical shall provide
\n communication with respect to the Services with the TM as hereinafter
\n defined.<\/p>\n
e. Industrial Telecommunications Racks (“Racks”)<\/p>\n
The industrial telecommunication Racks which contain the Equipment, as
\n hereinafter defined, including but not limited to:<\/p>\n
Excal Rackmounts
\n ALM 2332 Rackmounts
\n INX Rackmount Shelves<\/p>\n
f. Colocation equipment (“Equipment”)<\/p>\n
All of the Equipment, other than Racks, owned by Racal and leased to
\n CRC which are located at the Sites, which Equipment includes but is
\n not limited to that type described on Appendix B.<\/p>\n
g. Racal-Data Com, Inc. (“Racal”)<\/p>\n
A Florida corporation with principal offices located at 1601 North
\n Harrison Parkway, Sunrise, Florida 33323-2899, which is the owner of
\n all or part of the Equipment and Racks and leases those Equipment and
\n Racks to CRC.<\/p>\n
-2-<\/p>\n
h. Primary Entity<\/p>\n
Any entity through which Critical leases or otherwise holds an estate
\n in the Site.<\/p>\n
i. CRC Telecommunications Manager (the “TM”)<\/p>\n
CRC shall designate a single employee as its telecommunication manager
\n for purposes of this Agreement and as a primary CRC contact for
\n Critical with respect to this Agreement. The TM shall be designated by
\n CRC, in writing, upon execution of this Agreement and Critical shall
\n be notified, in writing within 48 hours, in the event that CRC
\n appoints a new TM.<\/p>\n
II. AFFIRMATION
\n ———–<\/p>\n
Critical shall provide Services, Optimum Locations and Sites pursuant to
\n Orders (as defined in Article V) to CRC.<\/p>\n
III. TERM OF AGREEMENT
\n —————–<\/p>\n
This Agreement shall be effective upon the date first written above
\n (“Effective Date”) and shall continue for a period of twenty-four (24)
\n months from the Effective Date. Thereafter, this Agreement shall
\n automatically renew itself in twelve (12) month increments unless either
\n party notifies the other of its decision to terminate this Agreement by
\n providing the other party with sixty (60) days written notice prior to the
\n expiration of the period then in effect (“Renewal Period”). This Agreement
\n shall govern all Orders for Services which are received by Critical within
\n twenty-four (24) months from the Effective Date or any Renewal Period.
\n Notwithstanding anything contained herein, in the event that CRC shall fail
\n to renew after the first twenty-four (24) months of the Agreement, and in
\n the further event CRC shall have ordered more than 100 Sites which are
\n subject to this Agreement (“Additional Sites”), CRC shall pay the sum of
\n [*] for each Additional Site for each month less than twenty-four (24)
\n months which has expired from the time the Additional Site was ordered to
\n the date of termination of the Agreement under this paragraph.<\/p>\n
IV. PAYMENT FOR SERVICES AND COMMENCEMENT
\n ————————————-<\/p>\n
CRC shall pay to Critical the sum of [*] per Site per month, for the first
\n Rack, and [*] for each additional Rack at each Site, per month, up to a
\n total of three (3) Racks. With respect to the first Order, billing shall
\n commence on October 15, 1994. In addition, with respect to the first order,
\n CRC shall pay the sum of [*] upon execution of this Agreement. Thereafter,<\/p>\n
———————<\/p>\n
[*] Certain information on this page has been omitted and filed separately
\nwith the Securities and Exchange Commisssion. Confidential treatment has been
\nrequested with respect to the omitted portions.<\/p>\n
-3-<\/p>\n
commencement of billing for each Site shall begin upon execution of the
\n Site Order as provided in Article V of this Agreement (hereinafter referred
\n to as the “Commencement Date”). Payments are due monthly, on the first day
\n of each calendar month. If the Commencement Date of each Site or additional
\n Rack is other than the first day of each month, the first payment due
\n hereunder shall be equal to one-thirtieth (1\/30) of the monthly rate set
\n forth for each day from and including the Commencement Date through and
\n including the last day of the month prior to the beginning of the term and
\n the monthly rate for the full initial month. Certain of the Sites shall be
\n located at Racal property or leaseholds (“Racal Sites”) and CRC may elect
\n to obtain Sites. Notwithstanding anything else contained within this
\n Article IV, CRC shall only be required to pay the sum of [*] per month
\n per site for Racal Sites or where the site is obtained by CRC. In the event
\n that number of Sites subject to this Agreement shall drop below 90 Sites,
\n then CRC shall be required to pay the sum of [*] per month per Site for
\n Racal Sites or where the Site is obtained by CRC.<\/p>\n
V. ORDERING PROCEDURE
\n ——————<\/p>\n
a. Optimum Location Request<\/p>\n
CRC, acting through the TM, shall make a written request to Critical
\n to identify Optimum Locations from time to time in order to enable CRC
\n and Critical to select new Sites or move existing Sites.<\/p>\n
1. The TM shall identify the number of Optimum Locations which it
\n desires Critical to identify.<\/p>\n
2. The TM shall further specify the number of days, but not less
\n than 30 days, within which CRC expects Critical to provide a
\n written response (“Identification Period”).<\/p>\n
(i) In the event that Critical is unable to respond within the
\n Identification Period, it shall notify the TM, before the
\n expiration of 75 percent of the respective Identification
\n Period, that it will be unable to comply within the
\n Identification Period. CRC may then elect to cancel the
\n Optimum Location Request or issue an amendment to the
\n Request to provide a new Identification Period.<\/p>\n
b. Site Order<\/p>\n
The TM shall, from time to time, direct Critical, in writing, to
\n identify a Site within an Optimum Location. The TM shall further
\n specify the number of days, but not less than thirty days unless
\n agreed in writing between the parties, within which CRC expects
\n Critical to provide a Site Order (“Order Period”).<\/p>\n
-4-<\/p>\n
——————
\n [*] Certain information on this page has been omitted and filed separately
\nwith the Securities and Exchange Commission. Confidential treatment has been
\nrequested with respect to the omitted portions.<\/p>\n
1. In the event that Critical is unable to respond within the Order
\n Period it shall notify the TM, before the expiration of 75% of
\n the respective Order Period, that it will be unable to comply
\n with the Order Period. CRC may then elect to cancel the Site
\n Order or issue an amendment to the Site Order to provide a new
\n Order Period.<\/p>\n
2. Upon identification of a Site by Critical, Critical shall prepare
\n a Site Order with the address of the Site and deliver the Site
\n Order to the TM. The TM shall execute the Site Order on behalf of
\n CRC, confirming the Site Order.<\/p>\n
(i) Subsequent to the execution of a Site Order, Critical
\n shall deliver to the TM, in electronic form, a list of all
\n exchanges which are a local call to the exchange from the
\n Site.<\/p>\n
(ii) Subsequent to the execution of the Site Order by the TM,
\n if CRC ships Racks or Equipment to the address on the Site
\n Order or incurs any charges, including AT&T or local
\n exchange carrier charges, and the address on the Site
\n Order is incorrect or the Site cannot be used, for any
\n reason which is not the fault of CRC or Racal, Critical
\n shall be liable for all expenses incurred or related to
\n the Site address being incorrect or the Site not being
\n available for use by CRC, including Equipment and Cabinet
\n shipment charges.<\/p>\n
c. Replacement Site<\/p>\n
In the event that a Site Order is made, and after not less than 120
\n days subsequent thereto, CRC determines that the Site does not meet
\n its marketing criteria (“Nonconforming Site”), CRC may terminate the
\n Nonconforming Site and order a Replacement Site unless the Site is
\n selected by CRC without Critical’s advice.<\/p>\n
1. The Replacement Site must be leased for the balance of the term
\n of the Nonconforming Site.<\/p>\n
2. The Replacement Order procedure shall be as follows:<\/p>\n
(i) The TM shall, in writing, request a Replacement Site,
\n identifying the Nonconforming Site, and specifying a new
\n Optimum Location. The TM shall further specify the Order
\n Period. The term of this Order Period in such event shall
\n not be less than 30 days.<\/p>\n
(ii) In the event that Critical is unable to respond within the
\n Order Period it shall notify the TM before the expiration
\n of 75% of the respective Order Period, that it will be
\n unable to comply with the Order Period.<\/p>\n
-5-<\/p>\n
CRC may then elect to cancel the Replacement Order or
\n issue an amendment to the Replacement Order to provide a
\n new Order Period.<\/p>\n
(iii) Upon indemnification of a Replacement Site by Critical,
\n Critical shall prepare a Replacement Order with the
\n address of the Replacement Site and deliver the
\n Replacement Site Order to the TM. The TM shall execute the
\n Replacement Site Order on behalf of CRC confirming the
\n Replacement Site Order.<\/p>\n
1) Subsequent to the execution of a Replacement Site
\n Order, Critical shall deliver to the TM, in electronic
\n form, a list of all exchanges which are a local call
\n to the exchange of the Site.<\/p>\n
2) Subsequent to the execution of the Replacement Site
\n Order by the TM, if CRC ships Racks or Equipment to
\n the address on the Replacement Site Order or incurs
\n any charges, including AT&T or local exchange carrier
\n charges, and the address on the Replacement Site Order
\n is incorrect or the Site cannot be used, for any
\n reason which is not the fault of CRC or Racal,
\n Critical shall be liable for all expenses incurred or
\n related to the Site address being incorrect or the
\n Site not being available for use by CRC, including
\n Equipment and Cabinet shipment charges.<\/p>\n
VI. WARRANTY
\n ——–<\/p>\n
Critical warrants that the Services shall be provided to the best of its
\n ability, skill and knowledge. Critical further warrants that the Sites will
\n meet the requirements set forth on Appendix A and that the Services will be
\n of the kind and quality and fulfill the purposes defined in Article I of
\n this Agreement and will be performed by qualified personnel. Critical
\n warrants to CRC peaceful possession of all of the Sites. THE FOREGOING
\n WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS, IMPLIED, OR STATUTORY,
\n INCLUDING WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
\n AND NO REPRESENTATIVE OF CRITICAL IS AUTHORIZED TO ALTER OR ENLARGE THIS
\n WARRANTY.<\/p>\n
VII. INSURANCE
\n ———<\/p>\n
Critical shall maintain in force during the term of this Agreement a policy
\n of insurance issued by a company authorized to engage in the insurance
\n business in all of the states in which the Sites are located. The policy
\n shall insure the Racks and Equipment against the perils of fire, extended
\n coverage, vandalism, malicious mischief, special extended coverage (“All
\n Risk”), and sprinkler coverage. Further, Critical shall provide a
\n comprehensive general liability insurance policy insuring CRC against any
\n liability arising out of the use, occupancy or maintenance of the Site and
\n all access areas appurtenant thereto. Each policy shall be on an occurrence
\n basis<\/p>\n
-6-<\/p>\n
and shall insure not less than Three Million Dollars ($3,000,000.00) per
\n occurrence. The insurance policy shall insure the hazards of the Site and
\n operations conducted in and on the Site, independent contractors,
\n contractual liability, and shall name CRC and Racal as insured parties.
\n CRC shall be furnished with a copy of the certificate of insurance.<\/p>\n
VIII. FORCE MAJEURE
\n ————-<\/p>\n
Neither Critical or CRC shall be considered in default in performance of
\n their obligations hereunder if performance of such obligations is
\n prevented or delayed by acts of God or government, labor disputes, failure
\n or delay of transportation, or by vendors or subcontractors, or any other
\n similar cause or causes beyond the reasonable control of either party.
\n Time of performance of either party’s obligations hereunder shall be
\n extended by the time period reasonably necessary to overcome the effects
\n of such force majeure occurrences.<\/p>\n
IX. CASUALTY
\n ——–<\/p>\n
In the event that a Site shall be destroyed or rendered unusable by fire
\n or other casualty, Critical shall have 30 days to relocate the Site.<\/p>\n
X. TITLE AND LOCATION
\n ——————<\/p>\n
Nothing contained herein shall give or convey to Critical any right, title
\n or interest in or to any of the Racks or Equipment, and Critical
\n represents and agrees that it shall furnish to CRC such documentation as
\n CRC requires to confirm said title in CRC or Racal.<\/p>\n
Critical shall notify all Primary Entities of the interest of Racal and
\n CRC in the Racks and Equipment. Further, Critical shall file, on behalf of
\n CRC and Racal, a UCC financing statement in each respective state where a
\n Site is being provided pursuant to this Agreement, Critical shall provide
\n to CRC the names and addresses of the Primary Entities and CRC shall
\n prepare the UCC financing statements, Critical shall obtain the signatures
\n of the Primary Entities and file the UCC financing statements in the
\n appropriate state offices. CRC shall pay all filing fees. Each UCC
\n financing statement shall identify the Primary Entity with respect to the
\n Site, address of the Primary Entity, the identity of Racal and\/or CRC as
\n the owners of the Racks or Equipment. The UCC shall be in a form which CRC
\n deems advisable to secure the interests of CRC and Racal. Without limiting
\n the foregoing, Critical shall obtain the signature of each of the Primary
\n entities on one or more financing statements in a form and substance
\n satisfactory to CRC covering all of the Racks and Equipment to be located
\n at the Sites pursuant to this Agreement.<\/p>\n
XI. OWNERSHIP RIGHTS
\n —————-<\/p>\n
a. Racks and Equipment<\/p>\n
-7-<\/p>\n
The Racks and Equipment shall at all times remain the property of CRC
\n and\/or Racal. Critical agrees that it shall allow the Equipment and
\n Rack to be labeled as property of CRC and Racal. Critical shall
\n replace any such stenciling tag or plate which may be removed or
\n destroyed or become illegible. Critical shall keep all Racks and
\n Equipment free from any marking or labeling which might be interpreted
\n as a claim of ownership thereof by Critical or any Primary Entity, or
\n might be interpreted as a claim of anyone so claiming through Critical
\n or any Primary Entity.<\/p>\n
1. Upon termination or expiration of this Agreement, Critical shall
\n provide immediate access to the Sites to remove all Equipment and
\n Racks.<\/p>\n
b. Modeling<\/p>\n
With respect to the Modeling, Critical shall retain ownership of the
\n analytical process. CRC shall retain ownership of all data provided
\n for the Modeling and all results of the application of the analytical
\n process to the data. Critical shall not, without prior written
\n permission of CRC, transfer, disclose or otherwise provide the data or
\n results of the Modeling to any person outside of Critical. Critical
\n agrees that it shall thoroughly safeguard the confidentiality of the
\n data in the Modeling results, and in no event shall it be to a lesser
\n extent than Critical safeguards its own proprietary information.
\n Critical agrees that access to such data and the Modeling results will
\n be given only to employees of Critical who require access in the
\n course of Critical’s business, and such employees will be informed of
\n the confidential nature thereof and shall be required to observe
\n provisions of confidence as set forth herein.<\/p>\n
1. Within seven days following termination or expiration of this
\n Agreement, Critical shall return all data provided by CRC for the
\n Modeling and all Modeling results. Thereafter, within said seven
\n day period, Critical shall destroy all copies of the Modeling
\n Data provided by CRC and the Modeling results which Critical has
\n in its possession.<\/p>\n
XII. DEFAULT
\n ——-<\/p>\n
a. By CRC:
\n ——-<\/p>\n
1. An Event of Default by CRC shall occur hereunder if: (i) CRC
\n fails to make payments as defined herein or to perform any other
\n condition of this Agreement, which shall continue for a period
\n thirty (30) business days following written notice thereof, (ii)
\n CRC fails within forty-five (45) days after the commencement of
\n any proceeding against CRC seeking any reorganization
\n arrangement, composition, readjustment, liquidation, dissolution,
\n or similar relief under any present or future statute, law,
\n regulation, to obtain the dismissal of such proceeding or (iii)
\n if a trustee or receiver is appointed or liquidation proceedings
\n are initiated with respect to all or a substantial portion<\/p>\n
-8-<\/p>\n
of the properties of CRC, without the consent of Critical, and
\n CRC is unable to vacate such appointment within forty-five (45)
\n days.<\/p>\n
b. By Critical:
\n ————<\/p>\n
1. An Event of Default by Critical shall occur hereunder if: (i)
\n Critical fails to provide Services as defined in Article I or
\n Sites as set forth in Appendix A for reasons other than force
\n majeure, or the acts or omission of CRC, or fails to perform any
\n other covenant or condition of this Agreement, and Critical is
\n unable to cure or remedy any such deficiency within thirty (30)
\n business days following receipt of written notice of such
\n deficiency by CRC, (ii) Critical fails within forty-five (45)
\n days after the commencement of any proceeding against Critical
\n seeking any reorganization arrangement, composition,
\n readjustment, liquidation, dissolution, or similar relief under
\n any present or future statute, law, regulation, to obtain the
\n dismissal of such proceeding or, (iii) if a trustee or receiver
\n is appointed or liquidation proceedings are initiated with
\n respect to all or a substantial portion of the properties of
\n Critical, without the consent of CRC, and Critical is unable to
\n vacate such appointment within forty-five (45) days.<\/p>\n
XIII. SITE CASUALTY
\n ————-<\/p>\n
CRC shall use its best efforts to maintain a minimum of 80 sites subject
\n to this Agreement.<\/p>\n
XIV. REMEDY IN THE EVENT OF DEFAULT
\n ——————————<\/p>\n
a. By CRC:
\n ——-<\/p>\n
Upon the occurrence of an Event of Default or in case of breach by
\n CRC, Critical may cancel this Agreement, declare the entire amount of
\n any unpaid balance due under this Agreement due and payable, and use
\n all available remedies to remove CRC and its Racks and Equipment from
\n possession of the Sites by ejectment or otherwise. This remedy of
\n Critical is in addition to all other remedies at law or in equity.<\/p>\n
b. By Critical:
\n ————<\/p>\n
Upon the occurrence of an Event of Default by Critical, CRC may:<\/p>\n
1. Terminate this Agreement without further liability; and<\/p>\n
(i) exercise any other right or remedy which may be available
\n at law or in equity;<\/p>\n
-9-<\/p>\n
(ii) elect, in its sole discretion, to retain possession of all
\n or a part of the Sites, on the condition that it assumes
\n Critical’s lease obligations with the Primary Entity for
\n each respective Site that CRC retains possession of.
\n Critical may seek compensation in a court of law for any
\n leases not assumed by CRC.<\/p>\n
XV. ASSIGNMENT
\n ———-<\/p>\n
a. By Critical:
\n ————<\/p>\n
Any assignment of this Agreement by Critical without the written
\n consent of CRC shall be void, such consent shall not be unnecessarily
\n withheld.<\/p>\n
b. By CRC:
\n ——-<\/p>\n
CRC shall not assign this Agreement, except to Racal, without first
\n obtaining the written consent of Critical, which consent will not be
\n unreasonably withheld, conditioned, or delayed. Critical’s consent
\n shall be conditioned on Critical’s approval of the economic viability
\n of the proposed assignee.<\/p>\n
Notwithstanding anything to the contrary contained herein, any
\n transfer of this Agreement from CRC by merger, consolidation or
\n liquidation or any change in the ownership or power to both the
\n majority of the outstanding stock of CRC shall not constitute an
\n assignment for the purposes of this section.<\/p>\n
XVI. GOVERNING LAW: FORM
\n ——————-<\/p>\n
This Agreement shall be governed and construed in accordance with the
\n laws of the State of Michigan. The parties hereby consent and submit the
\n exclusive jurisdiction of the appropriate state or federal court serving
\n Bay County, Michigan, as to any dispute or controversy arising either
\n directly or indirectly, under or in connection with this Agreement.<\/p>\n
XVII. WAIVER
\n ——<\/p>\n
No waiver by either party of any default shall operate as a waiver of any
\n other default or of the same default on a future occasion. No delay,
\n course of dealing or omission on the part of either party in exercising
\n any right or remedy shall operate as a waiver thereof, and no single or
\n partial exercise by either party of any right or remedy shall preclude
\n any other or further exercise thereof or the exercise of any other right
\n or remedy.<\/p>\n
XVIII. SEVERABILITY
\n ————<\/p>\n
If any provision or provisions of this Agreement shall be held to be
\n invalid, illegal or unenforceable, the validity, legality and
\n enforceability of the remaining provisions shall not in<\/p>\n
-10-<\/p>\n
any way be affected or impaired thereby, provided such provision still
\n expresses the intent of the parties. If the intent of the parties cannot be
\n preserved, the Agreement shall either be renegotiated or rendered null and
\n void.<\/p>\n
XIX. NOTICES
\n ——-<\/p>\n
Any notices or communications given or required under this Agreement shall
\n be sufficiently given if delivered personally, in writing or sent by telex
\n or facsimile, federal express, registered or certified mail, postage
\n prepaid, to the other party at the following address:<\/p>\n
TO: Critical Technologies<\/p>\n
———————
\n St. Louis, MO
\n ——-
\n Attn:<\/p>\n
Timothy R. Huff
\n 131 Jefferson Street
\n Charleston, MO 63301<\/p>\n
TO: Concentric Research Corporation
\n 400 Forty First Street
\n Bay City, MI 48708
\n Attn: President<\/p>\n
With a copy to:<\/p>\n
Susan M. Cook
\n Lambert, Leser, Cook, Schmidt & Giunta, P.C.
\n 309 Davidson Building, P.O. Box 835
\n Bay City, MI 48707-0835<\/p>\n
Such notice or other communications shall be deemed received (a) on the
\ndate delivered, if delivered personally; or (b) upon receipt, if sent by telex
\nor facsimile, federal express or (c) three (3) business days after being sent,
\nif sent registered or certified mail.<\/p>\n
XX. ENTIRE AGREEMENT
\n —————-<\/p>\n
The terms and conditions contained in this Agreement, and the referenced
\n ——————
\n Addendums which are hereby incorporated herein, shall be applicable to all
\n ———————————————-
\n Optimum Location Requests and Site Orders during the effectiveness of this
\n Agreement whether referenced in same or not. This Agreement expresses the
\n entire understanding and agreement of the parties with reference to the
\n subject matter hereof, and is a complete and exclusive statement of the
\n terms of this Agreement, and no representations or agreements modifying or
\n supplementing the terms of<\/p>\n
-11-<\/p>\n
this Agreement shall be valid unless in writing, signed by persons
\n authorized to sign agreements on behalf of both parties.<\/p>\n
-12-<\/p>\n
IN WITNESS THEREOF, this Agreement was entered into as of the day and year
\nfirst written above.<\/p>\n
CRITICAL TECHNOLOGIES<\/p>\n
BY: \/s\/ James F. Crowe
\n ——————————-<\/p>\n
ITS: President, as President
\n ——————————<\/p>\n
DATE: November 1, 1994
\n —————————–<\/p>\n
CONCENTRIC RESEARCH CORPORATION<\/p>\n
BY: \/s\/ Donald I. Schutt
\n ——————————-<\/p>\n
ITS: Chief Operating Officer
\n ——————————<\/p>\n
DATE: November 1, 1994
\n —————————–<\/p>\n
-13-<\/p>\n
APPENDIX<\/p>\n
A. Electrical<\/p>\n
1. One 30 Amp 120 Volt Single phase dedicated circuit with MEMA space LB-
\n 30R for each communication equipment rack. Additional circuits required for
\n an independent air conditioning unit should the site’s air conditioning be
\n turned off for any amount of time.<\/p>\n
2. The service must by 24 hours per day, seven days a week, every day of
\n the year without interruption.<\/p>\n
B. Physical space<\/p>\n
1. Each telecommunications rack needs 24″ width, 26″ depth, 6′ height.<\/p>\n
2. Each telecommunications rack shall have 2′ front and rear access at
\n all times.<\/p>\n
3. Each telecommunications rack requires at least 1′ clearance between
\n the interior ceiling and the top of the rack.<\/p>\n
4. Each closet shall have a 4′ x 4’3\/4″ plywood backboard (or equivalent
\n as per the Local Exchange Carrier’s specifications) painted black to be
\n within 5′ of the telecommunications rack(s).<\/p>\n
C. Environment<\/p>\n
1. Air conditioning is a requirement for all telecommunications racks and
\n should be on at all times.<\/p>\n
2. The operating environment shall comply with all environmental
\n specifications as published in Racal’s technical documentation.<\/p>\n
3. There shall be suitable electrical lighting as required for service.<\/p>\n
4. There shall be a key entry lock on the cabinet door to restrict access
\n to the cabinet. <\/p>\n
D. Access<\/p>\n
1. Access to the telecommunications closet shall be provided on a 7 day a
\n week 24 hour a day basis all days of the year.<\/p>\n
2. Access to the telecommunications closet shall be provided to (a) CRC
\n authorized personnel (b) Racal authorized personnel and (c) Local Exchange
\n Carrier personnel within 4 hours of notification.<\/p>\n
ANY CHANGES REQUIRING OR PERTAINING TO INSIDE WIRING, WHETHER REQUESTED OR
\n DIRECTED BY A LOCAL EXCHANGE CARRIER OR OTHERWISE, SHALL BE THE
\n RESPONSIBILITY OF CRITICAL TECHNOLOGIES.<\/p>\n
-2-<\/p>\n
EXHIBIT I<\/p>\n
Scope
\n——<\/p>\n
. Software Development Management
\n . Manage registration development for Intrust
\n . Manage host system software upgrade required for escalating subscriber base<\/p>\n
– Business requirements
\n – Technical requirements
\n – General Analysis and design
\n – Coding
\n – Integration and testing
\n – Beta testing
\n – Implementation testing<\/p>\n
SCHEDULE 1<\/p>\n
to Employee Services and Staffing Agreement
\n Dated as of the _____ day of _____________, 1995
\n by and between Concentric Network Corporation (“CNC”) and
\n Critical Technologies Incorporated (“CTI”) (the “Agreement”)<\/p>\n
The following provisions dealing with Share Options (as defined in the
\nAgreement) shall be deemed part of the Agreement as if fully set forth therein.<\/p>\n
1. Compliance with SEC Rule 504. CNC agrees that it will take all
\n —————————-
\nreasonable steps to comply with Rule 504 of Regulation D (“Regulation D”)
\npromulgated by the Securities and Exchange Commission (“SEC”) under the
\nSecurities Act of 1933 (the “Act”) so long as CNC is not subject to the
\nreporting requirements of Section 13 or 15(d) of the Securities Exchange Act of
\n1934 (the “Exchange Act”). These steps will include, but not be limited to:<\/p>\n
a. CNC will timely file a notice on Form D with the SEC.<\/p>\n
b. CNC will, on an ongoing basis, provide to holders of Options
\n financial and other information concerning CNC reasonably necessary to
\n enable holders of Options to make fully informed decisions concerning
\n exercise of their Options and investment in shares of CNC Common Stock
\n (“Shares”).<\/p>\n
2. At such time as CNC becomes subject to the reporting requirements of
\nSection 13 or 15(d) of the Exchange Act, CNC shall:<\/p>\n
a. Register with the SEC on Form S-8 those Options and Shares
\n subject to Options held by leased employees hereunder or other principals
\n or employees of CTI who are advisors or consultants to CNC;<\/p>\n
b. take all steps reasonably necessary to comply with Rule 505 of
\n Regulation D with respect to Options and Shares subject to Options held by
\n persons who are not leased employees hereunder or otherwise advisors or
\n consultants to CNC. Such compliance will include providing to such Option
\n holders on a timely basis copies of all reports and proxy materials filed
\n by CNC with the SEC, all Annual Reports and other materials provided by CNC
\n generally to its shareholders, and any other information reasonably
\n necessary to comply with the information requirements of Rules 502 and 505
\n of Regulation D.<\/p>\n
3. “Piggy-Back” Registration Rights. If, prior to the second anniversary
\n ——————————–
\nof the date on which CNC becomes subject to the reporting requirements of
\nSection 13 or 15(d) of the Exchange Act, CNC files with the SEC a Registration
\nStatement to register Shares under the Act (other than a Registration Statement
\non Form S-4 or S-8), holders of Shares purchased upon exercise of Options which
\nShares have, at the time of filing of such Registration Statement, been held for
\nless than two years and are “restricted securities” (as defined in Rule 144
\npromulgated by the SEC), shall be given the right to include such Shares in
\nCNC’s Registration Statement and sell such Shares in the offering made pursuant
\nto such Registration Statement (“Registration Rights”) on substantially the
\nfollowing terms:<\/p>\n
a. CNC will bear the expenses of registration of such Shares other
\n than underwriters’ discounts and commissions with respect thereto, and fees
\n and expenses of counsel to the selling shareholders.<\/p>\n
b. Such selling shareholders will execute the Underwriting Agreement
\n pursuant to which Shares are sold in the registered offering, which
\n Underwriting Agreement may contain indemnification and other provisions in
\n substantially the form normally contained in such agreements.<\/p>\n
-2-<\/p>\n
c. The Registration Rights will be available only with respect to
\n the number of Shares the underwriters indicate, in their judgment, will not
\n adversely impact the registered offering.<\/p>\n
-3-<\/p>\n
September 30, 1996<\/p>\n
Mr. Mike Anthofer
\nVice President & CFO
\nConcentric Network Corp.
\n10590 N. Tantau
\nCupertino, California 95014<\/p>\n
C R I T I C A L
\n TECHNOLOGIES
\nFax No. 408-342-2876 I N C O R P O R A T E D<\/p>\n
Dear Mike:<\/p>\n
Below I have outlined the changes to our agreement. Please indicate your
\nconcurrence with these modifications by signing below. The specific changes for
\nour “Employee Service and Staffing Agreement” are:<\/p>\n
1) Delete paragraph 1d, subsections 4 and 5.<\/p>\n
2) Waive the notice of an extension in paragraph 2.0 and extend the agreement
\n for an additional two (2) years (October 31, 1999).<\/p>\n
3) Change section 4f (second paragraph) so that the upcharge Is changed to
\n [*] instead of [*] for staff positions currently on board as of the
\n signing of the agreement (see attached listing). Change the upcharge to be
\n only on base salaries, payroll taxes and benefits. Other expenses
\n associated with hiring will be passed through at cost. Said taxes and
\n benefits are currently billed at [*] of base salaries; therefore, the
\n total markup over base salaries is [*]. Additional hiring over those
\n positions noted on the attached list will be at a [*] upcharge or
\n currently [*] over base salaries. Additionally, CNC commits to a
\n minimum level of staffing equal to the staffing level as of the date of
\n signing of this document.<\/p>\n
4) Delete paragraph 6(a).<\/p>\n
5) Delete 8(a)(4) and change 8(a)(3) so that said fees are no longer due
\n unless sites are added after Installation of the super POPs currently
\n scheduled.<\/p>\n
6) As a consideration of this agreement, the CNC board must agree that all
\n “performance shares” or options have been earned (see attached
\n “Performance Summary”). Said options and all other<\/p>\n
————————–<\/p>\n
[*] Certain information on this page has been omitted and filed separately
\nwith the Securities and Exchange Commission. Confidential treatment has been
\nrequested with respect to the omitted portions.<\/p>\n
options under the original agreement to be granted and delivered within 10
\n days of the first board meeting following the signing of this agreement.
\n Additionally, CNC shall provide an option agreement acceptable to CTI with
\n which an option holder may execute such options. Said option agreement to
\n be provided within 10 days of the board meeting following the signing of
\n this agreement. Failure of the CNC board to approve these two items will
\n nullify this agreement.<\/p>\n
7) It is agreed that paragraph 10 of the existing contract shall provide that
\n CTI shall have the right to assign or transfer their duties, obligations
\n and all benefits under the contract to a merger or acquiring entity so
\n long as that entity is not Netcom, PSI, UUNET, ANS, ATT Worldcom, MFB,
\n GTE, Ameritech, PAC Bell, SBC, US West, NYNEX, BellSouth, Bell Atlantic,
\n Sprint Internet\/Intranet Services, MCI Internet\/Intranet Services, and
\n CompuServe Network Services. Should CTI be acquired by one of the named
\n competitors, CNC may at Its option exercise the “buy out option” and pay
\n CTI a cash payment equal to [*] of the remaining value (an a present
\n value basis at prime) of its profit and any unpaid relocation expenses
\n (see “e” below). Said option to be exercised with ninety (90) days of
\n notice by CTI of intention to merge with a competitor of CNC.<\/p>\n
8) CTI further agrees to limit access to CNC proprietary information to only
\n those CTI employees who have a need to know.<\/p>\n
9) In order to provide an orderly transition at the end of the agreement, CTI
\n agrees to locate all personnel and resources used to support CNC to a new
\n subsidiary and transfer that entity to CNC according to the following
\n plan:<\/p>\n
a. CTI will create a wholly owned subsidiary. CTI will transfer all
\n existing CNC staff to this entity. Additionally, all new CNC related
\n staff will be hired by this subsidiary for those CNC operations
\n housed in St. Louis, Missouri.<\/p>\n
b. CTI will transfer its rights (including leasehold improvements)
\n under Its lease to 3324 Hollenberg Drive to this new subsidiary.
\n Said lease to have at least five (5 years remaining at the
\n termination of this agreement at a cost not to exceed [*] per
\n square foot (triple net). Any office equipment currently owned by
\n CTI and used exclusively by the subsidiary employees will also be
\n transferred. Additional office equipment for current or future
\n employees of the subsidiary will be paid for by CNC and remain their
\n assets.<\/p>\n
c. CTI will transfer a nonexclusive license to its software for network
\n modeling, site management. and telco reconciliation to this new
\n entity.<\/p>\n
————————-<\/p>\n
[*]Certain information on this page has been omitted and filed separately
\nwith the Securities and Exchange Commission. Confidential treatment has been
\nrequested with respect to the omitted portions.<\/p>\n
d. CNC shall acquire title to this new subsidiary at the and of this
\n agreement and CTI will vacate the promise on 3324 Hollenberg Drive.
\n Both parties agree to execute such documents as may be necessary to
\n minimize the tax effect to both entities.<\/p>\n
e. CNC shall pay CTI [*] for relocation expense and the assets of
\n the new subsidiary. This amount will be paid for costs as needed by
\n CTI to relocate its other business to other facilities. CTI will
\n provide to CNC on at least a quarterly basis their projected needs
\n for the next six months. All of these funds could be paid in advance
\n of the completion of this agreement. Any funds not so advanced will
\n be paid at the point where ownership of the subsidiary transfers to
\n CNC.<\/p>\n
f. CTI agrees to reimburse CNC an amount equal to 35% of the annual
\n salary of any CNC employee (acquired through the acquisition of the
\n subside”) that returns to CTI or its other subsidiaries within one
\n year of said acquisition.<\/p>\n
g. CTI agrees to use its best efforts to ensure that all employees of
\n the subsidiary stay with the entity when the transfer to CNC occurs.<\/p>\n
10) Sections 4 and 7 shall be modified to require joint agreement by both CTI
\n and CNC on all matters relating to the hiring and compensation of the
\n employees employed by the subsidiary.<\/p>\n
11) In the event CNC determines that it requires additional local access POP
\n locations, before CNC executes an agreement with any other person to
\n provide such locations to CNC, CTI will negotiate for a period of thirty
\n (30) days with CNC for CTI to provide such locations. In the event that
\n CTI and CNC are unable to reach agreement within such 30 days, CNC shall
\n thereafter be free to execute an agreement with any other person to
\n provide such locations to CNC so long as the terms of such agreement when
\n considered in the aggregate (including such matters as price, facilities,
\n response times and other relevant factors bearing on the overall value of
\n such an arrangement to CNC), are no more favorable to such other person
\n that the most favorable terms offered by CNC in writing to CTI during such
\n 30 days of negotiation.<\/p>\n
12) CTI agrees to provide other consulting services to CNC at a rate not to
\n exceed the lowest offered by CTI to other customers requiring similar
\n services (including duration or quantity of such services).<\/p>\n
————————-<\/p>\n
[*] Certain information on this page has been omitted and filed separately
\nwith the Securities and Exchange Commission. Confidential treatment has been
\nrequested with respect to the omitted portions.<\/p>\n
13) CNC and CTI agree to mutually recommend each other as business
\n opportunities arise. Specifically, CNC will recommend CT1 services, as
\n appropriate, to STET\/TMI.<\/p>\n
14) Effective upon the closing of any Acquisition of CTI, CTI shall pay, or
\n cause the person acquiring CTI to pay, to CNC the sum of [**] Such
\n sum shall be paid in cash unless the consideration paid to CTI or the
\n shareholders of CTI in the Acquisition consist solely or partly of
\n securities of the acquirer which can be traded on the NASDAQ National
\n Market, the New York Stock Exchange or the American Stock Exchange, in
\n which case the acquirer shall have the right to pay such amount to CNC in
\n a combination of cash and such securities in the same proportion and
\n manner that such cash and securities is paid to CTI or the shareholders of
\n CTI. Such securities shall be valued for the purposes of this agreement at
\n the average of the closing sale price of such securities for the 30
\n trading days preceding the closing of such Acquisition. In the event that
\n the total consideration for the Acquisition is paid in two or more
\n increments, the [*] to be paid to CNC shall be paid concurrently with
\n each such increment. The proportion of the [*] paid at each Increment
\n shall be the same proportion as the consideration paid at such increment
\n represents as a portion of the total consideration paid in all increments.
\n For purposes of this Agreement, an “Acquisition” shall mean any of
\n transactions or series of transactions in which all or substantially all
\n the business of CTI is transferred to another person, whether the form of
\n such transaction is a stock sale by the shareholders of CTI, a merger, a
\n consolidation or a transfer of assets.<\/p>\n
————————-<\/p>\n
[*]Certain information on this page has been omitted and filed separately
\nwith the Securities and Exchange Commission. Confidential treatment has been
\nrequested with respect to the omitted portions.<\/p>\n
If you agree with these changes, please note your acceptance below. If I can
\nclarify any of the items notes, please contact me.<\/p>\n
Accepted and Agreed: Accepted and Agreed:<\/p>\n
Critical Technologies, Inc. Concentric Network Corporation<\/p>\n
\n
\nBy: \/s\/ Matthew W. Bross By: \/s\/ Michael Anthofer
\n —————————- —————————-
\n Matthew W. Bross Michael Anthofer
\n Vice President & CEO Vice President & CFO<\/p>\nDate: 9-30-96 Date: 9-30-96
\n ————————– ————————–
\n<\/c><\/s><\/table>\n
cc: James A. Wootten
\n Michael Fallon
\n Paul W. Noblett
\n John Peters<\/p>\n
-26-<\/p>\n
EMPLOYEE SERVICES AND STAFFING AGREEMENT<\/p>\n
SECOND AMENDMENT<\/p>\n
WHEREAS: Concentric Network Corporation, a Florida corporation (“CNC”), and
\nCritical Technologies Incorporated, a Missouri corporation (“CTI”), are parties
\nto that certain Employee Services and Staffing Agreement (the “Staffing
\nAgreement dated as of November 1, 1995, and<\/p>\n
WHEREAS: CNC and CTI entered into an Extension and Amendment of the Staffing
\nAgreement on September 30, 1996 (the “Extension and Amendment”), which provides,
\namong other things, that the CNC Board of Directors must agree that all
\n“performance shares” or options to be granted under the Staffing Agreement have
\nbeen earned, and CNC must grant and deliver all option agreements under the
\nStaffing Agreement within 10 days of the first Board meeting following the
\nsigning of the Extension and Amendment, which Board meeting was held on October
\n4,1996, and<\/p>\n
WHEREAS: The Extension and Agreement further provides that failure of the CNC
\nBoard to approve said two items will nullify the Extension and Amendment, and<\/p>\n
WHEREAS: CTI and CNC agree that said option agreements should not be issued or
\ndelivered until CNC has obtained from the State of Missouri appropriate waiver,
\nexemption, clearance or qualification for such options, the obtaining of which
\nwill require more time than 10 days from October 4, 1996, and wish to amend the
\nStaffing Agreement, as amended, to enable CNC to obtain the appropriate Blue Sky
\nclearance without adverse effect on the Extension and Amendment,<\/p>\n
NOW THEREFORE, CTI and CNC hereby agree as follows:<\/p>\n
1. The Extension and Amendment is hereby amended to provide that CNC will
\npromptly apply for the necessary Missouri waiver, exemption, clearance or
\nqualification for the options and the 900,000 shares of Class A Common Stock
\nissuable upon exercise of such options, and will promptly issue option
\nagreements with respect to such options within five business days of receipt of
\nsuch waiver, exemption, clearance or qualification from the State of Missouri;
\nprovided that the vesting of such shares over the 12-month period provided in
\nthe Staffing Agreement shall not be postponed on account of the Missouri
\napplication but shall continue as provided for in the Staffing Agreement.<\/p>\n
2. As amended by the foregoing, the Staffing Agreement and the Extension and
\nAmendment shall remain in full force and effect and shall not be nullified on
\naccount of delays related to obtaining Missouri Blue Sky approval; provided,
\nhowever, that if such options are not issued on or before December 21, 1996,
\nthis Second Amendment to the Staffing Agreement shall terminate and the rights
\nof the parties shall be determined in accordance with the terms of the Employee
\nServicing and Staffing Agreement and the First Amendment thereto, as if this
\nSecond Amendment had not been executed.<\/p>\n
IN WITNESS WHEREOF, the parties have executed this Second Amendment by
\ntheir duly authorized representatives as of the date set forth below.<\/p>\n
\n\nCONCENTRIC NETWORK CRITICAL TECHNOLOGIES
\nCORPORATION INCORPORATED
\n <\/p>\nBy: \/s\/ Mike Anthofer By: \/s\/ Matthew W. Bross
\n ——————————– ——————————-<\/p>\n
Name: Mike Anthofer Name: Matthew W. Bross
\n —————————— —————————–<\/p>\n
Title: Vice President & CFO Title: Vice President
\n —————————– —————————-<\/p>\n
Date: 10-23-96 Date: 10-21-96
\n —————————— —————————–
\n<\/c><\/s><\/caption>\n<\/table>\n
AMENDMENT No. 1 TO THE COLOCATION SERVICES AGREEMENT DATED NOVEMBER 1, 1994
\nBETWEEN CONCENTRIC RESEARCH CORPORATION AND CRITICAL TECHNOLOGIES, INC.<\/p>\n
This Amendment No.1 (“Amendment”) dated as of June ___, 1997 by and between
\nConcentric Network Corporation (“CNC”), a Florida corporation with principal
\noffices at 10590 N. Tantau Avenue, Cupertino, California 95014 and Critical
\nTechnologies Incorporated (“CTI”), a Delaware corporation with principal offices
\nat 944 Anglum, Hazelwood, Missouri 63042.<\/p>\n
WITNESSETH
\n ———-<\/p>\n
WHEREAS, On November 1, 1994, CTI entered into the Colocation Services
\nAgreement (the “Agreement”) with Concentric Research Corporation, now known as
\nConcentric Network Corporation;<\/p>\n
WHEREAS, the Agreement has been modified by the parties in the past and
\nneeds to be modified to reflect the May 30, 1997 Memorandum of Understanding
\n(“MOU”) between CNC and Williams Communications Group, Inc. (“WCG”), the parent
\ncompany of CTI;<\/p>\n
WHEREAS, the parties have agreed to incorporate all prior modifications and
\nthe modifications contemplated in the MOU in this Amendment.<\/p>\n
NOW, THEREFORE, in consideration of the respective covenants and agreements
\nof the parties contained herein, the parties hereto agree as follows.<\/p>\n
1. Prior Modifications and Amendments
\n ———————————-<\/p>\n
CTI and CNC agree that this Amendment shall supersede and replace any prior
\namendments or modifications to the Agreement in their entirety. Such prior
\nmodifications and amendments shall be of no further force or effect.<\/p>\n
2. Amendments
\n ———-<\/p>\n
2.1 The term of the Agreement shall be extended until December 31, 2000.
\nThe Agreement may be terminated prior to December 31, 2000 by the mutual,
\nwritten consent of both parties. The Agreement shall automatically renew for an
\nadditional two-year period unless either party shall give one-hundred twenty
\n(120) days notice prior to the expiration of this Agreement to the other party
\nthat said party does not wish to extend the terms of this Agreement.
\nNotwithstanding the foregoing, if WCG elects not to participate in the
\n“Financing Event”, even though CNC has satisfied all conditions set forth in the
\ndefinition of “Financing Event”, the Agreement may be terminated by CNC on
\nOctober 31, 1999, if CNC provides CTI ninety (90) days prior written notice.
\nThe term “Financing Event” shall have the meaning set forth in the Amended and
\nRestated Employee Staffing and Services Agreement of even date herewith.<\/p>\n
2.2 At the termination of the Agreement, CTI will assign its rights to the
\nPOPs under the Agreement to CNC. The assignment shall be subject to CTI’s right
\nto colocate equipment.<\/p>\n
2.3 CNC may close any POP or, with the mutual agreement of CTI, migrate
\nany POP to a new location (i) not owned by WCG or its subsidiaries or (ii) not
\nmanaged by CTI during the term of the Agreement by paying to CTI the net present
\nvalue (at prime) of the remaining CTI profit on such POPs and by reimbursing CTI
\nfor any out-of-pocket costs associated with leaving the former POP location
\nprior to the end of the term of the Agreement. Notwithstanding the foregoing,
\nif CNC and CTI agree to migrate a CNC POP to a new location either (i) owned by
\nWCG or its subsidiaries or (ii) managed by CTI during the term of the Agreement,
\nthen CNC shall only be required to reimburse CTI for any out-of-pocket costs
\nassociated with leaving the former POP location prior to the end of the term of
\nthe Agreement. In this regard, CTI and CNC will work together to migrate a POP
\nor POPs, as identified by CNC, to new central office quality colocate space
\nunder the Agreement as soon as commercially reasonable. Further, CTI agrees
\nthat the new central office quality colocate space shall be charged to CNC at
\ncommercially competitive rates.<\/p>\n
2.4 CNC will pay the amounts set forth in the Agreement based upon a
\nminimum of one hundred (100) POP sites at all times during the term of the
\nAgreement.<\/p>\n
2.5 CTI will continue to be responsible for provisioning new POP sites for
\nCNC. CTI will be paid [*] for each installation. All direct costs of any new
\nPOP shall be paid by CNC.<\/p>\n
2.6 CTI shall be allowed to colocate equipment in the CNC POPs controlled
\nby CNC based upon a percentage of floor space utilized. Such cost to CTI to be
\nthat percentage of the Colocate cost plus twenty percent [*] of the fees paid
\nby CNC to the party leasing the colocate space for square footage in the POP
\nlocations.<\/p>\n
2.7 In the event that CNC determines that it requires additional local
\naccess POP locations, before CNC executes an agreement with any other person to
\nprovide such locations to CNC, CTI will negotiate for a period of thirty (30)
\ndays with CNC for CTI to provide such locations. In the event that CTI and CNC
\nare unable to reach agreement within such 30 day period, CNC shall thereafter be
\nfree to execute an agreement with any other person to provide such locations to
\nCNC so long as the terms of such agreement, when considered in the aggregate
\n(including such matters as price, facilities, response times and other relevant
\nfactors bearing on the overall value of such an arrangement to CNC), are no more
\nfavorable to such other person than the most favorable terms offered by CNC in
\nwriting to CTI during such 30 days of negotiation.<\/p>\n
2.8 New paragraphs c. and d. shall be added to Article XIV of the
\nAgreement. These paragraphs shall read as follows:<\/p>\n
c. Procedure:
\n ——— <\/p>\n
[*] Certain information on this page has been omitted and filed separately
\nwith the Securities and Exchange Commission. Confidential treatment has been
\nrequested with respect to the omitted portions.<\/p>\n
-2-<\/p>\n
An Event of Default by either party shall not have occurred until the
\n non-defaulting party shall notify the defaulting party, in writing, of the
\n default, setting forth the nature thereof. Said notice shall be mailed to
\n the company at the designated address for notices as provided in Section 4
\n of the Amendment. The defaulting party shall have thirty (30) days from the
\n date of the notice to cure said defect or default.<\/p>\n
d. Limitation of Liability:
\n ———————– <\/p>\n
Except as expressly and specifically set forth in another paragraph to this
\n Agreement, neither party shall be liable to the other party for any lost
\n profits; any loss of business; any cost of replacement services; or any
\n indirect, consequential, incidental or special losses or damages of any
\n kind or nature whatsoever, due to an Event of Default.<\/p>\n
3. Successors and Assigns
\n ———————-<\/p>\n
The Agreement, as amended, and all rights hereunder shall inure to the
\nbenefit of and be enforceable by each party’s successors and permitted assigns.
\nNo party may assign or transfer this Agreement or transfer its rights or
\nobligations hereunder without the prior written consent of the other party
\n(which shall not be unreasonably withheld) except to an affiliate.<\/p>\n
4. Notices
\n ——-<\/p>\n
For the purposes of this Agreement and the Amendment, notices and all other
\ncommunications provided for in the Agreement and Amendment shall be in writing
\nand shall be deemed to have been duly given or delivered upon receipt after
\npersonal delivery or mailing by registered mail, return receipt requested,
\npostage prepaid, address as follows:<\/p>\n
(a) If to CTI:<\/p>\n
Critical Technologies Incorporated
\n Attn: Gordon Martin
\n 111 East First Street
\n Tulsa, OK 74103-2808
\n Phone: <\/p>\n
with a copy to:<\/p>\n
General Counsel
\n Williams Telecommunications Group, Inc.
\n One Williams Center
\n Suite 4000
\n Tulsa, OK 74172
\n Phone:
\n Facsimile: <\/p>\n
-3-<\/p>\n
(b) If to CNC:<\/p>\n
Concentric Network Corporation
\n 10590 N. Tantau Avenue
\n Cupertino, CA 95014
\n Attention: Chief Financial Officer
\n Phone: (408) 342-2800
\n Facsimile: (408) 342-2810<\/p>\n
with a copy to:<\/p>\n
Wilson, Sonsini, Goodrich & Rosati
\n 650 Page Mill Road
\n Palo Alto, CA 94304
\n Attention: David Segre
\n Facsimile: <\/p>\n
or to such other address as any party may have furnished to the other in writing
\nin accordance herewith.<\/p>\n
5. Amendment
\n ———<\/p>\n
No amendment or modification of this Agreement, as amended, or any of its
\nprovisions shall be binding upon any party unless made in writing and signed by
\nall of the parties hereto.<\/p>\n
6. Waiver
\n ——<\/p>\n
The performance of any condition or obligation imposed hereunder upon any
\nparty hereto may be waived only upon the written consent of the parties hereto.
\nSuch waiver shall be limited to the terms thereof and shall not constitute a
\nwaiver of any condition or obligation of the other party under this Amendment.
\nAny failure by any party to this Amendment to enforce any provision shall not
\nconstitute a waiver of that or any other provision of this Amendment.<\/p>\n
7. Third Party Rights
\n ——————<\/p>\n
This Amendment shall not inure to the benefit of any third party other than
\nCTI and CNC and valid successors or assigns of a party hereto or thereto.<\/p>\n
-4-<\/p>\n
IN WITNESS WHEREOF, the parties have executed this Amendment by their duly
\nauthorized representatives as of June 19, 1997.<\/p>\n
CONCENTRIC NETWORK CRITICAL TECHNOLOGIES
\nCORPORATION INCORPORATED<\/p>\n
By: \/s\/ By: \/s\/
\n ——————————- ——————————-<\/p>\n
Name: Name:
\n —————————– —————————–<\/p>\n
Title: Title:
\n —————————- —————————-<\/p>\n
-5-<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7174],"corporate_contracts_industries":[9519],"corporate_contracts_types":[9613,9620],"class_list":["post-42264","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-concentric-network-corp","corporate_contracts_industries-telecommunications__telephone","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42264","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42264"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42264"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42264"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42264"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}