INTERCOMPANY SERVICES AGREEMENT
INTERCOMPANY SERVICES AGREEMENT ("Agreement") dated as of October 27,
2000 by and between BEI TECHNOLOGIES, INC., a Delaware corporation
("Technologies") and OPTICNET, INC., a Delaware corporation ("OpticNet").
R E C I T A L S
WHEREAS, prior to the date hereof the parties hereto have entered into
that certain Technology Transfer and Distribution Agreement (the "Technology
Transfer and Distribution Agreement") for the contribution of certain technology
and related assets by Technologies to OpticNet and the issuance by OpticNet to
Technologies in exchange therefor of 3,616,000 shares of the Voting Common Stock
of OpticNet, par value $0.0001 per share;
WHEREAS, in connection with the Technology Transfer and Distribution
Agreement, OpticNet desires to obtain certain services, personnel support,
provision of facilities, use of equipment and a line of credit from Technologies
and Technologies desires to provide same to OpticNet on the terms set forth
herein; and
NOW, THEREFORE, in consideration of the mutual covenants expressed
herein, the parties agree as follows:
1. USE OF ADMINISTRATIVE FACILITIES.
The parties presently share certain administrative facilities
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Shared Facilities"). The parties hereby agree that use of the Shared Facilities
by OpticNet is at the discretion of Technologies, and such use by OpticNet may
be terminated by Technologies pursuant to sixty (60) days advance written notice
by Technologies to OpticNet stating the same. In consideration for the use of
the Shared Facilities, OpticNet shall pay a fee to Technologies, as provided in
Section 5 hereof.
2. USE OF EQUIPMENT.
a. Technologies will assign to OpticNet the lease
obligation(s) relating to the equipment set forth on Exhibit A hereto, which
Exhibit A shall attach as Schedule A-1 thereto such actual lease obligation(s)
(the "Assigned Equipment Leases") on the same terms and conditions set forth in
such Assigned Equipment Leases. The equipment leased to OpticNet under the
Assigned Equipment Leases shall be used by OpticNet for optical component
product development and production. The assignment to OpticNet of such Assigned
Equipment Leases shall expire by its terms on September 30, 2001, provided that
such lease term hereunder may otherwise be extended or earlier terminated by
mutual consent of the parties hereto. Such equipment will be provided by
Technologies for OpticNet's installation, control and use at OpticNet's
facility. From time to time the parties hereto may agree by mutual written
consent to modify Exhibit A to allow for the direct lease or assignment, as the
case may be, to OpticNet by Technologies of additional equipment or additional
lease obligations. OpticNet shall make payments to Technologies on the first of
each month commencing in the month immediately following the date hereof, which
payments shall be pursuant to the schedule incorporated into
1.
Exhibit A. OpticNet will be responsible for all costs associated with the
equipment listed on Exhibit A, including all necessary or advisable repairs and
maintenance.
b. To the extent that any of the equipment provided under such
Assigned Equipment Leases may have a residual purchase option, at such time that
such residual purchase option may first be exercisable, the purchase option
shall be offered to OpticNet by Technologies, provided that (i) OpticNet shall
pay to Technologies a sum equal to all lease payments made by Technologies prior
to the date hereof in connection with such Assigned Equipment Leases and (ii)
the exercise of such purchase option by OpticNet shall be permissible under the
terms of the relevant Assigned Equipment Lease.
c. In consideration of the agreement by Technologies to lease
to OpticNet the equipment set forth on Exhibit A, OpticNet hereby agrees to
permit the use of such equipment by Technologies' personnel or representatives
of Technologies' ▇▇▇▇▇, Inc. ("▇▇▇▇▇") subsidiary, as the case may be (the
"Shared Equipment"), following reasonable notice to OpticNet and provided that
such use shall not interfere with the operations of OpticNet. OpticNet shall be
entitled to reduce the lease payments to Technologies applicable to such Shared
Equipment on a pro-rata basis, based upon the actual usage time of such Shared
Equipment by personnel of Technologies or ▇▇▇▇▇, as the case may be, compared to
the total available usage time of such Shared Equipment, based on an eight-hour
business day.
d. In the event of a Change of Control of Technologies,
OpticNet shall have the right to purchase from Technologies the remaining
obligation under such Assigned Equipment Leases, or in the case of equipment
owned by Technologies and directly leased to OpticNet, purchase the subject
equipment, and refuse further access to the equipment in its facility to
Technologies or ▇▇▇▇▇ personnel or their successors, as the case may be. In the
event of a Change of Control of OpticNet, Technologies will have the right to
terminate its agreement to provide the equipment set forth on Exhibit A to
OpticNet. A "Change in Control" shall be defined as the occurrence of: (i) any
consolidation or merger of Technologies or OpticNet, as the case may be, with or
into any other corporation or other entity or person, or any other corporate
reorganization, in which the stockholders of Technologies or OpticNet, as the
case may be, immediately prior to such consolidation, merger, reorganization or
recapitalization, own less than 65% of the surviving entity's voting securities
immediately after such consolidation, merger, reorganization or
recapitalization, or any transaction or series of related transactions resulting
in the transfer of control of in excess of 65% of the voting securities of
Technologies or OpticNet, as the case may be; or (ii) the sale or an agreement
by Technologies or OpticNet, as the case may be, to sell all or substantially
all of its assets;
3. GENERAL & ADMINISTRATIVE.
Commencing as of the effective time for the distribution (the
"Effective Time"), as set forth in the Technology Transfer and Distribution
Agreement, Technologies hereby agrees to perform certain specialized
administrative services for OpticNet as more particularly detailed below. Such
services are to be performed by Technologies' Human Resources, Corporate
Accounting and Administrative personnel and management for the transition period
set forth below.
a. Human Resources. A senior manager designated by the
corporate secretary of Technologies will provide management consultation,
training and oversight of OpticNet's personnel regulatory affairs. The specified
affairs are those pertaining to: employment, termination, layoffs, discipline,
worker's compensation, and related areas. This assistance shall continue until
September 30, 2001, or such earlier or later date as may be mutually agreed upon
by the parties hereto.
b. Employee Benefits. A member of Technologies' staff jointly
designated by Technologies and OpticNet will oversee, on behalf of OpticNet, the
administration of all employee fringe benefit programs, payroll systems, and IRS
qualified and non-qualified retirement plans in which OpticNet employees shall
participate, whether the same shall be provided in the name of OpticNet or in
the name of Technologies to qualified employees of OpticNet, all in accordance
with the terms of the Technology Transfer and Distribution Agreement. These
programs include life, medical, dental and disability income benefits; and
participation in Technologies' 401(k) retirement savings plan and other Employee
Welfare Benefit Plans listed on Schedule C to the Technology Transfer and
Distribution Agreement by OpticNet eligible employees. These services will
continue, as to participation in the Technologies 401(K) Plan, until the 401(k)
Participation Termination Date, and as to all other Employee Welfare Benefit
Plans, until the Benefits Participation Termination Date, each as defined in the
Technology Transfer and Distribution Agreement.
c. Insurance Coverage. A member of Technologies' staff jointly
designated by Technologies and OpticNet will oversee, on behalf of OpticNet, the
maintenance of the insurance coverage for OpticNet set forth on Schedule B to
the Technology Transfer and Distribution Agreement. Maintenance of the interim
insurance coverage will include risk assessment, assurance of policy coverage
and liaison with the insurance broker(s) and carrier(s) on behalf of OpticNet.
Premiums due from OpticNet shall be invoiced separately by the insurance
provider and shall be promptly forwarded by Technologies to OpticNet. This
service will continue until September 30, 2001, or such earlier or later date as
may be mutually agreed upon by the parties hereto.
d. Audit and Tax Preparation. Technologies' corporate
accounting staff will supervise and coordinate necessary financial audits and
tax preparation activities for the accounts of OpticNet in conjunction with such
auditors as OpticNet may designate and the orderly handoff of these activities
to such audit and federal and state tax service provider(s) selected by OpticNet
when supervision and coordination of these activities by Technologies staff
shall cease. This liaison and oversight will continue through the completion of
the fiscal year end audits and tax returns for the fiscal year following the
year in which the separation occurs, provided that the provision of such
services may be earlier terminated or extended upon mutual agreement of the
parties hereto.
e. SEC Compliance Reporting. In the event that OpticNet shall
register its shares of Common Stock under the Securities Exchange Act of 1934
during the term of this Agreement, and/or list its shares for trading with a
securities exchange, Technologies' corporate staff responsible for 10-K, 10-Q
and preparation and filing of proxy statements will assist OpticNet by preparing
for filing by OpticNet such applicable SEC mandated reports, and any reports
required by any securities exchange with which OpticNet may list its shares for
trading.
3.
This service will continue for no more than five fiscal quarters following the
date of separation, as the case may be, unless earlier terminated or extended
upon mutual agreement of the parties hereto.
4. LINE OF CREDIT.
a. Technologies shall make available advances to OpticNet from
time to time until September 30, 2002, not to exceed at any time the aggregate
principal amount of Two Million Dollars ($2,000,000) (the "Line of Credit"), the
proceeds of which shall be used to finance working capital requirements, capital
expenditures and other general corporate purposes. Provided, however, that
availability of advances under such Line of Credit shall be subject to subject
to (1) Technologies' own ability to borrow under the terms and conditions of
that certain Credit Agreement between BEI Technologies, Inc. and its
wholly-owned subsidiary, BEI Sensors & Systems Company, Inc., and ▇▇▇▇▇ Fargo
Bank, National Association dated as of December 15, 1998, as amended from time
to time (the "Credit Agreement"), (2) no event of default having occurred as
defined within the Credit Agreement and being continuing and (3) the advance of
sums under such Line of Credit not causing an event of default to occur for
Technologies under that certain Credit Agreement. OpticNet's obligation to repay
advances under the Line of Credit shall be evidenced by a promissory note
substantially in the form attached as Exhibit B hereto (the "Revolving Line of
Credit Note").
b. OpticNet may from time to time during the term of the Line
of Credit borrow, partially or wholly repay its outstanding borrowings without
penalty, and reborrow, provided that the total outstanding borrowings under the
Line of Credit shall not at any time exceed $2,000,000. OpticNet shall provide
five (5) business days prior written notice to Technologies of any intended
borrowing under such Line of Credit, including the amount of such borrowing and
the effective date thereof.
c. Interest shall accrue on the outstanding principal balance
owing under the Line of Credit at the rate of prime plus 1.5% per annum
(computed on the basis of a 360-day year, actual days elapsed). Interest accrued
on borrowings shall be payable on the first day of each calendar quarter.
5. FEES & PAYMENTS
a. OpticNet shall pay an aggregate fee to Technologies for the
shared facilities described in Section 1 hereof and for the managerial services
described in Section 3 hereof. The amount to be paid shall be in accordance with
the rates attached on Exhibit C hereto. In addition, OpticNet shall reimburse
Technologies for any costs and expenses accrued prior to the date of separation
and invoiced following the date hereof as the same relate to professional
services such as audit and tax preparation support, employee benefit record
keeping and financial advisory services, legal advice, and insurance policy
premiums for the benefit of OpticNet.
b. Fees for Technologies' services shall be payable monthly,
pro rated for fractional periods and invoiced in advance before the 10th of each
month. OpticNet agrees to pay Technologies' invoices net within 30 days.
Additional costs and expenses incurred for professional services shall be
invoiced directly to OpticNet. Where practical considerations
4.
dictate that Technologies should pay for the professional services directly, or
on behalf of OpticNet, OpticNet agrees to reimburse Technologies immediately
following receipt of Technologies' invoice which details the charges.
c. It is the intent of the parties that the fees shall bear a
reasonable relationship to actual costs. The need for continued service (if any)
and the fees (if any) therefore shall be reviewed after four quarters and
adjusted subject to arms length negotiation confirmed in writing.
6. TERMINATION.
Either party may, in its discretion, terminate this Agreement
in the event that the other party breaches any material obligation hereunder,
which breach continues for a period of sixty (60) days after written notice
thereof is delivered by the non-breaching party. OpticNet may terminate this
Agreement at will, thirty (30) days after written notice of such intent to
terminate has been given to Technologies. In the event of termination, the fees
due Technologies shall accrue through the date of termination. Provided further,
that in the event of a Change in Control of OpticNet, as defined in Section 2.d.
hereof, Technologies may terminate this agreement at will upon thirty (30) days
written notice to OpticNet of such intent to terminate.
7. CONFIDENTIALITY AND DISPUTE RESOLUTION.
Each of the confidentiality provision and dispute resolution
provision set forth in Section 3.4 and Article 4, respectively, of the
Technology Transfer and Distribution Agreement shall apply and govern as to
performance of and disputes regarding this Agreement.
8. FINAL AGREEMENT
This Agreement sets forth the complete and final understanding
of the parties hereto and supersedes all prior agreements and understandings,
whether written or oral, between the parties hereto relating to the subject
matter hereof.
9. NOTICES.
All notices, requests and other communications to Technologies
or OpticNet hereunder shall be in writing (including telecopy or similar
electronic transmissions), shall refer specifically to this Agreement and shall
be personally delivered or sent by telecopy or other electronic facsimile
transmission or by registered mail or certified mail, return receipt requested,
postage prepaid, in each case to the respective address specified below (or such
other address as may be specified in writing to the other party hereto):
BEI Technologies, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
5.
OpticNet, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Any notice or communication given in conformity with this
Section shall be deemed to be effective when received by the addressee, if
delivered by hand, and three days after mailing, if mailed.
10. SUCCESSORS.
The terms and provisions of this Agreement shall inure to the
benefit of, and be binding upon Technologies, OpticNet, and their respective
successors and assigns; provided, however, that neither Technologies nor
OpticNet may assign or otherwise transfer any of its rights and interests, nor
delegate any of its respective obligations, hereunder, including, without
limitation, pursuant to a merger or consolidation, without the prior written
consent of the other party hereto.
11. GOVERNING LAW.
This Agreement shall be governed by and construed in
accordance with the laws of the State of California, as applied to contracts
between California residents entered into and performed entirely within
California.
12. SEVERABILITY.
In the event any one or more of the provisions contained in
this Agreement should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby. The parties hereto
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions, the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
6.
13. THIRD PARTY BENEFICIARIES.
This Agreement is solely for the benefit of the parties hereto
and their respective subsidiaries, as the case may be, and should not be deemed
to confer upon third parties any remedy, claim, liability, reimbursement, claim
of action or other right in excess of those existing without reference to this
Agreement.
14. FORCE MAJEURE.
14.1 Acts Constituting Force Majeure. Neither party shall be
liable to the other for a delay in its performance of this Agreement arising
from causes beyond its reasonable control. Without limiting the generality of
the foregoing, such events include any act of God; accident; explosion; fire;
earthquake; flood; strikes; labor disputes; riots; sabotage; embargo; equipment
failure; federal, state, or local legal restriction or limitation. Neither party
shall be required to resolve labor disputes, but shall use commercially
reasonable efforts to seek alternative sources to the extent practicable.
14.2 Notice Requirement. When circumstances occur that delay
the performance of either party under this Agreement, whether or not such
circumstances are excused pursuant to Section 14.1 above, such party shall, when
it first becomes aware of such circumstances, promptly notify the other party,
by facsimile or by telephone confirmed in writing within two (2) business days
in the case of oral notice. Within ten (10) business days of the date when
either party first becomes aware of the event which it contends is responsible
for the delay, it shall supply to the other party in writing the reason(s) for
and anticipated duration of such delay, the measures taken and to be taken to
prevent or minimize the delay, and the timetable for the implementation of such
measures.
15. HEADINGS.
Headings used herein are for convenience only and shall not in
any way affect the construction of, or be taken into consideration in
interpreting this Agreement.
16. ENTIRE AGREEMENT; AMENDMENT.
This Agreement constitutes the entire agreement between the
parties hereto regarding the subject matter hereof and may not be changed or
cancelled except in writing signed by all parties hereto.
17. EXECUTION IN COUNTERPARTS.
This Agreement may be executed in two or more counterparts,
each of which counterparts, when so executed and delivered, shall be deemed to
be an original and all of which counterparts, taken together, shall constitute
one and the same instrument.
7.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed under seal and delivered as of the date first above written. This
Agreement may only be amended or modified by a written agreement executed by
both parties.
BEI TECHNOLOGIES, INC.
By:
------------------------------------
Title: Vice President and Treasurer
OPTICNET, INC.
By:
------------------------------------
Title: Vice President and Chief
Financial Officer
8.
INTERCOMPANY SERVICES AGREEMENT AS OF 10/27/00
EXHIBIT A
Facilities Thin Film:
---------- ----------
Clean Room Oxidation furnace
Safety Equipment Annealing furnace
Furniture Sputtering vacuum system
Fab Network Metal evaporator
CVD reactor
Photolithography: Plasma Etch:
----------------- ------------
Spin coat rack Deep reactive ion etcher
Developer Reactive ion etcher
Water scrubber
Mask aligner
Bake oven Back End Process:
Descum / ▇▇▇▇▇ -----------------
Manual spinner Wire bonder
Mask cleaner Die attach system
Dicing saw
Probe station
Wet Processing:
---------------
Bench 1 photolith
Bench 2 oxide etch Device Package:
Bench 3 general ---------------
Bench 4 silicon etch Fiber aligner
Bench 5 metal etch Auto fiber aligner
Lens array
Lens array
Dispenser, epoxy
Bonding Equipment: Pack. assembly
----------------- Inspection
Controller Test
Bond aligner
Bond preparation
Polisher New Capabilities:
-----------------
Deep reactive ion etching
Analytical: Bonding aligner
----------- CVD reactor
Profilometer CVD reactor
Thickness gauge Dielectric
Thin film gauge Nitride ref.
Line width gauge Ion mill z
Scanning Electron Microscope
IR microscope
Optic microscope
Wafer part
Interferometer
Optic thickness gauge
1.
INTERCOMPANY SERVICES AGREEMENT AS OF 10/27/00
Exhibit B
REVOLVING LINE OF CREDIT NOTE
$2,000,000.00 San Francisco, California
October 30, 2000
FOR VALUE RECEIVED, the undersigned OPTICNET, INC. ("Borrower")
promises to pay to the order of BEI TECHNOLOGIES, INC. ("Lender") at its office
at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, or at such other
place as the holder hereof may designate, in lawful money of the United States
of America and in immediately available funds, the principal sum of Two Million
Dollars ($2,000,000.00), or so much thereof as may be advanced and be
outstanding, with interest thereon, to be computed on each advance from the date
of its disbursement as set forth herein.
DEFINITIONS:
As used herein, the following terms shall have the meanings set forth
below, and any other term defined in this Note shall have the meaning set forth
at the place defined:
"Business Day" means any day except a Saturday, Sunday or any other day
on which commercial banks in California are authorized or required by law to
close.
18. INTEREST
a. Interest. The outstanding principal balance of this Note
shall bear interest (computed on the basis of a 360-day year, actual days
elapsed) at the rate of prime plus 1.5% per annum.
b. Payment of Interest. Interest accrued on this Note shall be
payable on the first day of each quarter, commencing the first of the quarter
after any borrowing hereunder.
c. Late Charge. From and after September 30, 2002, or such
earlier date as all principal owing hereunder becomes due and payable by
acceleration or otherwise, the outstanding principal balance of this Note shall
bear interest until paid in full at an increased rate per annum (computed on the
basis of a 360-day year, actual days elapsed) equal to two percent (2%) above
the rate of interest set forth above and otherwise applicable to this Note.
BORROWING AND REPAYMENT:
a. Borrowing and Repayment. Borrower may from time to time
during the term of this instrument borrow, partially or wholly repay its
outstanding borrowings, and reborrow, subject to all of the limitations, terms
and conditions of this Note and of any document executed in connection with or
governing this Note; provided, however, that the total outstanding
2.
principal amount of the borrowings under this Note shall not at any time exceed
$2,000,000. The unpaid principal balance of this obligation at any time shall be
the total amounts advanced hereunder by the holder hereof less the amount of
principal payments made hereon by or for the Borrower, which balance may be
endorsed hereon from time to time by the holder. The outstanding principal
balance of this Note shall be due and payable in full on September 30, 2002.
b. Advances. Advances hereunder, to the total amount of the
principal sum stated above, may be made by the holder upon five (5) Business
Days' prior written request by the Chief Financial Officer, Corporate Secretary
or Treasurer of the Borrower, any one acting alone who is authorized to request
advances and direct the disposition of any advances until written notice of the
revocation of such authority is received by the holder at the office designated
above.
c. Application of Payments. Each payment made on this Note
shall be credited first, to any accrued interest and second, to the outstanding
principal balance hereof.
PREPAYMENT:
Borrower may prepay principal on any portion of this Note at any time,
in any amount and without penalty.
COMPLIANCE WITH OTHER AGREEMENTS:
The obligation of the Lender to advance sums under this Note is subject
to (1) the Lender's own ability to borrow under the terms and conditions of that
certain Credit Agreement between BEI Technologies, Inc. and its wholly-owned
subsidiary, BEI Sensors & Systems Company, Inc., and ▇▇▇▇▇ Fargo Bank, National
Association dated as of December 15, 1998, as amended from time to time (the
"Credit Agreement"), (2) no event of default having occurred as defined within
the Credit Agreement and being continuing and (3) the advance of sums hereunder
not causing an event of default to occur for the Lender under that certain
Credit Agreement. In the event that as of the date of any requested borrowing
hereunder, Lender shall be unable to advance sums to the Borrower as set forth
above, Lender shall (i) immediately provide notice to Borrower of the
non-availability of sums hereunder as of such date and (ii) arrange for the
advance to Borrower of such sums requested hereunder as soon as feasible after
such date.
MISCELLANEOUS:
d. Remedies. Upon the occurrence of any Event of Default or
Change in Control (each as defined below), the holder of this Note, at the
holder's option, may declare all sums of principal and interest outstanding
hereunder to be immediately due and payable without presentment, demand, notice
of nonperformance, notice of protest, protest or notice of dishonor, all of
which are expressly waived by Borrower, and the obligation, if any, of the
holder to extend any further credit hereunder shall immediately cease and
terminate. Borrower shall pay to the holder immediately upon demand the full
amount of all payments, advances, charges, costs and expenses, including
attorneys' fees (to include outside counsel fees and all allocated costs of the
holder's in-house counsel), expended or incurred by the holder in connection
with the
3.
enforcement of the holder's rights including, without limitation, the collection
of any amounts which become due to the holder under this Note, and the defense
of any action in any way related to this, whether incurred at the trial or
appellate level, in an proceeding or otherwise, and including any of the
expenses and costs incurred by the holder of this Note, in connection with any
adversary proceeding, contested matter or motion brought by Lender or any other
person relating to the Borrower or any other person or entity.
Each of the following events shall be an "Event of Default" hereunder:
(i) Borrower fails to pay timely any of the principal amount due under
this Note on the date the same becomes due and payable or any accrued interest
or other amounts due under this Note within five calendar days after the date
the same becomes due and payable;
(ii) Borrower files any petition or action for relief under any
bankruptcy, reorganization, insolvency or moratorium law, or any other law for
the relief of, or relating to, debtors, now or hereafter in effect, or makes any
assignment for the benefit of creditors, or takes any corporate action in
furtherance of any of the foregoing; or
(iii) An involuntary petition is filed against Borrower (unless such
petition is dismissed or discharged within sixty (60) days), under any
bankruptcy statute now or hereafter in effect, or a custodian, receiver,
trustee, assignee for the benefit of creditors (or other similar official) is
appointed to take possession, custody or control of any property of Borrower.
A "Change in Control" shall mean: (i) any consolidation or merger of
the Borrower with or into any other corporation or other entity or person, or
any other corporate reorganization, in which the stockholders of the Borrower
immediately prior to such consolidation, merger, reorganization or
recapitalization, own less than [65]% of the surviving entity's voting
securities immediately after such consolidation, merger, reorganization or
recapitalization, (ii) any transaction or series of related transactions
resulting in the transfer of control of in excess of [65]% of the Borrower's
voting securities, or (iii) the sale or an agreement by the Borrower to sell all
or substantially all of its assets.
(b) Governing Law. This Note shall be governed by and construed in
accordance with the laws of the State of California as such laws are applied to
agreements between California residents entered into and to be performed within
the state of California.
IN WITNESS WHEREOF, the undersigned has executed this Note as of the
date first written above.
OPTICNET, INC.
By:
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Name:
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Title:
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4.
INTERCOMPANY SERVICES AGREEMENT AS OF 10/27/00
EXHIBIT C
Rate Per Quarter: $25,000*
*Amount includes fee for shared facilities and managerial services.
5.