Exhibit 10.22


AMENDMENT TO THE

STRATEGIC PARTNERSHIP MASTER AGREEMENT,
Dated August 11, 2006

BETWEEN

WAVE2WAVE COMMUNICATIONS, INC. and incNETWORKS, INC.


This Amendment (hereinafter, “Amendment”) to the Strategic Partnership Master
Agreement, dated August 11, 2006,
(the “SPMA” or “Master Agreement”) between Wave2Wave Communications, Inc. and its Affiliates,
(“Wave2Wave” or “W2W”) located at 433 Hackensack Avenue, Hackensack, New Jersey 07601 and incNETWORKS, Inc. and its
Affiliates (“INI” or “incNETWORKS”) located
at 198 Brighton Avenue, Long Branch, New Jersey 07740 (collectively,
the “Parties”) is entered into as
of November24, 2009 (the “Effective Date”).


          WHEREAS, the Parties acknowledge and agree
that their objective by entering into this Agreement is to amend and clarify their business
relationship based upon the changed economic
circumstances in the communications and technology markets within the United States and to account for changes to each Parties’
business structure and operational circumstances.


In consideration of the mutual covenants set forth herein, the Parties
hereby agree as follows: 


	
  

 	
  

 
	
  

 	
 Summary of Parties’ Agreed-Upon
 Intent

 
	
  

 	
  

 
	
 1.

 	
 By execution of this Agreement, the Parties mutually agree to amend
 elements and terms of the SPMA,
 pursuant to Article VII, Section 7 therein.

 
	
  

 	
  

 
	
 2.

 	
 The Parties agree that if Wave2Wave does not achieve a Major Funding
 Event as defined in paragraph
 3 herein by March 31, 2010, either party may, at no penalty, terminate this Amendment upon ten (10) days
 written notice to the other Party. In the event a party elects to provide notice of termination, each party
 shall retain its applicable rights,
 title and interest in network equipment that that party purchased to deploy 4G Services. Thus, Wave2Wave shall retain
 title in and to any network equipment
 it has purchased as of the date of such notice. Similarly, INI shall retain
 all title and interest in any
 network equipment it has purchased or deployed as of the date of such notice.

 
	
  

 	
  

 
	
 3.

 	
 The Parties acknowledge and agree that the Major Funding Event shall
 be defined as Wave2Wave’s
 receipt of: (i) a cash investment sufficient to cover the allocation of proceeds contemplated in paragraph 4 herein; or
 (ii) the successful completion of an Initial
 Public Offering (IPO) on a nationally recognized equity exchange resulting in
 proceeds sufficient to cover the allocation of proceeds contemplated in
 paragraph 4 herein.

 
	
  

 	
  

 
	
 4.

 	
 The Parties agree that W2W shall dedicate no less than four million
 dollars ($4,000,000) of the proceeds of the Major Funding Event every three
 (3) months (i.e., a “quarter”) towards the 4G Network Build-out Project, which shall constitute INI’s
 deployment of 4G Networks within
 twelve (12) Wave2Wave Buildings (a “Building” shall be defined as a 250,000 square feet unit) every quarter within,
 but no later than the first year following the completion of a Major Funding Event, assuming INI is on schedule in
 fulfilling 

 


Page 1 of 8

* WE HAVE REQUESTED
      CONFIDENTIAL TREATMENT OF CERTAIN PROVISIONS CONTAINED IN THIS EXHIBIT.
      THE COPY FILED AS AN EXHIBIT OMITS THE INFORMATION SUBJECT TO THE CONFIDENTIALITY
REQUEST.*








	
  

 	
  

 
	
  

 	
 Wave2Wave’s purchase orders and, at the end of each quarter, Wave2Wave
 has accepted all twelve (12)
 buildings as fully operational, which acceptance shall not be unreasonably withheld. After making its first
 quarterly payment, the obligation of W2W to make subsequent quarterly
 payments toward the Build-out Project is specifically contingent upon Wave2Wave’s testing and
 acceptance of all 4G Networks being deployed
 by INI in the current quarter as fully operational, which acceptance shall
 not be unreasonably withheld. That
 is, if Wave2Wave submits twelve (12) individual purchase orders with INI to deploy 4G Networks
 within twelve (12) of Wave2Wave’s Buildings
 in the first quarter, and at the end of the first quarter, Wave2Wave does not
 accept all twelve (12) buildings as
 fully operational, Wave2Wave is not obligated to dedicate an additional $4,000,000 in the second
 quarter until Wave2Wave accepts all twelve
 (12) buildings as fully operational, which acceptance shall not be
 unreasonably withheld. Wave2Wave
 shall dedicate no less than sixteen million dollars ($16,000,000) of the
 proceeds of the Major Funding Event toward the 4G Network Build-out Project within the first year following the completion
 of a Major Funding Event, assuming INI is on schedule in fulfilling Wave2Wave’s purchase orders and, at the end
 of each quarter, Wave2Wave has
 accepted all twelve (12) buildings as fully operational, which acceptance shall not be unreasonably withheld.

 
	
  

 	
  

 
	
 5.

 	
 Upon the execution of this Amendment, Wave2Wave shall execute and
 deliver to incNETWORKS an
 Initial Purchase Order in the amount of four million dollars ($4,000,000) that will constitute a conditional
 equipment order to enable INI to complete
 a 4G Network Build-out Project, as described in paragraph 4 herein. The
 Initial Purchase Order will remain
 conditional, subject to W2W’s receipt of monies through the Major Funding Event. Once W2W achieves the Major
 Funding Event, the Initial Purchase
 Order shall become fully effective.

 
	
  

 	
  

 
	
 6.

 	
 The 4G Network Build-out Project shall be dependent upon the Initial
 Purchase Order becoming fully
 effective. The 4G Network Build-Out Project will consist of deployments of incNETWORKS’ 4G Networks and Services in
 specifically designated and agreed upon buildings (hereinafter, “the Authorized Exclusive Territory List”),
 where each “building” is: (i) defined
 as a 250,000 sq. ft. unit; and (ii) drawn from a pool of buildings the
 parties will have previously
 included on a Exclusive Territory List (as described herein). During the first year of the Build-out Project, W2W
 agrees to ensure that the schedule of funded deployments shall occur in no
 less than twelve (12) buildings within every quarter, assuming INI is on schedule in fulfilling Wave2Wave’s purchase
 orders and, at the end of each
 quarter, Wave2Wave has accepted all twelve (12) buildings as fully operational,
 which acceptance shall not be unreasonably withheld.

 
	
  

 	
  

 
	
 7.

 	
 Furthermore, upon the Initial Purchase Order becoming fully
 effective, W2W shall provide
 INI with an up-front payment of 50% of the quarterly payment due at the beginning of the quarter for the build-out costs
 for the 4G Network Build-Out activities for that quarter (specifically, no less than two million dollars ($2,000,000) of
 the $4,000,000 due in a quarter as
 derived from the proceeds of the Major Funding Event), With respect to all purchase orders issued
 subsequent to the Initial Purchase Order, the terms of this Section will apply with equal force, subject to whether
 INI has fulfilled its obligations
 described in paragraph 4 herein. The payment tied to the Initial Purchase

 


Page 2 of 8









	
  

 	
  

 
	
  

 	
 Order, and all other payments subsequent thereof, shall provide
 incNETWORKS with the ability
 to obtain equipment and materials necessary to begin the deployment of 4G Networks and Services in the buildings on the
 Authorized Exclusive Territory List.

 



Territory Lists and
Exclusive License:


	
  

 	
  

 
	
 8.

 	
 The “Exclusive Territory List” shall be comprised of a collection of
 no more than 1000 buildings
 that W2W and INI shall work together in a commercially reasonable manner to identify as commercially viable candidates for
 the 4G Network Build-out Project. The parties shall use commercially reasonable efforts to agree upon the
 Exclusive Territory List by December
 31, 2009, however, Wave2Wave reserves the right to amend the list of buildings on the Exclusive Territory List at any
 time, but at all times the number of buildings
 on the list shall remain at 1000 buildings. The Exclusive Territory List will
 reflect buildings that either W2W or
 INI may choose to fund the build-out of, whether on an independent or collective basis with the
 other party.

 
	
  

 	
  

 
	
 9.

 	
 The “Authorized Exclusive Territory List” shall be comprised of a
 collection of buildings in
 which the build-out activities shall be specifically funded by W2W through
 the proceeds of W2W’s Major Funding
 Event or other funding sources from Wave2Wave. The parties shall use commercially reasonable efforts to agree upon
 the Authorized Exclusive Territory
 List by December 31, 2009, however, Wave2Wave reserves the right to amend the list of buildings on the Authorized
 Exclusive Territory List pursuant to the issuance of a Purchase Order in the manner described herein.

 
	
  

 	
  

 
	
 10.

 	
 In consideration for W2W’s agreement to dedicate proceeds from the
Major Funding Event toward
the 4G Network Build-out Project, effective upon the execution of this Amendment, INI agrees to grant to W2W the
exclusive right and royalty free license (the “License”) to use, sell to Wave2Wave’s customers, market and offer for
sale INI’s 4G technology including, but not limited to, that invention
covered by Patent No. [***], (the
“Licensed Invention”) to end user customers for as long as Wave2Wave is
providing services to end user
customers within those buildings identified in the Authorized Exclusive Territory List. This license grant shall survive
any termination or expiration of this Amendment or the SPMA. Wave2Wave’s rights shall be sole and entire and
operate to exclude all others,
including INI, its affiliates and/or other licensees, within the buildings listed in the Authorized Exclusive Territory List
of the Amendment. INI agrees that Wave2Wave
shall have the ability to grant sublicenses of the License as may be necessary to sell and provide the 4G Network and
4G Services to its in-building customers.
Wave2Wave will seek INI’s prior approval on any sublicensing language to be contained in customer contracts, which
approval shall not be unreasonably withheld. INI further agrees that the License may be assignable to any entity
that acquires all, or substantially
all, of Wave2Wave’s assets, subject to W2W providing INI with reasonable advance notice of any assignment or acquisition. INI further agrees that it
will indemnify and hold Wave2Wave
harmless from any losses or damages arising from any claim brought against Wave2Wave that the
Licensed Invention infringes on any patent, copyright or other intellectual property right of a third party. INI
further agrees to cooperate fully
with Wave2Wave in asserting any claims against a third party that the third
party’s patent, copyright or other intellectual property right infringes upon
the Licensed Invention. 

 


Page 8 of 3









	
  

 	
  

 
	
 11.

 	
 Notwithstanding whether Wave2Wave experiences a Major Funding Event,
 the Parties agree that
 incNETWORKS may choose to provide the funding for any additional buildings (including the Showcase Buildings) not on the
 Authorized Exclusive Territory List upon the provision of reasonable advance notice to W2W and the parties will
 reasonably agree within thirty (30)
 days of incNETWORKS’ providing such notice.

 
	
  

 	
  

 
	
 12.

 	
 The Parties agree to amend the Master Agreement at Article IV;
 Section 4; “Ownership”. The
 current provision in the Master Agreement shall be deleted and will be
 amended to read as follows:

 






	
  

 	
  

 	
  

 	
  

 
	
  

 	
  “With respect to
 Network Equipment purchased by INI, INI solely possesses
 all rights, title and interest in and to such Network Equipment and
 reserves all rights thereto not expressly granted under this Agreement.
 INI shall, however, offer the option to Wave2Wave to acquire
 all right, title and interest in and to such Network Equipment prior to
 transferring such right, title and interest to any third party or removing
 the Network Equipment from any of Wave2Wave’s buildings. Wave2Wave shall
 exercise this acquisition option no later than sixty (60) days
 after receiving notification from INI. Wave2Wave shall solely possess
 all right, title and interest in and to any Network and/or End User Equipment
 it should purchase either directly from a vendor or through
 INI and reserves all rights thereto not expressly granted under this Agreement.”

 	
  

 






	
  

 	
  

 	
  

 
	
  

 	
 This provision shall operate and remain effective regardless of
 whether Wave2Wave achieves a
 Major Funding Event or incNETWORKS achieves a Funding Event and shall survive
 any expiration or termination of this Amendment.

 



Showcase Buildings Arrangement


	
  

 	
  

 
	
 13.

 	
 The Parties agree that as recognition of the changed economic
 circumstances since the execution
 of the Master Agreement, and changes in each Parties’ business structure and operations the Parties should amend the funding,
 deployment and revenue generation process associated with two specific
 buildings. The Parties further agree to modify the Master Agreement, and carve-out from any
 contrary application under this Agreement, the buildings at: (i) One Grand Central Plaza , f/k/a/The Lincoln
 Building, located at 60 East 42’d Street, New York, NY; and (ii) 230 Park Avenue, f/k/a
 the Hemsley Building, located at 230 Park Avenue, New York, NY (collectively,
 the “Showcase Buildings” a/k/a
 the “Two Model Buildings”).

 
	
  

 	
  

 
	
 14.

 	
 The Parties mutually agree and acknowledge that funding for the 4G
 Network Build-out, technology
 development, network deployment, operations, and maintenance activity associated with the Showcase Buildings have
 been, and will be, incurred by incNETWORKS.
 incNETWORKS agrees that it shall complete deployment of the 4G Network and Services in both buildings no later
 than March 31, 2010.

 
	
  

 	
  

 
	
 15.

 	
 The Parties agree further that the purpose of amending the business
 arrangement associated with
 the Showcase Buildings is to provide: (i) incNETWORKS with immediate revenues upon completion of its deployment
 activity and Wave2Wave’s testing and 

 












	
  

 	
  

 
	
  

 	
 acceptance of each Showcase Building as fully operational; and (ii)
 Wave2Wave with evidence of
 operational and in-process examples of the benefits of 4G Networks and Services as they are associated with the
 strategic relationship between Wave2Wave and incNETWORKS for purposes of supporting Wave2Wave’s IPO efforts.

 
	
  

 	
  

 
	
 16.

 	
 The Parties agree that because INI is funding the deployment of 4G
Networks in the Showcase
Buildings, [***] of the Revenue Share, attributable to revenue generated from
Wave2Wave customers’ use of the 4G
Network and Services in the Showcase Buildings, shall be payable to incNETWORKS and [***] of
Revenue Share shall be payable to Wave2Wave
(the “Showcase Revenue Share Model”) for as long as Wave2Wave maintains a Building Services Agreement within
each Showcase Building and is providing 4G Services to customers. INI shall be entitled to its percentage of
the Revenue Share once Wave2Wave
has tested and accepted the 4G Network in each Showcase Building as fully operational, which acceptance shall not
be unreasonably withheld.  

 
	
  

 	
  

 
	
 17.

 	
 For purposes of clarity, the Showcase Revenue Share Model shall apply
only to 4G Network and
Services revenues generated pursuant to the Showcase Buildings. For all other individual buildings in the Wave2Wave
Authorized Exclusive Territory List, where Wave2Wave provides the funding for the deployment and build-out of
IncNETWORKS’s 4G Networks and
Services within a building, Wave2Wave will receive [***] of the Revenue Share and incNETWORKS will receive [***]
of the Revenue Share (as defined in Article
V, Section 1 of the Master Agreement), attributable to incremental revenue generated from Wave2Wave customers’ use of the
4G Network and Services.  

 



Cost Reporting and Revenue Collection Process
for Showcase Buildings


	
  

 	
  

 
	
 18.

 	
 The Parties agree that Article V, Sections 2 through 4 of the Master
 Agreement shall be replaced
 with Sections 18-28 of the herein Amendment with respect to the Showcase Buildings only.

 
	
  

 	
  

 
	
 19.

 	
 The Parties shall exchange Cost and Revenue Reports pursuant to a new
 Revenue Collection Process
 (“RCP”), as is applied to the Showcase Buildings only. The Parties shall exchange their Cost and Revenue Reports on
 a monthly basis between the Effective
 Date of this Amendment and March 31, 2010, and no later than 15 calendar days
 after the close of a month. After March 31, 2010, the Cost and Revenue
 Reports shall be exchanged on a
 calendar quarterly basis, but no later than (30) days after the end of a quarter.

 
	
  

 	
  

 
	
 20.

 	
 The new RCP shall determine and govern how revenue will be collected
 and dispersed between
 Wave2Wave and incNETWORKS. Wave2Wave agrees that, upon incNETWORKS’ or Wave2Wave’s activation of a
 customer on the 4G Network within the Showcase Buildings, Wave2Wave shall establish a special account within
 its accounting system to provide for
 the recording, collection, and assignment of all revenues or payments received from any customer within the
 Showcase Buildings. This information shall
 be captured and recorded in the Cost and Revenue Reports.

 
	
  

 	
  

 
	
 21.

 	
 Wave2Wave and incNETWORKS shall develop a set of industry-standard
 allocated operational costs,
 modified to account for the operating cost reductions inherent in the self maintenance 4G software radio and cognitive
 radio technology features, required 

 













	
  

 	
  

 
	
  

 	
 for the support of customers within the Showcase Buildings including,
 but not limited to, Customer
 Care, Network Operation, Network Support, Network Upgrade, Marketing and Sales, SPMA penetration rate targets, any
 service credits paid to any customers, and payments associated with Business Service Agreements (BSAs) in such
 buildings, all of which shall be
 included in the Cost and Revenue Reports.

 
	
  

 	
  

 
	
 22.

 	
 The Parties shall submit the Cost and Revenue Reports to a joint
 committee of Wave2Wave and
 incNETWORKS personnel, comprised of two (2) representatives from Wave2Wave
 and two (2) representatives from INI, for review and approval (the “RCP Committee”). The RCP Committee shall work
 cooperatively to establish and agree upon a set of normalized costs and penetration rate targets, based upon the
 SPMA and industry market standards,
 modified to account for the operating cost reductions inherent in the self maintenance 4G software
 radio and cognitive radio technology features.
 The RCP Committee shall, in turn, allocate these costs on a per subscriber basis such that cost changes are variable cost
 changes, depending only on the service adoption rates by end customer subscribers. The RCP Committee shall
 review these costs on a quarterly
 basis for the duration of the Parties’ relationship and shall make any changes to accurately reflect market conditions
 in the New York City market area. The RCP Committee shall be operational no later than 30 days following the
 signing of this agreement.

 
	
  

 	
  

 
	
 23.

 	
 The Parties shall utilize the Cost and Revenue Reports generated at
 the end of each month (or
 quarter, as appropriate) to identify the amount of monthly revenue due for transfer to incNETWORKS.

 
	
  

 	
  

 
	
 24.

 	
 Notwithstanding any true-up activities conducted by the RCP Committee
 based upon the Cost and
 Revenue Reports, no later than thirty (30) calendar days after the end of each month, Wave2Wave shall transfer to
 incNETWORKS the designated share of revenues
 generated in the Showcase Buildings.

 
	
  

 	
  

 
	
 25.

 	
 Any revenue payment adjustments based on results of the RCP
 Committee’s true-up calculations
 that are associated with the revenues due to incNETWORKS shall be paid to incNETWORKS on the 15th calendar day
 following the month in which the adjustment calculations are performed. Any such adjustment payment to incNETWORKS
 will not affect in any manner the
 regularly scheduled transfer of revenues to incNETWORKS on a monthly basis.

 
	
  

 	
  

 
	
 26.

 	
 The Parties agree that a good faith effort to comply with the RCP
 Process (including the delivery
 of the Cost and Revenue Reports, the cooperative work of the RCP, the monthly
 transfer of revenues to
 incNETWORKS, and any other obligations associated with the Showcase Buildings Revenue Collection Process)
 is a precondition to either Party being entitled to the Revenue Share pursuant to the Showcase Revenue Share
 Model.

 
	
  

 	
  

 
	
 27.

 	
 incNETWORKS will be responsible for the implementation of the 4G
 Network and Services within
 the Showcase Buildings and the backhaul access facilities among the Showcase
 Buildings and the POP Locations as designated by incNETWORKS.

 
	
  

 	
  

 
	
 28.

 	
 Notwithstanding whether other provisions of this Amendment take
 effect, if Wave2Wave does
 not achieve a Major Funding Event by March 31, 2010, the provisions 

 













	
  

 	
  

 
	
  

 	
 described herein regarding the Showcase Buildings, the Showcase
 Revenue Share Model, and the
 RCP shall remain in effect and shall survive any amendment, termination or expiration of this Amendment or the SPMA for
 as long as Wave2Wave maintains a Building Services Agreement with each
 Showcase Building and is providing 4G Services to customers, and shall be incorporated fully into any Material SPMA
 Amendment, as described herein.

 



General
Provisions


	
  

 	
  

 
	
 29.

 	
For purposes of clarity, the Parties mutually acknowledge and agree that where the terms of this Amendment and the Master Agreement
 may conflict with one another, this
 Amendment shall control and amend the terms of their business relationship as
 of the Effective Date.

 
	
  

 	
  

 
	
 30.

 	
 The Parties agree that regardless of whether W2W achieves a Major
 Funding event by March 31,
 2010, if either this Amendment or the Master Agreement remains effective as of May 1, 2010, the Parties shall on that date
 enter into good faith negotiations to obtain and produce a materially amended
 and modified Strategic Partnership Master Agreement (“Material SPMA Amendment”). The Parties acknowledge and
 agree that the elements of good
 faith and materiality regarding the substance of their negotiations pursuant to this provision are a material
 element of this Amendment.

 
	
  

 	
  

 
	
 31.

 	
 The Parties agree that if they are unable to produce a bi-laterally
 executed Material SPMA
 Amendment by August 11, 2010, this Amendment and the Master Agreement shall automatically terminate thirty (30) days
 thereafter, unless the Parties mutually agree in writing to extend the negotiation period.

 
	
  

 	
  

 
	
 32.

 	
 All references to “Equipment” within Article VI; Section 3; Sub-parts
 (b)-(d) shall be replaced
 with “Network Equipment,” and “4G Service” and “Service” shall be replaced with “4G Services.”

 
	
  

 	
  

 
	
 33.

 	
 The last two sentences of Article V, Section 1 in the SPMA shall be
 deleted in their entirety and
 replaced with the following sentence:

 
	
  

 	
  

 
	
  

 	
 For every other building in the Authorized Exclusive Territory List besides the Showcase Buildings, Wave2Wave shall
be entitled to [***] of the Revenue
Share and INI shall be entitled to [***] of the Revenue Share attributable to incremental revenue
generated from Wave2Wave customers’
use of the 4G Network and Services.  

 
	
  

 	
  

 
	
 34.

 	
 Article VII; Section 5; “Subcontracting/Assignment” shall be modified
 to add the following final
 sentence:

 






	
  

 	
  

 	
  

 
	
  

 	
 “In the event of an Assignment, the rights and obligations of the Agreement, this Amendment and subsequent
 Amendments, if any, shall bind and benefit any successors or assigns of the Parties.”

 	
  

 













	
  

 	
  

 
	
 35.

 	
 Article II, Section 2 (D) of the SPMA shall be deleted in its
 entirety.

 



IN WITNESS WHEREOF, the Parties have caused this Amendment to be
executed by their duly authorized
officers as of the Effective Date.



FOR:



	
  

 	
  

 
	
 WAVE2WAVE COMMUNICATIONS, INC

 	
 INCNETWORKS, INC

 
	
  

 	
  

 
	
  

 	
  

 
	
 By: /s/ Eric I. Mann

 	
 By: /s/ Jesse E. Russell

 
	
  

 	
  

 
	
 Print Name: Eric I. Mann

 	
 Print Name: Jesse E. Russell

 
	
  

 	
  

 
	
 Title: Chief Financial Officer

 	
 Title: CEO

 
	
  

 	
  

 
	
 Date: 11-24-09

 	
 Date: 11-24-09

 





*We
have requested confidential treatment of 

certain provisions contained in this exhibit.

The copy filed as an exhibit omits the 

information subject to the confidentiality request.*