EXHIBIT 99.2
EXECUTION COPY
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STOCK PURCHASE AGREEMENT
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BETWEEN
METRO ONE TELECOMMUNICATIONS, INC.
AND
SONERA MEDIA HOLDING B.V.
DATED AS OF NOVEMBER 8, 2000
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TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS AND USAGE.............................................................................1
SECTION 1.1 Certain Defined Terms.........................................................1
SECTION 1.2 Usage.........................................................................3
ARTICLE 2 PURCHASE AND SALE.................................................................................4
SECTION 2.1 Purchase and Sale of the Shares...............................................4
SECTION 2.2 Purchase Price................................................................4
SECTION 2.3 Closing.......................................................................4
SECTION 2.4 Closing Deliveries by the Seller..............................................4
SECTION 2.5 Closing Deliveries by the Purchaser...........................................4
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE SELLER......................................................5
SECTION 3.1 Organization, Authority and Qualification of the Seller.......................5
SECTION 3.2 Capitalization of the Seller..................................................5
SECTION 3.3 No Conflict...................................................................5
SECTION 3.4 Seller SEC Reports; Financial Statements......................................6
SECTION 3.5 Private Placement.............................................................6
SECTION 3.6 Brokers.......................................................................6
SECTION 3.7 Governmental Consents.........................................................7
SECTION 3.8 Patents and Trademarks........................................................7
SECTION 3.9 Permits.......................................................................7
SECTION 3.10 Litigation....................................................................7
SECTION 3.11 Oregon Control Share Act......................................................7
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER...................................................8
SECTION 4.1 Organization and Authority of the Purchaser...................................8
SECTION 4.2 Investment Purpose............................................................8
SECTION 4.3 Accredited Investor...........................................................8
SECTION 4.4 Brokers.......................................................................9
ARTICLE 5 ADDITIONAL AGREEMENTS.............................................................................9
SECTION 5.1 Regulatory and Other Authorizations; Notices and Consents.....................9
SECTION 5.2 Seller Shareholders Approval..................................................9
SECTION 5.3 Notice of Developments.......................................................10
SECTION 5.4 Registration Rights..........................................................10
SECTION 5.5 Resale Restrictions..........................................................10
SECTION 5.6 Registration of Shares.......................................................10
SECTION 5.7 Certain Information..........................................................10
SECTION 5.8 Further Action...............................................................11
ARTICLE 6 CONDITIONS TO CLOSING............................................................................11
SECTION 6.1 Conditions to Obligations of the Seller......................................11
SECTION 6.2 Conditions to Obligations of the Purchaser...................................12
ARTICLE 7 SURVIVAL..........................................................................................13
SECTION 7.1 Survival of Representations and Warranties...................................13
ARTICLE 8 TERMINATION AND WAIVER...........................................................................13
SECTION 8.1 Termination..................................................................13
SECTION 8.2 Right of Cure................................................................14
SECTION 8.3 Effect of Termination........................................................14
SECTION 8.4 Waiver.......................................................................14
ARTICLE 9 GENERAL PROVISIONS................................................................................15
SECTION 9.1 Expenses.....................................................................15
SECTION 9.2 Notices......................................................................15
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SECTION 9.3 Public Announcements.........................................................16
SECTION 9.4 Severability.................................................................16
SECTION 9.5 Entire Agreement.............................................................16
SECTION 9.6 Assignment...................................................................16
SECTION 9.7 No Third Party Beneficiaries.................................................16
SECTION 9.8 Amendment....................................................................17
SECTION 9.9 Governing Law................................................................17
SECTION 9.10 Counterparts.................................................................17
SECTION 9.11 Specific Performance.........................................................17
Disclosure Schedules
General Terms
Schedule 3.2 Capitalization of the Seller
Schedule 3.3 No Conflict
Schedule 3.8 Patents and Trademarks
Schedule 3.10 Litigation
Schedule 3.12 Articles and Bylaws
Annex I - Investment Agreement
Annex II - Registration Rights Agreement
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This STOCK PURCHASE AGREEMENT, dated as of November 8, 2000, is entered
into between METRO ONE TELECOMMUNICATIONS, INC., an Oregon corporation (the
"SELLER"), and SONERA MEDIA HOLDING B.V., a company organized under the laws of
the Netherlands (the "PURCHASER") and a wholly-owned subsidiary of SONERA
CORPORATION, a limited liability company organized under the laws of Finland
("Sonera").
W I T N E S S E T H:
WHEREAS, the Seller wishes to issue and sell to the Purchaser, and the
Purchaser wishes to purchase from the Seller, shares of the Seller's Common
Stock, no par value, upon the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, the Purchaser and the Seller
hereby agree as follows:
ARTICLE 1
DEFINITIONS AND USAGE
SECTION 1.1 CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings:
"ACTION" means any claim, action, suit, arbitration, inquiry,
proceeding or investigation by or before any Governmental Authority.
"AFFILIATE" means, with respect to a party hereto, any corporation or
other business entity which directly or indirectly through stock ownership or
other arrangement controls, is controlled by or is under common control with
such party. The term "control" shall mean the possession, direct or in direct,
of the power to direct or cause the direction of the management or policies of
such person, whether by reason of ownership of voting stock or other equity
interests.
"AGGREGATE PURCHASE PRICE" has the meaning specified in Section 2.2.
"AGREEMENT" or "THIS AGREEMENT" means this Stock Purchase Agreement,
dated as of November 8, 2000, between the Seller and the Purchaser and all
Annexes and Schedules hereto and all amendments hereto made in accordance with
the provisions of Section 9.8.
"ASSETS" means the properties, assets (including, without limitation,
Licenses) and contract rights used in the conduct of the Business or otherwise
owned, leased or used by the Seller or, with respect to contract rights, to
which the Seller is a party or is bound.
"BUSINESS" means the business of the Seller as currently conducted.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday, legal
holiday in Portland, Oregon or Helsinki, Finland, or other day on which
commercial banks in Portland, Oregon or Helsinki, Finland are authorized by law
or governmental decree to close. Unless qualified by Business Day, references to
days herein shall be to calendar days.
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"CLOSING" has the meaning specified in Section 2.3.
"CLOSING DATE" has the meaning specified in Section 2.3.
"COMMISSION" means the United States Securities and Exchange
Commission.
"COMMON STOCK" means the (i) common stock, no par value, of the Seller,
and (ii) shares of capital stock of the Seller issued by the Seller in respect
of or in exchange for shares of such common stock in connection with any stock
dividend or distribution, stock split-up, recapitalization, recombination or
exchange by the Seller generally of shares of such common stock.
"ENCUMBRANCE" means any security interest, pledge, mortgage, lien,
charge, encumbrance, adverse claim, preferential right, arrangement or
restriction of any kind, including, without limitation, any restriction on the
use, voting, transfer, receipt of income or other exercise of any attributes of
ownership.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GOVERNMENTAL AUTHORITY" means any United States federal, state or
local or any foreign government, regulatory or administrative authority, or any
governmental agency, department, board or commission, or any court, tribunal, or
judicial, arbitral or investigative body or other governmental tribunal.
"GOVERNMENTAL ORDER" means any order, writ, judgment, injunction,
decree, stipulation, determination or award entered by or with any Governmental
Authority.
"HSR ACT" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended, and the rules and regulations promulgated thereunder.
"INVESTMENT AGREEMENT" means the Investment Agreement, dated as of the
Closing Date and the form of which is attached hereto as Annex I, to be fully
executed and delivered by the parties on or before the Closing Date.
"LAW" means any United States federal, state, local or foreign statute,
law, ordinance, regulation, rule, code, order, other requirement or rule of law,
including any requirement or rule of law of the Federal Communications
Commission.
"LIABILITIES" means any and all debts, liabilities and obligations,
whether accrued or fixed, absolute or contingent, matured or unmatured or
determined or determinable, including, without limitation, those arising under
any Law, Action or Governmental Order and those arising under any contract,
agreement, arrangement, commitment or undertaking.
"LICENSES" means all licenses, permits (including construction
permits), consents, approvals and other authority issued by any Governmental
Authority in connection with the legal and proper operation of the Business.
"MATERIAL ADVERSE EFFECT" means any circumstance, change in or effect
on the Business or the Seller that: (a) is, or would reasonably be expected to
be, materially adverse to the Business, operations, Assets or Liabilities,
results of operations or financial condition of the Seller; or (b) would
reasonably be expected to materially adversely affect the ability of the Seller
to operate or conduct the Business, or to perform any of its obligations under
this Agreement, the Investment Agreement or the Registration Rights Agreement.
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"PERSON" means any individual, partnership, limited liability company,
firm, corporation, association, trust, joint venture, unincorporated
organization or other entity, as well as any syndicate or group that would be
deemed to be a person under Section 13(d)(3) of the Exchange Act.
"PURCHASER" has the meaning specified in the preamble to this Agreement
except that, upon the assignment of this Agreement to an Affiliate of Sonera
pursuant to Section 9.6 hereof, "Purchaser" shall refer to such Affiliate of
Sonera.
"PROXY STATEMENT" has the meaning specified in Section 5.2(a).
"RECIPIENT" has the meaning specified in Section 8.2.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the Closing Date and the form of which is attached hereto
as Annex II, to be fully executed and delivered by the parties on or before the
Closing Date.
"SALE" means any sale, assignment, transfer, distribution or other
disposition of shares of Common Stock or of a participation therein, whether
voluntarily or by operation of law.
"SEC REPORTS" has the meaning specified in Section 3.4(a).
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SELLER" has the meaning specified in the preamble to this Agreement.
"SELLER'S KNOWLEDGE," knowledge or similar terms indicating awareness
shall mean the actual knowledge of the Seller's Officers and Directors after a
reasonably diligent investigation.
"SHARES" has the meaning specified in Section 2.1.
"SUBSIDIARY" of a Person means a corporation as to which a majority of
the voting power is owned or controlled by such Person, either directly or
indirectly, but any such corporation shall be deemed to be a Subsidiary of such
Person only as long as such ownership or control exists.
"TERMINATING PARTY" has the meaning specified in Section 8.2.
"U.S. GAAP" means United States generally accepted accounting
principles and practices as in effect from time to time and applied consistently
throughout the periods involved.
SECTION 1.2 USAGE.
(i) When a reference is made in this Agreement to a Section, Schedule
or Annex, such reference shall be to a Section, Schedule or Annex of this
Agreement unless otherwise indicated or unless the context otherwise requires.
(ii) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(iii) Whenever the words "include," "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation."
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(iv) References to a Person are also references to its assigns and
successors in interest (by means of merger, consolidation or sale of all or
substantially all the assets of such Person or otherwise, as the case may be).
(v) References to a document are to such document as amended, waived
and otherwise modified from time to time and references to a statute or other
governmental rule are to such statute or rule as amended and otherwise modified
from time to time (and references to any provision thereof shall include
references to any successor provision).
(vi) The definitions set forth herein are equally applicable both to
the singular and plural forms and the feminine, masculine and neuter forms of
the terms defined.
(vii) The term "hereof" and similar terms refer to this Agreement as a
whole.
ARTICLE 2
PURCHASE AND SALE
SECTION 2.1 PURCHASE AND SALE OF THE SHARES. Upon the terms and subject
to the conditions of this Agreement, at the Closing the Seller shall sell to the
Purchaser, and the Purchaser shall purchase from the Seller, four million
(4,000,000) shares of the Common Stock (the "SHARES"). The number and type of
securities that are deliverable to Purchaser at Closing shall be appropriately
adjusted to account for any stock split, stock dividend, stock combination,
merger, exchange, recapitalization or similar transaction relating to the Shares
occurring prior to or at the Closing.
SECTION 2.2 PURCHASE PRICE. The per share purchase price for the Shares
shall be US $17.00. The aggregate purchase price for the Shares (the "AGGREGATE
PURCHASE PRICE") shall be US $68,000,000.
SECTION 2.3 CLOSING. Upon the terms and subject to the conditions of
this Agreement, the issuance, sale and purchase of the Shares contemplated by
this Agreement shall take place at a closing (the "CLOSING") to be held at
approximately 9:00 a.m. Eastern Standard time at the offices of Heller Ehrman
White & McAuliffe LLP at 711 Fifth Avenue, New York on November 28, 2000, or two
days after such later date as the last of the conditions specified in Article 6
shall have been satisfied or waived, or at such other place or at such other
time or on such other date as the Seller and the Purchaser may mutually agree
upon in writing (the day on which the Closing takes place being the "CLOSING
DATE").
SECTION 2.4 CLOSING DELIVERIES BY THE SELLER. At the Closing, the
Seller shall deliver or cause to be delivered to the Purchaser a receipt for the
Aggregate Purchase Price, stock certificates evidencing the Shares duly
registered in the name of the Purchaser and the certificates and other documents
required to be delivered pursuant to Section 6.2. The certificates shall be
delivered to the attention of Marie Laitinen at Sonera Corporation,
Teollisuuskatu 15, P.O. Box 106, SONERA - 00051 Helsinki, Finland.
SECTION 2.5 CLOSING DELIVERIES BY THE PURCHASER. At the Closing, the
Purchaser shall deliver to the Seller the Aggregate Purchase Price in
immediately available funds together with the certificates and other documents
required to be delivered pursuant to Section 6.1.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLER
As an inducement to the Purchaser to enter into this Agreement, the
Seller hereby represents and warrants to the Purchaser as of the date hereof:
SECTION 3.1 ORGANIZATION, AUTHORITY AND QUALIFICATION OF THE SELLER.
The Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Oregon, has qualified to do business in
all jurisdictions in which the absence of such qualification would have a
Material Adverse Effect and has all necessary power and authority to enter into
this Agreement, to carry out its obligations hereunder and to consummate the
transactions contemplated hereby and to conduct its Business. The Seller has no
Subsidiaries. The execution and delivery of this Agreement by the Seller, the
performance by the Seller of its obligations hereunder and the consummation by
the Seller of the transactions contemplated hereby have been duly authorized by
all requisite corporate action on the part of the Seller. This Agreement has
been duly executed and delivered by the Seller, and (assuming due authorization,
execution and delivery by the Purchaser) this Agreement constitutes a legal,
valid and binding obligation of the Seller enforceable against the Seller in
accordance with its terms, except (i) as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
(including, without limitation, the effect of statutory and other laws regarding
fraudulent conveyances, fraudulent transfers and preferential transfers) and
(ii) as may be limited by the exercise of judicial discretion and the
application of principles of equity, including, without limitation, requirements
of good faith, fair dealing, conscionability and materiality (regardless of
whether such agreements are considered in a proceeding in equity or at law).
SECTION 3.2 CAPITALIZATION OF THE SELLER. The authorized capital stock
of the Seller consists of 50,000,000 shares of Common Stock and 10,000,000
shares of preferred stock, no par value. As of the date hereof, (i) 11,692,446
shares of Common Stock (not including the Shares) are issued and outstanding,
all of which are duly authorized, validly issued, fully paid, nonassessable and
free of preemptive rights; and (ii) no shares of preferred stock are issued and
outstanding. Upon issuance of the Shares to the Purchaser at the Closing and
payment therefor pursuant to this Agreement, the Shares will be duly authorized,
validly issued, fully paid and nonassessable, and, except as set forth in
Schedule 3.2, free of preemptive rights. Upon consummation of the transactions
contemplated by this Agreement, including the issuance of the Shares,
registration of the Shares in the name of the Purchaser in the stock records of
the Seller and delivery of the Shares, the Purchaser will own the Shares free
and clear of all Encumbrances, other than Encumbrances resulting from any
action, or failure to take action, by the Purchaser or imposed by the Investment
Agreement or the Registration Rights Agreement. Except as set forth in Schedule
3.2 hereto, there are no securities, options, warrants, calls, rights,
commitments, agreements, arrangements or undertakings of any kind obligating the
Seller to issue, deliver or sell or create, or cause to be issued, delivered or
sold or created, additional shares of capital stock or other voting securities
or common stock equivalents or obligating the Seller to issue, grant, extend or
enter into any such security, option, warrant, call, right, commitment,
agreement, arrangement or undertaking.
SECTION 3.3 NO CONFLICT. The execution, delivery and performance of
this Agreement, the Investment Agreement and the Registration Rights Agreement
by the Seller and the issuance of the Shares do not and will not: (i) violate,
conflict with or result in the breach of any provision of the articles of
incorporation or by-laws (or similar organizational documents) of the Seller as
in effect on the date hereof or on the Closing Date; (ii) conflict with or
violate (or cause an event which could have a Material Adverse Effect as a
result of) any Law or Governmental Order as in effect on the date hereof or on
the Closing Date applicable to the Seller, or any of its assets, properties or
businesses; or (iii) except as provided in Schedule 3.3, conflict with, result
in any breach of, constitute a default (or event which with the giving of notice
or
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lapse of time, or both, would become a default) under, require any consent
under, or give to others any rights of termination, amendment, acceleration of
performance required by, suspension, revocation or cancellation of any rights to
sell or purchase and security or result in the obligation to sell or purchase,
suspension, revocation or cancellation of, or result in the creation of any
Encumbrance on any of the Shares or on any of the assets or properties of the
Seller pursuant to, any note, bond, mortgage or indenture, contract, agreement,
lease, sublease, license, permit, franchise or other instrument or arrangement
as in effect on the date hereof or on the Closing Date to which the Seller is a
party or by which any of the Shares or any of such assets or properties is bound
or affected.
SECTION 3.4 SELLER SEC REPORTS; FINANCIAL STATEMENTS.
(a) The Seller has filed all forms, reports and documents required to
be filed by it with the Commission, and has heretofore made available to the
Purchaser, in the form filed with the Commission (excluding any exhibits
thereto), (i) its Annual Report on Form 10-K for the fiscal year ended December
31, 1999 and (ii) all proxy statements relating to the Seller's meetings of
shareholders (whether annual or special) held since December 31, 1998
(collectively, the "SEC REPORTS") and its Quarterly Report on Form 10-Q for the
quarters ending March 31, 2000 and June 30, 2000.
(b) The SEC Reports were prepared in all material respects in
accordance with the requirements of the Exchange Act and the rules and
regulations thereunder and did not at the time they were filed contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading.
(c) The financial statements (including, in each case, any notes
thereto) contained in the SEC Reports were prepared in accordance with U.S. GAAP
applied on a consistent basis throughout the periods indicated (except as may be
indicated in the notes thereto), and each fairly presented the financial
position, results of operations and cash flows of the Seller as at the
respective dates thereof and for the respective periods indicated therein.
(d) Since December 31, 1999 there have not been any changes,
occurrences or circumstances that have had a Material Adverse Effect, other than
changes, occurrences and circumstances referred to in any subsequently filed SEC
Reports.
SECTION 3.5 PRIVATE PLACEMENT. Assuming the accuracy of the
representations and warranties of the Purchaser contained in Sections 4.2 and
4.3, the offer and sale of the Shares to the Purchaser pursuant to this
Agreement is exempt from registration under the Securities Act.
SECTION 3.6 BROKERS. No broker, finder or investment banker other than
Credit Suisse First Boston is entitled to any brokerage, finder's or other fee
or commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of the Seller.
SECTION 3.7 GOVERNMENTAL CONSENTS. Except as contemplated under Section
5.1(a) hereof, no consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any federal, state or
local governmental authority on the part of the Seller is required in connection
with the consummation of the transactions contemplated by this Agreement.
SECTION 3.8 PATENTS AND TRADEMARKS. Except as set forth in Schedule
3.8, the Seller has sufficient title and ownership of all patents, trademarks,
service marks, trade names, copyrights, trade secrets, information, proprietary
rights and processes necessary for its business as now conducted and as proposed
to
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be conducted without any conflict with or infringement of the rights of others.
Except as set forth in Schedule 3.8, the Seller has not received any written
communications alleging that the Seller has violated any of the patents,
trademarks, service marks, trade names, copyrights, trade secrets, licenses,
information, proprietary rights and processes of any other person or entity.
SECTION 3.9 PERMITS. The Seller has all franchises, permits, licenses,
and any similar authority necessary for the conduct of its Business the lack of
which could materially and adversely affect the business, properties, prospects,
or financial condition of the Seller. The Seller is not in default in any
material respect under any of such franchises, permits, licenses, or other
similar authority.
SECTION 3.10 LITIGATION. Except as set forth in Schedule 3.10 hereto or
in the Seller's SEC Reports, (a) there are no suits, actions, proceedings or
investigations pending or, to the Seller's Knowledge, threatened, against the
Seller before any Governmental Authority that would reasonably be expected to
have a Material Adverse Effect or prevent or materially delay the consummation
of the transactions contemplated by this Agreement; and (b) the Seller is not
subject to any outstanding judgment, order, writ, injunction or decree that
could, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect or prevent or materially delay the consummation of the
transactions contemplated by this Agreement.
SECTION 3.11 OREGON CONTROL SHARE ACT. The Board of Directors of the
Seller has approved this Agreement and the transactions contemplated hereby,
with the effect that the restrictions on business combinations contained in the
Oregon Control Share Act ORS Sec. 60.801 - 60.816 will not apply to Purchaser or
any affiliate of Purchaser as a result of this Agreement and the transactions
contemplated hereby. To the Seller's Knowledge, (i) no anti-takeover statute or
similar law of Oregon or other law applicable to the Seller or these
transactions imposes restrictions which could reasonably be expected to
adversely affect or delay the consummation of the transactions contemplated by
this Agreement, and (ii) no "control share acquisition," "fair price,"
"moratorium" or other anti-takeover laws or regulations enacted under Oregon or
other law applicable to the Seller apply to this Agreement or any of the
transactions related thereto.
SECTION 3.12 ARTICLES AND BY-LAWS. The Articles of Incorporation and
By-Laws contained in Schedule 3.12 hereto reflect the current constituent
documents of the Seller.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
As an inducement to the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller as of the date hereof and
will represent and warrant at Closing as follows:
SECTION 4.1 ORGANIZATION AND AUTHORITY OF THE PURCHASERSECTION 4.1
Organization and Authority of the Purchaser. The Purchaser is a corporation duly
organized and validly existing under the laws of the Netherlands and has all
necessary power and authority to enter into this Agreement, to carry out its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by the Purchaser, the performance
by the Purchaser of its obligations hereunder and the consummation by the
Purchaser of the transactions contemplated hereby have been duly authorized by
all requisite action on the part of the Purchaser. This Agreement has been duly
executed and delivered by the Purchaser, and (assuming due authorization,
execution and delivery by the Seller) this Agreement constitutes a legal, valid
and binding obligation of the Purchaser enforceable against the Purchaser in
accordance with its terms, except (i) as may
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be limited by bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights (including, without limitation, the effect of
statutory and other laws regarding fraudulent conveyances, fraudulent transfers
and preferential transfers) and (ii) as may be limited by the exercise of
judicial discretion and the application of principles of equity, including,
without limitation, requirements of good faith, fair dealing, conscionability
and materiality (regardless of whether such agreements are considered in a
proceeding in equity or at law).
SECTION 4.2 NO CONFLICT. The execution, delivery and performance of
this Agreement, the Investment Agreement and the Registration Rights Agreement
by the Purchaser do not and will not: (i) violate, conflict with or result in
the breach of any provision of the organizational documents of the Purchaser as
in effect on the date hereof or on the Closing Date; (ii) conflict with or
violate (or cause an event which could have a material adverse effect as a
result of) any Law or Governmental Order as in effect on the date hereof or on
the Closing Date applicable to the Purchaser, or any of its assets, properties
or businesses; or (iii) with respect to the Investment Agreement, conflict with,
result in any breach of, constitute a default (or event which with the giving of
notice or lapse of time, or both, would become a default) under, require any
consent under, or give to others any rights of termination, amendment,
acceleration, suspension, revocation or cancellation of, or result in the
creation of any Encumbrance on any of the assets or properties of the Purchaser
pursuant to, any note, bond, mortgage or indenture, contract, agreement, lease,
sublease, license, permit, franchise or other instrument or arrangement as in
effect on the date hereof or on the Closing Date to which the Purchaser is a
party or by which any of such assets or properties is bound or affected.
SECTION 4.3 INVESTMENT PURPOSE. The Purchaser (i) is acquiring the
Shares for the Purchaser's own account solely for the purpose of investment and
not with a view to, or for offer or sale in connection with, any distribution
thereof, (ii) has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of investing in
the Seller as contemplated by this Agreement and (iii) has received information
concerning the Seller and has had the opportunity to obtain additional
information as desired in order to evaluate the merits and risks inherent in
holding the Shares.
SECTION 4.4 ACCREDITED INVESTOR. The Purchaser is an "accredited
investor" within the meaning of Rule 501 under the Securities Act.
SECTION 4.5 BROKERS. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of the Purchaser.
ARTICLE 5
ADDITIONAL AGREEMENTS
SECTION 5.1 REGULATORY AND OTHER AUTHORIZATIONS; NOTICES AND CONSENTS.
(a) The Seller and the Purchaser shall use all reasonable efforts to
obtain all approvals of all Governmental Authorities that may be or become
necessary for each of them to obtain for their execution and delivery of, and
the performance of their respective obligations pursuant to, this Agreement.
Each party hereto agrees to make an appropriate filing pursuant to the HSR Act,
if required, with respect to the purchase and sale of the Shares and to supply
as promptly as practicable to the appropriate Governmental Authorities any
additional information and documentary material that may be requested pursuant
to the HSR Act.
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(b) The Seller shall give promptly such notices to third parties and
use its reasonable efforts to obtain such third party consents as may be
necessary in connection with the transactions contemplated by this Agreement.
(c) The Purchaser acknowledges that it is required to make filings
under the Exchange Act (including, without limitation, filings required by
Section 13 and Section 16 of the Exchange Act) in connection with the
transactions contemplated by this Agreement.
(d) The Seller shall cause the Shares to be approved for listing on the
Nasdaq Stock Market, subject to official notice of issuance, as of the Closing.
SECTION 5.2 SELLER SHAREHOLDERS APPROVAL. (a) In the event approval of
Seller's shareholders is required by the Nasdaq Stock Market Marketplace Rules,
Seller shall (i) promptly prepare a proxy statement (the "Proxy Statement") to
be mailed to the shareholders of Seller in connection with transactions
contemplated hereby, which shall conform in all material respects to all
applicable legal requirements; (ii) call a special meeting of the shareholders
of Seller to be held as soon as practicable for purposes of voting upon the
transactions contemplated hereby; and (iii) use its best efforts to solicit and
obtain votes of the shareholders of Seller in favor of the transactions
contemplated hereby. The Proxy Statement shall include a recommendation by the
Board of Directors of Seller recommending approval of such transactions by
Seller's shareholders. When the Proxy Statement is mailed to the shareholders of
Seller, and at times subsequent to such mailing, up to and including the date of
the Meeting, such Proxy Statement and all supplements thereto, with respect to
all information set forth therein (x) will comply in all material respects with
the provisions of the Exchange Act and any other applicable statutory or
regulatory requirements, and (y) will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements contained therein not misleading.
SECTION 5.3 NOTICE OF DEVELOPMENTS.
(a) Prior to the Closing, the Seller shall promptly notify the
Purchaser in writing of all events, circumstances, facts and occurrences arising
subsequent to the date of this Agreement which could reasonably be expected to
result in any breach of a representation or warranty or covenant of the Seller
in this Agreement or which could reasonably be expected to have the effect of
making any representation or warranty of the Seller in this Agreement untrue or
incorrect at any time from the date hereof through the Closing.
(b) Prior to the Closing, the Purchaser shall promptly notify the
Seller in writing of all events, circumstances, facts and occurrences arising
subsequent to the date of this Agreement which could reasonably be expected to
result in any breach of a representation or warranty or covenant of the
Purchaser in this Agreement or which could reasonably be expected to have the
effect of making any representation or warranty of the Purchaser in this
Agreement untrue or incorrect at any time from the date hereof through the
Closing.
SECTION 5.4 REGISTRATION RIGHTS. The Shares and all securities issued
on account of or with respect to the Shares by reason of stock splits, stock
dividends, recapitalizations or otherwise shall be considered "Securities" under
the Registration Rights Agreement pursuant to which the Shares (as adjusted for
stock splits, stock dividends, combinations or similar transactions) shall be
accorded all registration and other rights to the extent set forth in such
Registration Rights Agreement. In addition, in the event that the rights
hereunder are transferred to an Affiliate of Sonera, the Purchaser's
registration and other rights set forth
9
in such Registration Rights Agreement with respect to the Shares will likewise
be assigned to the extent permitted therein.
SECTION 5.5 RESALE RESTRICTIONS. The Purchaser acknowledges that the
Shares have not been registered under the Securities Act or any state securities
law, and the Purchaser hereby agrees not (and not to enter into any agreement)
to effect any Sale of the Shares unless and until such transaction is registered
under the Securities Act and any applicable state securities law or unless such
transaction is exempt from registration under the Securities Act and such laws;
PROVIDED, that in the event the Purchaser desires to claim an exemption from
registration in connection with any such transaction, as a condition to claiming
such exemption, the Purchaser shall deliver to the Seller a legal opinion issued
by the Purchaser's legal counsel, which opinion and counsel must be reasonably
satisfactory to the Seller, establishing the applicability of an exemption to
such transaction. The certificate representing the Shares shall bear a legend
referencing the restrictions on transferability set forth in this Agreement, and
the Seller may place stop transfer orders with its transfer agent with respect
to the Shares.
SECTION 5.6 REGISTRATION OF SHARES. The Seller shall, upon issuance of
the Shares and prior to the delivery of stock certificates evidencing the Shares
pursuant to Section 2.4, register the Shares in the name of the Purchaser in the
stock records of the Seller.
SECTION 5.7 CERTAIN INFORMATION. For a period commencing on the date of
this Agreement and ending not earlier than two years from the Closing Date, for
so long as the Seller is subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, the Seller shall file all reports and other
information required to be filed by Section 13 or 15(d) under the Exchange Act,
as the case may be, as shall be necessary in order that the conditions to the
availability of Rule 144 under the Securities Act, as such Rule may be amended,
in connection with any Sale of Shares by the Purchaser shall be met.
SECTION 5.8 FURTHER ACTION. Each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things necessary, proper or advisable under applicable Law,
and execute and deliver such documents and other papers, as may be required to
carry out the provisions of this Agreement and consummate and make effective the
transactions contemplated by this Agreement.
ARTICLE 6
CONDITIONS TO CLOSING
SECTION 6.1 CONDITIONS TO OBLIGATIONS OF THE SELLER. The obligations of
the Seller to consummate the transactions contemplated by this Agreement shall
be subject to the satisfaction (or waiver by the Seller, at its sole
discretion), at or prior to the Closing, of each of the following conditions:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS. The representations and
warranties of the Purchaser contained in this Agreement shall have been true and
correct in all material respects when made and shall be true and correct in all
material respects as of the Closing, with the same force and effect as if made
as of the Closing, other than such representations and warranties as are made as
of another date, which shall be true and correct in all material respects as of
such date, and the covenants and agreements contained in this Agreement to be
complied with by the Purchaser at or before the Closing shall have been complied
with in all material respects, and the Seller shall have received a certificate
from the Purchaser as to the foregoing signed by a duly authorized officer
thereof and dated as of the Closing;
10
(b) NO PROCEEDING OR LITIGATION. No Action shall have been commenced by
or before any Governmental Authority against either the Seller or the Purchaser
seeking to restrain or materially and adversely alter the transactions
contemplated by this Agreement which, in the reasonable, good faith
determination of the Seller, is likely to render it impossible or unlawful to
consummate such transactions PROVIDED, HOWEVER, that the provisions of this
Section 6.1(b) shall not apply if the Seller has directly or indirectly
solicited or encouraged any such Action;
(c) RESOLUTIONS OF THE PURCHASER. The Seller shall have received a true
and complete copy, certified by the Secretary or an Assistant Secretary of the
Purchaser, of the resolutions duly and validly adopted by the Board of Directors
of the Purchaser evidencing its authorization, if required by law, of the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby;
(d) CONSENTS AND APPROVALS. The Seller shall have received evidence
that the applicable waiting period under the HSR Act shall have expired or been
terminated;
(e) SHAREHOLDER APPROVAL. If approval of Seller's shareholders is
required by the Nasdaq Stock Market Marketplace Rules, the sale of Shares shall
have been duly approved at a special meeting of the shareholders by a majority
of the total votes cast on the proposal in person or by proxy;
(f) INVESTMENT AGREEMENT. The Seller and the Purchaser shall have
entered into the Investment Agreement substantially in the form attached as
Annex I; and
(g) REGISTRATION RIGHTS AGREEMENT. The Seller and the Purchaser shall
have entered into the Registration Rights Agreement substantially in the form
attached as Annex II.
SECTION 6.2 CONDITIONS TO OBLIGATIONS OF THE PURCHASER. The obligations
of the Purchaser shall be subject to the satisfaction (or waiver by the
Purchaser, at its sole discretion), at or prior to the Closing, of each of the
following conditions:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS. The representations and
warranties of the Seller contained in this Agreement shall have been true and
correct in all material respects when made and shall be true and correct in all
material respects as of the Closing with the same force and effect as if made as
of the Closing, other than such representations and warranties as are made as of
another date, which shall be true and correct as of such date, and the covenants
and agreements contained in this Agreement to be complied with by the Seller at
or before the Closing shall have been complied with in all material respects,
and the Purchaser shall have received a certificate of the Seller as to the
foregoing signed by a duly authorized officer thereof and dated as of the
Closing;
(b) NO PROCEEDING OR LITIGATION. No Action shall have been commenced by
or before any Governmental Authority against either the Seller or the Purchaser,
seeking to restrain or materially and adversely alter the transactions
contemplated by this Agreement which, in the reasonable, good faith
determination of the Purchaser, is likely to render it impossible or unlawful to
consummate such transactions or which could have a Material Adverse Effect;
PROVIDED, HOWEVER, that the provisions of this Section 6.2(b) shall not apply if
the Purchaser has directly or indirectly solicited or encouraged any such
Action;
(c) RESOLUTIONS OF THE SELLER. The Purchaser shall have received a true
and complete copy, certified by the Secretary or an Assistant Secretary of the
Seller, of Articles of Incorporation and By-Laws of the Seller, the resolutions
duly and validly adopted by the Board of Directors of the Seller evidencing
their authorization of the execution and delivery of this Agreement, the
issuance of the Shares and
11
the consummation of the transactions contemplated hereby (including the actions
contemplated under Section 3.11 hereof) and, if shareholder approval is required
by the Nadsaq Stock Market Marketplace Rules, of resolutions duly and validly
adopted by the shareholders of the Seller evidencing their authorization of the
issuance of the Shares;
(d) GOOD STANDING. The Purchaser shall have received a good standing
certificate for the Seller from the Secretary of State of the State of Oregon,
dated as of a date not earlier than five Business Days prior to the Closing Date
and accompanied by a bring-down certificate signed by the Secretary or an
Assistant Secretary of the Seller dated within one day prior to the Closing
Date;
(e) CONSENTS AND APPROVALS. The Purchaser shall have received evidence
that the applicable waiting period under the HSR Act shall have expired or been
terminated;
(f) INVESTMENT AGREEMENT. The Seller and the Purchaser shall have
entered into the Investment Agreement substantially in the form attached as
Annex I;
(g) REGISTRATION RIGHTS AGREEMENT. The Seller and the Purchaser shall
have entered into the Registration Rights Agreement substantially in the form
attached as Annex II;
(h) WAIVERS. The Seller shall provide the Purchaser evidence that the
investors identified on Schedule 3.2 have waived or failed to exercise their
rights of first refusal after the Seller gave proper notice to such investors in
connection with this Agreement; and
(i) APPOINTMENT OF SONERA DESIGNEES TO METRO ONE'S BOARD OF DIRECTORS.
The Seller's Board of Directors shall have adopted a resolution to increase the
number of members of the board to 7, and elect the two directors designated by
the Purchaser to be effective upon Closing.
ARTICLE 7
SURVIVAL
SECTION 7.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
(a) The representations and warranties of the Seller to the Purchaser
contained in this Agreement shall survive the Closing until the first
anniversary of the Closing Date. Neither the period of survival nor the
liability of the Seller with respect to the Seller's representations and
warranties shall be reduced by any investigation made at any time by or on
behalf of the Purchaser. If written notice of a claim has been given prior to
the expiration of the applicable representations and warranties in good faith by
the Purchaser to the Seller, then the relevant representations and warranties
shall survive as to such claim, until such claim has been finally resolved.
(b) The representations and warranties of the Purchaser to the Seller
contained in this Agreement shall survive the Closing until the first
anniversary of the Closing Date. Neither the period of survival nor the
liability of the Purchaser with respect to the Purchaser's representations and
warranties shall be reduced by any investigation made at any time by or on
behalf of the Seller. If written notice of a claim has been given prior to the
expiration of the applicable representations and warranties in good faith by the
Seller to the Purchaser, then the relevant representations and warranties shall
survive as to such claim, until such claim has been finally resolved.
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ARTICLE 8
TERMINATION AND WAIVER
SECTION 8.1 TERMINATION. This Agreement may be terminated as follows:
(a) by the Purchaser if, between the date hereof and the time scheduled
for the Closing: (i) any representation or warranty of the Seller contained in
this Agreement shall not have been true and correct when made, except where such
failure does not cause a Material Adverse Effect; (ii) the Seller shall not have
complied in all material respects with any covenant or agreement to be complied
with by it and contained in this Agreement; or (iii) the Seller makes a general
assignment for the benefit of creditors, or any proceeding shall be instituted
by or against the Seller seeking to adjudicate it as bankrupt or insolvent, or
seeking liquidation, winding up or reorganization, arrangement, adjustment,
protection, relief or composition of its debts under any Law relating to
bankruptcy, insolvency or reorganization; or
(b) by the Seller if, between the date hereof and the time scheduled
for the Closing: (i) any representation or warranty of the Purchaser contained
in this Agreement shall not have been true and correct when made, except where
such failure does not cause a Material Adverse Effect; (ii) the Purchaser shall
not have complied in all material respects with any covenant or agreement to be
complied with by it and contained in this Agreement; or (iii) the Purchaser
makes a general assignment for the benefit of creditors, or any proceeding shall
be instituted by or against the Purchaser seeking to adjudicate it as bankrupt
or insolvent, or seeking liquidation, winding up or reorganization, arrangement,
adjustment, protection, relief or composition of its debts under any Law
relating to bankruptcy, insolvency or reorganization; or
(c) by either the Seller or the Purchaser if the Closing shall not have
occurred on or prior to January 31, 2001, if approval by Seller's shareholders
is not required by the Nasdaq National Stock Market Marketplace Rules, or April
30, 2001 if such shareholder approval is required which termination shall be
effective upon receipt of written notice thereof by the intended recipient as
set forth in Section 9.2 hereof; or
(d) by either the Purchaser or the Seller in the event that any
Governmental Authority shall have issued an order, decree or ruling or taken any
other action restraining, enjoining or otherwise prohibiting the transactions
contemplated by this Agreement, and such order, decree, ruling or other action
shall have become final and nonappealable, which termination shall be effective
upon receipt of written notice thereof by the intended recipient as set forth in
Section 9.2 hereof; or
(e) immediately upon the mutual written consent of the Seller and the
Purchaser; or
(f) by either the Purchaser or the Seller if shareholder approval is
required by the Nasdaq Stock Market Marketplace Rules and the requisite approval
of the shareholders of the Seller is not obtained at a duly held meeting of
shareholders at which is held a shareholder vote on approval of the transactions
contemplated herein.
SECTION 8.2 RIGHT OF CURE. Notwithstanding the foregoing, if the
Purchaser or the Seller ("TERMINATING PARTY") claim the right to terminate this
Agreement pursuant to Section 8.1(a) or Section 8.1(b), then the Terminating
Party must provide the other party ("RECIPIENT") with written notice of its
intention to terminate the Agreement, which notice shall identify the condition
or event giving rise
13
to the Terminating Party's right to terminate the Agreement. The Recipient will
have ten Business Days from receipt of such notice to cure such condition or
event; provided that in the event that the Terminating Party provides such
notice based on a representation or warranty of the Recipient contained in this
Agreement which was not true or correct when made upon the execution of this
Agreement, an action by the Recipient within ten days of such notice such that,
if called upon to do so, Recipient could make such representation or warranty in
a truthful and correct manner in all material respects will be deemed to
constitute a cure of such default. The provisions of this Section 8.2 shall not
apply to termination pursuant to Sections 8.1(c), 8.1 (d), 8.1(e) or 8.1(f).
SECTION 8.3 EFFECT OF TERMINATION. In the event of termination of this
Agreement as provided in Section 8.1, this Agreement shall forthwith become void
and there shall be no liability on the part of either party hereto except that
nothing herein shall relieve either party from liability for any breach of this
Agreement occurring prior to termination.
SECTION 8.4 WAIVER. Either party to this Agreement may: (i) extend the
time for the performance of any of the obligations or other acts of the other
party; (ii) waive any inaccuracies in the representations and warranties of the
other party contained herein or in any document delivered by the other party
pursuant hereto; or (iii) waive compliance with any of the agreements or
conditions of the other party contained herein. Any such extension or waiver
shall be valid only if set forth in an instrument in writing signed by the party
to be bound thereby. Any waiver of any term or condition shall not be construed
as a waiver of any subsequent breach or a subsequent waiver of the same term or
condition, or a waiver of any other term or condition, of this Agreement. The
failure of any party to assert any of its rights hereunder shall not constitute
a waiver of any of such rights.
ARTICLE 9
GENERAL PROVISIONS
SECTION 9.1 EXPENSES. Except as otherwise specified in this Agreement,
all costs and expenses, including, without limitation, fees and disbursements of
counsel, financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses, whether or not the Closing shall have
occurred.
SECTION 9.2 NOTICES. All notices, requests, claims, demands, and other
communications hereunder shall be in writing and shall be given or made by
delivery in person, overnight courier service (with delivery confirmed) or by
telecopy (with a confirmatory copy sent by overnight courier) to the other party
at the following address (or at such other address for a party as shall be
specified in a notice given in accordance in this Section 9.2 by like Notice)
(a) if to Company, to:
Metro One Telecommunications, Inc.
11200 Murray Scholls Place
Beaverton, OR 97008
Attn: Chief Executive Officer
Telecopy No.: 503-521-0923
with a copy (which shall not constitute notice) to:
14
Heller Ehrman White & McAuliffe LLP
601 S. Figueroa Street, 40th Floor
Los Angeles, CA 90017
Attn: Neal H. Brockmeyer, Esq.
Telecopy No.: 213-614-1868
(b) if to the original Holder, to:
Sonera Media Holding B.V.
c/o Sonera Corporation
Teollisuuskatu 15
P.O. Box 106, SONERA-00051
Helsinki, Finland
Attn: Maire Laitinen, General Counsel
Telecopy No.: 011-358-2040-3414
with a copy (which shall not constitute notice) to:
Patton Boggs LLP
2550 M St., N.W.
Washington, D.C. 20037
Attn: Richard M. Stolbach, Esq.
Telecopy No.: 202-457-6315
Except as otherwise provided in this Agreement, the date of each such
notice and request shall be deemed to be, and the date on which each such notice
and request shall be deemed given shall be at the time delivered, if personally
delivered or mailed; when receipt is acknowledged, if sent by telecopy; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next Business Day delivery.
SECTION 9.3 PUBLIC ANNOUNCEMENTS. No party to this Agreement shall
make, or cause to be made, any press release or public announcement or otherwise
communicate with any news media in respect of this Agreement or the transactions
contemplated hereby without the prior written consent of the other party (which
shall not be unreasonably withheld or delayed), and the parties shall cooperate
as to the timing and contents of any such press release or public announcement;
PROVIDED, HOWEVER, that with respect to any disclosure required by law or by a
listing agreement with the Nasdaq Stock Market or any securities exchange on
which the Purchaser's or the Seller's securities are listed, prior written
consent is not necessary if the party required to make such disclosure shall use
reasonable efforts to consult with the other party as to the timing and contents
of such disclosure and to obtain such consent prior to the time such disclosure
is required to be made.
SECTION 9.4 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any Law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic and legal
substance of the transactions contemplated hereby are not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in a mutually acceptable
manner in order that the transactions contemplated hereby are consummated as
originally contemplated to the greatest extent possible.
15
SECTION 9.5 ENTIRE AGREEMENT. This Agreement and the documents referred
to herein constitute the entire agreement of the parties hereto with respect to
the subject matter hereof and supersede all prior agreements and undertakings,
both written and oral, between the Seller and the Purchaser with respect to the
subject matter hereof.
SECTION 9.6 ASSIGNMENT. This Agreement may not be assigned by operation
of Law or otherwise without the express written consent of the Seller and the
Purchaser (which consent may be granted or withheld in the sole discretion of
the Seller or the Purchaser), except that the Purchaser may assign this
Agreement to an Affiliate of the Purchaser by notice thereof to the Seller. Any
such assignment shall not relieve Purchaser from the obligations pursuant to
Article 2 hereof to the extent not performed by the Affiliate assignee.
SECTION 9.7 NO THIRD PARTY BENEFICIARIES. This Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
successors and permitted assigns, and nothing herein, express or implied, is
intended to or shall confer upon any other Person any legal or equitable right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement.
SECTION 9.8 AMENDMENT. This Agreement may not be amended or modified,
except: (i) by an instrument in writing signed by, or on behalf of, the Seller
and the Purchaser; or (ii) by a waiver in accordance with Section 8.4.
SECTION 9.9 GOVERNING LAW. This Agreement shall be governed by the laws
of the State of New York without reference to the principles or rules governing
conflicts of laws.
SECTION 9.10 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
transmitted via facsimile, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the same
agreement.
SECTION 9.11 SPECIFIC PERFORMANCE. Each of the parties hereto
acknowledges that in the event of a breach by any of them of any material
provision of this Agreement, the aggrieved party may be without an adequate
remedy at law. Each of the parties therefore agrees that in the event of such a
breach hereof the aggrieved party may elect to institute and prosecute
proceedings in any court of competent jurisdiction to enforce specific
performance or to enjoin the continuing breach hereof. By seeking or obtaining
any such relief, the aggrieved party shall not be precluded from seeking or
obtaining any other relief to which it may be entitled.
SECTION 9.12 DISPUTE RESOLUTION. In the event that any dispute,
controversy or claim arises between the Purchaser and Seller with respect to
this Agreement or the transactions contemplated hereby, the following procedures
shall apply:
(a) The parties will attempt in good faith to resolve any dispute,
controversy or claim under, arising out of, relating to or in connection with
this Agreement, including the negotiation, execution, interpretation,
construction, performance, non-performance, breach, termination, validity,
scope, coverage or enforceability of this Agreement or any alleged fraud in
connection therewith, promptly by negotiation between representatives of the
parties. If any such dispute, controversy or claim should arise, duly authorized
representatives of the Purchaser and the Seller will meet at least once at a
mutually agreed time and place and will attempt to resolve the matter. Either
representative may request the other to meet again within 14 days thereafter.
16
(b) If the matter has not been resolved pursuant to the foregoing
procedures within 30 days after the first meeting of the representatives (which
period may be extended by mutual agreement), the matter shall be settled, at the
request of either party, by arbitration administered by the American Arbitration
Association and conducted in accordance with its Commercial Arbitration Rules.
The arbitration decision shall be rendered within 180 days from the date of
appointment of all the arbitrators.
(c) There shall be three arbitrators. Within ten days after the
initiation of an arbitration proceeding, Seller shall select one arbitrator and
the Purchaser shall select one arbitrator, and those two arbitrators shall then
select within ten days a third arbitrator. If those two arbitrators are unable
to select a third arbitrator within such ten-day period, a third arbitrator
shall be appointed by the American Arbitration Association. If either party
fails or refuses to appoint an arbitrator, the arbitrator appointed by the other
party shall be the sole arbitrator.
(d) The decision of at least two of the three arbitrators (or a single
arbitrator, as the case may be due to a default in appointment) shall be final
and binding upon the parties. The arbitrators' decision shall be in writing and
shall provide a reasoned basis for the resolution of each dispute and for any
award. The arbitrators shall not have power to award damages in connection with
any dispute in excess of actual compensatory damages and shall not multiply
actual damages or award consequential or punitive damages. Equitable remedies
shall be available in any such arbitration.
(e) The substantive and procedural law of the State of New York shall
apply to any such arbitration proceedings. The place of any such arbitration
shall be New York, New York. Judgment on an award rendered by the arbitrators
may be entered in any court of competent jurisdiction.
(f) Notwithstanding the provisions of this Section 9.12, either party
may seek injunctive or other equitable relief to maintain the status quo before
any federal or state court of competent jurisdiction within New York, New York,
in connection with any dispute, controversy or claim arising between the
Purchaser and the Seller with respect to this Agreement or the transactions
contemplated hereby.
(g) Each party shall bear its own fees and expenses with respect to the
arbitration and any proceedings related thereto and the parties shall share
equally the fees and expenses of the American Arbitration Association and the
arbitrators, however, the prevailing party shall be reimbursed for its expenses
and attorney fees by the other party.
17
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
METRO ONE TELECOMMUNICATIONS, INC.
By: /s/ TIMOTHY A. TIMMINS
---------------------------------------
Name: Timothy A. Timmins
Title: President and Chief Executive Officer
SONERA MEDIA HOLDING B.V.
By: /s/ OLLI T.TUOHIMAY
---------------------------------------
Name:Olli T. Tuohimay
Title: Attorney in Fact
[Signature Page for Stock Purchase Agreement between Metro One
Telecommunications, Inc. and Sonera Media Holding B.V.]
18
ANNEX I-STOCK PURCHASE AGREEMENT
INVESTMENT AGREEMENT
BETWEEN
METRO ONE TELECOMMUNICATIONS, INC.
AN OREGON CORPORATION
AND
SONERA MEDIA HOLDING B.V.
A NETHERLANDS CORPORATION
DATED AS OF NOVEMBER [ ], 2000
INVESTMENT AGREEMENT
This INVESTMENT AGREEMENT (the "Agreement") is entered into as of
November [ ], 2000 (the "Effective Date") by and between METRO ONE
TELECOMMUNICATIONS, INC., an Oregon corporation ("Metro One"), and SONERA MEDIA
HOLDING B. V. , a corporation organized under the laws of the Netherlands
("Sonera") and a wholly-owned subsidiary of SONERA CORPORATION, a limited
liability company organized under the laws of the Republic of Finland ("Sonera
Corporation").
RECITALS
WHEREAS, Metro One and Sonera entered into a Stock Purchase Agreement
dated November 8, 2000 (the "Stock Purchase Agreement"), whereby Sonera
purchased on the date hereof 4,000,000 shares of Metro One's Common Stock, no
par value, for a purchase price of $17.00 per share, or an aggregate of
$68,000,000 (the "Aggregate Purchase Price");
WHEREAS, in connection with Sonera becoming a long-term investor in
Metro One, the parties desire to establish terms governing certain aspects of
their relationship; and
WHEREAS, concurrently herewith the parties are also entering into a
Registration Rights Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, conditions and promises hereinafter set forth, the parties hereby
agree as follows:
ARTICLE 1
DEFINITIONS
1.1 CERTAIN DEFINITIONS. Unless the context otherwise requires, the
terms defined below shall have the meanings specified for all purposes of this
Agreement, applicable to both the singular and plural forms of any of the terms
so defined. For purposes of this Agreement:
"Affiliate" shall mean, with respect to any party hereto, any
corporation or other business entity which, directly or indirectly, through
stock ownership or other arrangement controls, is controlled by or is under
common control with such party. The term "control" shall mean the possession,
direct or indirect, of the power to direct or
cause the direction of the management or policies of such person, whether by
reason of ownership of voting stock or other equity interests.
"Agreement" shall have the meaning set forth in the preamble hereof.
"Aggregate Percentage" shall mean the percentage obtained by dividing
the number of shares of Common Stock beneficially owned by the Sonera Holders by
the total number of shares of Common Stock outstanding on a fully-diluted basis
(taking into account shares issuable upon exercise of options or warrants or
conversion of outstanding securities).
"Aggregate Purchase Price" shall have the meaning set forth in the
preamble hereof.
"Anniversary" shall mean the date occurring 12 months after the
Effective Date and the date occurring each 12 months thereafter.
"Business Day" shall mean any day other than a Saturday, Sunday, legal
holiday in Portland, Oregon or Helsinki, Finland, or other day on which
commercial banks in Portland, Oregon or Helsinki, Finland are authorized by law
or governmental decree to close. Unless qualified by Business Day, references to
days herein shall be to calendar days.
"Buy Back Program" shall have the meaning set forth in Section 5.7
hereof.
"Change in Control Activities" shall have the meaning set forth in
Section 6.1 hereof.
"Commission" shall mean the U.S. Securities and Exchange Commission.
"Common Stock" shall mean the class of shares of Metro One designated
as Common Stock, no par value, in its Articles of Incorporation, as in effect on
the date of this Agreement, and to the extent issued by Metro One all other
securities generally entitled to vote for the election of directors.
"Competitor" shall mean any Person (other than Metro One, Sonera and
their respective Affiliates) that, at the time of a Sonera Change in Control or
a proposed Transfer of Purchased Shares (as the case may be), directly or
indirectly through an Affiliate, operates, manages or owns a majority interest
in a business that is (i) engaged primarily in the provision of directory
assistance and information services to wireless network operators in the United
States, or (ii) a wireless network operator in the United States whose
ownership, direct or indirect, of Purchased Shares in Metro One would, in the
reasonable judgment of both Metro One and Sonera, have a Material Adverse
Effect.
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"Disclosures" shall have the meaning set forth in Section 9.12 hereof.
"$" shall mean the basic unit of the lawful currency of the United
States of America.
"Effective Date" shall have the meaning set forth in the preamble
hereof.
"Event Notice" shall have the meaning set forth in Section 5.5 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Knowledge" of Metro One or similar terms indicating awareness shall
mean the actual knowledge of Metro One's officers and directors after a
reasonably diligent investigation.
"Lien" shall mean any pledge or assignment by way of security.
"Material Adverse Effect" shall mean a material adverse effect on the
financial condition, operations or business of Metro One and its Subsidiaries,
taken as a whole, or on the ability of Metro One enter into and consummate the
transactions contemplated by and lawfully to perform its obligations under this
Agreement and the Registration Rights Agreement in accordance with their
respective terms.
"Metro One" shall have the meaning set forth in the preamble hereof.
"Metro One Activities Notice" shall have the meaning set forth in
Section 6.1 hereof.
"Metro One Alternative Notice" shall have the meaning set forth in
Section 5.3 hereof.
"Metro One Change in Control" shall mean the occurrence of an event by
which (i) any Person (including one or more Affiliates of such Person or a 13D
Group, but excluding Sonera or any of its Affiliates) has become (or entered
into a binding agreement by which they will become) the beneficial owner of 50%
or more of the outstanding Common Stock (calculated with reference to the total
voting power thereof), excluding any Purchased Shares acquired from a Sonera
Holder, (ii) Metro One has sold (or entered into a binding contract to sell) all
or a substantial portion of its assets and/or proposes to liquidate and
dissolve, or (iii) there is consummated (or Metro One has entered into a binding
agreement by which there would be consummated) any consolidation or merger of
Metro One (A) in which Metro One is not the surviving corporation, or (B)
pursuant to which the Common Stock is converted into cash, securities or other
property, in each case other than a consolidation or merger of Metro One in
which the holders of the Common Stock immediately prior to such consolidation
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or merger own, directly or indirectly, more than 50% of the combined voting
power of the common equity securities of the surviving corporation immediately
after such consolidation or merger.
"Nasdaq" shall mean the Nasdaq Stock Market.
"New Issue Notice" shall have the meaning set forth in Section 4.2
hereof.
"New Issue Securities" shall have the meaning set forth in Section 4.1
hereof.
"Percentage Election" shall have the meaning set forth in Section 4.2
hereof.
"Permitted Transferee" shall mean (i) Sonera Corporation or (ii) any
Subsidiary of Sonera Corporation.
"Person" shall mean any general or limited partnership, corporation,
limited liability company, joint venture, trust, business trust, cooperative,
association, individual or other entity, and heirs, executors, administrators,
legal representatives, successors and assigns of such person.
"Preliminary Sale Notice" shall have the meaning set forth in Section
4.1 hereof.
"Public Market Sale" shall mean the sale of Common Stock pursuant to
Rule 144 or in an offering registered under the Securities Act of 1933, as
amended, (whether or not pursuant to an underwriting or block sale).
"Purchased Shares" shall mean (i) the shares of Common Stock purchased
by Sonera pursuant to the Stock Purchase Agreement and pursuant to Article 4
hereof, (ii) any shares of Common Stock or other securities issued as (or
issuable upon the conversion or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution with respect to, or in
exchange by Metro One generally for, or in replacement by Metro One generally
of, such shares of Common Stock; and (iii) any securities issued in exchange for
such shares of Common Stock in any subsequent merger or reorganization of Metro
One.
"Registration Rights Agreement" shall have the meaning set forth in
Section 2.1 hereof.
"Rule 144" shall have the meaning set forth in Section 5.2 hereof.
"Sonera" shall have the meaning set forth in the preamble hereof.
"Sonera Alternative Notice" shall have the meaning set forth in Section
4.2 hereof.
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"Sonera Change in Control" shall mean the occurrence after the
Effective Date of an event by which (i) any Person (including one or more
Affiliates of such Person or a 13D Group) has become (or entered into a binding
agreement by which they will become) the beneficial owner of 50% or more of the
outstanding voting stock of Sonera Corporation (calculated with reference to the
total voting power of shares entitled to vote for the election of directors),
(ii) Sonera Corporation has sold (or entered into a binding contract to sell)
all or a substantial portion of its assets and/or proposes to liquidate and
dissolve, or (iii) there is consummated (or Sonera Corporation has entered into
a binding agreement by which there would be consummated) any consolidation or
merger of Sonera Corporation (A) in which Sonera Corporation is not the
surviving corporation, or (B) pursuant to which the voting stock of Sonera
Corporation is converted into cash, securities or other property, in each case
other than a consolidation or merger of Sonera Corporation in which the holders
of the voting stock of Sonera Corporation immediately prior to such
consolidation or merger own, directly or indirectly, more than 50% of the
combined voting power of the common equity securities of the surviving
corporation immediately after such consolidation or merger.
"Sonera Corporation" shall have the meaning set forth in the preamble
hereof. For purposes of the definition of Sonera Change in Control and Section
5.5, Sonera Corporation shall also mean Sonera or any Sonera Holder (or Sonera
and Sonera Holders as a group) that owns more than 2,000,000 Purchased Shares
and is no longer an Affiliate of Sonera Corporation.
"Sonera Holder" shall mean Sonera and each Permitted Transferee that
acquires Purchased Shares, and "Sonera Holders" shall mean all Sonera Holders
unless the context indicates otherwise.
"Sonera Transaction Notice" shall have the meaning set forth in Section
5.5 hereof.
"Sonera Transfer Notice" shall have the meaning set forth in Section
5.3 hereof.
"Standstill Period" shall have the meaning set forth in Section 8.1
hereof.
"Stock Purchase Agreement" shall have the meaning set forth in the
recitals hereof.
"Subsidiary" of a Person shall mean a corporation as to which a
majority of the voting power is owned or controlled by such Person, either
directly or indirectly; but any such corporation shall be deemed to be a
Subsidiary of such Person only as long as such ownership or control exists.
"Third Party Transferee" shall mean any Person other than a Permitted
Transferee.
5
"Tender Offer" shall mean a bona fide public tender offer subject to
the provisions of Regulation 14D when first commenced within the meaning of Rule
14d-2(a) of the rules and regulations under the Exchange Act, by any Person or
any 13D Group to purchase Common Stock or to exchange cash or other
consideration for any Common Stock and which consists of an offer to acquire
100% of the outstanding Common Stock and is conditioned (which condition may not
be waived) on at least a majority of the shares of outstanding Common Stock
being tendered and not withdrawn with respect to such offer.
"Transfer" shall have the meaning set forth in Section 5.1 hereof.
"Triggering Person" shall have the meaning set forth in Section 8.2
hereof.
"U.S. GAAP" shall mean United States generally accepted accounting
principles and practices as in effect from time to time and applied consistently
throughout the periods involved.
"13D Group" shall mean any group of Persons formed for the purpose of
acquiring, holding, voting or disposing of Common Stock which would be required
under Section 13(d) of the Exchange Act, and the rules and regulations
promulgated thereunder, to file Schedule 13D or Schedule 13G with the Commission
as a "person" within the meaning of Section 13(d)(3) of the Exchange Act if such
group beneficially owned (as defined without excluding paragraph (d) of Rule
13d-3) sufficient securities to require such a filing under the Exchange Act.
When references herein are to a group under Section 13(d) and not to members of
such group, such references shall be deemed to refer to actions of the group
acting as such group and not to the individual actions of any members of such
group, unless and to the extent such actions would not be permitted to be taken
by the group.
1.2 USAGE. When a reference is made in this Agreement to a Section,
such reference shall be to a Section of this Agreement unless otherwise
indicated. Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation." The use of a gender herein shall be deemed to include the neuter,
masculine and feminine genders whenever necessary or appropriate. Whenever the
word "herein" or "hereof" is used in this Agreement, it shall be deemed to refer
to this Agreement and not to a particular Section of this Agreement unless
expressly stated otherwise.
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ARTICLE 2
RELATED EVENTS
2.1 TRANSACTIONS. Simultaneously with the execution of this Agreement,
Metro One is selling Common Stock to Sonera upon the terms set forth in the
Stock Purchase Agreement; and Metro One and Sonera are entering into a
Registration Rights Agreement in the form of Annex II attached to the Stock
Purchase Agreement (the "Registration Rights Agreement").
2.2 METRO ONE BOARD OF DIRECTORS. Effective upon the execution of this
Agreement, Metro One's Board of Directors has (a) adopted a resolution to
increase to 7 the number of Metro One directors, and (b) elected the 2 directors
designated by Sonera (identified in SCHEDULE 2.2 hereto) to the Metro One Board
of Directors, one such designee to be a Class II director and one such designee
to be a Class III director. Metro One agrees to use its best efforts to cause
Sonera's designees to be nominated by the Board of Directors of Metro One for
election to such Board by the Metro One shareholders at the time and in the
manner proper for such nomination and election. In the event a Sonera designee
ceases to be a member of the Metro One Board of Directors for any reason, the
individual designated by Sonera as a replacement shall be elected to the Metro
One Board of Directors by the remaining members of such Board. Sonera shall
retain the right to designate (i) one director pursuant to this Section 2.2 so
long as Sonera Holders own at least 2,000,000 shares of Common Stock, and (ii) 2
directors pursuant to this Section 2.2 so long as Sonera Holders own at least
4,000,000 shares of Common Stock. In the event the size of the Metro One Board
of Directors is increased to greater than 7 directors, Sonera shall have the
right to designate such additional directors as may be necessary to maintain
Sonera's representation thereon in the proportion that Sonera's ownership of
Common Stock bears to the outstanding Common Stock on a fully-diluted basis
(rounding up the number of Sonera-designated directors if the fractional element
of the calculation of Sonera's proportionate representation is .5 or above);
provided, however, Sonera shall not be entitled to designate more than 2
directors so long as the Board of Metro One consists of 10 or fewer members,
unless the size of such Board is increased pursuant to a right of a third party
to designate a Metro One director. Metro One shall use its best efforts to cause
its Board of Directors to take all necessary and appropriate action to effect
promptly the election of Persons designated by Sonera pursuant to this Section
2.2.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF METRO ONE. Metro One represents
and warrants to Sonera, which representations and warranties shall survive the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, as follows:
(a) DUE ORGANIZATION. Metro One is a corporation duly organized,
validly existing and in good standing under the laws of the State of Oregon.
Each of Metro One and any of its Subsidiaries is duly qualified to do business
and is in good standing in all jurisdictions where the conduct of its business
or the ownership of its properties makes such qualification necessary, except
where the failure to so qualify would not have a Material Adverse Effect.
(b) POWER AND AUTHORITY; NO VIOLATION. Metro One has full power and
authority to execute, deliver and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby. This Agreement and the
Registration Rights Agreement, and any additional agreements executed by the
parties concurrently herewith, have been duly and validly authorized by all
necessary corporate action on the part of Metro One, and each such agreement
constitutes a legal, valid and binding obligation of Metro One enforceable in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting or relating to enforcement of creditors' rights generally. Neither the
execution, delivery or performance of this Agreement, nor the consummation by
Metro One of the transactions contemplated hereby will, with or without the
giving of notice or the passage of time, or both, (i) conflict with, violate,
result in a default or breach or loss of rights (or give rise to any right of
termination, cancellation or acceleration) under, or result in the creation of
any lien, pursuant to (A) any provision of the Articles of Incorporation or
By-laws of Metro One, (B) any material note, bond, indenture, mortgage, deed of
trust, contract, agreement, lease or other instrument or obligation to which
Metro One is a party or by which Metro One or any of its property may be bound
or affected, or (C) any law, order, judgment, ordinance, rule, regulation or
decree to which Metro One is a party or by which any of its property is bound,
or (ii) except as set forth in Schedule 3.2 to the Stock Purchase Agreement,
give rise to any right of first refusal, subscription or similar right with
respect to any interest in, or any properties or assets of, Metro One or any of
its Subsidiaries.
(c) LEGAL MATTERS. Except as set forth in Schedule 3.8 to the Stock
Purchase Agreement, there is no claim, legal action, counterclaim, suit,
arbitration, governmental investigation or legal, administrative or other
proceeding, or any order,
8
decree or judgment, in progress or pending, or to the Knowledge of Metro One
threatened, against or relating to the right of Metro One to execute and deliver
this Agreement or perform its obligations hereunder, or which could reasonably
be expected to have a Material Adverse Effect. There is outstanding no order,
writ, injunction, judgment or decree of any court, governmental agency or
arbitration tribunal which, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect, other than orders or decrees
involving the directory assistance industry in general.
(d) CAPITALIZATION OF METRO ONE. The authorized capital stock of
Metro One consists of 50,000,000 shares of Common Stock and 10,000,000 shares of
Preferred Stock, no par value, as both are defined in the Metro One Articles of
Incorporation. As of the date hereof, (i) [__ ] shares of Common Stock (not
including the shares being purchased by Sonera) are issued and outstanding, all
of which are duly authorized, validly issued, fully paid and nonassessable, and
(ii) no shares of Preferred Stock are issued and outstanding. Except as set
forth in SCHEDULE 3.1 hereto, there are no securities, options, warrants, calls,
rights, commitments, agreements, arrangements or undertakings of any kind
obligating Metro One to issue, deliver or sell or create, or cause to be issued,
delivered or sold or created, additional shares of capital stock or other voting
securities or common stock equivalents obligating Metro One to issue, grant,
extend or enter into any such security, option, warrant, call, right,
commitment, agreement, arrangement or undertaking.
(e) STOCK PURCHASE AGREEMENT REPRESENTATIONS AND WARRANTIES. The
representations and warranties made by Metro One in the Stock Purchase Agreement
are true and correct in all material respects as of the Effective Date.
3.2 REPRESENTATIONS AND WARRANTIES OF SONERA. Sonera represents and
warrants to Metro One, which representations and warranties shall survive the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, as follows:
(a) DUE ORGANIZATION. Sonera is a corporation duly organized,
validly existing and in good standing under the laws of the Netherlands.
(b) POWER AND AUTHORITY; NO VIOLATION. Sonera has full power and
authority to execute, deliver and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby. This Agreement and the
Registration Rights Agreement, and any additional agreements executed by the
parties concurrently herewith, have been duly and validly authorized by all
necessary corporate action on the part of Sonera and each such agreement
constitutes a legal, valid and binding obligation of Sonera, enforceable in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
9
affecting or relating to enforcement of creditors' rights generally. Neither the
execution, delivery or performance of this Agreement, nor the consummation by
Sonera of the transactions contemplated hereby will, with or without the giving
of notice or the passage of time, or both, conflict with, violate, result in a
default or breach or loss of rights (or give rise to any right of termination,
cancellation or acceleration) under, or result in the creation of any lien,
pursuant to (i) any provision of the charter or by-laws of Sonera; (ii) any
material note, bond, indenture, mortgage, deed of trust, contract, agreement,
lease or other instrument or obligation to which Sonera is a party or by which
Sonera or any of its property may be bound or affected, or (iii) any law, order,
judgment, ordinance, rule, regulation or decree to which Sonera is a party of by
which any of its property is bound.
(c) LEGAL MATTERS. There is no claim, legal action, counterclaim,
suit, arbitration, governmental investigation or legal, administrative or other
proceeding, nor any order, decree or judgment, in progress or pending, or to the
knowledge of Sonera threatened, against or relating to Sonera's right to execute
and deliver this Agreement or perform its obligations hereunder. There is
outstanding no order, writ, injunction, judgment or decree of any court,
governmental agency or arbitration tribunal which, individually or in the
aggregate, could reasonably be expected to impair in any material respect the
performance of Sonera's obligations hereunder or the consummation of the
transactions contemplated hereby, other than orders or decrees involving the
directory assistance industry in general.
(d) STOCK PURCHASE AGREEMENT REPRESENTATIONS AND WARRANTIES. The
representations and warranties made by Sonera in the Stock Purchase Agreement
are true and correct in all material respects as of the Effective Date.
ARTICLE 4
SONERA'S RIGHT TO PURCHASE ADDITIONAL METRO ONE SECURITIES
4.1 NEW ISSUE SECURITIES. If, at any time after the Effective Date and
prior to the 8th Anniversary, Metro One proposes to issue (or sell from
treasury) for cash Common Stock, or securities convertible into or exchangeable
for Common Stock, including debt or equity securities convertible into Common
Stock or other equity securities of Metro One, but excluding (i) non-voting,
non-convertible preferred stock and debt securities containing nominal equity
features, (ii) equity securities issuable upon exercise or conversion of debt or
equity securities, and (iii) equity securities issuable in connection with stock
option or other employee benefit plans approved by the Board of Directors, Metro
One shall provide Sonera notice (a "Preliminary Sale Notice") of the proposed
issuance of such securities (the "New Issue Securities"), such notice to set out
Metro One's good faith estimate as to the number of such securities proposed to
be issued
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(including projected timing) and the price (or price range) and other material
terms expected to be applicable thereto.
4.2 EXERCISE OF PURCHASE RIGHTS. (a) Within 30 days after providing the
Preliminary Sale Notice, Metro One shall provide Sonera notice (a "New Issue
Notice") of the specific number of New Issue Securities Metro One is offering to
sell (including projected timing) and the price (or price range for a Public
Market Sale) and all other material terms applicable thereto and shall provide
to Sonera therewith or within 5 Business Days thereafter such other information
as Sonera may have reasonably requested after receipt of the Preliminary Sale
Notice in order to evaluate the proposed sale. Within 10 Business Days of
receipt of the New Issue Notice, Sonera shall notify Metro One that (i) Sonera
agrees to purchase all of the New Issue Securities at the price (or at a price
within the range) specified in the New Issue Notice, or (ii) Sonera offers to
purchase a specified number of the New Issue Securities at the price in the New
Issue Notice or at a specified alternative price, together with the duration of
the offer and/or other terms (if any) for such purchase (a "Sonera Alternative
Notice"); or (iii) Sonera declines to purchase any New Issue Securities, which
decision shall be deemed to have been made in the event Sonera fails to respond
within such 10 Business Day period. In addition to specifying a number of New
Issue Securities that Sonera offers to purchase in a Sonera Alternative Notice,
Sonera may agree in the Sonera Alternative Notice to purchase, at a specified
price (or within a price range), share volume, timing and other parameters and
concurrently with a sale of New Issue Securities to any third parties, a number
of New Issue Securities up to and including that which would be sufficient to
maintain a specified percentage ownership interest in the Common Stock on a
fully-diluted basis (a "Percentage Election").
(b) A Sonera notice under Section 4.2(a)(i) will be deemed an
acceptance of Metro One's offer to sell the New Issue Securities.
(c) A Sonera Alternative Notice shall be deemed, during the 180 day
period following the New Issue Notice, a revocable offer of Sonera to buy the
New Issue Securities identified in such notice under the terms set forth
therein, subject to Section 4.4 hereof and conditioned on the sale of New Issue
Securities by Metro One to a third party at the price (or within the price
range) specified in such Sonera Alternative Notice. Metro One may accept the
offer in a Sonera Alternative Notice by notice provided to Sonera not less than
10 Business Days prior to closing if, at the time of such acceptance, the Sonera
offer has not expired in accordance with its terms or been revoked.
(d) A Percentage Election shall be deemed, during the 180 day
period following the New Issue Notice, a revocable agreement by Sonera to buy
and a binding agreement by Metro One to sell the applicable portion of the New
Issue Securities, subject to Section 4.4 hereof and conditioned on the sale of
New Issue Securities by
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Metro One to a third party at the price (or within the price range) and other
terms specified in such Percentage Election.
4.3 NEW ISSUE SECURITIES CLOSINGS. (a) If Sonera agrees pursuant to
Section 4.2(a)(i) to purchase all the New Issue Securities identified in the New
Issue Notice, or offers in a Sonera Alternative Notice to purchase all the New
Issue Securities and the terms offered in such Notice are acceptable to Metro
One, the purchase and sale shall be made at a closing on a date specified by
Metro One at least 10 Business Days prior to closing. Closing shall occur not
more than 60 Business Days after the date of the New Issue Notice at the offices
of Metro One, or at such other place or on such other date as Metro One and
Sonera may agree in writing.
(b) If Sonera is purchasing less than all of the offered New Issue
Securities (including pursuant to a Percentage Election), such purchase shall
take place at a closing concurrent with the closing of the sale to third parties
of the New Issue Securities described in the New Issue Notice at the offices of
Metro One (or at such other place as Metro One shall designate), on the terms
set forth in the New Issue Notice, the Sonera Alternative Notice (if accepted by
Metro One), or the Percentage Election, as applicable. Metro One agrees to keep
Sonera advised in writing and consult on a timely basis concerning the
anticipated timing and terms of any proposed sale of New Issue Securities to
third parties.
(c) At the Closing, Metro One shall deliver to Sonera (or any
Permitted Transferee designated by Sonera ) certificates representing the New
Issue Securities to be purchased, against payment of the purchase price therefor
by wire transfer of immediately available funds to an account designated by
Metro One at least 5 Business Days prior to the date of such closing.
4.4 FAILURE OF SONERA TO PURCHASE SHARES. If Sonera does not agree to
purchase all of the New Issue Securities and does not provide a Sonera
Alternative Notice or a Percentage Election, Metro One shall be free for a 180
day period following the New Issue Notice to sell all or any portion of such New
Issue Securities on any terms then available in the market. If Sonera provides a
Sonera Alternative Notice or a Percentage Election, Metro One shall be free for
such 180 day period to sell all or any portion of such New Issue Securities that
Metro One has not agreed to sell to Sonera by accepting the offer in a Sonera
Alternative Notice, or Sonera has not agreed to purchase in such Percentage
Election, on any terms then available in the market; provided however, that, if
the terms of such New Issue Securities offered to the third party are more
favorable to such third party than the terms set forth in the Percentage
Election or the Sonera Alternative Notice (if any), Metro One shall give Sonera
another New Issue Notice setting forth any such new terms, and Sonera shall have
5 Business Days in which to inform Metro One that it wishes to purchase a
specified number of New Issue Securities
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on the new terms. Any New Issue Securities that Sonera does not agree to
purchase on such new terms may be sold by Metro One to third parties on any
terms then available in the market; provided, however that if such terms are
more favorable to the purchaser than the new terms previously offered to Sonera,
Metro One shall give Sonera another New Issue Notice to which Sonera shall
respond in 5 Business Days in accordance with the proceeding sentence. Closing
with respect to any New Issue Securities that Sonera agrees to purchase on the
new terms shall be in accordance with Section 4.3. To the extent such New Issue
Securities are not sold within such 180 day period, Metro One shall again become
subject to the procedure set forth in Sections 4.1 through 4.4 before issuing
New Issue Securities.
4.5 LIMITATIONS ON RIGHT TO PURCHASE. Notwithstanding the provisions of
this Article 4, the right to purchase New Issue Securities provided herein shall
not be available to Sonera to the extent that (i) the exercise thereof would
increase the Aggregate Percentage of all Sonera Holders above 33% if such
percentage limitation is then applicable under Article 8 hereof, or (ii) Sonera
is unable to subscribe for or own the New Issue Securities as a result of its
inability to satisfy any applicable legal or regulatory requirements for such
subscription or ownership.
4.6 TERMINATION OF RIGHTS. The purchase rights provided to Sonera by
this Article 4 shall terminate in the event that Sonera Holders own less than
2,000,000 Purchased Shares.
4.7 OPEN MARKET PURCHASES. Nothing in this Agreement shall prevent
Sonera from acquiring Common Stock in the open market or otherwise, provided
that the Aggregate Percentage of Sonera Holders shall not exceed 33% if such
percentage limitation is then applicable under Article 8 hereof.
ARTICLE 5
SONERA TRANSFERS OF METRO ONE SHARES
5.1 RESTRICTIONS ON TRANSFER. Except as otherwise set forth in this
Article 5 or with the prior written consent of Metro One, from and after the
Effective Date and prior to the 8th anniversary, no Sonera Holder shall sell,
assign or otherwise dispose of, directly or indirectly, by operation of law or
otherwise ("Transfer"), any Purchased Shares.
5.2 PERMITTED TRANSFERS. The following are permitted Transfers of
Purchased Shares by a Sonera Holder:
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(a) Transfers to any Permitted Transferee, provided the Permitted
Transferee agrees in writing to assume the rights and obligations applicable to
Sonera Holders under the terms and provisions of this Agreement;
(b) When required under instruments governing its indebtedness for
borrowed money, creating Liens on Purchased Shares owned by the Sonera Holder to
secure such indebtedness if such Liens or any rights of the secured party
thereunder with respect to the Purchased Shares are subject to the rights and
obligations of the Sonera Holder under this Agreement, and neither such secured
party nor any Affiliate thereof is a Competitor.
(c) After the 2nd Anniversary, Transfers pursuant to Rule 144
issued pursuant to the Securities Act of 1933, as amended ("Rule 144"), or in an
offering registered under the Securities Act of 1933, as amended, pursuant to
the Registration Rights Agreement.
(d) Subject to Section 5.5 hereof, Transfers by operation of law by
reason of a merger or reorganization transaction involving Sonera or Sonera
Corporation.
(e) Transfers as contemplated under Section 5.3, 5.4, 5.5, 5.7, 5.8
and 5.9 hereof after compliance with the terms thereof.
5.3 METRO ONE PURCHASE RIGHTS.
(a) If, at any time after the 3rd Anniversary and prior to the 8th
Anniversary, a Sonera Holder seeks to Transfer any Purchased Shares held by that
Sonera Holder to a Third Party Transferee, the Sonera Holder shall notify Metro
One in writing of the number of Purchased Shares to be sold, and the price and
other material terms for sale of such Purchased Shares, including any minimum
number of Purchased Shares that Sonera offers to sell as a block (a "Sonera
Transfer Notice").
(b) If the Sonera Transfer Notice references 1,000,000 or fewer
shares and a price of $17,000,000 or less, within 10 Business Days after receipt
of the Sonera Transfer Notice, or if the Sonera Transfer Notice references more
than 1,000,000 shares or a price greater than $17,000,000, within 30 Business
Days after such receipt, Metro One shall within the applicable time period
notify Sonera that (i) Metro One agrees to purchase all of the shares, or all of
one or more minimum block(s) of shares identified in the Sonera Transfer Notice,
at the price and other terms specified in such Sonera Transfer Notice, or (ii)
Metro One offers to purchase a specified number of such Purchased Shares at the
price in the Sonera Transfer Notice or at a specified alternative price,
together with the duration of the offer and/or other terms (if any) for such
purchase (a "Metro One Alternative Notice"); or (iii) Metro One declines to
purchase any Purchased Shares,
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which decision shall be deemed to have been made in the event Metro One fails to
respond within such applicable time period.
(c) If Metro One provides notice under Section 5.3(b)(i), such
notice will be deemed an acceptance of the Sonera Holder's offer to sell the
Purchased Shares identified in the Sonera Transfer Notice with respect to all or
the specified block(s) of shares, and the parties will consummate the sale of
the Purchased Shares in accordance with the terms of such Sonera Transfer
Notice.
(d) If Metro One provides a Metro One Alternative Notice, it shall
be deemed during the 180 day period following the Sonera Transfer Notice (unless
otherwise specified in the Metro One Alternative Notice) a revocable offer of
Metro One to buy the Purchased Shares identified in the Metro One Alternative
Notice under the terms specified therein, conditioned on the sale of the
Purchased Shares by the Sonera Holder to a third party on the terms specified in
the Sonera Transfer Notice. Sonera may accept the offer in a Metro One
Alternative Notice by notice provided to Metro One not less than 10 Business
Days prior to closing if, at the time of such acceptance, the offer has not
expired in accordance with its terms or been revoked.
(e) Closing of any purchase and sale pursuant to this Section 5.3
shall be on a date (not more than 60 Business Days after the date of the Sonera
Transfer Notice) and at a place specified by Sonera at least 10 Business Days
prior to closing, or at such other place or on such other date as Metro One and
Sonera may agree in writing. At the closing, the Sonera Holder shall deliver to
Metro One certificates representing the Purchased Shares to be purchased,
against payment of the purchase price therefor by wire transfer of immediately
available funds to an account designated by Sonera at least 5 Business Days
prior to the date of such closing.
5.4 FAILURE OF METRO ONE TO PURCHASE SHARES. With respect to Purchased
Shares identified in the Sonera Transfer Notice which Metro One does not
purchase pursuant to notice provided under Section 5.3(b)(i), Sonera shall be
free for a period of 180 days after the date of the Sonera Transfer Notice to
sell all or any portion of such Purchased Shares on any terms then available in
the market pursuant to a Public Market Sale or otherwise; provided however, that
the Sonera Holders (a) shall not knowingly Transfer such Purchased Shares to a
Competitor without Metro One's consent in a Transfer that is not a Public Market
Sale; and (b) shall use reasonable efforts to ensure that Public Market Sales of
Purchased Shares do not result in Transfers to a Competitor; and provided
further, that if the terms of a block of more than 500,000 of such Purchased
Shares offered to any Third Party Transferee by the Sonera Holders are more
favorable to such Third Party Transferee than the terms set forth in the Metro
One Alternative Notice (if any), Sonera shall give Metro One another Sonera
Transfer Notice setting forth the new terms and Metro One shall have 5 Business
Days in which to inform Sonera that it wishes to
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purchase a specified number of Purchased Shares on the new terms. Any Purchased
Shares that Metro One does not agree to purchase on such new terms may be sold
by Sonera to third parties on any terms then available in the market; provided,
for any block of more than 500,000 Purchased Shares, if such terms are more
favorable to the purchaser than the new terms previously offered to Metro One,
Sonera shall give Metro One another Sonera Transfer Notice to which Metro One
shall respond in 5 Business Days in accordance with the proceeding sentence.
Closing with respect to any shares Metro One agrees to purchase on the new terms
shall be in accordance with Section 5.3. To the extent such Purchased Shares are
not sold within such 180 day period, the Sonera Holder shall again become
subject to the procedure set forth in Sections 5.3 and 5.4 before selling
Purchased Shares to any Third Party Transferee. For purposes of clauses (a) and
(b) of this Section 5.4, Sonera shall take reasonable measures to prevent the
sale of its Purchased Shares to a Competitor, which shall include using agents
or brokers of international standing and providing them with proper written
instructions as to the process to be followed to satisfy Sonera's contractual
commitments under this Section 5.4.
5.5 SONERA CHANGE IN CONTROL. In the event that Sonera Corporation
enters into, or the shareholders of Sonera Corporation authorize or enter into,
any transaction providing for a Sonera Change in Control, Sonera shall give
written notice to Metro One of such transaction, which notice shall describe the
transaction in reasonable detail and identify the other Person or Persons that
are parties thereto (the "Sonera Transaction Notice"). If any such Person, or
any other Person directly or indirectly in control of such Person, is a
Competitor and Metro One determines in its reasonable judgment that the
relationship by virtue of such transaction with such Competitor could have a
Material Adverse Effect, Metro One may notify Sonera within 30 days of receipt
of the Sonera Transaction Notice that Metro One intends to invoke the provisions
of this Section 5.5 (an "Event Notice"). Metro One shall be deemed to have
consented to such proposed transaction if it gives no Event Notice within 30
days of its receipt of a Sonera Transaction Notice. Sonera agrees that it will
not enter into any Sonera Change in Control transaction unless the other Person
that is a party to the transaction agrees to be bound by the provisions of this
Section 5.5. If Metro One timely gives an Event Notice to Sonera, the provisions
of Section 5.3 shall thereafter be applied with respect thereto (regardless of
whether such transaction occurs before the 3rd Anniversary) and Sonera shall
promptly deliver a Sonera Transfer Notice to Metro One with respect to all
Purchased Shares held by Sonera Holders. To the extent Metro One fails to
purchase such Purchased Shares, the Sonera Holders shall use their reasonable
best efforts to sell all such Purchased Shares in conformity with Section 5.4 to
one or more third parties in the market or otherwise to engage in an orderly
liquidation of such Purchased Shares at fair prices, and Metro One shall provide
reasonable cooperation in connection therewith. No Sonera Holder shall be
obligated to divest itself of any Purchased Shares until such
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time as such divestment would not subject such Sonera Holder to liability under
Section 16(b) of the Exchange Act or any other applicable provision of Federal
or state law.
5.6 DETERMINATION OF PRICE. For purposes of Article 5 hereof, if the
price offered by one party to another is to be paid in something other than
money in a lump sum at the closing, then Sonera or the transferring Sonera
Holder (as the case may be) and Metro One shall use their best efforts to reach
agreement as to an equivalent in monetary terms, which shall constitute the
price for the purposes of such offer. If such an agreement cannot be reached
within 15 days after Sonera or the transferring Sonera Holder (as the case may
be) or Metro One receives written notice of the price offered, such equivalent
shall be determined by an appraiser, agreed upon within 10 days after the end of
such 15 day period (and paid equally) by Sonera or the Sonera Holder (as the
case may be) and Metro One or, if they cannot agree upon an appraiser, by 3
appraisers, one of whom shall be chosen within 20 days after the end of such 15
day period (and paid) by Sonera or the Sonera Holder (as the case may be), one
of whom shall be chosen within the same period (and paid) by Metro One, and the
third of whom shall be chosen by the first 2 so chosen within an additional 10
days and paid equally by Sonera or the Sonera Holder (as the case may be) and
Metro One. The decision of the agreed-upon appraiser or, as the case may be, a
majority of the 3 appraisers, shall be made within 45 days after he or they, as
the case may be, are chosen and shall be final and binding upon Sonera or the
Sonera Holder (as the case may be) and Metro One. All time periods specified in
Article 5 shall be extended by the length of time necessary for such
appraiser(s) to be chosen and for such appraisal to be made (if it becomes
necessary).
5.7 METRO ONE SHARE BUY BACK. Subject to Section 7.4, if Metro One
initiates a program available to all owners of Common Stock by which Metro One
seeks to repurchase, redeem or otherwise reacquire some but not all of the
shares of Common Stock (other than pursuant to an employee benefit plan or other
employee compensation arrangement) (a "Buy Back Program"), the Sonera Holders
agree to participate, on a pro rata basis among Sonera Holders, in proportion to
the participation in such program by other owners of Common Stock (by class of
shares, if applicable). The Sonera Holders shall only be required to participate
in a Buy Back Program under this Section 5.7 so long as and to the extent the
Aggregate Percentage would otherwise exceed 33%.
5.8 TAG ALONG RIGHTS.
(a) Metro One shall not enter into a binding agreement with a third
party to effect a Metro One Change in Control (including a "going private"
transaction or the issuance or sale from treasury by Metro One of sufficient new
shares of Common Stock to effect a Metro One Change in Control) unless each
Sonera Holder is given the opportunity to sell to the third party on a pro rata
basis its Purchased Shares, such sale to be concurrent with the consummation of
the Metro One Change in Control, at the same
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price per share and on substantially the same terms and conditions as are
obtained by Metro One or its shareholders in such Metro One Change in Control.
(b) In the event the right provided in this Section 5.8 is
exercised, each Sonera Holder agrees to take all reasonable steps necessary to
enable such holder to comply with the provisions of this Section 5.8, including
executing and performing a sale, lock-up, or waiver of appraisal rights
agreement on no less favorable (to the Sonera Holders) terms as are agreed to by
other substantial shareholders of Metro One. Metro One agrees to keep Sonera
advised in writing of, and consult on a timely basis with Sonera concerning, any
proposed Metro One Change in Control with respect to which any Sonera Holder has
exercised the right provided in this Section 5.8.
(c) The right provided by this Section 5.8 shall be exercised by
each Sonera Holder by giving a notice of such exercise to Metro One within 15
Business Days after receipt by such Sonera Holder of written notice from Metro
One of such proposed Metro One Change in Control, which notice shall (i) set
forth in reasonable detail the identity of the proposed transferee, the proposed
purchase price, terms of payment and type of consideration, and other material
terms of the proposed Metro One Change in Control, and (ii) be provided to
Sonera after Sonera has declined to exercise its rights under Section 6.2 hereof
or ceased participation. Each Sonera Holder that exercises such right shall
thereafter be obligated to agree in writing at the time of Metro One (or a
majority of its shareholders) entering into such a binding agreement with a
third party to vote in favor of the Metro One Change in Control or sell to such
third party all its pro rata portion of its Purchased Shares, and Metro One
shall not consummate the proposed Metro One Change in Control with the third
party unless such third party also acquires the pro rata portion of the
Purchased Shares that are held by each Sonera Holder exercising such right.
(d) The tag-along right provided by this Section 5.8 shall
terminate in the event that the Sonera Holders own less than 2,000,000 Purchased
Shares.
5.9 DRAG ALONG RIGHTS.
(a) At any time that Sonera Holders own less than 2,000,000
Purchased Shares, Metro One shall have the right, if it enters into a binding
agreement to effect a Metro One Change in Control, to require the Sonera Holders
to sell all but not less than all of the Purchased Shares beneficially owned by
them, such sale to occur concurrently with and as part of the consummation of
the Metro One Change in Control transaction and at the same price per share and
on substantially the same terms and conditions as are obtained by other holders
of Metro One Common Stock. In the event the right provided in this Section 5.9
is exercised by Metro One, each Sonera Holder shall take reasonable steps and
provide reasonable cooperation to comply with the provisions of this Section
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5.9, including executing a sale, lock-up or waiver of appraisal rights agreement
on no less favorable (to the Sonera Holders) terms as agreed by other
substantial shareholders of Metro One. Metro One agrees to keep Sonera advised
in writing of, and consult on a timely basis with Sonera concerning, any
proposed Metro One Change in Control by providing Sonera with information
relating thereto made available to parties other than the officers, directors,
agents and counsel of the parties to the Metro One Change in Control
transaction.
(b) The right provided by this Section 5.9 shall be exercised by
giving a written notice of such exercise to each Sonera Holder setting forth in
reasonable detail the identity of the parties to the proposed Metro One Change
in Control, the proposed purchase price, the terms of payment and the other
material terms of the proposed Metro One Change in Control. Each Sonera Holder
shall thereafter be obligated to vote in favor of the transaction or sell to
such third party all (but not less than all) of its Common Stock.
5.10 ASSIGNMENT OF RIGHTS. In the event that, prior to the 3rd
anniversary, a Sonera Holder Transfers its Purchased Shares under Section 5.4
hereof by virtue of a Sonera Change in Control to a Third Party Transferee that
is not a Competitor, the right of Sonera to designate one director of Metro One
pursuant to Section 2.2 hereof may be assigned to any Third Party Transferee who
acquires from Sonera Holders at least 2,000,000 Purchased Shares, and the right
of Sonera to designate 2 directors of Metro One pursuant to Section 2.2 hereof
may be assigned to any Third Party Transferee who acquires from Sonera Holders
at least 4,000,000 Purchased Shares. Any director designated by a Third Party
Transferee shall be subject to approval of Metro One, which approval shall not
be unreasonably delayed or withheld.
ARTICLE 6
METRO ONE CHANGE IN CONTROL
6.1 INITIATION OF CHANGE IN CONTROL ACTIVITIES. If Metro One initiates
or undertakes a process to solicit, enter into negotiations or agreements
relating to or otherwise commence or effect any sale, assignment, disposition or
other transaction that is reasonably expected to result in a Metro One Change in
Control ("Change in Control Activities"), it shall promptly give written notice
thereof to Sonera, which notice (a "Metro One Activities Notice") shall refer to
this Section 6.1 and describe (i) the transaction that is the subject of the
Change in Control Activities, and (ii) any alternative transaction for a Metro
One Change in Control that Metro One may desire to effect. Sonera shall have 10
Business Days from its receipt of the Metro One Activities Notice
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within which to notify Metro One that Sonera desires to participate in the
Change in Control Activities.
6.2 RIGHT OF PARTICIPATION. If Sonera timely gives Metro One such
notice, then Sonera shall be immediately provided the right on a least an equal
basis with any other third party seeking to participate or participating in the
Metro One Change in Control Activities as a potential acquirer of Metro One
property or Common Stock to (i) engage in good faith negotiations with Metro One
and participate as a potential acquirer of Metro One property or Common Stock in
any solicitation or sale process conducted by the Metro One Board of Directors
or a committee thereof regarding the possible Metro One Change in Control; and
(ii) receive all information regarding Metro One and the Change in Control
Activities as Sonera may reasonably request and as may be made available or
provided to such third parties.
6.3 METRO ONE OBLIGATION. In no event shall Metro One enter into an
agreement for or complete any Metro One Change in Control unless Metro One has
complied in good faith with this Article 6. In the event of a Metro One Change
in Control in which the Sonera Holders and other shareholders of Metro One
maintain a continuing equity interest in a surviving corporation, Metro One
agrees to (i) use its reasonable best efforts to require, subject to exercise of
the fiduciary duty of the Board of Directors, that the surviving corporation
accept in writing and be bound by the terms of this Agreement to the extent that
they might reasonable be applied to the surviving corporation, given the nature
of the transaction and the relative size of the parties; and (ii) use its
reasonable best efforts to require that Sonera has proportionate representation
on the Board of Directors of the surviving corporation, provided that to the
extent Metro One or its shareholders are granted the right to designate more
than one director, Sonera shall have the right to designate at least one of
those directors.
6.4 TERMINATION OF RIGHT. The right provided by this Article 6 shall
terminate in the event that the Sonera Holders own less than 2,000,000 Purchased
Shares.
ARTICLE 7
CERTAIN COVENANTS OF METRO ONE
7.1 GENERAL. From and after the Effective Date and until such time as
the number of the Purchased Shares owned by Sonera Holders is less than
1,500,000, Metro One shall comply in all material respects with the covenants
set forth in Article 7.2 hereof.
7.2 FINANCIAL REPORTING. In the event Metro One ceases to be listed on
the Nasdaq or similar national securities exchange, or is otherwise no longer
subject to the financial reporting and accounting requirements applicable to
companies listed on such exchanges:
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(a) Metro One shall maintain a system of accounting established and
administered in accordance with U.S. GAAP and shall set aside on its books all
such proper reserves as shall be required by U.S. GAAP. Metro One shall retain a
firm of independent certified public accountants of recognized national standing
(which may be the auditors of Metro One as of the Effective Date) to audit and
report on Metro One's annual consolidated balance sheets and statements of
operations, shareholders' equity and cash flows. All major accounting policies
and principles shall be determined in accordance with U.S. GAAP.
(b) Metro One shall prepare annual consolidated balance sheets and
statements of operations, shareholders' equity and cash flows, which shall be
prepared in accordance with U.S. GAAP, set forth in each case in comparative
form the figures for the previous year, and be audited by the auditors referred
to in this Section 7.2. Metro One shall also prepare quarterly unaudited
consolidated balance sheets and statements of operations, shareholders' equity
and cash flows for itself and its Subsidiaries, certified by its chief financial
officer or chief executive officer and prepared in accordance with U.S. GAAP,
setting forth in each case in comparative form the same figures for the
comparable period of the previous year and, in addition, year-to-date figures.
(c) Metro One shall furnish to Sonera the following information
within the times specified:
(i) as soon as practicable after the end of each fiscal
quarter, and in any event within 50 days thereafter, all of the quarterly
financial information relating to Metro One referred to herein, and
(ii) as soon as practicable after the end of each fiscal year,
and in any event within 100 days thereafter, all of the annual financial
information relating to Metro One referred to herein.
7.3 NO ADVERSE ACTIONS. Metro One agrees that, except (i) with the
prior written consent of Sonera, or (ii) as required by the terms of its
Articles of Incorporation or By-laws, this Agreement, the Registration Rights
Agreement, or other agreement between the parties hereto, it will not take any
action, or cause or permit any Subsidiary to take or omit to take any action,
which action or omission to take action could reasonably be expected to have a
material adverse effect upon the rights of Sonera (A) provided in this
Agreement, the Registration Rights Agreement or other agreement between the
parties hereto, or (B) provided in such Articles of Incorporation or By-laws.
Notwithstanding the foregoing, this Section 7.3 shall not preclude the Board of
Directors from taking action affecting all shareholders in the same manner that
it believes in good faith to be in the interests of the Metro One shareholders,
such as for example, Metro One making
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acquisitions for its stock which would have the effect of diluting the equity
interest of the Sonera Holders.
7.4 USE OF PROCEEDS. Metro One agrees that the full amount of the
Aggregate Purchase Price paid to Metro One pursuant to the Stock Purchase
Agreement shall be used for ordinary business expenses, including repayment of
debt, working capital and capital investments relating to the business of Metro
One. From and after the Effective Date and prior to the 2nd Anniversary, Metro
One shall not undertake, without Sonera's prior written approval, any repurchase
or redemption of Common Stock or other equity securities (or securities
convertible into equity securities), other than from the Sonera Holders, or
payment of cash dividends.
7.5 BOARD OF DIRECTORS MEETINGS. The Board of Directors of Metro One
shall meet in a manner authorized by the Articles of Incorporation and By-laws
not less than 4 times in each calendar year.
ARTICLE 8
SONERA STANDSTILL
8.1 STANDSTILL.
(a) From and after the Effective Date and until the 3rd Anniversary
(the "Standstill Period"), except with the consent of Metro One and subject to
the exceptions set forth in Section 8.2 hereof, no Sonera Holder shall, directly
or indirectly:
(i) acquire or agree to acquire any Common Stock if, in any
such case, the effect of such acquisition would be to increase the Aggregate
Percentage in excess of 33%;
(ii) solicit proxies or consents with respect to the Common
Stock or become a "participant" in any "election contest" (as such terms are
used in Rule 14(a)-11 of Regulation 14A promulgated under the Exchange Act)
relating to the election of directors of Metro One, it being understood that the
Sonera Holders shall not be deemed to be such a participant merely by reason of
the membership of any directors designated by Sonera pursuant to Section 2.2
hereof on the Metro One Board of Directors;
(iii) form, join or otherwise participate in a 13D Group with
any Person or otherwise induce, attempt to induce or in any manner act in
concert with any such Person for the purpose of initiating or effectuating a
Tender Offer or a transaction which would result in a Metro One Change in
Control; provided that the provisions of this clause (iii) shall not be
applicable if the Metro One Board of Directors takes affirmative action, engages
in discussions or otherwise seeks or takes action for the
22
purpose of entering into an agreement or other arrangement that is intended to
effect a Metro One Change in Control; or
(iv) except in connection with Sonera's exercise of its rights
under Section 6.2 hereof, take any action that forces Metro One to make any
public announcement regarding the matters referred to in, or request or propose
that Metro One amend, waive or consider the amendment or waiver of any provision
of Sections 8.1(a)(ii) and (iii) hereof.
(b) Nothing in Section 8.1(a) shall have the effect of (i)
precluding a Sonera Holder from participating in a Tender Offer or voting or
agreeing to vote its shares in favor of a Metro One Change in Control in which
the Sonera Holders would receive consideration on the same basis as is generally
available to other holders of Common Stock or (ii) prohibiting any Metro One
director designated by Sonera pursuant to Section 2.2 hereof (acting in such
capacity) from participating (A) in discussions with other members of the Metro
One Board of Directors or (B) in meetings of such Board of Directors; or (iii)
otherwise purchasing Common Stock, subject to the applicable Aggregate
Percentage limitation above.
(c) If any Sonera Holder inadvertently makes an acquisition of
Common Stock that would increase the Aggregate Percentage to more than 33%, such
excess shares shall (for so long as the Aggregate Percentage exceeds 33%) be
voted in a manner proportionate to shares voted by the shareholders of Metro One
other than the Sonera Holders and it shall promptly divest such excess;
provided, however, that no Sonera Holder shall be obligated to divest itself of
such excess until such time as such divestment would not subject such Sonera
Holder to liability under Section 16(b) of the Exchange Act or any other
applicable provision of Federal or state law.
(d) Notwithstanding Section 8.1(a) and (c), no Sonera Holder shall
be obligated to dispose of any Common Stock if the Aggregate Percentage is
increased as a result of (x) a recapitalization, merger, consolidation or other
reorganization of Metro One, (y) a repurchase of Common Stock by Metro One
(except as provided in Section 5.7) or (z) any other action taken by Metro One
(or its Affiliates other than the Sonera Holders).
8.2 EXCEPTIONS TO STANDSTILL.
(a) Notwithstanding Section 8.1, the Sonera Holders, collectively
or individually may:
(i) acquire Common Stock without regard to the limitations set
forth in Section 8.1 but in accordance with this Section 8.2 if at any time any
Person or 13D Group (other than any 13D Group which includes Sonera Holders)
(such Person or
23
13D Group together with any of their Affiliates, collectively, a "Triggering
Person"), directly or indirectly, (x) makes a bona fide offer to acquire, or (y)
acquires, beneficial ownership of Common Stock which, if added to the Common
Stock (if any) already beneficially owned by such Triggering Person, would
represent ownership of 33% or more of the Common Stock on a fully-diluted basis;
(ii) with Metro One Board of Directors approval, make a Tender
Offer during the Standstill Period; and
(iii) with Metro One Board of Directors approval, acquire
Common Stock (including stock options, warrants or rights to purchase Common
Stock) without regard to the limitations set forth in Section 8.1 hereof.
Metro One shall give Sonera written notice of the occurrence of any
event of the type referred to in Section 8.2(a)(i) promptly after Metro One
obtains knowledge of such event.
(b) If an event identified in Section 8.2(a)(i) occurs and shall
not have been withdrawn or terminated, the Sonera Holders shall be permitted to
take such action and make such offers as may be considered to be of the same
nature and type of action or offer and for the same resulting number of shares
as that which is being taken by the Triggering Person; provided that the Sonera
Holders may only acquire that number of shares which when added to the number of
shares already owned by the Sonera Holders shall not exceed the number of shares
beneficially owned (as defined without excluding paragraph (d) of Rule 13d-3)
and to be acquired (assuming any proposals or offers to purchase have been
consummated) by the Triggering Person. In proceeding with any action or offer
permitted under this Section 8.2(b), the Sonera Holders shall be permitted to
offer more favorable terms such as price, cash versus securities or other such
terms as may be consistent with an offer of the same nature and type of
consideration as that which is being proposed by the Triggering Person.
(c) If the Sonera Holders shall take any such action permitted by
Section 8.2(b), Metro One agrees that it shall not in any way (whether by active
opposition, Board of Director announcement or otherwise) contest such action,
subject in all events to the fiduciary obligations of Metro One's Board of
Directors and officers to Metro One's shareholders.
ARTICLE 9
MISCELLANEOUS
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9.1 EXPENSES. Each party shall bear its own expenses incident to the
negotiation, preparation, authorization and consummation of this Agreement and
the transactions contemplated hereby, including all fees and expenses of its
counsel, financial and investment banking advisors and accountants.
9.2 INJUNCTIVE RELIEF. Each of the parties hereto acknowledges that in
the event of a breach by any of them of any material provision of this
Agreement, the aggrieved party may be without an adequate remedy at law. Each of
the parties therefore agrees that in the event of such a breach hereof the
aggrieved party may elect to institute and prosecute proceedings in any court of
competent jurisdiction to enforce specific performance or to enjoin the
continuing breach hereof. By seeking or obtaining any such relief, the aggrieved
party shall not be precluded from seeking or obtaining any other relief to which
it may be entitled.
9.3 NOTICES. All notices, requests, claims, demands, and other
communications hereunder shall be in writing and shall be given or by delivery
in person, overnight courier service (with delivery confirmed) or by telecopy
(with a confirmatory copy sent by overnight courier) to the other party at the
following address (or at such other address for a party as shall be specified in
a notice given in accordance in this Section 9.3 by like Notice)
(a) if to Metro One, to:
Metro One Telecommunications, Inc.
11200 Murray Scholls Place
Beaverton, OR 97008
Attn: Chief Executive Officer
Telecopy No.: 503-521-0923
with a copy (which shall not constitute notice) to:
Heller Ehrman White & McAuliffe LLP
601 S. Figueroa Street, 40th Floor
Los Angeles, CA 90017
Attn: Neal H. Brockmeyer, Esq.
Telecopy No.: 213-614-1868
(b) if to Sonera, to:
Sonera Media Holding B.V.
c/o Sonera Corporation
Teollisuuskatu 15
P.O. Box 106, SONERA-00051
25
Helsinki, Finland
Attn: Maire Laitinen, General Counsel
Telecopy No.: 011-358-2040-3414
with a copy (which shall not constitute notice) to:
Patton Boggs LLP
2550 M St., N.W.
Washington, D.C. 20037
Attn: Richard M. Stolbach, Esq.
Telecopy No.: 202-457-6315
Except as otherwise provided in this Agreement, the date of each
such notice and request shall be deemed to be, and the date on which each such
notice and request shall be deemed given shall be at the time delivered, if
personally delivered or mailed; when receipt is acknowledged, if sent by
telecopy; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next Business Day delivery.
9.4 ENTIRE AGREEMENT. This Agreement, the Stock Purchase Agreement and
the Registration Rights Agreement contain the entire understanding among the
parties hereto concerning the subject matter hereof and this Agreement may not
be changed, modified, altered or terminated except by an agreement in writing
executed by the parties hereto. Any waiver by any party of any of its rights
under this Agreement or of any breach of this Agreement shall not constitute a
waiver of any other rights or of any other or future breach.
9.5 REMEDIES CUMULATIVE. Except as otherwise provided herein, each or
any of the rights and remedies in this Agreement provided, and each or any of
the rights and remedies allowed at law and in equity in like case, shall be
cumulative, and the exercise of one right or remedy shall not be exclusive of
the right to exercise or resort to any other rights or remedies provided in this
Agreement or at law or in equity.
9.6 GOVERNING LAW. This Agreement shall be construed in accordance with
and subject to the laws and decisions of the State of New York applicable to
contracts made and to be performed entirely therein.
9.7 COUNTERPARTS. This Agreement may be executed in several
counterparts hereof, and by the different parties hereto on separate
counterparts hereof, each of which shall be an original; but such counterparts
shall together constitute one and the same instrument.
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9.8 WAIVERS. No provision in this Agreement shall be deemed waived
except by an instrument in writing signed by the party waiving such provision.
9.9 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and to their respective permitted
successors and assigns; provided, however, that, except as otherwise expressly
set forth in this Agreement, none of the rights or the obligations of any party
may be assigned or delegated without the prior written consent of the other
party.
9.10 FURTHER ASSURANCES. Sonera shall, at the request of Metro One, and
Metro One shall, at the request of Sonera, from time to time, execute and
deliver such other assignments, transfers, conveyances and other instruments and
documents and do and perform such other acts and things as may be reasonably
necessary or desirable for effecting complete consummation of this Agreement and
the transactions herein contemplated.
9.11 INFORMATION FOR GOVERNMENTAL FILINGS. Each party to this Agreement
agrees to provide such information regarding itself and its Affiliates as may
reasonably be requested by another party hereto for inclusion in such documents
as the requesting party may from time to time be required to file with the
Securities and Exchange Commission or other agencies of the United States or a
foreign government. The information provided for inclusion in such documents
will not contain any material misstatement of fact or omit to state any material
fact necessary to make the statements, in light of the circumstances under which
they are made, not misleading. All statements included in Metro One government
filings relating to Sonera shall be subject to the approval of the party to
which such statements relate, such approval not to be unreasonably withheld or
delayed.
9.12 DISCLOSURES.
(a) CONFIDENTIALITY. Sonera and Metro One each acknowledge and
confirm in connection with the negotiation of this Agreement and the execution
hereof, during the period from the Effective Date and so long as this Agreement
remains in effect, the parties hereto will have furnished to one another certain
materials, information, data and other documentation ("Disclosures") concerning
their business, financial condition and operations which are proprietary and
confidential. Each party acknowledges the party making such Disclosures
considers them secret and confidential and asserts a proprietary interest
therein. Accordingly, each of Sonera, on the one hand, and Metro One, on the
other hand, covenants and agrees that it shall maintain all Disclosures made by
another party in strict confidence and shall not use such Disclosures for its
own benefit or disclose them to third parties, except to its agents,
representatives, bankers, investment bankers, counsel and employees involved in
evaluating the transactions contemplated by this Agreement and informed of the
requirement of
27
confidentiality, or as otherwise required by law (including the requirement of
Metro One to disclose such terms under the federal securities laws or under the
rules of any securities exchange on which its securities are listed, and
including the requirement of Sonera or any of its Affiliates to disclose such
terms under the securities laws of the United States, the Netherlands, Finland
or other applicable jurisdictions).
(b) PUBLIC ANNOUNCEMENTS. No public announcement with regard to the
transactions contemplated hereby or the material terms hereof shall be issued by
any party hereto without the mutual prior written consent of the other parties,
except to the extent that the parties are unable to agree on a press release and
legal counsel for one party is of the opinion that such press release is
required by law.
(c) NON-CONFIDENTIAL INFORMATION. This Agreement shall not restrict
any party hereto from using information already known to it, to which it is
entitled under existing agreements, or information generally in the public
domain or any information received from a third party with a right to possess or
make disclosure thereof.
9.13 TERMINATION. This Agreement may be terminated without further
obligation of Metro One or Sonera (i) by mutual written consent duly authorized
by the Boards of Directors of Metro One and Sonera, respectively; (ii) by Sonera
in the event of the occurrence of a Metro One Change in Control; (iii) by Metro
One in the event of the occurrence of a Metro One Change in Control, except to
the extent the rights and obligations of the parties hereto are continued as
contemplated under Sections 5.10 and 6.3 hereof, or (iv) by Sonera in the event
of the occurrence of an event specified in Section 8.2(a)(i)(y), which has not
been withdrawn or terminated. The rights and obligations for which this
Agreement prescribes specific events of termination shall terminate in
accordance with the applicable terms of this Agreement.
9.14 ADJUSTMENT IN NUMBER OF SHARES. Each reference to a number of
Purchased Shares or shares of Common Stock in this Agreement shall be adjusted
appropriately to reflect the effects of any recapitalization, stock dividend or
distribution, stock split-up or recombination affecting generally the
outstanding shares of the relevant class of Metro One securities.
9.15 SEVERABILITY. In the event any provision of this Agreement is
found to be invalid or unenforceable in whole or in part, the remaining
provisions of this Agreement nevertheless shall be binding and the invalid or
unenforceable provision shall be replaced by a valid and enforceable provision
which comes closest to the intent or economic effect of the provision to be
replaced.
28
9.16 DISPUTE RESOLUTION. In the event that any dispute, controversy or
claim arises between the Purchaser and Seller with respect to this Agreement or
the transactions contemplated hereby, the following procedures shall apply:
(a) The parties will attempt in good faith to resolve any
dispute, controversy or claim under, arising out of, relating to or in
connection with this Agreement, including the negotiation, execution,
interpretation, construction, performance, non-performance, breach,
termination, validity, scope, coverage or enforceability of this Agreement or
any alleged fraud in connection therewith, promptly by negotiation between
representatives of the parties. If any such dispute, controversy or claim
should arise, duly authorized representatives of the Purchaser and the Seller
will meet at least once at a mutually agreed time and place and will attempt
to resolve the matter. Either representative may request the other to meet
again within 14 days thereafter.
(b) If the matter has not been resolved pursuant to the
foregoing procedures within 30 days after the first meeting of the
representatives (which period may be extended by mutual agreement), the
matter shall be settled, at the request of either party, by arbitration
administered by the American Arbitration Association and conducted in
accordance with its Commercial Arbitration Rules. The arbitration decision
shall be rendered within 180 days from the date of appointment of all the
arbitrators.
(c) There shall be 3 arbitrators. Within 10 days after the
initiation of an arbitration proceeding, Seller shall select 1 arbitrator and
the Purchaser shall select 1 arbitrator, and those 2 arbitrators shall then
select within 10 days a third arbitrator. If those 2 arbitrators are unable
to select a third arbitrator within such 10-day period, a third arbitrator
shall be appointed by the American Arbitration Association. If either party
fails or refuses to appoint an arbitrator, the arbitrator appointed by the
other party shall be the sole arbitrator.
(d) The decision of at least 2 of the 3 arbitrators (or a single
arbitrator, as the case may be due to a default in appointment) shall be
final and binding upon the parties. The arbitrators' decision shall be in
writing and shall provide a reasoned basis for the resolution of each dispute
and for any award. The arbitrators shall not have power to award damages in
connection with any dispute in excess of actual compensatory damages and
shall not multiply actual damages or award consequential or punitive damages.
Equitable remedies shall be available in any such arbitration.
(e) The substantive and procedural law of the State of New York
shall apply to any such arbitration proceedings. The place of any such
arbitration shall be New York, New York. Judgment on an award rendered by the
arbitrators may be entered in any court of competent jurisdiction.
29
(f) Notwithstanding the provisions of this Section 9.16, either
party may seek injunctive or other equitable relief to maintain the status quo
before any federal or state court of competent jurisdiction within New York, New
York, in connection with any dispute, controversy or claim arising between the
Purchaser and the Seller with respect to this Agreement or the transactions
contemplated hereby.
(g) Each party shall bear its own fees and expenses with respect to
the arbitration and any proceedings related thereto and the parties shall share
equally the fees and expenses of the American Arbitration Association and the
arbitrators however, the prevailing party shall be reimbursed for its expenses
and attorney fees by the other party.
9.17 SONERA AS AGENT OF SONERA HOLDERS. For purposes of this Agreement:
(i) notice to Sonera in the manner designated in Section 9.3 hereof shall
constitute notice to all Sonera Holders, provided such notice identifies therein
each Sonera Holder by name and number of Purchased Shares owned by such holder;
and (ii) a duly authorized representative of Sonera or an officer of Sonera
Corporation shall have the authority to act hereunder on behalf of each Sonera
Holder.
30
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
METRO ONE TELECOMMUNICATIONS, INC.
By:
----------------------------------------
Name:
Title:
SONERA MEDIA HOLDING B.V.
By:
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INVESTMENT AGREEMENT,
DATED AS OF ________, 2000
BETWEEN METRO ONE TELECOMMUNICATIONS, INC.
AND SONERA MEDIA HOLDING B.V.]
31
ANNEX II-STOCK PURCHASE AGREEMENT
REGISTRATION RIGHTS AGREEMENT
BETWEEN
METRO ONE TELECOMMUNICATIONS, INC.
AN OREGON CORPORATION
AND
SONERA MEDIA HOLDING B.V.
A NETHERLANDS CORPORATION
DATED AS OF NOVEMBER [ ], 2000
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") dated as of November [
], 2000 between Metro One Telecommunications, Inc., an Oregon corporation (the
"COMPANY"), and Sonera Media Holding B.V., a company organized under the laws of
the Netherlands ("HOLDER").
RECITALS
WHEREAS, pursuant to that certain Stock Purchase Agreement dated
November 8, 2000, by and between the Company and Holder ("STOCK PURCHASE
AGREEMENT"), Holder shall acquire shares of Common Stock of the Company;
WHEREAS, in connection with Holder's investment pursuant to the Stock
Purchase Agreement, the Company agreed to provide certain rights to Holder to
cause the shares so purchased to be registered pursuant to the Securities Act;
and
WHEREAS, the parties hereto hereby desire to set forth Holder's rights
and the Company's obligations to cause the registration of the Registrable
Securities pursuant to the Securities Act;
NOW, THEREFORE, in consideration of the agreement to purchase Common
Stock of the Company by the Holder pursuant to the Stock Purchase Agreement, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
Section 1. DEFINITIONS AND USAGE.
As used in this Agreement the following capitalized terms shall have
the following meanings; however, if not otherwise defined, the capitalized terms
shall have the meaning assigned to them in the Stock Purchase Agreement or the
Investment Agreement:
1.1. DEFINITIONS.
"AFFILIATE" shall have the meaning set forth for such term in
the Stock Purchase Agreement and the Investment Agreement.
"AGENT" shall mean the principal placement agent on an agented
placement of Registrable Securities.
"COMMISSION" shall mean the U.S. Securities and Exchange
Commission.
1
"COMMON STOCK" shall mean (i) the common stock, no par value,
of the Company, and (ii) shares of capital stock of the Company issued by the
Company in respect of or in exchange for shares of such common stock in
connection with any stock dividend or distribution, stock split-up,
recapitalization, recombination or exchange by the Company generally of shares
of such common stock and (iii) securities of the Company entitled generally to
vote for the election of directors issued to Sonera or an Affiliate of Sonera
pursuant to the Investment Agreement.
"COMPANY CHANGE IN CONTROL" shall mean the occurrence of an
event by which (i) any Person (including one or more Affiliates of such Person
or a 13D Group) has become (or entered into a binding agreement by which they
will become) the beneficial owner of 33% or more of the outstanding Common Stock
(calculated with reference to the total voting power thereof), other than
through acquisition of any of the Shares acquired from a Holder or (ii) there is
consummated any consolidation, liquidation, dissolution or merger of the Company
(A) in which the Company is not the surviving corporation, or (B) pursuant to
which the Common Stock or any material portion of the business of the Company is
converted into cash, securities or other property, in each case other than a
consolidation or merger of the Company in which the holders of the Common Stock
immediately prior to such consolidation or merger have, directly or indirectly,
50% or more of the combined voting power of the common equity securities of the
surviving corporation immediately after such consolidation or merger.
"CONTINUOUSLY EFFECTIVE" with respect to a specified
registration statement, shall mean that it shall not cease to be effective and
available for transfer of Registrable Securities thereunder for longer than
either (i) any 10 consecutive Business Days, or (ii) an aggregate of 15 Business
Days during the period specified in the relevant provision of this Agreement.
"DEMAND REGISTRATION" shall have the meaning set forth in
SECTION 2.1(i).
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended.
"HOLDER" shall mean Sonera Media Holding B.V. and any
subsequent transferee of Registrable Securities as permitted by SECTION 8 and
the term "HOLDERS" shall include Holder and transferees of Registrable
Securities with respect to the rights that such transferees shall have acquired
in accordance with SECTION 8 hereof, at such times as such Persons shall own
Registrable Securities.
"INVESTMENT AGREEMENT" shall mean that certain Investment
Agreement dated as of November [ ], 2000 by and between Holder and the Company.
"PERMITTED TRANSFEREE" shall mean any corporation or other
business entity which directly or indirectly, through stock ownership or through
other arrangement,
2
controls, is controlled by or is under common control with Sonera or the
Company. The term "control" shall mean the possession, direct or indirect, of
the power to direct or cause the direction of the management or policies of
such person, whether by reason of ownership of voting stock or other equity
interests, by contract or otherwise.
"PERSON" shall mean an individual, corporation, partnership,
limited liability company, joint venture, association, joint stock company,
unincorporated syndicate, unicorporated organization, trust, trustee, executor,
administrator or other legal representative, governmental authority or agency,
political subdivision, or any group of Persons acting in concert.
"PIGGYBACK REGISTRATION" shall have the meaning set forth in
SECTION 3.
"REGISTER", "REGISTERED", and "REGISTRATION" shall refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering by the Commission of effectiveness of such registration statement or
document.
"REGISTRABLE SECURITIES" shall mean, subject to SECTION 8 and
SECTION 10.3: (i) the Shares owned by Holder on the date hereof, and Shares
owned by a Holder on the date of determination, including derivative securities
with respect to such Shares; (ii) any shares of Common Stock or other securities
issued as (or issuable upon the conversion or exercise of any warrant, right or
other security which is issued as) a dividend or other distribution with respect
to, or in exchange by the Company generally for, or in replacement by the
Company generally of, such Shares; and (iii) any securities issued in exchange
for Shares in any subsequent merger or reorganization of the Company; PROVIDED,
HOWEVER, that Registrable Securities shall not include any securities which have
theretofore been registered and sold pursuant to the Securities Act or which
have been sold to the public pursuant to Rule 144 or any similar rule
promulgated by the Commission pursuant to the Securities Act, and, PROVIDED,
FURTHER, the Company shall have no obligation under SECTIONS 2 or 3 to register
any Registrable Securities of a Holder if the Company shall deliver to the
Holders requesting such registration an opinion of counsel reasonably
satisfactory to such Holders and their counsel to the effect that the proposed
sale or disposition of all of the Registrable Securities for which registration
was requested does not require registration under the Securities Act for a sale
or disposition in a single public sale, and offers to remove any and all legends
restricting transfer from the certificates evidencing such Registrable
Securities. For purposes of this Agreement, a Person will be deemed to be an
owner of Registrable Securities whenever such Person has the then-existing right
to acquire such Registrable Securities (by conversion, purchase or otherwise,
including acquisition pursuant to the Stock Purchase Agreement), whether or not
such acquisition has actually been effected.
"REGISTRABLE SECURITIES THEN OUTSTANDING" shall mean, with
respect to a specified determination date, the Registrable Securities owned by
all Holders on such date.
3
"REGISTRATION EXPENSES" shall have the meaning set forth in
SECTION 6.1.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
"SELLING HOLDERS" shall mean, with respect to a specified
registration pursuant to this Agreement, Holders whose Registrable Securities
are included in such registration.
"SHARES" shall mean all shares of Common Stock issued by the
Company to Holder or its Affiliates pursuant to the Stock Purchase Agreement and
the Investment Agreement.
"STOCK PURCHASE AGREEMENT" shall have the meaning set forth in
the Recitals.
"SONERA" shall mean Sonera Corporation, a company organized
under the laws of Finland.
"SUBSIDIARY" of a Person shall mean a corporation as to which
a majority of the voting power is owned or controlled by such Person, either
directly or indirectly, but any such corporation shall be deemed to be a
Subsidiary of such Person only as long as such ownership or control exists.
"TRANSFER" shall mean and include the act of selling, giving,
transferring, creating a trust (voting or otherwise), assigning or otherwise
disposing of (other than pledging, hypothecating or otherwise transferring as
security) (and correlative words shall have correlative meanings); PROVIDED,
HOWEVER, that any transfer or other disposition upon foreclosure or other
exercise of remedies of a secured creditor after an event of default under or
with respect to a pledge, hypothecation or other transfer as security shall
constitute a "Transfer."
"UNDERWRITERS' REPRESENTATIVE" shall mean the managing
underwriter, or, in the case of a co-managed underwriting, the managing
underwriter designated as the Underwriters' Representative by the co-managers.
"VIOLATION" shall have the meaning set forth in SECTION 7.1.
1.2. USAGE.
(i) When a reference is made in this Agreement to a Section, or
Exhibit, such reference shall be to a Section or Exhibit of this Agreement
unless otherwise indicated or unless the context otherwise requires.
(ii) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
4
(iii) Whenever the words "include," "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation."
(iv) References to a Person are also references to its assigns and
successors in interest (by means of merger, consolidation or sale of all or
substantially all the assets of such Person or otherwise, as the case may be).
(v) References to a document are to such document as amended, waived
and otherwise modified from time to time and references to a statute or other
governmental rule are to such statute or rule as amended and otherwise modified
from time to time (and references to any provision thereof shall include
references to any successor provision).
(vi) The definitions set forth herein are equally applicable both to
the singular and plural forms and the feminine, masculine and neuter forms of
the terms defined.
(vii) The term "hereof" and similar terms refer to this Agreement as
a whole.
(viii) References to Registrable Securities "owned" by a Holder shall
include Registrable Securities beneficially owned by such Person but which are
held of record in the name of a nominee, trustee, custodian, or other agent, but
shall exclude shares of Common Stock held by a Holder in a fiduciary capacity
for customers of such Person.
(ix) The "date of" any notice or request given pursuant to this
Agreement shall be determined in accordance with SECTION 13.2.
Section 2. DEMAND REGISTRATION.
2.1. (i) At any time on or after the date of the first to occur of (a) the
second anniversary of the Closing, (b) a Company Change in Control, (c) a single
party or affiliated group making a bona fide offer to acquire, acquiring or
entering into an agreement to acquire 33% or more of the outstanding voting
stock of the Company, or (d) Holder being compelled to sell its Shares pursuant
to Section 5.5 of the Investment Agreement, if one or more Holders that own an
aggregate market value of $15,000,000 or more at the time of the request of the
Registrable Securities shall make a written request to the Company, the Company
shall cause there to be filed with the Commission a registration statement
meeting the requirements of the Securities Act (a "DEMAND REGISTRATION"), and
each Holder shall be entitled to have included therein (subject to SECTION 2.6)
all or such number of such Holder's Registrable Securities as the Holders shall
designate pursuant to SECTIONS 2.1(i) or (iii) hereof in writing; PROVIDED,
HOWEVER, that no request may be made pursuant to this SECTION 2.1 if within 9
months prior to the date of such request a Demand Registration statement
pursuant to this SECTION 2.1 shall have been declared effective by the
Commission. Any request made pursuant to this SECTION 2.1 shall be addressed to
the attention of the Secretary of the Company, and shall specify the number of
Registrable Securities to be registered, the intended methods of
5
disposition thereof and that the request is for a Demand Registration pursuant
to this SECTION 2.1(i).
(ii) The Company shall be entitled to postpone for up to 90 days the
filing of any Demand Registration statement otherwise required to be prepared
and filed pursuant to this SECTION 2.1 if the Board determines, in its good
faith reasonable judgment (with the concurrence of the managing underwriter, if
any), that such registration and the Transfer of Registrable Securities
contemplated thereby would materially interfere with, or require premature
disclosure of, any financing, acquisition or reorganization involving the
Company or any of its wholly owned Subsidiaries and the Company promptly gives
the Holders notice of such determination; PROVIDED, HOWEVER, that the Company
shall not have postponed pursuant to this SECTION 2.1(ii) the filing of any
other Demand Registration statement otherwise required to be prepared and filed
pursuant to this SECTION 2.1 during the 12 month period ended on the date of the
relevant request pursuant to SECTION 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to
SECTION 2.1(i) to effect the registration of any Registrable Securities, the
Company shall promptly give written notice of such proposed registration to all
other Holders. Any such Holder may, within 20 days after receipt of such notice,
request in writing that all of such Holder's Registrable Securities, or any
portion thereof designated by such Holder, be included in the registration.
2.2. Following receipt of a request for a Demand Registration the Company
shall:
(i) File the registration statement with the Commission in accordance
with SECTION 4 hereof as promptly as practicable, and shall use the Company's
reasonable best efforts to have the registration declared effective under the
Securities Act as soon as reasonably practicable, in each instance giving due
regard to the need to prepare current financial statements, conduct due
diligence and complete other actions that are reasonably necessary to effect a
registered public offering.
(ii) Use the Company's reasonable efforts to keep the relevant
registration statement Continuously Effective for up to 90 days or until such
earlier date as of which all the Registrable Securities under the Demand
Registration statement shall have been disposed of in the manner described in
the Registration Statement. Notwithstanding the foregoing, if for any reason the
effectiveness of a registration pursuant to this SECTION 2 is suspended or
postponed as permitted by SECTION 2.1(ii), the foregoing period shall be
extended by the aggregate number of days of such suspension or postponement.
2.3. The Company shall be obligated to effect three Demand Registrations.
For purposes of the preceding sentence, registration shall not be deemed to have
been effected (i) unless a registration statement with respect thereto has
become effective, (ii) if after such registration statement has become
effective, such registration or the related offer, sale or distribution of
Registrable Securities thereunder is interfered with by any stop order,
injunction or other order or requirement of the Commission or other governmental
agency or
6
court for any reason not attributable to the Selling Holders and such
interference is not thereafter eliminated, or (iii) if the conditions to closing
specified in the underwriting agreement, if any, entered into in connection with
such registration are not satisfied or waived, other than by reason of a failure
on the part of the Selling Holders. If the Company shall have complied with its
obligations under this Agreement, a right to demand a registration pursuant to
this SECTION 2 shall be deemed to have been satisfied upon the earlier of (x)
the date as of which all of the Registrable Securities included therein shall
have been disposed of pursuant to the Registration Statement, and (y) the date
as of which such Demand Registration shall have been Continuously Effective for
a period of 90 days.
2.4. A registration pursuant to this SECTION 2 shall be on such
appropriate registration form of the Commission as shall (i) be selected by the
Company and be reasonably acceptable to the Selling Holders, and (ii) permit the
disposition of the Registrable Securities in accordance with the intended method
or methods of disposition specified in the request pursuant to SECTION 2.1(i) or
SECTION 2.2, respectively.
2.5. If any registration pursuant to SECTION 2 involves an underwritten
offering (whether on a "firm", "best efforts" or "all reasonable efforts" basis
or otherwise), or an agented offering, the Company shall have the right to
select the underwriter or underwriters and manager or managers to administer
such underwritten offering or the Agent or Agents for such agented offering;
PROVIDED, HOWEVER, that each Person so selected shall be reasonably acceptable
to the Selling Holders.
2.6. Whenever the Company shall effect a registration pursuant to this
SECTION 2 in connection with an underwritten offering by one or more Selling
Holders of Registrable Securities: (i) if such Selling Holders have requested
the inclusion therein of more than one class of Registrable Securities, and the
Underwriters' Representative or Agent advises each such Selling Holder in
writing that, in its opinion, the inclusion of more than one class of
Registrable Securities would adversely affect such offering, the Selling Holders
holding at least a majority of the Registrable Securities (determined by the
relative market value as of the date on which a timely demand is last received
from Holder) proposed to be sold therein by them, shall decide which class of
Registrable Securities shall be included therein in such offering and the
related registration, and the other class shall be excluded; and (ii) if the
Underwriters' Representative or Agent advises each such Selling Holder in
writing that, in its opinion, the amount of securities requested to be included
in such offering (whether by Selling Holders or others) exceeds the amount which
can be sold in such offering within a price range acceptable to the Selling
Holders, securities shall be included in such offering and the related
registration, to the extent of the amount which can be sold within such price
range, and on a pro rata basis among all Selling Holders; first for the account
of the Holder, and second by all other Selling Holders.
Section 3. PIGGYBACK REGISTRATION.
3.1. If at any time on or after the date of the second anniversary of the
Closing the Company proposes to register (including for this purpose a
registration effected by the
7
Company for shareholders of the Company other than the Holders) securities under
the Securities Act in connection with the public offering solely for cash on
Form S-1, S-2 or S-3 (or any replacement or successor forms), the Company shall
promptly give each Holder written notice of such registration (a "PIGGYBACK
REGISTRATION"). Upon the written request of each Holder given within 20 days
following the date of such notice, the Company shall cause to be included in
such registration statement and use its reasonable best efforts to be registered
under the Securities Act all the Registrable Securities that each such Holder
shall have requested to be registered. The Company shall have the absolute right
to withdraw or cease to prepare or file any registration statement for any
offering referred to in this SECTION 3 without any obligation or liability to
any Holder.
3.2 If the Underwriters' Representative or Agent shall advise the Company
in writing (with a copy to each Selling Holder) that, in its opinion, the amount
of Registrable Securities requested to be included in such registration would
materially adversely affect such offering, or the timing thereof, then the
Company will include in such registration, to the extent of the amount and class
which the Company is so advised can be sold without such material adverse effect
in such offering: first, all securities proposed to be sold by the Company for
its own account; second, the Registrable Securities requested to be included in
such registration by Holders pursuant to this SECTION 3; and third, all other
securities being registered pursuant to the exercise of contractual rights
comparable to the rights granted in SECTION 2 or SECTION 3, pro rata based on
the estimated gross proceeds from the sale thereof; PROVIDED, HOWEVER, that the
Registrable Securities that have been requested to be registered shall not be
reduced below 20% of the shares included in such registration unless such action
is necessary to avoid a material adverse effect on the Company taken as a whole.
3.3. The Company shall be obligated to effect five Piggyback Registrations
pursuant to this SECTION 3.
3.4. If the Company has previously filed a registration statement with
respect to Registrable Securities pursuant to SECTION 2 or pursuant to this
SECTION 3, and if such previous registration has not been withdrawn or
abandoned, the Company need not file or cause to be effected any other
registration pursuant to Section 2 or Section 3, of any of its equity securities
or securities convertible or exchangeable into or exercisable for its equity
securities under the Securities Act, whether on its own behalf or at the request
of any holder or holders of such securities, until a period of 180 days has
elapsed from the effective date of such a previous registration.
Section 4. REGISTRATION PROCEDURES.
Whenever required under SECTION 2 or SECTION 3 to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as practicable:
4.1. Prepare and file with the Commission a registration statement with
respect to such Registrable Securities and use the Company's reasonable best
efforts to cause such registration statement to become effective; PROVIDED,
HOWEVER, that before filing a registration
8
statement or prospectus or any amendments or supplements thereto, including
documents incorporated by reference after the initial filing of the registration
statement and prior to effectiveness thereof, the Company shall furnish to one
firm of counsel for the Selling Holders copies of all such documents in the form
substantially as proposed to be filed with the Commission at least four Business
Days prior to filing for review and comment by such counsel which opportunity to
comment shall include an absolute right to control or contest disclosure if the
applicable Selling Holder reasonably believes that it may be subject to
controlling person liability or other liability arising under applicable
securities laws with respect thereto. The review and commenting by the Selling
Holder or its counsel will not be unreasonably delayed.
4.2. Prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act and rules thereunder with respect to the disposition of all
securities covered by such registration statement. If the registration is for an
underwritten offering, the Company shall amend the registration statement or
supplement the prospectus whenever required by the terms of the underwriting
agreement entered into pursuant to SECTION 5.2. If the registration is for an
underwritten offering, and if any event or development occurs as a result of
which the registration statement or prospectus contains a misstatement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, the Company shall
promptly notify each Selling Holder, amend the registration statement or
supplement the prospectus so that each will thereafter comply with the
Securities Act and furnish to each Selling Holder of Registrable Securities such
amended or supplemented prospectus, which each such Holder shall thereafter use
in the Transfer of Registrable Securities covered by such registration
statement. Pending such amendment or supplement each such Holder shall cease
making the offers or Transfers of Registrable Securities pursuant to the prior
prospectus. In the event that any Registrable Securities included in a
registration statement subject to, or required by, this Agreement remain unsold
at the end of the period during which the Company is obligated to use its
reasonable best efforts to maintain the effectiveness of such registration
statement, the Company may file a post-effective amendment to the registration
statement for the purpose of removing such securities from registered status.
4.3. Furnish to each Selling Holder, without charge, such numbers of
copies of the registration statement, any pre-effective or post-effective
amendment thereto, the prospectus, including each preliminary prospectus and any
amendments or supplements thereto, in each case in conformity with the
requirements of the Securities Act and the rules thereunder, and such other
related documents as any such Selling Holder may reasonably request in order to
facilitate the disposition of Registrable Securities owned by such Selling
Holder.
4.4. Use the Company's reasonable best efforts (i) to register and qualify
the securities covered by such registration statement under such other
securities or blue sky laws of such states or domestic jurisdictions as shall be
reasonably requested by the Underwriters'
9
Representative or Agent (as applicable, or, if inapplicable, the Selling
Holders), and (ii) to obtain the withdrawal of any order suspending the
effectiveness of a registration statement, or the lifting of any suspension of
the qualification (or exemption from qualification) of the offer and transfer of
any of the Registrable Securities in any jurisdiction, at the earliest possible
moment; PROVIDED, HOWEVER, that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business, to subject itself
to taxation or to file a general consent to service of process in any such
states or jurisdictions.
4.5. In the event of any underwritten or agented offering, enter into and
perform the Company's obligations under an underwriting or agency agreement
(including indemnification and contribution obligations of underwriters or
agents), in usual and customary form, with the managing underwriter or
underwriters of or agents for such offering. The Company shall also cooperate
with the Selling Holders, and the Underwriters' Representative or Agent for such
offering in the marketing of the Registrable Shares, including making available
the Company's officers, accountants, counsel, premises, books and records for
such purpose, but the Compny shall not be required to incur any significant
out-of-pocket expense pursuant to this sentence.
4.6. Promptly notify each Selling Holder of any stop order issued or
threatened to be issued by the Commission in connection therewith and take all
reasonable actions required to prevent the entry of such stop order or to remove
it if entered.
4.7. Make generally available to the Company's security holders copies of
all periodic reports, proxy statements, and other information referred to in
SECTION 10.1 and, as soon as reasonably practicable, an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act covering the
12-month period beginning within three months after the effective date of each
registration statement filed pursuant to this Agreement.
4.8 Make available for inspection by any Selling Holder, any underwriter
participating in such offering and the representatives of such Selling Holder
and underwriter (but not more than one firm of counsel to such Selling Holders),
all financial and other information as shall be reasonably requested by them,
and provide the Selling Holder, any underwriter participating in such offering
and the representatives of such Selling Holder and underwriter the opportunity
to discuss the business affairs of the Company with its appropriate officers and
independent public accountants who have certified the audited financial
statements included in such registration statement, in each case all as
necessary to enable them to exercise their due diligence responsibility under
the Securities Act; PROVIDED, HOWEVER, that information that the Company
determines, in good faith, to be confidential, and which the Company advises
such Person in writing is confidential, shall not be disclosed unless such
Person signs a confidentiality agreement reasonably satisfactory to the Company
or the related Selling Holder agrees to be responsible for such Person's breach
of confidentiality on terms reasonably satisfactory to the Company.
4.9. Use the Company's reasonable best efforts to obtain a so-called
"comfort letter" from its independent public accountants and legal opinions of
counsel to the Company
10
addressed to the Selling Holders, in customary form and covering such matters of
the type customarily covered by such letters, and in a form that shall be
reasonably satisfactory to the Selling Holders. The Company shall furnish to
each Selling Holder a signed counterpart of any such comfort letter or legal
opinion. Delivery of any such opinion or comfort letter shall be subject to the
recipient furnishing such written representations or acknowledgments as are
customarily provided by selling shareholders who receive such comfort letters or
opinions.
4.10. Provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by such registration statement from and
after a date not later than the effective date of such registration statement.
4.11. Use all reasonable efforts to cause the Registrable Securities
covered by such registration statement (i) if the Registrable Securities are of
a class of the Company's securities then listed on a securities exchange or
included for quotation in a recognized trading market, to continue to be so
listed or included for a reasonable period of time after the offering, and (ii)
to be registered with or approved by such other United States or state
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company to enable the Selling Holders to
consummate the disposition of such Registrable Securities.
4.12. Use the Company's reasonable efforts to provide a CUSIP number for
the Registrable Securities prior to the effective date of the first registration
statement including Registrable Securities.
4.13. Take such other actions as are reasonably required in order to
expedite or facilitate the disposition of Registrable Securities included in
each such registration.
Section 5. HOLDERS' OBLIGATIONS.
It shall be a condition precedent to the obligations of the Company
to take any action pursuant to this Agreement with respect to the Registrable
Securities of any Selling Holder that such Selling Holder shall:
5.1 Furnish to the Company such information regarding such Selling Holder,
the number of the Registrable Securities owned by it, and the intended method of
disposition of such securities as shall be required to effect the registration
of such Selling Holder's Registrable Securities, and to cooperate with the
Company in preparing such registration.
5.2. Agree to sell their Registrable Securities to the underwriters at the
same price and on substantially the same terms and conditions as the Company or
the other Persons on whose behalf the registration statement was being filed
have agreed to sell their securities, and to execute the underwriting agreement
agreed to by the Selling Holders (in the case of a registration under SECTION 2)
or the Company and the Selling Holders (in the case of a registration under
SECTION 3).
11
Section 6. EXPENSES OF REGISTRATION.
Expenses in connection with registrations pursuant to this Agreement
shall be allocated and paid as follows:
6.1. With respect to each Demand Registration, the Company shall bear and
pay all expenses incurred in connection with any registration, filing, or
qualification of Registrable Securities with respect to such Demand
Registrations for each Selling Holder (which right may be assigned to any Person
to whom Registrable Securities are Transferred as permitted by SECTION 8),
including all registration, filing and National Association of Securities
Dealers, Inc. fees, all fees and expenses of complying with securities or blue
sky laws, all word processing, duplicating and printing expenses, messenger and
delivery expenses, the reasonable fees and disbursements of counsel for the
Company and of the Company's independent public accountants, including the
expenses of "cold comfort" letters required by or incident to such performance
and compliance (the "Registration Expenses"), but excluding any fees and
disbursements of counsel for the Selling Holders which shall be selected by the
Selling Holders and underwriting discounts and commissions relating to the
Selling Holder's Registrable Securities; provided, however, that the Company
shall not be required to pay for any Registration Expenses associated with a
registration begun under Section 2 if the registration is susequently withdrawn
at the request of the Selling Holders (in which case the Selling Holders shall
bear such expense unless Holders whose Registrable Securties constitute a
majority of the outstanding Registrable Securities agree that such withdrawn
registration shall constitute one of the demand reigstrations under Section 2).
6.2. The Company shall bear and pay all Registration Expenses incurred in
connection with any Piggyback Registrations pursuant to SECTION 3 for each
Selling Holder (which right may be Transferred to any Person to whom Registrable
Securities are Transferred as permitted by SECTION 8), but excluding
underwriting discounts and commissions relating to Registrable Securities and
any fees and disbursements of counsel retained by and for the Selling Holders
(which shall be paid on a pro rata basis by the Selling Holders).
6.3. Any failure of the Company to pay any Registration Expenses as
required by this SECTION 6 shall not relieve the Company of its obligations
under this Agreement.
Section 7. INDEMNIFICATION; CONTRIBUTION.
If any Registrable Securities are included in a registration
statement under this Agreement:
7.1. To the extent permitted by applicable law, the Company shall
indemnify and hold harmless each Selling Holder, each Person, if any, who
controls such Selling Holder within the meaning of the Securities Act, and each
officer, director, partner, and employee of
12
such Selling Holder and such controlling Person, against any and all losses,
claims, damages, liabilities and reasonable expenses (joint or several),
including reasonable attorneys' fees and disbursements and expenses of
investigation, incurred by such party pursuant to any actual or threatened
action, suit, proceeding or investigation, or to which any of the foregoing
Persons may become subject under the Securities Act, the Exchange Act or other
federal or state laws, insofar as such losses, claims, damages, liabilities and
reasonable expenses arise out of or are based upon any of the following
statements, omissions or violations (collectively a "VIOLATION").
(i) Any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein, or any amendments or
supplements thereto;
(ii) The omission or alleged omission to state therein a material
fact required to be stated therein, or necessary to make the statements therein
not misleading; or
(iii) Any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any applicable state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
applicable state securities law; PROVIDED, HOWEVER, that the indemnification
required by this SECTION 7.1 shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or expense if such settlement is
effected without the consent of the Company, nor shall the Company be liable in
any such case for any such loss, claim, damage, liability or expense to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished by the
indemnified party expressly for use in connection with such registration;
PROVIDED, FURTHER, that the indemnity agreement contained in this SECTION 7
shall not apply to any underwriter to the extent that any such loss is based on
or arises out of an untrue statement or alleged untrue statement of a material
fact, or an omission or alleged omission to state a material fact, contained in
or omitted from any preliminary prospectus if the final prospectus shall correct
such untrue statement or alleged untrue statement, or such omission or alleged
omission, and a copy of the final prospectus has not been sent or given to such
person at or prior to the confirmation of sale to such person if such
underwriter was under an obligation to deliver such final prospectus and failed
to do so. The Company shall also indemnify the Selling Holders against claims
asserted by underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, their
officers, directors, agents and employees and each person who controls such
persons (within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act) to the same extent as provided above with respect to the
indemnification of the Selling Holders.
7.2. To the extent permitted by applicable law, each Selling Holder shall
indemnify and hold harmless the Company, each of its directors, each of its
officers who shall have signed the registration statement, each Person, if any,
who controls the Company within the meaning of the Securities Act, any other
Selling Holder, any controlling Person of any such other Selling
13
Holder and each officer, director, partner, and employee of such other Selling
Holder and such controlling Person, against any and all losses, claims, damages,
liabilities and expenses (joint and several), including reasonable attorneys'
fees and disbursements and expenses of investigation, incurred by such party
pursuant to any actual or threatened action, suit, proceeding or investigation,
or to which any of the foregoing Persons may otherwise become subject under the
Securities Act, the Exchange Act or other federal or state laws, insofar as such
losses, claims, damages, liabilities and expenses arise out of or are based upon
any Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
about such Selling Holder furnished by such Selling Holder expressly for use in
connection with such registration; PROVIDED, HOWEVER, that (i) the
indemnification required by this SECTION 7.2 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or expense if settlement
is effected without the consent of the relevant Selling Holder of Registrable
Securities, and (ii) in no event shall the amount of any indemnity under this
SECTION 7.2 exceed the gross proceeds from the applicable offering received by
such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this SECTION 7
of notice of the commencement of any action, suit, proceeding, investigation or
threat thereof made in writing for which such indemnified party may make a claim
under this SECTION 7, such indemnified party shall deliver to the indemnifying
party a written notice of the commencement thereof and the indemnifying party
shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly noticed,
to assume the defense thereof with counsel mutually satisfactory to the parties.
The failure to deliver written notice to the indemnifying party within a
reasonable time following the commencement of any such action, if prejudicial to
its ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this SECTION 7 but shall not relieve
the indemnifying party of any liability that it may have to any indemnified
party otherwise than pursuant to this SECTION 7. Any fees and expenses incurred
by the indemnified party (including any fees and expenses incurred in connection
with investigating or preparing to defend such action or proceeding) shall be
paid to the indemnified party, as incurred, within thirty (30) days of written
notice thereof to the indemnifying party; PROVIDED, HOWEVER, that such notice is
accompanied by an appropriate undertaking of the indemnified party to reimburse
the indemnifying party to the extent it is ultimately determined that such party
is not entitled to indemnification. Any such indemnified party shall have the
right to employ separate counsel in any such action, claim or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be the expenses of such indemnified party unless (i) the indemnifying
party has agreed to pay such fees and expenses or (ii) the indemnifying party
shall have failed to promptly assume the defense of such action, claim or
proceeding. No indemnifying party shall be liable to an indemnified party for
any settlement of any action, proceeding or claim without the written consent of
the indemnifying party, which consent shall not be unreasonably withheld.
14
7.4. If the indemnification required by this SECTION 7 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to in this
SECTION 7:
(i) The indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any Violation has been committed by, or relates to information supplied
by, such indemnifying party or indemnified parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such Violation. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in SECTION 7.1 and SECTION 7.2,
any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable
if contribution pursuant to this SECTION 7.4 were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in SECTION 7.4(i). No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
7.5 If indemnification is available under this SECTION 7, the indemnifying
parties shall indemnify each indemnified party to the full extent provided in
this Section 7 without regard to the relative fault of such indemnifying party
or indemnified party or any other equitable consideration referred to in SECTION
7.4.
7.6 The obligations of the Company and the Selling Holders of Registrable
Securities under this SECTION 7 shall survive the completion of any offering of
Registrable Securities pursuant to a registration statement under this Agreement
or otherwise.
Section 8. TRANSFER OF REGISTRATION RIGHTS.
Subject to restrictions in the Investment Agreement on the right to
transfer the Shares, the rights of Holders under this Agreement with respect to
each Share of Registrable Securities may be transferred to (i) any Permitted
Transferee any number of times in any quantity or (ii) on one occasion to one
third party transferee (other than a Competitor of the Company) and any such
transferee shall have the rights and obligations of and be deemed a Holder
hereunder. Any transferee (other than a Permitted Transferee) to whom rights
under this Agreement are transferred shall, as a condition to such transfer,
have executed and
15
delivered to the Secretary of the Company a properly completed agreement
substantially in the form of EXHIBIT A, and the transferor shall have delivered
to the Secretary of the Company, no later than 15 days following the date of the
Transfer, written notification of such Transfer setting forth the name of the
transferor, name and address of the transferee, and the number of Registrable
Securities which shall have been so transferred.
Section 9. HOLDBACK.
Each Holder entitled pursuant to this Agreement to have Registrable
Securities included in a registration statement prepared pursuant to this
Agreement, if so requested by the Underwriters' Representative or Agent in
connection with an offering of any Registrable Securities, shall not effect any
public sale or distribution of shares of Common Stock or any securities
convertible into or exchangeable or exercisable for shares of Common Stock,
including a sale pursuant to Rule 144 under the Securities Act (except as part
of such underwritten or agented registration), during the 15 day period prior
to, and during the 180 day period beginning on, the date such registration
statement is declared effective under the Securities Act by the Commission,
PROVIDED that such Holder is timely notified of such effective date in writing
by the Company or such Underwriters' Representative or Agent. In order to
enforce the foregoing covenant, the Company shall be entitled to impose
stop-transfer instructions with respect to the Registrable Securities of each
Holder until the end of such period.
Section 10. COVENANTS OF THE COMPANY.
The Company hereby agrees and covenants as follows:
10.1. The Company shall file as and when applicable, on a timely basis,
all reports required to be filed by it under the Exchange Act. If the Company is
not required to file reports pursuant to the Exchange Act, upon the request of
any Holder of Registrable Securities, the Company shall make publicly available
the information specified in subparagraph (c)(2) of Rule 144 of the Securities
Act, and take such further action as may be reasonably required from time to
time and as may be within the reasonable control of the Company, to enable the
Holders to transfer Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144
under the Securities Act or any similar rule or regulation hereafter adopted by
the Commission.
10.2. (i) The Company shall not, and shall not permit its Subsidiaries to
effect any public sale or distribution of any shares of Common Stock or any
securities convertible into or exchangeable or exercisable for shares of Common
Stock, during the five business days prior to, and during the 90-day period
beginning on, the commencement of a public distribution of the Registrable
Securities pursuant to any registration statement prepared pursuant to this
Agreement (other than by the Company pursuant to such registration if the
registration is pursuant to SECTION 3). The Company shall not effect any
registration of its securities (other than on Forms S-4 or Forms S-8 or any
successor forms or pursuant to such other registration rights agreements as may
be approved in writing by the Selling Holders), or
16
effect any public or private sale or distribution of any of its securities,
including a sale pursuant to Regulation D under the Securities Act, whether on
its own behalf or at the request of any holder or holders of such securities
from the date of a request for a Demand Registration pursuant to SECTION 2.1
until the earlier of (x) 90 days following the date as of which all securities
covered by such Demand Registration Statement shall have been Transferred, and
(y) 180 days following the effective date of such Demand Registration statement,
unless the Company shall have previously notified in writing all Selling Holders
of the Company's desire to do so, and Selling Holders owning a majority of the
Registrable Securities or the Underwriters' Representative, if any, shall have
consented thereto in writing.
(ii) Any agreement entered into after the date of this Agreement
pursuant to which the Company or any of its Subsidiaries issues or agrees to
issue any privately placed securities similar to any issue of the Registrable
Securities (other than (x) shares of Common Stock pursuant to a stock incentive,
stock option, stock bonus, stock purchase or other employee benefit plan of the
Company approved by its Board of Directors, and (y) securities issued to Persons
in exchange for ownership interests in any Person in connection with a business
combination in which the Company or any of its Subsidiaries is a party) shall
contain a provision whereby holders of such securities agree not to effect any
public sale or distribution of any such securities during the periods described
in the first sentence of SECTION 10.2(i), in each case including a sale pursuant
to Rule 144 under the Securities Act (unless such Person is prevented by
applicable statute or regulation from entering into such an agreement).
10.3. The Company shall not, directly or indirectly, (i) enter into any
merger, consolidation or reorganization in which the Company shall not be the
surviving corporation or (ii) transfer or agree to transfer all or substantially
all the Company's assets, unless prior to such merger, consolidation,
reorganization or asset Transfer, the surviving corporation or the transferee,
respectively, shall have agreed in writing to assume the obligations of the
Company under this Agreement, and for that purpose references hereunder to
"Registrable Securities" shall be deemed to include the securities which the
Holders would be entitled to receive in exchange for Registrable Securities
pursuant to any such merger, consolidation or reorganization.
Section 11. AMENDMENT, MODIFICATION AND WAIVERS; FURTHER ASSURANCES.
11.1. This Agreement may be amended with the consent of the Company, and
the Company may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, only if the Company shall have obtained
the written consent of Holders owning Registrable Securities possessing a
majority in number of the Registrable Securities then outstanding to such
amendment, action or omission to act.
11.2 No waiver of any terms or conditions of this Agreement shall operate
as a waiver of any other breach of such terms and conditions or any other term
or condition, nor shall any failure to enforce any provision hereof operate as a
waiver of such provision or of any other provision hereof. No written waiver
hereunder, unless it by its own terms
17
explicitly provides to the contrary, shall be construed to effect a continuing
waiver of the provisions being waived, and no such waiver in any instance shall
constitute a waiver in any other instance or for any other purpose or impair the
right of the party against whom such waiver is claimed in all other instances or
for all other purposes to require full compliance with such provision.
11.3 Each of the parties hereto shall execute all such further instruments
and documents and take all such further action as any other party hereto may
reasonably require in order to effectuate the terms and purposes of this
Agreement.
Section 12. ASSIGNMENT; BENEFIT.
This Agreement and all of the provisions hereof shall be binding
upon and shall inure to the benefit of the parties hereto and their permitted
transferees, successors and assigns; PROVIDED, HOWEVER, that except as
specifically provided herein with respect to certain matters, neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned or delegated by the Company without the prior written consent of
Holders owning Registrable Securities possessing a majority in number of the
Registrable Securities outstanding on the date as of which such delegation or
assignment is to become effective. A Holder may transfer its rights hereunder to
a successor in interest to the Registrable Securities owned by such assignor
only as permitted by SECTION 8.
SECTION 13. MISCELLANEOUS.
13.1. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, REGARDLESS OF THE LAWS THAT
MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICT OF LAWS.
13.2. NOTICES. All notices, requests, claims, demands, and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, overnight courier service (with delivery confirmed) or by telecopy (with
a confirmatory copy sent by overnight courier) to the other party at the
following address (or at such other address for a party as shall be specified in
a notice given in accordance in this Section 13.2 by like Notice)
(a) if to Company, to:
Metro One Telecommunications, Inc.
11200 Murray Scholls Place
Beaverton, OR 97008
Attn: Chief Executive Officer
Telecopy No.: 503-521-0923
18
with a copy (which shall not constitute notice) to:
Heller Ehrman White & McAuliffe LLP
601 S. Figueroa Street, 40th Floor
Los Angeles, CA 90017
Attn: Neal H. Brockmeyer, Esq.
Telecopy No.: 213-614-1868
(b) if to the original Holder, to:
Sonera Media Holding B.V.
c/o Sonera Corporation
Teollisuuskatu 15
P.O. Box 106, SONERA-00051
Helsinki, Finland
Attn: Maire Laitinen, General Counsel
Telecopy No.: 011-358-2040-3414
with a copy (which shall not constitute notice) to:
Patton Boggs LLP
2550 M St., N.W.
Washington, D.C. 20037
Attn: Richard M. Stolbach, Esq.
Telecopy No.: 202-457-6315
In the event of a Transfer of any Registrable Securities, notices
given pursuant to this Agreement to a subsequent Holder shall be delivered to
the relevant address specified in the relevant agreement in the form of EXHIBIT
A whereby such Holder became bound by the provisions of this Agreement.
Except as otherwise provided in this Agreement, the date of each
such notice and request shall be deemed to be, and the date on which each such
notice and request shall be deemed given shall be at the time delivered, if
personally delivered or mailed; when receipt is acknowledged, if sent by
telecopy; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next Business Day delivery.
13.3. ENTIRE AGREEMENT; INTEGRATION. This Agreement, the Stock Purchase
Agreement and the Investment Agreement supersedes all prior agreements between
or among any of the parties hereto with respect to the subject matter contained
herein, and embody the entire understanding among the parties relating to such
subject matter.
13.4. INJUNCTIVE RELIEF. Each of the parties hereto acknowledges that in
the event of a breach by any of them of any material provision of this
Agreement, the aggrieved party may be without an adequate remedy at law. Each of
the parties therefore agrees that in the event of
19
such a breach hereof the aggrieved party may elect to institute and prosecute
proceedings in any court of competent jurisdiction to enforce specific
performance or to enjoin the continuing breach hereof. By seeking or obtaining
any such relief, the aggrieved party shall not be precluded from seeking or
obtaining any other relief to which it may be entitled.
13.5. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, transmitted via facsimile, and
all of which shall together constitute one and the same instrument. All
signatures need not be on the same counterpart.
13.6. SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any Law or public policy, all
other terms and provisions of this Agreement shall nevertheless remain in full
force and effect.so long as the economic and legal substance of the transactions
contemplated hereby are not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the origianl intent of the
parties as closely as possible in a mutually acceptable manner in order that the
transactions contemplated hereby are consummated as originally contemplated to
the greatest extent possible.
13.7. FILING. A copy of this Agreement and of all amendments thereto shall
be filed at the principal executive office of the Company with the corporate
secretary of the Company.
13.8. TERMINATION. This Agreement may be terminated without further
obligation to Metro One or Sonera at any time by a written instrument signed by
the parties hereto. Unless sooner terminated in accordance with the preceding
sentence, this Agreement (other than SECTION 7 hereof) shall terminate in its
entirety on such date as there shall be no Registrable Securities outstanding,
PROVIDED that any shares of Common Stock previously subject to this Agreement
shall not be Registrable Securities following the sale of any such shares in an
offering registered pursuant to this Agreement; and PROVIDED FURTHER that a
Holder shall cease to be a Holder under this Agreement for all purposes if such
Holder (i) is provided with an opinion of counsel of the Company which is
reasonably satisfactory to Holder to the effect that such Holder may sell all of
the Registrable Securities without registration under the Securities Act and
(ii) enters into an agreement with the Company pursuant to which the Company
agrees remove all legends and "stop transfers" relating to such Registrable
Securities.
13.9. ATTORNEYS' FEES. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the successful party shall be entitled to recover reasonable
attorneys' fees (including any fees incurred in any appeal) in addition to its
costs and expenses and any other available remedy.
13.10. NO THIRD PARTY BENEFICIARIES. This Agreement shall be binding upon
and inure solely to the benefit of the parties hereto and their sucessor and
permitted assigns and nothing
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herein, express or implied, is intended to or shall confer upon any other
Person, any legal or equitable right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.
13.11. DISPUTE RESOLUTION. In the event that any dispute, controversy or
claim arises between the Purchaser and Seller with respect to this Agreement or
the transactions contemplated hereby, the following procedures shall apply:
(a) The parties will attempt in good faith to resolve any dispute,
controversy or claim under, arising out of, relating to or in connection with
this Agreement, including the negotiation, execution, interpretation,
construction, performance, non-performance, breach, termination, validity,
scope, coverage or enforceability of this Agreement or any alleged fraud in
connection therewith, promptly by negotiation between representatives of the
parties. If any such dispute, controversy or claim should arise, duly authorized
representatives of the Purchaser and the Seller will meet at least once at a
mutually agreed time and place and will attempt to resolve the matter. Either
representative may request the other to meet again within 14 days thereafter.
(b) If the matter has not been resolved pursuant to the foregoing
procedures within 30 days after the first meeting of the representatives (which
period may be extended by mutual agreement), the matter shall be settled, at the
request of either party, by arbitration administered by the American Arbitration
Association and conducted in accordance with its Commercial Arbitration Rules.
The arbitration decision shall be rendered within 180 days from thedate of
appointment of all the arbitrators.
(c) There shall be three arbitrators. Within ten days after the
initiation of an arbitration proceeding, Seller shall select one arbitrator and
the Purchaser shall select one arbitrator, and those two arbitrators shall then
select within ten days a third arbitrator. If those two arbitrators are unable
to select a third arbitrator within such ten-day period, a third arbitrator
shall be appointed by the American Arbitration Association. If either party
fails or refuses to appoint an arbitrator, the arbitrator appointed by the other
party shall be the sole arbitrator.
(d) The decision of at least two of the three arbitrators (or a
single arbitrator, as the case may be due to a default in appointment) shall be
final and binding upon the parties. The arbitrators' decision shall be in
writing and shall provide a reasoned basis for the resolution of each dispute
and for any award. The arbitrators shall not have power to award damages in
connection with any dispute in excess of actual compensatory damages and shall
not multiply actual damages or award consequential or punitive damages.
Equitable remedies shall be available in any such arbitration.
(e) The substantive and procedural law of the State of New York
shall apply to any such arbitration proceedings. The place of any such
arbitration shall be New York, New York. Judgment on an award rendered by the
arbitrators may be entered in any court of competent jurisdiction.
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(f) Notwithstanding the provisions of this Section 13.11, either
party may seek injunctive or other equitable relief to maintain the status quo
before any federal or state court of competent jurisdiction within New York, New
York, in connection with any dispute, controversy or claim arising between the
Purchaser and the Seller with respect to this Agreement or the transactions
contemplated hereby.
(g) Each party shall bear its own fees and expenses with respect to
the arbitration and any proceedings related thereto and the parties shall share
equally the fees and expenses of the American Arbitration Association and the
arbitrators however, the prevailing party shall be reimbursed for its expenses
and attorney fees by the other party.
13.12 SONERA AS AGENT OF SONERA HOLDERS. For purposes of this Agreement:
(i) notice to Sonera in the manner designated in Section 13.2 hereof shall
constitute notice to all Sonera Holders, provided such notice identifies therein
each Sonera Holder by name and number of Registrable Securities owned by such
Holder; and (ii) a duly authorized representative of Sonera or an officer of
Sonera Corporation shall have the authority to act hereunder on behalf of each
Sonera Holder.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first written above.
METRO ONE TELECOMMUNICATIONS, INC.
By:
-------------------------------
Name:
Title:
SONERA MEDIA HOLDING B.V.
By:
-------------------------------
Name:
Title:
SIGNATURE PAGE TO
REGISTRATION RIGHTS AGREEMENT
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EXHIBIT A
to Registration
Rights Agreement
AGREEMENT TO BE BOUND
BY THE REGISTRATION RIGHTS AGREEMENT
The undersigned, being the transferee of ______ shares of
REGISTRABLE SECURITIES, (as defined in the Registration Rights Agreement between
Metro One Telecommunicaitons, Inc., (the "COMPANY") and Sonera Media Holding
B.V., dated _____ 200_, (the "Registration Rights Agreement"), as a condition to
the receipt of such Registrable Securities, acknowledges that matters pertaining
to the registration of such Registrable Securities is governed by the
Registration Rights Agreement and the undersigned hereby (1) acknowledges
receipt of a copy of the Registration Rights Agreement, and (2) agrees to be
bound as a Holder by the terms of the Registration Rights Agreement, as the same
has been or may be amended from time to time.
Agreed to this __ day of ______________, 2000.
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*Include address for notices.
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