EXHIBIT 99.3
REGISTRATION RIGHTS AGREEMENT
BETWEEN
METRO ONE TELECOMMUNICATIONS, INC.
AN OREGON CORPORATION
AND
SONERA MEDIA HOLDING B.V.
A NETHERLANDS CORPORATION
DATED AS OF FEBRUARY 2, 2001
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") dated as of
February 2, 2001 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.
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"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 February 2, 2001 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,
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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.
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"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.
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(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
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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
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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
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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 ▇-▇, ▇-▇ 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
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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'
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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
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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).
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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.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Executive Officer
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
18
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ White & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
(b) if to the original Holder, to:
Sonera Media Holding B.V.
c/o Sonera Corporation
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Counsel
Telecopy No.: 011-358-2040-3414
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇ ▇▇▇▇▇ LLP
▇▇▇▇ ▇ ▇▇., ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
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 ▇▇▇▇▇▇.▇▇ 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
20
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.
21
(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: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and CEO
SONERA MEDIA HOLDING B.V.
By: /s/ OLLI ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: Olli ▇. ▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
SIGNATURE PAGE TO
REGISTRATION RIGHTS AGREEMENT
22
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.
---------------------------------
---------------------------------
---------------------------------
*Include address for notices.
23