Exhibit 10.1


 


 


SETTLEMENT
AGREEMENT AND

DISENTANGLEMENT TRANSITION PLAN


 


THIS
SETTLEMENT AGREEMENT AND DISENTANGLEMENT TRANSITION PLAN (“Agreement”) is made
and entered into as of this 10th day of February, 2006, by and between Nextel
Operations, Inc., for itself and as authorized agent of and for Nextel of
California, Inc., Nextel Communications of the MidAtlantic, Inc., Nextel of New
York, Inc., Nextel South Corp., Nextel of Texas, Inc. and Nextel West Corp.
(collectively, “Nextel”) and Metro One Telecommunications, Inc. (“Metro One”). The
foregoing parties are sometimes referred to individually as a “Party” and
collectively as the “Parties.”


 


RECITALS


 


WHEREAS,
Nextel and Metro One entered into that certain Master Services Agreement for
Directory Assistance Services dated January 1, 2005 (the “Master Services
Agreement”) pursuant to which Metro One provided certain directory assistance
services to Nextel; and


 


WHEREAS,
on or about October 14, 2005 Nextel notified Metro One of its intent to
terminate the Master Services Agreement for convenience pursuant to
Section 11.2.2 thereof; and


 


WHEREAS,
Nextel filed a complaint against Metro One in the United States District Court
for the Eastern District of Virginia (the “Court”), Civil Action No. 1:05
CV-1452, captioned Nextel Operations, Inc. v. Metro One Telecommunications,
Inc., and Metro One has filed its answer and counterclaims thereto
(collectively, the “Litigation”); and


 


WHEREAS,
on or about December 21, 2005, on the application of Nextel, the Court
entered a preliminary injunction requiring, among other things, Metro One to
continue meeting the prescribed service levels under the Master Services
Agreement and directing the Parties to continue in good faith to negotiate the
provisions of a disentanglement transition plan as contemplated by the Master
Services Agreement (the “Preliminary Injunction”); and


 


WHEREAS,
the Parties now desire to resolve the claims raised in the Litigation to avoid
further expenditure of time and the expenses of contested litigation; and


 


WHEREAS,
the Parties also desire to enter into a mutually acceptable “disentanglement
transition plan” (the “Disentanglement Plan”) as contemplated by
Section 12 of the Master Services Agreement;


 


NOW,
THEREFORE, in consideration of the covenants and mutual promises herein
contained, and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereby agree as follows.


 


AGREEMENT


 


1.             Incorporation of Recitals. The
above recitals are true and are hereby incorporated herein.


 

















 


2.             Releases and Dismissal of
Litigation. On the Effective Date (as defined below) Nextel and Metro One
shall (a) execute and deliver a mutual release substantially in the form
of Exhibit ”A” hereto that shall, among other things, provide for the
release of all claims that have, or could have, been raised in the Litigation;
and (b) file a stipulated dismissal of the Litigation substantially in the
form of Exhibit ”B” hereto.


 


3.             Effective Date. The “Effective
Date” for purposes of this Agreement shall be the later of
(i) March 31, 2006; or (ii) the date that is five (5) business
days after payment of the last installment of the Nextel Payment (as defined in
Section 6 below).


 


4.             Release of Preliminary
Injunction. Upon the execution and delivery of this Agreement, the Parties
shall file an order in the form attached hereto as Exhibit ”C” dissolving
the Preliminary Injunction and releasing the bond posted in connection
therewith.


 


5.             Disentanglement Plan. The
Parties hereby agree to the Disentanglement Plan set forth in Sections 5 and 6
hereof, and further agree that it constitutes the disentanglement transition
plan contemplated by Section 12 of the Master Services Agreement:


 


a.             Transition.
Nextel shall transfer directory assistance calls for its customers from Metro
One on a call center-by-call center basis. Schedule 1 lists, by
location, the Metro One call centers currently providing services to Nextel
under the Master Services Agreement (each a “Call Center”) and, for each Call
Center a “Planned Transition Date” and a “Termination Date.”


 


b.             Obligations
of Nextel. For each Call Center for which Schedule 1 specifies
a Planned Transition Date, Nextel shall use its best efforts to transfer
directory assistance calls of its customers from that Call Center on or before
the specified Planned Transition Date. If Nextel is unable to complete the
transition by the Planned Transition date, Nextel shall continue to use its
best efforts to complete the transition as soon as possible thereafter. Once all
Nextel calls have been transitioned from a Call Center for a period of
twenty-four (24) hours (the “Actual Transition Date”), the transfer of such
calls shall be deemed complete and Nextel shall not attempt to transfer any
such calls back to such Call Center.


 


Other
than as specified in Section 5.d, below, Nextel shall cease routing
directory assistance calls from its customers to each Call Center by no later
than the specified Termination Date for such Call Center.


 


c.             Obligations
of Metro One. Until the earlier of (i) the Actual Transition Date, or
(ii) the Termination Date, Metro One shall continue to provide Services to
Nextel from that Call Center as required by the Master Services Agreement,
including without limitation maintaining the Service Level Requirements set
forth in Section 2.4 and Schedule 2.4 of the Master Services
Agreement (“Service Levels”). On the earlier of (i) the Actual Transition
Date; or (ii) the Termination Date, Metro One shall have no further
obligation (other than as specified in subsection 5.d below) to perform
its obligations and provide Nextel with any of the Services under
Section 2.3 and the related Schedules and Attachments of the Master
Service Agreement, including without limitation maintaining Service Levels with
respect to any Nextel calls routed to the applicable Call Center, provided,
however, that nothing in this subsection shall be deemed


 


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to prevent Metro One from
continuing to operate a particular Call Center after the Actual Transition Date
or Termination Date, as applicable, to serve customers of carriers other than
Nextel.


 


In the
event that any Termination Date must be extended as a result of any act or
omission within the sole control of Metro One, such that the Actual Transition
Date occurs later than the specified Termination Date, then Metro One’s
obligations to perform its obligations and provide Nextel with the Services
under Section 2.3 and the related Schedules and Attachments of the Master
Services Agreement, including without limitation maintaining Service Levels
with respect to any Nextel calls routed to the applicable Call Center, shall
continue until the Actual Transition Date.


 


d.             Inability
to Transfer Calls by Termination Date. In the event that Nextel fails to
meet its obligation to transition all directory assistance calls from a
particular Call Center by the specified Termination Date, or if any transition
of Nextel customer calls from such Call Center is unsuccessful on or after such
Termination Date then, at the written request of Nextel, Metro One will attempt
to service such calls from its remaining call centers, consistent with the
capacity of such remaining call centers; provided, however, that
Metro One shall have no obligation to maintain Service Levels as to such calls
or to keep any particular Call Center(s) open for the purpose of servicing such
calls.


 


e.             Nextel
Consent to Rerouting of Calls. Notwithstanding subsection 5.c, above,
Metro One may request in writing that Nextel consent to the rerouting of
directory assistance calls away from a particular Call Center prior to the
specified Termination Date. If Nextel consents in writing (the “Nextel Consent”),
which consent shall not be unreasonably withheld, Metro One may reroute any calls
received from Nextel at such Call Center to another Call Center of Metro One’s
choice; provided, however, that Metro One shall maintain the
Service Levels for such rerouted calls until the Actual Transition Date or the
Termination Date, as applicable. Once all Nextel calls are rerouted from a Call
Center in accordance with this subsection 5.e, Metro One may release or
terminate the employees working at such Call Center in its sole discretion.


 


f.              Metro
One Service Level Reports. Within two (2) days following the last day of
February, 2006 Metro One shall provide to Nextel a report on the Service Levels
for the month of February and shall make the appropriate personnel
available for a formal meeting to discuss such reports. On or before
March 10, 2006, Metro One shall provide Nextel a report on the Service
Levels for the first seven (7) days of March and shall make the
appropriate personnel available for a formal meeting to discuss such report. Each
such date is referred to herein as a “Report Date,” and each period for which
such reports are provided is referred to herein as a “Reporting Period.”


 


g.             Nextel
Payment for Services. Nextel shall continue to make payments to Metro One
for all Services provided by Metro One to Nextel in accordance with the terms
of, and subject to the conditions in, the Master Services Agreement and this
Agreement, including without limitation Services provided pursuant to
subsections 5.c, 5.d and 5.e, and 5.f hereof. Such payments shall be in
addition to the Nextel Payment (as defined in Section 6 below).


 


3

















 


6.             Nextel Payment. Nextel shall
pay to Metro One the aggregate sum of EIGHT MILLION TWO HUNDRED FIFTY THOUSAND
AND 00/100 DOLLARS ($8,250,000.00) in installments (the “Nextel Payment”). The
first installment of Nextel Payment in the amount of $2,500,000.00 was paid by
Nextel to Metro One on or about December 14, 2005.


 


a.             Remaining
Nextel Payment. The remaining Nextel Payment in the amount of $5,750,000
(the “Remaining Nextel Payment”) shall be paid in three (3) installments, as
follows, and on the dates specified below (each a “Nextel Payment Date”):


 


(i)                                     $1,916,668.00
no later than March 20, 2006; and


 


(ii)                                  $1,916,666.00
no later than twenty (20) days after the February, 2006 Report Date; and


 


(iii)                               $1,916,666.00
no later than twenty (20) days after the March, 2006 Report Date.


 


b.             Extension
of Nextel Payment Dates. If any Termination Date must be extended as a
result of any act or omission within the sole control of Metro One, then any
upcoming Nextel Payment Date hereunder shall be extended one (1) day for every
day that such Termination Date must be extended as a result of such act or
omission. The extension of upcoming Nextel Payment Dates as provided herein
shall not, standing alone, entitle Nextel to withhold any installment of the
Remaining Nextel Payment, whether in accordance with Section 6.d hereof or
otherwise.


 


c.             Adjustments
to Remaining Nextel Payment. If, following the execution date of this
Agreement, Service Levels are not met by Metro One for any Reporting Period,
and Nextel is entitled to any Adjustment Credits pursuant to Section 6.3
of the Master Services Agreement and Schedule 2.4 thereof as to such
missed Service Levels, any such credits shall not only be applied to the
amounts due Metro One under the Master Services Agreement, but also to the
installment of the Remaining Nextel Payment due for such Reporting Period. The
application of Adjustment Credits to such installment of the Remaining Nextel
Payment shall not be subject to the limitations on the At Risk Amount as set
forth in Section II.C of Schedule 2.4 of the Master Services
Agreement.


 


d.             Nextel
Election to Withhold Installment of Remaining Nextel Payment. Nextel may
elect, in lieu of its remedies in the subsection 6.c, above, to withhold
payment of the installment of the Remaining Nextel Payment applicable to a
Reporting Period if Metro One fails to meet the standards prescribed in
Schedule 2.4 of the Master Services Agreement for the Service Levels described
therein as “accessibility,” “speed of answer,” “abandon rate,” “listing
accuracy,” or “service quality” on:


 


(i)                                     six
(6) or more occasions during January, 2006; or


 


(ii)                                  four
(4) or more occasions during the February, 2006, Reporting Period; or


 


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(iii)                               three
(3) or more occasions during the March, 2006 Reporting Period;


 


provided,
however, that, if Nextel fails to meet any one of the Planned Transition
Dates set forth in Schedule 1 during the February, 2006 or March,
2006 Reporting Periods, Nextel may elect to withhold the installment of the
Remaining Nextel Payment due for such Reporting Period only if Metro One fails
to satisfy the above-described Service Levels on six (6) or more occasions
during the February, 2006 Reporting Period or on six (6) or more occasions
during the March, 2006 Reporting Period, as applicable. Nextel’s election not
to pay an installment of the Remaining Nextel Payment as provided in this
subsection 6.d shall not affect Metro One’s entitlement to receive
payments for Services under the Master Services Agreement during such Reporting
Period, subject to the Adjustment Credits chargeable against such payments
under the Agreement.


 


7.             Amendment of Master Services
Agreement. To the extent that this Agreement is inconsistent with the terms
of the Master Services Agreement, the Master Services Agreement shall be deemed
amended to conform to the provisions of this Agreement. The Master Services
Agreement shall otherwise remain in full force and effect. The Master Services
Agreement shall continue to govern Metro One’s provision of, and Nextel’s
payments for, Services for so long as Metro One provides Services to Nextel
under this Agreement.


 


8.             Entire Agreement. This
Agreement, including the exhibits and schedules thereto, and, to the extent it
is not inconsistent with this Agreement, the Master Services Agreement, contain
the entire agreement between the Parties agreements with regard to the matters
set forth herein and supersede any and all prior agreements and understandings,
whether written or oral, of the Parties hereto relating to the subject matter
herein. This Agreement may be amended only by written instrument signed by the
Parties.


 


9.             Binding Agreement. This
Agreement is binding upon and inures to the benefit of the Parties hereto and
their respective members, employees, agents, shareholders, officers, directors
(in their individual and representative capacities), subsidiaries,
predecessors, affiliates, parent corporations, if any, joint ventures,
successors, assigns, administrators, and trustees.


 


10.           Confidentiality. The terms and
conditions of this Agreement shall be considered Confidential Information
under, and shall be subject to, Section 7.3 of the Master Services Agreement.


 


11.           Authorization. Each Party
represents and warrants that its representatives executing this Agreement are
fully authorized to do so on its behalf and Nextel Operations, Inc. represents
and warrants that it is authorized to execute and deliver this Agreement for
and on behalf of Nextel of California, Inc., Nextel Communications of the
MidAtlantic, Inc., Nextel of New York, Inc., Nextel South Corp., Nextel of
Texas, Inc. and Nextel West Corp.


 


12.           Defined Terms. Any capitalized
term used, but not defined, herein shall have the meaning ascribed to it by the
Master Services Agreement.


 


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13.           Effect of Section Headings.
The section headings appearing in this Agreement are inserted for the purpose
of convenience and reference and shall not be construed to define, limit or
extend the scope of intent of the language of the sections to which they
pertain.


 


14.           Counterparts. This Agreement
may be executed in counterparts, each one of which shall be deemed an original,
and all of which together shall be deemed the same agreement.


 


15.           No Admissions:  Nothing herein shall be deemed an admission
or acknowledgement of liability or wrongdoing by any Party.


 


IN
WITNESS WHEREOF, the Parties by and through their duly authorized
representatives, have entered into, and executed, this Agreement as of the date
first set forth above.


 


 


	
   

  	
  METRO ONE TELECOMMUNICATIONS,

  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  Printed:

  	
   

  
					



 


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  METRO
  ONE TELECOMMUNICATIONS,

  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ James M.
  Usdan

  
	
   

  	
   

  
	
   

  	
  Printed:

  	
  James M. Usdan

  
	
   

  	
   

  
	
   

  	
  Title:

  	
    President
  and CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NEXTEL
  OPERATIONS, INC. (for itself and as authorized agent for and on behalf of
  NEXTEL OF CALIFORNIA INC., NEXTEL COMMUNICATIONS OF THE MIDATLANTIC, INC.,
  NEXTEL OF NEW YORK, INC., NEXTEL SOUTH CORP, NEXTEL OF TEXAS INC. AND NEXTEL
  WEST CORP.)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Craine

  
	
   

  	
   

  
	
   

  	
  Printed:

  	
  John Craine

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Sr. Director, Supply
  Chain Management

  
					



 


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