**Exhibit 10.28**

 

**EMPLOYMENT AGREEMENT**

 

This EmploymentAgreement (the “Agreement”) between Metro One Telecommunications, Inc., anOregon corpora­tion (the “Company”), and Timothy A. Timmins (“Timmins”) isdated and is entered into as of January 1, 2003.

 

**RECITALS**

 

A.                                   Theparties acknowledge that Timmins’ abilities and ser­vices are unique andessential to the prospects of the Company; and

 

B.                                     Inlight of the foregoing, the Company desires to continue to em­ploy Timmins asits President and Chief Executive Officer and to have him continue to serve onthe Company’s Board of Directors, and Timmins desires to accept such continuedemployment.

 

**AGREEMENT**

 

NOW, THEREFORE, theparties hereto agree as follows:

 

**1.****                                     ****Employment****.**The Company hereby employs Timmins and Timminshereby accepts employment by the Company as President and Chief ExecutiveOfficer and agrees to serve on the Company’s Board of Directors.  Under the direction of the Board ofDirectors of the Company and subject to the terms and conditions of the Bylawsof the Company and this Agreement, Timmins shall have management responsibilityfor and control of the operations of the business of the Company, shall seethat all orders and resolutions of the Board of Directors of the Company arecarried into effect, and shall perform all such other duties and exercise allsuch other powers as are usually incident and pertain to the Chief ExecutiveOfficer of a corporation.  He may, fromtime to time, delegate to any other officer or officers any of his duties orpowers.  Timmins shall report regularlyto the Board of Directors of the Company all matters that should, in hisopinion, be brought to the Board’s attention, and shall provide the Board ofDirectors with such information and reports as may be requested from time totime.  Timmins shall not authorize ortake, without the prior approval of the Board of Directors, any action that isreserved to the Board of Directors under the Bylaws of the Company and shallnot authorize or take any action that is contrary to any directive orresolution of the Board of Direc­tors, provided in all cases that Timmins hasactual knowledge of such directives or resolutions.

 

**2.****                                      Attentionand Effort.**Timmins shall devote substan­tially all of his working timeand attention to the business and affairs of the Company, subject to theprovisions of Section 8.1 of this Agreement, and shall perform his duties tothe best of his ability and in the best interest of the Company.

 

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**3.****                                     ****Term****.**Unless otherwise terminated as provided inSec­tion 5 of this Agreement, Timmins’ term of employment under this Agreementshall be for a period of two years beginning January 1, 2003 and ending onDecember 31, 2004.

 

**4.****                                      Compensation.**

 

**4.1****                              ****Base Salary****. **Timmins’ compensation shall consist of an annual salary of One HundredEighty Thousand Dollars ($180,000) before all customary withholding of incomeand employment taxes (“Base Salary”). The Base Salary shall be paid in substantially equal installments inaccordance with the normal payroll practices of the Company.

 

**4.2****                               Bonus. **The Board of Directors, or itsdesignated subcommittee, may elect to pay Timmins a bonus or bonuses at anytime, it its sole discretion and based upon whatever factors it deemsappropriate.

 

**4.3****                              ****Stock Option****.**In addition to the payment of anycompensation due to Timmins under Sections 4.1 and 4.2 of this Agreement, theCompany will cause Timmins to be granted a stock option to purchase 50,000shares of common stock of the Com­pany, exercisable at $5.10 per share (theclosing price on February 10, 2003) (the “Stock Option”).  To the maximum extent possible, the StockOption shall be a “incentive stock option” as provided in Section 422 of theInternal Revenue Code and issued pursuant to the terms of the Company’s 1994Stock Incentive Plan and shall be vested in Timmins ratably on a quarterlybasis over a period not to exceed four years from the grant date.

 

Upon occurrence ofa fifty percent (50%) or more change in the ownership of the Company, either bythe issuance of the Company’s capital stock, a merger of the Company with orinto another en­tity, or a sale of all or substantially all of the Company’sassets, the vesting of the Stock Option will be accelerated and the totalnumber of shares subject to the Stock Option will be vested in Timmins on thedate of such change in ownership.

 

If Timmins’employment with the Company is termi­nated for any reason, Timmins shall haveninty (90) days from the Date of Ter­mination (as defined in Section 7.5hereof) with which to exer­cise the vested portion of his Stock Option topurchase that num­ber of shares to which he is entitled as of the Date ofTermination.

 

**4.4****                            Benefits**.  In addition to Sections 4.1, 4.2 and 4.3hereof, Timmins shall be entitled to participate in any employee bene­fit plansor programs that the Company provides for its employees to the extent he meetsthe eligibility requirements for any such plan or program. In addition, Timminsshall be entitled to paid vacation annually and to paid holidays as provided byCompany policy.

 

**5.****                                  ****Early Termination**.  Timmins’ employment with theCom­pany will be terminated prior to the period set forth in Section 3 hereof,or any extensions or renewals thereof, upon the occur­rence of any of the followingevents:

 

**5.1**                               The death of Timmins;

 

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**5.2****                              **The termination of employment by theCompany for Cause, as defined inSection 7.2 hereof;

 

**5.3**                               The terminationof employment by the Company other than for Cause;

 

**5.4****                              **Thetermination of employment by theCompany due to Disability, as defined in Section 7.1 hereof;

 

**5.5**                               The termination ofemployment by Timmins for Good Reason, as defined in Section 7.3 hereof; or

 

**5.6****                              **Thetermination of employment by Timmins other than for Good Reason, as defined inSection 7.3 hereof.

 

**6.****                                      ObligationUpon Termination.**

 

**6.1****                              **IfTimmins’ employment with the Company is terminated by the Company other thanfor Cause, or by Timmins for Good Reason, the Company shall be obligated tocontinue to pay to Timmins his Base Salary then in effect for a period of one year in accordance with the normalpayroll practices of the Com­pany and to pay any bonus that has been awarded toTimmins but is unpaid at the Date of Termination and any additionaldiscretionary bonus that the Board of Directors elects to pay Timmins pursuantto Section 4.2**hereof, and Timmins shall not be bound by the restrictionsset forth in Sections 8.1**and 8.2**hereof.

 

**6.2****                              **IfTimmins’ employment with the Company is termi­nated due to Disability, theCompany shall be obligated to con­tinue to pay to Timmins (i) his Base Salarythen in effect for a period of one hundred eighty (180) days, reduced by theamount of any payments during that one hundred eighty (180) days to Timminsunder any disability insurance policy or policies the Company may obtain, and(ii) any bonus that has been awarded to Timmins but is unpaid at the Date ofTermination and any additional discretionary bonus that the Board of Directorselects to pay Timmins pursuant to Section 4.2**hereof.

 

**6.3****                              **If Timmins’ employment with the Company isterminated due to Timmins’ death, the Company shall be obligated to continue topay to Timmins’ estate: (i) his Base Salary then in effect for a period of oneyear following Timmins’ death, and (ii) any bonus that has been awardedto Timmins but is unpaid at the Date of Termination and any additionaldiscretionary bonus that the Board of Directors elects to pay Timmins pursuantto Section 4.2**hereof.  The Company may purchase a life insurancepolicy or policies covering the term of Timmins’ employment under thisAgreement and its obligations thereunder in the event of Timmins’ death.

 

**6.4****                              **IfTimmins’ employment by the Company is termi­nated by Timmins other than forGood Reason or by the Companyfor Cause, Timmins shall be paid his Base Salary then in effect for a period ofsix months following the Date of Termination in accor­dance with the normalpayroll practices of the Company and Timmins shall be bound by the restrictionsset forth in Sections 8.1 and 8.2 hereof for a period of one year following theDate of Termination.  If

 

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Timmins’employment is terminated under this Section 6.4, Timmins shall not be entitledto any bonus in respect of the fiscal year of the Company in which the Date ofTermination occurs.

 

**6.5****                               Retirement- Not Applicable.**

 

**6.6****                            NoExcess Parachute**. Notwithstanding anything in this Agreement to the contrary, Timmins willnot be entitled to any payment pursuant to this Agreement to the extent thatsuch payment, in addition to any other payments or benefits to which Timminsmay be entitled, results in an “excess parachute payment” within the meaning ofSection 280G(b) (1) of the Internal Revenue Code of 1986, as amended (the“Code”).  The determination requiredpursuant to this Section 6.6 shall be made after reasonable consultation withboth the Company and Timmins by a national accounting firm, selected by the Companyand agreeable to Timmins, and shall be binding and conclusive on the Companyand Timmins.

 

**7.****                                      Definitions.**

 

**7.1****                           ****Disability****.** Termination by the Company of Timmins’employment based on “Disability” shall mean termination because of Timmins’absence from his duties with the Company on a full-time basis for one hundredfifty (150) consecutive days, as a result of his incapacity due to physical ormental illness, unless within thirty (30) days after Notice of Termination (asdefined in Section 7.4) is given following such absence Timmins shall havereturned to the full-time performance of his duties.

 

**7.2****                               Cause.**

 

(a) Termination bythe Company of Timmins’ employ­ment for “Cause” shall mean termination upon (i)material breach by Timmins of his duties or obligations hereunder, which breachis not cured within fifteen (15) business days following receipt of the noticeset forth in Section 7.2(b) hereof; (ii) the willful engag­ing by Timmins inconduct materially injurious to the Company, monetarily or otherwise; (iii)acts of fraud, theft or illegal acts, whether or not related to Timmins’employment hereunder; or (iv) the refusal of Timmins to follow lawfulinstructions of the Board of Directors, which do not violate the provisions ofthis Agreement, where such refusal is not cured within fifteen (15) businessdays following Timmins’ receipt of the notice set forth in Section 7.2(b)hereof.  For purposes of this Section7.2, no act, or failure to act, on Timmins’ part shall be considered “willful”unless done, or omitted to be done, by him not in good faith and withoutreasonable belief that his action or omission was in the best interest of theCompany.  Any act, or failure to act,based upon authority given pursuant to a resolution duly adopted by the Boardof Directors or based upon the advice of counsel for the Company shall beconclusively presumed to be done, or omitted to be done, by Timmins in goodfaith and in the best interests of the Company.

 

(b)Notwithstanding Section 7.2(a) hereof, Timmins shall not be terminated forCause unless and until such termination is ordered by the Company’s Board ofthe Directors at a special meeting held not less than fifteen (15) businessdays following the delivery to Timmins of a notice from the Company, or any twoof its directors, setting forth (i) the date, time and place of the Board ofDirectors meeting, (ii) the proposed termination of Timmins for

 

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Cause, (iii) specification of the clause of Section 7.2(a) under whichtermination is proposed to be effected, (iv) specification of the factsproposed as the basis for such termination, and (v) if termination is proposedto be effected pursuant to Section 7.2(a)(i) or (a)(iv), a statement ofTimmins’ right to cure any basis for the termination prior to the date of themeeting. Timmins shall be entitled to attend and participate in the Board ofDirectors meeting and neither the Board (or any member of the Board) norTimmins may have counsel present. If the Board orders Timmins’ termination atthe meeting, the Date of Termination shall be the date of the meeting iftermination is effected pursuant to Section 7.2(a)(ii) or (a)(iii) or fivebusiness days following the meeting if termination is effected pursuant toSection 7.2(a)(i) or (a) iv).

 

**7.3****                               GoodReason.**                         Termination by Timmins of his employ­mentfor “Good Reason” shall mean termination based on:

 

(a)                                  (i)the assignment to him of any duties incon­sistent with his position, duties,responsibilities and status with the Company on the date hereof, (ii) a changein his position or title, or a diminution of his responsibilities, or anyremoval of Timmins from or any failure to reappoint Timmins to any of suchpositions, except in connection with the termination of Timmins’ employment forCause, Disability or death, or (iii) any determination by the Board ofDirectors (in which Timmins does not acquiesce in his capacity as a director)to terminate an active business segment of the Corporation, unless the Board ofDirectors determines in good faith that the continuation of such businesssegment is not in the best interest of the Corporation;

 

(b)                                 theCompany’s requiring Timmins to be based anywhere other than the Portland,Oregon area except for required travel on the Company’s business;

 

(c)                                  theCompany’s breach of any of the provisions of this Agreement, which breach isnot cured by the Company within fifteen (15) business days following itsreceipt of a notice from Timmins specifying the breach; or

 

(d)                                 a petition being filed by or against the Com­panyunder the federal bankruptcy laws or under any statute of any state inconnection with insolvency or reorganization, or for the appointment of areceiver or trustee of all or a portion of the Company’s property, and any suchpetition is not denied or stayed within thirty (30) days or any receiver ortrustee is not dis­charged or removed within thirty (30) days after the filingof such petition (in which event Timmins shall receive no salary or bonuspayments beyond those paid or accrued prior to the Date of Termination andshall have no obligations to the Company hereunder from and after the Date ofTermination).

 

**7.4****                            Noticeof Termination.****                     ** Anypurported termina­tion by the Company pursuant to Sections 5.2, 5.3 or 5.4hereof or by Timmins pursuant to Sections 5.5 or 5.6 hereof shall becommunicated by written Notice of Termination to the other party hereto. Forpurposes of this Agreement, a “Notice of Termina­tion” shall mean a noticewhich shall indicate the specific ter­mination provision in this Agreementrelied upon and, if appli­ca­ble, shall set forth in reasonable detail thefacts and cir­cum­stances claimed to provide a basis for termination ofTimmins’ employment under the provisions so indicated or the jus­tification forthe existence of

 

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Good Reason.

 

**7.5****                            Dateof Termination**. “Date of Termination” shall mean (a) if Timmins’employment is to be terminated for Disabil­ity, thirty (30) days after Noticeof Termination is given (provided that Timmins shall not have returned to theperformance of his duties on a full-time basis during the thirty (30)-dayperiod described in Section 7.1), (b) if Timmins’ employment is to beterminated by the Company for Cause, the date set forth in Section 7.2(b)hereof, and (c) if Timmins’ employment is to be terminated by Timmins or by theCompany for any other reason, the date specified in the Notice of Termination,which date shall be no earlier than the date on which a Notice of Terminationis given, unless an earlier date has been agreed to by the party receiving theNotice of Termination either in advance of, or after, receiving such Notice ofTermination.  Notwithstanding anythingin the foregoing to the contrary, if the party receiving the Notice ofTermination has not previously agreed to the termi­nation, then within thirty(30) days af­ter any Notice of Termina­tion is given, the party receiving suchNotice of Termination may notify the other party that a dispute ex­istsconcerning the ter­mination, in which event the Date of Termination shall bethe date set either by mutual written agree­ment of the parties or by thearbitrator in a proceeding as provided in Section 14 hereof.

 

**8.**                                      **Noncompetition;Nonsolicitation and Confidentiality.**

 

**8.1****                               Scopeof Noncompetition**.  Timmins agrees that he will not, during theterm of his employment (or for a period of one year thereafter if hisemployment is terminated by the Com­pany pursuant to Section 5.2 or by Timminspursuant to Section 5.6), directly or indirectly, be employed by, own, manage,operate, join, control or participate in the ownership, manage­ment, operationor control of or be connected with in any manner any business which engages inany business activity in any loca­tion throughout the world which is in directcompetition with the business conducted or intended (which intention isdocumented) to be conducted by the Company (provided, however, that follow­ingthe Date of Termination, this Section shall be limited to any business whichengages in any business activity which is then in direct competition with thebusiness of the Company).  Timmins shallbe deemed to be connected with such a business if such business is carried onby a partnership in which he is a general or limited partner or employee, acompany or association of which he is a shareholder, officer or director, or apartnership, company or association of which he is an employee, member,consultant or agent. Notwithstanding the foregoing, the following shall notconstitute violations of this Section 8.1: (a) ownership not ex­ceeding fivepercent (5%) of the voting stock of any publicly-held corporation or limitedpartnership, or (b) any other activities approved by the Company’s Board ofDirectors.

 

**8.2****                              ****Scope of Nonsolicitation****.**Timmins shall not directly or indirectlysolicit or entice any employee or consult­ant of the Company to cease his orher relationship with the Com­pany or solicit, entice or in any way divert anycustomer or sup­plier of the Company to do business with any entity describedherein. This Section 8.2 shall apply: (i) during the period of Timmins’employment by the Company, and (ii) in the event of termi­nation by the Companypursuant to Section 5.2 or by Timmins pursuant to Section 5.6, for one yearfollowing the Date of Termination.

 

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**8.3****                              ****Equitable****Relief.**** **Timmins acknowledges that the provisions of this Section 8 areessential to the Company, that the Company would not enter into this Agreementif it did not include this covenant not to compete and nonsolicitation covenantand that damages sustained by the Company as a result of a breach of thiscovenant not to compete and nonsolicitation covenant can­not be adequatelyremedied by damages, and Timmins agrees that the Company, in addition to anyother remedy it may have under this Agreement or at law, and notwithstandingSection 14 hereof, shall be entitled to injunctive and other equitable reliefto prevent or curtail any breach of this Section 8.

 

**8.4****                              ****Confidentiality****.** During the period of his employmenthereunder, Timmins agrees not to directly or indirectly dis­close to anyperson, other than an employee of the Company or a person to whom disclosure isreasonably necessary or appropriate in connectionwith the furtherance of the business of the Com­pany, any trade secret orproprietary or material confidential information of the Company or of anycompany affiliated with the Company obtained by him while in the employ of theCompany; pro­vided, however, that “Confidential Information” shall not includeany information known generally to the public; for purposes of this Section8.4, Confidential Information shall include every form in which suchinformation shall exist, whether written, oral, film, tape, computer disk orother form of media. For the period ending two years following the Date ofTermination of his employment hereunder, Timmins agrees not to disclose anyConfidential Information of the type described in the preceding sentence**.**

 

**9.****                                      IndemnificationRights.**

 

**9.1****                               Definitions.****                               **Asused in this Section 9:

 

(a) The term“Proceeding” shall include any threatened, pending or completed action, suit,arbitration, ad­ministrative hearing or any other proceeding, whether broughtin the right of the Company or otherwise and whether of a civil, crimi­nal,administrative or investigative nature, in which Timmins may be or may havebeen involved as a party or otherwise by reason of the fact that Timmins is orwas a director, officer, employee or agent of the Company or, while a directoror officer of the Company, is or was serving at the request of the Company as adirector, officer, partner, trustee, employee or agent of another foreign ordomestic corporation, partnership, joint venture, trust, employee benefit plan(its participants or bene­ficiaries) or other enterprise, whether or notserving in such capacity at the time any liability or expense is incurred forwhich indemnification or reimbursement can be provided under this Agreement.

 

(b) The term“Expenses” shall include, without limitation, expense of investigations,judicial or administrative proceedings or appeals, attorneys’ fees anddisbursements and any expenses of establishing a right to indemnification underthis Agreement, but shall not include amounts paid in settlement by Timmins orthe amount of judgments or fines against Timmins.

 

(c) The term “Fines” shall include any excise taxassessed with respect to any employee benefit plan.

 

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**9.2****                               Indemnityin Third-Party Proceedings.**The Company shall indemnify Timmins inaccordance with the provisions of this Section 9.2 if Timmins is a party to anyProceeding (other than a Proceeding by or in the right of the Company), against all Expenses, judgments, Finesand amounts paid in settlement actu­ally and reasonably incurred by Timmins inconnection with such Proceeding, but only if Timmins acted in good faith and ina man­ner which he reasonably believed to be in or at least not opposed to thebest interests of the Company and, in the case of a criminal proceeding, had noreasonable cause to believe that his conduct was unlawful.  Timmins’ conduct with respect to an empoyeebenefit plan for a purpose he reasonably believed to be in the interest of thepartici­pants in and beneficiaries of the plan shall satisfy the foregoingrequirement that he shall have acted in a manner “reasonably believed to be inor at least not opposed to the best interests of the Company.”

 

**9.3****                              ****Indemnity in Proceedings by or in the Right of the****Company.**The Company shall indemnify Timmins in accordance with the provisionsof this Section 9.3 if Timmins is a party to any Proceeding by or in the rightof the Company, against all Expenses actually and reasonably incurred byTimmins in connection with the defense or settlement of such Proceeding, butonly if Timmins acted in good faith and in a manner which Timmins reasonablybelieved to be in or at least not opposed to the best interests of the Company,except that no indemnification for Expenses shall be made under this Section 9.3in respect of any claim, issue or matter as to which Timmins shall have beenfinally adjudged by a court to be liable to the Company, unless and only to theextent that any court in which such Proceeding was brought shall determine uponapplication that, despite the adjudication of liability but in view of all therelevant circumstances of the case, Timmins is fairly and reasonably entitledto indemnity.

 

**9.4****                               Indemnificationof Expenses of Successful Party.**Not­withstanding any other provisionsof this Agreement, to the ex­tent that Timmins has been successful, on themerits or other­wise, in defense of any Proceeding or in defense of any claim,issue or matter therein,including the dismissal of an action without prejudice, Timmins shall beindemnified against all Ex­penses incurred in connection therewith.

 

**9.5****                               Expensesas a Witness.**Notwith­standing any other provisions of this Agreement,to the extent that Timmins appears as a witness in any proceeding or in respectof any claim, issue or matter therein, at a time when he has not been made anamed defendant or respondent, Timmins shall be entitled to payment orreimbursement of all expenses  incurredby him in connection therewith.

 

**9.6****                               AdditionalIndemnification.**

 

(a)****Notwithstandingany limitation in Sections 9.2, 9.3 or 9.4, the Company shall indemnify Timminsto the full­est extent not prohibited by law if Timmins is a party to anyProceeding (including a Proceeding by or in the right of the Com­pany toprocure a judgment in its favor) against all Expenses, judgments, Fines andamounts paid in settlement actually and rea­sona­bly incurred by Timmins inconnection with such Proceeding.

 

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(b) For purposesof paragraph (a), the meaning of the phrase “to the fullest extent notprohibited by law,” shall in­clude, but not be limited to the fullest extentpermitted by the Oregon Business Corporation Act (the “Act”) or any amendmentsto or replacements of the Act adopted after the date of this Agree­ment that increasethe extent to which a Company may indemnify its officers and directors. Shouldthe Company incorpo­rate in another state or be succeeded by a corporation ofanother state, the meaning of the phrase “to the fullest extent not pro­hibitedby law” shall include, but not be limited to the fullest extent permitted bythe laws of that state.

 

(c) In the event that a court of competent jurisdiction finds that theindemnification provided in paragraph (a) is not lawful due to its scope orotherwise, such finding shall not render such indemnification unenforceable butsuch court shall redefine the scope of indemnification set forth so as torender such indemnification valid and enforceable.

 

**9.7****                               Exclusions.**Notwithstanding any provision in this Agreement, the Company shall not beobligated under this Agreement to make any indemnity:

 

(a) for which anypayment has actually been made to or on behalf of Timmins under any insurancepolicy or other in­demnity provision, except with respect to any excess beyondthe amount paid under such insurance or other indemnity provision;

 

(b) for any breachof his duty of loyalty as a director to the corporation or its shareholders;

 

(c) for any act oromission by Timmins not in good faith or which involves intentional misconductor a know­ing violation of law;

 

(d) for anyunlawful distribution under the Act;

 

(e) for anytransaction in which he derived an improper personal benefit;

 

(f) for anaccounting of profits made from the purchase and sale by Timmins of securitiesof the Company within the meaning of Section 16(b) of the Securities ExchangeAct of 1934 and amendments thereto or similar provisions of any state statutorylaw or common law;

 

(g) if a courthaving jurisdiction in the matter shall finally determine that suchindemnification is not lawful under any applicable statute or public policy(and, in this re­spect, both the Company and Timmins have been advised that theSecurities and Exchange Commission believes that indemnifi­cation forliabilities arising under the federal securities laws is against public policyand is, therefore, unenforceable and that claims for indemnification should besubmitted to appropri­ate courts for adjudication); or

 

(h) in connectionwith any Proceeding (or part thereof) initiated by Timmins, or any Proceedingby Timmins against the Company or its directors, officers, employees or otherindemnities, unless: (i) such indemnification is expressly required to be made

 

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by law; (ii) theProceeding was authorized by the Board of Directors of the Company; (iii) suchindemnification is pro­vided by the Company, in its sole discretion, pursuantto the powers vested in the Company under applicable law; or (iv) theProceeding is initiated pursuant to Section 9.11 hereof and Timmins issuccessful in whole or in part in such Proceeding.

 

**9.8****                               Advancementof Expenses**.  The Expensesincurred by Timmins in any Proceeding shall be paid or reimbursed by theCompany in advance of the final disposition of the Proceeding at the writtenrequest of Timmins, if Timmins:

 

(a) furnishes theCompany a written affirmation of Timmins’ good faith belief that Timmins isentitled to be indem­nified by the Company under this Agreement; and

 

(b) furnishes theCompany a written undertaking to repay such advances to the extent that it isultimately deter­mined by a court that Timmins is not entitled to beindemnified by the Company (in which event Timmins shall repay such ad­vances).Such advances shall be made without regard to Timmins’ ability to repay suchexpenses and without regard to Timmins’ ultimate entitlement to indemnificationunder the other provisions of this Agreement.

 

Notwithstandingthe foregoing, no such payment or reimbursement shall be made by the Company pursuantto this Section 9.8 if prior thereto the Board of Directors requests an opinionof counsel and such counsel opines that such payment or reimbursement comeswithin the prohibition in Section 402 of the Sarbanes-Oxley Act of 2002.

 

**9.9****                               Notificationand Defense of Claim**.       Not later thanthirty (30) days after receipt by Timmins of notice of the com­mencement of anyProceeding, Timmins will, if a claim of indemnifica­tion relating thereto is tobe made against the Company under this Agreement, notify the Company in writingof the commencement thereof, and include in such written notice anydocumentation and information reasonably available to Timmins which isreasonably necessary to determine whether and to what extent Timmins isentitled to in­demnification; provided, however, that the omission to notifythe Company will not relieve the Company from any liability which it may haveto Timmins otherwise than under this Agreement. With re­spect to any suchProceeding as to which Timmins notifies the Com­pany of the commencementthereof:

 

(a) The Company will be entitled to participatetherein at its own expense.

 

(b) Except as otherwise provided below, the Com­pany may, at its optionand jointly with any other indemnifying party similarly notified and electingto assume such defense, assume the defense thereof, with legal counselreasonably satis­factory to Timmins. Timmins shall have the right to employsepa­rate counsel in such Proceeding, but the Company shall not be liable toTimmins under this Agreement, including Section 9.8 hereof, for the fees andexpenses of such counsel incurred after notice from the Company of itsassumption of the defense, unless: (i) Timmins reasonably concludes that theremay be a conflict of interest between the Company and Timmins in the conduct ofthe defense of such Proceeding; or (ii) the Company does not employ counsel toassume the defense of such Proceeding. The Company shall not be entitled toassume the defense of any Proceeding brought by or on behalf of the

 

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Company or as to which Timmins shall have made the conclusion providedfor in clause (i) above.

 

(c) If two or morepersons who may be entitled to indemnification from the Company, includingTimmins, are parties to any Proceeding, the Company may require Timmins toengage the same legal counsel as the other parties. Timmins shall have theright to employ separate legal counsel in such Proceeding, but the Companyshall not be liable to Timmins under this Agreement, including Section 9.8hereof, for the fees and expenses of such counsel incurred after notice fromthe Company of the re­quirement to engage the same counsel as other parties,unless Timmins reasonably concludes that there may be a conflict of in­terestbetween Timmins and any of the other parties required by the Company to berepresented by the same legal counsel.

 

(d) The Companyshall not be liable to indemnify Timmins under this Agreement for any amountspaid in settlement of any Proceeding effected without its written consent,which shall be not unreasonably withheld. The Company shall be permit­ted tosettle any Proceeding the defense of which it assumed, ex­cept the Companyshall not settle any action or claim in any man­ner which would impose anypenalty or limitation on Timmins with­out Timmins’ written consent, which shallnot be unreasonably withheld.

 

**9.10****                        ProcedureUpon Application for Indemnification. **Any indemnification or reimbursement under Sections 9.2, 9.3, 9.4,9.5, or 9.6 of this Agreement shall be made no later than thirty (30) daysafter re­ceipt of the written request of Timmins for such indemnifica­tion orreimbursement and shall not require that a determination be made in accor­dancewith the Act by the persons specified in the Act that indemnifi­cation isrequired under this Agreement.

 

**9.11****                       ****Enforcement****.**Any right to indemnification or advancesgranted by this Agreement to Timmins shall be enforceable by or on behalf ofTimmins in any court of competent juris­diction if (i) the claim forindemnification or advances is denied, in whole or in part, by the Company or(ii) no disposition of such claim is made within sixty (60) days of a writtenrequest therefor. Timmins, in such enforcement action, if successful in wholeor in part, shall be entitled to be paid also the expense of prosecuting theclaim. It shall be a defense to any such enforcement action (other than anaction brought to enforce a claim for advancement of Expenses pursuant toSection 9.8 hereof if the required affirmation and undertaking have beentendered to the Company) that Timmins is not entitled to indemnification underthis Agreement, but the burden of proving such defense shall be on the Company.Neither the failure of the Company (including its Board of Directors or itsshareholders) to make a determination prior to the commencement of suchenforcement action that indemnification of Timmins is proper in thecircumstances, nor an actual determination by the Company (including its Boardof Directors or its shareholders) that such indemnification is improper shallbe a defense to the action or create a presumption that Timmins is not entitledto indemnification under this Agreement or otherwise. The termination of anyProceeding by judgment, order of court, settlement, conviction or upon a pleaof nolo contendere, or its equivalent, shall not, of itself, create apresumption or be determinative that Timmins is not entitled to indemnificationunder this Agreement or otherwise.

 

**9.12****                        PartialIndemnification.****              **If Timmins isentitled un­der any provisions

 

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of this Agreementto indemnification by the Company for some or a portion of the Expenses, judgments, Fines and amountspaid in settlement actually and reasonably incurred by Timmins in theinvestigation, defense, appeal or settle­ment of any Proceeding, but not,however, for the total amount thereof, the Company shall indemnify Timmins forthe portion of such Expenses, judgments, Fines and amounts paid in settlementto which Timmins is entitled.

 

**9.13****                        Non-Exclusivityand Continuity of Rights**.  Thein­demnification provided by this Agreement shall not be deemed exclusive ofany other rights to which Timmins may be entitled under the Articles ofIncorporation of the Company, the Bylaws, any other agreement, any vote ofshareholders or directors, the Act, or otherwise, both as to action in Timmins’official capac­ity and as to action in another capacity while holding such of­fices.The indemnification under this Agreement shall continue as to Timmins eventhough Timmins ceases to be a director or officer and shall inure to thebenefit of the estate, heirs and personal repre­sentatives of Timmins.

 

**9.14****                        LiabilityInsurance. **The Company shallpurchase and maintain in effect a Director and Officer Liability InsurancePolicy insuring Timmins against liability asserted against or incurred by himas a director or officer of the Company or any of its subsidiaries oraffiliates, with such terms of coverage and for such amounts as are reasonablysatisfactory to the Board of Directors.

 

**10.****                               Notice.**Every notice required by the terms of this Agreement shall be given inwriting by serving the same upon the party to whom it was addressed personallyor by registered or certified mail, return receipt requested, at the addressset forth below or at such other address as may hereafter by desig­nated bynotice given in compliance with the terms hereof:

 
| If to Timmins:     |   | Mr. Timothy A. Timmins             |
|--------------------|--------|------------------------------------|
|               |   | 14355 SW McFarland  Boulevard      |
|               |   | Tigard, Oregon 97224               |
|               |   |                               |
| If to the Company: |   | Mr. William D. Rutherford          |
|               |   | Chairman of the Board              |
|               |   | Metro One Telecommunications, Inc. |
|               |   | 11200 Murray Scholls Place         |
|               |   | Beaverton, Oregon 97007            |

 

Notices given by mailshall be deemed delivered upon deposit in the United States mail as set forthabove.

 

**11.****                               Insurance.**The Company may, at its election and for its benefit, insure Timminsagainst accidental loss or death, and Timmins shall submit to such physicalexamination and supply such in­formation as may be required in connection therewith.

 

**12.****                              ****Assignment****.**Timmins agrees that this Agreement may betransferred or assigned by the Company to (a) any company result­ing from anymerger, consolidation or other reorganization to which the Company is a partyor (b) any corporation, partnership, association

 

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or other person to which the Company may transfer all or substantiallyall of its assets and business, and such transferee or as­signee  shall succeed to the rights and obligationsof the Company hereunder. Timmins shall not assign his rights or delegate hisduties hereunder.

 

**13.****                               Waiver.**No waiver of any of the provisions hereof shall be valid unless in writing,signed by the party against whom such claim or waiver is sought to be enforced,nor shall failure to enforce any right hereunder constitute a continuing waiverof the same or a waiver of any other right hereunder.

 

**14.****                               Arbitration.**Any controversies or claims arising out of or relating to this Agreement orthe breach hereof shall be fully and finally settled by arbitration inPortland, Oregon in accordance with the Commercial Arbitration Rules of theAmerican Arbitration Association then in effect. Judgment only may be en­teredon the arbitration award in the Multnomah County Circuit Court; provided,however, that Timmins shall be entitled to seek specific performance in suchcourt of his right to be paid his Base Salary then in effect until the Date ofTermination during the pendency of any dispute or controversy under this Agreement.The prevailing party shall be entitled to costs, ex­penses and reasonableattorneys’ fees. Arbitration shall be conducted in accordance with theprovisions for expedited procedures of the Commercial Arbitration Rules.

 

**15.****                               EntireAgreement.**This Agreement shall constitute the en­tire agreementbetween the Company and Timmins with respect to the subject matter herein andshall supersede all prior contracts or agreements between the Company andTimmins with respect to such subject matter, including without limitation theEmployment Agreement dated as of August 1, 1995, as amended.

 

**16.****                               Amendment****.**No modification of any of the provisions hereof shall be binding upon eitherTimmins or the Company unless in writing, signed by the party against whom suchmodification is sought to be enforced.

 

**17.****                               ApplicableLaw.** This Agreement shall be governed by the substantive laws of theState of Oregon, without regard to its conflicts of law provisions.

 

**18.****                              ****Severability****.**In the event that any provision of thisAgreement shall be determined by any arbitrator or court  of com­petent jurisdiction to beunenforceable or otherwise invalid for any reason, including by not limited tothe duration of such pro­vision, its geographical scope or the extent of theactivities prohibited or required by it, such provision shall be enforced andvali­dated to the extent permitted by law, and the arbitrator or court  shall have the power to reform suchprovision to the extent nec­essary for such provision to be enforceable underap­plicable law. All provisions of this Agreement are severable, and the un­enforceabilityor invalidity of any single provision hereof shall not affect the remainingprovisions.

 

**19.****                               Attorneys’Fees.**In the event any suit or action shall be instituted arising fromor in connection with this Agreement, the prevailing party shall be entitled,in addition to court costs, to reasonable attorneys’ fees in the amount fixedby the trial judge or allowed by the appellate court in the event of any ap­peal.

 

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**20.****                               Headings.**The headings or titles in this Agreement are for the purpose of referenceonly and shall not in any way affect the interpretation or construction of thisAgreement.

 

IN WITNESS WHEREOF, the parties have executed andentered into this Agreement on the date set forth above.

 

 
|   |                               |                               |
|--------|------------------------------------|------------------------------------|
|   | TIMOTHY A. TIMMINS                 |                               |
|   |                               |                               |
|   |                               |                               |
|   | Date                               |                               |
|   |                               |                               |
|   | METRO ONE TELECOMMUNICATIONS, INC. |
|   |                               |                               |
|   | By:                                |                               |   |
|   |                               | William D. Rutherford              |   |
|   |                               | Chairman of the Board of Directors |   |
|   |                               |                               |
|   |                               |                               |
|   | Date                               |

 

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