**Exhibit 10.1**

 

 

**SETTLEMENTAGREEMENT ANDDISENTANGLEMENT TRANSITION PLAN**

 

THISSETTLEMENT AGREEMENT AND DISENTANGLEMENT TRANSITION PLAN (“Agreement”) is madeand entered into as of this 10th day of February, 2006, by and between NextelOperations, Inc., for itself and as authorized agent of and for Nextel ofCalifornia, Inc., Nextel Communications of the MidAtlantic, Inc., Nextel of NewYork, Inc., Nextel South Corp., Nextel of Texas, Inc. and Nextel West Corp.(collectively, “Nextel”) and Metro One Telecommunications, Inc. (“Metro One”). Theforegoing parties are sometimes referred to individually as a “Party” andcollectively as the “Parties.”

 

**RECITALS**

 

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

 

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

 

WHEREAS,Nextel filed a complaint against Metro One in the United States District Courtfor the Eastern District of Virginia (the “Court”), Civil Action No. 1:05CV-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 Courtentered a preliminary injunction requiring, among other things, Metro One tocontinue meeting the prescribed service levels under the Master ServicesAgreement and directing the Parties to continue in good faith to negotiate theprovisions of a disentanglement transition plan as contemplated by the MasterServices Agreement (the “Preliminary Injunction”); and

 

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

 

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

 

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

 

**AGREEMENT**

 

# 1.             Incorporation of Recitals. Theabove recitals are true and are hereby incorporated herein.

 

----

 

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

#  

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

#  

# 4.             Release of PreliminaryInjunction. Upon the execution and delivery of this Agreement, the Partiesshall file an order in the form attached hereto as Exhibit ”C” dissolvingthe Preliminary Injunction and releasing the bond posted in connectiontherewith.

#  

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

#  

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

##  

## b.             Obligationsof Nextel. For each Call Center for which Schedule 1 specifiesa Planned Transition Date, Nextel shall use its best efforts to transferdirectory assistance calls of its customers from that Call Center on or beforethe specified Planned Transition Date. If Nextel is unable to complete thetransition by the Planned Transition date, Nextel shall continue to use itsbest efforts to complete the transition as soon as possible thereafter. Once allNextel calls have been transitioned from a Call Center for a period oftwenty-four (24) hours (the “Actual Transition Date”), the transfer of suchcalls shall be deemed complete and Nextel shall not attempt to transfer anysuch calls back to such Call Center.

##  

Otherthan as specified in Section 5.d, below, Nextel shall cease routingdirectory assistance calls from its customers to each Call Center by no laterthan the specified Termination Date for such Call Center.

 

## c.             Obligationsof Metro One. Until the earlier of (i) the Actual Transition Date, or(ii) the Termination Date, Metro One shall continue to provide Services toNextel from that Call Center as required by the Master Services Agreement,including without limitation maintaining the Service Level Requirements setforth in Section 2.4 and Schedule 2.4 of the Master ServicesAgreement (“Service Levels”). On the earlier of (i) the Actual TransitionDate; or (ii) the Termination Date, Metro One shall have no furtherobligation (other than as specified in subsection 5.d below) to performits obligations and provide Nextel with any of the Services underSection 2.3 and the related Schedules and Attachments of the MasterService Agreement, including without limitation maintaining Service Levels withrespect to any Nextel calls routed to the applicable Call Center, provided,however, that nothing in this subsection shall be deemed

 

2

----

 

## to prevent Metro One fromcontinuing to operate a particular Call Center after the Actual Transition Dateor Termination Date, as applicable, to serve customers of carriers other thanNextel.

##  

In theevent that any Termination Date must be extended as a result of any act oromission within the sole control of Metro One, such that the Actual TransitionDate occurs later than the specified Termination Date, then Metro One’sobligations to perform its obligations and provide Nextel with the Servicesunder Section 2.3 and the related Schedules and Attachments of the MasterServices Agreement, including without limitation maintaining Service Levelswith respect to any Nextel calls routed to the applicable Call Center, shallcontinue until the Actual Transition Date.

 

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

##  

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

##  

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

##  

## g.             NextelPayment for Services. Nextel shall continue to make payments to Metro Onefor all Services provided by Metro One to Nextel in accordance with the termsof, and subject to the conditions in, the Master Services Agreement and thisAgreement, including without limitation Services provided pursuant tosubsections 5.c, 5.d and 5.e, and 5.f hereof. Such payments shall be inaddition to the Nextel Payment (as defined in Section 6 below).

 

3

----

 

# 6.             Nextel Payment. Nextel shallpay to Metro One the aggregate sum of EIGHT MILLION TWO HUNDRED FIFTY THOUSANDAND 00/100 DOLLARS ($8,250,000.00) in installments (the “Nextel Payment”). Thefirst installment of Nextel Payment in the amount of $2,500,000.00 was paid byNextel to Metro One on or about December 14, 2005.

#  

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

##  

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

 

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

 

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

 

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

##  

## c.             Adjustmentsto Remaining Nextel Payment. If, following the execution date of thisAgreement, Service Levels are not met by Metro One for any Reporting Period,and Nextel is entitled to any Adjustment Credits pursuant to Section 6.3of the Master Services Agreement and Schedule 2.4 thereof as to suchmissed Service Levels, any such credits shall not only be applied to theamounts due Metro One under the Master Services Agreement, but also to theinstallment of the Remaining Nextel Payment due for such Reporting Period. Theapplication of Adjustment Credits to such installment of the Remaining NextelPayment shall not be subject to the limitations on the At Risk Amount as setforth in Section II.C of Schedule 2.4 of the Master ServicesAgreement.

##  

## d.             NextelElection to Withhold Installment of Remaining Nextel Payment. Nextel mayelect, in lieu of its remedies in the subsection 6.c, above, to withholdpayment of the installment of the Remaining Nextel Payment applicable to aReporting Period if Metro One fails to meet the standards prescribed inSchedule 2.4 of the Master Services Agreement for the Service Levels describedtherein as “accessibility,” “speed of answer,” “abandon rate,” “listingaccuracy,” 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

 

4

----

 

(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 TransitionDates set forth in Schedule 1 during the February, 2006 or March,2006 Reporting Periods, Nextel may elect to withhold the installment of theRemaining Nextel Payment due for such Reporting Period only if Metro One failsto satisfy the above-described Service Levels on six (6) or more occasionsduring the February, 2006 Reporting Period or on six (6) or more occasionsduring the March, 2006 Reporting Period, as applicable. Nextel’s election notto pay an installment of the Remaining Nextel Payment as provided in thissubsection 6.d shall not affect Metro One’s entitlement to receivepayments for Services under the Master Services Agreement during such ReportingPeriod, subject to the Adjustment Credits chargeable against such paymentsunder the Agreement.

 

# 7.             Amendment of Master ServicesAgreement. To the extent that this Agreement is inconsistent with the termsof the Master Services Agreement, the Master Services Agreement shall be deemedamended to conform to the provisions of this Agreement. The Master ServicesAgreement shall otherwise remain in full force and effect. The Master ServicesAgreement shall continue to govern Metro One’s provision of, and Nextel’spayments for, Services for so long as Metro One provides Services to Nextelunder this Agreement.

#  

# 8.             Entire Agreement. ThisAgreement, including the exhibits and schedules thereto, and, to the extent itis not inconsistent with this Agreement, the Master Services Agreement, containthe entire agreement between the Parties agreements with regard to the mattersset forth herein and supersede any and all prior agreements and understandings,whether written or oral, of the Parties hereto relating to the subject matterherein. This Agreement may be amended only by written instrument signed by theParties.

#  

# 9.             Binding Agreement. ThisAgreement is binding upon and inures to the benefit of the Parties hereto andtheir 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 andconditions of this Agreement shall be considered Confidential Informationunder, and shall be subject to, Section 7.3 of the Master Services Agreement.

#  

# 11.           Authorization. Each Partyrepresents and warrants that its representatives executing this Agreement arefully authorized to do so on its behalf and Nextel Operations, Inc. representsand warrants that it is authorized to execute and deliver this Agreement forand on behalf of Nextel of California, Inc., Nextel Communications of theMidAtlantic, Inc., Nextel of New York, Inc., Nextel South Corp., Nextel ofTexas, Inc. and Nextel West Corp.

#  

# 12.           Defined Terms. Any capitalizedterm used, but not defined, herein shall have the meaning ascribed to it by theMaster Services Agreement.

 

5

----

 

# 13.           Effect of Section Headings.The section headings appearing in this Agreement are inserted for the purposeof convenience and reference and shall not be construed to define, limit orextend the scope of intent of the language of the sections to which theypertain.

#  

# 14.           Counterparts. This Agreementmay 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 admissionor acknowledgement of liability or wrongdoing by any Party.

#  

INWITNESS WHEREOF, the Parties by and through their duly authorizedrepresentatives, have entered into, and executed, this Agreement as of the datefirst set forth above.

 

 
|   | **METRO ONE TELECOMMUNICATIONS,  INC.** |
|--------|-----------------------------------------|
|   |                                    |
|   |                                    |
|   | By:                                     |   |
|   |                                    |
|   | Title:                                  |   |
|   |                                    |
|   | Printed:                                |   |
|        |                                         |  |  |  |

 

6

----

 
|   | **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 |
|        |                                                                                                                                                                                                                                                              |  |  |  |

 

7

----