Exhibit
10.1


 


SEPARATION AND CONSULTING AGREEMENT


 


This SEPARATION AND
CONSULTING AGREEMENT is entered into as of the 4th day of October, 2005, by and
between METRO ONE TELECOMMUNICATIONS, INC., an Oregon corporation (the “Company”),
and TIMOTHY A. TIMMINS (“Timmins”), with respect to the following facts:


 


A.            Timmins
has been the President and Chief Executive Officer, and a director, of the
Company.


 


B.            The
parties each desire to, among other things, confirm Timmins’ resignation as an
officer and director of the Company and any subsidiaries and affiliates of the
Company and as trustee of any of the Company’s employee benefit plans, resolve
any disputes that may exist between the parties and provide for Timmins to
render certain consulting services to the Company, all on the terms and
conditions set forth below.


 


ACCORDINGLY, in
consideration of the foregoing premises, and the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, Timmins and the Company hereby
agree as follows:


 


1.             Resignation.  Concurrently with the execution and delivery
of this Agreement, Timmins has delivered a resignation to the Board of
Directors of the Company, in the form attached to this Agreement as Exhibit A.


 


2.             Consideration.


 


(a)           Upon
expiration of the seven-day period referred to in Section 25, provided
that Timmins does not revoke this Agreement during such seven-day period, the
Company will pay to Timmins the sum of $175,000.


 


(b)           The
Company will pay to Timmins the aggregate sum of $100,000 in 36 semi-monthly
installments of $2,777.77, commencing December 5, 2005.  Timmins hereby acknowledges receipt of the
first $6,550 of these payments.


 


(c)           Those
employee benefits currently being provided to Timmins, including group medical
coverage, will be continued through September 30, 2006, at the Company’s
expense to the extent the costs are currently being borne by the Company.


 


(d)           Timmins
hereby represents and warrants to the Company that he has been previously paid
by the Company for all accrued and unpaid salary and vacation through October 4,
2005.  In addition, Timmins hereby
releases the Company from any obligation to reimburse Timmins for business
expenses he incurred on behalf of the Company.


 


(e)           All
payments due under this Section 2 shall accelerate and become immediately
due and payable in the event (i) of a “Change-in-Control” (determined as
provided below) or (ii) the Company fails to make any payment to Timmins
due under this


 


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Section 2 within 10
business days after the Company’s receipt (determined as provided in Section 20
hereof) of written notice from Timmins advising the Company that it has failed
to make such payment when originally due. 
For purposes of this Section 2(e), a “Change-in-Control” will be
deemed to have occurred (A) in the event of the sale or other disposition
of all or substantially all the assets of the Company, or (B) in the event
that any person or entity, or two or more persons or entities acting in
concert, shall have acquired beneficial ownership (within the meaning of
Securities and Exchange Commission Rule 13d-3 under the Securities
Exchange Act of 1934), directly or indirectly, of securities of the Company representing
more than 50% of the combined voting power of all outstanding securities of the
Company entitled to vote in the election of directors, or (C) in the event
of a merger or consolidation involving the Company unless following such merger
or consolidation those persons who were beneficial owners (defined as set forth
in clause (B) above) immediately prior thereto own, directly or
indirectly, more than 50% of the combined voting power of the then outstanding
voting securities of the entity resulting from such merger or consolidation.


 


(f)            Timmins
hereby acknowledges and agrees that, except as set forth in this Section 2
or as otherwise specifically provided for herein, (i) he is not entitled
to any additional compensation or benefits (including, but not limited to,
vacation pay, sick pay, severance pay or any other benefit) as a result of, in
connection with, or related to his employment by the Company, and (ii) all
payments provided for in this Agreement are subject to all applicable
withholding taxes and other normal deductions.


 


(g)           Nothing
in this Agreement shall affect Timmins’ rights and interests in the Company’s
401(k) plan or the Company’s “Top Hat” deferred compensation plan
(collectively, the “Plans”).  The parties
acknowledge and agree that, as of November 25, 2005, the vested portion of
Timmins’ interest in the Company’s 401(k) plan was $71,456.79, and the vested
portion of Timmins’ interest in the Company’s “Top Hat” deferred compensation
plan was $87,586.69.  Attached hereto as Exhibit B
is a “Distribution/Direct Rollover Request” for the Company’s 401(k) plan and
attached hereto as Exhibit C is a “Distribution Request” for the
Company’s “Top Hat” deferred compensation plan (collectively, the “Request
Forms”).  Timmins shall complete those sections
of the Request Forms required to be completed by him, shall sign the Request
Forms, and shall submit the completed and signed Request Forms to the
Company.  Within 10 days after receiving
the completed and signed Request Forms from Timmins, the Company shall complete
those sections of the Request Forms required to be completed by it, shall cause
the Plan Administrator and/or Trustee of the Plans to sign the Request Forms,
and shall return the completed and signed Request Forms to Timmins for filing
with Great-West Retirement Services.  In
addition to the foregoing, the Company will sign such additional forms and take
such additional actions as Timmins may reasonably request to effect the
transfer of his interests in the Plans.


 


3.             Vesting
and Expiration of Options.  From time
to time in the past, Timmins has been granted both incentive stock options (“ISOs”)
and non-qualified stock options (“NQSOs”) to purchase shares of the Company’s
common stock under the Company’s 1994 Stock Incentive Plan and its 2004 Stock
Incentive Plan (collectively, the “Option Plans”).  The parties hereby acknowledge and agree that
attached hereto as Exhibit D is a true and complete list and
description of all options granted to Timmins by the Company.  As shown 


 


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on Exhibit D,
as of October 4, 2005 Timmins holds outstanding options to purchase
225,001 shares of the Company’s common stock. 
Of this amount, options covering 137,501 shares are vested and
exercisable, and options covering 87,500 shares are unvested and are not
exercisable.  Notwithstanding the terms
of the Option Plans or any option agreement except as provided below, the
Company hereby agrees that, as of the date hereof, (i) the unvested
options covering 87,500 shares shall vest and be fully exercisable; and (ii) Timmins
shall be entitled to exercise the options he holds covering 225,001 shares of
the Company’s common stock at any time or from time to time from the date
hereof until the close of business on September 30, 2009, subject to the
provisions of the Option Plans that provide for the termination of options in
the event of a proposed sale of assets, merger, liquidation or dissolution of
the Company (in which case the options held by Timmins will be given the most
favorable treatment given to any director, officer, employee, consultant or
other option holder of the Company with respect to their options).  The Company hereby represents and warrants
that it has full authority to execute this Agreement, including this Section 3.  The parties hereby agree to promptly take
such actions as may be reasonably necessary or desirable to reflect the
agreements set forth in clauses (i) and (ii) above, including without
limitation amending any applicable option agreement(s).  Except as expressly provided in this Section 3,
the terms and conditions of all options held by Timmins shall be subject to the
existing provisions of the Plans and any applicable option agreement(s).


 


4.             Return
of Property.  Timmins hereby
represents and warrants to the Company that he has returned to the Company all
property of the Company and all property related to the Company’s business, in
the custody or under the control of Timmins, in whatever form, including, but
not limited to, all equipment (including computers), security access codes,
proprietary information, documents, books, records, reports, memoranda,
contracts, lists, computer disks (or other computer-generated files or data),
and copies thereof, created on any medium.


 


5.             Consulting
Services.


 


(a)           The
Company hereby retains Timmins as a consultant, and Timmins hereby accepts such
appointment, on the terms and conditions set forth below, to perform during the
period commencing on the date hereof and ending on April 4, 2007 (the “Consulting
Period”) such services as are required hereunder.


 


(b)           Timmins
shall render such services to the Company, and shall perform such duties and
acts, as reasonably may be requested by the Company, in connection with any
patent infringement suits or other intellectual property matters, or in order
to assure the smooth transition of his responsibilities.


 


(c)           Timmins
shall devote such time, ability and attention to the Company’s business as may
be necessary or advisable to discharge his duties hereunder in a professional
and businesslike manner.


 


(d)           Timmins
shall be an independent contractor of the Company.  Nothing in this Agreement shall be construed
to give Timmins any rights as an employee, agent, partner or 


 


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joint venturer of the
Company or to entitle Timmins to control in any manner the business of the
Company or to incur any debt, liability or obligation on behalf of the Company.


 


(e)           Timmins
shall not be entitled to any additional compensation for the consulting
services he provides under this Section 5, unless at the Company’s request
he provides services outside the Portland, Oregon metropolitan area, in which
case the Company will (i) reimburse Timmins for all reasonable
out-of-pocket expenses he incurs in connection with the performance of services
outside the Portland, Oregon metropolitan area, subject to compliance with the
Company’s reimbursement policies, and (ii) pay Timmins a consulting fee of
$1,000 per day during which he performs services outside the Portland, Oregon
metropolitan area.


 


6.             General
Release.


 


(a)           Subject
to the Company’s performance of its obligations under Section 2(a) and
its obligations under all but the last sentence of Section 2(g), except as
expressly set forth in this Agreement, each party hereby fully, forever and
unconditionally releases, exonerates, waives, relinquishes, discharges,
acquits, relieves and covenants not to sue or charge the other and its agents,
employees, representatives, attorneys, stockholders, officers, directors,
successors and assigns (collectively, “all related persons”), and all
affiliated, parent and subsidiary corporations, and each of them, and all
related persons connected therewith, from any and all rights, claims, demands,
debts, obligations, liabilities, promises, acts, agreements, costs, expenses
(including, but not limited to, attorneys’ fees and costs), damages, disputes,
controversies, actions and causes of action (collectively, “claims”) through
the date of this Agreement, of whatever kind or nature, in law or equity,
whether known or unknown, suspected or unsuspected, potential or actual,
including but not limited to those based on, arising out of or in any way
connected with or related to (i) the employment of Timmins by the Company,
or the termination of such employment, (ii)  Timmins’ right to purchase,
or actual purchase, of securities of the Company, (iii) the breach by
Timmins or the Company of any provision of the Company’s employee handbook,
personnel policies or any oral or written representations or statements made by
Timmins or by officers, directors, employees or agents of the Company, (iv) the
breach by Timmins or the Company of any state or federal law regulating wages,
hours, compensation or employment, (v) the breach by Timmins or the
Company of the implied covenant of good faith and fair dealing in connection
with any of the foregoing matters, (vi) any claim for misrepresentation,
wrongful termination or intentional infliction of emotional distress in
connection with any of the foregoing matters, (vii) any discrimination
claim on the basis of race, sex, age, religion, marital status, national
origin, physical or mental disability or medical condition, or (viii) any
claim arising under the Oregon Fair Employment Act, the federal Age
Discrimination in Employment Act, the Older Workers Benefit Protection Act,
Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the
Fair Labor Standards Act, the Americans with Disabilities Act or the Age
Discrimination in Employment Act. 
Notwithstanding the foregoing or any other provision of this Agreement,
the releases provided for in this Section 6 do not extend to (1) any
obligations arising under this Agreement, or (2) any claims based on,
arising out of or in any way connected with or related to fraud or criminal
activity.


 


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(b)           Subject
to the exclusions set forth in the last sentence of Section 6(a) of
this Agreement, the parties hereby acknowledge and agree that Section 6(a) specifically
includes any and all claims, demands, obligations, and/or causes of action for
compensatory and/or exemplary damages and/or other relief relating to or in any
way connected with the terms, conditions and benefits of employment, including,
without limitation, workers’ compensation benefits, emotional distress,
disability, and other health benefits, vacation pay, sick pay, age
discrimination, and any other discrimination, including, but not limited to,
sex, national origin, race, religion, handicap, and/or any other type of
discrimination, whether or not specifically or particularly described
herein.  Each party expressly waives any
right or claim of right to assert hereafter that any claim, demand, obligation
and/or cause of action has, through ignorance, oversight or error, been omitted
from the release provided for in this Agreement.


 


(c)           Except
as expressly set forth in this Agreement, each party hereby acknowledges that
except for the express provisions of this Agreement, no statement, representation,
promise or inducement has been made by the other party in connection with this
Agreement, and each party specifically acknowledges that he or it has not
relied upon any statement, representation, promise or inducement of the other
party in executing this Agreement that is not expressly set forth in this
Agreement.  Each party hereby represents
and warrants to the other party that he or it holds all rights necessary to
release all claims being released under this Agreement by he or it, without obtaining
the approval or consent of any other person or entity, and he or it has not
transferred or otherwise assigned any of the claims being released under this
Agreement by he or it to any other person or entity.


 


(d)           Each
party understands and agrees that, except as expressly provided herein, this Section 6
extends to all claims of whatever nature and kind, known and unknown, suspected
or unsuspected.  Without limiting or
otherwise affecting Section 14 of this Agreement, which provides that
Oregon law governs this Agreement, the parties acknowledge and agree that they
are familiar with, and have been advised by legal counsel with respect to, the
provisions of Section 1542 of the Civil Code of the State of California,
which provides as follows:


 


A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.


 


Each party hereby
expressly waives and releases any right or benefit which he or it has or may
have under Section 1542 of the Civil Code of the State of California, as
well as under the provisions of any and all comparable or similar statutes,
codes, laws, or regulations of any and all states of the United States and of
the United States, to the fullest extent that such rights and benefits may be
waived.  Each party acknowledges that he
or it may hereafter discover claims presently unknown or unsuspected, or facts
in addition to or different from those which he or it now knows or believes to
be true, with respect to the matters released herein.  Nevertheless, it is the intention of each
party through this Agreement, fully, finally and forever to settle and release
all such matters, and all claims relative thereto, which do now exist, may
exist or 


 


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heretofore have existed
in connection with such matters.  In
furtherance of such intention, the release herein given shall be and remain in
effect as a full and complete release of such matters notwithstanding the
discovery or existence of any such additional different claims or facts
relative thereto.


 


(e)           Timmins
hereby represents, warrants and acknowledges to the Company that (i) he
has not suffered nor aggravated any known on-the-job injuries for which he has
not already filed a claim, (ii) he has been fully compensated by the
Company for all amounts owed to him for wages, salaries, bonuses, health
benefits, vacation, expenses, and any other form of compensation and benefits, (iii) the
payments by the Company under Sections 2(a) and 2(b) of this
Agreement represent amounts to which the Company contends Timmins is not
already entitled, (iv) this Agreement is the result of a compromise of
disputed claims and nothing in this Agreement shall be construed as an
admission of liability of any kind by the Company to Timmins or by Timmins to
the Company, (v) the Company has no legal or contractual obligation to
hire Timmins at any time in the future, and (vi) other than as stated in
this Agreement, no promise or inducement has been offered to Timmins for this
Agreement.


 


(f)            The
Company hereby confirms its pre-October 4, 2005 obligation to indemnify
Timmins on the terms set forth in Exhibit E hereto, and nothing in
this Section 6 is intended to limit Timmins’ rights to indemnification as
set forth in Exhibit E.  In
addition, Timmins shall be provided indemnification under the Company’s
articles of incorporation and bylaws and applicable law, and coverage under
director and officer liability insurance, no less favorable than is provided to
other present and former officers and directors of the Company.


 


7.             Prohibition
Against Disparagement.  The Company
will not disparage, defame or denigrate the reputation of, or cause or
encourage any other person to so disparage, defame or denigrate the reputation
of, Timmins; and Timmins will not disparage, defame or denigrate the reputation
of, or cause or encourage any other person to so disparage, defame or denigrate
the reputation of, the Company, any of its subsidiaries or affiliates, or any
of their respective officers, directors or employees.  This Section 7 shall not, however,
prevent a party from truthfully testifying as required by compulsion of law.


 


8.             Press
Release.  Attached hereto as Exhibit F
is a copy of the press release that was issued by the Company on October 7,
2005.  Timmins and the Company agree that
from and after December 1, 2005 all inquiries regarding Timmins’
resignation received by either of them from the press, employees or any other
person will be answered solely by reference to the contents of such press
release and no other explanation shall be given for Timmins’ resignation.


 


9.             Restrictive
Covenants.


 


(a)           Timmins
hereby agrees that from the date hereof to and including April 4, 2007, he
shall not, directly or indirectly, on behalf of himself or any other person or
entity, (i) solicit, accept or take away any customer of the Company with
respect to any business, products or services that are competitive with the
business, products or services of the Company as of October 4, 2005 or
which are under development as of October 4, 2005, or 


 


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(ii) induce or
encourage any person or entity that is a vendor to or customer of the Company
to cease doing business with the Company, or (iii) otherwise interfere
with the relationships between the Company and any of its vendors or customers.


 


(b)           Timmins hereby further agrees that from
the date hereof to and including April 4, 2007, he shall not, directly or
indirectly, on behalf of himself or any other person or entity, (i) solicit for employment or consultation
services any person who is at the time of solicitation employed by the Company,
or (ii) induce, or attempt to induce, any person who is at the time of
inducement employed by the Company to terminate his or her employment with the
Company.


 


(c)           Timmins acknowledges and agrees that violation of
this Section 9 by Timmins would cause irreparable harm to the Company, and
the Company, in addition to any and all other rights and remedies available in
law or equity, shall be entitled to injunctive relief in accordance with Section 19
of this Agreement.


 


(d)           Notwithstanding the foregoing, the restrictive covenants set forth in
this Section 9 shall terminate in the event the Company fails to
make any payment to Timmins due under Section 2 of this Agreement within
10 business days after the Company’s receipt (determined as provided in Section 20
hereof) of written notice from Timmins advising the Company that it has failed
to make such payment when originally due.


 


10.           Confidential
Information.


 


(a)           As
used in this Section 10, the term “Confidential Information” means any and
all trade secrets or other confidential or proprietary information of the
Company, or other information of any kind, nature or description concerning any
matters affecting or relating to the Company that derives economic value,
actual or potential, from not being generally known to the public or to other
persons who can obtain economic value from its disclosure or use.  Confidential Information includes without
limitation any such information relating to the financial condition, results of
operations, business, customers, properties, assets, liabilities or future
prospects of the Company.


 


(b)           Timmins
hereby acknowledges and agrees that the Confidential Information is the sole
property of the Company.  Timmins hereby
agrees that he will keep confidential and will not directly or indirectly
divulge to anyone or use or otherwise appropriate for his own benefit, or for
the benefit of any other person or entity, any Confidential Information.


 


11.           Inventions
and Intellectual Property.


 


(a)           As
used in this Section 11, the term “Inventions” means any and all ideas,
inventions, techniques, modifications, processes, or improvements (whether
patentable or not), any trademarks, trade names or industrial designs (whether
registerable or not), and any works of authorship (whether or not copyright
protection may be obtained for them) created, conceived, or developed by
Timmins to date, either solely or in conjunction with others, that relate in
any way to, or are useful in any manner in connection with, the Company’s
business as it was conducted on or prior to October 4, 2005.  As used in this Section 11, the terms “Intellectual
Property Right” and “Intellectual Property Rights” mean (i) all rights
under all 


 


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copyright laws of the
United States and all other countries for the full terms thereof (and all
rights accruing by virtue of copyright treaties and conventions), including,
but not limited to, all renewals, extensions, reversions or restorations of
copyrights now or hereafter provided by law and all rights to make applications
for and obtain copyright registrations therefor and recordations thereof; (ii) all
rights to and under new and useful inventions, discoveries, designs, technology
and art and all other patentable subject matter, including, but not limited to,
all improvements thereof and all know-how related thereto, all Letters Patent,
and all applications for and the rights to make applications for Letters Patent
in the United States and all other countries, all Letters Patent that issue
therefrom and all reissues, extensions, renewals, divisional applications and
continuations (including continuations-in-part, CPAs and other continuing
applications) thereof, for the full term thereof; (iii) all trade secrets;
(iv) all trademarks, service marks and Internet domain names and the like
throughout the world; and (v) all other intellectual and industrial
property and proprietary rights throughout the world not otherwise included in
the foregoing, including, without limitation, all techniques, methodologies and
concepts and trade dress.


 


(b)           Timmins
acknowledges and agrees that all of the Inventions are works made for hire and
are the property of the Company, including any copyrights, patents, or other
Intellectual Property Rights pertaining thereto.  Notwithstanding the foregoing, Timmins agrees
to assign and does hereby assign to the Company all of Timmins’ right, title
and interest, including all rights of copyright, patent and other Intellectual
Property Rights, to or in such Inventions. 
Timmins covenants that he will promptly:


 


i.                                          disclose
to the Company in writing any Invention;


 


ii.                                       take
all actions that the Company may request from time to time to assign to the
Company (or to a party designated by the Company), without additional
compensation, all of Timmins’ rights in and to any Invention for the United
States and all foreign jurisdictions;


 


iii.                                    execute
and deliver to the Company such applications, assignments and other documents
as the Company may request in order to apply for and obtain patent or other registrations
with respect to any Invention in the United States and all foreign
jurisdictions;


 


iv.                                   sign
all other papers necessary to carry out the above obligations; and


 


v.                                      give
testimony and render any other reasonable assistance in support of the Company’s
rights to any Invention.


 


(c)           To
the extent allowed by law, the foregoing agreement to assign and assignment of
Inventions include all rights known as or referred to as “moral rights,” “artist’s
rights,” “droit moral,” or the like (collectively “Moral Rights”).  To the extent Timmins retains any such Moral
Rights under applicable law, Timmins hereby ratifies and consents to any action
that may be taken with respect to such Moral Rights by, or authorized by, the
Company, and agrees not to assert any Moral Rights with respect thereto.  Timmins will 


 


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confirm any such
ratifications, consents and agreements from time to time as requested by the
Company.


 


(d)           Timmins
without reservation hereby covenants and binds himself and his successors,
assigns and legal representatives to cooperate fully and promptly with the
Company and to do all acts necessary or requested to be done by the Company in
order to evidence, establish, apply for, perfect, procure, register, record,
maintain, enforce and/or defend the Company’s Intellectual Property Rights, and
in connection with all proceedings before the United States Patent and
Trademark Office (the “PTO”), the United States Copyright Office (the “Copyright
Office”) and all equivalent offices and government agencies in foreign
countries (“Foreign Offices”) including, without limitation, to execute and
deliver to the Company any and all lawful application documents including
petitions, specifications, oaths, assignments, disclaimers and legal affidavits
in form and substance as may be requested by the Company; to communicate to the
Company all facts known to Timmins related to any Intellectual Property Right;
to furnish the Company with all information, documents, materials or records of
any kind (whether or not in electronic or any other form and regardless of the
medium or form of storage) in Timmins’ control which may be useful for
establishing the facts of authorship, creation, conception, disclosure and
reduction to practice and the like; to testify in, and assist the Company in
all legal, administrative and other proceedings (including without limitation
proceedings in connection with any application, reissue application and any
reexamination, interference or other proceeding before the PTO, the Copyright
Office and/or any Foreign Offices), including but not limited to the
preparation for such legal, administrative and other proceedings; to execute
and deliver all assignments, instruments and all other lawful papers, when
called upon to do so, that may be necessary or desirable to the Company in
connection with the foregoing; to not consult with, testify for, or in any
other manner assist any party with respect to any matter adverse to the Company
(including but not limited to litigation and administrative proceedings adverse
to the Company and the preparations therefor) and, if legally compelled, by
subpoena or otherwise, to so assist a party in a matter adverse to the Company,
to immediately notify the Company, and to assist the Company in quashing the
subpoena or otherwise objecting to his assistance of the party in the matter
adverse the Company.


 


(e)           Timmins
hereby irrevocably designates and appoints the Company and its agents as
attorneys-in-fact to act for and in Timmins’ behalf to execute and file any
document and to do all other lawfully permitted acts to further the purposes of
this Section 11 with the same legal force and effect as if executed by
Timmins.


 


(f)            Except
as provided below, Timmins shall take all actions required under this Section 11
without additional consideration from the Company, provided that the Company
will reimburse Timmins for any out-of-pocket expenses he reasonably incurs in
connection with any such actions.  If
Timmins reasonably devotes at least two hours during any calendar day
(including a day falling within the Consulting Period) to taking action at the
Company’s request under this Section 11, the Company shall pay Timmins
$125 per hour up to a maximum of $1,000 per calendar day.


 


12.           Successors
and Assigns.  This Agreement shall
inure to the benefit of, and shall be binding upon, the successors and assigns
of the parties hereto.


 


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13.           Severability.  In the event that any provision of this
Agreement should be held to be void, voidable or unenforceable, the remaining
provisions, and any partially unenforceable provisions to the extent
enforceable, shall remain in full force and effect.


 


14.           Governing
Law.  This Agreement shall be
construed in accordance with, and be governed by, the laws of the State of
Oregon applicable to contracts made and to be performed wholly within that
State.


 


15.           Attorneys’
Fees.  Subject to Section 23 of
this Agreement, in the event any party takes legal action to enforce any of the
terms of this Agreement, the unsuccessful party to such action shall pay the
successful party’s expenses, including reasonable attorneys’ fees and costs,
incurred in such action.


 


16.           Counterparts.  This Agreement may be executed simultaneously
in two or more counterparts, each one of which shall be deemed an original, but
all of which shall constitute one and the same instrument.


 


17.           Survival.  All representations, warranties and
agreements made by the parties hereto in this Agreement shall survive the date
hereof and any investigations, inspections, examinations or audits made by or
on behalf of any party.


 


18.           Entire
Agreement.  This Agreement
constitutes the entire agreement between the parties hereto pertaining to the
subject matter hereof, and, except as otherwise expressly set forth herein,
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, relating to the subject matter of this Agreement.  Timmins and the Company are parties to an
Employment Agreement dated August 1, 1995, and a January 1, 2000
Amendment to Employment Agreement Dated August 1, 1995 (as amended, the “Employment
Agreement”), and Timmins and the Company hereby agree that the Employment
Agreement is hereby terminated in its entirety and is of no further force or
effect.  No supplement, modification,
waiver or termination of this Agreement shall be valid unless executed by the
party to be bound thereby.  No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar), nor shall such
waiver constitute a continuing waiver unless otherwise expressly provided.  Nothing in this Agreement shall affect the
provisions of that certain Proprietary Information Agreement between Timmins
and the Company dated April 14, 1993, which shall remain in full force and
effect.


 


19.           Injunctive
Relief.  The parties acknowledge that
if a party should default in any of its obligations under this Agreement, including
without limitation the obligations of the parties under Sections 7, 8, 9, 10
and 11 of this Agreement, it would be impracticable to measure the resulting
damages to the aggrieved party and it may not be possible to adequately
compensate the aggrieved party for the resulting injury by means of monetary
damages.  Accordingly, without prejudice
to the right to seek and recover monetary damages, the aggrieved party shall be
entitled to seek and obtain specific performance of this Agreement or other
injunctive relief, subject to Section 23 of this Agreement, and the
parties each waive any defense that a remedy in damages would be adequate and
any requirement for the aggrieved party to post any bond or other security in
order to obtain such relief.


 


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20.           Notices.  Any notice or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been given
and received (i) if personally delivered, when so delivered, (ii) if
mailed, one week after having been placed in the U.S. mail, as certified mail,
postage prepaid, addressed to the party to whom it is directed at the address
set forth below or (iii) if given by telecopier, when such notice or other
communication is transmitted to the telecopier number specified below and the
appropriate answerback or telephonic confirmation is received.  Either party may change the address to which
such notices are to be addressed by giving the other party notice in the manner
herein set forth.


 


If to
the Company, to:


 


Metro One
Telecommunications, Inc.

11200 Murray Scholls Place

Beaverton, Oregon 97007

Telecopy:  (503) 521-0923

Attention:  President and CEO


 


With a
copy to:


 


Neal H. Brockmeyer, Esq.

Heller Ehrman LLP

333 South Hope Street, 39th Floor

Los Angeles, California 90071

Telecopy: (213) 614-1868


 


If to
Timmins, to:


 


Timothy A. Timmins

[Address]

[Address]


 


With a
copy to:


 


Sarah J. Ryan, Esq.

Ball Janik LLP

One Main Place

101 SW Main Street, Suite 1100

Portland, Oregon 97204

Telecopy:  (503) 295-1058


 


21.           Headings.  Section and subsection headings are
not to be considered part of this Agreement and are included solely for
convenience and reference and in no way define, limit or describe the scope of
this Agreement or the intent of any provisions hereof.


 


22.           Further
Assurances.  Each party hereto shall,
from time to time at and after the date hereof, execute and deliver such
instruments, documents and assurances and take such 


 


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further actions as the
other party may reasonably request to carry out the purpose and intent of this
Agreement.


 


23.           Arbitration.  Any and all disputes, controversies or claims
arising out of or related to this Agreement, including without limitation,
those relating to claims released in Section 6, fraud in the inducement of
this Agreement, or the general validity or enforceability of this Agreement,
shall be submitted to final and binding arbitration before JAMS, or its
successor, if any, or if it is no longer in existence, before the American
Arbitration Association.  The arbitration
shall be conducted in Portland, Oregon, in accordance with the provisions of
JAMS’s Streamlined Arbitration Rules and Procedures or, if applicable, the
rules of the American Arbitration Association, in effect at the time of
filing of the demand for arbitration. 
There shall be one arbitrator, who shall be a retired circuit court or
federal judge.  The parties agree that
they have waived any right to trial by jury. 
The decision of the arbitrator shall be final and binding and the
judgment rendered may be entered in any court having jurisdiction.  The prevailing party in any such arbitration
proceeding shall be entitled to its costs and reasonable attorneys’ fees, costs
and expenses.  Notwithstanding the
foregoing, either party may apply to either the Oregon Federal District Court
or the Washington County Circuit Court for the State of Oregon for temporary or
preliminary injunctive relief, and any such application shall not be deemed incompatible
with or a waiver of this agreement to arbitrate.


 


24.           Legal
Counsel.  EACH PARTY HEREBY
ACKNOWLEDGES THAT IN CONNECTION WITH THIS AGREEMENT IT HAS SOUGHT THE ADVICE OF
SUCH INDEPENDENT LEGAL COUNSEL AS IT SHALL HAVE DETERMINED TO BE NECESSARY OR ADVISABLE
IN ITS SOLE AND ABSOLUTE DISCRETION.


 


25.           Revocation.  Timmins shall have a period of 21 days
in which to consider whether to enter into this Agreement.  If Timmins does enter into this Agreement, he
may revoke the Agreement within seven days after the execution of the
Agreement.  Timmins does not have to use
the entire 21-day period before signing this Agreement.  This Agreement is not effective or
enforceable until after this seven-day period has passed.  Notwithstanding the foregoing, Timmins’ resignation
as a director of the Company and of any of its subsidiaries and affiliates is
and shall remain effective even if Timmins elects to revoke this Agreement
within the seven-day period.


 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed as of the date and
year first set forth above.


 


	
   

  	
  METRO
  ONE TELECOMMUNICATIONS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  James Usdan

  	
   

  
	
   

  	
  Name:

  	
  James
  Usdan

  
	
   

  	
  Title:

  	
  Chief
  Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  /s/
  Timothy A. Timmins

  	
   

  
	
   

  	
   

  	
  TIMOTHY
  A. TIMMINS

  
						



 


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