sec document
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. 6)(1)
Metro One Telecommunications, Inc.
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(Name of Issuer)
Common Stock, No Par Value
--------------------------
(Title of Class of Securities)
59163F 10 5
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(CUSIP Number)
STEVEN WOLOSKY, ESQ.
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
Park Avenue Tower
65 East 55th Street
New York, New York 10022
(212) 451-2300
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
August 15, 2007
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(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box / /.
NOTE. Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. SEE Rule 13d-7 for other
parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 16 Pages)
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(1) The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, SEE the
NOTES).
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CUSIP No. 59163F 10 5 13D Page 2 of 16 Pages
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================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
EVEREST SPECIAL SITUATIONS FUND L.P.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 2,019,244(1)
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH - 0 -
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
2,019,244(1)
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,019,244(1)
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
26.1%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
(1) Includes 1,516,854 shares of Common Stock, which number may be adjusted from
time to time, into which 270 shares of Series A Convertible Preferred Stock
beneficially owned by the Reporting Persons (including 70 shares of Series A
Convertible Preferred Stock underlying warrants that are currently exercisable)
may be immediately converted. Prior to conversion, such shares of Series A
Convertible Preferred Stock are entitled to vote together with Common Stock on
all matters on a discounted as-converted basis (the discount is equal to the
difference between the conversion price and the market price on the original
date of issuance). See Item 4.
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CUSIP No. 59163F 10 5 13D Page 3 of 16 Pages
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================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
MAOZ EVEREST FUND MANAGEMENT LTD.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
ISRAEL
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 2,019,244(1)
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH - 0 -
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
2,019,244(1)
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,019,244(1)
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
26.1%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
(1) Includes 1,516,854 shares of Common Stock, which number may be adjusted from
time to time, into which 270 shares of Series A Convertible Preferred Stock
beneficially owned by the Reporting Persons (including 70 shares of Series A
Convertible Preferred Stock underlying warrants that are currently exercisable)
may be immediately converted. Prior to conversion, such shares of Series A
Convertible Preferred Stock are entitled to vote together with Common Stock on
all matters on a discounted as-converted basis (the discount is equal to the
difference between the conversion price and the market price on the original
date of issuance). See Item 4.
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CUSIP No. 59163F 10 5 13D Page 4 of 16 Pages
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================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
ELCHANAN MAOZ
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
ISRAEL
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 2,026,744(1)(2)
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH - 0 -
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
2,026,744(1)(2)
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,026,744(1)(2)
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
26.1%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
(1) Includes 1,516,854 shares of Common Stock, which number may be adjusted from
time to time, into which 270 shares of Series A Convertible Preferred Stock
beneficially owned by the Reporting Persons (including 70 shares of Series A
Convertible Preferred Stock underlying warrants that are currently exercisable)
may be immediately converted. Prior to conversion, such shares of Series A
Convertible Preferred Stock are entitled to vote together with Common Stock on
all matters on a discounted as-converted basis (the discount is equal to the
difference between the conversion price and the market price on the original
date of issuance). See Item 4.
(2) Includes options to purchase 7,500 shares of Common Stock granted to
Elchanan Maoz in his capacity as director of the Issuer, and exercisable within
60 days from the date hereof.
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CUSIP No. 59163F 10 5 13D Page 5 of 16 Pages
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The following constitutes Amendment No. 6 ("Amendment No. 6") to the
Schedule 13D filed by the undersigned. This Amendment No. 6 amends the Schedule
13D as specifically set forth.
Item 3 is hereby amended to include the following:
The aggregate purchase price of the 156 shares of Preferred Stock (as
defined below) purchased by Everest and reported in this Amendment No. 6 is
$1,560,000. No separate cash consideration was paid by Everest in respect of the
Everest Warrants (as defined below).
Item 4 is hereby amended to include the following:
On June 5, 2007, Everest entered into a Securities Purchase Agreement (the
"Purchase Agreement") by and among Everest, the Issuer and Columbia Ventures
Corporation ("Columbia"). Pursuant to the Purchase Agreement, at an initial
closing held on June 5, 2007, the Issuer issued (i) 220 shares of its newly
authorized Series A Convertible Preferred Stock, no par value, at a purchase
price of $10,000 per share (the "Preferred Stock"), of which 44 shares were
issued to Everest, (ii) Stock Purchase Warrants to purchase an additional 77
shares of the Preferred Stock (representing 35% of the total shares of Preferred
Stock issued on such date) at an exercise price of $10,000 per share during a
two-year exercise period (the "Warrants"), of which a Warrant to purchase 15.4
shares was issued to Everest (the "Initial Closing Everest Warrant"), and (iii)
Senior Secured Convertible Revolver Bridge Note having an aggregate maximum
principal amount of $7,800,000, and, subject to approval of the Issuer's
shareholders, convertible into shares of Preferred Stock (the "Notes"), of which
a Note with a maximum principal amount of $1,560,000 was issued to Everest (the
"Everest Note").
At the annual meeting of the Issuer's shareholders held August 14, 2007,
the holders of the Common Stock approved, among other things, the issuance of
additional shares of Preferred Stock and additional Warrants in the financing,
permitting the second closing to take place. At a second closing held on August
15, 2007, the maximum principal amount of $7,800,000 was drawn down by the
Issuer under the Notes, and the Notes were immediately converted into 780 shares
of Preferred Stock, of which 156 shares were issued to Everest. No amounts had
been drawn by the Company under the Notes prior to the second closing. In
addition, the Company issued additional Warrants to the Investors for the
purchase an additional 273 shares of Preferred Stock at an exercise price of
$10,000 per share"), of which a Warrant to purchase 54.6 shares of Preferred
Stock was issued to Everest (the "Second Closing Everest Warrant" and, together
with the Initial Closing Everest Warrant, the "Everest Warrants").
The Preferred Stock is convertible into shares of Common Stock at an
initial conversion price of $1.78 per share, which is subject to adjustment from
time to time. At the initial conversion price, the 200 shares of Preferred Stock
issued to Everest are convertible into an aggregate of 1,123,596 shares of
Common Stock and, if the Everest Warrants are exercised in full, the additional
70 shares of Preferred Stock will be convertible into an aggregate of 393,258
shares of Common Stock.
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CUSIP No. 59163F 10 5 13D Page 6 of 16 Pages
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Under the terms of the Preferred Stock, the shares of Preferred Stock will
vote together with shares of Common Stock on all matters. Holders of Preferred
Stock are entitled to the number of votes per share equal to the quotient
obtained by dividing (A) the conversion price by (B) $2.08 (the market price of
the Common Stock on the date of issuance), for each share of Common Stock into
which such shares of Preferred Stock could be converted. Based on the initial
conversion price of $1.78, the 200 shares of Preferred stock held by Everest
would entitle it to exercise voting power over 961,539 shares of Common Stock
and, if the Everest Warrants are exercised in full, the additional 70 shares of
Preferred Stock would entitle it to exercise voting power over 336,538 shares of
Common Stock.
For a description of the full terms and conditions of the Preferred Stock,
see the Articles of Amendment to the Third Restated Articles of Incorporation of
the Issuer, which are attached as an exhibit to the Issuer's Current Report on
Form 8-K filed with the Securities and Exchange Commission on June 8, 2007.
Copies of the Purchase Agreement, the Initial Closing Everest Warrant and
the Everest Note were attached to Amendment No. 5 as exhibits. A copy of the
Second Closing Everest Warrant is attached hereto as an exhibit and incorporated
herein by reference
Item 5(a) is hereby amended and restated to read as follows:
(a) At the close of business on August 15, 2007, Everest beneficially
owned 2,019,244 shares of Common Stock, including 1,516,854 shares of Common
Stock into which the 270 shares of Preferred Stock beneficially owned by the
Reporting Persons (including the 70 shares of Preferred Stock underlying the
Everest Warrants) may be immediately converted as described above, which
constitutes approximately 26.1% of the outstanding shares of the Common Stock as
of August 15, 2007 (based upon the 6,233,326 shares of Common Stock that were
reported to be outstanding in the Issuer's quarterly report for the period June
30, 2007 on Form 10-Q and filed with Securities and Exchange Commission on
August 13, 2007, plus the 1,516,854 shares of Common Stock beneficially owned by
Everest through its beneficial ownership of 270 shares of Preferred Stock).
MEFM, by virtue of its status as the general partner of Everest, may be deemed
to beneficially own the shares of Common Stock held by Everest. Elchanan Maoz
may be deemed to beneficially own 2,026,744 shares of Common Stock (consisting
of (i) 2,019,244 shares of Common Stock beneficially owned by Everest that Mr.
Maoz, by virtue of his status as a controlling stockholder of MEFM, the general
partner of Everest, may be deemed to beneficially own and (ii) 7,500 options
granted to Mr. Maoz in his capacity as director of the Issuer and exercisable
within 60 days from the date hereof). MEFM and Elchanan Maoz disclaim beneficial
ownership of such shares of Common Stock except to the extent of their pecuniary
interest therein.
Item 7 is hereby amended to include the following exhibits:
Exhibit A -- Stock Purchase Warrant, dated August 15, 2007, issued to
Everest.
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CUSIP No. 59163F 10 5 13D Page 7 of 16 Pages
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SIGNATURES
After reasonable inquiry and to the best of his knowledge and
belief, each of the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: August 16, 2007 EVEREST SPECIAL SITUATIONS FUND L.P.
By: Maoz Everest Fund Management Ltd.,
its General Partner
By: /s/ Elchanan Maoz
----------------------------------------
Name: Elchanan Maoz
Title: Chairman and Chief Executive Officer
MAOZ EVEREST FUND MANAGEMENT LTD.
By: /s/ Elchanan Maoz
----------------------------------------
Name: Elchanan Maoz
Title: Chairman and Chief Executive Officer
/s/ Elchanan Maoz
--------------------------------------------
/s/ Elchanan Maoz
ELCHANAN MAOZ
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CUSIP No. 59163F 10 5 13D Page 8 of 16 Pages
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EXHIBIT INDEX
Exhibit Page
A Stock Purchase Warrant, dated August 15, 2007, issued to 9 - 16
Everest Special Situations Fund L.P.
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CUSIP No. 59163F 10 5 13D Page 9 of 16 Pages
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Exhibit A
THE SECURITIES EVIDENCED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS (THE
"ACTS"). NO INTEREST MAY BE SOLD, ENCUMBERED OR OTHERWISE TRANSFERRED UNLESS (A)
THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACTS COVERING THE
TRANSACTION, (B) THIS CORPORATION RECEIVES AN OPINION OF LEGAL COUNSEL
SATISFACTORY TO THIS CORPORATION STATING THAT REGISTRATION IS NOT REQUIRED UNDER
THE ACTS, OR (C) THIS CORPORATION OTHERWISE SATISFIES ITSELF THAT REGISTRATION
IS NOT REQUIRED UNDER THE ACTS.
STOCK PURCHASE WARRANT
To Purchase 54.6 Shares of Series A Preferred Convertible Stock of
METRO ONE TELECOMMUNICATIONS, INC.
THIS STOCK PURCHASE WARRANT CERTIFIES that, for value received, Everest
Special Situations Fund L.P. (the "HOLDER"), is entitled, upon the terms and
subject to the limitations on exercise and the conditions hereinafter set forth,
at any time on or after the date hereof (the "INITIAL EXERCISE DATE") and on or
prior to the close of business on the second anniversary of the Initial Exercise
Date (the "TERMINATION DATE") but not thereafter, to subscribe for and purchase
from Metro One Telecommunications, Inc., a corporation incorporated in the State
of Oregon (the "COMPANY"), up to 54.6 shares (the "WARRANT SHARES") of Series A
Convertible Preferred Stock of the Company (the "PREFERRED STOCK"). The purchase
price of one share of Preferred Stock or fraction of a share (the "EXERCISE
PRICE") under this Warrant shall be $10,000.00 per share, subject to adjustment
hereunder. The Exercise Price and the number of Warrant Shares for which the
Warrant is exercisable shall be subject to adjustment as provided herein.
1. AUTHORIZATION OF SHARES. The Company covenants that all
Warrant Shares which may be issued upon the exercise of the
purchase rights represented by this Warrant will, upon
exercise of the purchase rights represented by this Warrant,
be duly authorized, validly issued, fully paid and
nonassessable and free from all taxes, liens and charges in
respect of the issue thereof (other than taxes in respect of
any transfer occurring contemporaneously with such issue).
2. EXERCISE OF WARRANT.
(a) Except as provided elsewhere herein, exercise of the purchase
rights represented by this Warrant may be made at any time or times on or after
the Initial Exercise Date and until 5:00 P.M. (Beaverton, Oregon time) on the
Termination Date by the surrender of this Warrant and the Notice of Exercise
annexed hereto duly executed, at the office of the Company (or such other office
or agency of the Company as it may designate by notice in writing to the
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CUSIP No. 59163F 10 5 13D Page 10 of 16 Pages
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registered Holder at the address of such Holder appearing on the books of the
Company) and upon payment of the Exercise Price of the shares (or fraction
thereof) thereby purchased by wire transfer or cashier's check drawn on a United
States bank, the Holder shall be entitled to receive the number of Warrant
Shares so purchased. As soon as practicable after the exercise of this Warrant
and in any event within five business days thereafter, upon the terms and
subject to the conditions of this Warrant, the Company at its expense will cause
to be issued in the name of and delivered to the Holder, or as the Holder may
direct to a broker or other persons, a certificate or certificates for the
number of shares of Preferred Stock to which the Holder shall be entitled on
such exercise, in such denominations as may be requested by the Holder.
If this Warrant shall have been exercised in part, the Company
shall, at the time of delivery of the certificate or certificates representing
Warrant Shares or electronic transmittal of such Warrant Shares, deliver to
Holder a new Warrant evidencing the rights of Holder to purchase the unpurchased
Warrant Shares called for by this Warrant, which new Warrant shall in all other
respects be identical with this Warrant.
3. FRACTIONAL SHARES OR SCRIP. Fractional shares of Preferred
Stock or scrip representing fractional shares of Preferred
Stock may be issued upon the exercise of this Warrant. No
fractional shares of Common Stock of the Company (the "COMMON
STOCK") or scrip representing fractional shares of Common
Stock shall be issued upon exercise of this Warrant. As to any
fraction of a share of Common Stock which Holder would
otherwise be entitled to purchase upon such exercise, the
Company shall pay a cash adjustment in respect of such final
fraction in an amount equal to such fraction multiplied by the
Exercise Price.
4. CHARGES, TAXES AND EXPENSES. Issuance of certificates for
Warrant Shares shall be made without charge to the Holder for
any issue or transfer tax or other incidental expense in
respect of the issuance of such certificate, all of which
taxes and expenses shall be paid by the Company, and such
certificates shall be issued in the name of the Holder or in
such name or names as may be directed by the Holder.
5. CLOSING OF BOOKS. The Company will not close its shareholder
books or records in any manner which prevents the timely
exercise of this Warrant, pursuant to the terms hereof.
6. TRANSFER, DIVISION AND COMBINATION.
(a) Subject to compliance with applicable federal and state
securities laws, this Warrant and all rights hereunder are transferable in whole
or in part by the Holder to any person or entity upon written notice to the
Company of the name and address of such transferee. Within a reasonable time
after the Company's receipt of such written notice, the transfer shall be
recorded on the books of the Company upon the surrender of this Warrant,
properly endorsed, to the Company at its principal offices. In the event of a
partial transfer, the Company shall issue to the new holders one or more
appropriate new warrants. Subject to the foregoing, this Warrant will bind and
inure to the parties and their respective successors and permitted assigns.
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CUSIP No. 59163F 10 5 13D Page 11 of 16 Pages
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(b) This Warrant may be divided or combined with other Warrants
upon presentation hereof at the aforesaid office of the Company, together with a
written notice specifying the denominations in which new Warrants are to be
issued, signed by the Holder or its agent or attorney. The Company shall
prepare, issue and deliver at its own expense (other than transfer taxes) the
new Warrant or Warrants under this Section 7(b).
7. NO RIGHTS AS SHAREHOLDER UNTIL EXERCISE. This Warrant does not
entitle the Holder to any voting rights or other rights as a
shareholder of the Company prior to the exercise hereof. Upon
the surrender of this Warrant and the payment of the aggregate
Exercise Price, the Warrant Shares so purchased shall be and
be deemed to be issued to such Holder as the record owner of
such shares as of the close of business on the later of the
date of such surrender or payment.
8. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT. The Company
covenants that upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction
or mutilation of this Warrant or any stock certificate
relating to the Warrant Shares, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory
to it (which, in the case of the Warrant, shall not include
the posting of any bond), and upon surrender and cancellation
of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock
certificate of like tenor and dated as of such cancellation,
in lieu of such Warrant or stock certificate.
9. SATURDAYS, SUNDAYS, HOLIDAYS. If the last or appointed day for
the taking of any action or the expiration of any right
required or granted herein shall be a Saturday, Sunday or a
legal holiday, then such action may be taken or such right may
be exercised on the next succeeding day not a Saturday, Sunday
or legal holiday.
10. ADJUSTMENTS
(a) If all of the Preferred Stock is redeemed or converted into
shares of Common Stock, then this Warrant shall automatically become exercisable
for that number of shares of Common Stock equal to the number of shares of
Common Stock that would have been received if this Warrant had been exercised in
full and the shares of Preferred Stock received thereupon had been
simultaneously converted into shares of Common Stock immediately prior to such
event, and the Exercise Price shall be automatically adjusted to equal the
number obtained by dividing (i) the aggregate Exercise Price of the shares of
Preferred Stock for which this Warrant was exercisable immediately prior to such
redemption or conversion, by (ii) the number of shares of Common Stock for which
this Warrant is exercisable immediately after such redemption or conversion.
(b) If outstanding shares of the Preferred Stock shall be
subdivided into a greater number of shares or a dividend in Preferred Stock
shall be paid in respect of Preferred Stock, the Exercise Price in effect
immediately prior to such subdivision or at the record date of such dividend
shall simultaneously with the effectiveness of such subdivision or immediately
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CUSIP No. 59163F 10 5 13D Page 12 of 16 Pages
------------------------ ----------------------
after the record date of such dividend be proportionately reduced. If
outstanding shares of Preferred Stock shall be combined into a smaller number of
shares, the Exercise Price in effect immediately prior to such combination
shall, simultaneously with the effectiveness of such combination, be
proportionately increased. When any adjustment is required to be made in the
Exercise Price, the number of shares of Warrant Stock purchasable upon the
exercise of this Warrant shall be changed to the number determined by dividing
(i) an amount equal to the number of shares issuable upon the exercise of this
Warrant immediately prior to such adjustment, multiplied by the Exercise Price
in effect immediately prior to such adjustment, by (ii) the Exercise Price in
effect immediately after such adjustment.
(c) In case there occurs any reclassification or change of the
outstanding securities of the Company or of any reorganization of the Company
(or any other corporation the stock or securities of which are at the time
receivable upon the exercise of this Warrant) or any merger, sale of assets
transaction or similar corporate reorganization on or after the date hereof,
then and in each such case the Holder, upon the exercise hereof at any time
after the consummation of such reclassification, change, reorganization, merger
or sale of assets transaction shall be entitled to receive, in lieu of the stock
or other securities and property receivable upon the exercise hereof prior to
such consummation, the stock or other securities or property to which such
Holder would have been entitled upon such consummation if such Holder had
exercised this Warrant immediately prior thereto, all subject to further
adjustment pursuant to the provisions of this Section 10.
(d) In order to avoid doubt, it is acknowledged that the holder of
this Warrant shall be entitled to the benefit of all adjustments in the number
of shares of Common Stock of the Company issuable upon conversion of the
Preferred Stock of the Company which occur prior to the exercise of this
Warrant, including without limitation, any increase in the number of shares of
Common Stock issuable upon conversion.
11. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
number or kind of securities or other property purchasable
upon the exercise of this Warrant or the Exercise Price is
adjusted, as herein provided, the Company shall give notice
thereof to the Holder, which notice shall state the number of
Warrant Shares (and other securities or property) purchasable
upon the exercise of this Warrant and the Exercise Price of
such Warrant Shares (and other securities or property) after
such adjustment, setting forth a brief statement of the facts
requiring such adjustment and setting forth the computation by
which such adjustment was made.
12. NOTICE OF CORPORATE ACTION. If at any time:
(a) the Company shall take a record of the holders of its
Preferred Stock for the purpose of entitling them to receive a special dividend
or other distribution, or any right to subscribe for or purchase any evidences
of its indebtedness, any shares of stock of any class or any other securities or
property, or to receive any other right;
(b) there shall be any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company or any
consolidation or merger of the Company with (other than a consolidation or
merger in which the Company is the surviving corporation), or any sale, transfer
or other disposition of all or substantially all the property, assets or
business of the Company to, another corporation;
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CUSIP No. 59163F 10 5 13D Page 13 of 16 Pages
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(c) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company; or
(d) there shall be any redemption of the Preferred Stock or
mandatory conversion of the Preferred Stock into Common Stock of the Company,
then, in any one or more of such cases, the Company shall give to Holder (i) at
least 20 days' prior written notice of the date on which a record date shall be
selected for such dividend, distribution, redemption or mandatory conversion or
for determining rights to vote in respect of any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
liquidation or winding up, and (ii) in the case of any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up, at least 20 days' prior written notice
of the date when the same shall take place. Such notice in accordance with the
foregoing clause also shall specify (y) the date on which any such record is to
be taken for the purpose of such dividend, distribution or right, the date on
which the holders of Preferred Stock shall be entitled to any such dividend,
distribution or right, and the amount and character thereof, and (z) the date on
which any such reorganization, reclassification, merger, consolidation, sale,
transfer, disposition, dissolution, liquidation or winding up is to take place
and the time, if any such time is to be fixed, as of which the holders of
Preferred Stock shall be entitled to exchange their Warrant Shares for
securities or other property deliverable upon such disposition, dissolution,
liquidation or winding up. Each such written notice shall be sufficiently given
if addressed to Holder at the last address of Holder appearing on the books of
the Company and delivered in accordance with Section 14(c).
13. AUTHORIZED SHARES. The Company covenants that during the
period the Warrant is outstanding, it will reserve from its
authorized and unissued Preferred Stock a sufficient number of
shares to provide for the issuance of the Warrant Shares upon
the exercise of any purchase rights under this Warrant. The
Company further covenants that its issuance of this Warrant
shall constitute full authority to its officers who are
charged with the duty of executing stock certificates to
execute and issue the necessary certificates for the Warrant
Shares upon the exercise of the purchase rights under this
Warrant. The Company will take all such reasonable action as
may be necessary to assure that such Warrant Shares may be
issued as provided herein without violation of any applicable
law or regulation, or of any requirements of the principal
market upon which the Common Stock may then be traded.
Except and to the extent as waived or consented to by the Holder,
the Company shall not by any action, including, without limitation, amending its
articles of incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such actions as may be
necessary or appropriate to protect the rights of Holder as set forth in this
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CUSIP No. 59163F 10 5 13D Page 14 of 16 Pages
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Warrant against impairment. Without limiting the generality of the foregoing,
the Company will (a) take all such action as may be necessary or appropriate in
order that the Company may validly and legally issue fully paid and
nonassessable Warrant Shares upon the exercise of this Warrant, and (b) use
commercially reasonable efforts to obtain all such authorizations, exemptions or
consents from any public regulatory body having jurisdiction thereof as may be
necessary to enable the Company to perform its obligations under this Warrant.
14. MISCELLANEOUS.
(a) JURISDICTION. This Warrant shall constitute a contract under
the laws of the State of Oregon, without regard to its conflict of law
principles or rules.
(b) NONWAIVER. No course of dealing or any delay or failure to
exercise any right hereunder on the part of Holder shall operate as a waiver of
such right or otherwise prejudice Holder's rights, powers or remedies,
notwithstanding all rights hereunder terminate on the Termination Date.
(c) NOTICES. Any notice, request or other document required or
permitted to be given or delivered to the Holder by the Company shall be
delivered by first class mail to Holder at the last address of Holder appearing
on the books of the Company.
(d) LIMITATION OF LIABILITY. No provision hereof, in the absence
of any affirmative action by Holder to exercise this Warrant or purchase Warrant
Shares, and no enumeration herein of the rights or privileges of Holder, shall
give rise to any liability of Holder for the purchase price of any Preferred
Stock or as a shareholder of the Company, whether such liability is asserted by
the Company or by creditors of the Company.
(e) AMENDMENT. This Warrant may be modified or amended or the
provisions hereof waived with the written consent of the Company and the holders
of Warrants representing two-thirds of the Warrant Shares issuable under
Warrants then outstanding as of the date such consent is sought; PROVIDED,
HOWEVER, that no amendment may increase the Exercise Price, decrease the number
of shares or class of shares obtainable upon exercise of this Warrant or
decrease the time period in which this Warrant can be exercised without the
written consent of each Holder.
(f) SEVERABILITY. Wherever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provisions or the remaining provisions of this Warrant.
(g) HEADINGS. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed a part
of this Warrant.
********************
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CUSIP No. 59163F 10 5 13D Page 15 of 16 Pages
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its officer thereunto duly authorized.
Dated: August 15, 2007
METRO ONE TELECOMMUNICATIONS, INC.
By: /s/ Gary E. Henry
----------------------------------------
Name: Gary E. Henry
Title:Chief Executive Officer
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CUSIP No. 59163F 10 5 13D Page 16 of 16 Pages
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NOTICE OF EXERCISE
To: Metro One Telecommunications, Inc.
(1) The undersigned hereby elects to purchase ________ Warrant
Shares of Metro One Telecommunications, Inc. pursuant to the
terms of the attached Warrant (only if exercised in full), and
tenders herewith payment of the exercise price in full,
together with all applicable transfer taxes, if any.
(2) Payment shall take the form of (check applicable box):
[ ] wire transfer; or
[ ] cashier's check.
(3) Please issue a certificate or certificates representing said
Warrant Shares in the name of the undersigned or in such other name as is
specified below:
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The Warrant Shares shall be delivered to the following:
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-------------------------------
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[NAME OF PURCHASER]
By:
----------------------------------
Name:
Title:
Dated:
-------------------------------