As filed with the Securities and Exchange Commission on February 10, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Metro One Telecommunications, Inc.
(Exact name of registrant as specified in its charter)
30 North Gould Street
Suite 2990
Sheridan, WY 82801
Telephone No.: (307) 683-0855
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Copies to:
Ken Bart
Smith Eilers, PLLC
1213 Culbreth Drive
Wilmington, NC 28405
Telephone No.: (561) 379-1253
Approximate date of commencement of proposed sale to the public: As
soon as practicable after the effective date of this registration statement.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the
following box: ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth
company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
Calculation of Registration Fee
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become effective in accordance with section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to said
section 8(a), may determine.
The information in this
prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities, and
it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
PROSPECTUS FOR
193,317,186 SHARES OF COMMON STOCK BY SELLING SHAREHOLDERS AND
20,331,658 SHARES OF COMMON STOCK UNDERLYING WARRANT EXERCISES BY OUR SELLING SHAREHOLDERS AND
80,000,000 SHARES OF COMMON STOCK TO BE SOLD AS PART OF THIS OFFERING AND
20,000,000 SHARES UNDERLYING WARRANTS TO BE SOLD AS PART OF THIS OFFERING
Our common stock is quoted on the OTC Pink Marketplace, under the symbol “WOWI.” The last reported sale price of our common stock on the OTC Pink Marketplace on February 1, 2022 was $0.0751 per share.
Investing in our common stock involves a high degree of risk. See “Risk Factors” beginning on page 8 of this prospectus for a discussion of information that should be considered in connection with an investment in our common stock.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
TABLE OF CONTENTS
You should rely only on the information contained in this prospectus or in any free writing prospectus that we may specifically authorize to be delivered or made available to you. We have not
authorized anyone to provide you with any information other than that contained in this prospectus or in any free writing prospectus we may authorize to be delivered or made available to you. We take no responsibility for, and can provide no
assurance as to the reliability of, any other information that others may give you. This prospectus may only be used where it is legal to offer and sell our securities. The information in this prospectus is accurate only as of the date of this
prospectus, regardless of the time of delivery of this prospectus or any sale of our securities. Our business, financial condition, results of operations and prospects may have changed since that date. We are not making an offer of these securities
in any jurisdiction where the offer is not permitted.
For investors outside the United States: We have not done anything that would permit this offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose
is required, other than in the United States. Persons outside must inform themselves about, and observe any restrictions relating to, the offering of securities and the distribution of this prospectus outside the United States.
This prospectus includes statistical and other industry and market data that we obtained from industry publications and research, surveys and studies conducted by third parties. Industry publications
and third-party research, surveys and studies generally indicate that their information has been obtained from sources believed to be reliable, although they do not guarantee the accuracy or completeness of such information. We believe that the data
obtained from these industry publications and third-party research, surveys and studies are reliable. We are ultimately responsible for all disclosure included in this prospectus.
This summary highlights information contained elsewhere in this prospectus and does not contain all of the information that you
should consider in making your investment decision. Before investing in our securities, you should carefully read this entire prospectus, including our financial statements and the related notes and the information set forth under the headings
“Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in each case included elsewhere in this prospectus. In this prospectus, unless the context otherwise requires, the terms “we,” “us,” “our,”
“Metro One Telecommunications, Inc.,” and “Metro One” refer to Metro One Telecommunications, Inc., and its consolidated subsidiaries.
Overview
Our Mission.
We enable retailers to grow their business, using mobile commerce to better engage their customers, both in-store and online – no code required.
Our Objective
Metro One Telecommunications, Inc. is focused on changing the way retailers integrate mobile commerce solutions within their business. Our multi-model, plug and play mobile
commerce platform enables retailers to launch their own branded mobile application serving as an additional sales channel in a matter of a few hours – no code required.
Through our recently acquired Israeli tech company, Stratford, Ltd, the company will continue to merge the functionality of mobile technology, artificial intelligence
("AI"), and Machine learning enabling retailers to quickly and easily bring their business online to significantly:
• Increase customer retention (60%)
• Increase average basket size (30%)
• Increase Upsell and Cross-sell x4
• Increase customers lifetime value CLV – dramatic increase in repeat monthly purchases.
Shelfy provides a mobile commerce platform that enables retailers to build their own branded mobile application in a matter of hours with intuitive
drag and drop tools – no coding required. Adding mobile as an additional sales channel enables retailers to grow its customer loyalty and its revenues.
1 Shelfy recorded performance in Kruidvat health and beauty chain in the Netherlands VS. Commonly served retail shopping apps.
2 https://www.oberlo.com/statistics/mobile-commerce-sales#:~:text=With%20the%20number%20of%20mobile,also%20been%20on%20the%20rise.
|
Recent Developments
On March 30, 2021, the Company announced that its newly-formed, wholly owned Israeli subsidiary, Stratford Ltd. had received notification of approval from the Lod District Court in Israel for its winning bid to
acquire assets of Royal App, Ltd,. out of insolvency proceedings for approximately $2.4 million USD in cash as well as 8% equity in the Company on a diluted basis, post conversion of the Company’s preferred common stock and certain other
proposed sales of common stock in order to raise the required funds to complete the acquisition, (the “Recapitalization”).
Royal App, Ltd., is the developer of Shelfy, a white label, headless mobile commerce software platform that helps retailers and fast moving consumer goods companies become growth companies. The Shelfy product
incorporates sophisticated artificial intelligence and machine learning in its algorithms to markedly improve online shopping metrics through mobile phones for large consumer retailers such as supermarket chains, food and other clients.
To finance the acquisition as well as general working capital, the Company proposed to raise up to $3.5 million commencing March 2021 in the form of puttable Simple Agreements for Future Equity (“SAFE”) from
institutional investors and family offices. The terms of the SAFE require that they automatically convert into common stock of the Company following the conversion of all outstanding convertible preferred stock into common stock. The
Company’s intent was to undertake the conversion of preferred stock in the quarter ended September 30, 2021, following shareholder approval of certain proposed corporate restructure plans.
Subsequent to the conversion of the preferred stock, and as part of the agreement for the acquisition of the assets of Royal App, Ltd., the Company also agreed to issue common stock for commission fees of 2% of
the Company’s common stock on a diluted basis, and to the employees of Stratford as to 8% of the Company on a diluted basis, under the terms of an Employee Stock Option Plan, once approved by Shareholders. Further, in order to undertake
these issuances, the Company was required to increase the authorized common stock of the Company.
On June 9, 2021, the Company announced a Stockholders’ meeting to be held on June 30, 2021 to approve the following actions:
1. An amendment to the articles of the Company to increase the authorized shares of the Company from 50,000,000 to 600,000,000.
2. An amendment to the articles of the Company to effect a reverse stock split on the basis of not less than 1 for 10 and not more than 1 for 100. Such ratio to be determined by the
Board of Directors of the Company at such time as it is approved by the Board of Directors of the Company.
3. Approval of a 2021 Employee Stock Incentive Plan. The Plan will have available shares equity to 25% of the Company’s capitalization and a term of ten years from the effective date
of the Plan.
4. Approval of the Company’s reorganization from Oregon to Delaware.
The meeting was held on June 30, 2021, and the Company’s shareholders approved all of the actions detailed above, as well as the conversion of 1,000 outstanding shares of Company’s Series A convertible
preferred stock whereby each 1 share of Preferred stock held is convertible into 71,683.25 shares of common stock. As a result, during the period ended September 30, 2021, the holders of the Company’s Series A convertible preferred stock
successfully converted their holdings into 71,683,250 shares of Common Stock and the Board issued the remaining securities as agreed under the Acquisition Agreement including 22,647,751 shares to the Trustee as part of the asset acquisition
costs and 5,661,938 shares to the agent as financing costs. Further a total of $3.25 million raised in the form of SAFES were converted into a total of 126,614,436 shares of common stock at $0.02567 per share.
Risks
Our business and ability to execute our growth strategies are subject to a number of risks of which you should be aware before you make an investment decision. In particular, you should consider the risks
discussed in the “Risk Factors” section of this prospectus, including, but not limited to, the following:
|
|
|
●
|
we have incurred significant losses to date and may continue to incur losses;
|
|
|
|
|
|
|
●
|
we will need to raise additional capital;
|
|
|
|
|
|
|
●
|
growth of operations will depend on the acceptance of our products and consumer discretionary spending;
|
|
|
|
|
|
|
●
|
we have limited management resources and are dependent on key executives;
|
|
|
|
|
|
|
●
|
failure to achieve and maintain effective internal controls could have a material adverse effect on our business;
|
|
|
|
|
|
|
●
|
competition that we face is varied and strong;
|
|
|
|
|
|
|
●
|
We depend on a large volume of merchants and retailers paying us a small monthly usage fee which may mean a high cost of customer acquisition during the first 2-3 years of launching our new SaaS model.
|
|
|
|
|
|
|
●
|
In the first 4 years from launching our SaaS solution we are dependent on third-party eCommerce platforms such as Shopify to host our software. In the event that one of these platforms becomes redundant or
completely changes some of their policies it may have a negative impact on our business and result in loss of business or existing customers
|
|
|
|
|
|
|
●
|
failure of third party vendors and platforms upon which we rely could adversely affect our business; and
|
|
|
|
|
|
|
●
|
litigation and publicity concerning product quality and other issues could adversely affect our results of operations, business and financial condition;
|
|
|
|
|
Any investment in our securities involves a high degree of risk. Investors should carefully consider the risks described below and all of the information contained in this prospectus before deciding
whether to purchase our common stock. Our business, financial condition or results of operations could be materially adversely affected by these risks if any of them actually occur. This prospectus also contains forward-looking statements that
involve risks and uncertainties. Our actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including the risks we face as described below and elsewhere in this prospectus.
Risks Related to our Financial Condition
We have incurred significant losses to date and may continue to incur losses.
We have incurred net losses since we commenced operations. For the nine month period ended September 30, 2021, our operating loss was $1,567,563. We have incurred net losses in each fiscal year since our inception. We
had net losses of $53,236 and $103,277 for the years ended December 31, 2020 and 2019, respectively.
These losses have had, and likely will continue to have, an adverse effect on our working capital, assets, and equity. In order to achieve and sustain such revenue growth in the future, we must significantly expand our
market presence and revenues from existing and new customers. We may continue to incur losses in the future and may never generate revenues sufficient to become profitable or to sustain profitability. Continuing losses may impair our ability to raise
the additional capital required to continue and expand our operations.
Our auditors have expressed doubt about our ability to continue as a going concern.
The Report of our Independent Registered Public Accounting Firm with respect to our December 31, 2020 consolidated financial statements, includes an explanatory paragraph stating that the recurring losses, an
accumulated deficit and a working capital deficit at December 31, 2020 raise substantial doubt about our ability to continue as a going concern for the previous standalone company.
We will need to raise additional capital.
We are currently completing additional development with respect to the intellectual property assets acquired from Royal App, Ltd. We will continue to incur research and development and other associated expenses up
until our secondary product launch is complete. Any failure of the secondary product launch to generate revenues or sustain positive cash flows in sufficient amounts to fund our business operations may result in the need to secure additional
financing beyond this offering in order to support our operations. We can provide no assurances that any additional sources of financing will be available to us on favorable terms, if at all. Our forecast of the period of time through which our
current financial resources will be adequate to support our operations and the costs to support our general and administrative, selling and marketing and research and development activities are forward-looking statements and involve risks and
uncertainties.
We may also need to raise additional capital to expand our business to meet our long-term business objectives. Additional financing, which is not in place at this time, may come from the sale of equity or convertible
or other debt securities in a public or private offering, from an additional credit facility or strategic partnership coupled with an investment in us or a combination of both. We may be unable to raise sufficient additional financing on terms that
are acceptable to us, if at all. Our failure to raise additional capital and in sufficient amounts may significantly impact our ability to expand our business. For further discussion of our liquidity requirements as they relate to our long-term
plans, see the section entitled “Liquidity and Capital Resources — Capital Resources and Expenditure Requirements”.
Risks Related to our Business
The requirements of being a public company may strain our resources and distract management.
As a result of filing the registration statement, we will be subject to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the Sarbanes-Oxley Act of 2002 (the
“Sarbanes-Oxley Act”). These requirements are extensive. The Exchange Act requires that we file annual, quarterly and current reports with respect to our business and financial condition. The Sarbanes-Oxley Act requires that we maintain effective
disclosure controls and procedures and internal controls over financial reporting.
We may incur significant costs associated with our public company reporting requirements and costs associated with applicable corporate governance requirements. We expect all of these applicable rules and regulations
to significantly increase our legal and financial compliance costs and to make some activities more time consuming and costly. This may divert management’s attention from other business concerns, which could have a material adverse effect on our
business, financial condition and results of operations. We also expect that these applicable rules and regulations may make it more difficult and more expensive for us to obtain director and officer liability insurance and we may be required to
accept reduced policy limits and coverage or incur substantially higher costs to obtain the same or similar coverage. As a result, it may be more difficult for us to attract and retain qualified individuals to serve on our Board of Directors or as
executive officers. We are currently evaluating and monitoring developments with respect to these rules, and we cannot predict or estimate the amount of additional costs we may incur or the timing of such costs.
Ineffective internal controls could impact the Company’s business and operating results.
The Company’s internal control over financial reporting may not prevent or detect misstatements because of the inherent limitations of internal controls, including the possibility of human error, the circumvention or
overriding of controls, poorly designed or ineffective controls, or fraud. Internal controls that are deemed to be effective can provide only reasonable assurance with respect to the preparation and fair presentation of the Company’s financial
statements. If the Company fails to maintain the adequacy of its internal controls, including the failure to implement new or improve existing controls, or fails to properly execute or properly test these controls, the Company’s business and
operating results could be negatively impacted and the Company could fail to meet its financial reporting obligations.
Changing economic conditions and other effects of the such changes caused by the coronavirus disease 2019 (Covid-19).
The Company’s operations may be affected by the recent and ongoing outbreak of Covid-19 which has been declared a pandemic by the World Health Organization. The ultimate disruption which may be caused by the outbreak
is uncertain; however it may result in a material adverse impact on the Company’s combined financial position, operations and cash flows. Possible areas that may be affected include, but are not limited to, disruption to the ability of our management
team to provide services to us, unavailability of supplies or third party consulting services used in operations, and the decline in value of assets held by the Company, including, property held by the Company, as well as the availability of capital
and the ability for retailers to purchase our products. The Covid-19 pandemic and mitigation measures have had and may continue to have, and any future epidemic disease outbreak may have, an adverse impact on global economic conditions which could
have an adverse effect on our business and financial condition, including impairing our ability to raise capital when needed. The extent to which the Covid-19 pandemic impacts our results will depend on future developments that are highly uncertain
and cannot be predicted, including new information that may emerge concerning the severity of the virus and the actions to contain its impact.
Growth of operations will depend on the acceptance of our products by our retail clients.
The acceptance by our customers of our newly acquired Shelfy application, as well as additional mobile product offerings under development is critically important to our success. Shifts in user preferences away from
the functionality of our mobile applications, our inability to develop effective mobile application products that appeal to consumers, or changes in our products that eliminate product attributes popular with some consumers could harm our business.
Our success depends significantly on meeting the specific needs of our retail clients on an ongoing basis, competitive pricing and ease of use by the end consumer. And inability to continuously meet these needs may have material adverse effects on
our sales, results of operations, business and financial condition.
We cannot be certain that the products that we offer will become, or continue to be, appealing and as a result there may not be any demand for these products and our sales could decrease, which would result in a loss
of revenue. Additionally, there is no guarantee that interest in our products will continue, which could adversely affect our business and revenues.
Demand for products which we sell depends on many factors, including:
All of these factors could result in immediate and longer term declines in the demand for the products we plan to offer, which could adversely affect our sales, cash flows and overall financial condition. An investor
could lose his or her entire investment as a result.
We have limited management resources and are dependent on key executives.
We are currently relying on key individuals to continue our business and operations and, in particular, the professional expertise and services of Bianca Meger, chief executive officer, Elchanan (Nani) Maoz, president
and director, Jonah Meer, secretary and director, and James Alexander Brodie, treasurer and director, as well as key members of our executive management team and others in key management positions. We plan to appoint additional independent directors
in order to comply with NASDAQ requirements in the future, however, until any potential additional directors or officers are appointed, we may not have sufficient managerial resources to successfully manage the increased business activity envisioned
by our business strategy. In addition, our future success depends in large part on the continued service of our current management team. We have not entered into employment agreements with our management team. If our officers and directors chose not
to serve or if they are unable to perform their duties, and we are unable to retain a replacement qualified individual or individuals, this could have an adverse effect on our business operations, financial condition and operating results if we are
unable to replace the current officers and directors with other qualified individuals.
Failure to achieve and maintain effective internal controls could have a material adverse effect on our business.
If we cannot provide reliable financial reports, our operating results could be harmed. All internal control systems, no matter how well designed, have inherent limitations. Therefore, even those systems determined to
be effective can provide only reasonable assurance with respect to financial statement preparation and presentation. Based on our evaluation, our management concluded that there was a material weakness in our internal control over financial reporting
for the year ended December 31, 2020. The material weakness identified did not result in the restatement of any previously reported financial statements or any related financial disclosure, nor does management believe that it had any effect on the
accuracy of our financial statements for the year ended December 31, 2020. A material weakness is a deficiency, or a combination of control deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a
material misstatement of our annual or interim financial statements will not be prevented or detected on a timely basis. We believe that the lack of internal accounting staff resulted in a lack of segregation of duties and the accounting technical
expertise necessary for an effective system of internal control. Because of the material weakness described above, management concluded that, as of December 31, 2020, our internal control over financial reporting was not effective. Any failure to
implement required new or improved controls, or difficulties encountered in their implementation, could harm our operating results or cause us to fail to meet our reporting obligations. Failure to achieve and maintain an effective internal control
environment could cause investors to lose confidence in our reported financial information, which could have a material adverse effect on our stock price. Failure to comply with Section 404 could also potentially subject us to sanctions or
investigations by the SEC or other regulatory authorities.
Competition that we face is varied and strong.
Our products and industry as a whole are subject to competition. There is no guarantee that we can develop or sustain a market position or expand our business. We anticipate that the intensity of competition in the
future will increase.
We compete with a number of entities in providing products to our customers. Such competitor entities include: (1) a variety of large multinational corporations engaged in the mobile commerce industry, including but
not limited to companies that have established loyal customer bases over several decades; (2) mobile commerce companies that have an established customer base, and have the same or a similar business plan as we do and may be looking to expand
nationwide; and (3) a variety of other local and national mobile commerce and mobile application companies with which we either currently or may, in the future, compete.
Many of our current and potential competitors are well established and have longer operating histories, significantly greater financial and operational resources, and greater name and brand recognition than we have. As
a result, these competitors may have greater credibility with both existing and potential customers. They also may be able to offer more products and more aggressively promote and sell their products. Our competitors may also be able to support more
aggressive pricing than we will be able to, which could adversely affect sales, cause us to decrease our prices to remain competitive, or otherwise reduce the overall gross profit earned on our products.
Our industry requires the attraction and retention of talented employees.
Success in the mobile commerce and mobile application industry, specifically as it relates to our platform and products, does and will continue to require the acquisition and retention of highly talented and
experienced individuals. Due to the growth in the market segment targeted, such individuals and the talent and experience they possess is in high demand. There is no guarantee that we will be able to attract and maintain access to such individuals.
If we fail to attract, train, motivate and retain talented personnel, our business, financial condition, and operating results may be materially and adversely impacted, which could result in the loss of your entire investment.
We will depend on a large volume of merchants and retailers paying us a small monthly usage fee which may mean a high cost of customer acquisition during the first 2-3 years of
our operation
Our SaaS software will target thousands of potential independent merchants and retail customers across multiple markets and in
various locations. Each of these customers will pay us a small monthly usage fee for the use of our SaaS offering. As a result, in the first several years of our operation, customer acquisition costs and set up fees may be high in relation to
subscription fees collected over the launch period. The Company expects a period of 2-3 years to reach suitable subscription levels to offset customer acquisition fees.
We currently depend on third party platforms for a portion of our business.
A portion of our sales revenue in the first four years will be dependent on third-party eCommerce platforms such as Shopify to host our software. As independent companies, providers of the third party platforms make
their own business decisions. In the event that one of these platforms becomes redundant or completely changes some of their policies it may have a negative impact on our business and result in loses of business or existing customers. Their financial
condition could also be adversely affected by conditions beyond our control, and our business could suffer as a result. Deteriorating economic conditions could negatively impact the financial viability of third party platform providers. Any of these
factors could negatively affect our business and financial performance.
We may fail to comply with applicable government laws and regulations.
We are subject to a variety of federal, state and local laws and regulations in the U.S. These laws and regulations apply to many aspects of our business including the advertising and sale of our products. Violations
of these laws or regulations in the manufacture, safety, labeling, transportation and advertising of our products could damage our reputation and/or result in regulatory actions with substantial penalties. In addition, any significant change in such
laws or regulations or their interpretation, or the introduction of higher standards or more stringent laws or regulations, could result in increased compliance costs or capital expenditures.
Risks Related to our Intellectual Property
It is difficult and costly to protect our proprietary rights.
Our commercial success will depend in part on obtaining and maintaining trademark protection and trade secret protection of our products and brands, as well as successfully defending these trademarks against
third-party challenges. We will only be able to protect our intellectual property related to our trademarks, patents and brands to the extent that we have rights under valid and enforceable trademarks, patents or trade secrets that cover our products
and brands. Changes in either the trademark or patent laws or in interpretations of trademark or patent laws in the U.S. and other countries may diminish the value of our intellectual property. Accordingly, we cannot predict the breadth of claims
that may be allowed or enforced in our issued trademarks or in third-party patents. The degree of future protection for our proprietary rights is uncertain because legal means afford only limited protection and may not adequately protect our rights
or permit us to gain or keep our competitive advantage.
We may face intellectual property infringement claims that could be time-consuming and costly to defend, and could result in our loss of significant rights and the assessment of
treble damages.
From time to time we may face intellectual property infringement, misappropriation, or invalidity/non-infringement claims from third parties. Some of these claims may lead to litigation. The outcome of any such
litigation can never be guaranteed, and an adverse outcome could affect us negatively. For example, were a third party to succeed on an infringement claim against us, we may be required to pay substantial damages (including up to treble damages if
such infringement were found to be willful). In addition, we could face an injunction, barring us from conducting the allegedly infringing activity. The outcome of the litigation could require us to enter into a license agreement which may not be
under acceptable, commercially reasonable, or practical terms or we may be precluded from obtaining a license at all. It is also possible that an adverse finding of infringement against us may require us to dedicate substantial resources and time in
developing non-infringing alternatives, which may or may not be possible. In the case of diagnostic tests, we would also need to include non-infringing technologies which would require us to re-validate our tests. Any such re-validation, in addition
to being costly and time consuming, may be unsuccessful.
Finally, we may initiate claims to assert or defend our own intellectual property against third parties. Any intellectual property litigation, irrespective of whether we are the plaintiff or the defendant, and
regardless of the outcome, is expensive and time-consuming, and could divert our management’s attention from our business and negatively affect our operating results or financial condition.
We may be subject to claims by third parties asserting that our employees or we have misappropriated their intellectual property, or claiming ownership of what we regard as our
own intellectual property.
Although we try to ensure that we, our employees, and independent contractors do not use the proprietary information or know-how of others in their work for us, we may be subject to claims that we, our employees, or
independent contractors have used or disclosed intellectual property in violation of others’ rights. These claims may cover a range of matters, such as challenges to our trademarks, as well as claims that our employees or independent contractors are
using trade secrets or other proprietary information of any such employee’s former employer or independent contractors. As a result, we may be forced to bring claims against third parties, or defend claims they may bring against us, to determine the
ownership of what we regard as our intellectual property. If we fail in prosecuting or defending any such claims, in addition to paying monetary damages, we may lose valuable intellectual property rights or personnel. Even if we are successful in
prosecuting or defending against such claims, litigation could result in substantial costs and be a distraction to management.
Risks Related to our Common Stock and this Offering
The market price of our common stock may be volatile and adversely affected by several factors.
The market price of our common stock could fluctuate significantly in response to various factors and events, including:
In addition, the securities markets have from time to time experienced significant price and volume fluctuations that are unrelated to the operating performance of particular companies. These market fluctuations may
also materially and adversely affect the market price of our common stock.
There currently is a limited liquid trading market for our common stock and we cannot assure investors that a robust trading market will ever develop or be sustained for our
common stock.
To date there has been a limited trading market for our common stock on the OTC Pink Marketplace. We cannot predict how liquid the market for our common stock may become. A lack of an active market may impair
investors’ ability to sell their shares at the time they wish to sell them or at a price they consider reasonable. The lack of an active trading market may impair our ability to raise capital by selling shares of capital stock and may impair our
ability to acquire other companies by using our common stock as consideration. For companies whose securities are traded in the OTC Pink Marketplace, it is generally more difficult to obtain accurate quotations, to obtain coverage for significant
news events (because major media channels generally do not publish press releases about such companies) and to obtain needed capital.
The trading in the Company shares will be regulated by Securities and Exchange Commission Rule 15g-9 which established the definition of a “penny stock.” The effective result is
that fewer purchasers are qualified by their brokers to purchase its shares, and therefore a less liquid market for the investors to sell their shares. Therefore, you may have a difficult time selling your shares, or you may not be able to sell your
shares at all, which could result in the loss of your investment.
The shares being offered are defined as a penny stock under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), and rules of the SEC. The Exchange Act and such penny stock rules generally impose
additional sales practice and disclosure requirements on broker-dealers who sell our securities to persons other than certain accredited investors who are, generally, institutions with assets in excess of $5,000,000 or individuals with net worth in
excess of $1,000,000 or annual income exceeding $200,000 or $300,000 jointly with spouse), or in transactions not recommended by the broker-dealer. For transactions covered by the penny stock rules, a broker-dealer must make a suitability
determination for each purchaser and receive the purchaser’s written agreement prior to the sale. In addition, the broker-dealer must make certain mandated disclosures in penny stock transactions, including the actual sale or purchase price and
actual bid and offer quotations, the compensation to be received by the broker-dealer and certain associated persons, and deliver certain disclosures required by the Commission. Consequently, the penny stock rules may make it difficult or impossible
for you to resell any shares you may purchase.
Our directors and officers will continue to exercise significant control over our operations.
As of the date of this prospectus, our management and board of directors, currently hold approximately 33.2% of the voting power of our common stock and will hold approximately 25.9% of the voting power of our common
stock following this offering, assuming all shares are sold, but excluding the exercise of warrants. Accordingly, our executive officers and directors will continue to have a significant influence in determining the outcome of all corporate
transactions, including the election of directors, approval of significant corporate transactions, changes in control of the Company or other matters that could affect your ability to ever resell your Shares. Their interests may differ from the
interests of the other stockholders and thus result in corporate decisions that are disadvantageous to other stockholders.
A significant portion of our total outstanding shares of common stock may be sold into the public market in the near future, which could cause the market price of our common stock
to drop significantly, even if our business is doing well.
Sales of a substantial number of shares of our common stock in the public market could occur at any time. These sales, or the market perception that the holders of a large number of shares of common stock intend to
sell shares of common stock, could reduce the market price of our common stock. After this offering, we will have up to 337,920,700 shares of common stock outstanding excluding shares underlying warrants.
We may issue Preferred Stock with voting and conversion rights that could adversely affect the voting power of the holders of common stock.
Although we presently have no intention to do so without stockholder approval, which may be obtained solely through the votes of its management and board of directors, the Board may issue preferred stock with voting
and conversion rights that could adversely affect the voting power of the holders of common stock. Any such provision may be deemed to have a potential anti-takeover effect, and the issuance of preferred stock in accordance with such provision may
delay or prevent a change of control of the Company. The board of directors also may declare a dividend on any outstanding shares of preferred stock. All outstanding shares of preferred stock are fully paid and non-assessable.
Provisions of our charter documents could discourage an acquisition of our company that would benefit our stockholders and may have the effect of entrenching, and making it
difficult to remove, management.
Provisions of our Articles of Incorporation and By-laws may make it more difficult for a third party to acquire control of us, even if a change in control would benefit our stockholders. In particular, shares of our
preferred stock may be issued in the future without further stockholder approval and upon such terms and conditions, and having such rights, privileges and preferences, as our board of directors may determine, including, for example, rights to
convert into our common stock. The
rights of the holders of our common stock will be subject to, and may be adversely affected by, the rights of the holders of any of our preferred stock that may be issued in the future. The issuance of our preferred
stock, while providing desirable flexibility in connection with possible acquisitions and other corporate purposes, could have the effect of making it more difficult for a third party to acquire control of us. This could limit the price that certain
investors might be willing to pay in the future for shares of our common stock and discourage these investors from acquiring a majority of our common stock. Further, the existence of these corporate governance provisions could have the effect of
entrenching management and making it more difficult to change our management.
We have not, and may never pay dividends to shareholders.
We have not declared or paid any cash dividends or distributions on our capital stock. We currently intend to retain our future earnings, if any, to support operations and to finance expansion and therefore we do not
anticipate paying any cash dividends on our common stock in the foreseeable future.
The declaration, payment and amount of any future dividends will be made at the discretion of the board of directors, and will depend upon, among other things, the results of our operations, cash flows and financial
condition, operating and capital requirements, and other factors as the board of directors considers relevant. There is no assurance that future dividends will be paid, and, if dividends are paid, there is no assurance with respect to the amount of
any such dividend. If we do not pay dividends, our common stock may be less valuable because a return on an investor’s investment will only occur if our stock price appreciates.
If you purchase shares of common stock in this offering, you will suffer immediate dilution of your investment.
The public offering price of our common stock will be substantially higher than the net tangible book value per share of our common stock. Therefore, if you purchase shares of our common stock in this offering, you
will pay a price per share that substantially exceeds our net tangible book value per share after this offering. To the extent additional shares of common stock are subsequently issued, you will incur further dilution. Based on an assumed public
offering price of $0.12 per share, you will experience immediate dilution of $0.081 per share, representing the difference between our as adjusted net tangible book value per share, after giving effect to this offering, and the assumed initial public
offering price.
We have broad discretion in the use of the net proceeds from this offering and may not use them effectively.
We cannot specify with certainty all of our potential uses for the estimated net proceeds we will receive from this offering. Our management will have broad discretion in the application of the net proceeds.
Accordingly, you will have to rely upon the judgment of our management with respect to the use of the proceeds, with only limited information concerning management’s specific intentions. Our management may spend a portion or all of the net proceeds
from this offering in ways that our stockholders may not desire or that may not yield a favorable return. The failure by our management to apply these funds effectively could harm our business. Pending its use, we may invest the net proceeds from
this offering in a manner that does not produce income or that loses value.
If equity research analysts do not publish research or reports about our business or if they issue unfavorable commentary or downgrade our common stock, the price of our common
stock could decline.
The trading market for our common stock relies in part on the research and reports that equity research analysts publish about us and our business. We do not control these analysts. The price of our common stock could
decline if one or more equity analyst downgrades our stock or if analysts downgrade our stock or issue other unfavorable commentary or cease publishing reports about us or our business.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains projections and statements relating to us that constitute “forward-looking statements.” These forward-looking statements may be identified by the use of predictive, future-tense or
forward-looking terminology, such as “intends,” “believes,” “anticipates,” “expects,” “estimates,” “may,” “will,” “might,” “outlook,” “could,” “would,” “pursue,” “target,” “project,” “plan,” “seek,” “should,” “assume,” or similar terms or the
negatives thereof, although not all forward-looking statements contain those identifying words. Such statements speak only as of the
date of such statement, and we undertake no ongoing obligation to update such statements. These statements appear in a number of places in this prospectus and include statements regarding the intent, belief or current
expectations of the Company with respect to, among other things:
Potential investors are cautioned that any such forward-looking statements are not guarantees of future performance and involve significant risks and uncertainties, and that, should conditions change or should any one
or more of the risks or uncertainties materialize or should any of the underlying assumptions prove incorrect, actual results may differ materially from those projected in the forward-looking statements as a result of various factors, some of which
are unknown. The factors that could adversely affect the actual results and performance of the Company include the fact that:
Potential investors are urged to carefully consider such factors. All forward-looking statements attributable to the Company or persons acting on its behalf are expressly qualified in their entirety by the foregoing
cautionary statements and the “Risk Factors” described herein.
We estimate that the net proceeds from our issuance and sale of shares of our common stock in this offering will be approximately $12,600,000, assuming a public offering price of $0.12 per share and the exercise of
underlying warrants with an exercise price of $0.15 per warrant share.
We intend to use substantially all of the net proceeds from this offering to fund business operations, including the development and sale of our products, and for working capital and general corporate purposes.
The shares of common stock to be sold will be sold at a fixed price of $0.12 per share until such time as our shares are listed on a national securities exchange or quoted on the OTC Bulletin Board, OTCQX or OTCQB, at
which time the shares may be sold at prevailing market prices or in privately negotiated transactions.
This expected use of net proceeds from this offering represents our intentions based upon our current plans and business conditions. The amounts and timing of our actual expenditures may vary significantly depending on
numerous factors. As a result, our management will retain broad discretion over the allocation of the net proceeds from this offering. We may find it necessary or advisable to use the net proceeds from this offering for other purposes, and we will
have broad discretion in the application of net proceeds from this offering.
Pending their use, we plan to invest the net proceeds in investment-grade, short-term, interest-bearing securities.
PLAN OF DISTRIBUTION; TERMS OF THE OFFERING
This Prospectus relates to the resale of 193,317,186 shares of common stock by the selling stockholders and 20,331,658 shares of common stock
underlying warrants held by our selling stockholders. The table below sets forth information with respect to the resale of shares of common stock by the selling stockholders. We will not receive any proceeds from the resale of common stock
by the selling stockholders for shares currently outstanding, but we will receive proceeds from the sale of our newly issued common shares, as well as any exercise of warrants to be issued to new investors, as well as the exercise of warrants held by
our selling shareholders. Except as described in footnotes below, none of the selling stockholders have had a material relationship with us since our inception.
Selling Shareholders
All shares included in the original registration statement were issued pursuant to Regulation S or Section 4(a)(2).
Our common stock is currently traded on the OTC Pink Marketplace under the symbol “WOWI”.
The Offering price of the shares has been arbitrarily determined by us based on estimates of the price that purchasers of speculative securities, such as the shares offered herein, will be willing to pay considering
the nature and capital structure of our Company, the experience of the officers and Directors, and the market conditions for the sale of equity securities in similar companies. The Offering price of the shares bears no relationship to the assets,
earnings or book value of our Company, or any other objective standard of value. We believe that only a small number of shares, if any, will be sold by the selling shareholders, prior to the time our common stock is quoted on the OTCQB at which time
the selling shareholders will sell their shares based on the market price of such shares. Until such time, the shares will be sold at a fixed price of $0.12 per share.
The Selling Security Holders may pledge their shares to their brokers under the margin provisions of customer agreements. If a Selling Security Holder defaults on a margin loan, the broker may, from time to time, offer
and sell the pledged shares.
The anti-manipulation provisions of Regulation M under the Securities Exchange Act of 1934 will apply to purchases and sales of shares of Common Stock by the Selling Security Holders. Additionally, there are
restrictions on market-making activities by persons engaged in the distribution of the shares. Neither Selling Security Holders nor their agents shall bid for, purchase, or attempt to induce any person to bid for or purchase shares of our Common
Stock while they are distributing shares covered by this Prospectus.
Accordingly, the Selling Security Holders are not permitted to cover short sales by purchasing shares while the distribution is taking place. We will advise the Selling Security Holders that if a particular offer of
Common Stock is to be made on terms materially different from the information set forth in this Plan of Distribution, then a post-effective amendment to the accompanying Registration Statement must be filed with the Securities and Exchange
Commission.
Broker-dealers engaged by the Selling Security Holders may arrange for other broker-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the Selling Security Holders (or, if any
broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be negotiated. It is not expected that these commissions and discounts will exceed what is customary in the types of transactions involved.
The Selling Security Holders may be deemed to be an "underwriter" within the meaning of the Securities Act in connection with such sales. Therefore, any commissions received by such broker-dealers or agents and any
profit on the resale of the shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act.
Penny Stock Regulation
Our Common Shares are not quoted on any stock exchange or quotation system. The SEC has adopted rules that regulate broker-dealer practices in connection with transactions in penny stocks. Penny stocks are generally
equity securities with a price of less than $5.00 (other than securities registered on certain national securities exchanges or quoted on the NASDAQ system, provided that current price and volume information with respect to transactions in such
securities is provided by the exchange system).
The penny stock rules require a broker-dealer, prior to a transaction in a penny stock not otherwise exempt from those rules, to deliver a standardized risk disclosure document prepared by the SEC, that:
The broker-dealer also must provide the customer with the following, prior to proceeding with any transaction in a penny stock:
In addition, the penny stock rules require that prior to a transaction in a penny stock not otherwise exempt from those rules, the broker-dealer must make a special written determination that the penny stock is a
suitable investment for the purchaser and receive the purchaser’s written acknowledgment of the receipt of a risk disclosure statement and a signed and dated copy of a written suitability statement. These disclosure requirements will have the effect
of reducing the trading activity in the secondary market for our stock because it will be subject to these penny stock rules. Therefore, stockholders may have difficulty selling those securities.
Offering Period and Expiration Date
This Offering will start on the date this Registration Statement is declared effective by the SEC and continue for a period of 365 days. We may extend the offering period for an additional 90 days, unless the Offering
is completed or otherwise terminated by us.
MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
Our common stock is quoted on the OTC Pink market, under the symbol “WOWI”.
The following table sets forth the range of high and low bid prices of our common stock as reported and summarized on the OTC Pink market, as applicable, for the periods indicated. These prices are
based on inter-dealer bid and asked prices, without markup, markdown, commissions, or adjustments and may not represent actual transactions.
Holders of Our Common Stock
As of the date of this prospectus, we have 56 registered holders of common stock and there are 257,920,700 shares of our common stock outstanding.
We have never declared or paid any cash dividends on our common stock and we do not anticipate paying any cash dividends on our common stock for the foreseeable future. The payment of dividends on common stock, if any,
in the future is within the discretion of our board of directors and will depend on our earnings, capital requirements and financial condition and other relevant facts. We currently intend to retain all future earnings, if any, to finance the
development and growth of our business.
The following table presents a summary of our cash and cash equivalents and capitalization as of September 30, 2021:
The unaudited as adjusted information below is prepared for illustrative purposes only and our capitalization following the completion of this offering will be adjusted based on the actual public offering price and
other terms of this offering determined at pricing. You should read the following table in conjunction with “Selected Financial Data”, “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the historical
financial statements and related notes thereto included elsewhere in this prospectus.
*Assumes Offering is fully subscribed for total gross proceeds for $9,600,000 from the sale of 80,000,000 at $0.12 per shares.
If you purchase shares in this offering your interest will be diluted immediately to the extent of the difference between the assumed public offering price of $0.12 per share and the as adjusted net tangible book value
per share of our common stock immediately following this offering. Net tangible book value dilution per share to new investors represents the difference between the amount per share paid by purchasers in this offering and the as adjusted net tangible
book value per share of common stock immediately after completion of this offering.
Our net tangible book value as of September 30, 2021 was approximately $29,806, or approximately $0.00012 per share. Net tangible book value per share represents our total tangible assets less total tangible
liabilities, excluding goodwill and customer relationship intangibles, divided by the number of shares of common stock outstanding as of January 31, 2022.
After giving effect to the sale of shares of our common stock in this offering at an offering price of $0.12 per share, our as adjusted net tangible book value as of September 30, 2021, would have been $9,629,806, or
$0.02850 per share. This represents an immediate increase in as adjusted net tangible book value of approximately $0.02838 per share to our existing stockholders, and an immediate dilution of $0.0915 per share to purchasers of shares in this
offering, as illustrated in the following table:
The number of shares of our common stock that will be outstanding immediately after this offering is based on 257,920,700 shares of our common stock outstanding as of February 1, 2022, and excludes:
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
You should read the following discussion and analysis of our financial condition and results of operations together with the section entitled “Selected Financial Data” and our financial statements
and related notes included elsewhere in this Information Statement. Some of the information contained in this discussion and analysis or set forth elsewhere in this Information Statement, including information with respect to our plans and strategy
for our business and related financing, includes forward-looking statements that involve risks and uncertainties. See “Cautionary Note Regarding Forward-Looking Statements.” Our actual results may differ materially from those described below. You
should read the “Risk Factors” section of this Information Statement for a discussion of important factors that could cause actual results to differ materially from the results described in or implied by the forward-looking statements contained in
the following discussion and analysis.
Overview
Our Mission.
We enable retailers to grow their business, using mobile commerce to better engage their customers, both in-store and online – no code required.
Our Objective
Metro One Telecommunications, Inc., is focused on changing the way retailers integrate mobile commerce solutions within their business. Our multi-model, plug and play mobile commerce platform enables retailers to launch their own branded mobile application serving as an additional sales channel in a matter of a few hours – no code required.
Through our recently acquired Israeli tech company, Stratford Ltd., the Company will continue to merge the functionality of mobile technology, artificial intellegence "AI", and Machine learning enabling retailers to
quickly and easily bring their business online to significantly(1):
Currently we are in the process of transforming our existing suite of products to a fully modular SaaS based platform. This will enable us to scale the company significantly, onboarding multiple retailers
simultaneously without any additional integration costs.
Highlights
The following are highlights of our operating results for the nine months ended September 30, 2021:
3 Shelfy recorded performance VS. Commonly served retail shopping apps - statistics taken from Dutch client: Kruidvat
As we continue to onboard additional customers for our current software offerings and complete the development of a secondary SaaS mobile suite, we believe that the recently acquired Shelfy software suite will generate
increasing revenues period over period. Historically, the Company was not generating revenue from its operations. While we expect our operational expenses to continue to exceed incoming revenues until such time as our secondary product
effectively launches its full suite of solutions, with Enterprise clients as our main target market, planned for the first quarter of 2023, we believe that the Company has sufficient time to obtain a customer base of
at least 500 subscribers. We expect to continue to onboard new customers on a monthly basis. While we continue to develop and expand our primary business operations during fiscal 2022, our revenues are not expected to be sufficient to meet our
ongoing expenses. The recently acquired mobile software assets generated $124,008 of income during the nine months ended September 30, 2021. We believe that by fiscal 2023, our wholly owned operating subsidiary will experience 200-300 % annual
growth, speedily enabling us to generate sufficient cash flow internally to meet our needs.
1 Shelfy recorded performance VS. Commonly served retail shopping apps - statistics taken from Dutch client: Kruidvat
Recent Developments
On March 30, 2021, the Company announced that its newly-formed, wholly owned Israeli subsidiary, Stratford Ltd. had received notification of approval from the Lod District Court in Israel for its winning bid to acquire
assets of Royal App, Ltd. out of insolvency proceedings for approximately $2.4 million USD in cash as well as 8% equity in the Company on a diluted basis, post conversion of the Company’s preferred common stock and certain other proposed sales of
common stock in order to raise the required funds to complete the acquisition, (the “Recapitalization”).
Royal App, Ltd., is the developer of Shelfy, a white label, headless mobile commerce software platform that helps retailers and fast moving consumer goods companies become growth companies. The Shelfy product
incorporates sophisticated artificial intelligence and machine learning in its algorithms to markedly improve online shopping metrics through mobile phones for large consumer retailers such as supermarket chains, food and other clients.
To finance the acquisition as well as general working capital, the Company proposed to raise up to $3.5 million commencing March 2021 in the form of puttable Simple Agreements for Future Equity (“SAFE”) from
institutional investors and family offices. The terms of the SAFE require that they automatically convert into common stock of the Company following the conversion of all outstanding convertible preferred stock into common stock. The Company’s
intent was to undertake the conversion of preferred stock in the quarter ended September 30, 2021, following shareholder approval of certain proposed corporate restructure plans.
Subsequent to the conversion of the preferred stock, and as part of the agreement for the acquisition of the assets of Royal App, Ltd., the Company also agreed to issue common stock for commission fees of 2% of the
Company’s common stock on a diluted basis, and to the employees of Stratford as to 8% of the Company on a diluted basis, under the terms of an Employee Stock Option Plan, once approved by Shareholders. Further, in order to undertake these issuances,
the Company was required to increase the authorized common stock of the Company.
On June 9, 2021, the Company announced a Stockholders’ meeting to be held on June 30, 2021 to approve the following actions:
The meeting was held on June 30, 2021, and the Company’s shareholders approved all of the actions detailed above, as well as the conversion of 1,000 outstanding shares of Company’s Series A convertible preferred stock
whereby each 1 share of Preferred stock held is convertible into 71,683.25 shares of common stock. As a result, during the period ended September 30, 2021, the holders of the Company’s Series A convertible preferred stock successfully converted
their holdings into 71,683,250 shares of Common Stock and the Board issued the remaining securities as agreed under the Acquisition Agreement including 22,647,751 shares to the Trustee as part of the asset acquisition costs and 5,661,938 shares to
the agent as financing costs. Further a total of $3.25 million raised in the form of SAFES were converted into a total of 126,614,436 shares of common stock at $0.02567 per share.
Subsequent to September 30, 2021, the Company closed an additional $1,881,000 as part of our PIPE offering, by way of the sale of an additional 25,079,999 Units at $0.075 per Unit, each Unit consisting of one share of
common stock and one-half warrant for exercise at $0.0975 per share.
Subsequent to September 30, 2021, the Company granted the following stock options under its 2021 Stock Incentive Plan:
Subsequent to September 30, 2021, the Company granted 7,791,658 stock purchase warrants to one of its financing agents, exercisable for a period of two years from the date of grant at $0.02567 per share.
Uncertainties in our Business
We believe that the key uncertainties in our business are as follows:
Results of Operations
Three Months Ended September 30, 2021 and September 30, 2020
Revenue
We have generated $74,025 in revenue during the three months ended September 30, 2021 compared to $0 during the three months ended September 30, 2020.
Net Loss
We had a net loss of $656,430 in the three months ended September 30, 2021 compared to a net loss of $16,344 in the three months ended September 30, 2020, as follows:
Operating Expenses
Total operating expenses for the three months ended September 30, 2021 were $730,455 compared to total operating expenses of $16,344 for the three months ended September 30, 2020. The increase in operating expenses
during the three months ended September 30, 2021 is a direct result of the incorporation of our wholly owned subsidiary Stratford Ltd. during the first quarter of fiscal 2021, and the subsequent acquisition of certain assets in the form of a mobile
software application which the Company commenced operating in the second quarter of fiscal 2021. As a result the Company expended $266,342 in the current three months ended September 30, 2021 compared to $0 in the prior three month period ended
September 30, 2020 on research and development, $43,439 on sales and marketing compared to $0 in the prior comparative three month period, $142,342 on management fees compared to $12,000 in the prior comparative three month period and $268,491 on
general and administrative expenses, including salaries, compared to $4,344 in the prior three month period. Finance costs of $9,916 related to agents’ fees in respect to our current PIPE in the current three months ended September 30, 2021 had no
comparable expenditure in the prior comparative three months ended September 30, 2020.
Nine Months Ended September 30, 2021 and September 30, 2020
Revenue
We generated $124,008 in revenue during the nine months ended September 30, 2021 compared to $0 during the nine months ended September 30, 2020.
Net Loss
We had a net loss of $1,567,563 for the nine month period ended September 30, 2021 compared to a net loss of $49,512 for the nine month period ended September 30, 2020, as follows:
Operating Expenses
Total operating expenses for the nine months ended September 30, 2021 were $1,691,571 compared to total operating expenses of $49,512 for the nine months ended September 30, 2020. The increase in operating expenses
during the nine months ended September 30, 2021 is a direct result of the incorporation of our wholly owned subsidiary Stratford Ltd. During the first quarter of fiscal 2021, and the subsequent acquisition of certain assets in the form of a mobile
software application which the Company commenced operating in the second quarter of fiscal 2021. As a result, the Company expended $448,078 in the nine months ended September 30, 2021 compared to $0 in the prior nine month period ended September 30,
2020 on research and development, $78,284 on sales and marketing compared to $0 in the prior comparative nine month period, $223,708 on management fees compared to $36,000 in the prior comparative nine month period and $565,645 on general and
administrative expenses, including salaries, compared to $13,512 in the prior nine month period. Finance costs of $375,856 related to agents’ fees in respect to our SAFE and PIPE financing closed in the nine months ended September 30, 2021. We had
no comparable expenditures in the prior comparative nine months ended September 30, 2020.
Operating Activities
Net cash used in operating activities was $944,465 for the nine months ended September 30, 2021 compared to net cash provided by operating activities of $2,673 for the nine months ended September 30, 2020. Net cash
used in operating activities for the nine months ended September 30, 2021 was primarily the result of a net loss, offset by non-cash financing fees of $283,096 and changes to operating assets and liabilities, including an increase to prepaid expenses
of $2,000, an increase to accounts receivable of $9,622, an increase to prepaid expenses of $32,002, and increases to other current assets of $40,690 and an increase to accounts payable of $422,316. Net cash provided by operating activities for the
nine months ended September 30, 2020 was primarily the result of net loss, offset by changes to operating assets and liabilities, including a decrease to other current assets of $27,000 and an increase to accounts payable of $8,841.
Investing Activities
The Company purchased assets for a cash value of $2,147,661 during the nine months ended September 30, 2021 with no comparable results in the prior comparative nine months ended September 30, 2020.
Financing Activities
Net cash provided by financing activities during the nine months ended September 30, 2021 totaled $3,525,000 in proceeds from the sale of restricted common shares at $0.02567 under our SAFE offering compared to $0 in
net cash from financing activities during the prior comparative nine months ended September 30, 2020.
For the years ended December 31, 2020 and December 31, 2019
Results of Operations
Revenue
We did not generate any revenue in the fiscal years ended December 31, 2020 and 2019.
Operating Expenses
For the years ended December 31, 2020 and 2019 we had the following operating expenses:
Total operating expenses for the year ended December 31, 2020 were $53,236 as compared to $103,277 for the year ended December 31, 2019. During each of the years ended December 31, 2020, and 2019, the Company incurred
$48,000 in directors fees. Legal fees totaled $13,899 in the year ended 2020 compared to $33,848 in the year ended 2019. The decrease in legal fees is primarily related to a decrease of acquisition target due diligence review work performed by legal
counsel during fiscal 2020. Other general and administrative expenses including transfer agent fees, bookkeeping fees and office rent totaled $18,928 in fiscal 2020, offset by a credit to total expense of ($27,592) related to a refund of certain
expenses in the fiscal year, compared to $21,429 in general and administrative expenses in fiscal 2019.
Net Loss
We had a net loss of $53,236 in the year ended December 31, 2020 compared to a net loss of $103,277 in the year ended December 31, 2019.
Statement of Cash Flows
The following table summarizes our cash flows for the period presented:
Cash Provided by (Used in) Operating Activities
During the year ended December 31, 2020 cash provided by operating expenses totaled $22,961and consisted of our net loss of $53,236 offset by a decrease in prepaid costs of $27,000 as prior issued deposits were
returned to the Company, and an increase to accounts payable of $49,197 as compared to the year ended December 31, 2019, where we used cash of $128,299 which included our net loss of $103,277 offset by an increase to prepaid costs of $27,000 and an
increase to accounts payable of $1,978.
Cash Provided by Investing Activities
There was no cash provided by investing activities for the years ended December 31, 2020 and 2019.
Cash Provided by Financing Activities
There was no cash provided by investing activities for the years ended December 31, 2020 and 2019.
Liquidity and Capital Resources
As of September 30, 2021, we had cash of $449,574. We are in the early stage of development having recently acquired certain assets through a bankruptcy proceeding that the Company has only recently begun to operate.
We have experienced net losses to date and have generated modest revenue from operations which raises substantial doubt about our ability to continue as a going concern. While we have raised additional proceeds by way of the sale of units including
a share of common stock and one half warrant subsequent to September 30, 2021 totaling $1,881,000, we do not currently have sufficient resources to meet all our anticipated expenses for fiscal 2022. We will require substantial additional funds for
operations in order to meet our software development and business expansion objectives. There can be no assurance that financing, whether debt or equity, will be available to us in the amount required at any particular time or for any particular
period or, if available, that it can be obtained on terms favorable to us. If additional funds are raised by the issuance of equity securities, then existing stockholders will experience dilution of their ownership interest. If additional funds are
raised by the issuance of debt or other equity instruments, we may be subject to certain limitations in our operations, and issuance of such securities may have rights senior to those of the then existing stockholders. We currently have no
agreements, arrangements or understandings with any person or entity to obtain funds through bank loans, lines of credit or any other sources.
As we monitor the full impact of the COVID-19 outbreak, we continue exploring sources of debt and equity financings as well as available grants. There can be no assurance the necessary financing will be available to
meet our timeline. We continue to onboard additional customers for our existing software suite on a monthly basis, however we do not believe revenues from operations in fiscal 2022 will be sufficient to meet our operational overhead. Without
additional financing, we do not believe our resources will be sufficient to meet our operating and capital needs beyond the second quarter of 2022.
Additional financing
During March and April of 2021, we entered into Simple Agreements for Future Equity (“SAFE”), whereby we sold an aggregate of 126,614,436 shares of our common stock. As part of our SAFE offering,
we received gross proceeds of $3,250,000. The proceeds were primarily used to acquire assets from the Trustee in Bankruptcy for Royal App, Ltd., an Israeli corporation.
During September through November of 2021, we effected a private investment into public equity (“PIPE”) offering, whereby we issued 25,079,999 shares of common stock and 12,540,000 warrants to
purchase common stock exercisable at a price of $0.0975 per share. We received gross proceeds of $1,881,000 from the sale of the shares of common stock as part of the PIPE offering, which funds will be used for working capital purposes.
Working Capital
Current assets are primarily comprised of cash, customer accounts receivable, prepaid expenses and other current assets including refundable taxes (VAT).
Current liabilities consist of accounts payable and accrued liabilities.
Going Concern
Our financial statements have been prepared assuming that we will continue as a going concern and, accordingly, do not include adjustments relating to the recoverability and realization of assets and classification of
liabilities that might be necessary should we be unable to continue in operation. Our report from our independent registered public accounting firm for the fiscal year ended December 31, 2020 includes an explanatory paragraph stating the Company has
recurring losses and limited operations which raise substantial doubt about its ability to continue as a going concern. If the Company is unable to obtain adequate capital, the Company may be required to reduce the scope, delay, or eliminate some or
all of its planned operations. These factors, among others, raise substantial doubt about the Company’s ability to continue as a going concern.
Off-Balance Sheet Arrangements
As of September 30, 2021, we have not entered into any transaction, agreement or other contractual arrangement with an entity unconsolidated under which it has:
Effects of Inflation
We do not believe that inflation has had a material impact on our business, revenues or operating results during the periods presented.
Critical Accounting Policies and Estimates
Our significant accounting policies are more fully described in the notes to our consolidated financial statements included herein for the quarter ended September 30, 2021.
Foreign Currency Translation
The Company uses the U.S. Dollar as the reporting currency for its financial statements. Functional currency is the currency of the primary economic environment in which an entity operates. The functional currency of
the Company’s wholly owned subsidiary is the Israeli Shekel.
Assets and liabilities of the Company’s subsidiary are translated into U.S. Dollars at period-end foreign exchange rates, and revenues and expenses are translated at average rates prevailing throughout the period.
Translation adjustments are included in “Accumulated other comprehensive income” as a separate component of stockholders’ equity, and in the “Effect of exchange rate changes on cash and cash equivalents,” on the Company’s consolidated statements of
cash flows. Transaction gains and losses including intercompany transactions denominated in a currency other than the functional currency of the entity involved are included in “General and Administrative” on the Company’s consolidated statements of
operations.
Goodwill
Goodwill represents the excess of the purchase price of the acquisition over the net fair value of identifiable assets acquired and liabilities assumed. Goodwill amounts are not amortized.
Intangible Assets
The Company generally recognizes assets for customer relationships, developed technology, and finite-lived trade names from an acquisition. Finite-lived intangible assets are carried at acquisition cost less
accumulated amortization. Such amortization is recorded on a straight-line basis over the estimated useful lives of the respective assets, generally from 3 to 8 years. Amortization for developed technology is recognized in cost of revenue.
Amortization for customer relationships and trade names is recognized in sales and marketing expenses.
In the nine month period ended September 30, 2021, the company recorded assets acquired in the cumulative amount of approximately $3.47 million (cash proceeds, share based consideration and the assumption of certain
repayable grants issued by the government of Israel which financed certain development activities related to the intellectual property) purchased through a liquidation proceeding from the trustee for Royal App, Ltd., an Israeli corporation (ref: Note
5), which we recorded as intangible assets. Intangible assets acquired included (1) goodwill; (2) intellectual property and trademarks, including rights in patents in so far as they exist and rights of claim (if and in so far as they exist and are
transferrable) for infringement of the aforementioned intellectual property; and (3) agreements (rights and obligations) with customers. We initially record acquired intangible assets at their estimated fair values and we review these assets
periodically for impairment.
Impairment
The valuation of goodwill at the reporting unit level is reviewed annually during the fourth fiscal quarter or more frequently if facts or changes in circumstances indicate the carrying amount of goodwill may not be
recoverable. The Company presently has one reporting unit; therefore, all of its goodwill is associated with the entire company. Management has the option to first perform a qualitative assessment to determine whether it is more likely than not that
the fair value of the Company is less than the carrying amount, including goodwill. If it is determined that it is more likely than not that the fair value of the Company is less than the carrying amount, a quantitative assessment is performed by
comparing the fair value of a reporting unit with its carrying amount. An impairment charge is recognized for the amount by which the carrying amount exceeds the reporting unit’s fair value, not to exceed the total amount of goodwill allocated to
that reporting unit. The Company also has the option to bypass the qualitative assessment and perform the quantitative assessment.
The Company reviews the valuation of long-lived assets, including property and equipment and finite-lived intangible assets, whenever events or changes in circumstances indicate that the carrying amount of the asset
may not be recoverable. The recoverability of long-lived assets or asset groups is calculated based on the estimated undiscounted future cash flows expected to result from the use and eventual disposition of the asset. Impairment testing is performed
at the asset group level.
Research and Development
Research and development expenses consist primarily of costs associated with the developer of the Royal App, Ltd. system, compensation and other expenses for research and development, personnel, supplies and
development materials, costs for consultants and related contract research and facility costs. Expenditures relating to research and development are expensed as incurred. During the period ended September 30, 2021, the company recorded assets
acquired in the cumulative amount of approximately $3.47 million purchased through a liquidation proceeding from the trustee for Royal App, Ltd., an Israeli corporation, which we recorded as intangible assets. During the nine months ended September
30, 2021 we expensed $266,342 as research and development costs.
Revenue Recognition
The Company has adopted the requirement of Accounting Standards Update, or ASU No. 2014-09 “Revenue from Contracts with Customers (Topic 606)” (“ASU 2014-09”).
We derive our revenues from annual license fees, subscriptions, and customized professional services. We recognize revenues when a contract exists between the Company and a customer and upon transfer of control of
promised products or services to such customer in an amount that reflects the consideration we expect to receive in exchange for those products or services. We enter into contracts that can include various combinations of annual licenses,
subscriptions, customized service contracts and professional services, which may be capable of being distinct and accounted for as separate performance obligations, or in the case of offerings such as annual licenses, subscriptions, services and
support, accounted for as a single performance obligation. Revenues are recognized net of allowances and any taxes collected from customers, which are subsequently remitted to governmental authorities.
We determine revenue recognition through the following steps:
•Identification of the contract, or contracts, with a customer;
•Identification of the performance obligations in the contract;
•Determination of the transaction price;
•Allocation of the transaction price to the performance obligations in the contract; and,
•Recognition of revenues when, or as, the Company satisfies a performance obligation.
Annual License fees and Subscription Revenues
Annual license and subscription revenues primarily consist of fees for providing customers access to a combination of our software offerings including persona-based and per-feature pricing models, where distinct
packages are aligned to a specific type of customer persona based on its size, market segment and physical/online store presence. Each package is different, with prices increasing if there is a need for more advanced functionality. With the
per-feature pricing add-on module, retailers are able to add specific features to their existing mobile application, which enables retailers to keep adding mobile features as the business grows and requires additional functionality. We also provide
routine customer support and maintenance by email and phone, bug fixes, and unspecified software updates and upgrades released when and if available during the maintenance term. Revenues are generally recognized on a ratable basis over the contract
term beginning on the date that our service is made available to the customer, which we believe best reflects the manner in which our customers utilize our subscription offerings. Arrangements with customers do not provide the customer with the
right to take possession of the software supporting application service at any time and, as a result, are accounted for as a service contract. Our subscriptions and licenses have varying terms of service which dictate the revenue recognition on a
contract by contract basis.
Customized Service Revenues
Customized service contract revenues primarily consist of fees for deployment, configuration, and optimization services, and potentially, training. The majority of our professional services contracts are billed on a
fixed price basis, and revenues are recognized over time based on a proportional performance methodology which utilizes input methods. A portion of our customized service contracts may be billed on a time and materials basis and revenues are
recognized over time as the services are performed.
Contracts with Multiple Performance Obligations
Most of our contracts with customers contain multiple performance obligations. For these contracts, we account for individual performance obligations separately if they are distinct. The transaction price is
allocated to the separate performance obligations on a relative standalone selling price (“SSP”) basis. We determine SSP by considering its overall pricing objectives and market conditions. Significant pricing practices taken into consideration
include our discounting practices, the size and volume of our transactions, the scope of customer needs relative to custom services and available subscription services for existing packages, the customer demographic, price lists, our go-to-market
strategy, historical sales, and contract prices. As our go-to-market strategies evolve, we may modify pricing practices in the future, which could result in changes to SSP.
Given the variability of pricing, we use a range of SSP. We determine the SSP range using information that may include market conditions or other observable inputs. We typically have more than one SSP for individual
products and services due to the stratification of products and services by customer size.
Remaining performance obligations (“RPOs”) represent contracted revenues that have not yet been recognized, including deferred revenue and unbilled amounts that we expect will be recognized as revenues in future
periods. Our reported RPO balance is influenced by several factors, including the timing of renewals, average contract terms, and foreign currency exchange rates (if applicable). Because we may enter into multi-year contracts and the timing of
renewal of these contracts may vary by customer, our reported RPOs may fluctuate significantly from period to period, and we do not believe this measure is a useful gauge of our future performance. For these reasons, we do not use RPOs as a tool
for managing our business.
Recent Accounting Pronouncements
The Company has implemented all new accounting pronouncements that are in effect and that may impact its financial statements and does not believe that there are any other new accounting pronouncements that have been
issued that might have a material impact on its financial position or results of operations.
On March 30, 2021, the Company announced that its newly-formed, wholly owned Israeli subsidiary, Stratford Ltd. had received notification of approval from the Lod District Court in Israel for its winning bid to acquire
assets of Royal App, Ltd. out of insolvency proceedings for approximately $2.4 million USD in cash, the assumption of certain repayable government grants with an approximate value of $200,000 USD, as well as 8% equity in the Company on a diluted
basis, post conversion of the Company’s preferred common stock and certain other proposed sales of common stock in order to raise the required funds to complete the acquisition.
Royal App, Ltd., is the developer of Shelfy, a white label, headless mobile commerce software platform that helps retailers and fast moving consumer goods companies become growth companies. The Shelfy product
incorporates sophisticated artificial intelligence and machine learning in its algorithms to markedly improve online shopping metrics through mobile phones for large consumer retailers such as supermarket chains, food and other clients.
To finance the acquisition as well as general working capital, the Company proposed to raise up to $3.5 million commencing March 2021 in the form of puttable Simple Agreements for Future Equity (“SAFE”) from
institutional investors and family offices. The terms of the SAFE required that they automatically converted into common stock of the Company following the conversion of all outstanding convertible preferred stock into common stock.
As a result, during the nine months ended September 30, 2021, the holders of the Company’s Series A convertible preferred stock successfully converted their holdings into 71,683,250 shares of Common Stock and the Board
issued the remaining securities as agreed under the Acquisition Agreement including 22,647,751 shares to the Trustee as part of the asset acquisition costs and 5,661,938 shares to the agent as financing costs. Further a total of $3.25 million raised
in the form of the SAFE offering were converted into a total of 126,614,436 shares of common stock at $0.02567 per share.
Capital Expenditures
Other Capital Expenditures
We expect to incur research and development costs, as well as marketing expenses in connection with the expansion of our business and the development of our products.
Future Contractual Obligations and Commitment
We incur contractual obligations and financial commitments in the normal course of our operations and financing activities. Contractual obligations include future cash payments required under existing contracts, such
as debt and lease agreements. These obligations may result from both general financing activities and from commercial arrangements that are directly supported by related operating activities.
As of September 30, 2021, we have approximately $200,000 in repayable Israeli government grants which are recorded on our balance sheets as an accrued liability. The grants have no specific terms of repayment and are
payable as revenues are generated from our acquired assets at a rate of 3.00% of gross sales proceeds.
Overview
Our Mission.
We enable retailers to grow their business, using mobile commerce to better engage their customers, both in-store and online – no code required.
Our Objective
Metro One Telecommunications, Inc. is focused on changing the way retailers integrate mobile commerce solutions within their business. Our multi-model, plug and play mobile commerce platform enables retailers to launch their own branded mobile application serving as an additional sales channel in a matter of a few hours – no code required.
Through our recently acquired Israeli tech company, Stratford, Ltd, the company will continue to merge the functionality of mobile technology, AI, and Machine learning enabling retailers to quickly
and easily bring their business online with a goal to significantly:
Corporate History
Metro One was originally incorporated in the state of Oregon in 1995. On August 9, 2021, the Company reorganized and filed articles of conversion to be registered under the laws of the state of Delaware.
On April 16, 2008, we were notified by The Nasdaq Stock Market that we were not in compliance with Nasdaq Marketplace Rule 4310(c)(4) (the “Minimum Bid Price Rule”) because shares of our common stock had closed at a
per share bid price of less than $1.00 for 30 consecutive business days. In accordance with Marketplace Rule 4310(c)(8)(D), we had been provided 180 calendar days, or until October 13, 2008, to regain compliance with the Minimum Bid Price Rule. In
addition, on May 22, 2008, we were notified by The Nasdaq Stock Market that we no longer were in compliance with Nasdaq Marketplace Rule 4310(c)(3) and were subject to delisting from the Nasdaq Capital Market. Marketplace Rule 4310(c)(3) requires
that we maintain stockholders’ equity of at least $2.5 million, or a market value of our listed securities of at least $35.0 million, or have net income from continuing operations of at least $500,000 during the last fiscal year or two of the last
three fiscal years. On July 25, 2008, we received a Nasdaq staff determination letter rejecting the plan we had submitted to evidence our ability to achieve compliance with the requirements for continued listing on The Nasdaq Capital Market set
forth in Nasdaq Marketplace Rule 4310(c)(3). We appealed the Nasdaq staff’s determination to delist our securities from The Nasdaq Capital Market effective August 5, 2008, and were scheduled for a hearing before a NASDAQ Listing Qualifications
Panel (the “Panel”) on September 18, 2008. However, on September 16, 2008, we notified the Panel that we were withdrawing our appeal of the July 25, 2008 Nasdaq staff determination. Accordingly, our common stock was suspended from trading effective
at the open of business on Friday, September 19, 2008. The common stock was subsequently delisted on October 7, 2008, when the SEC completed its formal notification of removal from listing. On March 5, 2009 the company filed a Form 15 terminating
its registration under Section 12(g) of the Securities Exchange Act.
During fiscal 2009 through the end of fiscal 2020, the Company determined to wind-down its former operations and subsequently began seeking a viable project of merit. Upon the recent acquisition of the assets of Royal
App in early 2021, the Company has returned to active operations.
Our principal executive offices are located at 30 North Gould Street, Suite 2990, Sheridan, WY 82801, our phone number is (307)-683-0855, our corporate website is www.metro1telecomm.com and our product website is
www.shelfy.io.
We currently have one subsidiary, Stratford, Ltd., incorporated in Israel.
Principal products
Competitive Strengths
It is important to emphasize that we are not app developers -hence our direct competitors are not other app developers. What we provide is a mobile commerce platform that provides retailers software that enables them
to build their own application without one line of code or any development needed from their side.
We differentiate our products primarily through functional points of difference between our products and those of our competitors, including:
Marketing, Sales and Customer Service
Due to the dynamic nature of SaaS platforms and the market sector we are targeting, we have decided to focus on being a product-led
company, and merge the marketing, sales and customer success teams into one department, providing a complete customer-centric approach. This approach gives us a 360 view of the customer journey and ensures that we can act in real-time to acquire
new customers and provide the relevant support when and where needed to retain the customers we have acquired. Using the latest marketing discipline called Product led Growth Hacking and automation we will be able to support and focus on rapid and
optimized growth. Consisting of both a process and a set of cross-disciplinary (digital) skills. The goal is to regularly conduct A/B testing that will lead to improving the customer journey and replicate and scale the ideas that work and modify or
abandon the ones that don't before spending vast amounts of resources. Once a plan has been validated, it is automated and the system works by itself reducing overheads and lowering the cost of customer acquisition (CAC).
To ensure we give retailers the optimal results when using our platform, our focus will not merely be on sales cycles but creating a community where they can learn and grow with plenty of engagement and educational information such as blogs,
webinars, and affiliation programs.
Experienced Leadership Team
The combination of operating skills from our management team with the experience of successfully leading major retail and mobile commerce companies gives our organization a significant strength relative to most small- and medium-sized companies.
Growth Strategies
Our primary long-term goal is to become one of the market leaders within the mobile commerce sector, providing an additional sales channel which merchants and retailers of all sizes can add to their existing business.
We intend to achieve this goal by driving organic growth through our third-party integrated platforms, across all major retail channels where repeat purchases occur and in all major markets where e-commerce has been adapted and in markets where the
use and launch of e-commerce shops are on the rise.
Our key growth strategies include the following:
Recent Developments
On March 30, 2021, the Company announced that its newly-formed, wholly owned Israeli subsidiary, Stratford Ltd. had received notification of approval from the Lod District Court in Israel for its winning bid to acquire
assets of Royal App, Ltd. out of insolvency proceedings for approximately $2.4 million USD in cash as well as 8% equity in the Company on a diluted basis, post conversion of the Company’s preferred common stock and certain other proposed sales of
common stock in order to raise the required funds to complete the acquisition, (the “Recapitalization”).
Royal App, Ltd., is the developer of Shelfy, a white label, headless mobile commerce software platform that helps retailers and fast moving consumer goods companies become growth companies. The Shelfy product
incorporates sophisticated artificial intelligence and machine learning in its algorithms to markedly improve online shopping metrics through mobile phones for large consumer retailers such as supermarket chains, food and other clients.
Sales and Marketing
We currently have an in-house sales and merchandising team whose compensation is highly variable and highly performance-based. Each sales person has individual targets for increasing “base” volume through distribution
expansion, and “incremental” volume. As distribution to new major customers, new major channels, or new major markets increases, we will expand the sales and marketing team on a variable basis.
We market our products using a range of marketing mediums including in-store merchandising and promotions, experiential marketing, events, and sponsorships, digital marketing and social media, direct marketing, and
traditional media including print, radio, outdoor, and TV.
Competition
The mobile commerce industry is highly competitive. We face intense competition from very large, international corporations, as well as from local and national companies. In addition, we face competition from
well-known companies that have large market share.
The intensity of competition in the future is expected to increase and no assurance can be provided that we can sustain our market position or expand our business.
Many of our current and potential competitors are well established and have longer operating histories, significantly greater financial and operational resources, and name recognition than we have. However, we believe
that with our specialized platform and considering that the mobile commerce sector is growing we will have the ability to obtain a large market share, and continue to generate sales and compete in this industry.
Patents and Trademarks
We hold various trademarks and patents in various jurisdictions, all of which were acquired through the liquidation proceedings for Royal App, Ltd. Any encroachment upon our proprietary information, including the
unauthorized use of our brand name, the use of a similar name by a competing company or a lawsuit initiated either by us or against us for infringement upon proprietary information or improper use of a trademark, may affect our ability to create
brand name recognition, cause customer confusion and/or have a detrimental effect on our business due to the cost of defending any potential litigation related to infringement. Litigation or proceedings before the U.S. or International Patent and
Trademark Offices may be necessary in the future to enforce our intellectual property rights, to protect our trade secrets and/or to determine the validity and scope of the proprietary rights of others. Any such litigation or adverse proceeding could
result in substantial costs and diversion of resources and could seriously harm our business operations and/or results of operations.
Our patents and trademarks are set out below:
Government and Industry Regulation
We are subject to a variety of federal, state and local laws and regulations in the U.S. These laws and regulations apply to many aspects of our business including the manufacture, safety, labeling, transportation,
advertising and sale of our products. Violations of these laws or regulations in the advertising of our products could damage our reputation and/or result in regulatory actions with substantial penalties.
We will also subject to the Securities Act, the Securities and Exchange Act of 1934, and Delaware General Corporation Law. We will also be subject to common business and tax rules and regulations pertaining to the
operation of our business, such as the United States Internal Revenue Tax Code and the Delaware State Tax Codes, as well as international tax codes. We will also be subject to proprietary regulations such as United States Trademark and Patent Law as
it applies to the intellectual property of third parties. We believe that the effects of existing or probable governmental regulations will be additional responsibilities of management to ensure that we are in compliance with securities regulations
as they apply to our products as well as ensuring that we do not infringe on any proprietary rights of others with respect to our products. We will also need to maintain accurate financial records in order to remain compliant with securities
regulations as well as any corporate tax liability we incur.
Employees
As of the date of this prospectus, Metro One has no employees, our Chief Executive Officer, Ms. Bianca Meger, and our board of directors, acting as consultants manage our operating activities. Our operating subsidiary,
Stratford Ltd., has 11 full time employees, managed by our Chief Executive Officer, Ms. Bianca Meger.
Property
Our operations internationally are registered at Raul Vallenberg 18, Building D, 6th Floor, Ramat Hachayal, Tel Aviv, Israel, for which we pay approximately $12,000 per month. Our principal executive offices
are located at 30 North Gould Street, Suite 2990, Sheridan, WY 82801, for which we pay $30.00 per month on a month-to-month basis. We consider the current space to be adequate and will reassess our needs based upon future growth.
Directors are elected by the stockholders to a term of one year and serve until their successors are elected and qualified. Officers are appointed by the board of directors to a term of one year and serve until their
successors are duly appointed and qualified, or until the officer is removed from office.
The name, age and position of our officers and directors is set forth below:
Bianca Meger – Chief Executive Officer
Mrs. Meger brings more than 18 years of experience to the Metro One team, having gained extensive global experience in marketing, business development and sales and a proven track record of establishing data-driven,
customer-centric companies. She started her career-launching and managing Motorola’s mobile distribution in Angola, Africa. From there she transitioned to the real estate industry, leading the leasing and marketing department of London-listed Plaza
Center in Central Eastern Europe, specializing in shopping center development, leasing, and operations, and working with leading global retail brands. Over the past nine years she served as the Chief Marketing Officer for various leading tech
companies in Israel, which led to her nomination for the renowned Globes 40 under 40 award. Originally from Africa, she strongly believes in the notion of "it takes a village", and is convinced that sophisticated technology, unique business models
and a proactive regulatory approach can make financial inclusion a reality for all. Mrs. Meger holds a Bachelor of Commerce -BCom Marketing.
Elchanan (Nani) Maoz – President and Director
Mr. Elchanan (Nani) Maoz has been the chairman of Metro One since December 2018. Maoz is the Chairman and Founder of Tel Aviv-based Everest Group. As an active manager of private funds, Mr. Maoz has executed over 30
investments in American, European and Israeli companies, playing an active role in cases that included turnarounds and restructuring. Mr. Maoz has been active in special situations, both in and out of bankruptcy, as a change agent, a director or an
active shareholder/debt holder in order to unlock value for investors. The majority of the cases were very favorably resolved for the investors/funds he represented, including Actrade Financial, Gyrodyne, Concord Camera, ICTS, Simon Worldwide,
Limoneira, and Livermore. Mr. Maoz has served as chair of equity committees, chair of liquidation trust committees and as an active participant in major legal settlements and proceedings, monetizing assets (including intellectual property) related to
distressed equity and debt, both locally and internationally. He currently serves on the board of Metro One Telecommunications, on the Israeli Board of the America Israel Friendship League, and is a director of private software and medical management
service providers as well as on boards of companies of Everest. Mr. Maoz received his B.Sc. in engineering from King's College of the University of London in 1993. Between 1984 and 1988, Mr. Maoz served as commanding officer and a team leader in the
Israeli Special Forces.
Jonah Meer – Secretary and Director
Mr. Meer is an attorney, accountant and entrepreneur. His career spans four decades in the legal, accounting, financial and investment world, both in public and private companies, where he has held numerous executive
and fiduciary positions. This includes a dozen years as Chief Operating Officer of a NYSE member firm. For the last twenty-five years he has served as Managing Member of Trade Global LLC a fintech company providing cross border capital markets
services. In September 2016 he co-founded and serves as Chief Executive Officer of Qrons Inc. (OTCQB:QRON), an innovative biotechnology company dedicated to developing biotech products, treatments and technologies to combat neuronal diseases. Mr.
Meer received his Master of Law degree from New York University School of Law, in addition to holding juris doctor and accounting degrees.
James Alexander Brodie – Treasurer and Director
James Brodie is a successful businessman who has added significant value in many business sectors including healthcare both products and services, wine importation and distribution, air ambulance services, inflight
entertainment and strategic consulting. He has formed and led teams that have successfully started and grown small businesses and as a result has extensive M & A experience. Currently serving as a strategic advisor to Citadel America Asset Group
based in NYC. The group purchases and restores B grade apartment complexes across the southern tier of the US. The group has ~1500 units and is actively seeking additional properties. The group has about $150 million under management. James is also a
partner in the development of a family business J Wilder Importers that designs and imports bespoke shoes, premium leather belts and hand loomed textiles. Products are sourced from Spain, Argentina, Morocco, Tunisia, Greece, Turkey, India and
Australia. Other leadership experience includes being the founding partner of a New York Stock exchange brokerage firm, a board member of the Pink Sheets, and a managing director of Tocqueville Asset Management. He also served as a managing director
in the turnaround of a family officer and trading firm that made markets in over 400+ stocks. Finally, he served as an advisor to the largest operating charity [revenue ~$150] on Long Island, NY where he worked to grow or merge their foundation with
smaller charitable foundations.
Corporate Governance
As soon as practicable following the closing of this offering, our board of directors plans to establish an audit committee, compensation committee and nominating and corporate governance committee. As of the date of
this Prospectus, we do not have any such committees. Each committee will operate under a charter, to be approved by our board of directors in connection with this offering. Following this offering, copies of each charter will be posted in the
Investors section of our website. We expect the functions of our committees, once established, shall be as described below.
Audit Committee
The functions of the Audit Committee will be to (i) review the qualifications of the independent auditors, our annual and interim financial statements, the independent auditor’s report, significant reporting or
operating issues and corporate policies and procedures as they relate to accounting and financial controls; and (ii) to consider and review other matters relating to our financial and accounting affairs.
Compensation Committee
The function of the Compensation Committee will be to discharge the Board’s responsibilities relating to compensation of the Company’s directors and executive officers, to produce an annual report on executive
compensation for inclusion in the Company’s Proxy Statement, as necessary, and to oversee and advise the Board on the adoption of policies that govern the Company’s compensation programs including stock incentive and benefit plans.
Nominating and Governance Committee
The function of the Nominating and Governance Committee is to (i) make recommendations to the Board regarding the size of the Board, (ii) make recommendations to the Board regarding criteria for the selection of
director nominees, (iii) identify and recommend to the Board for selection as director nominees individuals qualified to become members of the Board, (iv) recommend committee assignments to the Board, (v) recommend to the Board corporate governance
principles and practices appropriate to the Company, and (vi) lead the Board in an annual review of its performance.
Director Independence
The Company is quoted on the OTC Pink Marketplace, which does not require director independence requirements. However, NASDAQ requires that a majority of the board of directors must be comprised of Independent
Directors as defined in Rule 5605(a)(2). For purposes of determining director independence, we have applied the definitions set forth in the NASDAQ guidelines which state, generally, that a director is not considered to be independent if he or she
is, or at any time during the past three years was an employee of the Company; or if he or she (or his or her family member) accepted compensation from the Company in excess of $120,000 during any twelve month period within the three years preceding
the determination of independence. Our current directors are not “independent” directors as such term is defined under the NASDAQ rules and the related rules of the SEC.
Board of Director’s Role in Risk Oversight
The Board is responsible for overseeing our management and operations, including overseeing our risk assessment and risk management functions. We believe that our directors provide effective oversight of risk
management functions. On a regular basis we perform a risk review wherein the management team evaluates the risks we expect to face in the upcoming year and over a longer term horizon. From this risk assessment plans are developed to deal with the
risks identified. The results of this risk assessment are provided to the Board for their consideration and review. In addition, members of our management periodically present to the Board the strategies, issues and plans for the areas of our
business for which they are responsible. While the Board oversees risk management, our management is responsible for day-to-day risk management processes. Additionally, the Board requires that management raise exceptional issues to the Board. We
believe this division of responsibilities is the most effective approach for addressing the risks we face and that the Board leadership structure supports this approach.
Code of Business Conduct and Ethics
We have not adopted a written Code of Business Conduct and Ethics that applies to our directors, officers and employees. The Board and our management group plan to adopt a written Code of Business Conduct and Ethics as
soon as practicable following the closing of this offering.
Summary Compensation Table
The following table provides certain information regarding compensation awarded to, earned by or paid to our Chief Executive Officer and any other executive officer with compensation exceeding $100,000 during each of
fiscal 2021 and 2020 (each a "Named Executive Officer"):
(1) Ms. Meger entered into consulting agreements with the Company and its wholly owned subsidiary, Stratford Ltd., respectively effective September 5, 2021 through her controlled corporation SB Meger Consulting,
Management and Investment for total cumulative monthly consideration of NIS58,220 (approximately $18,630 USD).
(2) Represents a four-year option to purchase 5,095,744 shares of common stock at an exercise price of $0.123 per share, with 25% vesting one year from grant date (October 26, 2021), and a further 6.25% vesting each
three months thereafter and the amortized portion of the grant date fair value computed in accordance with ASC Topic 718.
(3) Represents a four-year option to purchase 4,000,000 shares of common stock at an exercise price of $0.02567 per share, exercisable on October 1, 2021 and the grant date fair value computed in accordance with ASC
Topic 718
(4) Represents a four-year option to purchase 2,000,000 shares of common stock at an exercise price of $0.02567 per share, exercisable on October 1, 2021 and the grant date fair value computed in accordance with ASC
Topic 718
Employment Agreements
We have no employment agreements with our officers or directors.
On September 5, 2021, we, and our wholly owned subsidiary, Stratford, Ltd., entered into Consulting Agreements with our Chief Executive Officer, Bianca Meger through her controlled corporation SB Meger Consulting,
Management and Investment. Pursuant to the consulting agreements, Mrs. Meger is to receive total cumulative monthly consideration of NIS58,220 (approximately $18,630 USD).
Equity Compensation Plan Information
On June 30, 2021, we approved the Metro One Telecommunications, Inc. 2021 Stock Incentive Plan (“the Plan”). The Plan provides for the granting of incentive stock options, and options that do not qualify as incentive
stock options. The Plan allows for an issuance of a maximum of up to 77,137,410 shares of our common stock.
Outstanding Equity Awards at Fiscal Year End
Elchanan Maoz holds 4,000,000 options to purchase shares of common stock at an exercise price of $0.02567 per share, which vested on October 1, 2021. Jonah Meer holds 2,000,000 options to purchase shares of common
stock at an exercise price of $0.02567 per share, which vested on October 1, 2021. James Alexander Brodie holds 2,000,000 options to purchase shares of common stock at an exercise price of $0.02567, which vested on October 1, 2021. Bianca Meger
holds 5,095,744 options to purchase shares of common stock at an exercise price of $0.123 per share, which vest as to 25% on the first anniversary of the Vesting Commencement Date with an additional 6.25% vesting at the end of each three (3) month
period until fully vested on the fourth anniversary of the Vesting Commencement Date. All options were issued pursuant to the Company’s 2021 Stock Incentive Plan.
Compensation of Directors
The board of directors has the authority to fix the compensation of directors. During the fiscal years ended December 31, 2021 and 2020 our board members received compensation for their services as members of the Board
of Directors as follows:
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information with respect to the beneficial ownership of the Company’s voting securities as of January 31, 2022, by each person or group of affiliated persons known to the Company to
beneficially own 5% or more of such class of voting securities, each director, each named executive officer, and all of its directors and named executive officers as a group. As of January 31, 2022, there were 257,920,700 shares of common stock
outstanding.. Unless otherwise indicated, the address of each officer and director listed below is c/o Metro One Telecommunications, Inc., 30 North Gould Street, Suite 2990, Sheridan, WY 82801.
The following table gives effect to the shares of common stock issuable within 60 days of January 31, 2022, upon the exercise of all options and other rights beneficially owned by the indicated stockholders on that
date. Unless otherwise indicated, the persons named in the table have sole voting and sole investment control with respect to all shares beneficially owned.
(1) The address for Yaron Elhawi TR UA 02/01/2021 Yaron Elhawi Trust Royal App Ltd in Liquidation is 20 Haharash Street, Tel Aviv, Israel 676131. The trustee
of the trust is Yaron Elhawi.
(2) The address for GT Ventures, Ltd. Is PO Box 146, Road Town, Tortola, British Virgin Islands. The control person for GT Ventures, Ltd. is Trident
Chambers.
(3) Includes 71,683,250 common shares held in the name of Everest Credit LP, 1,130,000 common shares held by Everest Fund LP, 5,661,938 common shares held by
Everest Corporate Finance Ltd., and 858,102 common shares held by Everest Special Situations LP, all entities controlled by the Elchanan Maoz, as well as 4,000,000 options to purchase common stock pursuant to the Company’s 2021 Stock Incentive Plan,
which may be exercised within the next sixty days.
(4) Consists of options to purchase common stock issued pursuant to the Company’s 2021 Stock Incentive Plan, which are exercisable within 60 days.
(5) Consists of options to purchase common stock issued pursuant to the Company’s 2021 Stock Incentive Plan, which are exercisable within 60 days.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
On September 5, 2021, we, and our wholly owned subsidiary, Stratford, Ltd., entered into Consulting Agreements with our Chief Executive Officer, Bianca Meger through her controlled corporation SB Meger Consulting,
Management and Investment. Pursuant to the consulting agreements, Mrs. Meger is to receive total cumulative monthly consideration of NIS58,220 (approximately $18,630 USD).
DESCRIPTION OF SECURITIES
Common Stock
Our authorized capital stock consists of 600,000,000 shares of common stock, no par value per share. The holders of our common stock (i) have equal ratable rights to dividends from funds legally available therefore,
when, as and if declared by its board of directors; (ii) are entitled to share in all of its assets available for distribution to holders of common stock upon liquidation, dissolution or winding up of its affairs; (iii) do not have preemptive,
subscription or conversion rights and there are no redemption or sinking fund provisions or rights; and (iv) are entitled to one non-cumulative vote per share on all matters on which stockholders may vote. As of the date of this prospectus, there are
257,920,700 shares of our common stock issued and outstanding.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare U.S., located at 150 Royall Street, Canton, MA 02021.
Stock Market Listing
Our common stock is quoted on the OTC Pink Marketplace, under the symbol “WOWI.”
Offer Restrictions Outside the United States
Other than in the United States, no action has been taken by us that would permit a public offering of the securities offered by this prospectus in any jurisdiction where action for that purpose is required. The
securities offered by this prospectus may not be offered or sold, directly or indirectly, nor may this prospectus or any other offering material or advertisements in connection with the offer and sale of any such securities be distributed or
published in any jurisdiction, except under circumstances that will result in compliance with the applicable rules and regulations of that jurisdiction. Persons into whose possession this prospectus comes are advised to inform themselves about and to
observe any restrictions relating to the offering and the distribution of this prospectus. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any securities offered by this prospectus in any jurisdiction in
which such an offer or a solicitation is unlawful.
Australia
This prospectus is not a disclosure document under Chapter 6D of the Australian Corporations Act, has not been lodged with the Australian Securities and Investments Commission and does not purport to
include the information required of a disclosure document under Chapter 6D of the Australian Corporations Act. Accordingly, (1) the offer of the securities under this prospectus is only made to persons to whom it is lawful to offer the securities
without disclosure under Chapter 6D of the Australian Corporations Act under one or more exemptions set out in section 708 of the Australian Corporations Act, (2) this prospectus is made available in Australia only to those persons as set forth in
clause (1) above, and (3) the offeree must be sent a notice stating in substance that by accepting this offer, the offeree represents that the offeree is such a person as set forth in clause (1) above, and, unless permitted under the Australian
Corporations Act, agrees not to sell or offer for sale within Australia any of the securities sold to the offeree within 12 months after its transfer for the offeree under this prospectus.
Canada
The securities may be sold in Canada only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in National Instrument 45-106 Prospectus
Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any resale of the securities must be made
in accordance with an exemption from, or in a transaction not subject to, the prospectus requirements of applicable securities laws.
Securities legislation in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if this prospectus (including any amendment thereto) contains a
misrepresentation, provided that the remedies for rescission or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchaser’s province or territory. The purchaser should refer to any
applicable provisions of the securities legislation of the purchaser’s province or territory for particulars of these rights or consult with a legal advisor.
China
The information in this document does not constitute a public offer of the securities, whether by way of sale or subscription, in the People’s Republic of China (excluding, for purposes of this
paragraph, Hong Kong Special Administrative Region, Macau Special Administrative Region and Taiwan). The securities may not be offered or sold directly or indirectly in the PRC to legal or natural persons other than directly to “qualified domestic
institutional investors.”
European Economic Area — Belgium, Germany, Luxembourg and the Netherlands
The information in this document has been prepared on the basis that all offers of common stock will be made pursuant to an exemption under the Directive 2003/71/EC (“Prospectus Directive”), as
implemented in Member States of the European Economic Area (each, a “Relevant Member State”), from the requirement to produce a prospectus for offers of securities.
An offer to the public of common stock has not been made, and may not be made, in a Relevant Member State except pursuant to one of the following exemptions under the Prospectus Directive as
implemented in that Relevant Member State:
France
This document is not being distributed in the context of a public offering of financial securities (offre au public de titres financiers) in France within the
meaning of Article L.411-1 of the French Monetary and Financial Code (Code monétaire et financier) and Articles 211-1 et seq. of the General Regulation of the French Autorité
des marchés financiers (“AMF”). The common stock has not been offered or sold and will not be offered or sold, directly or indirectly, to the public in France.
This document and any other offering material relating to the common stock has not been, and will not be, submitted to the AMF for approval in France and, accordingly, may not be distributed or
caused to distributed, directly or indirectly, to the public in France.
Such offers, sales and distributions have been and shall only be made in France to (i) qualified investors (investisseurs qualifiés) acting for their own
account, as defined in and in accordance with Articles L.411-2-II-2° and D.411-1 to D.411-3, D. 744-1, D.754-1 and D.764-1 of the French Monetary and Financial Code and any implementing regulation and/or (ii) a restricted number of non-qualified
investors (cercle restreint d’investisseurs non-qualifiés) acting for their own account, as defined in and in accordance with Articles L.411-2-II-2° and D.411-4, D.744-1, D.754-1 and D.764-1 of the French
Monetary and Financial Code and any implementing regulation.
Pursuant to Article 211-3 of the General Regulation of the AMF, investors in France are informed that the common stock cannot be distributed (directly or indirectly) to the public by the investors
otherwise than in accordance with Articles L.411-1, L.411-2, L.412-1 and L.621-8 to L.621-8-3 of the French Monetary and Financial Code.
Ireland
The information in this document does not constitute a prospectus under any Irish laws or regulations and this document has not been filed with or approved by any Irish regulatory authority as the
information has not been prepared in the context of a public offering of securities in Ireland within the meaning of the Irish Prospectus (Directive 2003/71/EC) Regulations 2005 (the “Prospectus Regulations”). The common stock has not been offered or
sold, and will not be offered, sold or delivered directly or indirectly in Ireland by way of a public offering, except to (i) qualified investors as defined in Regulation 2(l) of the Prospectus Regulations and (ii) fewer than 100 natural or legal
persons who are not qualified investors.
Israel
The common stock offered by this prospectus have not been approved or disapproved by the Israeli Securities Authority (the ISA), or ISA, nor have such common stock been registered for sale in Israel.
The shares may not be offered or sold, directly or indirectly, to the public in Israel, absent the publication of a prospectus. The ISA has not issued permits, approvals or licenses in connection with the offering or publishing the prospectus; nor
has it authenticated the details included herein, confirmed their reliability or completeness, or rendered an opinion as to the quality of the common stock being offered. Any resale in Israel, directly or indirectly, to the public of the common stock
offered by this prospectus is subject to restrictions on transferability and must be effected only in compliance with the Israeli securities laws and regulations.
Italy
The offering of the common stock in the Republic of Italy has not been authorized by the Italian Securities and Exchange Commission (Commissione Nazionale per le
Società e la Borsa, “CONSOB”) pursuant to the Italian securities legislation and, accordingly, no offering material relating to the common stock may be distributed in Italy and such securities may not
be offered or sold in Italy in a public offer within the meaning of Article 1.1(t) of Legislative Decree No. 58 of 24 February 1998 (“Decree No. 58”), other than:
Any offer, sale or delivery of the common stock or distribution of any offer document relating to the common stock in Italy (excluding placements where a Qualified Investor solicits an offer from the
issuer) under the paragraphs above must be:
Any subsequent distribution of the common stock in Italy must be made in compliance with the public offer and prospectus requirement rules provided under Decree No. 58 and the Regulation No. 11971 as
amended, unless an exception from those rules applies. Failure to comply with such rules may result in the sale of such common stock being declared null and void and in the liability of the entity transferring the common stock for any damages
suffered by the investors.
Japan
The common stock has not been and will not be registered under Article 4, paragraph 1 of the Financial Instruments and Exchange Law of Japan (Law No. 25 of 1948), as amended (the “FIEL”) pursuant to
an exemption from the registration requirements applicable to a private placement of securities to Qualified Institutional Investors (as defined in and in accordance with Article 2, paragraph 3 of the FIEL and the regulations promulgated thereunder).
Accordingly, the common stock may not be offered or sold, directly or indirectly, in Japan or to, or for the benefit of, any resident of Japan other than Qualified Institutional Investors. Any Qualified Institutional Investor who acquires common
stock may not resell them to any person in Japan that is not a Qualified Institutional Investor, and acquisition by any such person of common stock is conditional upon the execution of an agreement to that effect.
Portugal
This document is not being distributed in the context of a public offer of financial securities (oferta pública de valores mobiliários) in Portugal, within
the meaning of Article 109 of the Portuguese Securities Code (Código dos Valores Mobiliários). The common stock has not been offered or sold and will not be offered or sold, directly or indirectly, to the
public in Portugal. This document and any other offering material relating to the common stock has not been, and will not be, submitted to the Portuguese Securities Market Commission (Comissão do Mercado de Valores
Mobiliários) for approval in Portugal and, accordingly, may not be distributed or caused to distributed, directly or indirectly, to the public in Portugal, other than under circumstances that are deemed not to qualify as a public offer under
the Portuguese Securities Code. Such offers, sales and distributions of common stock in Portugal are limited to persons who are “qualified investors” (as defined in the Portuguese Securities Code). Only such investors may receive this document and
they may not distribute it or the information contained in it to any other person.
Sweden
This document has not been, and will not be, registered with or approved by Finansinspektionen (the Swedish Financial Supervisory Authority). Accordingly,
this document may not be made available, nor may the common stock be offered for sale in Sweden, other than under circumstances that are deemed not to require a prospectus under the Swedish Financial Instruments Trading Act (1991:980) (Sw. lag (1991:980) om handel med finansiella instrument). Any offering of common stock in Sweden is limited to persons who are “qualified investors” (as defined in the Financial Instruments Trading Act). Only such
investors may receive this document and they may not distribute it or the information contained in it to any other person.
Switzerland
The common stock may not be publicly offered in Switzerland and will not be listed on the SIX Swiss Exchange (“SIX”) or on any other stock exchange or regulated trading facility in Switzerland. This
document has been prepared without regard to the disclosure standards for issuance prospectuses under art. 652a or art. 1156 of the Swiss Code of Obligations or the disclosure standards for listing prospectuses under art. 27 ff. of the SIX Listing
Rules or the listing rules of any other stock exchange or regulated trading facility in Switzerland. Neither this document nor any other offering material relating to the common stock may be publicly distributed or otherwise made publicly available
in Switzerland.
Neither this document nor any other offering material relating to the common stock has been or will be filed with or approved by any Swiss regulatory authority. In particular, this document will not
be filed with, and the offer of common stock will not be supervised by, the Swiss Financial Market Supervisory Authority (FINMA).
This document is personal to the recipient only and not for general circulation in Switzerland.
United Arab Emirates
Neither this document nor the common stock have been approved, disapproved or passed on in any way by the Central Bank of the United Arab Emirates or any other governmental authority in the United
Arab Emirates, nor have we received authorization or licensing from the Central Bank of the United Arab Emirates or any other governmental authority in the United Arab Emirates to market or sell the common stock within the United Arab Emirates. This
document does not constitute and may not be used for the purpose of an offer or invitation. No services relating to the common stock, including the receipt of applications and/or the allotment or redemption of such shares, may be rendered within the
United Arab Emirates by us.
No offer or invitation to subscribe for common stock is valid or permitted in the Dubai International Financial Centre.
United Kingdom
Neither the information in this document nor any other document relating to the offer has been delivered for approval to the Financial Services Authority in the United Kingdom and no prospectus
(within the meaning of section 85 of the Financial Services and Markets Act 2000, as amended (“FSMA”)) has been published or is intended to be published in respect of the common stock. This document is issued on a confidential basis to “qualified
investors” (within the meaning of section 86(7) of FSMA) in the United Kingdom, and the common stock may not be offered or sold in the United Kingdom by means of this document, any accompanying letter or any other document, except in circumstances
that do not require the publication of a prospectus pursuant to section 86(1) FSMA. This document should not be distributed, published or reproduced, in whole or in part, nor may its contents be disclosed by recipients to any other person in the
United Kingdom.
Any invitation or inducement to engage in investment activity (within the meaning of section 21 of FSMA) received in connection with the issue or sale of the common stock has only been communicated
or caused to be communicated and will only be communicated or caused to be communicated in the United Kingdom in circumstances in which section 21(1) of FSMA does not apply to us.
In the United Kingdom, this document is being distributed only to, and is directed at, persons (i) who have professional experience in matters relating to investments falling within Article 19(5)
(investment professionals) of the Financial Services and Markets Act 2000 (Financial Promotions) Order 2005 (“FPO”), (ii) who fall within the categories of persons referred to in Article 49(2)(a) to (d) (high net worth companies, unincorporated
associations, etc.) of the FPO or (iii) to whom it may otherwise be lawfully communicated (together “relevant persons”). The investments to which this document relates are available only to, and any invitation, offer or agreement to purchase will be
engaged in only with, relevant persons. Any person who is not a relevant person should not act or rely on this document or any of its contents.
The validity of the securities being offered by this prospectus has been passed upon for us by Smith Eilers, PLLC, Wilmington, North Carolina.
The financial statements as of September 30, 2021, and for each of the two years in the period ended December 31, 2020 and 2019 included in the Registration Statement as it applies to us, have been so included in
reliance on the report of Gries & Associates, PLLC, an independent registered public accounting firm, (the report on the financial statements contains an explanatory paragraph regarding our ability to continue as a going concern.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We have filed with the Securities and Exchange Commission, Washington, D.C. 20549, under the Securities Act, a registration statement on Form S-1 relating to the shares of common stock offered hereby. This prospectus
does not contain all of the information set forth in the registration statement and the exhibits and schedules thereto. For further information with respect to our Company and the shares we are offering by this prospectus you should refer to the
registration statement, including the exhibits and schedules thereto. You may inspect a copy of the registration statement without charge at the Public Reference Section of the Securities and Exchange Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549. The public may obtain information on the operation of the Public Reference Room by calling the Securities and Exchange Commission. The Securities and Exchange Commission also maintains an Internet site that contains reports,
proxy and information statements and other information regarding registrants that file electronically with the Securities and Exchange Commission. The Securities and Exchange Commission’s World Wide Web address is http://www.sec.gov.
We will, upon effectiveness of the registration statement, file periodic reports, proxy statements and other information with the Securities and Exchange Commission in accordance with requirements of the Exchange Act.
These periodic reports, proxy statements and other information are available for inspection and copying at the regional offices, public reference facilities and Internet site of the Securities and Exchange Commission referred to above.
Information contained on our website is not a prospectus and does not constitute a part of this prospectus.
You should rely only on the information contained in or provided in this prospectus. We have not authorized anyone else to provide you with different information. We are not making an offer of these securities in any
state where the offer is not permitted. You should not assume the information in this prospectus is accurate as of any date other than the date on the front of this prospectus.
METRO ONE TELECOMMUNICATIONS, INC.
INDEX TO THE FINANCIAL STATEMENTS
Metro One Telecommunications, Inc.
TABLE OF CONTENTS FOR UNAUDITED CONDENSED
CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2021 and 2020
Metro One Telecommunications, Inc.
Condensed
Consolidated Balance Sheets
(Unaudited)
*Upon a recapitalization and a reorganization of the Company from Oregon to Delaware effective August 9, 2021, the Preferred stock was eliminated with the Series A Convertible Preferred stock having prior converted to shares of common stock.
The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
Metro One Telecommunications, Inc.
Condensed Consolidated Statements of Operations
and Other Comprehensive Income
(Unaudited)
The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
Metro One Telecommunications, Inc.
Condensed Consolidated Statements of Stockholders’ (Deficit)
(Unaudited)
*Upon a recapitalization and a reorganization of the Company from Oregon to Delaware effective August 9, 2021, the Preferred stock was eliminated with the Series A Convertible Preferred stock having prior converted to
shares of common stock.
The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
Metro One Telecommunications, Inc.
Condensed Consolidated Statements of Cash Flows
(Unaudited)
The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
Metro One Telecommunications, Inc.
Notes to Unaudited Condensed Consolidated Financial Statements
For The Three and Nine Months Ended September 30, 2021
NOTE 1 - NATURE OF OPERATIONS
Historical Information:
The Company was incorporated in the State of Oregon on February 8, 1989, as Metro One Direct Information Services Inc. On December 12, 1995, we changed our name to Metro One Telecommunications Inc. The Company
was formerly in the business of providing directory assistance service to subscribers through carrier contracts starting with its first contract in 1991. Previously the Company was contracted with a number of wireless carriers, voice over
internet protocol providers, cable companies and various other carriers both free and prepaid providing live operator directory assistance services to the carriers’ subscribers and users. Revenues were historically derived principally through fees
charged to telecommunications carriers.
Starting in 2005, the Company went through a number of restructures of its business in an attempt to retain market share in a rapidly evolving technology and telecommunications industry.
In March 2008, the Company decided to exit the wholesale directory assistance business, but to continue to pursue growth in the Company’s small data services business which it had concurrently developed.
As of September 2008, the Company had closed all of its call centers and approximately 700 employees were terminated.
In conjunction with the closures, the Company sold a majority of its patent and trademarks to raise funds to continue operations.
Further, during 2008, the Company voluntarily deregistered its common stock under the Securities Exchange Act of 1934. With that action the Company moved from the OTC Markets Bulletin Board to the OTC Markets Pink
Sheets.
The Company was unsuccessful in pursuing its then current business and ceased filing any current information reports with OTC Markets in fiscal 2009.
Current Information:
Certain of the officers and directors of the Company maintained the Company’s registration as an Oregon corporation while seeking other business opportunities for the Company and its stockholders between fiscal 2009
and current date.
On March 30, 2021, the Company announced that its newly-formed, wholly owned Israeli subsidiary, Stratford Ltd. had received notification of approval from the Lod District Court in Israel for its winning bid to
acquire assets of Royal App Ltd. out of insolvency proceedings for approximately $2.4 million USD in cash, the assumption of $200,000 in repayable government grants, as well as 8% equity in the Company on a diluted basis, post conversion of the
Company’s preferred common stock and certain other proposed sales of common stock in order to raise the required funds to complete the acquisition, the “Recapitalization”.
Royal App is the developer of Shelfy, a white label, headless mobile commerce software platform that helps retailers and fast moving consumer goods companies become growth companies. Shelfy incorporates
sophisticated artificial intelligence and machine learning in its algorithms to markedly improve online shopping metrics through mobile phones for large consumer retailers such as supermarket chains, food and other clients. Prior to its recent
insolvency filing, more than $20 million had been invested in Royal App.
Metro One Telecommunications, Inc.
Notes to Unaudited Condensed Consolidated Financial Statements
For The Three and Nine Months Ended September 30, 2021
NOTE 1 - NATURE OF OPERATIONS
Description of Business:
Current Information (continued)
If the Recapitalization of the Company is not approved by the shareholders and the 8% of the Company Capitalization is not issued to the bankruptcy trustee within 120 days from the date of the closing of the
Acquisition, or April 26, 2021, the trustee, who holds a pledge over the assets of Royal App purchased by Stratford, may foreclose on such assets. Any foreclosure will result in the transfer of the ownership of Royal App assets purchased by
Stratford, from Stratford to the trustee for the creditors of Royal App. The transactions as contemplated above were successfully completed during the quarter ended September 30, 2021, and the Trustee has released its pledge over the assets.
To finance the acquisition as well as general working capital, the Company proposed to raise up to $3.5 million commencing March 2021 in the form of puttable Simple Agreements for Future Equity (“SAFES”) from
institutional investors and family offices. The terms of the SAFES require that they automatically convert into common stock of the Company following the conversion of all outstanding convertible preferred stock into common stock. The Company’s
intent was to undertake the conversion of preferred stock in the quarter ended September 30, 2021, following shareholder approval of certain proposed corporate restructure plans.
Subsequent to the conversion of the preferred stock, and as part of the agreement for the acquisition of the assets of Royal App the Company also agreed to issue common stock for commission fees of 2% of the
Company’s common stock on a diluted basis, and to the employees of Stratford as to 8% of the Company on a diluted basis, under the terms of an Employee Stock Option Plan, once approved by Shareholders. Further, in order to undertake these
issuances, the Company was required to increase the authorized common stock of the Company.
On June 9, 2021, the Company announced a Stockholders’ meeting to be held on June 30, 2021 to approve the following actions:
The meeting was held on June 30, 2021, and the Company’s shareholders approved all of the actions detailed above, as well as the conversion of 1,000 outstanding shares of Company’s Series A convertible preferred
stock whereby each 1 share of Preferred stock held is convertible into 71,683.25 shares of common stock. As a result, during the period ended September 30, 2021, the holders of the Company’s Series A convertible preferred stock successfully
converted their holdings into 71,683,250 shares of Common Stock and the Board issued the remaining securities as agreed under the Acquisition Agreement including 22,647,751 shares to the Trustee as part of the asset acquisition costs and 5,661,938
shares to the agent as financing costs. Further a total of $3.25 million raised in the form of SAFES were converted into a total of 126,614,436 shares of common stock at $0.02567 per share. On August 9, 2021 the Company redomiciled and filed
articles of conversion moving its registration to the State of Delaware.
Metro One Telecommunications, Inc.
Notes to Unaudited Condensed Consolidated Financial Statements
For The Three and Nine Months Ended September 30, 2021
NOTE 1 - NATURE OF OPERATIONS
Description of Business:
Current Information (continued)
During the period ended September 30, 2021, the Company undertook a second financing by way of Private Investment in Public Equity ("PIPE") in the form of unregistered Units at $0.075, each Unit consisting of a
share of Common Stock and ½ share purchase warrant for exercise for a period of two years form the date of grant at $0.975 per share. The Company accepted subscriptions in the period for a total of $275,000 in gross proceeds with respect to the
sale of 3,666,666 Units. The Company expects to close this financing on or about October 31, 2021, and expects to raise up to $2M in gross proceeds. Certain of the PIPE investments have agent fees payable at a rate of 4.25%.
NOTE 2 – GOING CONCERN
The accompanying financial statements have been prepared assuming the continuation of the Company as a going concern. The Company has recently acquired operating assets, is generating modest revenues, and is in the
process of pursuing expansion of its new business venture. The Company has not yet established an ongoing source of revenues sufficient to cover its operating costs and is dependent on debt and equity financing to fund its operations. The
accompanying financial statements do not include any adjustments to reflect the possible future effects on the recoverability and classification of assets or the amounts and classification of liabilities that may result from the possible inability
of the Company to continue as a going concern. Management’s plans for the continuation of the Company as a going concern include financing the Company’s operations through issuance of its common stock, conducting revenue generating operations or
expanding the Company’s existing business operations to acquire projects which generate additional revenue. If the Company is unable to complete its financing requirements or achieve net profits as projected, it will then modify its expenditures
and plan of operations to coincide with the actual financing completed and actual operating revenues, if any. The Company is currently seeking a further equity financing of up to $15 million US Dollars to meet ongoing capital requirements.
There are no assurances the Company will succeed in implementing its plans. Unless otherwise indicated, amounts provided in these notes to the financial statements pertain to continuing operations.
COVID-19
The recent COVID-19 pandemic could have an adverse impact on the Company going forward. COVID-19 has caused significant disruptions to the global financial markets, which may severely impact the Company’s ability to
raise additional capital and to pursue certain contracts. The Company may be required to cease operations if it is unable to finance its’ operations. The full impact of the COVID-19 outbreak continues to evolve as of the date of this report and is
highly uncertain and subject to change. Management is actively monitoring the situation but given the daily evolution of the COVID-19 outbreak, the Company is not able to estimate the effects of the COVID-19 outbreak on its operations or financial
condition in the next 12 months. There are no assurances that the Company will be able to meet its obligations, raise funds or conclude the acquisition of identified businesses. Further upon acquisition of any target businesses there is no
guarantee these operations will be profitable.
NOTE 3 - USE OF ESTIMATES IN THE PREPARATION OF FINANCIAL STATEMENTS
The preparation of financial statements in conformity with Generally Accepted Accounting Principles (GAAP) requires management to make estimates and assumptions that affect the reported amounts of assets and
liabilities, and disclosure of contingent assets and liabilities, at the date of these financial statements, and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
Metro One Telecommunications, Inc.
Notes to Unaudited Condensed Consolidated Financial Statements
For The Three and Nine Months Ended September 30, 2021
NOTE 4 – SUMMARY OF ACCOUNTING POLICIES
Fiscal Year end
The Company has selected December 31 as its fiscal year end.
Basis of Presentation
The accompanying unaudited financial statements have been prepared in accordance with generally accepted accounting principles (US GAAP). In the opinion of management, all adjustments considered necessary for a
fair presentation have been included. All such adjustments are of a normal recurring nature.
Basis of Consolidation
These consolidated financial statements include the accounts of the Company and its 100% controlled Israeli subsidiary, Stratford Ltd (“Stratford”) as of September 30, 2021. All significant intercompany accounting
transactions have been eliminated as a result of consolidation.
Cash and Cash Equivalents
The Company considers all highly liquid investments with an original maturity of three months or less to be cash equivalents.
Foreign Currency Translation
The Company uses the U.S. Dollar as the reporting currency for its financial statements. Functional currency is the currency of the primary economic environment in which an entity operates. The functional currency of
the Company’s wholly owned subsidiary is the Israeli Shekel.
Assets and liabilities of the Company’s subsidiary are translated into U.S. Dollars at period-end foreign exchange rates, and revenues and expenses are translated at average rates prevailing throughout the period.
Translation adjustments are included in “Accumulated other comprehensive income” as a separate component of stockholders’ equity, and in the “Effect of exchange rate changes on cash and cash equivalents,” on the Company’s consolidated statements of
cash flows. Transaction gains and losses including intercompany transactions denominated in a currency other than the functional currency of the entity involved are included in “General and Administrative” on the Company’s consolidated statements
of operations.
Accumulated Other Comprehensive Income (Loss)
Accumulated other comprehensive income (loss) includes foreign currency translation adjustments related to the Company’s subsidiary in Israel and is excluded from the accompanying consolidated statements of
operations.
Goodwill
Goodwill represents the excess of the purchase price of the acquisition over the net fair value of identifiable assets acquired and liabilities assumed. Goodwill amounts are not amortized.
Metro One Telecommunications, Inc.
Notes to Unaudited Condensed Consolidated Financial Statements
For The Three and Nine Months Ended September 30, 2021
NOTE 4 – SUMMARY OF ACCOUNTING POLICIES (continued)
Intangible Assets
The Company generally recognizes assets for customer relationships, developed technology, and finite-lived trade names from an acquisition. Finite-lived intangible assets are carried at acquisition cost less
accumulated amortization. Such amortization is recorded on a straight-line basis over the estimated useful lives of the respective assets, generally from 3 to 8 years. Amortization for developed technology is recognized in cost of revenue.
Amortization for customer relationships and trade names is recognized in sales and marketing expenses.
In the nine month period ended September 30, 2021, the company recorded assets acquired in the cumulative amount of approximately $3.47 million (cash proceeds, share based consideration and the assumption of certain
repayable grants issued by the government of Israel which financed certain development activities related to the intellectual property) purchased through a liquidation proceeding from the trustee for Royal App Ltd., an Israeli corporation (ref:
Note 5), which we recorded as intangible assets. Intangible assets acquired included (1) goodwill; (2) intellectual property and trademarks, including rights in patents in so far as they exist and rights of claim (if and in so far as they exist and
are transferrable) for infringement of the aforementioned intellectual property; and (3) agreements (rights and obligations) with customers. We initially record acquired intangible assets at their estimated fair values and we review these assets
periodically for impairment.
Impairment
The valuation of goodwill at the reporting unit level is reviewed annually during the fourth fiscal quarter or more frequently if facts or changes in circumstances indicate the carrying amount of goodwill may not be
recoverable. The Company presently has one reporting unit; therefore, all of its goodwill is associated with the entire company. Management has the option to first perform a qualitative assessment to determine whether it is more likely than not
that the fair value of the Company is less than the carrying amount, including goodwill. If it is determined that it is more likely than not that the fair value of the Company is less than the carrying amount, a quantitative assessment is performed
by comparing the fair value of a reporting unit with its carrying amount. An impairment charge is recognized for the amount by which the carrying amount exceeds the reporting unit’s fair value, not to exceed the total amount of goodwill allocated
to that reporting unit. The Company also has the option to bypass the qualitative assessment and perform the quantitative assessment.
The Company reviews the valuation of long-lived assets, including property and equipment and finite-lived intangible assets, whenever events or changes in circumstances indicate that the carrying amount of the asset
may not be recoverable. The recoverability of long-lived assets or asset groups is calculated based on the estimated undiscounted future cash flows expected to result from the use and eventual disposition of the asset. Impairment testing is
performed at the asset group level.
Research and Development
Research and development expenses consist primarily of costs associated with the developer of Royal App system, compensation and other expenses for research and development, personnel, supplies and development
materials, costs for consultants and related contract research and facility costs. Expenditures relating to research and development are expensed as incurred. In the period ended September 30, 2021, the company recorded assets acquired in the
cumulative amount of approximately $3.47 million purchased through a liquidation proceeding from the trustee for Royal App Ltd., an Israeli corporation (ref: Note 5), which we recorded as intangible assets. During the nine months ended September
30, 2021 we expensed $266,342 as research and development costs in the accompanying Condensed Consolidated Statements of Operations.
Metro One Telecommunications, Inc.
Notes to Unaudited Condensed Consolidated Financial Statements
For The Three and Nine Months Ended September 30, 2021
NOTE 4 – SUMMARY OF ACCOUNTING POLICIES (continued)
Fair Value of Financial Instruments
Fair value is defined as the price that would be received from selling an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. When determining the fair
value for applicable assets and liabilities, we consider the principal or most advantageous market in which we would transact and we consider assumptions market participants would use when pricing the asset or liability, such as inherent risk,
transfer restrictions, and risk of nonperformance. This guidance also establishes a fair value hierarchy to prioritize inputs used in measuring fair value as follows:
The Company’s financial instruments include cash, accounts payable, related party loans and a demand promissory note. The carrying amounts of cash and accounts payable approximate their fair value, due to the
short-term nature of these items.
Revenue Recognition
The Company has adopted the requirement of Accounting Standards Update, or ASU No. 2014-09 “Revenue from Contracts with Customers (Topic 606)” (“ASU 2014-09”).
We derive our revenues from annual license fees, subscriptions, and customized professional services. We recognize revenues when a contract exists between the Company and a customer and upon transfer of control of
promised products or services to such customer in an amount that reflects the consideration we expect to receive in exchange for those products or services. We enter into contracts that can include various combinations of annual licenses,
subscriptions, customized service contracts and professional services, which may be capable of being distinct and accounted for as separate performance obligations, or in the case of offerings such as annual licenses, subscriptions, services and
support, accounted for as a single performance obligation. Revenues are recognized net of allowances and any taxes collected from customers, which are subsequently remitted to governmental authorities.
We determine revenue recognition through the following steps:
•Identification of the contract, or contracts, with a customer;
•Identification of the performance obligations in the contract;
•Determination of the transaction price;
•Allocation of the transaction price to the performance obligations in the contract; and
•Recognition of revenues when, or as, the Company satisfies a performance obligation
Annual License fees and Subscription Revenues
Annual license and subscription revenues primarily consist of fees for providing customers access to a combination of our software offerings including persona-based and per-feature pricing models, where distinct
packages are aligned to a specific type of customer persona based on its size, market segment and physical/online store presence. Each package is very different than the next with prices increasing as the functionality does.
Metro One Telecommunications, Inc.
Notes to Unaudited Condensed Consolidated Financial Statements
For The Three and Nine Months Ended September 30, 2021
NOTE 4 – SUMMARY OF ACCOUNTING POLICIES (continued)
Revenue Recognition (cont’d)
Annual License fees and Subscription Revenues (cont’d)
We also provide routine customer support and maintenance related to email and phone support, bug fixes, and unspecified software updates and upgrades released when and if available during the maintenance term.
Revenues are generally recognized on a ratable basis over the contract term beginning on the date that our service is made available to the customer, which we believe best reflects the manner in which our customers utilize our subscription
offerings. Arrangements with customers do not provide the customer with the right to take possession of the software supporting application service at any time and, as a result, are accounted for as a service contract. Our subscriptions and
licenses have varying terms of service which dictate the revenue recognition on a contract by contract basis.
Customized Service Revenues
Customized service contract revenues primarily consist of fees for deployment, configuration, and optimization services, and potentially, training. The majority of our professional services contracts are billed on
a fixed price basis, and revenues are recognized over time based on a proportional performance methodology which utilizes input methods. A portion of our customized service contracts may be billed on a time and materials basis and revenues are
recognized over time as the services are performed.
Contracts with Multiple Performance Obligations
Most of our contracts with customers contain multiple performance obligations. For these contracts, we account for individual performance obligations separately if they are distinct. The transaction price is
allocated to the separate performance obligations on a relative standalone selling price (“SSP”) basis. We determine SSP by considering its overall pricing objectives and market conditions. Significant pricing practices taken into consideration
include our discounting practices, the size and volume of our transactions, the scope of customer needs relative to custom services and available subscription services for existing packages, the customer demographic, price lists, our go-to-market
strategy, historical sales, and contract prices. As our go-to-market strategies evolve, we may modify pricing practices in the future, which could result in changes to SSP.
Given the variability of pricing, we use a range of SSP. We determine the SSP range using information that may include market conditions or other observable inputs. We typically have more than one SSP for
individual products and services due to the stratification of products and services by customer size.
Remaining performance obligations (RPOs) represent contracted revenues that have not yet been recognized, including deferred revenue and unbilled amounts that we expect will be recognized as revenues in future
periods. Our reported RPO balance is influenced by several factors, including the timing of renewals, average contract terms, and foreign currency exchange rates (if applicable). Because we may enter into multi-year contracts and the timing of
renewal of these contracts varies by customer, our reported RPOs may fluctuate significantly from period to period, and we do not believe this measure is a useful gauge of our future performance. For these reasons, we do not use RPOs as a tool
for managing our business.
Income Taxes
Income taxes are recognized in accordance with ASC 740, “Income Taxes”, whereby deferred income tax liabilities or assets at the end of each period are determined using the tax rate expected to be in effect when the
taxes are actually paid or recovered. A valuation allowance is recognized on deferred tax assets when it is more likely than not that some or all of these deferred tax assets will not be realized.
Metro One Telecommunications, Inc.
Notes to Unaudited Condensed Consolidated Financial Statements
For The Three and Nine Months Ended September 30, 2021
NOTE 4 – SUMMARY OF ACCOUNTING POLICIES (continued)
Basic and Diluted Net Income (Loss) Per Share
In accordance with ASC Topic 260 – Earnings Per Share, the basic loss per common share is computed by dividing net loss available to common stockholders by the weighted average number of common stock outstanding.
Diluted loss per common share is computed similar to basic loss per common share except that the denominator is increased to include the number of additional shares of common stock that would have been outstanding if the potential common stock had
been issued and if the additional shares of common stock were dilutive.
Potential common stock consists of the incremental common stock issuable upon convertible notes, stock options and warrants and classes of shares with conversion features. The computation of basic loss per share for
the periods ended September 30, 2021 and December 31, 2020 excludes potentially dilutive securities of underlying preferred shares, because their inclusion would be antidilutive. As a result, the computations of net loss per share for each period
presented is the same for both basic and fully diluted.
Recent Accounting Pronouncements
The Company has implemented all new accounting pronouncements that are in effect and that may impact its financial statements and does not believe that there are any other new accounting pronouncements that have been
issued that might have a material impact on its financial position or results of operations.
NOTE 5 – ACQUISITION OF ASSETS
During March 2021 the Company entered into an agreement, (the “Agreement”,) for the purchase of certain assets of Royal App Ltd., a corporation incorporated in Israel, through a liquidation proceeding approved by the
Lod District Court (Israel) within the framework of Insolvency Case 53873-01-21. On April 26, 2021, the Company completed a cash payment to the trustee for the acquisition of the identified assets, and the assets were effectively transferred to
the Company’s controlled subsidiary, Stratford Ltd.
Assets acquired included (1) goodwill; (2) intellectual property and trademarks, including rights in patents in so far as they exist and rights of claim (if and in so far as they exist and are transferrable) for
infringement of the aforementioned intellectual property; (3) agreements (rights and obligations) with customers and, (4) certain equipment and fixed assets. Liabilities acquired included certain repayable government grants.
In consideration for the assets acquired the Company paid $2,140,288 (net of VAT), assumed approximately $200,000 USD in repayable government grants, which grants are repayable at a rate of 3% of gross sales until
retired in full, and agreed to issue 8% of the Company’s issued and outstanding shares on a diluted basis, following the issuance of certain share capital in respect to the sale of common shares under SAFES, the conversion of 1,000 shares of Series
A preferred stock to common stock and an estimate of shares expected to be issued for certain warrants and employee stock options during fiscal 2021. The consideration shares are to be issued to the bankruptcy trustee within 120 days from the date
of the closing of the acquisition, April 26, 2021. The trustee, who holds a pledge over the assets of Royal App purchased by Stratford Ltd., may foreclose on such assets in the event the consideration shares are not issued as required under the
terms of the Agreement. Any foreclosure will result in the transfer of the ownership of Royal App assets purchased by Stratford, from Stratford to the trustee for the creditors of Royal App. The 22,647,751 consideration shares were issued to the
trustee in August 2021 and were valued at the fair market value on the date of issue or $967,853 (net of VAT), as part of the acquisition consideration.
The Company has recorded the acquired assets on the Company’s balance sheets as Intangible Assets as of the date of acquisition and is currently reviewing the assets for further classification. The Company intends to
complete impairment testing on all acquired assets no later than the close of fiscal 2021.
Metro One Telecommunications, Inc.
Notes to Unaudited Condensed Consolidated Financial Statements
For The Three and Nine Months Ended September 30, 2021
NOTE 5 – ACQUISITION OF ASSETS (continued)
The Company also paid a transaction fee of 2% of the diluted share capital by way of the issuance of 5,661,938 common shares to Everest Corporate Finance Ltd., a company of which our President is an officer, director
and shareholder. The shares were valued at fair market value or $283,096 which amount was expensed as a finance cost.
NOTE 6 – PRIVATE PLACEMENT
Simple Agreements for Future Equity
Investor deposits consist of $3,250,000 in gross proceeds received in the form of puttable Simple Agreements for Future Equity (“SAFES”) from institutional investors and family offices during the period ended June
30, 2021. The terms of the SAFES require that they automatically convert into restricted, unregistered shares of common stock of the Company following the conversion of all outstanding convertible preferred stock into common stock at such price
per share equal to the fully diluted capital post conversion of the preferred stock divided by $2,000,000, or $0.02567 per share. On August 20, 2021, 126,614,436 unregistered restricted shares of common stock in exchange for 3.25M in proceeds from
SAFES.
Private Investment in Public Equity (“PIPE”)
During the period ended September 30, 2021, the Company received gross proceeds of $275,000 from accredited investors in the form of PIPES and completed the sale of 3,666,666 units at a price of $0.075 per unit where
each unit consists of one share of common stock and one-half of one share purchase warrant. Each warrant is exercisable into one share of common stock at a price of $0.0975 expiring in two years. The Company intends to raise up to $2 million prior
to the close October 31, 2021, through PIPES.
NOTE 7 – CAPITAL STOCK AND ADDITIONAL PAID-IN CAPITAL
Common Stock and Preferred Stock
Up to August 9, 2021, Company had authorized 50,000,000 shares of Common stock, no par value and 10,000,000 shares of Preferred stock, no par value, of which 1,385 shares have been designated Series A convertible
preferred stock with a liquidation preference of $10,000 per share. Holders of convertible preferred stock, when voting with the holders of our common stock, are entitled to an approximate 0.856 vote for each share of common stock into which the
Series A convertible preferred stock registered in the shareholder’s name can be converted. Each share of Series A convertible preferred Stock is convertible into approximately 71,683.25 shares of common stock. In addition, the holders of the
convertible preferred stock were entitled to elect a majority of the members of our Board of Directors. On August 9, 2021 the Company filed articles of conversion moving its registration to the State of Delaware and amending the articles of the
Company to increase the authorized shares of the Company from 50,000,000 to 600,000,000, no par value, and eliminating the Preferred stock
.
During the three months ended September 30, 2021, the Company issued the following shares of common stock:
Metro One Telecommunications, Inc.
Notes to Unaudited Condensed Consolidated Financial Statements
For The Three and Nine Months Ended September 30, 2021
NOTE 7 – CAPITAL STOCK AND ADDITIONAL PAID-IN CAPITAL (continued)
Common Stock and Preferred Stock (cont’d)
On September 9 and September 27, 2021, the Company issued 2,666,666 and 1,000,000 units at $0.075 each for gross proceeds of $200,000 and $75,000, respectively in the form of
PIPES. Each unit consists of one common share and one-half of one share purchase warrant. Each warrant will entitle the holder to purchase one common share for $0.0975 expired in two years.
On September 30, 2021 and December 31, 2020 the Company had 236,507,367 and 6,233,326 shares of common stock issued and outstanding, respectively, and 0 and 1,000 shares of Series A Preferred stock issued and
outstanding, respectively.
Stock Purchase Warrants
The following warrants were outstanding as at September 30, 2021:
Warrant transactions are summarized as follows:
The following weighted average assumptions were used for the Black-Scholes pricing model valuation of warrants issued during the nine months period ended September 30 to
allocate the proceeds between common stock and additional paid-in capital:
Metro One Telecommunications, Inc.
Notes to Unaudited Condensed Consolidated Financial Statements
For The Three and Nine Months Ended September 30, 2021
NOTE 8 –RELATED PARTIES TRANSACTIONS
Key management compensation
Key management personnel are persons responsible for planning, directing and controlling the activities of the entity, and include all directors and officers.
At September 30, 2021, accounts payable and accrued liabilities included $41,062 of management fees with respect to key management compensation.
NOTE 9 – SUBSEQUENT EVENTS
Subsequent to September 30, 2021, the Company closed an additional $1,576,000 in PIPES by way of the sale of an additional 21,013,333 Units at $0.075 per Unit, each Unit consisting of one share of common stock and
one-half warrant for exercise at $0.0975 per share. The Company paid agent commissions on $1.376 M in proceeds at 4.25% for a total of $58,480 in financing costs.
Subsequent to September 30, 2021, the Company granted the following Stock options under its 2021 Employee Stock Incentive Plan:
Subsequent to September 30, 2021, the Company granted 7,791,658 Stock Purchase Warrants to one of its financing agents, exercisable for a period of two years from the date of grant at $0.02567 per share.
The Company has evaluated events for the period from September 30, 2021, through the date of the issuance of these financial statements and determined that there are no additional events requiring disclosure.
Metro One Telecommunications, Inc.
FINANCIAL STATEMENTS
Years ended December 31, 2020 and 2019
With Report of Independent Registered Public Accounting Firm
REPORT OF INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM
To the Board of Directors and Stockholders
Metro One Telecommunications, Inc.
Report on the Financial Statements
We have audited the accompanying balance sheets of Metro One Telecommunications, Inc. (the Company), which
comprise the balance sheets as of December 31, 2020 and 2019, respectively, and the related statements of Operations, Changes in Stockholder’s Equity, and Cash Flows for the years then ended, and the related notes to the financial statements.
Management’s Responsibility for the Financial Statements
Management is responsible for the preparation and fair presentation of these financial statements in accordance with accounting principles
generally accepted in the United States of America; this includes the design, implementation, and maintenance of internal control relevant to the preparation and fair presentation of financial statements that are free from material
misstatement, whether due to fraud or error.
Auditor’s Responsibility
Our responsibility is to express an opinion on these financial statements based on our audit. We conducted our audit in accordance with
auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free from material misstatements.
An audit involves performing procedures to obtain audit evidence about the amounts and disclosures in the financial statements. The
procedures selected depend on the auditor’s judgment, including the assessment of the risks of material misstatement of the financial statements, whether due to fraud or error. In making those risk assessments, the auditor considers internal
control relevant to the entity’s preparation and fair presentation of the financial statements in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness
of the entity’s internal control. Accordingly, we express no such opinion. An audit also includes evaluating the appropriateness of accounting policies used and the reasonableness of significant accounting estimates made by management, as well
as evaluating the overall presentation of the financial statements. We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our audit opinion.
Emphasis of Matter Regarding Going Concern
The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As described in Note 2
to the financial statements, the Company has not generated any revenues since inception and sustained a net loss of $52,236 for the year under audit and has accumulated losses of $132,275,047. These factors, among others, raise substantial
doubt about the Company’s ability to continue as a going concern. Management’s plans in regard to these matters are also described in Note 2. The financial statements do not include any adjustments that might result from the outcome of this
uncertainty. Our opinion is not modified with respect to this matter.
Opinion
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Metro One Telecommunications, Inc.
as of December 31, 2020 and 2019, respectively, and the results of its operations and its cash flows for the years then ended in accordance with accounting principles generally accepted in the United States of America.
Emphasis of Matters-Risks and Uncertainties
The Company is not able to predict the ultimate impact that COVID
-19 will have on its business. However, if the current economic conditions continue, the pandemic could have an adverse impact on the economies and
financial markets of many countries, including the geographical area in which the Company plans to operate.
blaze@griesandassociates.com
501 S. Cherry Street Suite 1100, Denver, Colorado 80246
(O)720-464-2875 (M)773-255-5631 (F)720-222-5846
Metro One Telecommunications, Inc.
The accompanying notes are an integral part of these audited financial statements.
Metro One Telecommunications, Inc.
The accompanying notes are an integral part of these audited financial statements.
Metro One Telecommunications, Inc.
Statements of Stockholders’ Equity (Deficit)
The accompanying notes are an integral part of these audited financial statements.
Metro One Telecommunications, Inc.
The accompanying notes are an integral part of these condensed financial statements.
Metro One Telecommunications, Inc.
Notes to Audited Financial Statements
December 31, 2020 and 2019
NOTE 1 - NATURE OF OPERATIONS
Description of Business:
Historical Information:
The Company was incorporated in the State of Oregon on February 8, 1989, as Metro One Direct Information Services Inc. On December 12, 1995, we changed our name to Metro One Telecommunications Inc. The Company
was formerly in the business of providing directory assistance service to subscribers through carrier contracts starting with its first contract in 1991. Previously the Company was contracted with a number of wireless carriers, voice over
internet protocol providers, cable companies and various other carriers both free and prepaid providing live operator directory assistance services to the carriers’ subscribers and users. Revenues were historically derived principally through fees
charged to telecommunications carriers.
Starting in 2005, the Company went through a number of restructures of its business in an attempt to retain market share in a rapidly evolving technology and telecommunications industry.
In March 2008, the Company decided to exit the wholesale directory assistance business, but to continue to pursue growth in the Company’s small data services business which it had concurrently developed.
As of September 2008, the Company had closed all of its call centers and approximately 700 employees were terminated.
In conjunction with the closures, the Company sold a majority of its patent and trademarks to raise funds to continue operations.
Further, during 2008, the Company voluntarily deregistered its common stock under the Securities Exchange Act of 1934. With that action the Company moved from the OTC Markets Bulletin Board to the OTC Markets Pink
Sheets.
The Company was unsuccessful in pursuing its then current business and ceased filing any current information reports with OTC Markets in fiscal 2009.
Current Information:
Certain of the officers and directors of the Company maintained the Company’s registration as an Oregon corporation while seeking other business opportunities for the Company and its stockholders between fiscal 2009
and current date. Presently the Company is negotiating on the acquisition of certain assets from an Israeli corporation in liquidation.
NOTE 2 – GOING CONCERN
The accompanying financial statements have been prepared assuming the continuation of the Company as a going concern. The Company has not yet established an ongoing source of revenues sufficient to cover its
operating costs and is dependent on debt and equity financing to fund its operations. The accompanying financial statements do not include any adjustments to reflect the possible future effects on the recoverability and classification of assets or
the amounts and classification of liabilities that may result from the possible inability of the Company to continue as a going concern.
Metro One Telecommunications, Inc.
Notes to Audited Financial Statements
December 31, 2020 and 2019
NOTE 2 – GOING CONCERN (continued)
Management’s plans for the continuation of the Company as a going concern include financing the Company’s operations through issuance of its common stock, conducting revenue generating operations or expanding the
Company’s existing business operations to acquire projects which generate revenue. If the Company is unable to complete its financing requirements or achieve revenue as projected, it will then modify its expenditures and plan of operations to
coincide with the actual financing completed and actual operating revenues, if any. Presently the Company does not generate any revenue.
There are no assurances the Company will succeed in implementing its plans. Unless otherwise indicated, amounts provided in these notes to the financial statements pertain to continuing operations.
COVID-19
The recent COVID-19 pandemic could have an adverse impact on the Company going forward. COVID-19 has caused significant disruptions to the global financial markets, which may severely impact the Company’s ability to
raise additional capital and to pursue certain contracts. The Company may be required to cease operations if it is unable to finance its’ operations. The full impact of the COVID-19 outbreak continues to evolve as of the date of this report and is
highly uncertain and subject to change. Management is actively monitoring the situation but given the daily evolution of the COVID-19 outbreak, the Company is not able to estimate the effects of the COVID-19 outbreak on its operations or financial
condition in the next 12 months. There are no assurances that the Company will be able to meet its obligations, raise funds or conclude the acquisition of identified businesses. Further upon acquisition of any target businesses there is no
guarantee these operations will be profitable.
NOTE 3 - USE OF ESTIMATES IN THE PREPARATION OF FINANCIAL STATEMENTS
The preparation of financial statements in conformity with Generally Accepted Accounting Principles (GAAP) requires management to make estimates and assumptions that affect the reported amounts of assets and
liabilities, and disclosure of contingent assets and liabilities, at the date of these financial statements, and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
NOTE 4 – SUMMARY OF ACCOUNTING POLICIES
Fiscal Year end
The Company has selected December 31 as its fiscal year end.
Basis of Presentation
The accompanying audited financial statements have been prepared in accordance with generally accepted accounting principles (US GAAP). In the opinion of management, all adjustments considered necessary for a fair
presentation have been included. All such adjustments are of a normal recurring nature.
Cash and Cash Equivalents
The Company considers all highly liquid investments with an original maturity of three months or less to be cash equivalents.
Metro One Telecommunications, Inc.
Notes to Audited Financial Statements
December 31, 2020 and 2019
NOTE 4 – SUMMARY OF ACCOUNTING POLICIES (continued)
Basic and Diluted Net Income (Loss) Per Share
In accordance with ASC Topic 260 – Earnings Per Share, the basic loss per common share is computed by dividing net loss available to common stockholders by the weighted average number of common stock outstanding.
Diluted loss per common share is computed similar to basic loss per common share except that the denominator is increased to include the number of additional shares of common stock that would have been outstanding if the potential common stock had
been issued and if the additional shares of common stock were dilutive.
Potential common stock consists of the incremental common stock issuable upon convertible notes, stock options and warrants and classes of shares with conversion features. The computation of basic loss per share for
the periods ended December 31, 2020 and 2019 excludes potentially dilutive securities of underlying preferred shares, because their inclusion would be antidilutive. As a result, the computations of net loss per share for each period presented is
the same for both basic and fully diluted.
Income Taxes
Income taxes are recognized in accordance with ASC 740, “Income Taxes”, whereby deferred income tax liabilities or assets at the end of each period are determined using the tax rate expected to be in effect when the
taxes are actually paid or recovered. A valuation allowance is recognized on deferred tax assets when it is more likely than not that some or all of these deferred tax assets will not be realized.
Recent Accounting Pronouncements
The Company has implemented all new accounting pronouncements that are in effect and that may impact its financial statements and does not believe that there are any other new accounting pronouncements that have been
issued that might have a material impact on its financial position or results of operations.
NOTE 5 – CAPITAL STOCK
The Company has authorized 50,000,000 shares of Common stock, no par value and 10,000,000 shares of Preferred stock, no par value, of which 1,385 shares have been designated Series A convertible preferred stock with
a liquidation preference of $10,000 per share. Holders of convertible preferred stock, when voting with the holders of our common stock, are entitled to an approximate 0.856 vote for each share of common stock into which the Series A convertible
preferred stock registered in the shareholder’s name can be converted. Each share of Series A convertible preferred Stock is convertible into approximately 71,683.25 shares of common stock. In addition, the holders of our convertible preferred
stock are entitled to elect a majority of the members of our Board of Directors.
There were no issuances of common or preferred stock during the most recently completed two fiscal years ended December 31, 2020 and 2019.
On December 31, 2020 and 2019 the Company had 6,233,326 shares of common stock issued and outstanding and 1,000 shares of Series A Preferred stock issued and outstanding.
NOTE 6 – INCOME TAXES
The Company recognizes deferred tax assets and liabilities for the tax effects of differences between the financial statement and tax basis of assets and liabilities. A valuation allowance is established to reduce
the deferred tax assets if it is more likely than not that a deferred tax asset will not be realized.
Metro One Telecommunications, Inc.
Notes to Audited Financial Statements
December 31, 2020 and 2019
NOTE 6 – INCOME TAXES (continued)
As of December 31, 2020, the Company has net operating loss carryforwards of approximately $128,963,000 to reduce future taxable income. Of the $128,963,000, approximately $128,910,000 can be used through 2039, and
$53,000 may be carried forward indefinitely. A valuation allowance for the entire amount of deferred tax assets has been established as of December 31, 2020 and 2019.
The provision for (benefit from) income taxes consists of the following:
A reconciliation of the provision for income taxes at the federal statutory rates of 21% to the Company’s provision for income tax is as follows:
Deferred income taxes reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. The
following table presents the significant components of the Company’s deferred tax assets and liabilities for the periods presented:
Metro One Telecommunications, Inc.
Notes to Audited Financial Statements
December 31, 2020 and 2019
NOTE 6 – INCOME TAXES (continued)
The Company determines its valuation allowance on deferred tax assets by considering both positive and negative evidence in order to ascertain whether it is more likely than not that deferred tax assets will be
realized. Realization of deferred tax assets is dependent upon the generation of future taxable income, if any, the timing and amount of which are uncertain. Due to the history of losses the Company has generated in the past, the Company believes
that it is not more likely than not that all of the deferred tax assets in the U.S. can be realized as of December 31, 2020 and 2019, accordingly, the Company has recorded a full valuation allowance on its U.S. deferred tax assets.
The Company files income tax returns in the United States on federal basis and various states. The Company is not currently under any international or any United States federal, state and local income tax
examinations for any taxable years. All of the Company’s net operating losses are subject to tax authority adjustment upon examination.
NOTE 7 – SUBSEQUENT EVENTS
On March 30, 2021, the Company announced that its newly-formed, wholly owned Israeli subsidiary, Stratford Ltd. had received notification of approval from the Lod District Court in Israel for its winning bid to
acquire assets of Royal App Ltd. out of insolvency proceedings for approximately $2.4 million USD in cash, the assumption of $200,000 USD of repayable government grants, as well as 8% equity in the Company on a diluted basis, post conversion of the
Company’s preferred common stock and certain other proposed sales of common stock in order to raise the required funds to complete the acquisition.
Royal App is the developer of Shelfy, a white label, headless mobile commerce software platform that helps retailers and fast moving consumer goods companies become growth companies. Shelfy incorporates
sophisticated artificial intelligence and machine learning in its algorithms to markedly improve online shopping metrics through mobile phones for large consumer retailers such as supermarket chains, food and other clients. Prior to its recent
insolvency filing, more than $20 million had been invested in Royal App.
The Company raised $3.25 million commencing March 2021 in the form of puttable Simple Agreements for Future Equity (“SAFES”) from institutional investors and family offices. The terms of the SAFES require that they
automatically convert into common stock of the Company following the conversion of all outstanding convertible preferred stock into common stock. The Company’s intent is to undertake the conversion of preferred stock during fiscal 2021 following
shareholder approval of certain proposed corporate restructure plans.
Subsequent to the conversion of the preferred stock, and as part of the agreement for the acquisition of the assets of Royal App the Company also agreed to issue common stock for commission fees of 2% of the
Company’s common stock on a diluted basis, and to the employees of Stratford as to 8% of the Company on a diluted basis, under the terms of an Employee Stock Option Plan, once approved by Shareholders. Further, in order to undertake these
issuances, the Company will be required to increase the authorized common stock of the Company.
The Board of Directors also determined to seek shareholder approval for a reverse split of the common stock and a reorganization of the Company from Oregon to Delaware. These actions are anticipated to take place in
the second quarter of fiscal 2021.
The Company is actively pursuing the closure of this acquisition through its wholly owned subsidiary Stratford Ltd., and expects to close all proposed transactions no later than the third quarter fiscal 2021.
Metro One Telecommunications, Inc.
Notes to Audited Financial Statements
December 31, 2020 and 2019
NOTE 7 – SUBSEQUENT EVENTS (continued)
On June 9, 2021, the Company announced a shareholders’ meeting to be held on June 30, 2021 to approve the following actions:
The meeting was held on June 30, 2021, and the Company’s shareholders approved all of the actions detailed above, as well as the conversion of 1,000 outstanding shares of Company’s Series A convertible preferred stock
whereby each 1 share of Preferred stock held is convertible into e 71,683.25 shares of common stock.
On July 27, 2021, the Company appointed Ms. Bianca Meger as CEO of the Company and Co-CEO of the Company’s wholly owned Israeli subsidiary, Stratford Ltd.
On August 20, 2021, the Company issued the following shares of common stock:
During October and November 2021, the Company closed an additional $1,881,000 in PIPES by way of the sale of an additional 25,079,999 Units at $0.075 per Unit, each Unit consisting of one share of common stock and
one-half warrant for exercise at $0.0975 per share.
During the fourth quarter of fiscal 2021, the Company granted the following Stock options under its 2021 Employee Stock Incentive Plan:
Metro One Telecommunications, Inc.
Notes to Audited Financial Statements
December 31, 2020 and 2019
NOTE 7– SUBSEQUENT EVENTS (continued)
In October 2021, the Company granted 7,791,658 Stock Purchase Warrants to one of its financing agents, exercisable for a period of two years from the date of grant at $0.02567 per share.
The Company has evaluated events for the period from December 31, 2020, through the date of the issuance of these financial statements and determined that there are no additional events requiring disclosure.
Shares of Common Stock
193,317,186 SHARES OF COMMON STOCK BY SELLING SHAREHOLDERS AND
20,331,658 SHARES OF COMMON STOCK UNDERLYING WARRANT EXERCISES BY OUR SELLING SHAREHOLDERS AND
80,000,000 SHARES OF COMMON STOCK TO BE SOLD AS PART OF THIS OFFERING AND
20,000,000 SHARES UNDERLYING WARRANTS TO BE SOLD AS PART OF THIS OFFERING
PROSPECTUS
PART II - INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
Expenses incurred or expected relating to this prospectus and distribution, all of which we will pay, are as follows:
Item 14. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the “Delaware Law”) authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently broad to
permit such indemnification under certain circumstances for liabilities, (including reimbursement for expenses incurred) arising under the Securities Act of 1933. The Certificate of Incorporation provides for indemnification of officers, directors
and other employees of the Corporation to the fullest extent permitted by Delaware Law. Our Certificate of Incorporation provides that directors shall not be personally liable to the Corporation or its stockholders for monetary damages except as
provided by law.
Our Bylaws provide that the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was a director or officer of the Corporation, or, while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, association or other enterprise, against expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection with which action, suit or proceeding, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to
any criminal action or proceeding, that he had reasonable cause to believe that his conduct was unlawful.
Except as provided above, our Certificate of Incorporation provides that a director shall be liable to the extent provided by applicable law, (i) for breach of the director’s duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the Delaware Law or (iv) for any transaction from which the director derived an
improper personal benefit. If the Delaware hereafter is amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the Corporation, in addition to the limitation on personal
liability provided herein, shall be limited to the fullest extent permitted by the amended Delaware Law. Neither any amendment to or repeal of our Certificate of Incorporation, nor the adoption of any provision hereof inconsistent with our
Certificate of Incorporation, shall adversely affect any right or protection of any director of the Corporation existing at the time of, or increase the liability or alleged liability of any director of the Corporation for or with respect to any
acts or omissions of such director occurring prior to or at the time of such amendment.
Neither our Bylaws, nor our Certificate of Incorporation include any specific indemnification provisions for our officer or directors against liability under the Securities Act of 1933, as amended (the “Act”).
Additionally, insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.
Item 15. Recent Sales of Unregistered Securities.
Set forth below is information regarding the issuance and sales of securities during the previous three years. No such sales involved the use of an underwriter; no advertising or public solicitation was involved; the
securities bear a restrictive legend; and no commissions were paid in connection with the sale of any securities.
During March and April of 2021, we entered into Simple Agreements for Future Equity (“SAFE”), whereby we sold shares of preferred stock that have been converted into an aggregate of 126,614,436
shares of our common stock. As part of our SAFE offering, we received gross proceeds of $3,250,000. The proceeds were primarily used as part of our acquisition of Royal App, Ltd.
In addition, during September through November of 2021, we effected a private investment into public equity (“PIPE”) offering, whereby we issued 25,079,999 shares of common stock and 12,540,000
warrants to purchase common stock exercisable at a price of $0.0975 per share. We received gross proceeds of $1,881,000 from the sale of the shares of common stock as part of the PIPE offering, which was used for working capital purposes.
All of the above listed issuances were issued in reliance upon an exemption provided by Regulation S and/or Section 4(2) promulgated under the Securities Act.
16. Exhibits.
The following exhibits are included with this registration statement, or if previously filed, are incorporated herein by reference:
|
Exhibit
|
|
|
|
Number
|
|
Description
|
|
|
|
|
|
2.1
|
|
|
|
|
|
|
|
3.1
|
|
|
|
|
|
|
|
3.2
|
|
|
|
|
|
|
|
3.3
|
|
|
|
|
|
|
|
5.1
|
|
|
|
|
|
|
|
10.1*
|
|
Form of Subscription Agreement to be used with Registration Statement
|
|
|
|
|
|
10.2*
|
|
Form of Warrant to be used with Registration Statement
|
|
|
|
|
|
10.3
|
|
|
|
|
|
|
|
10.4
|
|
|
|
|
|
|
|
10.5
|
|
|
|
|
|
|
|
10.6
|
|
|
|
|
|
|
|
10.7
|
|
|
|
|
|
|
|
10.8
|
|
|
|
|
|
|
|
23.1
|
|
|
|
|
|
|
|
23.2
|
|
Consent of Counsel, Smith Eilers, PLLC (See Exhibit 5.1)
|
|
|
|
|
107
|
|
Filing Fees Table
|
*To be filed by Amendment.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
The Registrant hereby additionally undertakes that:
(a) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4)or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(b) For the purpose of determining any liability under the Securities Act each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
The Registrant hereby additionally undertakes that:
(a) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4)or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(b) For the purpose of determining any liability under the Securities Act each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Sheridan,
Wyoming on February 10, 2022.
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Bianca Meger, as his true and lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement on Form S-1 of Metro One Telecommunications, Inc. and to file the
same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, grant unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite
and necessary to be done in and about the foregoing, as fully to all intents and purposes as she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or her substitutes, may lawfully do or cause to be
done by virtue hereof.
In accordance with the requirements of the Securities Act of 1933, this Registration Statement was signed by the following persons in the capacities and on the dates stated.
Pursuant to the requirements of the
Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Sheridan, Wyoming on February 10, 2022.
The following exhibits are included with this registration statement, or if previously filed, are incorporated herein by reference:
*To be filed by Amendment.
51
Exhibit 2.1
9th March, 2021
Supplement to the offer to purchase the activity
and assets
of Royal App Ltd (in Rehabilitation) dated 2.3.2021
Further to the bidding process which was held on 9.3.2021 in the offices of the Trustee for Royal App Ltd (in Rehabilitation) we wish
to revise our offer as follows:
|
|
1.
|
The consideration as defined in paragraph 4.1 of the Sale Agreement shall stand at a sum of NIS 6,900,000
(in words: six million and nine hundred thousand new shekels), together with VAT as required by law. It is clarified that the sum which
shall be paid by the purchaser within 48 hours from the time when the preconditions stated in paragraph 4.1.1 of the Sale Agreement have
been met shall stand at a sum of NIS 690,000 (in words: six hundred and ninety thousand new shekels), together with VAT as required by
law.
|
|
|
2.
|
The Purchaser undertakes to make up the amount which it deposited in the Trustee’s account to the sum
of NIS 690,000 together with VAT as required by law within three (3) business days from the date of signing this supplement.
|
|
|
3.
|
In addition to the cash element of the consideration as specified in paragraph 4.1 of the Sale Agreement
and in paragraph 1 above, the Purchaser undertakes to ensure that shares in the parent company Metro One Telecommunications Inc (hereinafter:
“the parent company”) amounting to 8% of the parent company’s issued share capital after the aforementioned allocation,
shall be deposited in the Trustee’s Account. It is clarified that the securities issued to the Company’s employees shall not dilute the
shares which are to be allocated to the Trustee’s Account and that new investments within the parent company shall dilute the number of
shares which shall be allocated to the Trustee’s Account pro rata with the rest of the parent company’s shareholders.
Should the procedures required for the purpose of allocating the shares to the Trustee’s Account not be completed by the consummation
date, then the Purchaser shall make sure that prior to the consummation date it furnishes the Trustee with security to guarantee that
the obligation to allocate shares to the Trustee’s satisfaction is honored.
|
In witness whereof we have signed:
/s/ Elchanan Maoz
An (Israeli) company which
is in the course of formation and which shall be under the
full control of Metro One Telecommunications Inc.
Confirmation
I the undersigned, Moran Mordechai, the Purchaser’s attorney hereby confirm as follows:
|
|
1.
|
Messr. Elchanan Maoz who signed the
Agreement
in the purchaser’s name, are authorized to sign this Agreement on its behalf.
|
|
|
2.
|
The
Purchaser’s above signature is binding upon it with regard to this Agreement.
|
|
14.3.21
|
|
/s/ Moran Mordechai
|
|
Date
|
|
Moran Mordechai, Adv. (-)
License No. 43543
AMP House 18 Raoul Wallenberg St. Building
D Ramat HaHayal Tel Aviv 6971915
|
AGREEMENT
[Agreement for the purchase of activity and
assets]
Which was drawn up and signed on 2nd
March 2021
Between
Advocate Yaron Elhawi is his capacity as trustee
for the company Royal App Ltd
(in Rehabilitation), Private Company No. 515294437
(hereinafter: “the Trustee”)
of the one part;
and
An (Israeli) company in formation which shall
be under the
full control of Metro One Telecommunications
Inc.
(hereinafter: “the Purchaser”)
of the other part;
|
Whereas
|
On 1.2.2021 the District Court in Lod issued an order within the framework of Insolvency Case 53873-01-21 for the appointment of Advocate Yaron
Elhawi as temporary trustee for the company Royal App Ltd which is attached to this Agreement marked Appendix 1A;
|
|
|
|
|
And whereas
|
On 8.2.2021 the Court authorized the Trustee to publish an invitation to submit offers for the purchase of the Company and/or its activity and/or its assets;
|
|
|
|
|
And whereas
|
On 28.2. 2021 the Court issued an order for the commencement of proceedings, the operation of the Company, and the appointment of Advocate Yaron Elhawi as
trustee. The Court’s decision is attached to this Agreement marked Appendix 1B;
|
|
|
|
|
And whereas
|
Subject to the Court’s approval, the Purchaser wishes to purchase the property as defined, detailed and stipulated hereinafter in this Agreement;
|
|
|
|
It is therefore stipulated, declared and agreed
between the parties as follows:
|
|
1.1.
|
The foregoing preamble constitutes an integral part of this Agreement;
|
|
|
1.2.
|
The paragraph headings in this Agreement have been provided solely for the reader’s convenience and orientation
and shall not be used to interpret this Agreement or for any other purpose.
|
|
|
1.3.
|
In this Agreement, the following terms shall have the meanings specified next to them:
|
|
“The Court”
|
The Lod
District Court within the framework of Insolvency Case 53873-01-21.
|
|
“The Company”
|
Royal App Ltd
|
|
“The Trustee”
|
Advocate Yaron Elhawi is his capacity as the Company’s
Trustee
|
|
“The Trustee’s Account”
|
Account No. 72103 which is held at the Main Branch of
Bank Hapoalim (12) in the name of the Trustee, or any other account indicated by the Trustee.
|
|
“The date of the Trustee’s
appointment”
|
The date on which the Court appointed Advocate Yaron
Elhawi to serve as temporary trustee for the Company - 1.2.2021.
|
|
“The proposal form”
|
The proposal form which is attached herewith as an
integral part of this Agreement marked Appendix 2.
|
|
“The invitation documents”
|
This Agreement, the proposal form, the instructions to
the offeror, the confidentiality letter, the noncompetition declaration and the guarantee/banker’s draft in accordance with the versions published by the Trustee and signed by the Purchaser.
|
|
“The property”
|
The Company’s following assets and liabilities: (1) goodwill; (2) intellectual property and trademarks owned by the Company, including rights in patents in so
far as they exist and rights of claim (if and in so far as they exist and are transferrable) for infringement of the aforementioned intellectual property; (3) agreements (rights and obligations) with customers in accordance with the list which
is attached to the proposal form marked Appendix A (the customers agreements that shall be included in the property are those marked for such inclusion in the proposal form) (hereinafter: “the relevant customers agreements”), provided
the agreements may be assigned under their terms or with the Court’s approval; (4) equipment and fixed assets owned by the Company and which shall actually be held by the Trustee on the consummation date; (5) with the exception of the excluded
assets (as defined hereinafter), unless in the form of obligations imposed under the relevant customer agreements, the Purchaser does not take upon itself responsibility for past debts the causes of which arose before the insolvency proceedings
were filed against the Company.
** Should the property according to the proposal form be different - the terms shall be altered accordingly**
|
|
“The excluded property”
|
All the Company’s remaining rights and assets of any
type or kind, which are not included in the property, including: (1) rights, in so far as they exist, which the Company and/or the Trustee and/or any of the Company’s creditors have, including rights of claim, and all against the Directors
and/or any of the office holders in the Company and/or any of its shareholders and/or companies related to one of the foregoing and/or any other party connected to the management of the Company and/or to the Company’s customers and/or other
third parties (excluding rights against the Company’s customers if the agreements with them are to be transferred to the Purchaser within the framework of this Agreement and right relating to an infringement of the Company’s intellectual
property rights, in so far as they exist and are transferable), and all with regard to the period before the consummation date (as defined above) ; (2) the Company’s shares; (3) the Company’s accumulated tax losses with the Tax Authority,
should there be any; (4) the rights and monies in the Company’s and the Trustee’s accounts; (5) customers debts; (6) the monies and rights pertaining to the interim period including the sums and rights which the Company is entitled to with
respect to the activity and/or contracts during the interim period; and (7) the balance of the Company’s assets which are not expressly included in the definition of the property above.
|
|
“Customers’ debts”
|
Debts owed to
the Company by its customers (rights against debtors) for services which the Company provided prior to the consummation date.
|
|
“The preconditions”
|
The preconditions specified hereinafter in paragraph 9.
|
|
“The consummation date”
|
A date which shall be coordinated between the parties
being no later than seven (7) business days from the date on which all the preconditions shall be met.
|
|
“The consideration”
|
The amount of the consideration specified in the
proposal form and hereinafter in paragraph 4.
|
|
“The interim period”
|
The period between the date of the Trustee’s appointment
and the consummation date.
|
|
|
2.
|
The Purchaser’s declarations
The Purchaser declares and undertakes as follows:
|
|
|
2.1.
|
By itself and through experts and professionals acting on its behalf, it has seen and examined the property
and all the rights which connected to and/or involved in it, including their physical and legal situation, the possibilities for using
them, and for their practical, operational and legal exploitation, the number and/or quantity of the items of the property and their actual
location, the Company’s equipment, the Company’s agreements with its customers (in so far as they exist) - the rights and obligations
created by them and the restrictions on their transfer, the Company’s intellectual property and trademark rights (including rights in
patents) in so far as they exist and the restrictions on their transfer, and all the other matters and documents concerning this contract,
and that after examining all of the foregoing, it has found the property, including its restrictions, shortcomings and defects, whether
it is aware of them at the time of signing this Agreement or not - to be suitable for its purposes, needs and use. The Purchaser declares
that it is aware that the Trustee and/or the Company bear no responsibility for the scope and nature of the rights included in the property,
and it relinquishes any complaint of fault and/or defect and/or unsuitability and/or deficiency and/or claim concerning and/or relating
to the property and all that is connected with and/or involved in it and any other complaint against the Trustee and/or the Company.
|
|
|
2.2.
|
The Purchaser is aware that some of the Company’s equipment as mentioned in Form 11 may not actually be
in the Company’s possession, and should that equipment not be in the Company’s possession on the consummation date then it shall not be
included in the property and shall not be sold to the Purchaser within the framework of this Contract, and the Purchaser is and shall
be precluded from making any complaint and/or demand and/or claim against the Company and/or the Trustee and/or anyone acting on their
behalf in this regard.
|
|
|
2.3.
|
It is known and agreed that the property and/or any of the assets and/or the rights included in it may not exist and/or may be invalid and/or defective, and the Trustee and/or the Company take no
responsibility upon themselves in connection with the relevant customers agreements and/or the willingness of the customers to continue and/or extend their contracts and/or the possibility of assigning the aforementioned agreements to the
Purchaser, and the Purchaser relinquishes any claim and/or demand against the Trustee and/or the Company in this regard. The Purchaser takes upon itself all the Company’s obligations under the relevant customers agreements which shall be
transferred to it within the framework of this Agreement, and under the agreements relating to the property which the Company and/or the Trustee entered into during the interim period.
The Purchaser is also aware that the Company has received approximately NIS 883,185 in grants from the National Authority for Technological Innovation (hereinafter: “the Innovation Authority”),
that prior to the date of the Trustee’s appointment the Company paid to the Innovation Authority royalties of approximately NIS 53,158 for the years 2018-20191, that transferring the property to
the Purchaser is subject to obtaining and the conditions of the Innovation Authority’s approval, and that the Purchaser’s future income in connection with the property may be subject (inter alia) to a statutory obligation to pay royalties to
the Authority.
|
1
According to the data appearing in the Company’s books, without its accuracy having been confirmed by the Innovation Authority.
|
|
2.4.
|
The Purchaser is purchasing the entire property with all its components in its prevailing condition (AS-IS)
and location (WHERE-IS) on the handover day, with the clear knowledge and undertaking that the property, including its restrictions, deficiencies
and defects, whether it is aware of them at the time of signing this Agreement or not, is being purchased in its existing condition, that
this method of purchase is compatible with its needs, purposes and uses, and that it does not have and shall not have any claim, demand
or right against the Company and/or the Trustee and/or anyone acting on their behalf.
|
|
|
2.5.
|
The Purchaser is aware that between the date of the signing of this Agreement and the consummation date,
the Trustee shall be using the property through any of the Company’s employees, within the framework of running the Company, including
the collection of customers’ debts and continuing activity with some of the Company’s customers and/or suppliers, and that it does not
and shall not have any complaint and/or demand and/or claim and/or right against the Trustee and/or the Company and/or against anyone
acting on their behalf which is attributable directly or indirectly to the foregoing. Nothing in the foregoing shall constitute an undertaking
by the Trustee to run the Company as a going concern until the consummation date.
|
|
|
2.6.
|
The Purchaser declares that it is aware and agrees that the property under this Agreement consists solely
of the assets included within its foregoing definition, and that all the other assets of the Company of any kind or type which are not
counted amongst the aforementioned assets, including the excluded assets, are not been sold to it within the framework of this Agreement,
and it shall have no rights in and/or claims in relation to and/or debts attributable to them.
|
|
|
2.7.
|
It is agreed that should the Trustee require information which is stored in the Company’s computers, the
Purchaser shall provide him with that information (through magnetic media and/or a hard copy, according to the Trustee’s preference),
without any condition or restriction and in any case by no later than five (5) days from the date of the Trustee’s request, and should
it be asked to do so, the Purchaser shall likewise grant the Trustee access to the Company’s computers and allow him to create a back-up
for all the information stored in them, and all relating to the period up to the consummation date.
|
|
|
2.8.
|
The Purchaser declares that no legal, factual or other obstacle exists to prevent it from entering into
and honoring all its obligations under this Agreement, that it has taken all the decisions required in order to enter into this Agreement,
and that it has the economic ability to perform its obligations under this Agreement.
|
|
|
3.
|
The essence of the Agreement
In return for full and punctual payment of the consideration and the performance of all the Purchaser’s other obligations, the
Purchaser shall receive and/or acquire the property, unencumbered by any charge, attachment, or other right in accordance with and subject
to section 34A of the Sale Law, 5728-1968, in the manner and upon the terms specified in this Agreement and all provided that the preconditions
as stated hereinafter in paragraph 9 have been met.
|
|
|
4.
|
The consideration and the dates for its payment
|
|
|
4.1.
|
In return for the property, the Purchaser shall pay to the Trustee a sum of NIS 1,180,000 (in words:
NIS one million one hundred and eighty thousand) (hereinafter: “the consideration”), on the following terms and dates:
|
|
|
4.1.1.
|
Within 48 hours from date on which the preconditions have been met, the purchaser shall pay to the Trustee
a sum of NIS 118,000 (in words: one hundred and eighteen thousand new shekels) (which constitutes 10% of the consideration
specified in paragraph 4.1.1 above) (hereinafter: “the first installment”).
|
|
|
4.1.2.
|
On the consummation date, the purchaser shall pay to the Trustee the balance of the consideration (hereinafter:
“the second installment”).
|
|
|
4.2.
|
As security for the performance of its obligations under this Agreement, upon signing this Agreement the
Purchaser shall hand over to the Trustee an autonomous bank guarantee worded in accordance with the version attached to the invitation
documents, or a bank draft, in a total sum equivalent to 10% of the consideration together with the VAT payable thereon (hereinafter:
“the bank guarantee”). The Trustee shall be entitled (but not be obliged) to cash the bank guarantee should the Purchaser
breach its obligations under this Agreement, including if any of the sums which the Purchaser is obliged to pay under this Agreement shall
not be fully and punctually paid.
The bank guarantee shall be returned to the purchaser on the consummation date, subject to payment of the entire amount of the consideration
and the performance of all the Purchaser’s obligations until that date.
|
|
|
4.3.
|
VAT shall be added to all components of the consideration as required by law, and shall be paid by the
Purchaser to the Trustee in return for a lawful tax invoice.
|
|
|
4.4.
|
The Purchaser shall pay the components of the consideration to the Trustee through a banker’s draft or
bank transfer (IBAN transfer) to the Trustee’s account. Should either of the installments be paid by way of a bank transfer, the Purchaser
shall bear the costs of the transfer and the installment shall only be regarded as having been paid after the Trustee’s Account has actually
been credited.
|
|
|
4.5.
|
Should any form of competitive bidding be orchestrated by either the Trustee or the Court, and the Purchaser
shall submit the winning offer, then the amount of that offer shall be regarded as the sum specified in this Agreement and in the proposal
form and shall constitute the consideration (as defined above in this Agreement). In the scenario stated in this paragraph, the Purchaser
shall present the Trustee at his request with a suitable banker’s draft/bank guarantee in a sum equivalent to 10% of the amounts of the
differential as aforesaid.
|
|
|
5.
|
Running of the Company during the interim period
|
|
|
5.1.
|
Until the consummation date, including after the date on which the preconditions were met, the Trustee
shall be entitled (but not obliged) to continue running the Company upon such terms and to such extent as he shall in his discretion see
fit and in accordance with the Court’s instructions, and the Purchaser shall have no claim or right against the Trustee and/or the Company
in this regard.
|
|
|
5.2.
|
The Purchaser is aware that during the interim period some of the Company’s customers shall pay excess
sums that may be deducted from future sums which those customers are obliged to pay under their existing agreements with the Company.
|
|
|
5.3.
|
The Trustee shall be entitled to all sums payable to the Company under its existing contracts during the
period prior to the consummation date, even if they shall be received after that date. For the avoidance of doubt, it is clarified that
the Trustee shall not bear responsibility and shall not be accountable for any payment with respect to any contracts after the consummation
date and shall not under any circumstances be required to pay or transfer to the Purchaser any sums which were received during or prior
to the interim period.
|
|
|
6.
|
Handing over of the property
|
|
|
6.1.
|
On the consummation date, provided that all the Purchaser’s obligations have been fully honored and in
return for punctual payment of the entire consideration, the Trustee shall hand over to the Purchaser the rights in and possession of
the property.
|
|
|
6.2.
|
The transfer of possession to the Purchaser shall be limited to receiving written authorization from the
Trustee for the Purchaser to take legal possession of the property, without any physical handing over of the property taking place.
|
|
|
6.3.
|
Should the Purchaser not receive possession of the property for reasons that depend on the Purchaser,
including nonperformance of any of its obligations under this Agreement and/or nonpayment of the entire consideration by the consummation
date and/or the Purchaser’s refusal to take possession of the property for any reason, the Purchaser shall bear responsibility from the
consummation date as the owner and/or the party in possession of the property, including with respect to its preservation, maintenance,
insurance, liability to third parties and payment of all taxes. Notwithstanding the foregoing, the Trustee shall be entitled, but not
obliged, to take in its place actions which the Purchaser is obliged to take as the owner and/or the party in possession of the property,
in which case the Purchaser shall be obliged to reimburse the Trustee for any sum which he paid with respect to the property.
|
|
|
7.1.
|
Customers’ debts do not constitute part of the property and the Trustee shall be entitled to any receipt
pertaining thereto. Should the Purchaser for any reason receive sums on account of the customers’ debts it shall transfer them to the
Trustee within 3 business days.
|
|
|
7.2.
|
The Trustee shall be entitled to receive any information and/or document and/or authorization which in
his judgment shall be required for redemption and/or calculation of customers’ debts, and the Purchaser undertakes to transfer them to
the Trustee within 7 days.
|
|
|
8.
|
The Company’s employees
|
|
|
8.1.
|
The Purchaser declares that it has been given the details which it requires regarding the Company’s employees,
including details of basic salaries, the deductions and contributions which the employer is obliged to make and the employer’s costs which
the Trustee is aware of.
|
|
|
8.2.
|
The Purchaser shall continue to employ the Company’s employees in the numbers and for the period
specified in the proposal form which is attached to this Agreement (Appendix 2 above), in so far as they are specified.
|
|
|
8.3.
|
The Purchaser undertakes to continue employing those employees whose continued employment is required
by law, including under the Employment of Women Law, 5714-1954.
|
|
|
8.4.
|
The Purchaser alone shall be responsible for reaching settlements with the Company’s employees concerning
their employment by the Purchaser after the consummation date, should it wish to keep them on. The salaries of employees who were employed
during the interim period shall be paid by the Company, and upon the consummation date their employment with the Company shall be deemed
to have been terminated.
|
|
|
8.5.
|
The Company and/or the Trustee do not take upon themselves any responsibility regarding the employment
of the Company’s employees by the Purchaser, the willingness of the employees to continue working for the Purchaser and/or the redemption
of past debts owed to those employees (apart from redemption of sums owed to the employees which the Trustee is obliged to pay by law)
and the Purchaser shall make no claim in this regard.
|
|
|
8.6.
|
The Purchaser shall not be liable for the payment of any debt to the Company’s employees with respect
to the period prior to the consummation date.
|
|
|
8.7.
|
If in order to perform his functions, the Trustee shall require temporary assistance from the Company’s
employees, then provided such assistance is reasonable and does not entail substantial expenses for the Purchaser, the Purchaser shall
agree to provide it, gratuitously, through the employees. Beyond this, assistance as aforesaid shall be granted to the Trustee in return
for payment in accordance with the number of work hours which shall actually be required and the cost to the Purchaser of employing the
worker (without profit).
|
|
|
9.1.
|
The validity of this Agreement is dependent upon fulfillment the following cumulative preconditions (jointly
above and hereinafter: “the preconditions”) by no later than 60 (sixty) days from the date of filing the motion in the
Court for approval of the contract under this Agreement (hereinafter: “the deadline for fulfillment of the preconditions”)
:
|
|
|
9.1.1.
|
Receipt of the Court’s approval for the transaction upon which this Agreement is predicated.
|
|
|
9.1.2.
|
Receipt of the Innovation Authority’s approval for the transaction, should such approval be required.
|
|
|
9.1.3.
|
Receipt of the Competition Director General’s approval, including an approval subject to conditions, should
such approval be required.
|
The Trustee shall be entitled (but
not obliged) to extend the deadline for fulfillment of the preconditions from time to time, by additional periods, through written notices
which shall be given to the Purchaser, and in such a case the deadline for fulfillment of the preconditions shall be regarded as the deferred
date prescribed by the Trustee as aforesaid.
|
|
9.2.
|
In this regard - the following provisions shall apply:
|
|
|
9.2.1.
|
In the first stage this Agreement shall be signed by the Purchaser only. The Trustee shall add his signature
to the Agreement shortly after the preconditions have been fulfilled.
|
|
|
9.2.2.
|
Should approval of the transaction be required by law from the Competition Director General, then the
Purchaser shall file an appropriate request with the Competition Authority within five (5) days from the Court’s endorsement of the Agreement
and it shall do all it can to obtain the necessary approval as soon as possible. The Purchaser shall present the Trustee with a copy of
any document which was filed on its behalf and shall update the Trustee with all information concerning its request to the Competition
Director General as aforesaid.
The Trustee shall bear no responsibility for submitting the request to the Director General or for its results.
|
|
|
9.2.3.
|
Within five (5) days from the Court’s endorsement of the transaction the parties shall apply to the Innovation
Authority for approval of the transaction upon which this Agreement is predicated, and shall act collaboratively in order to receive that
approval as soon as possible.
|
|
|
9.2.4.
|
Should the preconditions be fulfilled by the deadline for fulfillment of the preconditions then this Agreement
shall be considered valid for all intents and purposes, and the Trustee shall sign it.
|
|
|
9.2.5.
|
Should the preconditions not be fulfilled by the deadline for fulfillment of the preconditions, then at
the Purchaser’s request the Trustee shall return the amount or the bank guarantee or the bank draft which the Purchaser deposited with
him (as stated in paragraph 4.2 above) within seven (7) business days from the deadline for fulfillment of the preconditions, and all
provided that the approval had not been withheld due to a breach on the part of the Purchaser.
|
|
|
10.
|
Taxes and mandatory payments
|
|
|
10.1.
|
The Trustee shall pay the following mandatory charges:
|
|
|
10.1.1.
|
Income tax, if and in so far as it shall apply to the sale of the property pursuant to this Agreement,
on the date and in the manner prescribed by law.
|
|
|
10.1.2.
|
All other taxes and mandatory payments applying to the property, which were levied and the payment of
which is required prior to the consummation date, in so far as such taxes exist and in so far as the Trustee is obliged by law to pay
them, within the framework of the statutory arrangements relating to insolvency proceedings that were taken against the Company.
It is clarified that the Trustee may not reach any settlement with the tax authorities in connection with payment of the tax as aforesaid,
including receipt of an exemption from paying it, or not to actually pay it, inter alia based on the setting off of the Company’s past
losses and/or the statutory order of debt redemption.
It is clarified that the Trustee shall pay the aforementioned sums from the consideration monies and only in so far as, in his capacity
as a trustee, he shall be obliged by law to pay them, and in accordance with the statutory order of debt redemption.
It is clarified that nothing in the foregoing shall constitute a contractual obligation to make payment contrary to the statutory order
of debt redemption or any obligation in favor of a third party.
|
|
|
10.2.
|
The Purchaser shall pay the following taxes and mandatory charges:
|
|
|
10.2.1.
|
All government or municipal taxes and other mandatory charges applying to and/or in connection with the
property (or to any of the assets incorporated therein), which were imposed and payable from the consummation date onwards, in so far
as such taxes exist and the Purchaser is legally obliged to pay them.
|
|
|
10.2.2.
|
VAT on the sums paid pursuant to this Agreement.
|
|
|
10.2.3.
|
All the sums required, in so far as they are required, in order to carry out and/or register and/or complete
the transfer of the rights in the property and/or in any of its components.
|
|
|
11.
|
Prohibition on transfer of rights
Until full redemption of the consideration for the property and fulfillment of all its obligations under this Agreement, the Purchaser
may not transfer the rights in the property and/or in any of its components, including its rights and obligations under this Agreement,
to any third party without the Trustee’s prior written consent.
|
|
|
12.
|
Breaches and remedies
|
|
|
12.1.
|
Should the Purchaser breach a provision of this Agreement, the Trustee shall be entitled to all the reliefs
prescribed in the Contracts (Remedies for Breach of Contract) Law, 5731-1970.
|
|
|
12.2.
|
Without derogating from the foregoing, a fundamental breach of this Agreement by the Purchaser shall grant
the Trustee a right to liquidated damages in a sum equivalent to the amount of the bank guarantee which the Purchaser is obliged to deposit
as stated in paragraph 4.2 above, and this regardless of whether the Trustee shall choose to implement or rescind the Agreement and all
without derogating from any other right and/or remedy which under the circumstances the Trustee has at his disposal. Should the Agreement
be rescinded, the Trustee shall be entitled to set off this sum against any sum owed, if at all, to the Purchaser.
|
|
|
12.3.
|
The Trustee may rescind this Agreement in response to a fundamental breach by the Purchaser provided that
he gave the Purchaser 14 days’ prior warning of his intention to do so and during that period the Purchaser did not rectify the breach.
|
|
|
12.4.
|
Any installment of the consideration which was not paid on time shall carry interest at the prevailing
rate normally charged by Bank Hapoalim Ltd on unauthorized current loan account overdrafts, from three (3) days after the date scheduled
for its payment in this Agreement until the date on which shall actually be fully paid. A delay of more than seven (7) days in paying
any installment of the consideration shall constitute a fundamental breach of this Agreement. Should the consideration in this Agreement
be fixed, with the Trustee’s consent, in foreign currency, any sum not paid on time shall be paid in shekels according to the exchange
rate in force on the specified payment date or, if higher, according to the rate in force on the date of actual payment.
|
|
|
12.5.
|
The parties agree that a breach of one or more of the following paragraphs shall be regarded as a fundamental
breach of this Agreement: 2, 4, 6, 7, 8, 10, 11 and 13.
|
|
|
12.6.
|
Nothing in the provisions of this paragraph 12 shall derogate from any other right and relief which the
Trustee shall have at his disposal in the event of a breach of any of the Purchaser’s obligations and from any right and/or relief under
the Contracts (Remedies for Breach of Contract) Law, 5731-1970.
|
|
|
13.
|
Liability and insurance
From the consummation date onwards, the Purchaser shall be exclusively liable with respect to and in connection with the property,
including liability towards any third party, for any damage which shall be caused, whether to its property or to the body or property
of any third party in connection with the property. The foregoing shall also apply should possession not actually be handed over because
of none payment of the full consideration or the Purchaser’s refusal to receive the property.
|
|
|
14.
|
Resolution of disagreements and disputes
The Court as defined in this Agreement shall have the exclusive jurisdiction to adjudicate any disagreement or dispute in connection
with this Agreement, its implementation and/or interpretation, and by its signature on this Agreement the Purchaser expresses his consent
to the resolution of any dispute between itself and the Trustees within the framework of a request for directions proceeding.
|
|
|
15.1.
|
Either party to this Agreement (hereinafter: “the Payor”), may pay any sum which under its terms the other party is obliged to pay (hereinafter: “the Debtor”), provided that such payment
was preceded by seven (7) days’ prior written notice and that no other arrangement is prescribed in the Agreement for ensuring payment of the outstanding sum.
Should any sum be paid by the Payor as aforesaid, then unless stipulated otherwise in this Agreement, the Payor shall be entitled to reimbursement of the sum which he paid within seven (7) days from the
date on which it was paid together with interest at the rate stated in paragraph 12.4 above. In any case, it is clarified that the Purchaser may not pay any of the Company’s and/or the Trustee’s liabilities which were created before the date of
the Trustee’s appointment and/or which the Trustee is not obliged to pay by law.
|
|
|
15.2.
|
It is hereby clarified, that so long as the Court has not endorsed the sale under this Agreement and/or
so long as no such endorsement has been brought to the Trustee’s attention, the Trustee may accept higher offers than the Purchaser’s
offer for the property (in its entirety or part thereof or as part of other property). The Purchaser undertakes not to make and shall
be precluded from making assertions which are contrary to the provisions of this paragraph.
|
|
|
15.3.
|
It is agreed that this Agreement does not constitute a contract in favor of any third party including
any authority and that it only regulates the relationship between the Purchaser and the Trustee.
|
|
|
15.4.
|
Should one of the parties not enforce, or not enforce punctually, any of the rights conferred on it under
this Agreement and/or by law in a specific case or series of cases, this shall not be seen as a waiver of the said right and/or any other
rights. No extension and/or deferral shall be valid unless made in advance and in writing.
|
|
|
15.5.
|
The Purchaser undertakes to take all the additional steps (including, and without derogating from the
foregoing, the signing of additional documents) which shall be required or wanted for the implementation and execution of this Agreement,
in letter and spirit, and for fulfillment of the preconditions.
|
|
|
15.6.
|
No changes to this Agreement shall be valid unless made in writing and signed by all the parties to the
Agreement.
|
|
|
15.7.
|
Notwithstanding all the provisions of this Agreement, by signing this Agreement the Purchaser fully and
peremptorily relinquishes rights of setoff and/or lien against the Trustee with regard to any payment and/or reimbursement which the Trustee
is entitled to under this Agreement. Under no circumstances shall the Purchaser be entitled, with respect to any claims, to set off any
sums against installments of the consideration or against any other amounts which it is obliged to pay under this Agreement, and it must
fully and punctually pay the consideration and other sums which it is liable for under the Agreement.
|
|
|
15.8.
|
The duties and obligations imposed on the Trustee in this Agreement shall be performed by him by virtue
of his position and not in his personal capacity. The Trustee shall not be personally accountable to the Purchaser and/or to others concerning
the payment of any sum or the taking of any action. It is further agreed that the Trustee does not represent the Purchaser with regard
to this Agreement.
|
|
|
15.9.
|
If this Agreement is being signed for a company in formation (in this paragraph: “the Company”),
then the founder who is signing it (in this paragraph “the Founder”) shall be responsible for honoring the Purchaser’s
obligation under this Agreement until the Company has been established as aforesaid and a lawyer’s written confirmation was served on
the Trustee within 14 days from the date of the Court’s endorsement that the Agreement had been lawfully ratified by the Company and that
it is bound by it for all intents and purposes. After service of the confirmation as aforesaid within the aforementioned period, the responsibility
shall fall jointly and severally on the Founder and the Company.
|
|
|
15.10.
|
If the Purchaser is signing this Agreement as a trustee for another/others (hereinafter in this paragraph:
“the Beneficiary”), then the trustee who is signing it (hereinafter in this paragraph: “the Signing Trustee”)
shall be responsible for honoring the Purchaser’s obligation under this Agreement until the Trustee has been served with confirmation
signed by the Beneficiary and certified by a lawyer within 14 days from the date of the Court’s endorsement that the Agreement had been
signed for him as a beneficiary and that it is binding upon him for all intents and purposes. After service of the confirmation as aforesaid
within the aforementioned period, the responsibility shall fall jointly and severally on the Signing Trustee and the Beneficiary.
|
|
|
15.11.
|
Notices relating to this Agreement shall be sent by registered post or served personally, according to the parties addresses which are specified below, or any other address in Israel for which
appropriate written notification shall be given, or through the fax number specified next to their address or any other fax number for which appropriate written notification shall be given.
Every notice shall be regarded as having been delivered to the recipient at the earliest of the following times: If it was delivered by hand - upon its actual service (or at the time when it was offered
to the addressee, in the case of a refusal to accept it); if it was sent by registered post - three (3) business days from the date on which it was handed over for dispatch by registered post; and if it was sent by fax, on the first business
day following the date specified in the transmission confirmation produced by the fax which sent it:
The Trustee - The firm of Gornitzky & Co, Advocates, 45 Rothschild Boulevard Tel Aviv Tel. 03-7109191; Fax. 03-5606555
The Purchaser - Care of the firm of Amit, Pollak, Matalon & Co; Address: 18 Raoul Wallenberg Building D 7th Floor, Tel. 03-5689000; Fax. 03-5689001
|
[The signatures page has been moved to the next page]
In witness whereof the parties have signed:
|
/s/Elchanan Maoz
|
|
/s/Yaron Elhawi
|
|
The Purchaser
|
|
The Trustee
|
Confirmation
I the undersigned, Moran Mordechai, the Purchaser’s attorney hereby confirm as follows:
|
|
3.
|
Messr. Elchanan Maoz who signed the Agreement in the Purchaser’s name,
are authorized to sign this Agreement on its behalf.
|
|
|
4.
|
The Purchaser’s above signature is binding upon it with regard to this Agreement.
|
|
2.3.21
|
|
s/Moran Mordechai
|
|
Date
|
|
Moran Mordechai, Adv.
|
|
|
|
License No. 43543
|
|
|
|
AMP House 18 Raoul Wallenberg St. Building D
|
|
|
|
Ramat HaHayal Tel Aviv 6971915
|
Exhibit 3.1
CERTIFICATE
OF INCORPORATION
OF
METRO
ONE TELECOMMUNICATIONS, INC.
______________________________________
ARTICLE
I.
NAME
OF CORPORATION
The
name of the corporation is Metro One Telecommunications, Inc. (the “Corporation”).
ARTICLE
II.
REGISTERED
OFFICE; REGISTERED AGENT
The
address, including street, number, city and county, of the registered office of the Corporation in the State of Delaware is: 2140 S Dupont
Highway, Camden, DE 19934 in the county of Kent; and the name of the registered agent of the Corporation in the State of Delaware at
such address is: Paracorp Incorporated.
ARTICLE
III.
PURPOSES
AND POWERS
The
purposes and powers of the Corporation are:
3.1
To engage in any lawful activities for which corporations may be organized under the Delaware General Corporation Law.
3.2 To do anything
which shall appear necessary or beneficial to the Corporation in connection with (1) its operation; (2) the accomplishment of its purposes;
or (3) the exercise of its powers set forth in this Certificate of Incorporation.
ARTICLE
IV.
CAPITALIZATION
4.1
Authorized Capital Stock. The aggregate number of shares of capital stock that the Corporation is authorized to issue is Six Hundred
Million (600,000,000), consisting of Six Hundred Million (600,000,000) shares of common stock, par value $0.0001 per share (the “Common
Stock”).
ARTICLE
V.
CONSENT
TO ACTION
Any
action which may be taken at a meeting of the shareholders or directors may be taken without a meeting if all shareholders or directors
entitled to vote on the action consent in writing to the action taken. The written consent shall have the same force and effect as a
unanimous vote of the shareholders or directors.
ARTICLE
VI.
CUMULATIVE
VOTING
No
shareholder shall be entitled to cumulate his votes for election of directors of the Corporation.
ARTICLE
VII.
PREEMPTIVE
RIGHTS DENIED
Unless
otherwise determined by the Board of Directors, no shareholder of the Corporation shall be entitled, as a matter of right, to purchase
or subscribe for any stock of any class which the Corporation may issue or sell, whether or not exchangeable for any stock of the Corporation
of any class or classes and whether out of unissued shares authorized by the Certificate of Incorporation of the Corporation as originally
filed or by any amendment thereof or out of shares acquired in the future. Nor, unless otherwise determined by the Board of Directors,
shall any holder of any shares of the capital stock of the Corporation be entitled, as a matter of right, to purchase or subscribe for
any obligation which the Corporation may issue or sell that shall be convertible into or exchangeable for any shares of the stock of
the Corporation of any class or classes, or to which shall be attached to any warrant or warrants or any other instrument or instruments
that shall confer upon the holder or holders of such obligation the right to subscribe for or purchase from the Corporation any shares
or its capital stock of any class or classes.
ARTICLE
VIII.
DIRECTORS
8.1
The number of directors of the Corporation shall not be less than three nor more than nine, and within such limits, the exact number
shall be fixed and increased or decreased from time to time by resolution of the Board of Directors. The directors shall be elected by
the shareholders at each annual meeting of shareholders. Each director shall serve for a term ending on the date of the next annual meeting
and until his or her successor is duly elected and qualified or until his or her earlier resignation, removal from office, or death.
8.2
All or any number of the directors of the Corporation may be removed only for cause and at a meeting of shareholders called expressly
for that purpose, by a vote of not less than seventy-five percent (75%) of the votes entitled to be cast for the election of directors.
At any meeting of shareholders at which one or more directors are removed, a majority of votes then entitled to be cast for the election
of directors may fill a vacancy created by such removal. If any vacancy created by removal of a director is not filled by the shareholders
at the meeting at which the removal is effected, such vacancy may be filled by a majority vote of the remaining directors.
8.3
The provisions of this Article VIII may not be amended, altered, changed or repealed in any respect unless such action is approved by
the affirmative vote of not less than seventy-five percent (75%) of the votes then entitled to be cast for election of directors.
ARTICLE
IX.
QUORUM
OF SHAREHOLDERS
A
quorum at a meeting of shareholders is constituted by the representation in person or by proxy of fifty-one percent (51%) of the shares
entitled to vote. Shares shall not be counted to make up a quorum for a meeting if voting of them at the meeting has been enjoined or
for any reason they cannot be lawfully voted at the meeting. The shareholders present at a duly held meeting at which a quorum is present
may continue to do business until adjournment in spite of the withdrawal of enough shareholders to leave less than a quorum.
ARTICLE
X.
INDEMNIFICATION
10.1
The Corporation shall indemnify to the fullest extent not prohibited by law any person who was or is a party or is threatened to be made
a party to any Proceeding against all expenses (including attorney fees), judgments, fines, and amounts paid in settlement actually or
reasonably incurred by the person in connection with such Proceeding.
10.2
Expenses incurred by a director or officer of the Corporation in defending a Proceeding shall in all cases be paid by the Corporation
in advance of the final disposition of such Proceeding at the written request of such person, if the person furnishes the Corporation
a written undertaking to repay such advance to the extent ultimately determined by a court that such person is not entitled to be indemnified
by the Corporation under this Article X or under any other indemnification rights granted by the Corporation to such person. Such advances
shall be made without regard to the person’s ability to repay such advances and without regard to the person’s ultimate entitlement
to indemnification under this Article X or otherwise.
10.3
The term “Proceeding” shall include any threatened, pending, or completed action, suit, or proceeding whether brought
in the right of the Corporation or otherwise and whether of a civil, criminal, administrative, or investigative nature, in which a person
may be or may have been involved as a party or otherwise by reason of the fact that the person is or was a director or officer of the
Corporation or a fiduciary within the meaning of the Employee Retirement Income Security Act of 1974 with respect to any employee benefit
plan of the Corporation, or is or was serving the request of the Corporation as a director, officer, or fiduciary of an employee benefit
plan of another corporation, partnership, joint venture, trust, or other enterprise, whether or not serving in such capacity at the time
any liability or expense is incurred for which indemnification or advancement of expenses can be provided under this Article X.
10.4
The indemnification and entitlement to advancement of expenses provided by this Article X shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under the Corporation’s Certificate of Incorporation or any statute, agreement,
general or specific action of the Board of Directors, vote of the shareholders, or otherwise, shall continue as to a person who has ceased
to be a director or officer, shall inure to the benefit of the heirs, executors and administrators of such person and shall extend to
all claims for indemnification or advancement of expenses made after the adoption of this Article X.
10.5
Any repeal of this Article X shall only be prospective and no repeal or modification hereof shall adversely affect the rights under this
Article X in effect at the time of the alleged occurrence of any action or omission to act that is the cause of any Proceeding.
10.6
To the fullest extent permitted by law, no director of this Corporation shall be personally liable to the Corporation or its shareholders
for monetary damages for conduct as a director. No amendment or repeal of this Article X, nor the adoption of any provision of this Certificate
of Incorporation inconsistent with this Article X, nor a change in the law, shall adversely affect any right or protection of a director,
which right or protection is based on this Article X and arises from conduct that occurred prior to the time of such amendment, repeal,
adoption or change. No change in the law shall reduce or eliminate the rights and protections applicable immediately after this provision
becomes effective unless the change in the law shall specifically require such reduction or elimination. If the Delaware General Corporation
Law or its successor is amended, after this Article X becomes effective, to authorize corporate action further eliminating or limiting
the personal liability of directors of the Corporation, then the liability of directors of this Corporation shall eliminated or limited
to the fullest extent permitted by the Delaware General Corporation Law, as so amended.
ARTICLE
XI.
CONSTRUCTION
AND DEFINED TERMS
11.1
Construction. As appropriate in context, whenever the singular number is used in this Certificate of Incorporation, the same includes
the plural, and whenever the plural number is used in this Certificate of Incorporation, the same includes the singular. As used in this
Certificate of Incorporation, each of the neuter, masculine, and feminine genders includes the other two genders. As used in this Certificate
of Incorporation, “include,” “includes,” and “including” shall be deemed to be followed by “without
limitation”.
11.2
Defined Terms. As used in this Certificate of Incorporation,
“Board
of Directors” means the board of directors of the Corporation.
“Bylaws”
means the bylaws of the Corporation, as the same may be amended from time to time.
“Certificate
of Incorporation” means this Certificate of Incorporation of the Corporation, as the same may be amended from time to time.
IN
WITNESS WHEREOF, the undersigned, being the Sole Incorporator of the Corporation has executed this Certificate of Incorporation,
on this 30th day of July, 2021.
|
|
/s/Elchanan Maoz, Sole Incorporator
|
|
|
c/o Metro One Telecommunications, Inc.
|
|
|
30 North Gould Street, Suite 2990
|
|
|
Sheridan, WY 82801
|
Exhibit 3.2
BYLAWS
OF
METRO
ONE TELECOMMUNICATIONS, INC.
Article
I.
Offices
Section
1.1. Principal Office. The principal office of the Corporation shall be located at 30 North Gould Street, Suite 2990, Sheridan,
WY 82801. The Corporation may have such other offices as the Board of Directors may designate or as the business of the Corporation may
from time to time require.
Article
II.
SHAREHOLDERS
Section
2.1. Annual Meeting. The annual meeting of the shareholders shall be held during the month of May each year, unless a different
date and time are fixed by the Board of Directors and stated in the notice of the meeting. The failure to hold an annual meeting at the
time stated herein shall not affect the validity of any corporate action.
Section
2.2. Special Meetings. Special meetings of the shareholders maybe called by the President or by the Board of Directors and
shall be called by the President (or in the event of absence, incapacity, or refusal of the President, by the Secretary or any other
officer) at the request of the holders of not less than one-tenth of all the outstanding shares of the Corporation entitled to vote at
the meeting. The requesting shareholders shall sign, date, and deliver to the Secretary a written demand describing the purpose or purposes
for holding the special meeting.
Section
2.3. Place of Meetings. Meetings of the shareholders shall be held at the principal business office of the Corporation or
at such other place, within or without the State of Wyoming, as may be determined by the Board of Directors (or may not be held at any
place, but may instead be held solely by means of remote communication if so decided by the Board of Directors in its sole discretion).
Section
2.4. Notice of Meetings. Written notice stating the date, time, and place of the meeting and, in the case of a special meeting,
the purpose or purposes for which the meeting is called shall be mailed to each shareholder entitled to vote at the meeting at the shareholder’s
address shown in the Corporation’s current record of shareholders, with postage thereon prepaid, not less than ten (10) nor more
than sixty (60) days before the date of the meeting.
Section
2.5. Waiver of Notice. A shareholder may at any time waive any notice required by law, the Certificate of Incorporation, or
these Bylaws. The waiver must be in writing, be signed by the shareholder entitled to the notice, and be delivered to the Corporation
for inclusion in the minutes for filing with the corporate records. A shareholder’s attendance at a meeting waives objection to
lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting objects to holding the meeting
or transacting business at the meeting. The shareholder’s attendance also waives objection to consideration of a particular matter
at the meeting that is not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering
the matter when it is presented.
Section
2.6. Record Date.
(a) For
the purpose of determining shareholders entitled to notice of a shareholders’ meeting, to demand a special meeting, or to vote
or to take any other action, the Board of Directors may fix a future date as the record date for any such determination of shareholders,
such date in any case to be not more than sixty (60) nor less than ten (10) days before the date of the meeting or action requiring a
determination of shareholders. The record date shall be the same for all voting groups.
(b) A
determination of shareholders entitled to notice of or to vote at a shareholders’ meeting is effective for any adjournment of the
meeting unless the Board of Directors fixes a new record date, which it must do if the meeting is adjourned to a date more than one hundred
and twenty (120) days after the date fixed for the original meeting.
(c) If
a court orders a meeting adjourned to a date more than one hundred and twenty (120) days after the date fixed for the original meeting,
it may provide that the original record date continue in effect or it may fix a new record date.
Section
2.7. Shareholders’ List for Meeting. The Secretary of the Corporation shall prepare, at least ten (10) days before every
meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting (provided, however, if the record date for
determining the shareholders entitled to vote is less than ten (10) days before the meeting date, the list shall reflect the stockholders
entitled to vote as of the tenth (10th) day before the meeting date), arranged in alphabetical order and showing the address
of each stockholder and the number of shares of capital stock of the Corporation registered in the name of each stockholder at least
ten days before any meeting of the stockholders. The list must be arranged by voting group and within each voting group by class or series
of shares and show the address of and number of shares held by each shareholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting for a period of at least ten days before the meeting: (a) on a reasonably accessible electronic
network, provided that the information required to gain access to such list was provided with the notice of the meeting; or (b) during
ordinary business hours, at the principal place of business of the Corporation. If the meeting is to be held at a place, the list shall
also be produced and kept at the time and place of the meeting the whole time thereof and may be inspected by any shareholder who is
present. If the meeting is held solely by means of remote communication, the list shall also be open for inspection by any shareholder
during the whole time of the meeting as provided by applicable law. Except as provided by applicable law, the stock ledger of the Corporation
shall be the only evidence as to who are the shareholders entitled to examine the stock ledger and the list of stockholders or to vote
in person or by proxy at any meeting of shareholders.
Section
2.8. Quorum; Adjournment. Shares entitled to vote as a separate voting group may take action on a matter at a meeting only
if a quorum of those shares exists with respect to that matter. A majority of the votes entitled to be cast on the matter by the voting
group constitutes a quorum of that voting group for action in that matter. A majority of shares represented at the meeting, although
less than a quorum, may adjourn the meeting from time to time to a different time and place without further notice to any shareholder
of any adjournment. At such adjourned meeting at which a quorum is present, any business may be transacted that might have been transacted
at the meeting originally held. Once a share is represented for any purpose at a meeting, it shall be deemed present for quorum purposes
for the remainder of the meeting and for any adjournment of that meeting, unless a new record date is set for the adjourned meeting.
Section
2.9. Voting Requirements; Action Without Meeting.
(a) Unless
otherwise provided in the Certificate of Incorporation, each outstanding share entitled to vote shall be entitled to one vote upon each
matter submitted to a vote at a meeting of shareholders. If a quorum exists, action on a matter, other than the election of directors,
is approved if the votes cast by the shares entitled to vote favoring the action exceed the votes cast opposing the action, unless a
greater number of affirmative votes is required by law or the Certificate of Incorporation. If a quorum exists, directors are elected
by a plurality of the votes cast by the shares entitled to vote unless otherwise provided in the Certificate of Incorporation. No cumulative
voting for directors shall be permitted unless the Certificate of Incorporation so provides. Action required or permitted bylaw to be
taken at a shareholders’ meeting may be taken without a meeting if the action is taken by the shareholders holding of record or
otherwise entitled to vote in the aggregate not less than the minimum number of votes necessary to authorize or take such action at a
meeting at which all shares entitled to vote on the action were present and voted. The taking of action by shareholders without a meeting
must be evidenced by one or more written consents describing the action taken, signed by all the shareholders holding of record or otherwise
entitled to vote in the aggregate not less than the minimum number of votes necessary in order to take such action by written consent,
and delivered to the Corporation for inclusion in the minutes for filing with the corporate records. Action taken under this section
is effective when the last shareholder signs the consent, unless the consent specifies an earlier or later effective date. If the law
requires that notice of proposed action be given to nonvoting shareholders and the action is to be taken by unanimous consent of the
voting shareholders, the Corporation must give its nonvoting shareholders written notice of the proposed action at least ten (10) days
before the action is taken. The notice must contain or be accompanied by the same material that, under the Delaware General Corporation
Law, would have been required to be sent to nonvoting shareholders in a notice of meeting at which the proposed action would have been
submitted to the shareholders for action.
(b) No
consent shall be effective to take the corporate action referred to therein unless consents signed by a sufficient number of holders
or members to take action are delivered to the corporation in the manner required by this section within 60 days of the first date on
which a consent is so delivered to the Corporation. Any person executing a consent may provide, whether through instruction to an agent
or otherwise, that such a consent will be effective at a future time (including a time determined upon the happening of an event), no
later than 60 days after such instruction is given or such provision is made, if evidence of such instruction or provision is provided
to the Corporation. Unless otherwise provided, any such consent shall be revocable prior to its becoming effective.
Section
2.10. Proxies.
(a) A
shareholder may vote shares in person or by proxy by signing an appointment, either personally or by the shareholder’s attorney-in-fact.
An appointment of a proxy shall be effective when received by the Secretary or other officer of the Corporation authorized to tabulate
votes. An appointment is valid for 11 months unless a longer period is provided in the appointment form. An appointment is revocable
by the shareholder unless the appointment form conspicuously states that it is irrevocable and the appointment is coupled with an interest
that has not been extinguished.
(b) The
death or incapacity of a shareholder appointing a proxy shall not affect the right of the Corporation to accept the proxy’s authority
unless notice of the death or incapacity is received by the Secretary or other officer authorized to tabulate votes before the proxy
exercises the proxy’s authority under the appointment.
Section
2.11. Corporation’s Acceptance of Votes.
(a) If
the name signed on a vote, consent, waiver, or proxy appointment corresponds to the name of a shareholder, the Corporation, if acting
in good faith, is entitled to accept the vote, consent, waiver, or proxy appointment and give it effect as the act of the shareholder.
(b) If
the name signed on a vote, consent, waiver, or proxy appointment does not correspond to the name of a shareholder, the Corporation, if
acting in good faith, is nevertheless entitled to accept the vote, consent, waiver, or proxy appointment and give it effect as the act
of the shareholder if:
(i) The
shareholder is an entity and the name signed purports to be that of an officer or agent of the entity;
(ii) The
name signed purports to be that of an administrator, executor, guardian, or conservator representing the shareholder and, if the Corporation
requests, evidence of fiduciary status acceptable to the Corporation has been presented with respect to the vote, consent, waiver, or
proxy appointment;
(iii) The
name signed purports to be that of a receiver or trustee in bankruptcy of the shareholder and, if the Corporation requests, evidence
of this status acceptable to the Corporation has been presented with respect to the vote, consent, waiver, or proxy appointment;
(iv) The
name signed purports to be that of a pledgee, beneficial owner, or attorney-in-fact of the shareholder and, if the Corporation requests,
evidence acceptable to the Corporation of the signatory’s authority to sign for the shareholder has been presented with respect
to the vote, consent, waiver, or proxy appointment; or
(v) Two
or more persons are the shareholder as co-tenants or fiduciaries and the name signed purports to be the name of at least one of the co-owners
and the person signing appears to be acting on behalf of all co-owners.
(c) The
Corporation is entitled to reject a vote, consent, waiver, or proxy appointment if the Secretary or other officer or agent authorized
to tabulate votes, acting in good faith, has reasonable basis for doubt about the validity of the signature on it or about the signatory’s
authority to sign for the shareholder.
(d) The
shares of a corporation are not entitled to vote if they are owned, directly or indirectly, by a second corporation, and the first corporation
owns, directly or indirectly, a majority of the shares entitled to vote for directors of the second corporation; provided, however, a
corporation may vote any shares, including its own shares, held by it in a fiduciary capacity.
(e) The
Corporation and its officer or agent who accepts or rejects a vote, consent, waiver, or proxy appointment in good faith and in accordance
with the standards of this provision shall not be liable in damages to the shareholder for the consequences of the acceptance or rejection.
Corporate action based on the acceptance or rejection of a vote, consent, waiver, or proxy appointment under this provision is valid
unless a court of competent jurisdiction determines otherwise.
Section
2.12. Notice of Business to be Conducted at Meeting. At an annual meeting of the shareholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be (a)
specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (b) otherwise
properly brought before the meeting by or at the direction of the Board of Directors, or (c) otherwise properly brought before an annual
meeting by a shareholder.
For
business to be properly brought before an annual meeting by a shareholder, the shareholder must have given timely notice thereof in writing
to the Secretary of the Corporation. To be timely, a shareholder’s notice must be delivered to or mailed and received at the principal
executive offices of the Corporation not less than sixty (60) days nor more than ninety (90) days prior to the meeting; provided, however,
that in the event that less than sixty (60) days’ notice or prior public disclosure of the date of the meeting is given or made
to shareholders, notice by the shareholder to be timely must be so received not later than the close of business on the 10th day following
the day on which such notice of the date of the annual meeting was mailed or such public disclosure was made.
A
shareholder’s notice to the Secretary shall set forth as to each matter the shareholder proposes to bring before the annual meeting
(a) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (b) the name and address, as they appear on the Corporation’s books, of the shareholder proposing such business,
(c) the class and number of shares of stock of the Corporation which are beneficially owned by the shareholder, and (d) any material
interest of the shareholder in such business. Notwithstanding anything in the Bylaws to the contrary, no business shall be conducted
at any annual meeting except in accordance with the procedures set forth in this Section 2.12.
The
Chairman of the annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought
before the meeting and in accordance with the provisions of this Section 2.12 and if the Chairman should so determine, the Chairman shall
so declare to the meeting and any such business not properly brought before the meeting shall not be transacted.
Article
III.
Board of Directors
Section
3.1. Duties. All corporate powers shall be exercised by or under the authority of the Board of Directors and the business
and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.
Section
3.2. Number and Qualification. As set forth in the Certificate of Incorporation, the number of directors of the Corporation
shall be not less than three nor more than nine, and within such limits, the exact number shall be fixed and increased or decreased from
time to time by resolution of the Board of Directors. At such time as the Board of Directors fixes the number of directors at six or
more, the directors shall be divided into three classes designated Class I, Class II and Class III, each class to be as nearly equal
in number as possible. At the first annual meeting of shareholders following the designation of six or more directors (the “First
Meeting”), directors of all three classes shall be elected. The term of office of the Class I directors shall expire at the
annual meeting of shareholders held in the first calendar year following the calendar year in which the First Meeting is held. The term
of office of the Class II directors shall expire at the annual meeting of shareholders held in the second calendar year following the
calendar year in which the First Meeting is held. The term of office of the Class III directors shall expire at the annual meeting of
shareholders held in the third calendar year following the calendar year in which the First Meeting is held. At each annual meeting of
shareholders after the First Meeting, each class of director selected to succeed those directors whose terms expire shall be elected
to serve for three-year terms and until their successors are elected and qualified, so that the term of one class of directors will expire
each year. When the number of directors is changed within the limits provided herein, any newly created directorships, or any decrease
in directorships, shall be so apportioned among the classes as to make all classes as nearly equal as possible, provided that no decrease
in the number of directors constituting the Board of Directors shall shorten the term of any incumbent directors. Directors need not
be residents of the State of Delaware or shareholders of the Corporation.
Section
3.3. Chairman of the Board of Directors. The directors may elect a director to serve as Chairman of the Board of Directors
to preside at all meetings of the Board of Directors and to fulfill any other responsibilities delegated by the Board of Directors.
Section
3.4. Regular Meetings. A regular meeting of the Board of Directors shall be held without other notice than this Section 3.4
immediately after, and at the same place as, the annual meeting of shareholders. The Board of Directors may provide, by resolution, the
time and place, either within or without the State of Wyoming, for the holding of additional regular meetings without other notice than
the resolution.
Section
3.5. Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the President or any
director. The person or persons authorized to call special meetings of the Board of Directors may fix any place, either within or without
the State of Wyoming, as the place for holding any special meeting of the Board of Directors called by them.
Section
3.6. Notice. Notice of the date, time, and place of any special meeting of the Board of Directors shall be given at least
three days prior to the meeting by any means provided by law. If mailed, notice shall be deemed to be given upon deposit in the United
States mail addressed to the director at the director’s business address, with postage thereon prepaid. If by telegram, notice
shall be deemed to be given when the telegram is delivered to the telegraph company. Notice by all other means shall be deemed to be
given when received by the director or a person at the director’s business or residential address whom the person giving notice
reasonably believes will deliver or report the notice to the director within 24 hours. The attendance of a director at a meeting shall
constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting.
Section
3.7 Waiver of Notice. A director may at any time waive any notice required by law, the Certificate of Incorporation, or these
Bylaws. Unless a director attends or participates in a meeting, a waiver must be in writing, must be signed by the director entitled
to notice, must specify the meeting for which notice is waived, and must be filed with the minutes or corporate records.
Section
3.8. Quorum. A majority of the number of directors fixed by Section 3.2 shall constitute a quorum for the transaction of business
at any meeting of the Board of Directors.
Section
3.9. Manner of Acting.
(a) The
act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless
a different number is provided by law, the Certificate of Incorporation, or these Bylaws.
(b) Members
of the Board of Directors may hold a board meeting by conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other. Participation in such a meeting shall constitute presence in person at the
meeting.
(c) Any
action that is required or permitted to be taken by the directors at a meeting may be taken without a meeting if a consent in writing
setting forth the action so taken shall be signed by all of the directors. The action shall be effective on the date when the last signature
is placed on the consent or at such earlier or later time as is set forth therein. Such consent, which shall have the same effect as
a unanimous vote of the directors, shall be filed with the minutes of the Corporation.
Section
3.10. Vacancies. Any vacancy, including a vacancy resulting from an increase in the number of directors, occurring on the
Board of Directors may be filled by the shareholders, the Board of Directors, or the affirmative vote of a majority of the remaining
directors if less than a quorum of the Board of Directors, or by a sole remaining director. If the vacant office is filled by the shareholders
and was held by a director elected by a voting group of shareholders, then only the holders of shares of that voting group are entitled
to vote to fill the vacancy. Any directorship not so filled by the directors shall be filled by election at an annual meeting or at a
special meeting of shareholders called for that purpose. A director elected to fill a vacancy shall be elected to serve until the next
annual meeting of shareholders and until a successor shall be duly elected and qualified. A vacancy that will occur at a specific later
date, by reason of a resignation or otherwise, may be filled before the vacancy occurs, and the new director shall take office when the
vacancy occurs.
Section
3.11. Compensation. By resolution of the Board of Directors, the directors may be paid their expenses, if any, of attendance
at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated
salary as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation
therefor.
Section
3.12. Presumption of Assent. A director of the Corporation who is present at a meeting of the Board of Directors or a committee
of the Board of Directors shall be presumed to have assented to the action taken (a) unless the director’s dissent to the action
is entered in the minutes of the meeting, (b) unless a written dissent to the action is filed with the person acting as the secretary
of the meeting before the adjournment thereof or forwarded by certified or registered mail to the Secretary of the Corporation immediately
after the adjournment of the meeting or (c) unless the director objects at the meeting to the holding of the meeting or transacting business
at the meeting. The right to dissent shall not apply to a director who voted in favor of the action.
Section
3.13. Removal. All or any number of the directors of the Corporation may be removed with or without cause and at a meeting
of shareholders called expressly for that purpose, by the vote of a majority of the votes then entitled to be cast for the election of
directors. At any meeting of shareholders at which one or more directors are removed, a majority of votes then entitled to be cast for
the election of directors may fill any vacancy created by such removal. If any vacancy created by removal of a director is not filled
by the shareholders at the meeting at which the removal is effected, such vacancy may be filled by a majority vote of the remaining directors.
Section
3.14. Resignation. Any director may resign by delivering written notice to the Board of Directors, its chairperson, or the
Corporation. Such resignation shall be effective at the earliest of the following, unless the notice specifies a later effective date,
(a) on receipt, (b) five (5) days after its deposit in the United States mails, if mailed postpaid and correctly addressed, or (c) on
the date shown on the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by
addressee. Once delivered, a notice of resignation is irrevocable unless revocation is permitted by the Board of Directors.
Section
3.15. Nominations for Election to Board of Directors. Only persons who are nominated in accordance with the procedures set
forth in this Section 3.15 shall be eligible for election as directors. Nominations of persons for election to the Board of Directors
may be made at a meeting of shareholders by or at the direction of the Board of Directors or by any shareholder of the Corporation entitled
to vote for the election of directors at the meeting who complies with the notice procedures set forth in this Section 3.15.
Such
nominations, other than those made by or at the direction of the Board of Directors shall be made pursuant to timely notice in writing
to the Secretary of the Corporation. To be timely, a shareholder’s notice shall be delivered to or mailed and received at the principal
executive offices of the Corporation not less than sixty (60) days nor more than ninety (90) days prior to the meeting; provided, however,
that in the event that less than sixty (60) days’ notice or prior public disclosure of the date of the meeting is given or made
to shareholders, notice by the shareholder to be timely must be so received not later than the close of business on the tenth (10th)
day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made.
Such
shareholder’s notice shall set forth (a) as to each person whom the shareholder proposes to nominate for election or re-election
as a director, (i) the name, age, business address and residence address of such person, (ii) the principal occupation or employment
of such person, (iii) the class and number of shares of stock of the Corporation which are beneficially owned by such person, and (iv)
any other information relating to such person that is required to be disclosed in solicitations of proxies for election of directors,
or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act (including, without limitation, such person’s
written consent to being named in the proxy statement as a nominee and to serving as a director if elected); and (b) as to the shareholder
giving the notice, (i) the name and address, as they appear on the Corporation’s books, of such shareholder, and (ii) the class
and number of shares of stock of the Corporation which are beneficially owned by such shareholder.
At
the request of the Board of Directors, any person nominated by the Board of Directors for election as a director shall furnish to the
Secretary of the Corporation that information required to be set forth in a shareholder’s notice of nomination which pertains to
the nominee.
No
person shall be eligible for election as a director of the Corporation unless nominated in accordance with the procedures set forth in
this Section 3.15. The Chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was
not made in accordance with the procedures prescribed by these Bylaws, and if the Chairman should so determine, the Chairman shall so
declare to the meeting and the defective nomination shall be disregarded.
Article
IV.
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section
4.1. Designation of Executive Committee. The Board of Directors may designate two or more directors to constitute an executive
committee. The designation of an executive committee, and the delegation of authority to it, shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility imposed by law. No member of the executive committee shall continue to be a member
thereof after ceasing to be a director of the Corporation. The Board of Directors shall have the power at any time to increase or decrease
the number of members of the executive committee, to fill vacancies thereon, to change any member thereof, and to change the functions
or terminate the existence thereof. The creation of the executive committee and the appointment of members to it shall be approved by
a majority of the directors in office when the action is taken, unless a greater number is required by the Certificate of Incorporation
or these Bylaws.
Section
4.2. Powers of Executive Committee. During the interval between meetings of the Board of Directors, and subject to such limitations
as may be imposed by resolution of the Board of Directors, the executive committee may have and may exercise all the authority of the
Board of Directors in the management of the Corporation, provided that the committee shall not have the authority of the Board of Directors
with respect to the following matters: authorizing distributions; approving or proposing to the shareholders actions that are required
to be approved by the shareholders under the Certificate of Incorporation or these Bylaws or by law; filling vacancies on the Board of
Directors or any committee thereof; amending the Certificate of Incorporation; adopting, amending, or repealing bylaws; approving a plan
of merger not requiring shareholder approval; authorizing or approving a reacquisition of shares, except according to a formula or method
prescribed by the Board of Directors; authorizing or approving the issuance or sale or contract for sale of shares or determining the
designation and relative rights, preferences, and limitations of a class or series of shares except within limits specifically prescribed
by the Board of Directors.
Section
4.3. Procedures; Meetings; Quorum.
(a) The
Board of Directors shall appoint a chairperson from among the members of the executive committee and shall appoint a secretary who may,
but need not, be a member of the executive committee. The chairperson shall preside at all meetings of the executive committee and the
secretary of the executive committee shall keep a record of its acts and proceedings, which shall be filed with the minutes of the Corporation.
(b) Regular
meetings of the executive committee, of which no notice shall be necessary, shall be held on such days and at such places as shall be
fixed by resolution adopted by the executive committee. Special meetings of the executive committee shall be called at the request of
the President or of any member of the executive committee, and shall be held upon such notice as is required by these Bylaws for special
meetings of the Board of Directors.
(c) Attendance
of any member of the executive committee at a meeting shall constitute a waiver of notice of the meeting. A majority of the executive
committee, from time to time, shall be necessary to constitute a quorum for the transaction of any business, and the act of a majority
of the members present at a meeting at which a quorum is present shall be the act of the executive committee. Members of the executive
committee may hold a meeting of such committee by conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in such meeting shall constitute presence in person at the meeting.
(d) Any
action that is required or permitted to be taken at a meeting of the executive committee may be taken without a meeting if a consent
in writing setting forth the action so taken shall be signed by all members of the executive committee. The action shall be effective
on the date when the last signature is placed on the consent or at such earlier or later time as is set forth therein. Such consent,
which shall have the same effect as a unanimous vote of the members of the executive committee, shall be filed with the minutes of the
Corporation.
(e) The
Board of Directors may approve a reasonable fee for the members of the executive committee as compensation for attendance at meetings
of the executive committee.
Section
4.4. Other Committees. By the approval of a majority of the directors when the action is taken (unless a greater number is
required by the Certificate of Incorporation), the Board of Directors, by resolution, may create one or more additional committees, appoint
directors to serve on them, and define the duties of such committee or committees. Each such committee shall have two or more members,
who shall serve at the pleasure of the Board of Directors. Such additional committee or committees shall not have the powers proscribed
in Section 4.2.
Article
V.
OFFICERS
Section
5.1. Number. The officers of the Corporation shall be a President and a Secretary. The Corporation may also have one or more
Vice Presidents, one or more Assistant Secretaries, and such other officers and assistant officers as are deemed necessary or desirable
by the Board of Directors, and such officers shall have such powers and duties prescribed by the Board of Directors or the officer authorized
by the Board of Directors to prescribe the duties of other officers, provided such powers and duties are not in contravention with these
Bylaws. A duly appointed officer may appoint one or more officers or assistant officers if such appointment is authorized by the Board
of Directors. Any two or more offices may be held by the same person.
Section
5.2. Appointment and Term of Office. The officers of the Corporation shall be appointed annually by the Board of Directors
at the first meeting of the Board of Directors held after the annual meeting of the shareholders. If the officers shall not be appointed
at the meeting, a meeting shall be held as soon thereafter as is convenient for such appointment of officers. Each officer shall hold
office until a successor shall have been duly appointed and qualified or until the officer’s death, resignation, or removal.
Section
5.3. Qualification. An officer need not be a director, shareholder, or a resident of the State of Delaware.
Section
5.4. Resignation and Removal. An officer may resign at any time by delivering notice of such resignation to the Corporation.
A resignation is effective on receipt unless the notice specifies a later effective date. If the Corporation accepts a specified later
effective date, the Board of Directors may fill the pending vacancy before the effective date, but the successor may not take office
until the effective date. Once delivered, a notice of resignation is irrevocable unless revocation is permitted by the Board of Directors.
Any officer appointed by the Board of Directors may be removed at any time with or without cause. Appointment of an officer shall not
of itself create contract rights. Removal or resignation of an officer shall not affect the contract rights, if any, of the Corporation
or the officer.
Section
5.5. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or otherwise may be filled
by the Board of Directors for the unexpired portion of the term.
Section
5.6. President. The President shall be the chief executive officer of the Corporation and shall be in general charge of its
business and affairs, subject to the control of the Board of Directors. The President shall preside at all meetings of shareholders and
at all meetings of directors (unless there is an acting Chairman of the Board presiding at the meeting). The President may execute on
behalf of the Corporation all contracts, agreements, stock certificates, and other instruments. The President shall from time to time
report to the Board of Directors all matters within the President’s knowledge affecting the Corporation that should be brought
to the attention of the Board of Directors. The President shall vote all shares of stock in other corporations owned by the Corporation
and is empowered to execute proxies, waivers of notice, consents, and other instruments in the name of the Corporation with respect to
such stock. The President shall perform other duties assigned by the Board of Directors.
Section
5.7. Vice Presidents. In the absence of the President or in the event of the President’s death or inability or refusal
to act, the Vice President (or, in the event there be more than one Vice President, the Vice Presidents in the order designated at the
time of their election, or in the absence of any designation, then in the order of their election), if any, shall perform the duties
of the President and, when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Any Vice
President shall perform other duties assigned by the President or by the Board of Directors.
Section
5.8. Secretary. The Secretary shall prepare the minutes of all meetings of the directors and shareholders, shall have custody
of the minute books and other records pertaining to the corporate business, and shall be responsible for authenticating the records of
the Corporation. The Secretary shall countersign all instruments requiring the seal of the Corporation and shall perform other duties
assigned by the Board of Directors. In the event no Vice President exists to succeed to the President under the circumstances set forth
in Section 5.7 above, the Secretary shall make such succession.
Section
5.9. Assistant Secretaries. The Assistant Secretaries, when authorized by the Board of Directors or these Bylaws, may sign,
with the President or Vice President, certificates for shares of the Corporation the issuance of which shall have been authorized by
resolution of the Board of Directors. The Assistant Secretaries shall, if required by the Board of Directors, give bonds for the faithful
discharge of their duties in such sums and with such sureties as the Board of Directors shall determine. The Assistant Secretaries shall,
in general, perform such duties as shall be specifically assigned to them in writing by the President or the Board of Directors.
Section
5.10. Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors, and no officer shall
be prevented from receiving such salary because the officer is also a director of the Corporation.
ARTICLE
VI
ISSUANCE OF SHARES
Section
6.1. Certificates for Shares.
(a) Certificates
representing shares of the Corporation shall be in a form determined by the Board of Directors consistent with the requirements of the
Delaware General Corporation Law and these Bylaws; provided that any shares of the Corporation may be uncertificated, whether upon original
issuance, reissuance or subsequent transfer. Shares represented by certificates shall be signed, either manually or in facsimile, by
two officers of the Corporation, at least one of whom shall be the President or a Vice President, and may be sealed with the seal of
the Corporation or a facsimile thereof. The signature of officers upon a certificate may be facsimiles if the certificate is countersigned
by a transfer agent or registered by a registrar other than the Corporation itself or an employee of the Corporation. All certificates
for shares shall be consecutively numbered or otherwise identified. Except as otherwise provided by law, the rights and obligations of
shareholders are identical whether or not their shares are represented by certificates.
(b) Every
certificate for shares of stock that are subject to any restriction on transfer pursuant to the Certificate of Incorporation, these Bylaws,
securities laws, agreements among or between shareholders, or any agreement to which the Corporation is a party shall have conspicuously
noted on the face or back of the certificate either (i) the full text of the restriction or (ii) a statement of the existence of the
restriction and that the Corporation retains a copy of the restriction. Every certificate issued when the Corporation is authorized to
issue more than one class or series within a class of stock shall set forth on its face or back either (i) the full text of the designations,
relative rights, preferences, and limitations of the shares of each class and the variations in rights, preferences and limitations for
each series authorized to be issued and the authority of the Board of Directors to determine variations for future series or (ii) a statement
of the existence of such designations, relative rights, preferences, and limitations and a statement that the Corporation will furnish
a copy thereof to the holder of such certificate upon written request and without charge.
(c) Within
a reasonable time after the issuance or transfer of uncertificated shares, the Corporation shall cause to be sent to the registered owner
of such shares a written notice that will designate the name of the Corporation and the state law under which the Corporation is organized,
the name of the person to whom the uncertificated shares are issued, and the number and class of shares and the designation of the series,
if any, of the shares represented. The written notice will summarize any restriction on the transfer of shares imposed by the Certificate
of Incorporation, these Bylaws, securities laws, agreements among or between shareholders or any agreement to which the Corporation is
a party, and if the Corporation is authorized to issue different classes of shares or different series within a class, the full text
of the designations, relative rights, preferences and limitations of the shares of each class, the variations in rights, preferences
and limitations for each series authorized to be issued, and the authority of the Board of Directors to determine variations for future
series, and further shall provide such other information as may be required under the Delaware General Corporation Law.
(d) The
name and mailing address of the person to whom shares are issued, with the number of shares and date of issue, shall be entered on the
stock transfer books of the Corporation. Each shareholder shall have the duty to notify the Corporation of his or her mailing address.
All certificates surrendered to the Corporation for transfer shall be canceled, and no new certificate of stock or uncertificated shares
shall be issued for then-outstanding certificated shares until the former certificate for a like number of shares shall have been surrendered
and canceled, except that in case of a lost, destroyed, or mutilated certificate a new one may be issued therefor upon such terms and
indemnity to the Corporation as the Board of Directors prescribes. Upon receipt of proper transfer instructions from the holder of uncertificated
shares, the Corporation shall cancel such uncertificated shares and issue new equivalent uncertificated shares, or, upon such holder’s
request, certificated shares, to the person entitled thereto, and record the transaction upon its books.
Section
6.2. Transfer of Shares. A transfer of shares of the Corporation shall be made only on the stock transfer books of the Corporation
by direction of the holder of record thereof or by direction of the holder’s legal representative, who shall furnish proper evidence
of authority to transfer, or by the direction of the holder’s attorney thereunto authorized by power of attorney duly executed
and filed with the Secretary of the Corporation, and on surrender for cancellation of the certificate for such shares or upon proper
instruction from the holder of uncertificated shares. The person in whose name shares stand on the books of the Corporation shall be
deemed by the Corporation to be the owner thereof for all purposes.
Section
6.3. Transfer Agent and Registrar. The Board of Directors may from time to time appoint one or more transfer agents and one
or more registrars for the shares of the Corporation, with such powers and duties as the Board of Directors determines by resolution.
Section
6.4. Officer Ceasing to Act. If the person who signed a share certificate, either manually or in facsimile, no longer holds
office when the certificate is issued, the certificate is nevertheless valid.
Article
VII.
CONTRACTS, LOANS, CHECKS, AND OTHER INSTRUMENTS
Section
7.1. Contracts. The Board of Directors may authorize any officer or officers and agent or agents to enter into any contract
or execute and deliver any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined
to specific instances.
Section
7.2. Loans. No loans shall be contracted on behalf of the Corporation and no evidence of indebtedness shall be issued in its
name unless authorized by a resolution of the Board of Directors. Such authority may be general or confined to specific instances.
Section
7.3. Checks; Drafts. All checks, drafts, or other orders for the payment of money and notes or other evidences of indebtedness
issued in the name of the Corporation shall be signed by such officer or officers and agent or agents of the Corporation and in such
manner as shall from time to time be determined by resolution of the Board of Directors.
Section
7.4. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the
Corporation in such banks, trust companies, or other depositories as the Board of Directors may select.
Article
VIII.
MISCELLANEOUS PROVISIONS
Section
8.1. Seal. The Board of Directors from time to time may provide for a seal of the Corporation, which shall be circular in
form and shall have inscribed thereon the name of the Corporation, the state of incorporation and the words “Corporate Seal.”
Section
8.2. Severability. Any determination that any provision of these Bylaws is for any reason inapplicable, invalid, illegal,
or otherwise ineffective shall not affect or invalidate any other provision of these Bylaws.
Article
IX.
AMENDMENTS
These
Bylaws may be altered, amended, or repealed and new bylaws may be adopted by the Board of Directors at any regular or special meeting,
subject to repeal or change by action of the shareholders of the Corporation.
ARTICLE
X.
CONSTRUCTION
AND DEFINED TERMS
Section
10.1. Construction. As appropriate in context, whenever the singular number is used in these Bylaws, the same includes the
plural, and whenever the plural number is used in these Bylaws, the same includes the singular. As used in these Bylaws, each of the
neuter, masculine, and feminine genders includes the other two genders. As used in these Bylaws, “include,” “includes,”
and “including” shall be deemed to be followed by “without limitation”.
Section
10.2. Defined Terms. As used in these Bylaws,
“Board
of Directors” means the board of directors of the Corporation.
“Bylaws”
means these bylaws of the Corporation, as the same may be amended from time to time.
“Certificate
of Incorporation” means the Certificate of Incorporation of the Corporation, as the same may be amended from time to time.
“Corporation”
means Metro One Telecommunications, Inc.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Delaware
General Corporation Law” means Chapter 1, Title 8 of the Delaware Code, as the same may be amended from time to time.
Exhibit 3.3
AMENDED
AND RESTATED BYLAWS
OF
METRO
ONE TELECOMMUNICATIONS, INC.
Article
I.
Offices
Section
1.1. Principal Office. The principal office of the Corporation shall be located at 30 North Gould Street, Suite 2990, Sheridan,
WY 82801. The Corporation may have such other offices as the Board of Directors may designate or as the business of the Corporation may
from time to time require.
Article
II.
SHAREHOLDERS
Section
2.1. Annual Meeting. The annual meeting of the shareholders shall be held during the month of May each year, unless a different
date and time are fixed by the Board of Directors and stated in the notice of the meeting. The failure to hold an annual meeting at the
time stated herein shall not affect the validity of any corporate action.
Section
2.2. Special Meetings. Special meetings of the shareholders may be called by the President or by the Board of Directors and
shall be called by the President (or in the event of absence, incapacity, or refusal of the President, by the Chief Executive Officer,
Secretary or any other officer) at the request of the holders of not less than one-tenth of all the outstanding shares of the Corporation
entitled to vote at the meeting. The requesting shareholders shall sign, date, and deliver to the Secretary a written demand describing
the purpose or purposes for holding the special meeting.
Section
2.3. Place of Meetings. Meetings of the shareholders shall be held at the principal business office of the Corporation or
at such other place, within or without the State of Wyoming, as may be determined by the Board of Directors (or may not be held at any
place, but may instead be held solely by means of remote communication if so decided by the Board of Directors in its sole discretion).
Section
2.4. Notice of Meetings. Written notice stating the date, time, and place of the meeting and, in the case of a special meeting,
the purpose or purposes for which the meeting is called shall be mailed to each shareholder entitled to vote at the meeting at the shareholder’s
address shown in the Corporation’s current record of shareholders, with postage thereon prepaid, not less than ten (10) nor more
than sixty (60) days before the date of the meeting.
Section
2.5. Waiver of Notice. A shareholder may at any time waive any notice required by law, the Certificate of Incorporation, or
these Bylaws. The waiver must be in writing, be signed by the shareholder entitled to the notice, and be delivered to the Corporation
for inclusion in the minutes for filing with the corporate records. A shareholder’s attendance at a meeting waives objection to
lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting objects to holding the meeting
or transacting business at the meeting. The shareholder’s attendance also waives objection to consideration of a particular matter
at the meeting that is not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering
the matter when it is presented.
Section
2.6. Record Date.
(a) For
the purpose of determining shareholders entitled to notice of a shareholders’ meeting, to demand a special meeting, or to vote
or to take any other action, the Board of Directors may fix a future date as the record date for any such determination of shareholders,
such date in any case to be not more than sixty (60) nor less than ten (10) days before the date of the meeting or action requiring a
determination of shareholders. The record date shall be the same for all voting groups.
(b) A
determination of shareholders entitled to notice of or to vote at a shareholders’ meeting is effective for any adjournment of the
meeting unless the Board of Directors fixes a new record date, which it must do if the meeting is adjourned to a date more than one hundred
and twenty (120) days after the date fixed for the original meeting.
(c) If
a court orders a meeting adjourned to a date more than one hundred and twenty (120) days after the date fixed for the original meeting,
it may provide that the original record date continue in effect or it may fix a new record date.
Section
2.7. Shareholders’ List for Meeting. The Secretary of the Corporation shall prepare, at least ten (10) days before every
meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting (provided, however, if the record date for
determining the shareholders entitled to vote is less than ten (10) days before the meeting date, the list shall reflect the stockholders
entitled to vote as of the tenth (10th) day before the meeting date), arranged in alphabetical order and showing the address
of each stockholder and the number of shares of capital stock of the Corporation registered in the name of each stockholder at least
ten days before any meeting of the stockholders. The list must be arranged by voting group and within each voting group by class or series
of shares and show the address of and number of shares held by each shareholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting for a period of at least ten days before the meeting: (a) on a reasonably accessible electronic
network, provided that the information required to gain access to such list was provided with the notice of the meeting; or (b) during
ordinary business hours, at the principal place of business of the Corporation. If the meeting is to be held at a place, the list shall
also be produced and kept at the time and place of the meeting the whole time thereof and may be inspected by any shareholder who is
present. If the meeting is held solely by means of remote communication, the list shall also be open for inspection by any shareholder
during the whole time of the meeting as provided by applicable law. Except as provided by applicable law, the stock ledger of the Corporation
shall be the only evidence as to who are the shareholders entitled to examine the stock ledger and the list of stockholders or to vote
in person or by proxy at any meeting of shareholders.
Section
2.8. Quorum; Adjournment. Shares entitled to vote as a separate voting group may take action on a matter at a meeting only
if a quorum of those shares exists with respect to that matter. A majority of the votes entitled to be cast on the matter by the voting
group constitutes a quorum of that voting group for action in that matter. A majority of shares represented at the meeting, although
less than a quorum, may adjourn the meeting from time to time to a different time and place without further notice to any shareholder
of any adjournment. At such adjourned meeting at which a quorum is present, any business may be transacted that might have been transacted
at the meeting originally held. Once a share is represented for any purpose at a meeting, it shall be deemed present for quorum purposes
for the remainder of the meeting and for any adjournment of that meeting, unless a new record date is set for the adjourned meeting.
Section
2.9. Voting Requirements; Action Without Meeting.
(a) Unless
otherwise provided in the Certificate of Incorporation, each outstanding share entitled to vote shall be entitled to one vote upon each
matter submitted to a vote at a meeting of shareholders. If a quorum exists, action on a matter, other than the election of directors,
is approved if the votes cast by the shares entitled to vote favoring the action exceed the votes cast opposing the action, unless a
greater number of affirmative votes is required by law or the Certificate of Incorporation. If a quorum exists, directors are elected
by a plurality of the votes cast by the shares entitled to vote unless otherwise provided in the Certificate of Incorporation. No cumulative
voting for directors shall be permitted unless the Certificate of Incorporation so provides. Action required or permitted bylaw to be
taken at a shareholders’ meeting may be taken without a meeting if the action is taken by the shareholders holding of record or
otherwise entitled to vote in the aggregate not less than the minimum number of votes necessary to authorize or take such action at a
meeting at which all shares entitled to vote on the action were present and voted. The taking of action by shareholders without a meeting
must be evidenced by one or more written consents describing the action taken, signed by all the shareholders holding of record or otherwise
entitled to vote in the aggregate not less than the minimum number of votes necessary in order to take such action by written consent,
and delivered to the Corporation for inclusion in the minutes for filing with the corporate records. Action taken under this section
is effective when the last shareholder signs the consent, unless the consent specifies an earlier or later effective date. If the law
requires that notice of proposed action be given to nonvoting shareholders and the action is to be taken by unanimous consent of the
voting shareholders, the Corporation must give its nonvoting shareholders written notice of the proposed action at least ten (10) days
before the action is taken. The notice must contain or be accompanied by the same material that, under the Delaware General Corporation
Law, would have been required to be sent to nonvoting shareholders in a notice of meeting at which the proposed action would have been
submitted to the shareholders for action.
(b) No
consent shall be effective to take the corporate action referred to therein unless consents signed by a sufficient number of holders
or members to take action are delivered to the corporation in the manner required by this section within 60 days of the first date on
which a consent is so delivered to the Corporation. Any person executing a consent may provide, whether through instruction to an agent
or otherwise, that such a consent will be effective at a future time (including a time determined upon the happening of an event), no
later than 60 days after such instruction is given or such provision is made, if evidence of such instruction or provision is provided
to the Corporation. Unless otherwise provided, any such consent shall be revocable prior to its becoming effective.
Section
2.10. Proxies.
(a) A
shareholder may vote shares in person or by proxy by signing an appointment, either personally or by the shareholder’s attorney-in-fact.
An appointment of a proxy shall be effective when received by the Secretary or other officer of the Corporation authorized to tabulate
votes. An appointment is valid for 11 months unless a longer period is provided in the appointment form. An appointment is revocable
by the shareholder unless the appointment form conspicuously states that it is irrevocable and the appointment is coupled with an interest
that has not been extinguished.
(b) The
death or incapacity of a shareholder appointing a proxy shall not affect the right of the Corporation to accept the proxy’s authority
unless notice of the death or incapacity is received by the Secretary or other officer authorized to tabulate votes before the proxy
exercises the proxy’s authority under the appointment.
Section
2.11. Corporation’s Acceptance of Votes.
(a) If
the name signed on a vote, consent, waiver, or proxy appointment corresponds to the name of a shareholder, the Corporation, if acting
in good faith, is entitled to accept the vote, consent, waiver, or proxy appointment and give it effect as the act of the shareholder.
(b) If
the name signed on a vote, consent, waiver, or proxy appointment does not correspond to the name of a shareholder, the Corporation, if
acting in good faith, is nevertheless entitled to accept the vote, consent, waiver, or proxy appointment and give it effect as the act
of the shareholder if:
(i) The
shareholder is an entity and the name signed purports to be that of an officer or agent of the entity;
(ii) The
name signed purports to be that of an administrator, executor, guardian, or conservator representing the shareholder and, if the Corporation
requests, evidence of fiduciary status acceptable to the Corporation has been presented with respect to the vote, consent, waiver, or
proxy appointment;
(iii) The
name signed purports to be that of a receiver or trustee in bankruptcy of the shareholder and, if the Corporation requests, evidence
of this status acceptable to the Corporation has been presented with respect to the vote, consent, waiver, or proxy appointment;
(iv) The
name signed purports to be that of a pledgee, beneficial owner, or attorney-in-fact of the shareholder and, if the Corporation requests,
evidence acceptable to the Corporation of the signatory’s authority to sign for the shareholder has been presented with respect
to the vote, consent, waiver, or proxy appointment; or
(v) Two
or more persons are the shareholder as co-tenants or fiduciaries and the name signed purports to be the name of at least one of the co-owners
and the person signing appears to be acting on behalf of all co-owners.
(c) The
Corporation is entitled to reject a vote, consent, waiver, or proxy appointment if the Secretary or other officer or agent authorized
to tabulate votes, acting in good faith, has reasonable basis for doubt about the validity of the signature on it or about the signatory’s
authority to sign for the shareholder.
(d) The
shares of a corporation are not entitled to vote if they are owned, directly or indirectly, by a second corporation, and the first corporation
owns, directly or indirectly, a majority of the shares entitled to vote for directors of the second corporation; provided, however, a
corporation may vote any shares, including its own shares, held by it in a fiduciary capacity.
(e) The
Corporation and its officer or agent who accepts or rejects a vote, consent, waiver, or proxy appointment in good faith and in accordance
with the standards of this provision shall not be liable in damages to the shareholder for the consequences of the acceptance or rejection.
Corporate action based on the acceptance or rejection of a vote, consent, waiver, or proxy appointment under this provision is valid
unless a court of competent jurisdiction determines otherwise.
Section
2.12. Notice of Business to be Conducted at Meeting. At an annual meeting of the shareholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be (a)
specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (b) otherwise
properly brought before the meeting by or at the direction of the Board of Directors, or (c) otherwise properly brought before an annual
meeting by a shareholder.
For
business to be properly brought before an annual meeting by a shareholder, the shareholder must have given timely notice thereof in writing
to the Secretary of the Corporation. To be timely, a shareholder’s notice must be delivered to or mailed and received at the principal
executive offices of the Corporation not less than sixty (60) days nor more than ninety (90) days prior to the meeting; provided, however,
that in the event that less than sixty (60) days’ notice or prior public disclosure of the date of the meeting is given or made
to shareholders, notice by the shareholder to be timely must be so received not later than the close of business on the 10th day following
the day on which such notice of the date of the annual meeting was mailed or such public disclosure was made.
A
shareholder’s notice to the Secretary shall set forth as to each matter the shareholder proposes to bring before the annual meeting
(a) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (b) the name and address, as they appear on the Corporation’s books, of the shareholder proposing such business,
(c) the class and number of shares of stock of the Corporation which are beneficially owned by the shareholder, and (d) any material
interest of the shareholder in such business. Notwithstanding anything in the Bylaws to the contrary, no business shall be conducted
at any annual meeting except in accordance with the procedures set forth in this Section 2.12.
The
Chairman of the annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought
before the meeting and in accordance with the provisions of this Section 2.12 and if the Chairman should so determine, the Chairman shall
so declare to the meeting and any such business not properly brought before the meeting shall not be transacted.
Article
III.
Board of Directors
Section
3.1. Duties. All corporate powers shall be exercised by or under the authority of the Board of Directors and the business
and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.
Section
3.2. Number and Qualification. As set forth in the Certificate of Incorporation, the number of directors of the Corporation
shall be not less than three nor more than nine, and within such limits, the exact number shall be fixed and increased or decreased from
time to time by resolution of the Board of Directors. At such time as the Board of Directors fixes the number of directors at six or
more, the directors shall be divided into three classes designated Class I, Class II and Class III, each class to be as nearly equal
in number as possible. At the first annual meeting of shareholders following the designation of six or more directors (the “First
Meeting”), directors of all three classes shall be elected. The term of office of the Class I directors shall expire at the
annual meeting of shareholders held in the first calendar year following the calendar year in which the First Meeting is held. The term
of office of the Class II directors shall expire at the annual meeting of shareholders held in the second calendar year following the
calendar year in which the First Meeting is held. The term of office of the Class III directors shall expire at the annual meeting of
shareholders held in the third calendar year following the calendar year in which the First Meeting is held. At each annual meeting of
shareholders after the First Meeting, each class of director selected to succeed those directors whose terms expire shall be elected
to serve for three-year terms and until their successors are elected and qualified, so that the term of one class of directors will expire
each year. When the number of directors is changed within the limits provided herein, any newly created directorships, or any decrease
in directorships, shall be so apportioned among the classes as to make all classes as nearly equal as possible, provided that no decrease
in the number of directors constituting the Board of Directors shall shorten the term of any incumbent directors. Directors need not
be residents of the State of Delaware or shareholders of the Corporation.
Section
3.3. Chairman of the Board of Directors. The directors may elect a director to serve as Chairman of the Board of Directors
to preside at all meetings of the Board of Directors and to fulfill any other responsibilities delegated by the Board of Directors.
Section
3.4. Regular Meetings. A regular meeting of the Board of Directors shall be held without other notice than this Section 3.4
immediately after, and at the same place as, the annual meeting of shareholders. The Board of Directors may provide, by resolution, the
time and place, either within or without the State of Wyoming, for the holding of additional regular meetings without other notice than
the resolution.
Section
3.5. Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the President or any
director. The person or persons authorized to call special meetings of the Board of Directors may fix any place, either within or without
the State of Wyoming, as the place for holding any special meeting of the Board of Directors called by them.
Section
3.6. Notice. Notice of the date, time, and place of any special meeting of the Board of Directors shall be given at least
three days prior to the meeting by any means provided by law. If mailed, notice shall be deemed to be given upon deposit in the United
States mail addressed to the director at the director’s business address, with postage thereon prepaid. If by telegram, notice
shall be deemed to be given when the telegram is delivered to the telegraph company. Notice by all other means shall be deemed to be
given when received by the director or a person at the director’s business or residential address whom the person giving notice
reasonably believes will deliver or report the notice to the director within 24 hours. The attendance of a director at a meeting shall
constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting.
Section
3.7 Waiver of Notice. A director may at any time waive any notice required by law, the Certificate of Incorporation, or these
Bylaws. Unless a director attends or participates in a meeting, a waiver must be in writing, must be signed by the director entitled
to notice, must specify the meeting for which notice is waived, and must be filed with the minutes or corporate records.
Section
3.8. Quorum. A majority of the number of directors fixed by Section 3.2 shall constitute a quorum for the transaction of business
at any meeting of the Board of Directors.
Section
3.9. Manner of Acting.
(a) The
act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless
a different number is provided by law, the Certificate of Incorporation, or these Bylaws.
(b) Members
of the Board of Directors may hold a board meeting by conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other. Participation in such a meeting shall constitute presence in person at the
meeting.
(c) Any
action that is required or permitted to be taken by the directors at a meeting may be taken without a meeting if a consent in writing
setting forth the action so taken shall be signed by all of the directors. The action shall be effective on the date when the last signature
is placed on the consent or at such earlier or later time as is set forth therein. Such consent, which shall have the same effect as
a unanimous vote of the directors, shall be filed with the minutes of the Corporation.
Section
3.10. Vacancies. Any vacancy, including a vacancy resulting from an increase in the number of directors, occurring on the
Board of Directors may be filled by the shareholders, the Board of Directors, or the affirmative vote of a majority of the remaining
directors if less than a quorum of the Board of Directors, or by a sole remaining director. If the vacant office is filled by the shareholders
and was held by a director elected by a voting group of shareholders, then only the holders of shares of that voting group are entitled
to vote to fill the vacancy. Any directorship not so filled by the directors shall be filled by election at an annual meeting or at a
special meeting of shareholders called for that purpose. A director elected to fill a vacancy shall be elected to serve until the next
annual meeting of shareholders and until a successor shall be duly elected and qualified. A vacancy that will occur at a specific later
date, by reason of a resignation or otherwise, may be filled before the vacancy occurs, and the new director shall take office when the
vacancy occurs.
Section
3.11. Compensation. By resolution of the Board of Directors, the directors may be paid their expenses, if any, of attendance
at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated
salary as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation
therefor.
Section
3.12. Presumption of Assent. A director of the Corporation who is present at a meeting of the Board of Directors or a committee
of the Board of Directors shall be presumed to have assented to the action taken (a) unless the director’s dissent to the action
is entered in the minutes of the meeting, (b) unless a written dissent to the action is filed with the person acting as the secretary
of the meeting before the adjournment thereof or forwarded by certified or registered mail to the Secretary of the Corporation immediately
after the adjournment of the meeting or (c) unless the director objects at the meeting to the holding of the meeting or transacting business
at the meeting. The right to dissent shall not apply to a director who voted in favor of the action.
Section
3.13. Removal. All or any number of the directors of the Corporation may be removed with or without cause and at a meeting
of shareholders called expressly for that purpose, by the vote of a majority of the votes then entitled to be cast for the election of
directors. At any meeting of shareholders at which one or more directors are removed, a majority of votes then entitled to be cast for
the election of directors may fill any vacancy created by such removal. If any vacancy created by removal of a director is not filled
by the shareholders at the meeting at which the removal is effected, such vacancy may be filled by a majority vote of the remaining directors.
Section
3.14. Resignation. Any director may resign by delivering written notice to the Board of Directors, its chairperson, or the
Corporation. Such resignation shall be effective at the earliest of the following, unless the notice specifies a later effective date,
(a) on receipt, (b) five (5) days after its deposit in the United States mails, if mailed postpaid and correctly addressed, or (c) on
the date shown on the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by
addressee. Once delivered, a notice of resignation is irrevocable unless revocation is permitted by the Board of Directors.
Section
3.15. Nominations for Election to Board of Directors. Only persons who are nominated in accordance with the procedures set
forth in this Section 3.15 shall be eligible for election as directors. Nominations of persons for election to the Board of Directors
may be made at a meeting of shareholders by or at the direction of the Board of Directors or by any shareholder of the Corporation entitled
to vote for the election of directors at the meeting who complies with the notice procedures set forth in this Section 3.15.
Such
nominations, other than those made by or at the direction of the Board of Directors shall be made pursuant to timely notice in writing
to the Secretary of the Corporation. To be timely, a shareholder’s notice shall be delivered to or mailed and received at the principal
executive offices of the Corporation not less than sixty (60) days nor more than ninety (90) days prior to the meeting; provided, however,
that in the event that less than sixty (60) days’ notice or prior public disclosure of the date of the meeting is given or made
to shareholders, notice by the shareholder to be timely must be so received not later than the close of business on the tenth (10th)
day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made.
Such
shareholder’s notice shall set forth (a) as to each person whom the shareholder proposes to nominate for election or re-election
as a director, (i) the name, age, business address and residence address of such person, (ii) the principal occupation or employment
of such person, (iii) the class and number of shares of stock of the Corporation which are beneficially owned by such person, and (iv)
any other information relating to such person that is required to be disclosed in solicitations of proxies for election of directors,
or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act (including, without limitation, such person’s
written consent to being named in the proxy statement as a nominee and to serving as a director if elected); and (b) as to the shareholder
giving the notice, (i) the name and address, as they appear on the Corporation’s books, of such shareholder, and (ii) the class
and number of shares of stock of the Corporation which are beneficially owned by such shareholder.
At
the request of the Board of Directors, any person nominated by the Board of Directors for election as a director shall furnish to the
Secretary of the Corporation that information required to be set forth in a shareholder’s notice of nomination which pertains to
the nominee.
No
person shall be eligible for election as a director of the Corporation unless nominated in accordance with the procedures set forth in
this Section 3.15. The Chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was
not made in accordance with the procedures prescribed by these Bylaws, and if the Chairman should so determine, the Chairman shall so
declare to the meeting and the defective nomination shall be disregarded.
Article
IV.
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section
4.1. Designation of Executive Committee. The Board of Directors may designate two or more directors to constitute an executive
committee. The designation of an executive committee, and the delegation of authority to it, shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility imposed by law. No member of the executive committee shall continue to be a member
thereof after ceasing to be a director of the Corporation. The Board of Directors shall have the power at any time to increase or decrease
the number of members of the executive committee, to fill vacancies thereon, to change any member thereof, and to change the functions
or terminate the existence thereof. The creation of the executive committee and the appointment of members to it shall be approved by
a majority of the directors in office when the action is taken, unless a greater number is required by the Certificate of Incorporation
or these Bylaws.
Section
4.2. Powers of Executive Committee. During the interval between meetings of the Board of Directors, and subject to such limitations
as may be imposed by resolution of the Board of Directors, the executive committee may have and may exercise all the authority of the
Board of Directors in the management of the Corporation, provided that the committee shall not have the authority of the Board of Directors
with respect to the following matters: authorizing distributions; approving or proposing to the shareholders actions that are required
to be approved by the shareholders under the Certificate of Incorporation or these Bylaws or by law; filling vacancies on the Board of
Directors or any committee thereof; amending the Certificate of Incorporation; adopting, amending, or repealing bylaws; approving a plan
of merger not requiring shareholder approval; authorizing or approving a reacquisition of shares, except according to a formula or method
prescribed by the Board of Directors; authorizing or approving the issuance or sale or contract for sale of shares or determining the
designation and relative rights, preferences, and limitations of a class or series of shares except within limits specifically prescribed
by the Board of Directors.
Section
4.3. Procedures; Meetings; Quorum.
(a) The
Board of Directors shall appoint a chairperson from among the members of the executive committee and shall appoint a secretary who may,
but need not, be a member of the executive committee. The chairperson shall preside at all meetings of the executive committee and the
secretary of the executive committee shall keep a record of its acts and proceedings, which shall be filed with the minutes of the Corporation.
(b) Regular
meetings of the executive committee, of which no notice shall be necessary, shall be held on such days and at such places as shall be
fixed by resolution adopted by the executive committee. Special meetings of the executive committee shall be called at the request of
the President or of any member of the executive committee, and shall be held upon such notice as is required by these Bylaws for special
meetings of the Board of Directors.
(c) Attendance
of any member of the executive committee at a meeting shall constitute a waiver of notice of the meeting. A majority of the executive
committee, from time to time, shall be necessary to constitute a quorum for the transaction of any business, and the act of a majority
of the members present at a meeting at which a quorum is present shall be the act of the executive committee. Members of the executive
committee may hold a meeting of such committee by conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in such meeting shall constitute presence in person at the meeting.
(d) Any
action that is required or permitted to be taken at a meeting of the executive committee may be taken without a meeting if a consent
in writing setting forth the action so taken shall be signed by all members of the executive committee. The action shall be effective
on the date when the last signature is placed on the consent or at such earlier or later time as is set forth therein. Such consent,
which shall have the same effect as a unanimous vote of the members of the executive committee, shall be filed with the minutes of the
Corporation.
(e) The
Board of Directors may approve a reasonable fee for the members of the executive committee as compensation for attendance at meetings
of the executive committee.
Section
4.4. Other Committees. By the approval of a majority of the directors when the action is taken (unless a greater number is
required by the Certificate of Incorporation), the Board of Directors, by resolution, may create one or more additional committees, appoint
directors to serve on them, and define the duties of such committee or committees. Each such committee shall have two or more members,
who shall serve at the pleasure of the Board of Directors. Such additional committee or committees shall not have the powers proscribed
in Section 4.2.
Article
V.
OFFICERS
Section
5.1. Number. The officers of the Corporation shall include a Chief Executive Officer, a President and a Secretary. The Corporation
may also have one or more Vice Presidents, one or more Assistant Secretaries, and such other officers and assistant officers as are deemed
necessary or desirable by the Board of Directors, and such officers shall have such powers and duties prescribed by the Board of Directors
or the officer authorized by the Board of Directors to prescribe the duties of other officers, provided such powers and duties are not
in contravention with these Bylaws. Any two or more offices may be held by the same person.
Section
5.2. Appointment and Term of Office. Each officer shall be elected by the Board of Directors and shall hold office for such
term as may be prescribed by the Board of Directors and until such person’s successor shall have been duly elected and qualified,
or until such person’s earlier death, disqualification, resignation or removal. A duly appointed officer may appoint one or more
officers or assistant officers if such appointment is authorized by the Board of Directors.
Section
5.3. Qualification. An officer need not be a director, shareholder, or a resident of the State of Delaware.
Section
5.4. Resignation and Removal. An officer may resign at any time by delivering notice of such resignation to the Corporation.
A resignation is effective on receipt unless the notice specifies a later effective date. If the Corporation accepts a specified later
effective date, the Board of Directors may fill the pending vacancy before the effective date, but the successor may not take office
until the effective date. Once delivered, a notice of resignation is irrevocable unless revocation is permitted by the Board of Directors.
Any officer appointed by the Board of Directors may be removed at any time with or without cause. Appointment of an officer shall not
of itself create contract rights. Removal or resignation of an officer shall not affect the contract rights, if any, of the Corporation
or the officer.
Section
5.5. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or otherwise may be filled
by the Board of Directors for the unexpired portion of the term.
Section
5.6. Chief Executive Officer. The Chief Executive Officer shall, subject to the control of the Board of Directors, share with
the President the general supervision, direction and control of the business and the officers of the Corporation. The Chief Executive
Officer shall preside with the President at all meetings of shareholders. The Chief Executive Officer may execute on behalf of the Corporation
all contracts, agreements, stock certificates, and other instruments. The Chief Executive Officer shall from time to time report to the
Board of Directors all matters within the Chief Executive Officer’s knowledge affecting the Corporation that should be brought
to the attention of the Board of Directors. The Chief Executive Officer is authorized to vote all shares of stock in other corporations
owned by the Corporation and is empowered to execute proxies, waivers of notice, consents, and other instruments in the name of the Corporation
with respect to such stock. The Chief Executive Officer shall perform other duties assigned by the Board of Directors.
Section
5.7. President. The President shall, subject to the control of the Board of Directors, share with the Chief Executive Officer
the general supervision, direction and control of the business and the officers of the Corporation. The President shall preside at all
meetings of shareholders and, in the absence of the Chairman of the Board, or if there be none, the President shall preside at all meetings
of the Board of Directors. The President may execute on behalf of the Corporation all contracts, agreements, stock certificates, and
other instruments. The President shall from time to time report to the Board of Directors all matters within the President’s knowledge
affecting the Corporation that should be brought to the attention of the Board of Directors. The President is authorized to vote all
shares of stock in other corporations owned by the Corporation and is empowered to execute proxies, waivers of notice, consents, and
other instruments in the name of the Corporation with respect to such stock. The President shall perform other duties assigned by the
Board of Directors.
Section
5.8. Vice Presidents. In the absence of the President or in the event of the President’s death or inability or refusal
to act, the Vice President (or, in the event there be more than one Vice President, the Vice Presidents in the order designated at the
time of their election, or in the absence of any designation, then in the order of their election), if any, shall perform the duties
of the President and, when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Any Vice
President shall perform other duties assigned by the President or by the Board of Directors.
Section
5.9. Secretary. The Secretary shall prepare the minutes of all meetings of the directors and shareholders, shall have custody
of the minute books and other records pertaining to the corporate business, and shall be responsible for authenticating the records of
the Corporation. The Secretary shall countersign all instruments requiring the seal of the Corporation and shall perform other duties
assigned by the Board of Directors. In the event no Vice President exists to succeed to the President under the circumstances set forth
in Section 5.8 above, the Secretary shall make such succession.
Section
5.10. Assistant Secretaries. The Assistant Secretaries, when authorized by the Board of Directors or these Bylaws, may sign,
with the President or Vice President, certificates for shares of the Corporation the issuance of which shall have been authorized by
resolution of the Board of Directors. The Assistant Secretaries shall, if required by the Board of Directors, give bonds for the faithful
discharge of their duties in such sums and with such sureties as the Board of Directors shall determine. The Assistant Secretaries shall,
in general, perform such duties as shall be specifically assigned to them in writing by the President or the Board of Directors.
Section
5.11. Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors, and no officer shall
be prevented from receiving such salary because the officer is also a director of the Corporation.
ARTICLE
VI
ISSUANCE OF SHARES
Section
6.1. Certificates for Shares.
(a) Certificates
representing shares of the Corporation shall be in a form determined by the Board of Directors consistent with the requirements of the
Delaware General Corporation Law and these Bylaws; provided that any shares of the Corporation may be uncertificated, whether upon original
issuance, reissuance or subsequent transfer. Shares represented by certificates shall be signed, either manually or in facsimile, by
two officers of the Corporation, at least one of whom shall be the Chief Executive Officer, the President or a Vice President, and may
be sealed with the seal of the Corporation or a facsimile thereof. The signature of officers upon a certificate may be facsimiles if
the certificate is countersigned by a transfer agent or registered by a registrar other than the Corporation itself or an employee of
the Corporation. All certificates for shares shall be consecutively numbered or otherwise identified. Except as otherwise provided by
law, the rights and obligations of shareholders are identical whether or not their shares are represented by certificates.
(b) Every
certificate for shares of stock that are subject to any restriction on transfer pursuant to the Certificate of Incorporation, these Bylaws,
securities laws, agreements among or between shareholders, or any agreement to which the Corporation is a party shall have conspicuously
noted on the face or back of the certificate either (i) the full text of the restriction or (ii) a statement of the existence of the
restriction and that the Corporation retains a copy of the restriction. Every certificate issued when the Corporation is authorized to
issue more than one class or series within a class of stock shall set forth on its face or back either (i) the full text of the designations,
relative rights, preferences, and limitations of the shares of each class and the variations in rights, preferences and limitations for
each series authorized to be issued and the authority of the Board of Directors to determine variations for future series or (ii) a statement
of the existence of such designations, relative rights, preferences, and limitations and a statement that the Corporation will furnish
a copy thereof to the holder of such certificate upon written request and without charge.
(c) Within
a reasonable time after the issuance or transfer of uncertificated shares, the Corporation shall cause to be sent to the registered owner
of such shares a written notice that will designate the name of the Corporation and the state law under which the Corporation is organized,
the name of the person to whom the uncertificated shares are issued, and the number and class of shares and the designation of the series,
if any, of the shares represented. The written notice will summarize any restriction on the transfer of shares imposed by the Certificate
of Incorporation, these Bylaws, securities laws, agreements among or between shareholders or any agreement to which the Corporation is
a party, and if the Corporation is authorized to issue different classes of shares or different series within a class, the full text
of the designations, relative rights, preferences and limitations of the shares of each class, the variations in rights, preferences
and limitations for each series authorized to be issued, and the authority of the Board of Directors to determine variations for future
series, and further shall provide such other information as may be required under the Delaware General Corporation Law.
(d) The
name and mailing address of the person to whom shares are issued, with the number of shares and date of issue, shall be entered on the
stock transfer books of the Corporation. Each shareholder shall have the duty to notify the Corporation of his or her mailing address.
All certificates surrendered to the Corporation for transfer shall be canceled, and no new certificate of stock or uncertificated shares
shall be issued for then-outstanding certificated shares until the former certificate for a like number of shares shall have been surrendered
and canceled, except that in case of a lost, destroyed, or mutilated certificate a new one may be issued therefor upon such terms and
indemnity to the Corporation as the Board of Directors prescribes. Upon receipt of proper transfer instructions from the holder of uncertificated
shares, the Corporation shall cancel such uncertificated shares and issue new equivalent uncertificated shares, or, upon such holder’s
request, certificated shares, to the person entitled thereto, and record the transaction upon its books.
Section
6.2. Transfer of Shares. A transfer of shares of the Corporation shall be made only on the stock transfer books of the Corporation
by direction of the holder of record thereof or by direction of the holder’s legal representative, who shall furnish proper evidence
of authority to transfer, or by the direction of the holder’s attorney thereunto authorized by power of attorney duly executed
and filed with the Secretary of the Corporation, and on surrender for cancellation of the certificate for such shares or upon proper
instruction from the holder of uncertificated shares. The person in whose name shares stand on the books of the Corporation shall be
deemed by the Corporation to be the owner thereof for all purposes.
Section
6.3. Transfer Agent and Registrar. The Board of Directors may from time to time appoint one or more transfer agents and one
or more registrars for the shares of the Corporation, with such powers and duties as the Board of Directors determines by resolution.
Section
6.4. Officer Ceasing to Act. If the person who signed a share certificate, either manually or in facsimile, no longer holds
office when the certificate is issued, the certificate is nevertheless valid.
Article
VII.
CONTRACTS, LOANS, CHECKS, AND OTHER INSTRUMENTS
Section
7.1. Contracts. The Board of Directors may authorize any officer or officers and agent or agents to enter into any contract
or execute and deliver any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined
to specific instances.
Section
7.2. Loans. No loans shall be contracted on behalf of the Corporation and no evidence of indebtedness shall be issued in its
name unless authorized by a resolution of the Board of Directors. Such authority may be general or confined to specific instances.
Section
7.3. Checks; Drafts. All checks, drafts, or other orders for the payment of money and notes or other evidences of indebtedness
issued in the name of the Corporation shall be signed by such officer or officers and agent or agents of the Corporation and in such
manner as shall from time to time be determined by resolution of the Board of Directors.
Section
7.4. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the
Corporation in such banks, trust companies, or other depositories as the Board of Directors may select.
Article
VIII.
MISCELLANEOUS PROVISIONS
Section
8.1. Seal. The Board of Directors from time to time may provide for a seal of the Corporation, which shall be circular in
form and shall have inscribed thereon the name of the Corporation, the state of incorporation and the words “Corporate Seal.”
Section
8.2. Severability. Any determination that any provision of these Bylaws is for any reason inapplicable, invalid, illegal,
or otherwise ineffective shall not affect or invalidate any other provision of these Bylaws.
Article
IX.
AMENDMENTS
These
Bylaws may be altered, amended, or repealed and new bylaws may be adopted by the Board of Directors at any regular or special meeting,
subject to repeal or change by action of the shareholders of the Corporation.
ARTICLE
X.
CONSTRUCTION
AND DEFINED TERMS
Section
10.1. Construction. As appropriate in context, whenever the singular number is used in these Bylaws, the same includes the
plural, and whenever the plural number is used in these Bylaws, the same includes the singular. As used in these Bylaws, each of the
neuter, masculine, and feminine genders includes the other two genders. As used in these Bylaws, “include,” “includes,”
and “including” shall be deemed to be followed by “without limitation”.
Section
10.2. Defined Terms. As used in these Bylaws,
“Board
of Directors” means the board of directors of the Corporation.
“Bylaws”
means these bylaws of the Corporation, as the same may be amended from time to time.
“Certificate
of Incorporation” means the Certificate of Incorporation of the Corporation, as the same may be amended from time to time.
“Corporation”
means Metro One Telecommunications, Inc.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Delaware
General Corporation Law” means Chapter 1, Title 8 of the Delaware Code, as the same may be amended from time to time.
Exhibit 5.1
February 10, 2022
Metro
One Telecommunications, Inc.
30
North Gould Street
Suite
2990
Sheridan,
WY 82801
Re:
Registration Statement on Form S-1
Ladies
and Gentlemen:
We
have acted as counsel to Metro One Telecommunications, Inc., a Delaware corporation (the “Company”), in connection with the
Company’s registration statement on Form S-1 (the “Registration Statement”), under the Securities Act of 1933, as amended
(the “Act”). The Registration Statement relates to the registration of (i) 193,317,186 shares of common stock, no par value
held by selling stockholders (ii) the resale of up to 40,331,000 shares of common stock issuable upon the exercise of warrants, (iii)
the issuance and resale of 80,000,000 shares of common stock (the “Common Shares”).
We
have reviewed the corporate proceedings of the Company with respect to the authorization of the issuance of the Common Shares. As counsel,
we have also examined originals or copies of the Registration Statement and the exhibits thereto and such other documents, corporate
records and other instruments as we have deemed necessary or appropriate for the purpose of this opinion. As to questions of fact material
to this opinion, we have relied on certificates or comparable documents of public officials and of officers and representatives of the
Company. In rendering the opinion expressed below, we have assumed the genuineness of all signatures, the conformity to the originals
of all documents reviewed by us as copies, the authenticity and completeness of all original documents reviewed by us in original or
copy form and the legal competence of each individual executing any document.
Based
upon and subject to the foregoing, we are of the opinion that the Common Shares are duly authorized, validly issued, fully paid and nonassessable,
and that the Common Shares underlying the warrants and debentures will have been duly authorized, and when delivered and paid for, will
be validly issued, fully paid and nonassessable.
We
hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to this firm under the
heading “Legal Matters” in the Prospectus included in the Registration Statement. In giving this consent, we do not admit
that we are in the category of persons whose consent is required under Section 7 of the Act, or the rules and regulations promulgated
thereunder. In rendering the opinions set forth above, we are opining only as to the specific legal issues expressly set forth therein,
and no opinion shall be inferred as to any other matter or matters.
The
opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, and no opinion
is expressed herein as to any matter pertaining to the contents of the Registration Statement or the prospectus which forms a part thereof,
other than as to the due authorization and validity of the Common Shares. In addition, we acknowledge and understand that this opinion
letter may also be relied upon by Pacific Stock Transfer Co. This opinion letter is limited to the specific legal matters expressly
set forth herein and is limited to present statutes, regulations and administrative and judicial interpretations. We assume no obligation
to revise or supplement this opinion in the event of future changes in such laws or regulations.
|
|
Very truly yours,
|
|
|
|
|
|
|
Smith Eilers, PLLC
|
|
|
|
|
|
|
By:
|
/s/ Smith Eilers, PLLC
|
|
|
|
Smith Eilers, PLLC
|
Exhibit 10.3
Metro
One Telecommunications, Inc.
2021 STOCK INCENTIVE PLAN
1. Purposes
of the Plan. The purposes of this Stock Incentive Plan are to attract and retain the best available personnel for positions of substantial
responsibility, to provide additional incentive to the Employees and Consultants of the Company and to promote the success of the Company’s
business.
Options
granted hereunder may be either “incentive stock options,” as defined in Section 422 of the Internal Revenue Code of 1986,
as amended, or “nonqualified stock options,” at the discretion of the Board and as reflected in the terms of the written
option agreement. In addition, shares of the Company’s Common Stock may be Sold hereunder independent of any Option grant.
2. Definitions.
As used herein, the following definitions shall apply:
(a) “Board”
shall mean the Committee, if one has been appointed, or the Board of Directors of the Company, if no Committee is appointed.
(b) “Code”
shall mean the Internal Revenue Code of 1986, as amended.
(c) “Committee”
shall mean the Committee appointed by the Board of Directors in accordance with Section 4(a) of the Plan, if one is appointed.
(d) “Common
Stock” shall mean the Common Stock of the Company.
(e) “Company”
shall mean Metro One Telecommunications, Inc., a Delaware corporation.
(f) “Consultant”
shall mean any person who is engaged by the Company or any Subsidiary to render consulting services and is compensated for such consulting
services and any director of the Company whether compensated for such services or not.
(g) “Continuous
Status as an Employee or Consultant” shall mean the absence of any interruption or termination of service as an Employee or
Consultant. Continuous Status as an Employee or Consultant shall not be considered interrupted in the case of sick leave, military leave,
or any other leave of absence approved by the Board; provided that such leave is for a period of not more than ninety days or reemployment
upon the expiration of such leave is guaranteed by contract or statute.
(h) “Employee”
shall mean any person, including officers and directors, employed by the Company or any Parent or Subsidiary of the Company. The payment
of a director’s fee by the Company shall not be sufficient to constitute “employment” by the Company.
(i) “Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended.
(j) “Immediate
Family” shall mean, with respect to a particular Optionee, the Optionee’s spouse, children and grandchildren and such
other persons as the Board from time to time may determine, subject to such conditions as the Board may prescribe from time to time.
(k) “Incentive
Stock Option” shall mean an Option intended to qualify as an incentive stock option within the meaning of Section 422 of the
Code.
(l) “Nonqualified
Stock Option” shall mean an Option not intended to qualify as an incentive stock option within the meaning of Section 422 of
the Code.
(m) “Option”
shall mean a stock option granted pursuant to the Plan.
(n) “Optioned
Stock” shall mean the Common Stock subject to an Option.
(o) “Optionee”
shall mean an Employee or Consultant who receives an Option.
(p) “Parent”
shall mean a “parent corporation,” whether now or hereafter existing, as defined in Section 424 of the Code.
(q) “Plan”
shall mean this 2021 Stock Incentive Plan.
(r) “Sale”
or “Sold” shall include, with respect to the sale of Shares under the Plan, the sale of Shares for consideration in
the form of cash or notes, as well as a grant of Shares without consideration, except past or future services.
(s) “Share”
shall mean a share of the Common Stock, as adjusted in accordance with Section 11 of the Plan.
(t) “Subsidiary”
shall mean a “subsidiary corporation,” whether now or hereafter existing, as defined in Section 424 of the Code.
3. Stock
Subject to the Plan. Subject to the provisions of Section 11 of the Plan, the maximum aggregate number of Shares which may be optioned
and/or Sold under the Plan is 77,137,410. The Shares may be authorized, but unissued, or reacquired Common Stock.
If
an Option should expire or become unexercisable for any reason without having been exercised in full, the unpurchased Shares which were
subject thereto shall, unless the Plan shall have been terminated, become available for future Option grants and/or Sales under the Plan.
4. Administration
of the Plan.
(a) Procedures.
The Plan shall be administered by the Board of Directors of the Company.
The
Board of Directors may appoint a Committee consisting of not less than two (2) members of the Board of Directors to administer the Plan
on behalf of the Board of Directors, subject to such terms and conditions as the Board of Directors may prescribe. Once appointed, the
Committee shall continue to serve until otherwise directed by the Board of Directors. From time to time the Board of Directors may increase
the size of the Committee and appoint additional members thereof, remove members (with or without cause) and appoint new members in substitution
therefor, fill vacancies however caused, or remove all members of the Committee and thereafter directly administer the Plan.
Members
of the Board who are either eligible for Options and/or Sales or have been granted Options or Sold Shares may vote on any matters affecting
the administration of the Plan or the grant of any Options or Sale of any Shares pursuant to the Plan, except that no such member shall
act upon the granting of an Option or Sale of Shares to himself, but any such member may be counted in determining the existence of a
quorum at any meeting of the Board during which action is taken with respect to the granting of Options or Sale of Shares to him.
(b) Powers
of the Board. Subject to the provisions of the Plan, the Board shall have the authority, in its discretion: (i) to grant Incentive
Stock Options in accordance with Section 422 of the Code, or Nonqualified Stock Options; (ii) to authorize Sales of Shares of Common
Stock hereunder; (iii) to determine, upon review of relevant information and in accordance with Section 8(b) of the Plan, the fair market
value of the Common Stock; (iv) to determine the exercise/purchase price per Share of Options to be granted or Shares to be Sold, which
exercise/purchase price shall be determined in accordance with Section 8(a) of the Plan; (v) to determine the Employees or Consultants
to whom, and the time or times at which, Options shall be granted and the number of Shares to be represented by each Option; (vi) to
determine the Employees or Consultants to whom, and the time or times at which, Shares shall be Sold and the number of Shares to be Sold;
(vii) to interpret the Plan; (viii) to prescribe, amend and rescind rules and regulations relating to the Plan; (ix) to determine the
terms and provisions of each Option granted (which need not be identical) and, with the consent of the holder thereof, modify or amend
each Option; (x) to determine the terms and provisions of each Sale of Shares (which need not be identical) and, with the consent of
the purchaser thereof, modify or amend each Sale; (xi) to accelerate or defer (with the consent of the Optionee) the exercise date of
any Option; (xii) to accelerate or defer (with the consent of the Optionee or purchaser of Shares) the vesting restrictions applicable
to Shares Sold under the Plan or pursuant to Options granted under the Plan; (xiii) to authorize any person to execute on behalf of the
Company any instrument required to effectuate the grant of an Option or Sale of Shares previously granted or authorized by the Board;
(xiv) to determine the restrictions on transfer, vesting restrictions, repurchase rights, or other restrictions applicable to Shares
issued under the Plan; (xv) to effect, at any time and from time to time, with the consent of the affected Optionees, the cancellation
of any or all outstanding Options under the Plan and to grant in substitution therefor new Options under the Plan covering the same or
different numbers of Shares, but having an Option price per Share consistent with the provisions of Section 8 of this Plan as of the
date of the new Option grant; (xvi) to establish, on a case-by-case basis, different terms and conditions pertaining to exercise or vesting
rights upon termination of employment, whether at the time of an Option grant or Sale of Shares, or thereafter; and (xvii) to make all
other determinations deemed necessary or advisable for the administration of the Plan.
(c) Effect
of Board’s Decision. All decisions, determinations and interpretations of the Board shall be final and binding on all Optionees
and any other holders of any Options granted under the Plan or Shares Sold under the Plan.
5. Eligibility.
(a) Persons
Eligible. Options may be granted and/or Shares Sold only to Employees and Consultants. Incentive Stock Options may be granted only
to Employees. An Employee or Consultant who has been granted an Option or Sold Shares may, if he is otherwise eligible, be granted an
additional Option or Options or Sold additional Shares.
(b) ISO
Limitation. No Incentive Stock Option may be granted to an Employee which, when aggregated with all other Incentive Stock Options
granted to such Employee by the Company or any Parent or Subsidiary, would result in Shares having an aggregate fair market value (determined
for each Share as of the date of grant of the Option covering such Share) in excess of $100,000 becoming first available for purchase
upon exercise of one or more Incentive Stock Options during any calendar year.
(c) Section
5(b) Limitations. Section 5(b) of the Plan shall apply only to an Incentive Stock Option evidenced by an “Incentive Stock Option
Agreement” which sets forth the intention of the Company and the Optionee that such Option shall qualify as an Incentive Stock
Option. Section 5(b) of the Plan shall not apply to any Option evidenced by a “Nonqualified Stock Option Agreement” which
sets forth the intention of the Company and the Optionee that such Option shall be a Nonqualified Stock Option.
(d) No
Right to Continued Employment. The Plan shall not confer upon any Optionee any right with respect to continuation of employment or
consulting relationship with the Company, nor shall it interfere in any way with his right or the Company’s right to terminate
his employment or consulting relationship at any time.
6. Term
of Plan. The Plan shall become effective upon the earlier to occur of its adoption by the Board of Directors or its approval by the
stockholders of the Company as described in Section 17 of the Plan. It shall continue in effect until ten (10) years after it becomes
effective (as described above), unless sooner terminated under Section 13 of the Plan.
7. Term
of Option. The term of each Incentive Stock Option shall be ten (10) years from the date of grant thereof or such shorter term as
may be provided in the Stock Option Agreement. The term of each Nonqualified Stock Option shall be ten (10) years and one (1) day from
the date of grant thereof or such other term as may be provided in the Stock Option Agreement. However, in the case of an Option granted
to an Optionee who, at the time the Option is granted, owns stock representing more than ten percent (10%) of the voting power of all
classes of stock of the Company or any Parent or Subsidiary, (a) if the Option is an Incentive Stock Option, the term of the Option shall
be five (5) years from the date of grant thereof or such shorter time as may be provided in the Stock Option Agreement, or (b) if the
Option is a Nonqualified Stock Option, the term of the Option shall be five (5) years and one (1) day from the date of grant thereof
or such other term as may be provided in the Stock Option Agreement.
8. Exercise/Purchase
Price and Consideration.
(a) Exercise/Purchase
Price. The per-Share exercise/purchase price for the Shares to be issued pursuant to exercise of an Option or a Sale (other than
a Sale which is a grant for which no purchase price is payable) shall be such price as is determined by the Board, but shall be subject
to the following:
(i) In
the case of an Incentive Stock Option
(A) granted
to an Employee who, at the time of the grant of such Incentive Stock Option, owns stock representing more than ten percent (10%) of the
voting power of all classes of stock of the Company or any Parent or Subsidiary, the per Share exercise price shall be no less than one
hundred ten percent (110%) of the fair market value per Share on the date of the grant,
(B) granted
to any other Employee, the per Share exercise price shall be no less than one hundred percent (100%) of the fair market value per Share
on the date of grant.
(ii) In
the case of a Nonqualified Stock Option or Sale
(A) granted
or Sold to a person who, at the time of the grant of such Option or authorization of such Sale, owns stock representing more than ten
percent (10%) of the voting power of all classes of stock of the Company or any Parent or Subsidiary, the per Share exercise/purchase
price shall be no less than one hundred ten percent (110%) of the fair market value per Share on the date of the grant or authorization
of Sale, unless otherwise expressly determined by the Board;
(B) granted
or Sold to any other person, the per Share exercise/purchase price shall be no less than eighty-five percent (85%) of the fair market
value per Share on the date of grant or authorization of Sale, unless otherwise expressly determined by the Board.
(C) Any
determination to sell stock at less than fair market value on the date of the grant or authorization of Sale shall be accompanied by
an express finding by the Board specifying that the sale is in the best interest of the Company, and specifying both the fair market
value and the grant or sale price of the stock.
(iii) In
the case of an Option granted or Sale authorized on or after the effective date of registration of any class of equity security of the
Company pursuant to Section 12 of the Exchange Act and prior to six (6) months after the termination of such registration, the per Share
exercise/purchase price shall be no less than one hundred percent (100%) of the fair market value per Share on the date of grant or authorization
of Sale.
(b) Fair
Market Value. The fair market value per Share shall be determined by the Board in its discretion; provided, however, that where there
is a public market for the Common Stock, the fair market value per Share shall be the closing price of the Common Stock for the date
of grant or authorization of Sale, as reported in The Wall Street Journal (or, if not so reported, as otherwise reported by the National
Association of Securities Dealers Automated Quotation (NASDAQ) System) or, in the event the Common Stock is listed on a stock exchange,
the fair market value per Share shall be the closing price on such exchange on the date of grant of the Option or authorization of Sale,
as reported in The Wall Street Journal.
(c) Consideration.
The consideration to be paid for the Shares to be issued upon exercise of an Option or pursuant to a Sale, including the method of payment,
shall be determined by the Board and may consist in whole or part of:
(i) cash;
(ii) check;
(iii) promissory
note;
(iv) transfer
to the Company of Shares having a Fair Market Value at the time of such exercise equal to the Option exercise price; or
(v) delivery
of instructions to the Company to withhold from the Shares that would otherwise be issued on the exercise that number of Shares having
a Fair Market Value at the time of such exercise equal to the Option exercise price.
If
the Fair Market Value of the number of whole Shares transferred or the number of whole Shares surrendered is less than the total exercise
price of the Option, the shortfall must be made up in cash or by check.
9. Exercise
of Option.
(a) Procedure
for Exercise; Rights as a Stockholder. Any Option granted hereunder shall be exercisable at such times and under such conditions
as determined by the Board, including performance criteria with respect to the Company and/or the Optionee, and as shall be permissible
under the terms of the Plan.
An
Option may not be exercised for a fraction of a Share.
An
Option shall be deemed to be exercised when written notice of such exercise has been given to the Company in accordance with the terms
of the Option by the person entitled to exercise the Option and full payment for the Shares with respect to which the Option is exercised
has been received by the Company. Full payment may, as authorized by the Board, consist of any consideration and method of payment allowable
under Section 8(c) of the Plan. Each Optionee who exercises an Option shall, upon notification of the amount due (if any) and prior to
or concurrent with delivery of the certificate representing the Shares, pay to the Company amounts necessary to satisfy applicable federal,
state and local tax withholding requirements. An Optionee must also provide a duly executed copy of any stock transfer agreement then
in effect and determined to be applicable by the Board. Until the issuance (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company) of the stock certificate evidencing such Shares, no right to vote or receive
dividends or any other rights as a stockholder shall exist with respect to the Optioned Stock, notwithstanding the exercise of the Option.
No adjustment will be made for a dividend or other right for which the record date is prior to the date the stock certificate is issued,
except as provided in Section 11 of the Plan.
Exercise
of an Option in any manner shall result in a decrease in the number of Shares which thereafter may be available, both for purposes of
the Plan and for sale under the Option, by the number of Shares as to which the Option is exercised.
(b) Termination
of Status as an Employee or Consultant. If an Employee or Consultant ceases to serve as an Employee or Consultant (as the case may
be), he may, but only within three (3) months (or such other period of time not exceeding the limitations of Section 7 above as is determined
by the Board at the time of grant of an Option or thereafter) after the date he ceases to be an Employee or Consultant (as the case may
be) of the Company, exercise his Option to the extent that he was entitled to exercise it at the date of such termination. To the extent
that he was not entitled to exercise the Option at the date of such termination, or if he does not exercise such Option (which he was
entitled to exercise) within the time specified herein, the Option shall terminate.
(c) Disability
of Optionee. Notwithstanding the provisions of Section 9(b) above, in the event an Employee or Consultant is unable to continue his
employment or consulting relationship (as the case may be) with the Company as a result of his total and permanent disability (as defined
in Section 22(e)(3) of the Code), he may, but only within twelve (12) months (or such other period of time not exceeding the limitations
of Section 7 above as is determined by the Board at the time of grant of an Option or thereafter) from the date of termination, exercise
his Option to the extent he was entitled to exercise it at the date of such termination. To the extent that he was not entitled to exercise
the Option at the date of termination, or if he does not exercise such Option (which he was entitled to exercise) within the time specified
herein, the Option shall terminate.
(d) Death
of Optionee. In the event of the death of an Optionee during the term of the Option who is at the time of his death an Employee or
Consultant of the Company and who shall have been in Continuous Status as an Employee or Consultant since the date of grant of the Option,
the Option may be exercised, at any time within twelve (12) months (or such other period of time not exceeding the limitations of Section
7 above as is determined by the Board at the time of grant of an Option or thereafter) following the date of death, by the Optionee’s
estate or by a person who acquired the right to exercise the Option by bequest or inheritance, but only to the extent of the right to
exercise as of the date of death.
10. Limits
on Transfer of Options. An Option may not be sold, pledged, assigned, hypothecated, transferred or disposed of in any manner other
than by will, or by the laws of descent and distribution, and may be exercised during the lifetime of the Optionee only by the Optionee
or, if incapacitated, by his or her legal guardian or legal representative. Notwithstanding the foregoing, the Board may, in its discretion,
permit the transfer of any Nonqualified Stock Option to (i) members of the Optionee’s Immediate Family, (ii) a trust in which the
Optionee and/or members of the Optionee’s Immediate Family have more than 50% of the beneficial interest, or (iii) any other entity
in which only the Optionee and/or members of the Optionee’s Immediate Family own all of the voting interests; provided that an
Option shall terminate immediately if it has been transferred to an entity (other than a trust) as permitted above and any person who
is not a member of the Optionee’s Immediate Family becomes the owner of a voting interest in such entity. Upon such a transfer,
such Option shall continue to be subject to the same terms and conditions as were applicable immediately prior to such transfer, including
Section 9 as it applies to the Optionee ceasing to serve as an Employee or Consultant or to the death of disability of the Optionee,
but for all other purposes of this Plan, the members of the Optionee’s Immediate Family, trustee or other entity will be entitled
to all the rights of the Optionee with respect to the transferred Option and the term “Optionee” shall be deemed to refer
to the transferee. Any such transfer shall be (i) permitted only if the Optionee does not receive any consideration therefor and the
transfer is expressly approved by the Board, and (ii) shall be evidenced by an appropriate written document executed by the Optionee
in a form satisfactory to the Company and a copy thereof shall be delivered to the Company on or prior to the effective date of the transfer.
11. Adjustments
Upon Changes in Capitalization or Merger. Subject to any required action by the stockholders of the Company, the number of shares
of Common Stock covered by each outstanding Option and the number of shares of Common Stock which have been authorized for issuance under
the Plan but as to which no Options have yet been granted or Sales made or which have been returned to the Plan upon cancellation or
expiration of an Option, as well as the price per share of Common Stock covered by each such outstanding Option, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common Stock resulting from a stock split, reverse stock split,
stock dividend, combination or reclassification of the Common Stock, or any other increase or decrease in the number of issued shares
of Common Stock effected without receipt of consideration by the Company; provided, however, that conversion of any convertible securities
of the Company shall not be deemed to have been “effected without receipt of consideration.” Such adjustment shall be made
by the Board, whose determination in that respect shall be final, binding and conclusive. Except as expressly provided herein, no issuance
by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of shares of Common Stock subject to an Option.
In
the event of the proposed dissolution or liquidation of the Company, the Option will terminate immediately prior to the consummation
of such proposed action, unless otherwise provided by the Board. The Board may, in the exercise of its sole discretion in such instances,
declare that any Option shall terminate as of a date fixed by the Board and give each Optionee the right to exercise his Option as to
all or any part of the Optioned Stock, including Shares as to which the Option would not otherwise be exercisable. In the event of a
proposed sale of all or substantially all of the assets of the Company, or the merger of the Company with or into another corporation,
the Option shall be assumed or an equivalent option shall be substituted by such successor corporation or a parent or subsidiary of such
successor corporation, unless the Board determines, in the exercise of its sole discretion and in lieu of such assumption or substitution,
that the Optionee shall have the right to exercise the Option as to all of the Optioned Stock, including Shares as to which the Option
would not otherwise be exercisable. If the Board makes an Option fully exercisable in lieu of assumption or substitution in the event
of a merger or sale of assets, the Board shall notify the Optionee that the Option shall be fully exercisable for a period of thirty
(30) days from the date of such notice or such shorter period as the Board may specify in the notice, and the Option will terminate upon
the expiration of such period.
12. Time
of Granting Options. The date of grant of an Option shall, for all purposes, be the date on which the Board makes the determination
granting such Option. Notice of the determination shall be given to each Employee or Consultant to whom an Option is so granted within
a reasonable time after the date of such grant.
13. Amendment
and Termination of the Plan.
(a) Amendment
and Termination. The Board may amend or terminate the Plan from time to time in such respects as the Board may deem advisable; provided,
however, that if required to qualify the Plan under Rule 16b-3 promulgated under Section 16 of the Exchange Act, as amended, no amendment
shall be made more than once every six months that would change the amount, price or timing of the option grants, other than to comport
with changes in the Code, as amended, or the rules and regulations promulgated thereunder; and provided, further, that, if required to
qualify the Plan under Rule 16b-3, no amendment shall be made without the approval of the stockholders of the Company in the manner described
in Section 17 of the Plan if the amendment would:
(i) increase
the number of Shares subject to the Plan, other than in connection with an adjustment under Section 11 of the Plan;
(ii) make
a change in the designation of the class of Employees or Consultants eligible to be granted Options; or
(iii) if
the Company has a class of equity security registered under Section 12 of the Exchange Act at the time of such revision or amendment,
cause any material increase in the benefits accruing to participants under the Plan.
(b) Stockholder
Approval. If any amendment requiring stockholder approval under Section 13(a) of the Plan is made subsequent to the first registration
of any class of equity security by the Company under Section 12 of the Exchange Act, such stockholder approval shall be solicited as
described in Section 17 of the Plan.
(c) Effect
of Amendment or Termination. Any such amendment or termination of the Plan shall not affect Options already granted, and such Options
shall remain in full force and effect as if this Plan had not been amended or terminated, unless mutually agreed otherwise between the
Optionee and the Board, which agreement must be in writing and signed by the Optionee and the Company.
14. Conditions
Upon Issuance of Shares. Shares shall not be issued pursuant to the exercise of an Option or a Sale unless the exercise of such Option
or consummation of the Sale and the issuance and delivery of such Shares pursuant thereto shall comply with all relevant provisions of
law, including, without limitation, the Securities Act of 1933, as amended, applicable state securities laws, the Exchange Act, the rules
and regulations promulgated thereunder, and the requirements of any stock exchange (including NASDAQ) upon which the Shares may then
be listed, and shall be further subject to the approval of counsel for the Company with respect to such compliance.
As
a condition to the exercise of an Option or a Sale, the Company may require the person exercising such Option or to whom Shares are being
Sold to represent and warrant at the time of any such exercise or Sale that the Shares are being purchased only for investment and without
any present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is required
by any of the aforementioned relevant provisions of law.
15. Reservation
of Shares. The Company, during the term of this Plan, will at all times reserve and keep available such number of Shares as shall
be sufficient to satisfy the requirements of the Plan.
Inability
of the Company to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company’s counsel
to be necessary to the lawful issuance and sale of any Shares hereunder, shall relieve the Company of any liability in respect of the
failure to issue or sell such Shares as to which such requisite authority shall not have been obtained.
16. Option
Agreement. Options shall be evidenced by written option agreements in such form as the Board shall approve.
17. Stockholder
Approval. Continuance of the Plan shall be subject to approval by the stockholders of the Company within twelve months before or
after the date the Plan is adopted. If such stockholder approval is obtained at a duly held stockholders’ meeting, it may be obtained
by the affirmative vote of the holders of a majority of the outstanding shares of the Company, such holders being present or represented
and entitled to vote thereon. If and in the event that the Company registers any class of any equity security pursuant to Section 12
of the Exchange Act, the approval of such stockholders of the Company shall be:
(a) Solicitation.
(i) solicited
substantially in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder, or
(ii) solicited
after the Company has furnished in writing to the holders entitled to vote substantially the same information concerning the Plan as
that which would be required by the rules and regulations in effect under Section 14(a) of the Exchange Act at the time such information
is furnished; and
(b) Time.
Obtained at or prior to the first annual meeting of stockholders held subsequent to the first registration of any class of equity securities
of the Company under Section 12 of the Exchange Act.
If
such stockholder approval is obtained by written consent, it must be obtained by the written consent of stockholders of the Company in
compliance with the requirements of applicable state law.
18. Section
409A. The Company intends that all Options granted and/or Shares Sold be structured to comply with, or be exempt from, Code Section
409A, such that no adverse tax consequences, interest, or penalties under Code Section 409A apply. Notwithstanding anything in this Plan
or any applicable option agreement to the contrary, the Board may, without an Employee or Consultant’s consent, amend this Plan
or applicable option agreement, adopt policies and procedures, or take any other actions (including retroactive actions) as are necessary
or appropriate to preserve the intended tax treatment of Options granted and/or Shares Sold.
19. Severability.
If any provision of this Plan or any applicable option agreement is or becomes or is deemed to be invalid, illegal, or unenforceable
or would disqualify the Plan or any applicable option agreement under applicable law, such provision will be (i) construed or deemed
amended to conform to applicable law or (b) if it cannot be construed or deemed amended without materially altering the Plan or any applicable
option agreement, such provision will be stricken, and the remainder of the Plan or any applicable option agreement shall remain in full
force and effect.
ISRAELI APPENDIX
TO
THE
Metro
One Telecommunications, Inc.
2021 STOCK INCENTIVE PLAN
1. Special Provisions for Persons who are Israeli Taxpayers.
1.1 This
Israeli Appendix (the “Appendix”)
to the Metro One Telecommunications, Inc. 2021 Stock Incentive Plan, as amended from time to time (the “Plan”)
is made and entered effective as of September 10, 2021 (the “Appendix Effective Date”).
The provisions specified hereunder shall form an integral part of the Plan.
1.2 The
provisions set forth in this Appendix apply only to Optionees who are subject to taxation by the State of Israel with respect to Options
granted thereto (each, an “Israeli Optionee”).
1.3 This
Appendix applies with respect to Options granted under the Plan as aforesaid. The purpose of this Appendix is to establish certain rules
and limitations applicable to Options that may be granted under the Plan to Israeli Optionees from time to time, in compliance with the
securities and other applicable laws currently in force in the State of Israel. All grants made pursuant to this Appendix shall be governed
by the terms of the Plan and the terms of this Appendix. This Appendix is applicable only to grants made after the Appendix Effective
Date. This Appendix is subject to the ITO (as defined below) and Section 102 (as defined below) in particular.
1.4 The
Plan and this Appendix shall be read together with respect to Israeli Optionees. In the event of a conflict between this Appendix and
the Plan, this Appendix shall take precedence with respect to provisions relating to Section 102.
2. Definitions.
Capitalized
terms not otherwise defined herein shall have the meaning assigned to them in the Plan. The following additional definitions will apply
to grants made pursuant to this Appendix:
“102
Capital Gains Track” means the tax track set forth in Section 102(b)(2) or Section 102(b)(3) of the ITO, as the case may be.
“102
Capital Gains Track Grant” means a 102 Trustee Grant elected and designated to qualify for the special tax treatment under
the 102 Capital Gains Track.
“102
Earned Income Track” means the tax track set forth in Section 102(b)(1) of the ITO.
“102
Earned Income Track Grant” means a 102 Trustee Grant elected and designated to qualify for the ordinary income tax treatment
under the 102 Earned Income Track.
“102
Trustee Grant” means an Option granted pursuant to Section 102(b) of the ITO and held in trust by a Trustee for the benefit
of the Eligible 102 Optionee, and includes 102 Capital Gains Track Grants and 102 Earned Income Track Grants, if and as applicable.
“Affiliated
Company” means any Israeli resident legal entity that qualifies as both (i) a Subsidiary, and (ii) an “employing company”
within the meaning of Section 102(a) of the ITO.
“Controlling
Shareholder” means a “controlling shareholder”, as defined under Section 32(9) of the ITO, of the Company.
“Election”
means the Company’s election of the type (i.e., between 102 Capital Gains Track or 102 Earned Income Track) of 102 Trustee Grants
that it will make under the Plan, as filed with the ITA.
“Eligible
102 Optionee” means an Israeli Optionee who is an individual employed by a Subsidiary that qualifies as an Affiliated Company
or is a Non-Employee Director, and such individual is not a Controlling Shareholder.
“Fair
Market Value” means, without derogating from the definition in the Plan of the term of “Fair Market Value” and
solely for the purpose of determining the tax liability pursuant to Section 102(b)(3) of the Ordinance, as follows: if at the date of
grant the Company’s shares are listed on any established stock exchange or a national market system or if the Company’s shares
will be registered for trading within ninety (90) days following the date of grant, the Fair Market Value of a Share on the date of grant
shall be determined in accordance with the average value of the Company’s shares on the thirty (30) trading days preceding the
date of grant or on the thirty (30) trading days following the date of registration for trading, as the case may be.
“ITA”
means the Israeli Tax Authority.
“ITO”
or the “Ordinance” means the Israeli Income Tax Ordinance (New Version), 5721-1961 and the rules, regulations, orders
or procedures promulgated thereunder and any amendments thereto, including specifically the ITO Rules, all as may be amended from time
to time.
“ITO
Rules” means the Income Tax Rules (Tax Benefits in Share Issuance to Employees), 5763-2003.
“Non-Trustee
Grant” means an Option granted to an Eligible 102 Optionee pursuant to Section 102(c) of the ITO.
“Option”
means the right to purchase shares of Common Stock of the Company granted to an Israeli Optionee.
“Required
Holding Period” means the requisite period prescribed by Section 102 and the ITO Rules, or such other period as may be required
by the ITA, with respect to 102 Trustee Grants, during which an Option granted by the Company and the share of Common Stock of the Company
(“Shares”) issued or delivered upon the exercise or vesting or settlement (as the case may be) of such Option must
be held by the Trustee for the benefit of the person to whom it was granted. As of the Appendix Effective Date, the Required Holding
Period for 102 Capital Gains Track Grants is 24 months from the date the Option is granted and deposited with the Trustee, provided that
all the conditions set forth in Section 102 and the related regulations have been fulfilled.
“Section
102” means the provisions of Section 102 of the ITO, as amended from time to time.
“Trustee”
means a person or entity designated by the Board or the Compensation Committee to serve as a trustee and/or supervising trustee and approved
by the ITA in accordance with the provisions of Section 102(a) of the ITO.
“Trust
Agreement” means the agreement(s) between the Company and/or an Affiliated Company and the Trustee, regarding Options granted
under this Appendix, as in effect from time to time.
3. Types of Grants and Section 102 Election.
3.1 Grants
of Options made pursuant to Section 102, shall be made pursuant to either (a) Section 102(b)(2) or Section 102(b)(3) of the ITO, as the
case may be, as 102 Capital Gains Track Grants, or (b) Section 102(b)(1) of the ITO as 102 Earned Income Track Grants. The Company’s
Election regarding the type of 102 Trustee Grant it elects to make shall be filed with the ITA before any grant is made pursuant to such
Election in accordance with Section 102 and shall also be applicable to any stock dividend and/or additional rights that are granted
with respect to an Option which was granted as a 102 Trustee Grant. Once the Company has filed such Election, it may change the type
of 102 Trustee Grant that it elects to make only in accordance with the provisions of Section 102(g) of the ITO (i.e., after the lapse
of at least 12 months from the end of the calendar year in which the first grant was made pursuant to the previous Election). For the
avoidance of doubt, such Election shall not prevent the Company from granting Non-Trustee Grants to Eligible 102 Optionees at any time.
3.2 Eligible
102 Optionees may receive only 102 Trustee Grants or Non-Trustee Grants under this Appendix.
3.3 No
102 Trustee Grants may be made effective pursuant to this Appendix until 30 days after the requisite filings required by the ITO and
the ITO Rules have been filed with the ITA; provided, however, that if the ITA provides approval for such - 102 Trustee Grants may be
made effective prior to the lapse of the aforementioned 30 day period.
3.4 The
Evidence of Option or other documents evidencing an Option granted or Shares issued or delivered pursuant to the Plan and this Appendix
shall indicate whether the grant is a 102 Trustee Grant or a Non-Trustee Grant; and, if the grant is a 102 Trustee Grant, the Evidence
of Option shall indicate, among other matters, whether it is a 102 Capital Gains Track Grant or a 102 Earned Income Track Grant, the
vesting provisions, the settlement provisions and the exercise price (if any and as applicable). For the avoidance of doubt, each Eligible
102 Optionee granted a 102 Trustee Grant, shall be required to sign and deliver to the Trustee a consent letter (whether as part of the
Evidence of Option or as a stand-alone consent, as the case may be) which includes several statements under which the Israeli Optionee,
among others, (i) agrees to be subject to the Trust Agreement and agrees that the Trustee be released from any liability in respect of
any action or decision duly taken and bona fide executed by it with respect to the Plan, this Appendix and/or any 102 Trustee Grants;
(ii) declares that he/she understands and accepts the provisions of Section 102 and the applicable tax track and approves the tax arrangement
contemplated thereby; and (iii) confirms that he/she shall neither sell nor transfer the Shares or any other right attributed thereto
until the lapse of the Required Holding Period.
4. Terms And Conditions of 102 Trustee Grants.
4.1 Each
102 Trustee Grant will be deemed granted on the date of, or the date stated in, the applicable Board or Committee resolution (as applicable),
in accordance with the provisions of Section 102 and the Trust Agreement.
4.2 Each
102 Trustee Grant, and any stock dividend and/or additional rights that are granted with respect to an Option which was granted as a
102 Trustee Grant, granted to an Eligible 102 Optionee shall be held by the Trustee and each Share acquired pursuant to a 102 Trustee
Grant shall be deposited in a trust account in the name of a Trustee and shall be held in trust for the benefit of the Eligible 102 Optionee
for the Required Holding Period. After the lapse of the Required Holding Period, the Trustee may release such Option and any such Shares,
provided that (i) the Trustee has received an acknowledgment from the ITA that the Eligible 102 Optionee has paid any applicable tax
due pursuant to the ITO; or (ii) the Trustee and/or the Company and/or the applicable Affiliated Company withhold any applicable tax
due pursuant to the ITO. The Trustee shall not release any Option which is granted pursuant to a 102 Trustee Grant, or Shares issued
thereunder and held by it, prior to the full payment of the Eligible 102 Optionee’s tax liabilities.
4.3 Each
102 Trustee Grant (whether a 102 Capital Gains Track Grant or a 102 Earned Income Track Grant, as applicable), and any stock dividend
and/or additional rights that are granted with respect to an Option which was granted as a 102 Trustee Grant, shall be subject to the
relevant terms of Section 102 and the ITO, which shall be deemed an integral part of the 102 Trustee Grant and shall prevail over any
term contained in the Plan, this Appendix or any Evidence of Option that is not consistent therewith. Any provision of the ITO and any
approvals by the ITA not expressly specified in this Appendix or any document evidencing a grant that are necessary to receive or maintain
any tax benefit pursuant to Section 102, shall be binding on the Eligible 102 Optionee. The Trustee and each Eligible 102 Optionee who
is granted a 102 Trustee Grant shall comply with the ITO and the terms and conditions of the Trust Agreement entered into between the
Company and/or an applicable Affiliated Company and the Trustee. For avoidance of doubt, it is reiterated that compliance with the ITO
specifically includes compliance with the ITO Rules. Further, the Eligible 102 Optionee agrees to execute any and all documents which
the Company, the applicable Affiliated Company or the Trustee may reasonably determine to be necessary in order to comply with the provision
of any applicable law, and, particularly, Section 102.
4.4 During
the Required Holding Period, the Eligible 102 Optionee shall not require the Trustee to release or sell the Option or the underlying
Shares and other shares received subsequently following any realization of rights derived from Option or Shares (including stock dividends)
to the Eligible 102 Optionee or to a third party. Notwithstanding the foregoing, the Trustee may, pursuant to a written request and subject
to applicable law, release and transfer such Shares provided that both of the following conditions have been fulfilled prior to such
transfer: (i) all taxes required to be paid upon the release and transfer of the Shares have been withheld for transfer to the ITA; and
(ii) the Trustee has received written confirmation from the Company and the applicable Affiliated Company that all requirements for such
release and transfer have been fulfilled according to the terms of the Company’s corporate documents, the Plan, this Appendix,
any applicable agreement and any applicable law. To avoid doubt, such sale or release during the Required Holding Period will result
in different tax ramifications to the Eligible 102 Optionee under Section 102 of the ITO and the ITO Rules and/or any other regulations
or orders or procedures promulgated thereunder, which shall apply to and shall be borne solely by such Eligible 102 Optionee.
4.5 In
the event a stock dividend is declared and/or additional rights are granted with respect to Shares which were issued upon an exercise
or vesting and settlement of an Option which was granted as a 102 Trustee Grant, such stock dividend and/or rights shall also be subject
to the provisions of this Section 4 and the Required Holding Period for such stock dividend and/or rights shall be measured from the
commencement of the Required Holding Period for the Option with respect to which the stock dividend was declared and/or rights granted.
In the event of a cash dividend which applies to an Option or Shares, the Trustee and/or the Company and/or the Affiliated Companies
shall deduct all taxes and mandatory payments from the dividend proceeds in compliance with applicable withholding requirements before
transferring the dividend proceeds to the Eligible 102 Optionee.
4.6 If
an Option which is granted as a 102 Trustee Grant is exercised or vests and settled (as the case may be) during the Required Holding
Period, the Shares issued or delivered upon such exercise or vesting and settlement, if and as applicable, shall be issued or delivered,
as applicable, in the name of the Trustee (to the extent applicable) for the benefit of the Eligible 102 Optionee. If such Shares are
issued or delivered, as applicable, after the Required Holding Period has lapsed, the Shares issued or delivered, as applicable, upon
such exercise or vesting and settlement shall, at the election of the Eligible 102 Optionee, either (i) be issued or delivered, as applicable,
in the name of the Trustee (if applicable), or (ii) be transferred to the Eligible 102 Optionee directly, provided that the Eligible
102 Optionee first complies with all applicable provisions of the Plan, this Appendix and Section 102, and the Eligible 102 Optionee
pays all taxes which apply on the Shares or to such transfer of Shares.
4.7 To
avoid doubt, in the event that an Option granted to Eligible 102 Optionee pursuant to the Plan and this Appendix, is settled for cash,
such Option most likely will not be qualified as a 102 Trustee Grant. It is also clarified that various amendments to the Plan or to
the terms of an Option that has already been granted, as well as the performance of some of the procedures stipulated in the Plan or
the resolution of the Board/Committee to condition an Option with various terms and conditions may be subject to obtaining the prior-approval
(ruling) of the ITA as a condition to having the 102 Capital Gains Track Grants continue to be subject to the 102 Capital Gains Track,
including, without limitation, any process of (i) acceleration of vesting that has not been originally stipulated in the Option Agreement,
(ii) cashless/net exercise/delivery to the Company of Shares, settlement and payment of the Consideration by promissory note, and (iii)
reduction of the exercise price or any other adjustments to the Option price or exercise or purchase price of any Option, whether pursuant
to a distribution of dividend or changes in the Company’s capital structure.
Notwithstanding
anything to the contrary in the Plan or this Appendix, it is hereby clarified that no “put” or “call” option
provisions are deemed included in the Plan or this Appendix with respect to Options which are intended to qualify as 102 Trustee Grants
without first obtaining the prior approval from the ITA.
4.8 Upon
receipt of a 102 Trustee Grant, the Eligible 102 Optionee will sign an undertaking to release the Trustee, the Company and the Affiliated
Companies from any liability in respect of any action or decision duly taken and bona fide executed in relation with this Appendix, or
any 102 Trustee Grant Share granted to the Eligible 102 Optionee thereunder.
5. Exercise Of Options.
Options
shall be exercised by the Eligible 102 Optionee by giving written notice to the Company and/or to any third party designated by the Company
(the “Representative”), in such form and method as may be determined by the Company (and subject to the terms stipulated
in the Plan and/or in such form) and, when applicable, by the Trustee, in accordance with the requirements of Section 102, which exercise
shall be effective – except if otherwise set forth in the said form of notice - upon receipt of such notice by the Company and/or
the Representative and the payment of the exercise price (if any) for the number of Shares with respect to which the Option is being
exercised, at the Company’s or the Representative’s principal office. The notice shall specify the number of Shares with
respect to which the Option is being exercised. Options that are not required to be exercised, but rather become payable in accordance
with the terms and conditions of the Option shall be settled in cash (without, for the removal of a doubt, derogating from the provisions
of Sections 4.7 and 7 hereof), Shares, or a combination thereof, as determined by the Company.
6. Assignability.
As
long as an Option or Shares are held by the Trustee on behalf of the Eligible 102 Optionee, none of the rights of the Eligible 102 Optionee
over the Option or the Shares nor any rights attributed thereto or derived therefrom may be (i) sold, assigned, pledged, given as collateral
or mortgaged or otherwise transferred, other than by will or by operation of law, (ii) subject of an attachment, power of attorney, a
proxy or a share transfer deed (other than a power of attorney or a proxy or a voting agreement with respect to the Shares which was
pre-approved by the Company) unless Section 102 and/or any tax ruling issued by the ITA with respect to 102 Trustee Grants allow otherwise.
During the lifetime of the Eligible 102 Optionee, each and all of such Eligible 102 Optionee’s rights to purchase, or be delivered
with, Shares under the Plan and this Appendix shall be exercisable by, or be delivered for the benefit of, the Eligible 102 Optionee
only. Any such action made directly or indirectly, for an immediate validation or for a future one, shall be void.
7. Tax Consequences.
7.1 Any
tax consequences arising from the grant or exercise or vesting or settlement of any Option, from the payment for Shares covered thereby,
or from any other event or act (of the Company or any applicable Affiliated Company, the Trustee or the Israeli Optionee), hereunder,
shall be borne solely by the Israeli Optionee. The Company and/or its Affiliated Companies and/or the Trustee shall be entitled to withhold
taxes according to the requirements under the applicable laws, rules, and regulations, including withholding taxes at source. Furthermore,
the Israeli Optionee shall agree to indemnify the Company and/or its Affiliated Companies and/or the Trustee and hold them harmless against
and from any and all liability for any such tax or interest or penalty thereon, including without limitation, liabilities relating to
(i) the necessity to withhold, or to have withheld, any such tax from any payment made to the Israeli Optionee, (ii) any taxes that should
have been paid by the Israeli Optionee in connection with the transfer of the Options from the Trustee to a designated transferee, whether
or not a payment was deemed to be made as part of such transfer, and (iii) any taxes that the Israeli Optionee should have paid upon
the exercise of the Options into Shares or settlement of Options for Shares, if and as applicable. The Company and/or any of its Affiliated
Companies and/or the Trustee may make such provisions and take such steps as it may deem necessary or appropriate for the withholding
of all taxes required by law to be withheld with respect to an Option granted under the Plan and this Appendix and the exercise or vesting
or sale or settlement thereof, including, but not limited, to (i) deducting the amount
so required to be withheld from any other amount then or thereafter payable to an Israeli Optionee, and/or (ii) requiring an Israeli
Optionee to pay to the Company any of its Affiliated Companies the amount so required to be withheld as a condition of the issuance,
delivery, distribution or release of any Shares, and/or (iii) by causing the exercise or settlement of an Option and/or the sale of Shares
held by or on behalf of an Israeli Optionee to cover such liability, up to the amount required to satisfy minimum statutory withholding
requirements. In addition, the Israeli Optionee will be required to pay any tax liability which exceeds the tax to be withheld and remitted
to the tax authorities, pursuant to applicable tax laws, regulations and rules. It is hereby further clarified that nothing in the potential
adverse tax consequences to the Israeli Optionees shall be deemed as restricting the Company from taking any action that it would have
otherwise be eligible to perform, including any of the actions delineated in Section 4.7 above, and, without limiting the generality
of the foregoing, the Company and/or Affiliated Companies make no assurances, promises, undertakings or otherwise assumes any obligation
that any of them will seek the approval (whether prior or post factum) of the ITA with respect to any action taken, or contemplated to
be taken, by the Company, including any of the actions delineated in Section 4.7 above (but subject to the obtainment of prior approval
of the ITA in the case of placing “put” and “call” option provisions in the Plan or the Appendix with respect
to 102 Capital Gains Track Grants) and will not, in any case, be restricted in any way from taking such action without the approval of
the ITA, and such shall not derogate in any manner from the liability of each Israeli Optionee to bear (solely on such Israeli Optionee’s
own) any tax consequences arising from, or related to, the grant or exercise or vesting or settlement of
any Option granted to such person. To the extent an Israeli Optionee is or becomes subject to taxation in the United States, any Option
granted hereunder is intended to be either exempt from or in compliance with the requirements of Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code” and “Code Section 409A”, respectively), and any regulations
or guidance that may be adopted thereunder, and if an Israeli Optionee is a “specified employee” as defined in Code Section
409A at the time of the Optionee’s separation from service with the Company, then solely to the extent necessary to avoid the imposition
of any additional tax under Code Section 409A, the commencement of any payments or benefits under an Option shall be deferred until the
date that is six months following the Optionee’s separation from service or such other period as required to comply with Code Section
409A. This provision shall not derogate in any manner from any of the other requirements hereunder and the Optionee shall be responsible
for any tax consequences in the United States.
7.2 With
respect to Non-Trustee Grants, if the Eligible 102 Optionee ceases to be employed by any Affiliated Company, the Eligible 102 Optionee
shall extend to the relevant Affiliated Company a security or guarantee for the payment of tax due at the time of sale of Shares to the
satisfaction of the Company, all in accordance with the provisions of Section 102 of the ITO and the ITO Rules.
8. Governing Law and Jurisdiction.
This
Appendix and all Options granted hereunder are governed by the laws of Delaware without regards to conflicts of laws; provided, however,
that all aspects of an Option which relate to Section 102 of the ITO, the rules and regulations promulgated thereunder, the Appendix
and/or the Trust Agreement, shall be governed by and interpreted in accordance with the laws of the State of Israel and Section 102,
in particular, with respect to Options granted pursuant to Section 102 to Eligible 102 Optionees, without regards to conflicts of laws.
All Options and Shares which are governed by the provisions of this Appendix shall be subject to the laws and requirements of the State
of Israel and the terms and conditions on which any such Option is granted are deemed modified to the extent necessary or advisable to
comply with the applicable Israeli laws. It is hereby clarified that any ruling provided by the ITA with respect to Israeli Optionees
and is required in order for the 102 Capital Gains Track Grants to continue to be subject to the 102 Capital Gains Track will be, upon
the resolution of the Board/Compensation Committee, deemed incorporated into this Appendix such that the Board/ Committee will be able
to act in accordance with such ruling.
9. Securities Laws.
Without
derogation from any provisions of the Plan, all Options which are governed by the provisions of this Appendix shall also be subject to
compliance with the Israeli Securities Law, 1968, and the rules and regulations promulgated thereunder.
Exhibit 10.4
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (the “Agreement”),
effective as of the effective date set forth in Schedule 1 (the “Effective Date”), is entered by and
between Metro One Telecommunications Inc., having its address as set forth in Schedule I hereto (the “Company”),
and Bianca Meger (S.B Meger Consulting, Management and Investment) whose details are set forth in Schedule I hereto
(“Consultant”).
|
WHEREAS
|
the Company desires that Consultant provide the Company with certain services and Consultant wishes to provide such services
to the Company;
|
|
WHEREAS,
|
Consultant is ready, qualified, willing and able to carry out all of her obligations and undertakings under this Agreement;
|
|
WHEREAS,
|
the Consultant has chosen for Consultant’s own personal reasons (including physical and financial reasons) to be engaged with
the Company as an independent contractor; and
|
|
WHEREAS,
|
the Company desires to retain the services of Consultant pursuant to the terms and conditions set forth in this Agreement,
and Consultant expresses consent to render the services, advice and assistance to Company on such terms and conditions as set forth hereinafter.
|
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
|
|
1.1.
|
Consultant shall provide the Company with management services as the CEO of the Company (the “Services”). As part of
the Services, Consultant shall be responsible for the ongoing management of the Company’s business and affairs including without limitation its ongoing operation, its sales and marketing activities, reporting and regulatory duties of the
Company being a US public company, as well as any other duty and responsibility as may be directed by the Board of Directors of the Company (the “Board”). The Consultant shall report to the Board on a regular basis.
|
|
|
1.2.
|
Consultant shall preform the Services from the Company’s offices in Israel, as may be from time to time. It is clarified
however that the main offices of the Company are located in the US offices and accordingly, the performance of the Services shall require working with US personnel during US working hours as well as frequent traveling abroad to the US main
offices and/or for other work meetings and assignments as shall be from time to time. It is further clarified that the performance of the Services might require immediate response to urgent or unexpected assignments that might require urgent
traveling aboard or connecting to the remote computer systems/servers of the Company, including outside of the ordinary work hours. The terms and conditions of providing the Services abroad will be according to the Company’s policy as shall be
in effect from time to time.
|
|
|
1.3.
|
It is further clarified that concurrently with the signing of this Agreement, Consultant shall enter into an agreement with
the Company’s subsidiary (the “Subsidiary”), for purpose of providing services as the Co-CEO of the Subsidiary. Consultant acknowledges her willingness to engage with the Company and the Subsidiary and understands and agrees that the
Company shall not be responsible in any way whatsoever for any matter in connection with, or resulting from, Consultant’s engagement with the Subsidiary.
|
|
|
1.4.
|
Consultant shall devote the necessary time required for the performance of the Services in a diligent, professional and
faithful manner, which shall not be less than the time specified in Schedule I hereto (the “Estimated Monthly Scope”).
|
Notwithstanding the foregoing, it is
acknowledged and agreed that the Services include management services which require a special degree of trust and do not enable the Company
to supervise the actual hours of services to be performed by Consultant. Consultant further acknowledges and agrees that the performance
of the Services may require, from time to time, to work beyond the Estimated Monthly Scope and beyond the regular working hours and on
non-workdays and therefore the amount of the Consideration has been calculated to include an additional Global Overtime Compensation,
which properly reflects the overtime hours that Consultant is expected to perform as part of the Services. Consultant hereby represents
and warrants that such Global Overtime Compensation is fair and reasonable and accordingly Consultant shall not be entitled to any additional
compensation of any kind resulting from, or in connection with, performing the Services beyond the Estimated Monthly Scope and/or beyond
regular working hours or during non-workdays.
|
|
1.5.
|
Consultant shall not engage in other businesses and/or commercial activities outside the Services. Consultant represents that
it owns certain businesses as set forth in Schedule I hereto and further represents that all such activities do not and shall not infringe on, or be inconsistent with, Consultant’s obligations and undertakings towards the Company
pursuant to this Agreement.
|
|
|
2.
|
Consultant’s Representations, Warranties and Undertakings
|
Consultant hereby
represents, warrants and undertakes, as follows:
|
|
2.1.
|
There is no legal or other restriction which could preclude or restrict the Consultant from executing this Agreement and
performing all of Consultant’s commitments herein or that could require the consent of any person or entity. Consultant is not under any obligation, and no circumstances exist, which could create, directly or indirectly, a conflict of interest
between the Consultant and the Company. In the event that the Consultant discovers that the Consultant has, or might have at some point in the future, any direct or indirect personal interest in any of the Company’s business, or a conflict of
interest with the provision of the Services, Consultant shall immediately inform the Company upon such discovery.
|
|
|
2.2.
|
Consultant has the experience, expertise and ability to carry out the obligations and undertakings according to this
Agreement. Consultant has the full right, power and legal capacity to enter into and deliver this Agreement and to perform its duties and other obligations hereunder. No approvals or consents of any persons or entities are required for
Consultant to execute and deliver this Agreement or perform her duties and other obligations hereunder.
|
|
|
2.3.
|
Consultant is duly registered with the Israel Tax Authority and with the National Insurance Institute and solely responsible
for the payment of any and all taxes and social security payments due to her earnings, in accordance with all relevant laws and regulations.
|
|
|
2.4.
|
Consultant hereby undertakes to comply with all Company regulations, rules, policies, procedures and objectives, which are
relevant to the performance of the Services. The provisions of the Company’s policies as shall be from time to time, form an integral part of this Agreement and Consultant shall fully comply with all such policies.
|
|
|
2.5.
|
In the course of Consultant’s engagement with the Company, Consultant shall not utilize, any proprietary information of any
other person or entity, including any previous or current employers, without due and timely permission to do so from the Company and the relevant third party.
|
|
|
2.6.
|
Consultant shall not receive any payment and/or benefit from any third party, directly or indirectly, in connection with the
Services to the Company. In the event Consultant breaches this subsection, without derogating from any of the Company’s rights by law or contract, such benefit or payment shall become the sole property of the Company and the Company may set-off
such amount from any sums due to Consultant.
|
|
|
2.7.
|
Consultant has obtained all applicable business licenses and permits necessary to perform the Services hereunder, and that
such Services shall be performed in accordance with the generally accepted professional standards and practices regarding such Services. In performing its duties hereunder, the Consultant shall observe, obey and comply with all applicable laws,
ordinances, codes, orders, rules and regulations of any government or other duly constituted public authority including federal, state, municipal, and local governing bodies and agencies, having jurisdiction over the performance of the Services
hereunder or any part thereof.
|
|
|
3.1.
|
Cash Fee; In consideration for the Services rendered by Consultant pursuant to this Agreement the Company shall pay
Consultant the consideration specified in Schedule I, which consideration constitutes full and final consideration for the Services (the “Consideration”).
|
|
|
3.2.
|
Out-of-Pocket Expenses: The Company will reimburse Consultant for reasonable and appropriately documented
out-of-pocket expenses incurred in the performance of the Services, provided that such expenses: (i) were specifically approved in advance and in writing by the Company, and (ii) were invoiced to the Company in a timely manner together with a
proof of payment of the expenses.
|
|
|
3.3.
|
Setting Off: The Company will be entitled to deduct from and set off against amounts due to Consultant pursuant to
this Agreement and/or pursuant to any other agreement, law, or otherwise, any amounts, which Consultant is required to pay the Company pursuant to this Agreement, any other agreement, any law, or otherwise.
|
|
|
3.4.
|
General: The Consideration and the expenses set forth in this Section 3 constitute the full, final, and absolute
consideration for the Services and Consultant shall not be entitled to any additional compensation of any kind whatsoever in consideration for, or with respect to, the Services and/or this Agreement.
|
|
|
3.5.
|
Method of Payment: Payment to Consultant of amounts due pursuant to this Agreement shall be made by bank wiring to
Consultant’s bank account (its details to be sent in writing by Consultant to Company) by no later than the 9th day of each calendar month with respect to Services rendered in the previous calendar month. Payment shall be made against, and
subject to, a tax receipt to be dully issued by Consultant to the Company.
|
|
|
3.6.
|
Taxes: All amounts and benefits pursuant to this Agreement are gross amounts and Consultant shall be responsible for
the payment of all taxes and mandatory payments applicable with respect to amounts paid, and benefits granted, under this Agreement. Company may withhold the applicable withholding tax up to the full rate under applicable law unless Consultant
shall provide the Company with a valid certificate of exempt from, or reduced rate of, withholding tax and in such case, the Company shall comply with such certificate.
|
|
|
5.1.
|
This Agreement shall commence upon the Effective Date and shall continue until terminated in accordance with this Section 5
(the “Term”).
|
|
|
5.2.
|
Notwithstanding anything to the contrary, this Agreement may be terminated by either party, at any time and for any or no
reason, by giving the other party a prior written notice (the “Notice Period”) of 60 (sixty) days, provided however that during the first 2 (two) months of this Agreement, the Company shall be entitled to terminate this Agreement for any
or no reason by giving a Notice Period of 7 (seven) days.
|
|
|
5.3.
|
Notwithstanding anything to the contrary, in the event that this Agreement is terminated by the Company for a Cause (as
defined below), the Company shall be entitled to terminate this Agreement immediately with no prior notice.
|
5.3.1. A
termination for Cause is a termination due to any of the following:
5.3.1.1. The Consultant’s
embezzlement of funds; or
5.3.1.2. The Consultant has been
charged with a criminal offense involving moral turpitude; or
5.3.1.3. The Consultant’s act
or omission which constitutes a fundamental breach of his duties and obligations pursuant to this Agreement, including any breach of trust
or fiduciary duty owed to the Company, or a deliberate cause of harm to the Company or its business; or
5.3.1.4. The Consultant’s violation
of the Consultant’s obligations as stated in Exhibit A below regarding confidentiality, intellectual property and non-competition.
|
|
5.4.
|
During the Notice Period, the Consultant shall continue the Services, and shall do all that is within the Consultant’s power
to assist the smooth transfer of the Consultant replacement.
|
|
|
5.5.
|
The Company may, at its sole discretion, waive the actual service by the Consultant during the entire or part of the Notice
Period, as it chooses, for whatever reason, with or without changing the date of termination of this Agreement.
|
|
|
5.6.
|
In the event of any termination of this Agreement, Consultant will promptly deliver to the Company all documents, data,
records and other information pertaining to the Company and any other equipment belonging to the Company in Consultant’s possession, and Consultant will not take any documents or data, or any reproduction or excerpt of any documents or data,
containing or pertaining to the Company.
|
|
|
6.
|
Confidentiality, Non-Competition and Proprietary Rights Undertaking
|
Simultaneously with the signing of
this Agreement, and as a condition to the execution of this Agreement, Consultant shall sign an Undertaking in the form attached hereto
as Exhibit A (the “Undertaking”).
|
|
7.1
|
Consultant confirms and declares that Consultant has been informed that personal and private information about Consultant,
which has been provided and/or shall be provided by Consultant to the Company during or as a result of performing the Services (the “Private Information”), is collected, held and processed by the Company and/or someone on its behalf
during this Agreement, for the purposes of the ordinary course of business, including managing human resources and payments by the Company. Consultant declares that the abovementioned shall not be considered an infringement of Consultant’s
privacy. In addition, Consultant confirms and declares that Consultant has been informed and hereby expressly agrees that the Company will be entitled to transfer the Private Information (in whole or in part) as part of the Company’s needs as
mentioned above, to the following: (a) Public Entities as defined in the Privacy Protection Act, 1981, or in order for the Company to comply with any relevant legal requirements; (b) entities related to the Company, in Israel and abroad,
including the Subsidiary and any other subsidiaries and associates of the Company; (c) legal advisors and tax consultants of the Company, as well as external entities that provide services of managing human resources and payroll to the Company;
(d) third parties in the framework of any legal or economic due diligence; (e) other entities that are not mentioned in sections (a) to (d) above. In each of the above-mentioned transfers, the transferred Information shall be limited to the
reasonable and necessary scope and the Company shall use its best efforts to ensure that the receiver of the Information shall undertake, to the extent possible, to preserve the privacy of the Private Information, at least at the level of
privacy kept by the Company itself regarding the Private Information.
|
|
|
7.2
|
Consultant agrees that the Company may monitor Consultant’s use of the Systems (as defined below) and copy, transfer and
disclose such electronic communications and content transmitted by or stored in such Systems, for purposes of the Company’s legitimate business interests, all in accordance with the Company’s policies from time to time, and subject to
applicable law. For the purposes of this Section, the term “Systems” includes all of the computers, mobile phones and other mobile devices, keys, credit cards, printers, access to any Company facilities, files, e-mails, inbox, servers,
programs, records and software, computer access codes or disks, and other similar systems used by or on behalf of the Company.
|
|
|
8.
|
Relationship of Parties
|
|
|
8.1.
|
Consultant acknowledges that Consultant has read and fully understood the terms of this Agreement and the structure of the
relationship between the parties as a client and independent service provider; that no partnership, joint venture or employer-employee relationship between the parties hereto will be created or construed to be created by this Agreement; and
that Consultant had sufficient opportunity to seek the professional advice of a counsel regarding same.
|
|
|
8.2.
|
Consultant is not and shall not represent to be the agent, employee, partner or joint venture of the Company, or any of its
affiliates, and the Consultant shall not obligate the Company or any of its affiliates by contract or otherwise without the Company’s prior written authorization. Consultant shall not make any representations or warranties to anyone with
respect to any contract or otherwise, without the Company’s prior written authorization.
|
|
|
8.3.
|
Consultant shall be solely responsible for payment of all
taxes and mandatory payments due according to applicable law with respect to all payments and benefits to Consultant pursuant to this
Agreement. Without derogating from the generality of the foregoing, it is expressly agreed and clarified that by calculating the amount
of Consideration and other benefits under this Agreement, the parties took into consideration the “employer’s costs” that
would have been due had Consultant was classified as an employee of the Company, such that the amount of Consideration includes all amounts
due and payable on account of National Insurance, National Health Insurance, pension reservation, severance pay, disability coverage
and Education Fund. Consultant hereby undertakes to pay in full all such mandatory payments to the fullest rate applicable under the
law with respect to employees. Consultant represents and warrants that Consultant holds and shall maintain during the entire term of
this Agreement, a provident fund or managers’ insurance policy as well as Education Fund, and shall contribute on a monthly basis
the monthly contribution and reservation applicable on account of severance pay, pension, disability coverage and Education Fund with
respect to the amount of the Consideration. Without imposing any obligation on the Company, upon request, Consultant shall provide the
Company with records of such payments, contributions and reservations.
|
|
|
8.4.
|
Consultant will defend, indemnify and hold the Company, or any third party on its behalf, harmless from and against all
claims, damages, losses and expenses, including reasonable fees and expenses of attorneys and other professionals (i) relating to any obligation imposed upon the Company to pay any withholding taxes, social security, vacation pay, sick pay,
pension, convalescence pay, unemployment or disability insurance or similar terms in connection with compensation received by Consultant or, which are based upon a stipulation by a competent judicial authority that an employer - employee
relationship was created between the Company or its affiliates and Consultant or her agents or employees; and (ii) resulting from any act, omission or negligence on Consultant’s part or on part of any of Consultant’s employees in the
performance or failure to perform this Agreement.
|
|
|
8.5.
|
Consultant, hereby releases and forever discharges the Company, its directors, officers, shareholders and its affiliates,
from any and all claims, which Consultant ever had, now has, or may claim to have against any of them in connection with the existence of any employer-employee relationship between Company or its affiliates and Consultant or any of Consultant’s
agents and employees.
|
|
|
8.6.
|
In the event that any court or tribunal shall determine that notwithstanding the parties’ mutual understanding, as described
in this Agreement, the Consultant is considered as an employee of the Company, the parties represent and acknowledge, that the total amount of Consideration was calculated and based on the following components of payments and benefits, which
shall be considered as included in, and as have been paid in lieu of, the Consideration:
|
|
|
8.6.1.
|
The monthly salary of the Consultant, including the base salary
and overtime compensation, and all the social benefits to which Consultant would have been entitled to under applicable law (including,
pension allocations, convalescence pay, travel reimbursement, sick days and vacation), shall be as detailed in Schedule II
of this Agreement (the “Agreed Employee Compensation”).
|
|
|
8.6.2.
|
The Company may set off any of the Consultant’s debt to the Company. For the avoidance of doubt, no deduction (as described
in this section) shall exempt the Consultant from repaying the Company the Consultant’s overall debt.
|
|
|
8.6.3.
|
It is clarified that, for the avoidance of doubt, the provisions of this Section 8.7 are included in this Agreement for the
sake of caution only, and their inclusion shall not be considered as evidence that the parties intended to create an employment relationship between them.
|
|
|
9.1.
|
Preamble. The preamble and all schedules and exhibits to this Agreement constitute an integral part hereof.
|
|
|
9.2.
|
Assignment. Consultant shall not assign, transfer, pledge or otherwise transfer in any way, any of the Consultant’s
obligations or rights under this Agreement to any third party without the express prior written consent of the Company. The Company may assign any of its rights or obligations under this Agreement, provided that the assignee has assumed the
Company’s applicable obligations under this Agreement.
|
|
|
9.3.
|
Entire Agreement; Amendments. This Agreement constitutes the entire agreement between the parties with respect to the
matters referred to herein, and supersedes any other arrangement, understanding, or agreement, verbal or otherwise. This Agreement may not be amended or modified except by the express written consent of the Company and Consultant.
|
|
|
9.4.
|
Law; Jurisdiction. This Agreement shall be governed by the internal laws of the State of Israel (excluding its
conflict of law principles) and the competent courts of Tel-Aviv shall have exclusive jurisdiction over any disputes arising hereunder.
|
|
|
9.5.
|
No Waiver. No failure or delay on the part of any party hereto in exercising any right, power or remedy shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. Any waiver granted must be in writing and shall
be valid only in the specific instance in which given.
|
|
|
9.6.
|
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable
under applicable law, then such provision shall be excluded from this Agreement and the remainder of this Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms; provided,
however, that in such event this Agreement shall be interpreted so as to give effect, to the greatest extent consistent with and permitted by applicable law, to the meaning and intention of the excluded provision as determined by such court of
competent jurisdiction.
|
|
|
9.7.
|
Notices. All notices hereunder will be in writing and shall be given by and be deemed received by the receiving party
(i) if sent by a delivery service, on the date confirmed as the actual date of delivery by such service; (ii) if sent by registered mail, return receipt requested, within 3 days of mailing; or (iii) if sent by electronic means (fax, email
etc.), on the next business day after electronic transmission.
|
|
|
9.8.
|
Counterparts. This Agreement may be executed in any number of counterparts, each of which, when executed and
delivered, shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. Copies signed electronically, by fax, pdf or in any similar format, shall be considered originals.
|
|
|
9.9.
|
Survival. The provisions of this Agreement that, by their nature, should survive the expiration or other termination
hereof, or the parties’ relationship, shall so survive and remain in full force and effect.
|
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, this Agreement has
been executed by the parties hereto as of the date first above written.
|
|
|
/s/Bianca Meger
|
|
Metro One Telecommunications Inc.
|
|
Bianca Meger
|
|
|
|
|
|
|
By:
|
/s/ Nani Maoz
|
|
|
|
|
Title:
|
President
|
|
|
[Signature Page to Consulting Agreement]
Schedule 1
DETAILS:
|
|
1.
|
Effective Date: September 5th, 2021
|
|
|
2.
|
Address of Company: 30 North Gould St, Suite 5953, Sheridan, WY 82801.
|
Att. Nani (Elchanan)Maoz;
|
|
3.
|
Consultant I.D. number: [*]
|
|
|
4.
|
Address of Consultant: Ha Dafna Street 2, Tel Mond.
|
|
|
5.
|
E-mail of Consultant: .
|
SERVICES:
1. Description of Services: as set forth in Section 1 of the
Agreement.
2. Estimated Monthly Scope: At least 46 monthly hours.
3. Other Permitted Activities: Ownership of family business
of hotel and Jewellery line, which does not and shall not involve work or time consuming by Consultant.
4. Cash Fee: a gross amount equals to “employer’s
costs” of a gross amount of NIS 11,250, i.e.: NIS 14,555 +VAT.
5. Vacation Pay: Consultant shall be entitled
to enjoy 23 vacation days per year during which Consultant shall be paid the Consideration pursuant to this Agreement. Consultant shall
use the vacation days on the same days in which Consultant shall use the vacation days pursuant to her engagement with the Subsidiary.
6. Reports: Hourly reports of time spent on the Services shall
be provided by Consultant by the beginning of each calendar month with respect to the Services provided during the previous month. Periodically
reports on the Services shall be provided upon request by the Company.
Bianca Meger
|
|
September 5, 2021
|
|
Name
|
|
Date
|
SCHEDULE II
THE AGREED EMPLOYEE COMPENSATION
In the event that Consultant shall
be considered an employee of the Company, it is agreed that the total amount of Consideration is calculated and based on the following
components of payments and benefits, which shall be considered as included in, and shall be paid in lieu of, the Consideration:
|
|
1.
|
Total Gross Amount of Consideration: NIS 14,555 equals to the total gross amount of “employer’s costs, based on the
following components:
|
|
|
Payment/Benefit
|
NIS
Amount
|
|
|
Base
Salary
|
NIS 7,875
|
|
|
Global
Overtime Compensation
|
NIS 3,375
|
|
|
Employer
National Insurance
|
NIS 772
|
|
|
Pension(incl.
disability coverage)
|
NIS 752
|
|
|
Severance
Pay
|
NIS 937
|
|
|
Education
Fund
|
NIS 844
|
|
|
TOTAL:
|
NIS 14,555
|
|
|
3.
|
Vacation days: 23 days
|
|
|
4.
|
Convalescence pay (“Dmei-Havraa”) and sick days as per applicable law.
|
|
|
5.
|
All amounts are gross amounts and are subject to mandatory taxes and deductions including, but not limited to, National
Insurance, National Health Insurance and income tax.
|
Bianca Meger
|
|
September 5, 2021
|
|
Name
|
|
Date
|
Exhibit A
CONFIDENTIALITY, INTELLECTUAL PROPERTY &
NON-COMPETITION UNDERTAKING
This Confidentiality, Intellectual Property
and Non-Competition Undertaking (this “Undertaking”) is entered into and made effective as of the Effective Date
by Bianca Meger (“Consultant”) for the benefit of Metro One Telecommunications Inc. (the “Company”,
as further defined below).
This Undertaking constitutes an integral part
of Consultant’s engagement agreement to which it is annexed (the “Agreement”).
All capitalized terms used in this Undertaking,
and not otherwise defined herein, shall have the meanings assigned to such terms in the Agreement.
|
WHEREAS,
|
Consultant wishes to be engaged pursuant to the Agreement; and
|
|
WHEREAS,
|
it is critical for the Company to preserve and protect its Confidential Information (as such term is defined below), its
rights in Inventions (as such term is defined below) and all related Intellectual Property Rights (as such term is defined below), and Consultant is entering into this Undertaking as a condition to the Company’s agreement to engage Consultant
pursuant to the Agreement.
|
NOW, THEREFORE, Consultant undertakes and
warrants towards the Company as follows:
|
|
1.1.
|
Confidential Information. Consultant recognizes and acknowledges that Consultant’s access to trade secrets,
confidential information and/or proprietary information (each “Confidential Information”) in the framework of their engagement pursuant to the Agreement, is essential to the performance of Consultant’s duties pursuant to the Agreement.
|
Confidential Information shall include,
without limitation: (i) any and all information concerning the Company’s product specifications, data, know-how, patents, technology,
compositions, processes, formulas, methods, designs, samples, inventions, discoveries, research, test results, concepts, ideas, development
or experimental work, computer software and programs (including object code and source code), databases, systems structures and architectures,
algorithms, and/or works-in-process; (ii) any and all derivatives, improvements and enhancements to the Company’s technology, products
or services; (iii) any and all information concerning the business and affairs of the Company, which includes historical financial statements,
financial projections and budgets, historical and projected sales, capital spending budgets and plans, current and planned distribution
methods and processes, customer lists, current and anticipated customer requirements, supplier lists, current and anticipated supplier
requirements, price lists, market studies, policies, practices, strategies, surveys, business plans, lists of assets, data or reports
relating to a financial condition, suppliers or partners, agreements, negotiations, transactions, undertakings and data concerning employees,
consultants, officers, directors and shareholders; (iv) any and all information of the Company that is or may be considered a trade secret
of the Company; (v) any and all trade secrets, confidential information and/or proprietary information of third parties; and (vi) any
and all notes, compilations, studies, summaries, memoranda, books, records, correspondences, email transmissions, charts, lists, other
documents and materials, relating, containing or based, in whole or in part, on any information included in the foregoing. Confidential
Information shall include information referred to above, whether developed by the Company (including by Consultant) or received or obtained
by the Company (including by Consultant) from third parties. Confidential Information shall include information in any form or media,
and any portion of Confidential Information shall constitute Confidential Information.
The Confidential Information shall
not include information: which (i) has become publicly known and made generally available through no wrongful act of Consultant or of
others who were under confidentiality obligations as to the applicable Confidential Information, or (ii) is not by its nature confidential.
Notwithstanding the above, Confidential
Information may be disclosed by Consultant if required by order of competent court or governmental authority legally, but only if the
Consultant fulfill all of the following conditions: (a) Consultant provides the Company with prompt written notice thereof so that the
Company may seek to obtain a protective order affording confidential treatment to such Confidential Information or such other appropriate
remedy which may be available under applicable law, (b) upon the Company’s request and at its expenses - Consultant shall use commercially
reasonable efforts to obtain assurances from the applicable court or governmental authority that such Confidential Information will be
afforded confidential treatment, and (c) disclosure pursuant to this paragraph is only that portion which Consultant is legally compelled
to disclose.
|
|
1.2.
|
Ownership. All right, title and interest in and to Confidential Information are and shall remain the sole and
exclusive property of the Company.
|
|
|
1.3.
|
Disclosure and Use Restrictions. Consultant acknowledges and understands that the Confidential Information, in whole
or in part, is a valuable and unique asset of the Company, and that its use or disclosure (except use or disclosure to the extent required for carrying out Consultant’s duties to the Company) would likely cause the Company substantial loss and
damages. Consultant undertakes and agrees that Consultant will not, in whole or in part, disclose any Confidential Information to any person or organization under any circumstances, will not make use of any Confidential Information for their
own purposes or for the benefit of any other person or organization, and will not reproduce any Confidential Information without the Company’s prior written consent, except reproductions which are carried out in the reasonable fulfillment of
Consultant’s engagement duties. Consultant shall not remove from the Company’s offices or premises any Confidential Information, or any copy thereof, except in the reasonable fulfillment of Consultant’s engagement duties and in a manner which
is not prohibited pursuant to the then applicable policies and regulations of the Company. Consultant will take strict precautions to maintain the confidentiality of any and all Confidential Information.
|
The Consultant may disclose the Confidential
Information to its employees (“Representatives”) who have a legitimate need to know such Confidential Information for
performing the Services, provided that, prior to disclosing any Confidential Information to such Representatives, Consultant
shall ensure that such Representatives are aware of the confidential nature of the Confidential Information and of the provisions of this
Undertaking, and have signed or are otherwise bound by obligations no less restrictive than those contained in this Undertaking. Consultant
shall be fully responsible for any breach of this undertaking by any of the Representatives.
|
|
1.4.
|
Information of Third Parties. Consultant will not, during Consultant’s engagement with the Company or otherwise in
connection therewith, use, disclose or bring onto the premises of the Company, any proprietary information or trade secrets of any former or current employer or other person or entity, unless consented to in writing by such employer, person or
entity.
|
|
|
1.5.
|
Consultant acknowledge that Confidential Information which is received from, or relates to, third parties may be subject to
certain limitations which the Company has undertaken towards the applicable third party, or which otherwise bind the Company pursuant to applicable law. With respect to any such Confidential Information, Consultant shall comply with the terms
of this Undertaking and, if brought to the attention of Consultant, the terms of the Company’s undertaking towards the applicable third party, as well as any other obligation which binds the Company pursuant to applicable law.
|
|
|
1.6.
|
Upon termination of Consultant’s engagement with the Company, or, if the Company so requests, at any time before such
termination, Consultant will promptly deliver to the Company all copies of materials in any form (without retaining any copies thereof) in Consultant’s possession or under Consultant’s control, incorporating or otherwise including Confidential
Information.
|
|
|
1.7.
|
The obligations set forth in this Section 1 are perpetual and shall survive termination of the Agreement and of Consultant’s
engagement with the Company.
|
|
|
2.1.
|
Work Product. Consultant will promptly disclose to the Company, as soon as practicable following discovery,
conception, development, reduction to practice or invention (as applicable, “Creation”), and hold in trust for the sole right and benefit of the Company, any and all inventions, original works of authorship, developments, discoveries,
ideas, research, test results, methods, concepts, improvements, designs, formulae, processes, information, techniques, know-how, data or trade secrets – in each case - whether or not patentable, copyrightable or registerable under copyright or
similar laws - that (i) are discovered, conceived, developed, reduced to practice, or invented by Consultant and/or any Representatives (as applicable, “Created”), either alone or jointly with others, during performance of the Services,
or (ii) result, wholly or partially, from Consultant’s and\or any Representatives’ engagement or the performance of the Services, or (iii) are Created with the use of any of the Company’s equipment, supplies or facilities, or (iv) result from,
or stem from Consultant’s and\or any Representatives’ knowledge of Confidential Information, or (v) are related to the business of the Company as conducted during the Term or, to the knowledge of Consultant and\or any Representatives - proposed
to be conducted in the future (each of the aforesaid: an “Invention”). Consultant shall keep and maintain adequate and current written records of all Inventions. Said records will be made available to, and shall be and remain the sole
property of, the Company, at all times.
|
|
|
2.2.
|
Consultant agrees and Consultant shall ensure that its Representatives agree, that any and all of the Inventions are, upon
Creation, considered Inventions of the Company. Any and all Inventions shall be the property of the Company, exclusively, and the Company shall be the sole owner of all intangible legal rights, titles and interests evidenced by, or embodied in,
or connected or related to, the Inventions, including without limitation, (i) any and all patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and
reexaminations thereof; (ii) any and all trademarks, service marks, trade dress, logos, trade names, and corporate names, domain names together with all translations, adaptations, derivations, and combinations thereof, and including any and all
goodwill associated therewith, and any and all applications, registrations, and renewals in connection therewith; (iii) any and all works of authorship (regardless of the existence or non-existence of copyrightability with respect thereto),
copyrights and all applications, registrations, and renewals in connection therewith; (iv) any and all trade secrets and business information; and (v) any and all other proprietary rights, industrial rights and any other similar rights - in
each case (with respect to (i) through (v) above)) - on a worldwide basis, and all copies and tangible embodiments thereof, or any part thereof, in whatever form or medium (“Intellectual Property Rights”).
|
|
|
2.3.
|
Work Made for Hire. Without derogating from the generality of the foregoing, Consultant agrees that if,
notwithstanding this Undertaking and the Agreement, it will be decided by an authority, court or any other competent tribunal, whether at Consultant’s and\or any Representatives’ request or otherwise, that Chapter H of the Patents Law of 1967
(the “Patents Law”) is applicable to the engagement of Consultant and\or any Representatives by the Company, then Consultant further acknowledges that any and all Inventions are deemed “works made for hire” (service inventions) as
contemplated under Chapter H of the Patents Law, that all such “works made for hire” are owned by the Company and that Consultant and\or any Representatives shall not be entitled to any compensation, nor any other consideration, except as
explicitly set forth in the Agreement (if at all), for creation or assignment of the same to the Company, except as explicitly set forth in the Agreement (if at all). Consultant acknowledges and agrees that the consideration under the Agreement
and all other engagement terms under the Agreement shall constitute the sole consideration and remuneration for any Inventions, including, without limitation, “works made for hire”, regardless of the current or future value of the Invention.
Consultant understands and agrees that the decision whether or not to commercialize or market any invention developed by Consultant and\or any Representatives (including the Inventions), solely or jointly with others, is within the Company’s
sole and unfettered discretion and for the Company’s sole benefit, and that no royalty will be due to Consultant and\or any Representatives as a result of the Company’s efforts to commercialize or market any such invention (including the
Inventions). Without limitation of the foregoing, Consultant irrevocably confirms that the consideration explicitly set forth in the Agreement is in lieu of any rights for compensation that may arise in connection with the Inventions under
applicable law and Consultant waives any right to claim royalties or other consideration with respect to any Invention, including under Section 134 of the Patents Law. This Section 2.3 shall be deemed as an “agreement” for purposes of Section
134 of the Patents Law. In no event will any Inventions become the property of Consultant and the provisions of Section 132(b) of the Patents Law shall not apply. With respect to all of the above, any oral understanding, communication or
agreement shall be void, except and unless the content thereof is expressly reflected in a document which is signed by the Company.
|
|
|
2.4.
|
Assignment. To the extent necessary in order to vest fully in the Company all rights in and to all Inventions and all
Intellectual Property Rights (to the extent legally possible), Consultant hereby irrevocably and unconditionally assigns to the Company, for no additional consideration, Consultant’s entire right, title and interest in and to all Inventions and
Intellectual Property Rights therein, including the right to sue, counterclaim and recover for all past, present and future infringement, misappropriation or dilution thereof, and all rights corresponding thereto – in each case - throughout the
world.
|
|
|
2.5.
|
Exclusion of Prior Inventions. This Undertaking and the assignment herein shall not include inventions, if any,
patented or unpatented, which Consultant made prior to the commencement of Consultant’s engagement with the Company (“Prior Inventions”). Consultant shall not incorporate, or permit to be incorporated, any Prior Inventions in any
Inventions, nor shall Consultant use or exploit any Prior Inventions – in each case - without the Company’s prior written consent. If, despite the forgoing, in the course of engagement with the Company, Consultant will incorporate a Prior
Invention into a Company product, service or Invention, or Consultant will otherwise use or exploit a Prior Invention without having received the Company’s prior written consent, Consultant hereby grant the Company a nonexclusive, royalty-free,
irrevocable, perpetual, unlimited worldwide license (with rights to sublicense through multiple tiers of sublicenses) to make, have made, modify, use and/or sell and/or otherwise use and exploit in any manner, as the Company may wish, said
Prior Invention and products or services based thereon, to the full extent of Consultant’s rights in such Prior Invention.
|
|
|
2.6.
|
Power of Attorney. Consultant hereby covenants and agree to perform, during and after engagement, any acts
reasonably required by the Company to permit and assist the Company, at the Company’s expense (provided that, during the term of Consultant’s engagement with the Company, no additional expense shall be charged to the Company, other than
payments set forth in the Agreement), in obtaining, maintaining, defending and enforcing the Intellectual Property Rights in any and all countries, and generally cooperate reasonably, to aid the Company in its attempts to obtain, secure and
enforce proper protection for the Inventions and the Intellectual Property Rights (including, to the extent necessary, the assignment and transfer thereof to the Company and its successors, assigns and nominees), in any and all jurisdictions.
Such acts may include, but are not limited to, the execution of documents and assistance or cooperation in legal proceedings; provided that, following the term of Consultant’s engagement with the Company, Consultant and shall not be required to
perform any act, or cooperate, in a manner which would unduly interfere with Consultant’s affairs and activities. Consultant hereby irrevocably appoint the Company as Consultant’s true and lawful attorney and attorney-in-fact, to act for and on
Consultant’s behalf and instead of Consultant, to execute and file any documents and instruments, and to do such other acts and things as may be necessary or appropriate, in order to give effect and further the above purposes and the intentions
contained in this Undertaking, with the same legal force and effect as if executed by Consultant.
|
|
|
2.7.
|
No Contestation. Consultant hereby undertake that Consultant shall not, directly or indirectly, take any action
to contest the Company’s rights in any of the Inventions and/or Intellectual Property Rights, or infringe them in any way, nor shall Consultant, directly or indirectly, make a claim for and/or sue and/or demand, any additional compensation for
creation or assignment of Inventions beyond the consideration set forth in the Agreement.
|
|
|
2.8.
|
Moral Rights Waiver. In connection to any work of authorship, Consultant hereby forever waive, and agree never to
assert, any rights that may be known as or referred to as “moral rights”, including all rights of paternity, integrity, any right to object to any distortion or other modification of a work and any other similar right, existing under the law of
any country in the world or under any treaty, and Consultant hereby consents to any action that would violate such “moral rights” in the absence of such consent.
|
|
|
2.9.
|
The obligations set forth in this Section 2 are perpetual, and shall survive any termination of the Agreement and of
Consultant’s engagement with the Company. This Section 2 shall be deemed as an “agreement” for the purposes of Section 35 of the Copyrights Law 2008.
|
|
|
2.10.
|
Consultant shall ensure that its Representatives are aware of the Consultant’s undertakings under this Section 2 and shall
ensure that each Representative will acknowledge and agree to the provisions hereunder as if undertook directly by such Representative – each with respect to itself.
|
|
|
3.1.
|
Non-Disparagement. Consultant undertakes that it will not at any time make, publish or communicate to any person or
entity, or in any public forum, any defamatory or disparaging remarks, comments or statements concerning the Company or its business, or - with respect to their relationship with the Company - any of its employees, officers, directors and
shareholders and other associated third parties.
|
|
|
3.2.
|
Definition of the Company. In this Undertaking, the term “the Company” shall, except with respect to ownership
of Confidential Information, Inventions and Intellectual Property Rights, also include, as applicable, the Subsidiary and any entity: (i) which holds – directly or indirectly - more than fifty percent of the issued share capital or voting power
in the Company; or (ii) in which the Company holds – directly or indirectly - fifty percent or more of the issued share capital or voting power; or (iii) in which a parent company holds – directly or indirectly - fifty percent or more of the
issued share capital or voting power.
|
|
|
3.3.
|
Necessity of Undertakings. Consultant recognizes and agree that: (i) this Undertaking is necessary and essential to
protect the Company’s business and to realize and derive all the benefits, rights and expectations of conducting the Company’s business; (ii) the duration and unlimited geographical application of the protective covenants contained in this
Undertaking are reasonable in order to protect its legitimate interests with respect to the subject matter hereof; and (iii) the provisions of this Undertaking serve as an integral part of the terms of Consultant’s and engagement and that good
and valuable consideration exists under the Agreement, for Consultant to be bound by the provisions of this Undertaking.
|
|
|
3.4.
|
Injunctive Relief. Consultant recognizes and acknowledges that in the event of a breach or threatened breach of this
Undertaking by Consultant, the Company may suffer irreparable harm or damage and will, therefore, be entitled to injunctive relief to enforce this Undertaking (without limitation to any other remedy at law or in equity).
|
|
|
3.5.
|
Consultant shall be responsible for enforcing the terms of this Undertaking vis-à-vis any of its Representatives, and shall
be liable for any breach of the terms of this Undertaking by any of its Representatives, as if such breach was a breach of the Consultant of this Undertaking.
|
|
I, THE UNDERSIGNED, ACKNOWLEDGES THAT I AM FAMILIAR WITH THE ENGLISH LANGUAGE AND DO NOT REQUIRE TRANSLATION OF THIS UNDERTAKING TO ANY OTHER LANGUAGE. I
FURTHER ACKNOWLEDGE THAT I HAVE BEEN ADVISED BY THE COMPANY THAT I MAY CONSULT AN ATTORNEY BEFORE EXECUTING THIS UNDERTAKING AND THAT I HAVE BEEN AFFORDED AN OPPORTUNITY TO DO SO.
|
IN WITNESS WHEREOF, the undersigned, has
executed this Undertaking:
|
Printed Name:
|
Bianca Meger
|
|
Signature:
|
/s/ Bianca Meger
|
Exhibit A1
Prior Inventions
None
/s/Elchanan Maoz
|
|
Bianca Meger
|
|
The Company
|
|
The Consultant
|
CONSULTING
AGREEMENT
This
CONSULTING AGREEMENT (the “Agreement”), effective as of the effective date set forth in Schedule 1
(the “Effective Date”), is entered by and between Stratford Ltd., a company incorporated under the laws of
the State of Israel, having its address as set forth in Schedule I hereto (the “Company”), and Bianca
Meger (S.B Meger Consulting, Management and Investment) whose details are set forth in Schedule I hereto (“Consultant”).
|
|
WHEREAS
|
the Company desires that Consultant provide the Company with certain
services and Consultant wishes to provide such services to the Company;
|
|
|
WHEREAS,
|
Consultant is ready, qualified, willing and able to carry out all of
her obligations and undertakings under this Agreement;
|
|
|
WHEREAS,
|
the Consultant has chosen for Consultant’s own personal reasons
(including physical and financial reasons) to be engaged with the Company as an independent contractor; and
|
|
|
WHEREAS,
|
the Company desires to retain the services of Consultant pursuant to
the terms and conditions set forth in this Agreement, and Consultant expresses consent to render the services, advice and assistance to Company on such terms and conditions as set forth hereinafter.
|
NOW,
THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
|
|
1.1.
|
Consultant shall provide the Company with management services as the
Co-CEO of the Company (the “Services”). As part of the Services, Consultant shall be responsible for the ongoing management of the Company’s business and affairs including without limitation its ongoing operation, its sales and marketing
activities, reporting and regulatory duties of the Company being a subsidiary of a US public company, as well as any other duty and responsibility as may be directed by the Board of Directors of the Company (the “Board”). The Consultant
shall report to the Board on a regular basis.
|
|
|
1.2.
|
Consultant shall preform the Services from the Company’s offices in
Israel, as may be from time to time. It is clarified however that the main offices of the Company are located in the US offices of the Parent Company (as defined below) and accordingly, the performance of the Services shall require working with
US personnel during US working hours as well as frequent traveling abroad to the US main offices and/or for other work meetings and assignments as shall be from time to time. It is further clarified that the performance of the Services might
require immediate response to urgent or unexpected assignments that might require urgent traveling aboard or connecting to the remote computer systems/servers of the Company, including outside of the ordinary work hours. The terms and
conditions of providing the Services abroad will be according to the Company’s policy as shall be in affect from time to time.
|
|
|
1.3.
|
It is further clarified that concurrently with the signing of this
Agreement, Consultant shall enter into an agreement with the Company’s US parent company (the “Parent Company”), for purpose of providing services as the CEO of the Parent Company. Consultant acknowledges her willingness to engage with
the Company and the Parent Company and understands and agrees that the Company shall not be responsible in any way whatsoever for any matter in connection with, or resulting from, Consultant’s engagement with the Parent Company.
|
|
|
1.4.
|
Consultant shall devote the necessary time required for the
performance of the Services in a diligent, professional and faithful manner, which shall not be less than the time specified in Schedule I hereto (the “Estimated Monthly Scope”).
|
|
|
|
Notwithstandingthe foregoing, it is acknowledged and agreed that the
Services include management services which require a special degree of trust and do not enable the Company to supervise the actual hours of services to be performed by Consultant. Consultant further acknowledges and agrees that the performance
of the Services may require, from time to time, to work beyond the Estimated Monthly Scope and beyond the regular working hours and on non-workdays and therefore the amount of the Consideration has been calculated to include an additional
Global Overtime Compensation, which properly reflects the overtime hours that Consultant is expected to perform as part of the Services. Consultant hereby represents and warrants that such Global Overtime Compensation is fair and reasonable and
accordingly Consultant shall not be entitled to any additional compensation of any kind resulting from, or in connection with, performing the Services beyond the Estimated Monthly Scope and/or beyond regular working hours or during
non-workdays.
|
|
|
1.5.
|
Consultant shall not engage in other businesses and/or commercial
activities outside the Services. Consultant represents that it owns certain businesses as set forth in Schedule I hereto and further represents that all such activities do not and shall not infringe on, or be inconsistent with,
Consultant’s obligations and undertakings towards the Company pursuant to this Agreement.
|
|
|
2.
|
Consultant’s Representations, Warranties and Undertakings
|
|
|
|
Consultanthereby represents, warrants and undertakes, as follows:
|
|
|
2.1.
|
There is no legal or other restriction which could preclude or
restrict the Consultant from executing this Agreement and performing all of Consultant’s commitments herein or that could require the consent of any person or entity. Consultant is not under any obligation, and no circumstances exist, which
could create, directly or indirectly, a conflict of interest between the Consultant and the Company. In the event that the Consultant discovers that the Consultant has, or might have at some point in the future, any direct or indirect personal
interest in any of the Company’s business, or a conflict of interest with the provision of the Services, Consultant shall immediately inform the Company upon such discovery.
|
|
|
2.2.
|
Consultant has the experience, expertise and ability to carry out
the obligations and undertakings according to this Agreement. Consultant has the full right, power and legal capacity to enter into and deliver this Agreement and to perform its duties and other obligations hereunder. No approvals or consents
of any persons or entities are required for Consultant to execute and deliver this Agreement or perform her duties and other obligations hereunder.
|
|
|
2.3.
|
Consultant is duly registered with the Israel Tax Authority and with
the National Insurance Institute and solely responsible for the payment of any and all taxes and social security payments due to her earnings, in accordance with all relevant laws and regulations.
|
|
|
2.4.
|
Consultant hereby undertakes to comply with all Company regulations,
rules, policies, procedures and objectives, which are relevant to the performance of the Services. The provisions of the Company’s policies as shall be from time to time, form an integral part of this Agreement and Consultant shall fully comply
with all such policies.
|
|
|
2.5.
|
In the course of Consultant’s engagement with the Company,
Consultant shall not utilize, any proprietary information of any other person or entity, including any previous or current employers, without due and timely permission to do so from the Company and the relevant third party.
|
|
|
2.6.
|
Consultant shall not receive any payment and/or benefit from any
third party, directly or indirectly, in connection with the Services to the Company. In the event Consultant breaches this subsection, without derogating from any of the Company’s rights by law or contract, such benefit or payment shall become
the sole property of the Company and the Company may set-off such amount from any sums due to Consultant.
|
|
|
2.7.
|
Consultant has obtained all applicable business licenses and permits
necessary to perform the Services hereunder, and that such Services shall be performed in accordance with the generally accepted professional standards and practices regarding such Services. In performing its duties hereunder, the Consultant
shall observe, obey and comply with all applicable laws, ordinances, codes, orders, rules and regulations of any government or other duly constituted public authority including federal, state, municipal, and local governing bodies and agencies,
having jurisdiction over the performance of the Services hereunder or any part thereof.
|
|
|
3.1.
|
Cash Fee; In consideration for the Services rendered by
Consultant pursuant to this Agreement the Company shall pay Consultant the consideration specified in Schedule I, which consideration constitutes full and final consideration for the Services (the “Consideration”).
|
|
|
3.2.
|
Out-of-Pocket Expenses: The Company will reimburse Consultant
for reasonable and appropriately documented out-of-pocket expenses incurred in the performance of the Services, provided that such expenses: (i) were specifically approved in advance and in writing by the Company, and (ii) were invoiced to the
Company in a timely manner together with a proof of payment of the expenses.
|
|
|
3.3.
|
Car Expenses: Subject to the tax regulations applicable from
time to time, the Company shall pay the Consultant car expenses in a gross monthly amount as specified in Schedule I hereto.
|
|
|
3.4.
|
Equipment: Consultant shall be provided with a laptop for
performing the Services and for personal reasonable and fair use per Company policy. Consultant shall return the Laptop (and its accessories) in a proper condition together with all the professional material on the laptop upon the earliest of
termination of this Agreement or at such other time as directed by the Company.
|
|
|
3.5.
|
Setting Off: The Company will be entitled to deduct from and
set off against amounts due to Consultant pursuant to this Agreement and/or pursuant to any other agreement, law, or otherwise, any amounts, which Consultant is required to pay the Company pursuant to this Agreement, any other agreement, any
law, or otherwise.
|
|
|
3.6.
|
General: The Consideration, the expenses set forth in this
Section 3 and the Options, constitute the full, final and absolute consideration for the Services and Consultant shall not be entitled to any additional compensation of any kind whatsoever in consideration for, or with respect to, the Services
and/or this Agreement.
|
|
|
3.7.
|
Method of Payment: Payment to Consultant of amounts due
pursuant to this Agreement shall be made by bank wiring to Consultant’s bank account (its details to be sent in writing by Consultant to Company) by no later than the 9th day of each calendar month with respect to Services rendered in the
previous calendar month. Payment shall be made against, and subject to, a tax receipt to be dully issued by Consultant to the Company.
|
|
|
3.8.
|
Taxes: All amounts and benefits pursuant to this Agreement
are gross amounts and Consultant shall be responsible for the payment of all taxes and mandatory payments applicable with respect to amounts paid, and benefits granted, under this Agreement. Company may withhold the applicable withholding tax
up to the full rate under applicable law unless Consultant shall provide the Company with a valid certificate of exempt from, or reduced rate of, withholding tax and in such case, the Company shall comply with such certificate.
|
|
|
|
The Company will recommend to the board of directors of its Parent
Company (as defined above) to grant to Consultant options to purchase such amount of Common Stock of the Parent Company, representing as of the date of grant 1.8% of the issued and outstanding stock capital of the Parent Company (the “Options”),
with a price per share to be determined by the board of directors of the Parent Company. The grant of the Options shall be subject to the terms of the Parent Company’s incentive share option plan (the “Plan”), and the execution and
delivery by Consultant of an option grant letter and all other instruments required according to the Plan with respect to the Options so granted. The Options shall vest and become exercisable pursuant to the vesting schedule set forth under the
option grant letter. Consultant shall be solely responsible to pay all taxes and mandatory rights with respect to the Options
|
|
|
5.1.
|
This Agreement shall commence upon the Effective Date and shall
continue until terminated in accordance with this Section 5 (the “Term”).
|
|
|
5.2.
|
Notwithstanding anything to the contrary, this Agreement may be
terminated by either party, at any time and for any or no reason, by giving the other party a prior written notice (the “Notice Period”) of 60 (sixty) days, provided however that during the first 2 (two) months of this Agreement, the
Company shall be entitled to terminate this Agreement for any or no reason by giving a Notice Period of 7 (seven) days.
|
|
|
5.3.
|
Notwithstanding anything to the contrary, in the event that this
Agreement is terminated by the Company for a Cause (as defined below), the Company shall be entitled to terminate this Agreement immediately with no prior notice.
|
|
|
5.3.1.
|
A termination for Cause is a termination due to any of the
following:
|
5.3.1.1.
The Consultant’s embezzlement of funds; or
5.3.1.2.
The Consultant has been charged with a criminal offense involving moral turpitude; or
5.3.1.3.
The Consultant’s act or omission which constitutes a fundamental breach of his duties and obligations pursuant to this Agreement,
including any breach of trust or fiduciary duty owed to the Company, or a deliberate cause of harm to the Company or its business; or
5.3.1.4.
The Consultant’s violation of the Consultant’s obligations as stated in Exhibit A below regarding confidentiality, intellectual
property and non-competition.
|
|
5.4.
|
During the Notice Period, the Consultant shall continue the
Services, and shall do all that is within the Consultant’s power to assist the smooth transfer of the Consultant replacement.
|
|
|
5.5.
|
The Company may, at its sole discretion, waive the actual service by
the Consultant during the entire or part of the Notice Period, as it chooses, for whatever reason, with or without changing the date of termination of this Agreement.
|
|
|
5.6.
|
In the event of any termination of this Agreement, Consultant will
promptly deliver to the Company all documents, data, records and other information pertaining to the Company and any other equipment belonging to the Company in Consultant’s possession, and Consultant will not take any documents or data, or any
reproduction or excerpt of any documents or data, containing or pertaining to the Company.
|
|
|
6.
|
Confidentiality, Non-Competition and Proprietary Rights
Undertaking
|
Simultaneously
with the signing of this Agreement, and as a condition to the execution of this Agreement, Consultant shall sign an Undertaking in the
form attached hereto as Exhibit A (the “Undertaking”).
|
|
7.1
|
Consultant confirms and declares that Consultant has been informed
that personal and private information about Consultant, which has been provided and/or shall be provided by Consultant to the Company during or as a result of performing the Services (the “Private Information”), is collected, held and
processed by the Company and/or someone on its behalf during this Agreement, for the purposes of the ordinary course of business, including managing human resources and payments by the Company. Consultant declares that the abovementioned shall
not be considered an infringement of Consultant’s privacy. In addition, Consultant confirms and declares that Consultant has been informed and hereby expressly agrees that the Company will be entitled to transfer the Private Information (in
whole or in part) as part of the Company’s needs as mentioned above, to the following: (a) Public Entities as defined in the Privacy Protection Act, 1981, or in order for the Company to comply with any relevant legal requirements; (b) entities
related to the Company, in Israel and abroad, including the Parent Company or any subsidiaries and associates of the Company; (c) legal advisors and tax consultants of the Company, as well as external entities that provide services of managing
human resources and payroll to the Company; (d) third parties in the framework of any legal or economic due diligence; (e) other entities that are not mentioned in sections (a) to (d) above. In each of the above-mentioned transfers, the
transferred Information shall be limited to the reasonable and necessary scope and the Company shall use its best efforts to ensure that the receiver of the Information shall undertake, to the extent possible, to preserve the privacy of the
Private Information, at least at the level of privacy kept by the Company itself regarding the Private Information.
|
|
|
7.2
|
Consultant agrees that the Company may monitor Consultant’s use of
the Systems (as defined below) and copy, transfer and disclose such electronic communications and content transmitted by or stored in such Systems, for purposes of the Company’s legitimate business interests, all in accordance with the
Company’s policies from time to time, and subject to applicable law. For the purposes of this Section, the term “Systems” includes all of the computers, mobile phones and other mobile devices, keys, credit cards, printers, access to any
Company facilities, files, e-mails, inbox, servers, programs, records and software, computer access codes or disks, and other similar systems used by or on behalf of the Company.
|
|
|
8.
|
Relationship of Parties
|
|
|
8.1.
|
Consultant acknowledges that Consultant has read and fully
understood the terms of this Agreement and the structure of the relationship between the parties as a client and independent service provider; that no partnership, joint venture or employer-employee relationship between the parties hereto will
be created or construed to be created by this Agreement; and that Consultant had sufficient opportunity to seek the professional advice of a counsel regarding same.
|
|
|
8.2.
|
Consultant is not and shall not represent to be the agent, employee,
partner or joint venture of the Company, or any of its affiliates, and the Consultant shall not obligate the Company or any of its affiliates by contract or otherwise without the Company’s prior written authorization. Consultant shall not make
any representations or warranties to anyone with respect to any contract or otherwise, without the Company’s prior written authorization.
|
|
|
8.3.
|
Consultant shall be solely responsible for payment of all taxes and
mandatory payments due according to applicable law with respect to all payments and benefits to Consultant pursuant to this Agreement. Without derogating from the generality of the foregoing, it is expressly agreed and clarified that by
calculating the amount of Consideration and other benefits under this Agreement, the parties took into consideration the “employer’s costs” that would have been due had Consultant was classified as an employee of the Company, such that the
amount of Consideration includes all amounts due and payable on account of National Insurance, National Health Insurance, pension reservation, severance pay, disability coverage and Education Fund. Consultant hereby undertakes to pay in full
all such mandatory payments to the fullest rate applicable under the law with respect to employees. Consultant represents and warrants that Consultant holds and shall maintain during the entire term of this Agreement, a provident fund or
managers’ insurance policy as well as Education Fund, and shall contribute on a monthly basis the monthly contribution and reservation applicable on account of severance pay, pension, disability coverage and Education Fund with respect to the
amount of the Consideration. Without imposing any obligation on the Company, upon request, Consultant shall provide the Company with records of such payments, contributions and reservations.
|
|
|
8.4.
|
Consultant will defend, indemnify and hold the Company, or any third
party on its behalf, harmless from and against all claims, damages, losses and expenses, including reasonable fees and expenses of attorneys and other professionals (i) relating to any obligation imposed upon the Company to pay any withholding
taxes, social security, vacation pay, sick pay, pension, convalescence pay, unemployment or disability insurance or similar terms in connection with compensation received by Consultant or, which are based upon a stipulation by a competent
judicial authority that an employer - employee relationship was created between the Company or its affiliates and Consultant or her agents or employees; and (ii) resulting from any act, omission or negligence on Consultant’s part or on part of
any of Consultant’s employees in the performance or failure to perform this Agreement.
|
|
|
8.5.
|
Consultant, hereby releases and forever discharges the Company, its
directors, officers, shareholders and its affiliates, from any and all claims, which Consultant ever had, now has, or may claim to have against any of them in connection with the existence of any employer-employee relationship between Company
or its affiliates and Consultant or any of Consultant’s agents and employees.
|
|
|
8.6.
|
In the event that any court or tribunal shall determine that
notwithstanding the parties’ mutual understanding, as described in this Agreement, the Consultant is considered as an employee of the Company, the parties represent and acknowledge, that the total amount of Consideration was calculated and
based on the following components of payments and benefits, which shall be considered as included in, and as have been paid in lieu of, the Consideration:
|
|
|
8.6.1.
|
The monthly salary of the Consultant, including the base salary and
overtime compensation, and all the social benefits to which Consultant would have been entitled to under applicable law (including, pension allocations, convalescence pay, travel reimbursement, sick days and vacation), shall be as detailed in Schedule
II of this Agreement (the “Agreed Employee Compensation”).
|
|
|
8.6.2.
|
The Company may set off any of the Consultant’s debt to the Company.
For the avoidance of doubt, no deduction (as described in this section) shall exempt the Consultant from repaying the Company the Consultant’s overall debt.
|
|
|
8.6.3.
|
It is clarified that, for the avoidance of doubt, the provisions of
this Section 8.7 are included in this Agreement for the sake of caution only, and their inclusion shall not be considered as evidence that the parties intended to create an employment relationship between them.
|
|
|
9.1.
|
Preamble. The preamble and all schedules and exhibits to this
Agreement constitute an integral part hereof.
|
|
|
9.2.
|
Assignment. Consultant shall not assign, transfer, pledge or
otherwise transfer in any way, any of the Consultant’s obligations or rights under this Agreement to any third party without the express prior written consent of the Company. The Company may assign any of its rights or obligations under this
Agreement, provided that the assignee has assumed the Company’s applicable obligations under this Agreement.
|
|
|
9.3.
|
Entire Agreement; Amendments. This Agreement constitutes the
entire agreement between the parties with respect to the matters referred to herein, and supersedes any other arrangement, understanding, or agreement, verbal or otherwise. This Agreement may not be amended or modified except by the express
written consent of the Company and Consultant.
|
|
|
9.4.
|
Law; Jurisdiction. This Agreement shall be governed by the
internal laws of the State of Israel (excluding its conflict of law principles) and the competent courts of Tel-Aviv shall have exclusive jurisdiction over any disputes arising hereunder.
|
|
|
9.5.
|
No Waiver. No failure or delay on the part of any party
hereto in exercising any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right,
power or remedy. Any waiver granted must be in writing and shall be valid only in the specific instance in which given.
|
|
|
9.6.
|
Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be unenforceable under applicable law, then such provision shall be excluded from this Agreement and the remainder of this Agreement shall be interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms; provided, however, that in such event this Agreement shall be interpreted so as to give effect, to the greatest extent consistent with and permitted by applicable law, to the meaning and intention of
the excluded provision as determined by such court of competent jurisdiction.
|
|
|
9.7.
|
Notices. All notices hereunder will be in writing and shall
be given by and be deemed received by the receiving party (i) if sent by a delivery service, on the date confirmed as the actual date of delivery by such service; (ii) if sent by registered mail, return receipt requested, within 3 days of
mailing; or (iii) if sent by electronic means (fax, email etc.), on the next business day after electronic transmission.
|
|
|
9.8.
|
Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed and delivered, shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. Copies signed electronically, by fax, pdf or in any similar format, shall be
considered originals.
|
|
|
9.9.
|
Survival. The provisions of this Agreement that, by their
nature, should survive the expiration or other termination hereof, or the parties’ relationship, shall so survive and remain in full force and effect.
|
[SIGNATURE
PAGE TO FOLLOW]
IN
WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of the date first above written.
/s/Elchanan Maoz
|
|
/s/Bianca Meger
|
|
Stratford Ltd.
|
|
Bianca Meger
|
|
|
|
|
|
|
By:
|
Elchanan Maoz
|
|
|
|
|
Title:
|
Director
|
|
|
[Signature
Page to Consulting Agreement]
Schedule
1
DETAILS:
|
|
1.
|
Effective Date: September 1st, 2021
|
|
|
2.
|
Address of Company: at its legal counsel, APM House, 18 Raoul
Wallenberg St. Tel Aviv
|
|
|
|
Att. Nani (Elchanan) Maoz
|
|
|
3.
|
Consultant I.D. number: [*]
|
|
|
4.
|
Address of Consultant: Ha Dafna Street 2, Tel Mond
|
SERVICES:
1.
Description of Services: as set forth in Section 1 of the Agreement
2.
Estimated Monthly Scope: At least 136 monthly hours.
3.
Other Permitted Activities: ownership of family business of hotel and Jewellery line, which does not and shall not involve work or
time consuming by Consultant
4.
Cash Fee: a gross amount equals to “employer’s costs” on a gross amount of NIS 33,750, i.e.: NIS 43,665 +VAT
5.
Car Expenses: a gross amount of NIS 3,000 +VAT
6.
Vacation Pay: Consultant shall be entitled to enjoy 23 vacation days per year during which Consultant shall be paid the Consideration
pursuant to this Agreement.
7.
Reports: Hourly reports of time spent on the Services shall be provided by Consultant by the beginning of each calendar month
with respect to the Services provided during the previous month. Periodically reports on the Services shall be provided upon request
by the Company.
Bianca Meger
|
|
September 1, 2021
|
|
Name
|
|
Date
|
SCHEDULE
II
THE
AGREED EMPLOYEE COMPENSATION
In
the event that Consultant shall be considered an employee of the Company, it is agreed that the total amount of Consideration is calculated
and based on the following components of payments and benefits, which shall be considered as included in, and shall be paid in lieu of,
the Consideration:
|
|
1.
|
Total Gross Amount of Consideration: NIS 43,665 equals to
the total gross amount of “employer’s costs, based on the following components:
|
|
|
Payment/Benefit
|
NIS Amount
|
|
|
Base Salary
|
NIS
23625
|
|
|
Global Overtime Compensation
|
NIS
10125
|
|
|
Employer National Insurance
|
NIS
2316
|
|
|
Pension(incl. disability coverage)
|
NIS
2256
|
|
|
Severance Pay
|
NIS
2811
|
|
|
Education Fund
|
NIS
2532
|
|
|
TOTAL:
|
NIS
43665
|
|
|
2.
|
A gross amount of NIS 3000 for car expenses in lieu and beyond the
mandatory obligation for travelling expenses.
|
|
|
3.
|
Vacation days: 23 days
|
|
|
4.
|
Convalescence pay (“Dmei-Havraa”) and sick days as per
applicable law.
|
|
|
5.
|
All amounts are gross amounts and are subject to mandatory taxes and
deductions including, but not limited to, National Insurance, National Health Insurance and income tax.
|
Bianca Meger
|
|
September 1, 2021
|
|
Name
|
|
Date
|
Exhibit
A
CONFIDENTIALITY,
INTELLECTUAL PROPERTY & NON-COMPETITION UNDERTAKING
This
Confidentiality, Intellectual Property and Non-Competition Undertaking (this “Undertaking”) is entered into and
made effective as of the Effective Date by Bianca Meger (“Consultant”) for the benefit of Stratford Ltd.
(the “Company”, as further defined below).
This
Undertaking constitutes an integral part of Consultant’s engagement agreement to which it is annexed (the “Agreement”).
All
capitalized terms used in this Undertaking, and not otherwise defined herein, shall have the meanings assigned to such terms in the Agreement.
|
|
WHEREAS,
|
Consultant wishes to be engaged pursuant to the Agreement; and
|
|
|
WHEREAS,
|
it is critical for the Company to preserve and protect its
Confidential Information (as such term is defined below), its rights in Inventions (as such term is defined below) and all related Intellectual Property Rights (as such term is defined below), and Consultant is entering into this Undertaking as
a condition to the Company’s agreement to engage Consultant pursuant to the Agreement.
|
NOW,
THEREFORE, Consultant undertakes and warrants towards the Company as follows:
|
|
1.1.
|
Confidential Information. Consultant recognizes and
acknowledges that Consultant’s access to trade secrets, confidential information and/or proprietary information (each “Confidential Information”) in the framework of their engagement pursuant to the Agreement, is essential to the
performance of Consultant’s duties pursuant to the Agreement.
|
|
|
|
Confidential Information
shall include, without limitation: (i) any and all information concerning the Company’s product specifications, data, know-how,
patents, technology, compositions, processes, formulas, methods, designs, samples, inventions, discoveries, research, test results, concepts,
ideas, development or experimental work, computer software and programs (including object code and source code), databases, systems structures
and architectures, algorithms, and/or works-in-process; (ii) any and all derivatives, improvements and enhancements to the Company’s
technology, products or services; (iii) any and all information concerning the business and affairs of the Company, which includes historical
financial statements, financial projections and budgets, historical and projected sales, capital spending budgets and plans, current
and planned distribution methods and processes, customer lists, current and anticipated customer requirements, supplier lists, current
and anticipated supplier requirements, price lists, market studies, policies, practices, strategies, surveys, business plans, lists of
assets, data or reports relating to a financial condition, suppliers or partners, agreements, negotiations, transactions, undertakings
and data concerning employees, consultants, officers, directors and shareholders; (iv) any and all information of the Company that is
or may be considered a trade secret of the Company; (v) any and all trade secrets, confidential information and/or proprietary information
of third parties; and (vi) any and all notes, compilations, studies, summaries, memoranda, books, records, correspondences, email transmissions,
charts, lists, other documents and materials, relating, containing or based, in whole or in part, on any information included in the
foregoing. Confidential Information shall include information referred to above, whether developed by the Company (including by Consultant)
or received or obtained by the Company (including by Consultant) from third parties. Confidential Information shall include information
in any form or media, and any portion of Confidential Information shall constitute Confidential Information.
|
|
|
|
The Confidential
Information shall not include information: which (i) has become publicly known and made generally available through no wrongful act of
Consultant or of others who were under confidentiality obligations as to the applicable Confidential Information, or (ii) is not by its
nature confidential.
|
|
|
|
Notwithstanding the
above, Confidential Information may be disclosed by Consultant if required by order of competent court or governmental authority legally,
but only if the Consultant fulfill all of the following conditions: (a) Consultant provides the Company with prompt written notice thereof
so that the Company may seek to obtain a protective order affording confidential treatment to such Confidential Information or such other
appropriate remedy which may be available under applicable law, (b) upon the Company’s request and at its expenses - Consultant
shall use commercially reasonable efforts to obtain assurances from the applicable court or governmental authority that such Confidential
Information will be afforded confidential treatment, and (c) disclosure pursuant to this paragraph is only that portion which Consultant
is legally compelled to disclose.
|
|
|
1.2.
|
Ownership. All right, title and interest in and to
Confidential Information are and shall remain the sole and exclusive property of the Company.
|
|
|
1.3.
|
Disclosure and Use Restrictions. Consultant acknowledges and
understands that the Confidential Information, in whole or in part, is a valuable and unique asset of the Company, and that its use or disclosure (except use or disclosure to the extent required for carrying out Consultant’s duties to the
Company) would likely cause the Company substantial loss and damages. Consultant undertakes and agrees that Consultant will not, in whole or in part, disclose any Confidential Information to any person or organization under any circumstances,
will not make use of any Confidential Information for their own purposes or for the benefit of any other person or organization, and will not reproduce any Confidential Information without the Company’s prior written consent, except
reproductions which are carried out in the reasonable fulfillment of Consultant’s engagement duties. Consultant shall not remove from the Company’s offices or premises any Confidential Information, or any copy thereof, except in the reasonable
fulfillment of Consultant’s engagement duties and in a manner which is not prohibited pursuant to the then applicable policies and regulations of the Company. Consultant will take strict precautions to maintain the confidentiality of any and
all Confidential Information.
|
|
|
|
The Consultant
may disclose the Confidential Information to its employees (“Representatives”) who have a legitimate need to know
such Confidential Information for performing the Services, provided that, prior to disclosing any Confidential Information
to such Representatives, Consultant shall ensure that such Representatives are aware of the confidential nature of the Confidential Information
and of the provisions of this Undertaking, and have signed or are otherwise bound by obligations no less restrictive than those contained
in this Undertaking. Consultant shall be fully responsible for any breach of this undertaking by any of the Representatives.
|
|
|
1.4.
|
Information of Third Parties. Consultant will not, during
Consultant’s engagement with the Company or otherwise in connection therewith, use, disclose or bring onto the premises of the Company, any proprietary information or trade secrets of any former or current employer or other person or entity,
unless consented to in writing by such employer, person or entity.
|
|
|
1.5.
|
Consultant acknowledge that Confidential Information which is
received from, or relates to, third parties may be subject to certain limitations which the Company has undertaken towards the applicable third party, or which otherwise bind the Company pursuant to applicable law. With respect to any such
Confidential Information, Consultant shall comply with the terms of this Undertaking and, if brought to the attention of Consultant, the terms of the Company’s undertaking towards the applicable third party, as well as any other obligation
which binds the Company pursuant to applicable law.
|
|
|
1.6.
|
Upon termination of Consultant’s engagement with the Company, or, if
the Company so requests, at any time before such termination, Consultant will promptly deliver to the Company all copies of materials in any form (without retaining any copies thereof) in Consultant’s possession or under Consultant’s control,
incorporating or otherwise including Confidential Information.
|
|
|
1.7.
|
The obligations set forth in this Section 1 are perpetual and shall
survive termination of the Agreement and of Consultant’s engagement with the Company.
|
|
|
2.1.
|
Work Product. Consultant will promptly disclose to the
Company, as soon as practicable following discovery, conception, development, reduction to practice or invention (as applicable, “Creation”), and hold in trust for the sole right and benefit of the Company, any and all inventions,
original works of authorship, developments, discoveries, ideas, research, test results, methods, concepts, improvements, designs, formulae, processes, information, techniques, know-how, data or trade secrets – in each case - whether or not
patentable, copyrightable or registerable under copyright or similar laws - that (i) are discovered, conceived, developed, reduced to practice, or invented by Consultant and/or any Representatives (as applicable, “Created”), either alone
or jointly with others, during performance of the Services, or (ii) result, wholly or partially, from Consultant’s and\or any Representatives’ engagement or the performance of the Services, or (iii) are Created with the use of any of the
Company’s equipment, supplies or facilities, or (iv) result from, or stem from Consultant’s and\or any Representatives’ knowledge of Confidential Information, or (v) are related to the business of the Company as conducted during the Term or, to
the knowledge of Consultant and\or any Representatives - proposed to be conducted in the future (each of the aforesaid: an “Invention”). Consultant shall keep and maintain adequate and current written records of all Inventions. Said
records will be made available to, and shall be and remain the sole property of, the Company, at all times.
|
|
|
2.2.
|
Consultant agrees and Consultant shall ensure that its
Representatives agree, that any and all of the Inventions are, upon Creation, considered Inventions of the Company. Any and all Inventions shall be the property of the Company, exclusively, and the Company shall be the sole owner of all
intangible legal rights, titles and interests evidenced by, or embodied in, or connected or related to, the Inventions, including without limitation, (i) any and all patents, patent applications, and patent disclosures, together with all
reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof; (ii) any and all trademarks, service marks, trade dress, logos, trade names, and corporate names, domain names together with all translations,
adaptations, derivations, and combinations thereof, and including any and all goodwill associated therewith, and any and all applications, registrations, and renewals in connection therewith; (iii) any and all works of authorship (regardless of
the existence or non-existence of copyrightability with respect thereto), copyrights and all applications, registrations, and renewals in connection therewith; (iv) any and all trade secrets and business information; and (v) any and all other
proprietary rights, industrial rights and any other similar rights - in each case (with respect to (i) through (v) above)) - on a worldwide basis, and all copies and tangible embodiments thereof, or any part thereof, in whatever form or medium
(“Intellectual Property Rights”).
|
|
|
2.3.
|
Work Made for Hire. Without derogating from the generality of
the foregoing, Consultant agrees that if, notwithstanding this Undertaking and the Agreement, it will be decided by an authority, court or any other competent tribunal, whether at Consultant’s and\or any Representatives’ request or otherwise,
that Chapter H of the Patents Law of 1967 (the “Patents Law”) is applicable to the engagement of Consultant and\or any Representatives by the Company, then Consultant further acknowledges that any and all Inventions are deemed “works
made for hire” (service inventions) as contemplated under Chapter H of the Patents Law, that all such “works made for hire” are owned by the Company and that Consultant and\or any Representatives shall not be entitled to any compensation, nor
any other consideration, except as explicitly set forth in the Agreement (if at all), for creation or assignment of the same to the Company, except as explicitly set forth in the Agreement (if at all). Consultant acknowledges and agrees that
the consideration under the Agreement and all other engagement terms under the Agreement shall constitute the sole consideration and remuneration for any Inventions, including, without limitation, “works made for hire”, regardless of the
current or future value of the Invention. Consultant understands and agrees that the decision whether or not to commercialize or market any invention developed by Consultant and\or any Representatives (including the Inventions), solely or
jointly with others, is within the Company’s sole and unfettered discretion and for the Company’s sole benefit, and that no royalty will be due to Consultant and\or any Representatives as a result of the Company’s efforts to commercialize or
market any such invention (including the Inventions). Without limitation of the foregoing, Consultant irrevocably confirms that the consideration explicitly set forth in the Agreement is in lieu of any rights for compensation that may arise in
connection with the Inventions under applicable law and Consultant waives any right to claim royalties or other consideration with respect to any Invention, including under Section 134 of the Patents Law. This Section 2.3 shall be deemed as an
“agreement” for purposes of Section 134 of the Patents Law. In no event will any Inventions become the property of Consultant and the provisions of Section 132(b) of the Patents Law shall not apply. With respect to all of the above, any oral
understanding, communication or agreement shall be void, except and unless the content thereof is expressly reflected in a document which is signed by the Company.
|
|
|
2.4.
|
Assignment. To the extent necessary in order to vest fully in
the Company all rights in and to all Inventions and all Intellectual Property Rights (to the extent legally possible), Consultant hereby irrevocably and unconditionally assigns to the Company, for no additional consideration, Consultant’s
entire right, title and interest in and to all Inventions and Intellectual Property Rights therein, including the right to sue, counterclaim and recover for all past, present and future infringement, misappropriation or dilution thereof, and
all rights corresponding thereto – in each case - throughout the world.
|
|
|
2.5.
|
Exclusion of Prior Inventions. This Undertaking and the
assignment herein shall not include inventions, if any, patented or unpatented, which Consultant made prior to the commencement of Consultant’s engagement with the Company (“Prior Inventions”). Consultant shall not incorporate, or permit
to be incorporated, any Prior Inventions in any Inventions, nor shall Consultant use or exploit any Prior Inventions – in each case - without the Company’s prior written consent. If, despite the forgoing, in the course of engagement with the
Company, Consultant will incorporate a Prior Invention into a Company product, service or Invention, or Consultant will otherwise use or exploit a Prior Invention without having received the Company’s prior written consent, Consultant hereby
grant the Company a nonexclusive, royalty-free, irrevocable, perpetual, unlimited worldwide license (with rights to sublicense through multiple tiers of sublicenses) to make, have made, modify, use and/or sell and/or otherwise use and exploit
in any manner, as the Company may wish, said Prior Invention and products or services based thereon, to the full extent of Consultant’s rights in such Prior Invention.
|
|
|
2.6.
|
Power of Attorney. Consultant hereby covenants and
agree to perform, during and after engagement, any acts reasonably required by the Company to permit and assist the Company, at the Company’s expense (provided that, during the term of Consultant’s engagement with the Company, no additional
expense shall be charged to the Company, other than payments set forth in the Agreement), in obtaining, maintaining, defending and enforcing the Intellectual Property Rights in any and all countries, and generally cooperate reasonably, to aid
the Company in its attempts to obtain, secure and enforce proper protection for the Inventions and the Intellectual Property Rights (including, to the extent necessary, the assignment and transfer thereof to the Company and its successors,
assigns and nominees), in any and all jurisdictions. Such acts may include, but are not limited to, the execution of documents and assistance or cooperation in legal proceedings; provided that, following the term of Consultant’s engagement with
the Company, Consultant and shall not be required to perform any act, or cooperate, in a manner which would unduly interfere with Consultant’s affairs and activities. Consultant hereby irrevocably appoint the Company as Consultant’s true and
lawful attorney and attorney-in-fact, to act for and on Consultant’s behalf and instead of Consultant, to execute and file any documents and instruments, and to do such other acts and things as may be necessary or appropriate, in order to give
effect and further the above purposes and the intentions contained in this Undertaking, with the same legal force and effect as if executed by Consultant.
|
|
|
2.7.
|
No Contestation. Consultant hereby undertake that
Consultant shall not, directly or indirectly, take any action to contest the Company’s rights in any of the Inventions and/or Intellectual Property Rights, or infringe them in any way, nor shall Consultant, directly or indirectly, make a claim
for and/or sue and/or demand, any additional compensation for creation or assignment of Inventions beyond the consideration set forth in the Agreement.
|
|
|
2.8.
|
Moral Rights Waiver. In connection to any work of authorship,
Consultant hereby forever waive, and agree never to assert, any rights that may be known as or referred to as “moral rights”, including all rights of paternity, integrity, any right to object to any distortion or other modification of a work
and any other similar right, existing under the law of any country in the world or under any treaty, and Consultant hereby consents to any action that would violate such “moral rights” in the absence of such consent.
|
|
|
2.9.
|
The obligations set forth in this Section 2 are perpetual, and shall
survive any termination of the Agreement and of Consultant’s engagement with the Company. This Section 2 shall be deemed as an “agreement” for the purposes of Section 35 of the Copyrights Law 2008.
|
|
|
2.10.
|
Consultant shall ensure that its Representatives are aware of the
Consultant’s undertakings under this Section 2 and shall ensure that each Representative will acknowledge and agree to the provisions hereunder as if undertook directly by such Representative – each with respect to itself.
|
|
|
3.1.
|
Non-Disparagement. Consultant undertakes that it will not at
any time make, publish or communicate to any person or entity, or in any public forum, any defamatory or disparaging remarks, comments or statements concerning the Company or its business, or - with respect to their relationship with the
Company - any of its employees, officers, directors and shareholders and other associated third parties.
|
|
|
3.2.
|
Definition of the Company. In this Undertaking, the term “the
Company” shall, except with respect to ownership of Confidential Information, Inventions and Intellectual Property Rights, also include, as applicable, the Parent Company and any entity: (i) which holds – directly or indirectly - more
than fifty percent of the issued share capital or voting power in the Company; (ii) in which the Company holds – directly or indirectly - fifty percent or more of the issued share capital or voting power; or (iii) in which a parent company
holds – directly or indirectly - fifty percent or more of the issued share capital or voting power.
|
|
|
3.3.
|
Necessity of Undertakings. Consultant recognizes and agree
that: (i) this Undertaking is necessary and essential to protect the Company’s business and to realize and derive all the benefits, rights and expectations of conducting the Company’s business; (ii) the duration and unlimited geographical
application of the protective covenants contained in this Undertaking are reasonable in order to protect its legitimate interests with respect to the subject matter hereof; and (iii) the provisions of this Undertaking serve as an integral part
of the terms of Consultant’s and engagement and that good and valuable consideration exists under the Agreement, for Consultant to be bound by the provisions of this Undertaking.
|
|
|
3.4.
|
Injunctive Relief. Consultant recognizes and acknowledges
that in the event of a breach or threatened breach of this Undertaking by Consultant, the Company may suffer irreparable harm or damage and will, therefore, be entitled to injunctive relief to enforce this Undertaking (without limitation to any
other remedy at law or in equity).
|
|
|
3.5.
|
Consultant shall be responsible for enforcing the terms of this
Undertaking vis-à-vis any of its Representatives, and shall be liable for any breach of the terms of this Undertaking by any of its Representatives, as if such breach was a breach of the Consultant of this Undertaking.
|
|
I, THE UNDERSIGNED, ACKNOWLEDGES THAT I AM FAMILIAR WITH THE ENGLISH LANGUAGE AND DO
NOT REQUIRE TRANSLATION OF THIS UNDERTAKING TO ANY OTHER LANGUAGE. I FURTHER ACKNOWLEDGE THAT I HAVE BEEN ADVISED BY THE COMPANY THAT I MAY CONSULT AN ATTORNEY BEFORE EXECUTING THIS UNDERTAKING AND THAT I HAVE BEEN AFFORDED AN OPPORTUNITY
TO DO SO.
|
IN
WITNESS WHEREOF, the undersigned, has executed this Undertaking:
|
Printed Name:
|
Bianca Meger
|
|
Signature:
|
/s/Bianca Meger
|
Exhibit
A1
Prior
Inventions
None
/s/Elchanan Maoz
|
|
Bianca Meger
|
|
The Company
|
|
The Consultant
|
Exhibit 10.5
[INVESTOR
NAME, ADDRESS AND EMAIL]
___,
2021
Metro
One Telecommunications, Inc.
30
NORTH GOULD STREET SUITE 2990
SHERIDAN
WY 82801
Attention:
Nani Maoz
|
|
Re:
|
$[ ] Puttable SAFE Financing to Metro One
Telecommunications, Inc.
|
Dear
Mr. Maoz:
The
undersigned investor (the “Investor”) is pleased to provide financing in the amount indicated beneath such undersigned’s
signature to the letter (the “Committed Amount”) to Metro One Telecommunications, Inc. (the “Company”), pursuant
to the terms and conditions of the term sheet attached hereto as Exhibit A (the “Term Sheet”) to enable a newly formed
subsidiary of the Company to bid on, and if the bid is accepted, to acquire, Royal App Ltd. (“Shelfy”) in a
bankruptcy sale. Capitalized terms used by not defined here shall have the meanings set forth in the Term Sheet.
Immediately
upon email direction by the Company, Investor shall fund the Committed Amount by wire transfer to the Company at the wire instructions
set forth on Exhibit B. This commitment letter is a binding agreement by the Investor with respect to the Committed Amount. The
foregoing obligation shall expire and have no further effect upon and after the Outside Date. Investor is, and will be at the time, if
any, the investor becomes entitled to Common Stock pursuant to the Puttable SAFE (as described in the Term Sheet), an “accredited
investor”, as such term is defined in Regulation D promulgated by the Securities and Exchange Commission under the Securities Act
of 1933 (the “1933 Act”), is experienced in investments and business matters, has made investments of a speculative nature
in the past and, with its representatives, has such knowledge and experience in financial, tax and other business matters as to enable
the Investor to utilize the information made available by the Company to evaluate the merits and risks of and to make an informed investment
decision with respect to the proposed purchase, which represents a speculative investment. Investor has the authority and is duly and
legally qualified to purchase and own the Puttable SAFE and, to the extent issued pursuant to the Puttable SAFE, Common Stock. Investor
is able to bear the risk of such investment for an indefinite period and to afford a complete loss thereof.
The
Investor acknowledges and agrees that the Puttable SAFE and, to the extent issued pursuant to the Puttable SAFE, the Common Stock, are
issued without representations, warranties, covenants or agreements by Everest Corporate Finance or, except to the limited extent expressly
set forth in this letter, by the Company. The Investor acknowledges and agrees that none of the respective affiliates or any control
persons, officers, directors, employees, agents or representatives of either of Everest Corporate Finance or the Company make any representation,
warranty, covenant or agreement in connection with the Puttable SAFE, the Common Stock to the extent issued pursuant to the Puttable
SAFE, this letter or otherwise.
The
Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an
investment decision with respect to the Puttable SAFE and, to the extent issued pursuant to the Puttable SAFE, the Common Stock, including,
with respect to the Company, its newly formed subsidiary and Shelfy. The Investor acknowledges and agrees that the Investor and the Investor’s
professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information
as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with
respect to the foregoing. The Investor became aware of this offering of the Puttable SAFE solely by means of direct contact between the
Investor and the Company.
Investor
acknowledges and agrees that the information set forth on the signature page hereto regarding Investor is accurate.
Investor
will hold the Puttable SAFE and, to the extent issued pursuant to the Puttable SAFE, the Common Stock for its own account for investment
only and not with a view toward, or for resale in connection with, the public sale or any distribution thereof. Investor understands
and agrees that the Puttable SAFE and, to the extent issued pursuant to the Puttable SAFE, the Common Stock have not been registered
under the 1933 Act or any applicable state securities laws, by reason of their issuance in a transaction that does not require registration
under the 1933 Act (based in part on the accuracy of the representations and warranties of Investor contained herein), and that such
Puttable SAFE and, to the extent issued pursuant to the Puttable SAFE, the Common Stock must be held indefinitely unless a subsequent
disposition is registered under the 1933 Act or any applicable state securities laws or is exempt from such registration. Investor
understands and acknowledges that the Company is not listed on an exchange and is not currently a Reporting Company under the Securities
and Exchange Act of 1934. As a result,the Investor may find it difficult to dispose of or to obtain accurate quotations as to the market
value of our common stock, and our Common Stock may be less attractive for margin loans, for investment by larger financial institutions,
as consideration in possible future acquisition transactions or other purposed.
This
letter shall be construed and interpreted in accordance with the laws of the State of New York applicable to agreements made and to the
performance wholly within that jurisdiction. Each party hereto irrevocably submits to the exclusive jurisdiction of any state or federal
court within the State of New York with respect to any cause or claim arising under or relating to this letter. Each party hereto irrevocably
consents to the service of process by registered mail or personal service, irrevocably waives any objection based on forum non conveniens
with respect to such a court, and irrevocably waives any objection to venue of such court. This letter may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts
may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act
of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and
validly delivered and be valid and effective for all purposes. This letter supersedes any prior letter as to a commitment entered into
by Investor.
[Signature
page follows]
|
INVESTOR (if an entity):
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
Title:
|
|
|
|
|
Address (incl email):
|
|
|
|
|
|
Subscription Amount:
|
$
|
|
|
|
|
|
|
INVESTOR (if an individual):
|
|
|
|
|
|
|
|
|
|
Signature:
|
|
|
|
|
|
Address (incl email):
|
|
|
|
|
|
|
|
|
|
|
|
Subscription Amount:
|
$
|
|
|
Accepted
and Agreed:
|
METRO ONE TELECOMMUNICATIONS, INC.
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
|
Title:
|
|
|
Exhibit
A
Term
Sheet
The
terms and conditions summarized below are intended as an outline of the terms and conditions of a Puttable SAFE which will be more fully
set forth therein and delivered by the Company and do not purport to summarize all of the provisions which shall be contained in the
Puttable SAFE’s.
|
Issuer:
|
Metro One Telecommunications, Inc., an Oregon corporation (the “Company”).
|
|
|
|
|
Puttable SAFE:
|
The Company shall issue a puttable simple agreement for future equity (“Puttable SAFE”) to each investor (to be delivered within
5 days of funding) in exchange for an aggregate amount of $3,500,000 invested by one or more such investors (the “Investment Amount”). Each Puttable SAFE will have the following principal provisions:
Put
Right: Each holder of a Puttable SAFE may elect to exercise a put right to sell the Puttable SAFE to the Company for the amount invested
in respect thereof upon either of the following events:
|
|
|
(A)
|
The failure of the Company’s subsidiary to acquire Shelfy by the
date that is six (6) months from the issuance of such Puttable SAFE; or
|
|
|
(B)
|
The failure to occur of the Preferred Conversion (as defined below)
on or after the date which is 24 months from the issuance of such Puttable SAFE.
|
Conversion: So long as the foregoing put right is not exercised in respect
of a Puttable SAFE, such Puttable SAFE shall automatically be converted
into Common Stock of the Company in the event that the Company consummates an equity conversion whereby all Preferred Stock of the Company
is converted to Common Stock (the “Preferred Conversion”). Such conversion shall entitle the holder of the
Puttable SAFE to the number of shares of Common Stock obtained by dividing the amount invested in respect of such Puttable SAFE by (subject
to the paragraph below concerning dilution) the quotient resulting from dividing $2,000,000 by the number of outstanding shares of common
stock of the Company immediately following the Preferred Conversion (assuming conversion of all securities convertible into common stock
and exercise of all outstanding options and warrants, but excluding the shares of equity securities of the Company issuable upon the
conversion of all converting Puttable SAFEs).
Dilution:
Prior to or following the Preferred Conversion, a dilution is expected in connection with (A) new employee stock options for each of
employees of the Company and of Shelfy, (B) compensation to Everest Corporate Finance, and (C) 8% of the Company in respect of creditors
of Shelfy. Such dilution shall ratably reduce the percentage ownership of the Company held, or to be held, in respect of the Puttable
SAFE, whether such dilution occurs before or after the vesting of the Puttable SAFE.
Change
of Control: If the Company is acquired prior to the Preferred Conversion, then at the option of each holder of a Puttable SAFE, either
(i) such holder shall receive a cash repayment equal to the amount invested in respect of such Puttable SAFE whereupon such Puttable
SAFE shall be cancelled, or (ii) the Puttable SAFE shall convert into shares of common stock at the price (subject to the above-described
dilution) set forth above.
|
|
Documentation:
|
The complete terms and conditions of the Puttable SAFE shall be set
forth in a Puttable SAFE Agreement prepared by the Company’s legal counsel. The Puttable SAFE may be amended by the Company and the holders of a majority of the value of the outstanding Puttable SAFEs .
|
|
|
Non-Transferrable
|
The Puttable SAFEs may not be transferred by a holder thereof.
|
Exhibit
B
Wire
Instructions
THIS
INSTRUMENT AND ANY SECURITIES ISSUABLE PURSUANT HERETO HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED,
PLEDGED OR HYPOTHECATED EXCEPT AS PERMITTED IN THIS SAFE AND UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT OR AN EXEMPTION THEREFROM.
METRO
ONE TELECOMMUNICATIONS, INC.
SAFE
(Simple
Agreement for Future Equity)
THIS
CERTIFIES THAT in exchange for the payment by _________________ (the “Investor”) of $_____________ (the “Purchase
Amount”) on __, 2021 (the “Effective Date”), Metro One Telecommunications, Inc., an Oregon corporation (the
“Company”), issues to the Investor the right to certain shares of the Company’s Capital Stock, subject to the
terms described below.
1.
Put Right. The Investor may elect to sell this Safe to the Company for the Purchase Amount (a) upon the failure of the Company
or its subsidiary to complete an acquisition of Royal App Ltd. (“Shelfy”) by the date that is six (6) months from
the Effective Date, or (b) within the six (6) month period following the failure to occur of a Preferred Conversion by the date that
is twenty-four (24) months from the Effective Date. The Investor shall exercise the put right by delivering written notice of such exercise
(the “Put Exercise Notice”) to the Company. The Company shall pay the Purchase Amount to the Investor by certified
or official bank check or by wire transfer of immediately available funds within ten (10) days of receipt of the Put Exercise Notice.
2.
Conversion.
(a)
Preferred Conversion. If there is a Preferred Conversion before the termination of this Safe, this Safe will automatically
convert into the number of shares of Common Stock equal to the Purchase Amount divided by the Safe Price (the “Conversion Shares”).
(b)
Change of Control. If there is a Change of Control before the termination of this Safe, at the option of the Investor,
the Investor shall receive either (i) a cash payment of the Purchase Amount (the “Cash-Out Amount”) concurrent with
the consummation of such Change of Control (subject to the liquidation priority set forth in Section 2(c) below) or (ii) the Conversion
Shares to be issued immediately prior to the consummation of such Change of Control.
(c)
Liquidation Priority. In a Change of Control, this Safe is intended to operate like standard non-participating Preferred
Stock. For clarity, the Investor’s right to receive its Cash-Out Amount is:
(i)
Junior to payment of outstanding indebtedness and creditor claims, including contractual claims for payment and convertible promissory
notes (to the extent such convertible promissory notes are not actually or notionally converted into Capital Stock);
(ii)
On par with payments for other Safes and/or Preferred Stock, and if the applicable Proceeds are insufficient to permit full payments
to the Investor and such other Safes and/or Preferred Stock, the applicable Proceeds will be distributed pro rata to the Investor and
such other Safes and/or Preferred Stock in proportion to the full payments that would otherwise be due; and
(iii)
Senior to payments for Common Stock.
(d)
Termination. This Safe will automatically terminate (without relieving the Company of any obligations arising from a prior
breach of or non-compliance with this Safe) immediately following the earliest to occur of: (i) the exercise by the Investor of its put
right pursuant to Section 1, (ii) the issuance of Common Stock to the Investor pursuant to the automatic conversion of this Safe under
Section 2(a), or (iii) the payment, or setting aside for payment, of amounts due the Investor pursuant to Section 2(b).
3.
Definitions.
“Capital
Stock” means the capital stock of the Company, including, without limitation, the “Common Stock” and the
“Preferred Stock.”
“Change
of Control” means (i) a transaction or series of related transactions in which any “person” or “group”
(within the meaning of Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), becomes the “beneficial owner”
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended), directly or indirectly, of more than 50% of the outstanding
voting securities of the Company having the right to vote for the election of members of the Company’s board of directors, (ii) any
reorganization, merger or consolidation of the Company, other than a transaction or series of related transactions in which the holders
of the voting securities of the Company outstanding immediately prior to such transaction or series of related transactions retain, immediately
after such transaction or series of related transactions, at least a majority of the total voting power represented by the outstanding
voting securities of the Company or such other surviving or resulting entity or (iii) a sale, lease or other disposition of all
or substantially all of the assets of the Company.
“Company
Capitalization” is calculated as of immediately following the Preferred Conversion and (without double-counting, in each case
calculated on an as-converted to Common Stock basis):
•
Includes all shares of Capital Stock issued and outstanding;
•
Includes all Converting Securities;
•
Includes all issued and outstanding Options.
“Converting
Securities” means convertible securities issued by the Company, including but not limited to convertible promissory notes and
other convertible debt instruments and convertible securities that have the right to convert into shares of Capital Stock, but excluding
this Safe and any other Safes.
“Options”
includes options, restricted stock awards or purchases, RSUs, SARs, warrants or similar securities, vested or unvested.
“Preferred
Conversion” means the conversion of all of the Company’s outstanding Preferred Stock to Common Stock.
“Proceeds”
means cash and other assets (including without limitation stock consideration) that are proceeds from a Change of Control and legally
available for distribution.
“Safe”
means an instrument containing a future right to shares of Capital Stock, similar in form and content to this instrument, purchased by
investors for the purpose of funding the Company’s business operations. References to “this Safe” mean this specific
instrument.
“Safe Price”
means the price per share equal to $2,000,000 divided by the Company Capitalization.
4.
Company Representations.
(a)
The Company is a corporation duly organized, validly existing and in good standing under the laws of its state of incorporation, and
has the power and authority to own, lease and operate its properties and carry on its business as now conducted.
(b)
The execution, delivery and performance by the Company of this Safe is within the power of the Company and has been duly authorized by
all necessary actions on the part of the Company (subject to section 4(d)). This Safe constitutes a legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms, except as limited by bankruptcy, insolvency or other laws
of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.
To its knowledge, the Company is not in violation of (i) its current certificate of incorporation or bylaws, (ii) any material statute,
rule or regulation applicable to the Company or (iii) any material debt or contract to which the Company is a party or by which it is
bound, where, in each case, such violation or default, individually, or together with all such violations or defaults, could reasonably
be expected to have a material adverse effect on the Company.
(c)
The performance and consummation of the transactions contemplated by this Safe do not and will not: (i) violate any material judgment,
statute, rule or regulation applicable to the Company; (ii) result in the acceleration of any material debt or contract to which
the Company is a party or by which it is bound; or (iii) result in the creation or imposition of any lien on any property, asset
or revenue of the Company or the suspension, forfeiture, or nonrenewal of any material permit, license or authorization applicable to
the Company, its business or operations.
(d)
No consents or approvals are required in connection with the performance of this Safe, other than: (i) the Company’s corporate
approvals; (ii) any qualifications or filings under applicable securities laws; and (iii) necessary corporate (including any necessary
shareholder) approvals for the authorization of Capital Stock issuable pursuant to Section 2.
5.
Investor Representations.
(a)
The Investor has full legal capacity, power and authority to execute and deliver this Safe and to perform its obligations hereunder.
This Safe constitutes valid and binding obligation of the Investor, enforceable in accordance with its terms, except as limited by bankruptcy,
insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general
principles of equity.
(b)
The Investor is an accredited investor as such term is defined in Rule 501 of Regulation D under the Securities Act, and acknowledges
and agrees that if not an accredited investor at the time of the Preferred Conversion, the Company may void this Safe and return the
Purchase Amount. The Investor has been advised that this Safe and the underlying securities have not been registered under the Securities
Act, or any state securities laws and, therefore, cannot be resold unless they are registered under the Securities Act and applicable
state securities laws or unless an exemption from such registration requirements is available. The Investor is purchasing this Safe and
the securities to be acquired by the Investor hereunder for its own account for investment, not as a nominee or agent, and not with a
view to, or for resale in connection with, the distribution thereof, and the Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same. The Investor has such knowledge and experience in financial and business matters
that the Investor is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment
without impairing the Investor’s financial condition and is able to bear the economic risk of such investment for an indefinite
period of time.
(c)
The Investor acknowledges that the Company may, from time to time, issue inter alia (i) Options to its employees or employees of Shelfy,
(ii) equity securities as compensation to Everest Corporate Finance and (iii) securities in an aggregate amount up to 8% of the Company
Capitalization to certain creditors of Shelfy.
6.
Miscellaneous
(a)
Any provision of this Safe may be amended, waived or modified by written consent of the Company and either (i) the Investor or (ii) the
majority-in-interest of all then-outstanding Safes, provided that with respect to clause (ii), the Purchase Amount may not be
amended, waived or modified in this manner without the consent of the Investor. “Majority-in-interest” refers to the holders
of the applicable group of Safes whose Safes have a total Purchase Amount greater than 50% of the total Purchase Amount of all of such
applicable group of Safes.
(b)
Any notice required or permitted by this Safe will be deemed sufficient when delivered personally or by overnight courier or sent by
email to the relevant address listed on the signature page, or 48 hours after being deposited in the U.S. mail as certified or registered
mail with postage prepaid, addressed to the party to be notified at such party’s address listed on the signature page, as subsequently
modified by written notice.
(c)
The Investor is not entitled, as a holder of this Safe, to vote or be deemed a holder of Capital Stock for any purpose other than tax
purposes, nor will anything in this Safe be construed to confer on the Investor, as such, any rights of a Company stockholder or rights
to vote for the election of directors or on any matter submitted to Company stockholders, or to give or withhold consent to any corporate
action or to receive notice of meetings, until shares have been issued on the terms described in Section 2.
(d)
Neither this Safe nor the rights in this Safe are transferable or assignable, by operation of law or otherwise, by the Investor.
(e) In
the event any one or more of the provisions of this Safe is for any reason held to be invalid, illegal or unenforceable, in whole or
in part or in any respect, or in the event that any one or more of the provisions of this Safe operate or would prospectively
operate to invalidate this Safe, then and in any such event, such provision(s) only will be deemed null and void and will not affect
any other provision of this Safe and the remaining provisions of this Safe will remain operative and in full force and effect and
will not be affected, prejudiced, or disturbed thereby.
(f)
All rights and obligations hereunder will be governed by the laws of the State of New York, without regard to the conflicts of law provisions
of such jurisdiction.
(g)
The parties acknowledge and agree that for United States federal and state income tax purposes this Safe is, and at all times has been,
intended to be characterized as stock, and more particularly as common stock for purposes of Sections 304, 305, 306, 354, 368, 1036 and
1202 of the Internal Revenue Code of 1986, as amended. Accordingly, the parties agree to treat this Safe consistent with the foregoing
intent for all United States federal and state income tax purposes (including, without limitation, on their respective tax returns or
other informational statements).
(Signature
page follows)
IN
WITNESS WHEREOF, the undersigned have caused this Safe to be duly executed and delivered.
|
METRO ONE TELECOMMUNICATIONS, INC.
|
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
Title:
|
|
|
|
|
Address:
|
|
|
|
|
|
|
|
|
|
|
|
Email:
|
|
|
|
|
INVESTOR:
|
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
|
Title:
|
|
|
|
|
|
|
|
Address:
|
|
|
|
|
|
|
|
|
|
|
|
Email:
|
|
Exhibit 10.6
SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “Agreement”) is dated as of September 3, 2021, between Metro One Telecommunications,
Inc., a Delaware corporation (the “Company”), and each purchaser identified on the signature pages hereto (each, including
its successors and assigns, a “Purchaser” and collectively, the “Purchasers”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended
(the “Securities Act”), and Rule 506(b) promulgated thereunder, the Company desires to issue and sell to each Purchaser,
and each Purchaser, severally and not jointly, desires to purchase from the Company, securities of the Company as more fully described
in this Agreement (the “Offering”).
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE
I.
DEFINITIONS
1.1 Definitions.
In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings
set forth in this Section 1.1:
“Acquiring
Person” shall have the meaning ascribed to such term in Section 4.4.
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day
on which banking institutions in the State of New York are authorized or required by law or other governmental action to close; provided, however,
for clarification, banking institutions in the State of New York shall not be deemed to be authorized or required by law to remain closed
due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders
or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic
funds transfer systems (including for wire transfers) of banking institutions in the State of New York or are generally are open for
use by customers on such day.
“Closing”
means the closing of the purchase and sale of the Units pursuant to Section 2.1.
“Closing
Date” has the meaning set forth in Section 2.1(b).
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, $0.0001 par value per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Disclosure
Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Material
Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Per
Unit Purchase Price” equals $0.075, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations
and other similar transactions of the Common Stock that occur after the date of this Agreement
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
“Rule
144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“Securities”
means the Shares, the Warrants, and the Warrant Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares”
means the shares of Common Stock issued or issuable to each Purchaser pursuant to this Agreement, but excluding the Warrant Shares.
“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be
deemed to include locating and/or borrowing Shares and/or ADSs).
“Sophisticated
Investor” means a Person who is not an accredited investor, within the meaning of Rule 501 under the Securities Act, and has
such knowledge and experience in financial and business matters that he or she is capable of evaluating the merits and risks of the prospective
investment, or the Company reasonably believes immediately prior to making any sale that such purchaser comes within this description.
“Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for the Units purchased hereunder as specified below such
Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,” in United States
dollars and in immediately available funds.
“Subsidiary”
means any subsidiary of the Company as set forth on Schedule 3.1(a) and shall, where applicable, also include any direct
or indirect subsidiary of the Company formed or acquired after the date hereof.
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock are listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York
Stock Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).
“Transaction
Documents” means this Agreement, the Warrants, and all exhibits and schedules thereto and hereto and any other documents or
agreements executed in connection with the transactions contemplated hereunder.
“Transfer
Agent” means Computershare, the current transfer agent of the Company and any successor transfer agent of the Company.
“Units”
means units of the Company, with each unit comprised of (i) one (1) Share and (ii) a Warrant to purchase one half of a share of Common
Stock;
“Warrants”
means the warrant to purchase Common Stock delivered to the Purchasers at the Closing in accordance with Section 2.2(a) hereof, which
Warrant shall be exercisable immediately upon issuance and have a term of exercise equal to two (2) years from the initial exercise date,
in the form of Exhibit A attached hereto.
“Warrant
Shares” means the shares of Common Stock issuable upon exercise of the Warrants.
ARTICLE
II.
PURCHASE
AND SALE
2.1 Closing.
(a)
Purchase of Units; No Minimum Offering; Over-Subscription Option. Subject to the satisfaction (or waiver) of the terms and conditions
of this Agreement, each Purchaser agrees, severally and not jointly, to purchase at Closing (as defined below), and the Company agrees
to sell and issue to each Purchaser, severally and not jointly, at Closing, Units in principal amounts set forth on the signature pages
attached hereto, attached hereto as Annex A, for each Purchaser affixed hereto. On the Closing Date (as defined below), upon the
terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery of this Agreement by the
parties hereto, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, up to an aggregate of $3,000,000
of Units; provided, each Purchaser is committed only to purchase Units in the principal amount set forth on its signature page attached
hereto. Each Purchaser acknowledges that that: (i) the Offering is being conducted on a “best efforts/no minimum basis” and
that, therefore, the Company makes no representation or guarantee that $3,000,000 of Units will be sold in the Offering; (ii) no actual
Units will be issued in connection with the Offering, with each Purchaser only receiving Shares and Warrants at the applicable Closing
and (iii) the Company shall have the option, in its discretion, to increase the size of the Offering by an addition $3,000,000 worth
of Units without notice to or approval of the Purchasers.
(b)
Closing Date. The initial closing of the purchase and sale of the Units (the “Closing”) shall take place on
the date when all of the Transaction Documents have been executed and delivered by the applicable parties and the other conditions to
the Closing set forth in Sections 2.2 and 2.3 have been satisfied or waived (or such later date as is mutually agreed to by the Company
and the Purchaser(s)). There may be multiple Closings until the earlier of the Final Termination Date (as defined below) or such time
as purchase for the sale of the Units are accepted (the date of any such Closing is hereinafter referred to as a “Closing Date”).
Each Closing shall occur on a Closing Date remotely via the electronic exchange of documents and signatures. The Offering shall terminate
on or before September 30, 2021 (the “Termination Date”). The Termination Date may be extended at the Company’s
sole discretion for an additional 30 days, which extended Termination Date is referred to herein as the “Final Termination Date”.
The Company reserves the right to terminate the Offering in its discretion following the initial Closing.
(c)
Form of Payment. At the times specified in Section 2.2, (i) each Purchaser shall deliver or cause to be delivered to the Company,
via wire transfer in accordance with wire instructions provided by the Company, immediately available funds equal to such Purchaser’s
Subscription Amount as set forth on the signature pages hereto executed by such Purchaser, (ii) the Company shall deliver or cause to
be delivered to each Purchaser (x) a number of Shares equal to such Purchaser’s Subscription Amount divided by the Per Unit Purchase
Price and (y) a Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to 50% of
such Purchaser’s Shares determined in the preceding clause (x), with an exercise price equal to $0.0975 per share subject to adjustment
therein; and (iii) the Company and each Purchaser shall deliver the other items set forth in Section 2.2.
2.2 Deliveries.
(a) On
or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following:
(i)
this Agreement duly executed by the Company; and
(ii)
a Warrant registered in the name of such Purchaser with such terms as determined in accordance with Section 2.1(c).
(b) On
or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company, the following:
(i)
this Agreement duly executed by such Purchaser; and
(ii) such
Purchaser’s Subscription Amount by wire transfer in accordance with wire instructions provided by the Company.
(c) Within
three (3) Business Days following the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser a copy of the
irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver, on an expedited basis, a number of Shares as
determined in accordance with Section 2.1(c), by book entry transfer registered in the Company’s share register in the name of
the Purchaser or, at the request of the Purchaser, by physical delivery of a certificate evidencing such Shares, registered in the name
of such Purchaser.
2.3 Closing
Conditions.
(a) The
obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect,
in all respects) when made and on the Closing Date of the representations and warranties of the Purchasers contained herein (unless as
of a specific date therein in which case they shall be accurate as of such date);
(ii) all
obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed;
and
(iii) the
delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The
respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect,
in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of
a specific date therein in which case they shall be accurate as of such date);
(ii) all
obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii) the
delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there
shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v) from
the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or any Trading Market
and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended
or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading
Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have
occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect
on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser, makes
it impracticable or inadvisable to purchase the Securities at the Closing.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES
3.1 Representations
and Warranties of the Company. Except as set forth in the Disclosure Schedules, which Disclosure Schedules shall be deemed a part
hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the corresponding section
of the Disclosure Schedules, the Company hereby makes the following representations and warranties to each Purchaser:
(a) Subsidiaries.
All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1(a). The Company owns, directly or
indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued
and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive
and similar rights to subscribe for or purchase securities. If the Company has no subsidiaries, all other references to the Subsidiaries
or any of them in the Transaction Documents shall be disregarded.
(b) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing,
and, if applicable under the laws of the jurisdiction in which they are formed, in good standing under the laws of the jurisdiction of
its incorporation or organization, with the requisite power and authority to own and use its properties and assets and to carry on its
business as currently conducted. Neither the Company nor any Subsidiary is in violation nor default of any of the provisions of its respective
certificate or articles of incorporation, bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries
is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which
the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified
or in good standing, as the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the
legality, validity or enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations, assets,
business, prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material
adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction
Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no Proceeding has been instituted in any such
jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
(c) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The
execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company. This Agreement
and each other Transaction Document to which it is a party has been (or upon delivery will have been) duly executed by the Company and,
when delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar
as indemnification and contribution provisions may be limited by applicable law.
(d) No
Conflicts. Except as disclosed on Schedule 3.1(d), the execution, delivery and performance by the Company of this Agreement
and the other Transaction Documents to which it is a party, the issuance and sale of the Securities and the consummation by it of the
transactions contemplated hereby and thereby do not and will not (i) conflict with or violate any provision of the Company’s or
any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict
with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation
of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment,
anti-dilution or similar adjustments, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement,
credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the
Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected; except
in the case of clause (ii), such as could not have or reasonably be expected to result in a Material Adverse Effect.
(e) Issuance
of the Securities. The Securities are duly authorized and, when issued and paid for in accordance with the applicable Transaction
Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company other than
restrictions on transfer provided for in the Transaction Documents. The Warrant Shares, when issued in accordance with the terms of the
Transaction Documents, will be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company other
than restrictions on transfer provided for in the Transaction Documents. The Company has reserved from its duly authorized capital stock
the maximum number of Common Stock issuable pursuant to this Agreement and the Warrants.
(f) Capitalization.
The Company is authorized to issue 600,000,000 shares of Common Stock of which, as of the date of this Agreement, (i) 229,918,829 shares
were issued and outstanding, (ii) 53,178,063 shares are reserved for various planned issuances of shares and securities exercisable into
shares, including warrants and options (the “Planned Issuances”). No Person has any right of first refusal, preemptive
right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. Except
for the Planned Issuances and except as a result of the purchase and sale of the Securities, there are no outstanding options, warrants,
scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible
into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock or the
capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is
or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. The issuance
and sale of the Securities will not obligate the Company to issue Common Stock or other securities to any Person (other than the Purchasers)
and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under
any of such securities. There are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption
or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary
is or may become bound to redeem a security of the Company or such Subsidiary.
(g) Certain
Fees. The Company may enter into arrangements pursuant to which brokerage or finder’s fees or commissions are or will be payable
by the Company or its Subsidiaries to brokers, financial advisors consultants, finders, placement agents, investment bankers, banks or
other Persons with respect to the transactions contemplated by the Transaction Documents. Other than for Persons engaged by any Purchaser,
if any, the Purchasers shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other
Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by the Transaction
Documents.
3.2 Representations
and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the
date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case they shall be accurate
as of such date):
(a) Organization;
Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company
or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise
to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by such
Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership,
limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which it is a
party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except (i) as limited
by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable
law.
(b) Own
Account. Such Purchaser understands that the Securities are “restricted securities” and have not been registered under
the Securities Act or any applicable state securities law and is acquiring the Securities as principal for its own account and not with
a view to or for distributing or reselling such Securities or any part thereof in violation of the Securities Act or any applicable state
securities law, has no present intention of distributing any of such Securities in violation of the Securities Act or any applicable
state securities law and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the
distribution of such Securities in violation of the Securities Act or any applicable state securities law. Such Purchaser is acquiring
the Securities hereunder in the ordinary course of its business.
(c) Purchaser
Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on each date on which
it exercises any Warrants it will be (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or
(a)(8) under the Securities Act, (ii) a Sophisticated Investor, or (iii) a Non U.S. Person as defined under Regulation S promulgated
under the Securities Act. To the extent that the Purchaser is a non U.S. Person, the Purchaser (x) is not acquiring Securities for the
account or benefit of any U.S. Person, (y) is not, at the time of execution of this Agreement, and will not be, at the time of the Closing,
in the United States and (z) is not a “distributor” (as defined in Regulation S promulgated under the Securities Act). The
Purchaser acknowledges that to the extent he or she is not a U.S. Person the offer and sale of securities contemplated hereunder have
been made in accordance with Rule 903 under Regulation S, including but not limited to such offer and sale being made in an “offshore
transaction” without any “directed selling efforts” in the United States as such terms are defined under Rule 902 of
Regulation S. .
(d) Experience
of Such Purchaser; Acknowledgment of Risk. Such Purchaser, either alone or together with its representatives, has such knowledge,
sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective
investment in the Securities, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic
risk of an investment in the Securities and, at the present time, is able to afford a complete loss of such investment. Such Purchaser
acknowledges that an investment in the Securities is speculative and subject to significant risks, including the risk that the Company’s
business might failure, which could result in the loss of the Purchaser’s investment in the Company.
(e) General
Solicitation. Such Purchaser is not, to such Purchaser’s knowledge, purchasing the Securities as a result of any advertisement,
article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or, to the knowledge of such Purchaser, any other general solicitation or general advertisement.
(f) Access
to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits
and schedules thereto) and has been afforded (i) the opportunity to ask such questions as it has deemed necessary of, and to receive
answers from, representatives of the Company concerning the terms and conditions of the offering of the Securities and the merits and
risks of investing in the Securities; (ii) access to information about the Company and its financial condition, results of operations,
business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain
such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment. Such Purchaser acknowledges and agrees that neither the Company
nor any Affiliate of the Company has provided such Purchaser with any information or advice with respect to the Securities nor is such
information or advice necessary or desired.
(g) No
Governmental Review. Such Purchaser understands that no United States federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of the investment in
the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
(h) Brokers.
Except as set forth on Schedule 3.2(h), no agent, broker, investment banker, person or firm acting in a similar capacity
on behalf of or under the authority of the Purchaser is or will be entitled to any broker’s or finder’s fee or any other
commission or similar fee, directly or indirectly, for which the Company or any of its Affiliates after the Closing could have any liabilities
in connection with this Agreement, any of the transactions contemplated by this Agreement, or on account of any action taken by the Purchaser
in connection with the transactions contemplated by this Agreement.
(i) Independent
Advice. Such Purchaser understands that nothing in this Agreement or any other materials presented by or on behalf of the Company
to the Purchaser in connection with the purchase of the Securities constitutes legal, tax or investment advice.
(j) Certain
Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor has
any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any purchases or
sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser first
received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material terms
of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing, in the
case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s
assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other
portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets
managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to
other Persons party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers, directors,
partners, legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of all disclosures
made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing,
for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty against, or a prohibition of, any
actions with respect to the borrowing of, arrangement to borrow, identification of the availability of, and/or securing of, securities
of the Company in order for such Purchaser (or its broker or other financial representative) to effect Short Sales or similar transactions
in the future.
(k) Non-Public
Information. Such Purchaser acknowledges that, pursuant to applicable law, it may not trade in the securities of the Company on the
basis of material, non-public information concerning the Company or its Subsidiaries, or share any material, non-public information concerning
the Company or its Subsidiaries in its possession with any third party.
(l)
Acknowledgment of Company Status. Such Purchaser acknowledges that (i) the Common Stock is not registered pursuant to Section
12(b) or 12(g) of the Exchange Act, and the Company is not subject to the reporting requirements of Section 13(a) or 15(b) of the Exchange
Act, and (ii) the Company was previously an “issuer” described under paragraph (i)(1)(i) of Rule 144.
(m) No
Other Representations. Such Purchaser acknowledges that, except for the representations and warranties made by the Company in this
Agreement, neither the Company nor any representative of the Company makes or has made any other express or implied representation or
warranty with respect to the Company or any of its Subsidiaries, and acknowledges that it has not relied upon or otherwise been induced
by any such other express or implied representation or warranty.
The
Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s
right to rely on the Company’s representations and warranties contained in this Agreement.
ARTICLE
IV.
OTHER
AGREEMENTS OF THE PARTIES
4.1 Transfer
Restrictions.
(a) The
Securities may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Securities
other than pursuant to an effective registration statement or Rule 144, or to the Company or to an Affiliate of a Purchaser, the Company
may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable
to the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer
does not require registration of such transferred Securities under the Securities Act. As a condition of transfer, any such transferee
shall agree in writing to be bound by the terms of this Agreement and shall have the rights and obligations of a Purchaser under this
Agreement.
(b) The
Purchasers agree to the imprinting of a legend on any of the Securities in substantially following form:
[NEITHER]
THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE] HAS [NOT] BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY [AND THE SECURITIES ISSUABLE UPON EXERCISE
OF THIS SECURITY] MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL
INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY
SUCH SECURITIES.
4.2 Integration.
The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in
Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities in a manner that would require the
registration under the Securities Act of the sale of the Securities or that would be integrated with the offer or sale of the Securities
for purposes of the rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing
of such other transaction unless shareholder approval is obtained before the closing of such subsequent transaction.
4.3 Exercise
Procedures. Each of the form of Notice of Exercise included in the Warrants set forth the totality of the procedures required of
the Purchasers in order to exercise the Warrants. Without limiting the preceding sentences, no ink-original Notice of Exercise shall
be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise form be required
in order to exercise the Warrants. No additional legal opinion, other information or instructions shall be required of the Purchasers
to exercise their Warrants. The Company shall honor exercises of the Warrants and shall deliver or cause to be delivered Warrant Shares
in accordance with the terms, conditions and time periods set forth in the Transaction Documents.
4.4 Shareholder
Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any Purchaser
is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that any Purchaser
could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under the Transaction Documents
or under any other agreement between the Company and the Purchasers.
4.5 Use
of Proceeds. The Company and its Subsidiaries shall use the net proceeds from the sale of the Securities hereunder for general corporate
and working capital purposes.
4.6 Reservation
of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available at
all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue
Shares pursuant to this Agreement and Warrant Shares pursuant to any exercise of the Warrants.
4.7 Equal
Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered or paid to any
Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration is
also offered to all of the parties to such Transaction Documents. For clarification purposes, this provision constitutes a separate right
granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat the Purchasers
as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition
or voting of Securities or otherwise.
4.8 Form
D; Blue Sky Filings. The Company agrees to timely file a Form D with respect to the Securities as required under Regulation D and
to provide a copy thereof, promptly upon request of any Purchaser. The Company shall take such action as the Company shall reasonably
determine is necessary in order to obtain an exemption for, or to qualify the Securities for, sale to the Purchasers at the Closing under
applicable securities or “Blue Sky” laws of the states of the United States, and shall provide evidence of such actions promptly
upon request of any Purchaser.
ARTICLE
V.
MISCELLANEOUS
5.1 Fees
and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses
of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including, without
limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any exercise notice delivered
by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Purchasers.
5.2 Entire
Agreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the parties
with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect
to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
5.3 Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via facsimile
at the facsimile number or email attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30
p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number or email attachment at the email address as set forth on the signature pages attached
hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd)
Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt
by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the
signature pages attached hereto. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains,
material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file a press release disclosing
any such material non-public information.
5.4 Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in
the case of an amendment, by the Company and the Purchasers who purchased at least 50.1% in interest of the Shares based on the initial
Subscription Amounts hereunder or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought,
provided that if any amendment, modification or waiver disproportionately and adversely impacts a Purchaser (or group of Purchasers),
the consent of such disproportionately impacted Purchaser (or group of Purchasers) shall also be required. Notwithstanding anything to
the contrary herein, the Company may amend this Agreement without the consent of any Purchasers to add additional Purchaser parties hereto
subsequent to the date of this Agreement and prior to the Final Termination Date. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default
or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right
hereunder in any manner impair the exercise of any such right. Any proposed amendment or waiver that disproportionately, materially and
adversely affects the rights and obligations of any Purchaser relative to the comparable rights and obligations of the other Purchasers
shall require the prior written consent of such adversely affected Purchaser. Any amendment effected in accordance with this Section
5.4 shall be binding upon each Purchaser and holder of Securities and the Company.
5.5 Headings.
The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any
of the provisions hereof.
5.6 Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of each Purchaser
(other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom such Purchaser assigns
or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Securities,
by the provisions of the Transaction Documents that apply to the “Purchasers.”
5.7 No
Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in
this Section 5.7.
5.8 Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates,
directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts
sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts
sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with
any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents),
and hereby irrevocably waives, and agrees not to assert in any Proceeding, any claim that it is not personally subject to the jurisdiction
of any such court, that such Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such Proceeding by mailing a copy thereof via registered or certified
mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall commence a Proceeding
to enforce any provisions of the Transaction Documents, then the prevailing party in such Proceeding shall be reimbursed by the non-prevailing
party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution
of such Proceeding.
5.9 Survival.
The representations and warranties contained herein shall survive the Closing and the delivery of the Securities for the applicable statute
of limitations.
5.10 Execution.
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that
the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery
of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original
thereof.
5.11 Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
5.12 Rescission
and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any
of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document
and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may rescind
or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in
whole or in part without prejudice to its future actions and rights; provided, however, that, in the case of
a rescission of an exercise of a Warrant, the applicable Purchaser shall be required to return any Shares and/or Shares subject to any
such rescinded exercise notice concurrently with the return to such Purchaser of the aggregate exercise price paid to the Company for
such shares and the restoration of such Purchaser’s right to acquire such shares pursuant to such Purchaser’s Warrant (including,
issuance of a replacement warrant certificate evidencing such restored right).
5.13 Replacement
of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company shall
issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of
and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company
of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable
third-party costs (including customary indemnity but without any requirement to post any surety bond)) associated with the issuance of
such replacement Securities.
5.14 Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers
and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may
not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and
hereby agree to waive and not to assert in any Proceeding for specific performance of any such obligation the defense that a remedy at
law would be adequate.
5.15 Independent
Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several
and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance
of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document,
and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association,
a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently
protect and enforce its rights, including, without limitation, the rights arising out of this Agreement or out of the other Transaction
Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose.
Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. The
Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not
because it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained
in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company
and the Purchasers collectively and not between and among the Purchasers.
5.18 Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted
herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
5.19 Construction.
The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents
and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to
share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits,
stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.
5.20 WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH
KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND
EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature
Pages Follow)
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
|
METRO ONE TELECOMMUNICATIONS, INC.
|
|
Address for Notice:
|
|
|
|
30 North Gould Street, Suite 2990
Sheridan, WY 82801
Attention: Elchanan Maoz, President
|
|
By:
|
|
|
Email: nani@maozeverest.com
|
|
|
Name: Elchanan Maoz
|
|
|
|
|
Title: President
|
|
|
|
|
|
|
|
With a copy to (which shall not constitute notice):
|
|
|
Olshan
Frome Wolosky LLP
1325
Avenue of the Americas
New
York, NY 100019
Attention:
Margaret C. Bae
E-Mail:
mbae@olshanlaw.com
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
[PURCHASER
SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories
as of the date first indicated above.
Name
of Purchaser: ________________________________________________________
Signature
of Authorized Signatory of Purchaser: __________________________________
Name
of Authorized Signatory: ____________________________________________________
Title
of Authorized Signatory: _____________________________________________________
Email
Address of Authorized Signatory: _____________________________________________
Facsimile
Number of Authorized Signatory: __________________________________________
Address
for Notice to Purchaser:
Address
for Delivery of Securities to Purchaser (if not same as address for notice):
Subscription
Amount: $_____________
Units:
Shares:________________
Warrants:
_________________
Social
Security/EIN Number: _______________________
[SIGNATURE
PAGES CONTINUE]
Exhibit
A
Form
of Warrant
See
attached.
Exhibit 10.7
THIS
WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED
UNDER SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
|
Date of Issuance
|
|
Void after
|
|
[____________], 2021
|
|
[____________], 2023
|
METRO
ONE TELECOMMUNICATIONS, INC.
WARRANT TO PURCHASE SHARES COMMON STOCK
In
connection with and as consideration for the Holder (as defined below) purchasing certain shares of Common Stock pursuant to that certain
Common Stock Purchase Agreement (the “Purchase Agreement”), dated as of September 3, 2021, this Warrant is issued
to [_____________] or its assigns (the “Holder”) by METRO ONE TELECOMMUNICATIONS, INC., a Delaware corporation
(the “Company”).
1.
Purchase of Shares.
1.1
Number of Shares. Subject to the terms and conditions set forth herein, the Holder is entitled, upon surrender of this Warrant
at the principal office of the Company (or at such other place as the Company shall notify the Holder in writing), to purchase from the
Company up to an aggregate of [__________] fully paid and nonassessable shares of the Company’s Common Stock (the “Common
Stock”).
1.2
Exercise Price. The exercise price for the shares of Common Stock issuable pursuant to this Section 1 (the “Shares”)
shall be $0.0975 per share (the “Exercise Price”). The Shares and the Exercise Price shall be subject to adjustment
pursuant to Section 5 hereof.
2.
Exercise Period. This Warrant shall be exercisable, in whole or in part, during the term commencing on [__________], 2021 and
ending at 5:00 p.m. ET on [__________]1, 2022 (the “Exercise Period”).
1 NTD: to be two years from date of issuance.
3.
Method of Exercise.
3.1
While this Warrant remains outstanding and exercisable in accordance with Section 2 above, the Holder may exercise, in whole or in part,
the purchase rights evidenced hereby. Such exercise shall be effected by:
(a)
the surrender of the Warrant, together with a duly executed copy of the Notice of Exercise attached hereto, to the Secretary of the Company
at its principal office (or at such other place as the Company shall notify the Holder in writing); and
(b)
the payment to the Company of an amount equal to the aggregate Exercise Price for the number of Shares being purchased.
3.2
Each exercise of this Warrant shall be deemed to have been effected immediately prior to the close of business on the day on which this
Warrant is surrendered to the Company as provided in Section 3.1 above.
3.3
As soon as practicable after the exercise of this Warrant in whole or in part, and in any event within twenty (20) days thereafter (such
date, the “Share Delivery Date”), the Company at its expense will cause the Shares purchased hereunder to be transmitted
by (x) the Company’s transfer agent (the “Transfer Agent”) to the Holder by crediting the account of the Holder’s
or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”)
if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance
of the Shares to or resale of the Shares by the Holder or (B) the Shares are eligible for resale by the Holder pursuant to Rule 144,
and (y) otherwise by book entry transfer registered in the Company’s share register in the name of the Holder or its designee (or
at the request of the Holder, by physical delivery of a certificate, registered in the name of the Holder or its designee), for the number
of Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise.
The Shares shall be deemed to have been issued, and Holder or any other person so designated to be named therein shall be deemed to have
become a holder of record of such shares for all purposes, as of the date the Warrant has been exercised, with payment to the Company
of the Exercise Price, prior to the issuance of such Shares, having been paid.
3.4
In case such exercise is in part only, the Company shall, at the request of the Holder, issue a new warrant or warrants (dated the date
hereof) of like tenor, calling in the aggregate on the face or faces thereof for the number of Shares equal to the number of such Shares
described in this Warrant minus the number of such Shares purchased by the Holder upon all exercises made in accordance with Section
3.1 above.
4.
Covenants of the Company.
4.1
Notices of Record Date. In the event of any taking by the Company of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any dividend (other than a cash dividend which is the same as
cash dividends paid in previous quarters and stock dividends) or other distribution, the Company shall provide the Holder, at least ten
(10) days prior to such record date, a notice specifying the date on which any such record is to be taken for the purpose of such dividend
or distribution.
4.2
Covenants as to Exercise Shares. The Company covenants and agrees that all Shares that may be issued upon the exercise of the
rights represented by this Warrant will, upon issuance in accordance with the terms hereof, be validly issued and outstanding, fully
paid and nonassessable, and free from all taxes, liens and charges with respect to the issuance thereof. The Company further covenants
and agrees that the Company will at all times during the Exercise Period, have authorized and reserved, free from preemptive rights,
a sufficient number of shares of Common Stock to provide for the exercise of the rights represented by this Warrant. If at any time during
the Exercise Period the number of authorized but unissued shares of Common Stock shall not be sufficient to permit exercise of this Warrant,
the Company will take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for such purposes.
5.
Adjustment of Exercise Price and Number of Shares. The number and kind of Shares purchasable upon exercise of this Warrant and
the Exercise Price shall be subject to adjustment from time to time as follows:
5.1
Subdivisions Other Issuances. If the Company shall at any time after the issuance but prior to the expiration of this Warrant
subdivide its Common Stock, by split-up or otherwise, or issue additional shares of its Common Stock as a dividend with respect to any
shares of its Common Stock, the number of Shares issuable on the exercise of this Warrant shall forthwith be proportionately increased
in the case of a subdivision or stock dividend, or proportionately decreased in the case of a combination. Appropriate adjustments shall
also be made to the Exercise Price payable per share, but the aggregate Exercise Price payable for the total number of Shares purchasable
under this Warrant (as adjusted) shall remain the same. Any adjustment under this Section 5.1 shall become effective at the close of
business on the date the subdivision or combination becomes effective, or as of the record date of such dividend, or in the event that
no record date is fixed, upon the making of such dividend.
5.2
Reclassification, Reorganization and Consolidation. In case of any reclassification, capital reorganization or change in the capital
stock of the Company (other than as a result of a subdivision, or stock dividend provided for in Section 5.1 above), then, as a condition
of such reclassification, reorganization or change, lawful provision shall be made, and duly executed documents evidencing the same from
the Company or its successor shall be delivered to the Holder, so that the Holder shall have the right at any time prior to the expiration
of this Warrant to purchase, at a total price equal to that payable upon the exercise of this Warrant, the kind and amount of shares
of stock and other securities or property receivable in connection with such reclassification, reorganization or change by a holder of
the same number and type of securities as were purchasable as Shares by the Holder immediately prior to such reclassification, reorganization
or change. In any such case appropriate provisions shall be made with respect to the rights and interest of the Holder so that the provisions
hereof shall thereafter be applicable with respect to any shares of stock or other securities or property deliverable upon exercise hereof,
and appropriate adjustments shall be made to the Exercise Price per Share payable hereunder, provided the aggregate Exercise Price
shall remain the same.
5.3
Notice of Adjustment. When any adjustment is required to be made in the number or kind of shares purchasable upon exercise of
the Warrant, or in the Exercise Price, the Company shall promptly notify the Holder of such event and of the number of Shares or other
securities or property thereafter purchasable upon exercise of this Warrant.
6.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant, but in lieu of such fractional shares the Company shall make a cash payment therefor on the basis of the Exercise Price
then in effect.
7.
No Stockholder Rights. Prior to exercise of this Warrant, the Holder shall not be entitled to any rights of a stockholder with
respect to the Shares, including (without limitation) the right to vote such Shares, receive dividends or other distributions thereon,
exercise preemptive rights or be notified of stockholder meetings, and, except as otherwise provided in this Warrant, such Holder shall
not be entitled to any stockholder notice or other communication concerning the business or affairs of the Company. Upon the exercise
of the Warrant, if not already a party thereto, the Holder shall execute a joinder to each of the Transaction Documents (as defined in
the Purchase Agreement) then in effect, and any other related agreements or instruments as reasonably requested by the Company at such
time. If the Holder is already party to the Transaction Documents, the Holder agrees that upon the exercise of the Warrant, the Shares
shall be subject to the terms and conditions of the Purchase Agreement in all respects.
8.
Transfer of Warrant. Subject to compliance with applicable federal and state securities laws, the last sentence of this Section
8 and any other contractual restrictions between the Company and the Holder contained herein, 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; provided, that the
Holder shall not make any such transfer to any of the Company’s competitors as such is reasonably determined by the Company. Within
a reasonable time after the Company’s receipt of an executed Assignment Form in the form attached hereto, 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 (1) or more appropriate new warrants. Notwithstanding
the foregoing, any transfer of this Warrant and any rights hereunder shall be subject to the terms and conditions regarding transfers
set forth in the Company’s Bylaws, as amended from time to time.
9.
Governing Law. This Warrant shall be governed by and construed under the laws of the State of New York as applied to agreements
among New York residents, made and to be performed entirely within the State of New York.
10.
Successors and Assigns. The terms and provisions of this Warrant shall inure to the benefit of, and be binding upon, the Company
and the holders hereof and their respective successors and assigns.
11.
Counterparts. This Warrant may be executed in two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
12.
Titles and Subtitles. The titles and subtitles used in this Warrant are used for convenience only and are not to be considered
in construing or interpreting this Warrant.
13.
Notices. All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed effectively
given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during
normal business hours of the recipient, and if not so confirmed, then on the next business day, (c) five (5) days after having been sent
by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the respective
parties at the following addresses (or at such other addresses as shall be specified by notice given in accordance with this Section
13):
If
to the Company:
METRO
ONE TELECOMMUNICATIONS, INC.
30 North Gould Street, Suite 2990
Sheridan, WY 82801
Attention:
Elchanan Maoz, President
If
to Holder:
At
the address shown on the signature page hereto.
14.
Expenses. If any action at law or in equity is necessary to enforce or interpret the terms of this Warrant, the prevailing party
shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such
party may be entitled.
15.
Entire Agreement; Amendments and Waivers. This Warrant and any other documents delivered pursuant hereto constitute the full and
entire understanding and agreement between the parties with regard to the subjects hereof and thereof. Nonetheless, any term of this
Warrant may be amended and the observance of any term of this Warrant may be waived (either generally or in a particular instance and
either retroactively or prospectively), with the written consent of the Company and the Holder; or if this Warrant has been assigned
in part, by the holders or rights to purchase a majority of the shares originally issuable pursuant to this Warrant.
16.
Severability. If any provision of this Warrant is held to be unenforceable under applicable law, such provision shall be excluded
from this Warrant and the balance of the Warrant shall be interpreted as if such provision were so excluded and shall be enforceable
in accordance with its terms.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties have executed this Warrant as of the date first written above.
|
|
METRO ONE TELECOMMUNICATIONS, INC.
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
Elchanan Maoz
|
|
|
|
Title:
|
President
|
|
ACKNOWLEDGED AND AGREED:
|
|
|
|
|
|
|
|
HOLDER
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
NOTICE
OF EXERCISE
METRO
ONE TELECOMMUNICATIONS, INC.
Attention:
President
The
undersigned hereby elects to purchase, pursuant to the provisions of the Warrant, as follows:
_____________
shares of Common Stock pursuant to the terms of the attached Warrant, and tenders herewith payment in cash of the Exercise Price of such
Shares in full.
☐ Check
here if requesting delivery via book entry transfer.
☐ Check
here if requesting delivery as a certificate to the following name and to the following address:
☐ Check
here if requesting delivery by Deposit/Withdrawal at Custodian as follows:
|
DTC Participant:
|
|
|
DTC Number:
|
|
|
Account Number:
|
|
|
Date: ___________________
|
HOLDER:
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
|
Title:
|
|
|
Name in which shares should be registered:
|
|
|
|
|
|
|
|
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
For
Value Received, the foregoing Warrant and all rights
evidenced thereby are hereby assigned to
|
Name:
|
|
|
|
(Please Print)
|
|
|
|
|
Address:
|
|
|
|
(Please Print)
|
|
|
|
|
Dated:
|
|
|
|
|
|
|
|
Holder’s
Signature:
|
|
|
|
|
Holder’s
Address:
|
|
|
|
|
NOTE:
The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant. Officers of corporations
and those acting in a fiduciary or other representative capacity should provide proper evidence of authority to assign the foregoing
Warrant.
Exhibit 10.8
THIS
WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED
UNDER SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
|
Date
of Issuance
|
|
Void
after
|
|
October 1, 2021
|
|
October
1, 2023
|
METRO
ONE TELECOMMUNICATIONS, INC.
WARRANT TO PURCHASE SHARES COMMON STOCK
This Warrant
is issued to CLOS TRADING LTD. or its assigns (the “Holder”) by METRO ONE TELECOMMUNICATIONS, INC., a Delaware
corporation (the “Company”).
1.
Purchase of Shares.
1.1
Number of Shares. Subject to the terms and conditions set forth herein, the Holder is entitled, upon surrender of this
Warrant at the principal office of the Company (or at such other place as the Company shall notify the Holder in writing), to purchase
from the Company up to an aggregate of 7,791,658 fully paid and nonassessable shares of the Company’s Common Stock (the “Common
Stock”).
1.2 Exercise
Price. The exercise price for the shares of Common Stock issuable pursuant to this Section 1 (the “Shares”)
shall be $0.02567 per share (the “Exercise Price”). The Shares and the Exercise Price shall be subject to
adjustment pursuant to Section 5 hereof.
2.
Exercise Period. This Warrant shall be exercisable, in whole or in part, during the term commencing on October 1, 2021 and ending
at 5:00 p.m. ET on October 1, 2023, (the “Exercise Period”).
3.
Method of Exercise.
3.1
While this Warrant remains outstanding and exercisable in accordance with Section 2 above, the Holder may exercise, in whole or in part,
the purchase rights evidenced hereby. Such exercise shall be effected by:
(a)
the surrender of the Warrant, together with a duly executed copy of the Notice of Exercise attached hereto, to the Secretary of the Company
at its principal office (or at such other place as the Company shall notify the Holder in writing); and
(b)
the payment to the Company of an amount equal to the aggregate Exercise Price for the number of Shares being purchased.
3.2
Each exercise of this Warrant shall be deemed to have been effected immediately prior to the close of business on the day on which this
Warrant is surrendered to the Company as provided in Section 3.1 above.
3.3
As soon as practicable after the exercise of this Warrant in whole or in part, and in any event within twenty (20) days thereafter (such
date, the “Share Delivery Date”), the Company at its expense will cause the Shares purchased hereunder to be transmitted
by (x) the Company’s transfer agent (the “Transfer Agent”) to the Holder by crediting the account of the Holder’s
or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”)
if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance
of the Shares to or resale of the Shares by the Holder or (B) the Shares are eligible for resale by the Holder pursuant to Rule 144,
and (y) otherwise by book entry transfer registered in the Company’s share register in the name of the Holder or its designee (or
at the request of the Holder, by physical delivery of a certificate, registered in the name of the Holder or its designee), for the number
of Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise.
The Shares shall be deemed to have been issued, and Holder or any other person so designated to be named therein shall be deemed to have
become a holder of record of such shares for all purposes, as of the date the Warrant has been exercised, with payment to the Company
of the Exercise Price, prior to the issuance of such Shares, having been paid.
3.4
In case such exercise is in part only, the Company shall, at the request of the Holder, issue a new warrant or warrants (dated the date
hereof) of like tenor, calling in the aggregate on the face or faces thereof for the number of Shares equal to the number of such Shares
described in this Warrant minus the number of such Shares purchased by the Holder upon all exercises made in accordance with Section
3.1 above.
4.
Covenants of the Company.
4.1
Notices of Record Date. In the event of any taking by the Company of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any dividend (other than a cash dividend which is the same as
cash dividends paid in previous quarters and stock dividends) or other distribution, the Company shall provide the Holder, at least ten
(10) days prior to such record date, a notice specifying the date on which any such record is to be taken for the purpose of such dividend
or distribution.
4.2
Covenants as to Exercise Shares. The Company covenants and agrees that all Shares that may be issued upon the exercise of the
rights represented by this Warrant will, upon issuance in accordance with the terms hereof, be validly issued and outstanding, fully
paid and nonassessable, and free from all taxes, liens and charges with respect to the issuance thereof. The Company further covenants
and agrees that the Company will at all times during the Exercise Period, have authorized and reserved, free from preemptive rights,
a sufficient number of shares of Common Stock to provide for the exercise of the rights represented by this Warrant. If at any time during
the Exercise Period the number of authorized but unissued shares of Common Stock shall not be sufficient to permit exercise of this Warrant,
the Company will take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for such purposes.
5.
Adjustment of Exercise Price and Number of Shares. The number and kind of Shares purchasable upon exercise of this Warrant and
the Exercise Price shall be subject to adjustment from time to time as follows:
5.1
Subdivisions Other Issuances. If the Company shall at any time after the issuance but prior to the expiration of this Warrant
subdivide its Common Stock, by split-up or otherwise, or issue additional shares of its Common Stock as a dividend with respect to any
shares of its Common Stock, the number of Shares issuable on the exercise of this Warrant shall forthwith be proportionately increased
in the case of a subdivision or stock dividend, or proportionately decreased in the case of a combination. Appropriate adjustments shall
also be made to the Exercise Price payable per share, but the aggregate Exercise Price payable for the total number of Shares purchasable
under this Warrant (as adjusted) shall remain the same. Any adjustment under this Section 5.1 shall become effective at the close of
business on the date the subdivision or combination becomes effective, or as of the record date of such dividend, or in the event that
no record date is fixed, upon the making of such dividend.
5.2
Reclassification, Reorganization and Consolidation. In case of any reclassification, capital reorganization or change in the capital
stock of the Company (other than as a result of a subdivision, or stock dividend provided for in Section 5.1 above), then, as a condition
of such reclassification, reorganization or change, lawful provision shall be made, and duly executed documents evidencing the same from
the Company or its successor shall be delivered to the Holder, so that the Holder shall have the right at any time prior to the expiration
of this Warrant to purchase, at a total price equal to that payable upon the exercise of this Warrant, the kind and amount of shares
of stock and other securities or property receivable in connection with such reclassification, reorganization or change by a holder of
the same number and type of securities as were purchasable as Shares by the Holder immediately prior to such reclassification, reorganization
or change. In any such case appropriate provisions shall be made with respect to the rights and interest of the Holder so that the provisions
hereof shall thereafter be applicable with respect to any shares of stock or other securities or property deliverable upon exercise hereof,
and appropriate adjustments shall be made to the Exercise Price per Share payable hereunder, provided the aggregate Exercise Price
shall remain the same.
5.3
Notice of Adjustment. When any adjustment is required to be made in the number or kind of shares purchasable upon exercise of
the Warrant, or in the Exercise Price, the Company shall promptly notify the Holder of such event and of the number of Shares or other
securities or property thereafter purchasable upon exercise of this Warrant.
6.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant, but in lieu of such fractional shares the Company shall make a cash payment therefor on the basis of the Exercise Price
then in effect.
7.
No Stockholder Rights. Prior to exercise of this Warrant, the Holder shall not be entitled to any rights of a stockholder with
respect to the Shares, including (without limitation) the right to vote such Shares, receive dividends or other distributions thereon,
exercise preemptive rights or be notified of stockholder meetings, and, except as otherwise provided in this Warrant, such Holder shall
not be entitled to any stockholder notice or other communication concerning the business or affairs of the Company. Upon the exercise
of the Warrant, if not already a party thereto, the Holder shall execute a joinder to each of the Transaction Documents (as defined in
the Purchase Agreement) then in effect, and any other related agreements or instruments as reasonably requested by the Company at such
time. If the Holder is already party to the Transaction Documents, the Holder agrees that upon the exercise of the Warrant, the Shares
shall be subject to the terms and conditions of the Purchase Agreement in all respects.
8.
Transfer of Warrant. Subject to compliance with applicable federal and state securities laws, the last sentence of this Section
8 and any other contractual restrictions between the Company and the Holder contained herein, 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; provided, that the
Holder shall not make any such transfer to any of the Company’s competitors as such is reasonably determined by the Company. Within
a reasonable time after the Company’s receipt of an executed Assignment Form in the form attached hereto, 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 (1) or more appropriate new warrants. Notwithstanding
the foregoing, any transfer of this Warrant and any rights hereunder shall be subject to the terms and conditions regarding transfers
set forth in the Company’s Bylaws, as amended from time to time.
9.
Governing Law. This Warrant shall be governed by and construed under the laws of the State of New York as applied to agreements
among New York residents, made and to be performed entirely within the State of New York.
10.
Successors and Assigns. The terms and provisions of this Warrant shall inure to the benefit of, and be binding upon, the Company
and the holders hereof and their respective successors and assigns.
11.
Counterparts. This Warrant may be executed in two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
12.
Titles and Subtitles. The titles and subtitles used in this Warrant are used for convenience only and are not to be considered
in construing or interpreting this Warrant.
13.
Notices. All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed effectively
given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during
normal business hours of the recipient, and if not so confirmed, then on the next business day, (c) five (5) days after having been sent
by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the respective
parties at the following addresses (or at such other addresses as shall be specified by notice given in accordance with this Section
13):
If
to the Company:
METRO
ONE TELECOMMUNICATIONS, INC.
30 North Gould Street, Suite 2990
Sheridan, WY 82801
Attention:
Elchanan Maoz, President
If
to Holder:
At
the address shown on the signature page hereto.
14.
Expenses. If any action at law or in equity is necessary to enforce or interpret the terms of this Warrant, the prevailing party
shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such
party may be entitled.
15.
Entire Agreement; Amendments and Waivers. This Warrant and any other documents delivered pursuant hereto constitute the full and
entire understanding and agreement between the parties with regard to the subjects hereof and thereof. Nonetheless, any term of this
Warrant may be amended and the observance of any term of this Warrant may be waived (either generally or in a particular instance and
either retroactively or prospectively), with the written consent of the Company and the Holder; or if this Warrant has been assigned
in part, by the holders or rights to purchase a majority of the shares originally issuable pursuant to this Warrant.
16.
Severability. If any provision of this Warrant is held to be unenforceable under applicable law, such provision shall be excluded
from this Warrant and the balance of the Warrant shall be interpreted as if such provision were so excluded and shall be enforceable
in accordance with its terms.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties have executed this Warrant as of the date first written above.
|
|
METRO
ONE TELECOMMUNICATIONS, INC.
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
Elchanan
Maoz
|
|
|
|
Title:
|
President
|
|
ACKNOWLEDGED
AND AGREED:
|
|
|
|
|
|
|
|
HOLDER
– CLOS TRADING LTD.
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
Address:
|
Ofek Building
|
|
|
|
|
|
|
Hamenofim Street 8
|
|
|
|
|
|
|
Herzeliya, Israel
|
|
|
|
|
NOTICE
OF EXERCISE
METRO
ONE TELECOMMUNICATIONS, INC.
Attention:
President
The
undersigned hereby elects to purchase, pursuant to the provisions of the Warrant, as follows:
_____________
shares of Common Stock pursuant to the terms of the attached Warrant, and tenders herewith payment in cash of the Exercise Price of such
Shares in full.
☐ Check
here if requesting delivery via book entry transfer.
☐ Check
here if requesting delivery as a certificate to the following name and to the following address:
☐ Check
here if requesting delivery by Deposit/Withdrawal at Custodian as follows:
|
DTC
Participant:
|
|
|
DTC
Number:
|
|
|
Account
Number:
|
|
|
Date:
___________________
|
HOLDER:
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
|
Title:
|
|
|
Name
in which shares should be registered:
|
|
|
|
|
|
|
|
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
For
Value Received, the foregoing Warrant and all rights
evidenced thereby are hereby assigned to
|
Name:
|
|
|
|
(Please Print)
|
|
|
|
|
Address:
|
|
|
|
(Please Print)
|
|
|
|
|
Dated:
|
|
|
|
|
|
|
|
Holder’s
Signature:
|
|
|
|
|
Holder’s
Address:
|
|
|
|
|
NOTE:
The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant. Officers of corporations
and those acting in a fiduciary or other representative capacity should provide proper evidence of authority to assign the foregoing
Warrant.
Exhibit 23.1
|
|
|
Gries & Associates, LLC
Certified Public Accountants
501 S. Cherry Street Ste 1100
Denver, Colorado 80246
|
|
|
|
|
|
|
|
|
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the inclusion of our Auditor’s Report, dated February 10, 2022, on the financial statements of Metro One Telecommunications, Inc. as of
December 31, 2020 and for the year then ended in the Registration Statement on Form S-1 filed pursuant to Rule 462 (b) of the Securities Act of 1933. We also consent to the application of such report to the financial information in the Registration
Statement, when such information is read in conjunction with the financial statements referred to in our report. Further, we consent to being named as an “expert” in auditing and accounting in the registration statement.
|
|
|
|
|
|
Denver, Colorado
February 10, 2022
|
|
|
|
blaze@griesandassociates.com
501 S. Cherry Street Suite 1100, Denver, Colorado 80246
(O)720-464-2875 (M)773-255-5631 (F)720-222-5846
Exhibit 107
CALCULATION OF REGISTRATION FEE
FORM S-1
(Form Type)
Metro One Telecommunications Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securites and Registration of Securities for Selling Stockholders
|
Security Type
|
Security Class Title
|
Fee Calculation Rule
|
Amount to be Registered
|
Proposed Maximum Offering Price Per Share
|
Maximum Aggregate Offering Price
|
Fee Rate
|
Amount of Registration Fee
|
|
Equity (new common stock Units(1) to be sold)
|
Common Stock, no par value per shares
|
Rule 457(a) and (o)
|
80,000,000 Shares
|
$0.12
|
$9,600,000
|
0.0000927
|
$889.92
|
|
|
|
|
|
|
|
|
|
|
Equity (warrants underlying new Units(1) to be sold)
|
Common Stock underlying Share Purchase Warrants, no par value per share
|
Rule 457(a) and (o)
|
20,000,000 Shares
|
$0.12
|
$3,000,000
|
0.0000927
|
$278.10
|
|
|
|
|
|
|
|
|
|
|
Equity (2)
|
Common Stock underlying Share Purchase Warrants, no par value per share
|
Rule 457(a) and (o)
|
7,791,658 Shares
|
$0.12
|
$934,999
|
0.0000927
|
$86.67
|
|
|
|
|
|
|
|
|
|
|
Equity (3)
|
Common Stock, no par value per share
|
Rule 457(a) and (o)
|
25,079,999 Shares
|
$0.12
|
$3,009,600
|
0.0000927
|
$278.99
|
|
|
|
|
|
|
|
|
|
|
Equity (4)
|
Common Stock underlying Share Purchase Warrants, no par value per share
|
Rule 457(a) and (o)
|
12,540,000 Shares
|
$0.12
|
$1,504,800
|
0.0000927
|
$139.49
|
|
|
|
|
|
|
|
|
|
|
Equity (5)
|
Common Stock, no par value per share
|
Rule 457(a) and (o)
|
126,614,436 Shares
|
$0.12
|
$15,193,732
|
0.0000927
|
$1,408.46
|
|
|
|
|
|
|
|
|
|
|
Equity (6)
|
Common Stock, no par value per share
|
Rule 457(a) and (o)
|
18,975,000 Shares
|
$0.12
|
$2,277,000
|
0.0000927
|
$211.08
|
|
|
|
|
|
|
|
|
|
|
Equity (7)
|
Common Stock, no par value per share
|
Rule 457(a) and (o)
|
22,647,751 Shares
|
$0.12
|
$2,717,730
|
0.0000927
|
$251.93
|
|
|
|
|
|
|
|
|
|
Total Offering amounts
|
|
|
|
|
$38,237,861
|
|
$3,544.64
|
Total Fee Offsets
|
|
|
|
|
|
|
N/A
|
|
Net Fee Due
|
|
|
|
|
|
|
$3,544.64
|
|
(1)
|
|
Each Unit consists of one Share of Common Stock, no par value, and 1 Common Share Purchase Warrant for each for 4 shares of Common Stock purchased as part of this
Offering.
|
|
(2)
|
|
Consists of shares underlying warrants issued to CLOS Trading, Ltd.
|
|
(3)
|
|
Consists of shares sold pursuant to our 2021 private investment in public equity (“PIPE”) offering.
|
(4)
|
|
Consists of shares underlying warrants associated with the PIPE offering.
|
|
(5)
|
|
Consists of shares of common stock issued pursuant to our offering related to simple agreements for future equity (“SAFE”).
|
(6)
|
|
Consists Of 18,975,000 shares of which 13,313,062 are held by Everest Credit, LP. And 5,661,938 are held by Everest Corporate Finance Ltd.
|
|
(7)
|
|
Consists of 22,647,751 shares of common stock held by Yaron Elhawi Tr Ua 02/01/2021 Yaron Elhawi Trust Royal App Ltd. in Liquidation, issued as part of our acquisition of Royal App,
Ltd.
|
