August 24, 2001
Acqua Wellington North American Equities Fund Ltd.
C/o Fortis Fund Services Ltd.
Xxxxxxxx Xxxxxxxx Centre
East Bay Street, P.O. Box SS-6238
Nassau, Bahamas
Dear Sirs:
This letter sets forth the agreement of Acqua Wellington
North American Equities Fund Ltd. the ("Purchaser") and Metawave
Communications Corporation (the "Company") regarding the purchase
by the Purchaser from the Company of the Company's common stock
(the "Common Stock") on the date hereof (the "Agreement"). The
parties agree as follows:
1. This Agreement relates to the purchase by the Purchaser
of 733,623 shares of Common Stock for an aggregate purchase
price of $2,500,000, or $3.407745 per share, which purchase
is being settled by the parties on Tuesday, August 28, 2001.
2. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of Delaware.
The Company has the requisite corporate power and authority
to enter into and perform this Agreement and to issue and
sell the Common Stock in accordance with the terms hereof.
The execution, delivery and performance of this Agreement by
the Company and the consummation by it of the transactions
contemplated hereby have been duly and validly authorized by
all necessary corporate action. A copy of the duly executed
resolutions of the Board of Directors of the Company is
attached hereto as Exhibit "B". This Agreement has been
duly executed and delivered on behalf of the Company by a
duly authorized officer. A copy of a duly executed
incumbency certificate of the Company's duly authorized
officers is attached hereto as Exhibit "C". This Agreement
constitutes, or shall constitute when executed and
delivered, a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms
3. The Common Stock to be issued under this Agreement has
been duly authorized by all necessary corporate action and,
when paid for or issued in accordance with the terms hereof,
the Common Stock shall be validly issued and outstanding,
fully paid and nonassessable, and the Purchaser shall be
entitled to all rights accorded to a holder of Common Stock.
4. The Company represents and warrants that (a) the shares
of Common Stock issued by the Company to the Purchaser have
been registered under the Securities Act of 1933, as amended
(the "Securities Act"), pursuant to a registration statement
on Form S-3, Commission File Number 333-61470 (the
"Registration Statement"); and (b) the Company has filed or
will file a prospectus supplement to the Registration
Statement in connection with this transaction. Copies of the
Registration Statement and the prospectus supplement, each
as filed and the Registration Statement as declared
effective by the Securities and Exchange Commission, are
annexed hereto as Exhibits "D" and "E", respectively.
5. The Company has taken or will take all action necessary
on its part to list the shares of Common Stock for trading
on the NASDAQ system or any relevant market or system, if
applicable. A copy of the Company's listing application
with NASDAQ or any other relevant market or system is
attached hereto as Exhibit "F."
6. The Company will continue to take all action necessary
to continue the listing or trading of the Common Stock on
the NASDAQ National Market or any relevant market or system,
if applicable, and will comply in all respects with the
Company's reporting, listing (including, without limitation,
the listing of the Common Stock purchased by the Purchaser)
or other obligations under the rules of the NASDAQ National
Market or any relevant market or system.
7. The Company has delivered or made available to the
Purchaser true and complete copies of the filings filed with
the Securities and Exchange Commission since December 31,
2000 (collectively, the "Commission Filings"). The Company
has not provided to the Purchaser any information which,
according to applicable law, rule or regulation, should have
been disclosed publicly by the Company but which has not
been so disclosed, other than with respect to the
transactions contemplated by this Agreement. As of their
respective dates, each of the Commission Filings complied in
all material respects with the requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and the
rules and regulations of the Commission promulgated
thereunder and other federal, state and local laws, rules
and regulations applicable to such documents, and, as of
their respective dates, none of the Commission Filings
referred to above contained any untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under
which they were made, not misleading. The financial
statements of the Company included in the Commission Filings
comply as to form in all material respects with applicable
accounting requirements and the published rules and
regulations of the Commission or other applicable rules and
regulations with respect thereto. No event or circumstance
has occurred or exists with respect to the Company or its
subsidiaries or their respective businesses, properties,
prospects, operations or financial condition, which, under
applicable law, rule or regulation, requires public
disclosure or announcement by the Company but which has not
been so publicly announced or disclosed.
8. The Company will promptly notify the Purchaser of (a)
any stop order or other suspension of the effectiveness of
the Registration Statement and (b) the happening of any
event as a result of which the prospectus included in the
Registration Statement includes an untrue statement of a
material fact or omits to state a material fact required to
be stated therein, or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
9. The Company may not issue a press release or otherwise
make a public statement or announcement with respect to the
completion of the transaction contemplated hereby without
the prior consent of the Purchaser.
10. The Company will indemnify the Purchaser as provided in
Exhibit "A" attached hereto against liability with respect
to the Registration Statement (including, without
limitation, the prospectus supplement) relating to the
Common Stock which were sold by the Company to the Purchaser
hereunder. For purposes of said Exhibit A, capitalized
terms used therein without definition shall have the same
meanings therein as are ascribed to said terms in this
Agreement.
11. This Agreement and the legal relations between the
parties hereto with respect to any purchase of Common Stock
by the Purchaser hereunder shall be governed and construed
in accordance with the substantive laws of the State of New
York without giving effect to the conflicts of law
principles thereunder.
Delivery of an executed copy of a signature page to this
Agreement by facsimile transmission shall be effective as
delivery of a manually executed copy of this Agreement and shall
be effective and enforceable as the original.
Please execute a copy of this Agreement which, when executed
by the Purchaser, will constitute an agreement between the
Company and the Purchaser.
Very truly yours,
METAWAVE COMMUNICATIONS CORPORATION
By: /s/Xxxxxxx Xxxxxx-Xxxxx
Name: Xxxxxxx Xxxxxx-Xxxxx
Title: VP,General Counsel & Secretary
AGREED TO:
PURCHASER:
ACQUA WELLINGTON NORTH AMERICAN EQUITIES FUND LTD.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Secretary
