August 9, 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 1,440,566 shares of Common Stock for
an aggregate purchase price of $3,500,000, or
$2.4296 per share, which purchase is being settled
by the parties on Monday, August 13, 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/ Xxxxxx X. Xxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxxx
Title: Senior VP & CFO
AGREED TO:
PURCHASER:
ACQUA WELLINGTON NORTH AMERICAN EQUITIES FUND LTD.
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Vice President
