EXHIBIT 10.18
THIS SECOND AMENDMENT TO THE STRATEGIC ALLIANCE AGREEMENT (this
"Amendment") made as of July 31, 2004, between GIGABEAM CORPORATION, a Delaware
corporation (the "Company"), having its principal executive office at 00000-X
Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, and THINKOM SOLUTIONS, INC., a
California corporation ("ThinKom"), having its principal executive offices at
0000 Xxx Xxx Xxxx, Xxxxx 000, Xxxxxxxx, XX 00000.
W I T N E S S E T H
WHEREAS, the Company and ThinKom entered into a certain Strategic
Alliance Agreement dated January 5, 2004 and a First Amendment to the Strategic
Alliance Agreement dated April 28, 2004 (the "Agreement") whereby the Company
would design, manufacture and market a commercial point-to-point terrestrial
wireless communications system utilizing a frequency range of 71 GigaHertz
("GHz") through 76 GHz and 81 GHz through 86 GHz which incorporates ThinKom's
antenna component technologies;
WHEREAS, the Company and ThinKom desire to amend certain of the terms
and provisions of the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants made herein
and other good and valuable consideration, receipt of which is hereby
acknowledged, the Company and ThinKom hereby agree as follows:
SECTION 1. Amendments to the Agreement. Effective as of the date
hereof:
A. GigaBeam hereby agrees to provide ThinKom by September 30,
2004, with the completed Exhibits A, B and C, as mutually
agreed upon by both parties.
SECTION 2. Representation and Warranties. The Company and ThinKom
hereby represent and warrant as follows (with the effectiveness of this
Amendment being further conditioned upon all such representations and warranties
being true and correct in all material respects on the date of this Amendment):
(a) The execution, delivery and performance by the Company and
ThinKom of this Amendment have been duly authorized by all
necessary corporate action;
(b) This Amendment to which the Company and ThinKom is a party
constitute legal, valid and binding obligations of the Company
and ThinKom, respectively, enforceable against it in
accordance with their respective terms, except to the extent
that such enforcement may be limited by applicable bankruptcy,
insolvency, equitable remedies and other similar laws
affecting creditors' rights generally, and except that the
availability of equitable remedies is subject to the
discretion of the court before which such remedies are sought;
(c) No event has occurred and is continuing which has not been
waived which constitutes a breach of the Agreement.
SECTION 3. Effect on the Agreement. Except as specifically amended
hereby, the Agreement shall continue to be in full force and effect and is
hereby in all respects ratified and confirmed.
SECTION 4. Execution in Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier or facsimile shall be effective as delivery of a
manually executed counterpart of this Amendment.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed on their behalf in their respective corporate names by their duly
authorized officers all as of the date first above written.
GIGABEAM CORPORATION
By:/s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Technology
Officer
THINKOM SOLUTIONS, INC.
By:/s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President & Chief Executive Officer
