AMENDMENT AGREEMENT
Exhibit
10.4
AMENDMENT
AGREEMENT (this “Agreement”),
dated
as of May 22, 2007, among Gigabeam Corporation (the “Company”),
Midsummer Investment, Ltd. (“Midsummer”),
Xxxxxxx Xxxxxxxxx & Xxxxx LLP (the “Agent”),
Xxxxx
Xxxxxxxxx and Xxxxxxx Xxxxxx (Messrs. Xxxxxxxxx and Lockie, the “Pledgors”).
Preliminary
Statement:
WHEREAS,
Midsummer was issued a 14% Secured Promissory Note (the “Note”)
of the
Company which was secured by a pledge of certain shares of common stock of
the
Company owned by the Pledgors (the “Pledged
Shares”)
pursuant to that certain Pledge and Security Agreement, dated April 17, 2007
by
and among the parties hereto (the “Pledge
Agreement”)
Capitalized terms used and not otherwise defined herein that are defined in
the
Pledge Agreement.
WHEREAS,
pursuant to the Securities Purchase Agreement of even date herewith entered
into
by and among the Company and the purchasers signatory thereto, including
Midsummer, Midsummer shall purchase 14% Secured Debentures (the “Debentures”)
partially through the surrender of all of the principal of, and accrued but
unpaid interest on, the Notes on a $1 for $1 basis.
WHEREAS,
pursuant to the terms of the Pledge Agreement, upon payment in full of the
Notes, the Pledged Shares would be returned to the Pledgors and the pledge
terminated.
WHEREAS,
subject to the terms and conditions set forth herein, the Pledgors agree to
amend the terms of the Pledge Agreement such that, upon surrender of the Notes
to the Company and issuance of the Debentures, the obligations of the Company
under the Debentures are secured by a pledge of the Pledged Shares.
NOW,
THEREFORE, the parties to this Agreement, for adequate and sufficient
consideration, the receipt of which is hereby acknowledged do hereby agree
as
follows:
1. Amendment
to definition of “Obligations”.
The
definition of “Obligations” under the Pledge Agreement is hereby amended to
include all present and future indebtedness, obligations, covenants, duties
and
liability of any kind or nature of the Company to the Pledgees now existing
or
hereafter arising under or in connection with this Agreement, the Debentures
and
the other agreement entered into in connection therewith.
2. Amendment
to Termination Provision of the Pledge Agreement.
The
second sentence of Section 15 of the Pledge Agreement is hereby amended and
restated as follows: Upon the earlier of (a) the indefeasible payment in full
of
the Obligations and (b) after the issuance of the Debentures, the date that
the
Company grants the holders of the Debentures a first priority security interest
in all the assets of the Company, the security interest granted hereby shall
terminate and all rights to the Pledged Collateral shall revert to the
Pledgors.”
3. Effect
on Pledge Agreement. Except
as
expressly set forth above, all of the terms and conditions of the Pledge
Agreement shall continue in full force and effect after the execution of this
Agreement and shall not be in any way changed, modified or superseded by the
terms set forth herein.
4. Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given, unless the same shall be in writing
and
signed by the Company, each Pledgor, the Agent and Midsummer.
5. Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be delivered as set forth in the Pledge Agreement.
6. Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
permitted assigns of each of the parties. The Pledgors may not assign their
rights or obligations hereunder without the prior written consent of Midsummer.
Each Holder may assign their respective rights hereunder in the manner and
to
the Persons as permitted under the applicable Purchase Agreement.
7. Execution
and Counterparts.
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
the
other party, it being understood that both 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.
8. Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be determined in accordance with the provisions of
the
Pledge Agreement.
9. 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.
10. Headings.
The
headings in this Agreement are for convenience only, do not constitute a part
of
the Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to
be
duly executed by their respective authorized signatories as of the date first
indicated above.
| PLEDGORS: | ||
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| /s/Xxxxx X. Xxxxxxxxx | ||
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Xxxxx Xxxxxxxxx |
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| /s/Xxxxxxx X. Xxxxxx | ||
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Xxxxxxx Xxxxxx |
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THE COMPANY:
GIGABEAM CORPORATION
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| By: /s/ Xxxxx X. Xxxxxxxxx | ||
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Name: |
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Title:
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AGENT:
XXXXXXX
XXXXXXXXX & XXXXX LLP
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| By: /s/Xxxxxx X. Xxxxxxx | |||
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Name: Xxxxxx X. Xxxxxxx |
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Title:
Authorized Signatory
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MIDSUMMER
INVESTMENT, LTD.
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| By: /s/Xxxxx X. Xxxxxxx | |||
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Name: Xxxxx X. Xxxxxxx |
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Title:
Managing Director of Midsummer Capital, LLC as investment advisor
to
Midsummer Investment,
Ltd.
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[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PLEDGEES FOLLOWS]
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