FEE PAYMENT AGREEMENT
Exhibit 99.4
FEE PAYMENT AGREEMENT, dated as of November 1, 2006, by and among Gilford Securities
Incorporated (“Gilford”) and VIASPACE Inc. (“VIASPACE”).
W I T N E S S E T H:
WHEREAS, pursuant to a letter dated September 12, 2006, by and among Gilford and VIASPACE, as
amended pursuant to Amendment No. 1 dated as of November 1, 2006 by and between Gilford and
VIASPACE (collectively the “Gilford Letter”), VIASPACE agreed to, among other items, pay to
Gilford, in addition to warrants set forth in the Gilford Letter (i) certain cash fees set forth in
the Gilford Letter (the “Gilford Fees”) upon closings of purchases of securities by Cornell
Capital Partners LP and/or any of its affiliates (collectively, “Cornell”) from VIASPACE
and/or any of its affiliates (a “Cornell/VIASPACE Transaction”), and (ii) at the first
closing of any Cornell/VIASPACE Transaction (the “First Closing”), pay to Gilford a
non-refundable fee of $10,000 to cover certain fees and expenses of Gilford (the “$10K Gilford
Payment”).
WHEREAS, pursuant to a (i) Securities Purchase Agreement between Cornell and VIASPACE (the
“SPA”), and (ii) a Securities Equity Distribution Agreement between Cornell and VIASPACE
(the “SEDA,” and together with the SPA, the “Sale Agreements”), Cornell is
purchasing and in the future may purchase additional securities of VIASPACE, each and all of which
purchases shall constitute a Cornell/VIASPACE Transaction.
WHEREAS, the parties hereto desire that in connection with any sales of VIASPACE securities to
Cornell in a Cornell/VIASPACE Transaction, pursuant to the Sales Agreements or otherwise, Cornell
shall deduct from the proceeds of any VIASPACE securities sold in any Cornell/VIASPACE Transaction
that occurs within three years of the date of the Sale Agreements, the Gilford Fees (and the $10k
Gilford Payment at the First Closing), and send the Gilford Fees (and the $10K Gilford Payment at
the First Closing) directly to Gilford.
NOW, THEREFORE, in consideration of the mutual promises set forth herein and other
consideration of which the parties hereto expressly acknowledge, the parties hereto hereby
expressly and irrevocably agree as follows:
1. Gilford Fees. At each and every closing of a Cornell/VIASPACE Transaction that
occurs within three years of the date of the Sale Agreements, Cornell shall deduct from the actual
purchase price Cornell pays for VIASPACE securities so purchased, the Gilford Fees and wire
transfer to Gilford such Gilford Fees, as provided in Section 3 of this Agreement.
2. The $10K Gilford Payment. At the First Closing, in addition to the Gilford Fees
payable to Gilford at such closing, Cornell shall also deduct $10,000 from the aggregate gross
purchase price it is required to pay for such VIASPACE securities, which $10,000 represents the
$10K Gilford Payment, and wire transfer to Gilford such $10,000, as provided in Section 3
of this Agreement.
3. Wire Transfer. On and at each closing of a Cornell/VIASPACE Transaction, the
Gilford Fees (and at the First Closing the additional $10k Gilford Payment), shall be wired by
Cornell directly to Gilford pursuant to the following wire instructions:
| Wachovia Bank | ||||
| 0000 Xxxxxx Xxx. XX | ||||
| Xxxxxxx, XX 00000 | ||||
| ABA#: | 000000000 | |||
| Swift: | PNBPUS33 | |||
| Beneficiary: | First Clearing, LLC | |||
| Account#: | 5050000000631 | |||
| Further Credit Name: | Gilford Securities Incorporated | |||
| Further Credit Acct#: | 3683-8840 |
4. Jurisdiction, Etc. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York without regard to the conflicts of laws principles
thereof. The parties hereto hereby irrevocably agree that any suit or proceeding arising directly
and/or indirectly pursuant to or under this Agreement, shall be brought solely in a federal or
state court located in the City, County and State of New York. By its execution hereof, the parties
hereby covenant and irrevocably submit to the in personam jurisdiction of the federal
and state courts located in the City, County and State of New York and agree that any process in
any such action may be served upon any of them personally, or by certified mail or registered mail
upon them or their agent, return receipt requested, with the same full force and effect as if
personally served upon them in New York City. The parties hereto expressly and irrevocably waive
any claim that any such jurisdiction is not a convenient forum for any such suit or proceeding and
any defense or lack of in personam jurisdiction with respect thereto. In the event of any such
action or proceeding, the party prevailing therein shall be entitled to payment from the other
party hereto of its reasonable counsel fees and disbursements.
5. Counterparts. This Agreement may be signed in counterparts.
6. Conflicts. Any term and/or provision herein relating to the calculation of fees
and expenses paid and/or owed to Gilford including, but not limited to, pursuant to the Sale
Agreements, that does and/or could conflict with the Gilford Letter, shall be governed exclusively
by and in accordance with the Gilford Letter.
IN WITNESS WHEREOF, the parties hereto have executed this Fee Payment Agreement as of the date
first written above.
| VIASPACE INC. | ||||
| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| GILFORD SECURITIES INCORPORATED | ||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | President | |||
