Contract
EXHIBIT
4.8
THIS
PURCHASE OPTION HAS BEEN ACQUIRED FOR INVESTMENT. THIS PURCHASE OPTION AND
THE
SHARES ISSUABLE UPON EXERCISE OF THIS PURCHASE OPTION HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR APPLICABLE STATE
SHARES LAWS. THIS PURCHASE OPTION AND THE SHARES ISSUABLE UPON EXERCISE OF
THIS
PURCHASE OPTION MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
ABSENCE
OF SUCH REGISTRATION OR PURSUANT TO AN EXEMPTION THEREFROM UNDER THE ACT
AND
SUCH LAWS, SUPPORTED BY AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO
THE
COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
THIS
PURCHASE OPTION MAY NOT, IN ANY EVENT, BE TRANSFERRED TO ANY PERSON OR ENTITY
THAT IS NOT AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501, PROMULGATED
UNDER THE ACT.
PURCHASE
OPTION
For
the Purchase of
31,250
shares of Common Stock
of
GigaBeam
Corporation
(A
Delaware Corporation)
1. Purchase
Option.
THIS
CERTIFIES THAT, in consideration of $50 and other good and valuable
consideration duly paid by or on behalf of HCFP/Xxxxxxx Securities, LLC
(“Holder”), as registered owner of this Purchase Option, to GigaBeam Corporation
(“Company”), Holder is entitled, at any time or from time to time commencing on
the date hereof (“Commencement Date”) and at or before 5:00 p.m., Eastern
Time, January 28, 2011 (“Expiration Date”), but not thereafter, to subscribe
for, purchase and receive, in whole or in part, up to 31,250 shares (“Shares”)
of the common stock of the Company (“Common Stock”). If the Expiration Date is a
day on which banking institutions are authorized by law to close, then this
Purchase Option may be exercised on the next succeeding day that is not such
a
day in accordance with the terms herein. During the period ending on the
Expiration Date, the Company agrees not to take any action that would terminate
the Purchase Option.
This
Purchase Option is being issued in connection with the issuance and sale
by the
Company of 8% senior convertible promissory notes (“Notes”) and common stock
purchase warrants (“Warrants”) to investors in a private placement under the
terms of a securities purchase agreement of even date herewith (“Securities
Purchase Agreement”) and the offering contemplated thereby for which
HCFP/Xxxxxxx Securities, LLC (“HCFP”) has acted as placement agent (“Private
Placement”).
This
Purchase Option is initially exercisable at a price per Share equal to $8.00;
provided,
however,
that
upon the occurrence of any of the events specified in Section 6 hereof, the
rights granted by this Purchase Option, including the exercise price and
the
number of Shares to be received upon such exercise, shall be adjusted as
therein
specified. The term “Exercise Price” shall mean the initial exercise price or,
if adjustments thereto have been made, the adjusted exercise price to purchase
one Share.
2. Exercise.
2.1 Exercise
Form.
In
order to exercise this Purchase Option, the exercise form attached hereto
must
be duly executed and completed and delivered to the Company, together with
this
Purchase Option and payment of the Exercise Price multiplied by the number
of
Shares for which this Purchase Option is then being exercised (except as
provided in Section 2.3 hereof) in cash or by certified check or official
bank
check for the Shares being purchased. If the subscription rights represented
hereby shall not be exercised at or before 5:00 p.m., Eastern time, on the
Expiration Date, except as otherwise provided in Section 1 hereof, this Purchase
Option shall become null and be void without further force or effect, and
all
rights represented hereby shall cease and expire.
2.2 Legend.
The
Shares purchased under this Purchase Option shall bear the legends contained
on
the Shares issued to investors in the Private Placement. Each certificate
for
Shares purchased under this Purchase Option shall bear a legend substantially
as
follows unless the issuance of such Shares by the Company have been registered
under the Securities Act of 1933, as amended (“Securities Act”):
These
Shares been acquired for investment and has not been registered under the
Securities Act of 1933, as amended, or applicable state securities laws.
The
securities may not be sold, pledged or transferred in the absence of such
registration or an exemption therefrom under said Act and such laws, supported
by an opinion of counsel, reasonably satisfactory to the Company and its
counsel, that such registration is not required.
2.3 Conversion
Right.
2.3.1 Determination
of Amount.
In lieu
of the payment of the Exercise Price multiplied by the number of Shares for
which this Purchase Option is exercisable in the manner required by
Section 2.1, the Holder shall have the right (but not the obligation)
to
convert any exercisable but unexercised portion of this Purchase Option into
Shares (“Conversion Right”) as follows: upon exercise of the Conversion Right,
the Company shall deliver to the Holder (without payment by the Holder of
any of
the Exercise Price in cash) that number of Shares equal to the quotient obtained
by dividing (x) the "Value" (as defined below) of the portion of the Purchase
Option being converted by (y) the Current Market Value (as defined below).
The
"Value" of the portion of the Purchase Option being converted shall equal
the
remainder derived from subtracting (a) (i) the Exercise Price multiplied
by (ii)
the number of Shares underlying the portion of this Purchase Option being
converted from (b) the Current Market Value of a Share multiplied by the
number
of Shares underlying the portion of the Purchase Option being converted.
As used
herein, the term "Current Market Value" per Share at any date means (i) if
the
Common Stock or such other security is not registered under the Shares Exchange
Act of 1934, as amended (“Exchange Act”), (A) the value of the Common Stock or
such other security as determined in good faith by the Board of Directors
and
certified in a board resolution, based on the most recently completed
arm’s-length transaction between the Company and a person other than an
affiliate of the Company or between any two such persons and the closing
of
which occurs on such date or shall have occurred within the six-month period
preceding such date, or (B) if no such transaction shall have occurred on
such
date or within such six-month period, the value of the Common Stock or such
other security as determined in good faith by resolution of the Board of
Directors, based on the best information available, or (ii) if the Common
Stock
or such other security is registered under the Exchange Act, the average
of the
daily closing sale prices of the Common Stock or such other security for
each
trading day during the period commencing 10 trading days before such date
and
ending on the date one day prior to such date; provided,
however,
that if
the closing bid price is not determinable for at least three trading days
in
such period, the “Current Market Price” of the Common Stock or such other
security shall be determined as if the Common Stock or such other security
was
not registered under the Exchange Act.
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2.3.2 Mechanics
of Conversion Right.
The
Conversion Right may be exercised by the Holder on any business day on or
after
the Commencement Date and not later than the Expiration Date, except as
otherwise provided in Section 1 hereof, by delivering to the Company this
Purchase Option with a duly executed exercise form attached hereto with the
conversion section completed exercising the Conversion Right.
3. Transfer.
3.1 General
Restrictions.
On and
after the Commencement Date, the Holder of this Purchase Option may sell,
transfer or assign or hypothecate this Purchase Option or the Shares only
upon
compliance with, or pursuant to exemptions from, applicable securities laws
and
in accordance with Section 3.2 below. In order to make any permitted assignment
of this Purchase Option, the Holder must deliver to the Company the assignment
form attached hereto duly executed and completed both by the Holder and the
transferee as applicable, together with this Purchase Option. The Company
shall
immediately transfer this Purchase Option on the books of the Company and
shall
execute and deliver a new Purchase Option or Purchase Options of like tenor
to
the appropriate assignee(s) expressly evidencing the right to purchase the
aggregate number of Shares purchasable hereunder or such portion of such
number
as shall be contemplated by any such assignment.
3.2 Restrictions
Imposed by the Securities Act.
This
Purchase Option and the Shares underlying this Purchase Option shall not
be
transferred unless and until (i) the
Company has received the opinion of counsel for the Holder that this Purchase
Option or the Shares, as the case may be, may be transferred pursuant to
an
exemption from registration under the Securities Act and applicable state
law,
the availability of which is established to the reasonable satisfaction of
the
Company, or (ii) a
registration statement relating to such Purchase Option or Shares, as the
case
may be, has been filed by the Company and declared effective by the Shares
and
Exchange Commission (the "SEC”) and remains effective and current and is in
compliance with applicable state law.
4. New
Purchase Options to be Issued.
4.1 Partial
Exercise or Transfer.
This
Purchase Option may be exercised or assigned in whole or in part. In the
event
of the exercise or assignment hereof in part only, upon surrender of this
Purchase Option for cancellation, together with the duly executed exercise
or
assignment form and funds sufficient to pay any Exercise Price, the Company
shall cause to be delivered to the Holder without charge a new Purchase Option
of like tenor to this Purchase Option in the name of the Holder evidencing
the
right of the Holder to purchase the aggregate number of Shares purchasable
hereunder as to which this Purchase Option has not been exercised or
assigned.
4.2 Lost
Certificate.
Upon
receipt by the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Purchase Option and of reasonably satisfactory
indemnification, the Company shall execute and deliver a new Purchase Option
of
like tenor and date. Any such new Purchase Option executed and delivered
as a
result of such loss, theft, mutilation or destruction shall constitute a
substitute contractual obligation on the part of the Company.
5. Registration
Obligation.
5.1 The
Holder of this Purchase Option shall be entitled to the same registration
rights
with respect to the resale of the Shares underlying this Purchase Option
(the
“Registrable Shares”) as the Company has granted to investors in the Private
Placement with respect to the Shares underlying the Warrants, as provided
in the
Securities Purchase Agreement including, without limitation and subject to
the
limitations and obligations set forth therein, the mandatory and piggyback
registration obligations set forth therein; provided,
however,
that
the Holder shall not be entitled to any of the delinquent filing and
effectiveness penalties afforded such investors thereunder.
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5.2 Successors
and Assigns.
The
registration rights granted to the Holders inure to the benefit of all the
Holders’ successors, heirs, pledges and permitted assignees.
6. Adjustments.
6.1 Adjustment
of Common Stock.
6.1.1 Stock
Dividends - Recapitalization, Reclassification, Split-Ups.
If
after the date hereof, and subject to the provisions of Section 6.2 below,
the
number of outstanding shares of Common Stock is increased by a stock dividend
payable in shares of Common Stock or by a split-up, recapitalization or
reclassification of shares of Common Stock or other similar event, then,
on the
effective date thereof, the number of Shares issuable upon exercise of the
Purchase Option shall be increased in proportion to such increase in outstanding
shares of Common Stock.
6.1.2 Aggregation
of Shares.
If
after the date hereof, and subject to the provisions of Section 6.2, the
number
of outstanding shares of Common Stock is decreased by a consolidation,
combination or reclassification of shares of Common Stock or other similar
event, then, upon the effective date thereof, the number of Shares issuable
upon
exercise of the Purchase Option shall be decreased in proportion to such
decrease in outstanding shares of Common Stock.
6.1.3 Adjustments
in Exercise Price.
Whenever the number of Shares purchasable upon the exercise of this Purchase
Option is adjusted, as provided in this Section 6.1, the Exercise Price shall
be
adjusted (to the nearest cent) by multiplying such Exercise Price immediately
prior to such adjustment by a fraction (x) the numerator of which shall be
the
number of Shares purchasable upon the exercise of this Purchase Option
immediately prior to such adjustment, and (y) the denominator of which shall
be
the number of Shares so purchasable immediately thereafter.
6.1.4 Replacement
of Shares upon Reorganization, etc.
In case
of any reclassification or reorganization of the outstanding shares of Common
Stock other than a change covered by Section 6.1.1 hereof or which solely
affects the par value of such shares of Common Stock, or in the case of any
merger or consolidation of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the continuing
corporation and which does not result in any reclassification or reorganization
of the outstanding shares of Common Stock), or in the case of any sale or
conveyance to another corporation or entity of the property of the Company
as an
entirety or substantially as an entirety in connection with which the Company
is
dissolved, the Holder of this Purchase Option shall have the right thereafter
(until the expiration of the right of exercise of this Purchase Option) to
receive upon the exercise hereof, for the same aggregate Exercise Price payable
hereunder immediately prior to such event, the kind and amount of shares
of
stock or other securities or property (including cash) receivable upon such
reclassification, reorganization, merger or consolidation, or upon a dissolution
following any such sale or other transfer, by a Holder of the number of Shares
issuable upon exercise of this Purchase Option immediately prior to such
event;
and if any reclassification also results in a change in shares of Common
Stock
covered by Section 6.1.1, then such adjustment shall be made pursuant to
Sections 6.1.1, 6.1.3 and this Section 6.1.4. The provisions of this Section
6.1.4 shall similarly apply to successive reclassifications, reorganizations,
mergers or consolidations, sales or other transfers.
6.1.5 Changes
in Form of Purchase Option.
This
form of Purchase Option need not be changed because of any change pursuant
to
this Section, and Purchase Options issued after such change may state the
same
Exercise Price and the same number of Shares as are stated in the Purchase
Options initially issued pursuant to this Agreement. The acceptance by any
Holder of the issuance of new Purchase Options reflecting a required or
permissive change shall not be deemed to waive any rights to a prior adjustment
or the computation thereof.
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6.2 Elimination
of Fractional Interests.
The
Company shall not be required to issue certificates representing fractions
of
shares of Common Stock upon the exercise or transfer of the Purchase Option,
nor
shall it be required to issue scrip or pay cash in lieu of any fractional
interests, it being the intent of the parties that all fractional interests
shall be eliminated by rounding any fraction up or down to the nearest whole
number of shares of Common Stock.
7. Reservation
and Listing.
The
Company shall at all times reserve and keep available out of its authorized
shares of Common Stock, solely for the purpose of issuance upon exercise
of this
Purchase Option, the number of Shares issuable upon exercise of this Purchase
Option. The Company covenants and agrees that, upon exercise of the Purchase
Options and payment of the Exercise Price therefor, all Shares issuable upon
the
exercise of this Purchase Option shall be duly and validly issued, fully
paid
and non-assessable and not subject to preemptive rights of any stockholder.
As
long as the Purchase Options shall be outstanding, the Company shall use
its
best efforts to cause all Shares underlying the Purchase Option to be listed
(subject to official notice of issuance) on all securities exchanges (or,
if
applicable, on Nasdaq or the OTC Bulletin Board) on which the Common Stock
is
then listed and/or quoted.
8. Notices
of Record Date.
Nothing
herein shall be construed as conferring upon the Holders the right to vote
or
consent as a stockholder for the election of directors or any other matter,
or
as having any right whatsoever as a stockholder of the Company. In
case:
(a) the
Company shall take a record of the holders of its Common Stock (and/or other
stock or securities at the time deliverable upon the exercise of this Purchase
Option) for the purpose of entitling or enabling them to receive any dividend
or
other distribution, or to receive any right to subscribe for or purchase
any
shares of any class or any other securities, or to receive any other right,
or
(b) of
any
capital reorganization of the Company, any reclassification of the capital
stock
of the Company, any consolidation or merger of the Company with or into another
corporation (other than a consolidation or merger in which the Company is
the
surviving entity), or any transfer of all or substantially all of the assets
of
the Company, or
(c) of
the
voluntary or involuntary dissolution, liquidation or winding-up of the
Company,
then,
and
in each such case, the Company will deliver or cause to be delivered to the
Holder a notice specifying, as the case may be, (i) the date on which a record
is to be taken for the purpose of such dividend, distribution or right, and
stating the amount and character of such dividend, distribution or right,
or
(ii) the effective date on which such reorganization, reclassification,
consolidation, merger, transfer, dissolution, liquidation or winding-up is
to
take place, and the time, if any is to be fixed, as of which the holders
of
record of Common Stock (or such other stock or securities at the time
deliverable upon the exercise of this Purchase Option) shall be entitled
to
exchange their shares of Common Stock for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
transfer, dissolution, liquidation or winding-up. Such notice shall be mailed
at
least ten (10) days (or such lesser number of days as may be practicable
(but in
no event less than five business days) based on the date on
which
the Board of Directors acts to set such record date or transfer book closing)
prior to the record date or effective date for the event specified in such
notice, provided that the failure to mail such notice shall not affect the
legality or validity of any such action.
8.1 Transmittal
of Notices.
All
notices, requests, consents and other communi-cations under this Purchase
Option
shall be in writing and shall be deemed to have been duly made on the date
of
delivery if delivered personally, by courier, by facsimile or sent by overnight
courier service (such as federal express), with acknowledgment of receipt
to the
party to whom notice is given, or on the fifth day after mailing if mailed
to
the party to whom notice is to be given, by registered or certified mail,
return
receipt requested, postage prepaid and properly addressed as follows:
(i) if
to the
registered Holder of the Purchase Option, to the address of such Holder as
shown
on the books of the Company, or (ii) if
to the
Company, to its principal executive office, attention: Chief Financial
Officer.
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9. Miscellaneous.
9.1 Amendments.
The
Company and HCFP may from time to time supplement or amend this Purchase
Option
without the approval of any of the Holders in order to cure any ambiguity,
to
correct or supplement any provision contained herein which may be defective
or
inconsistent with any other provisions herein, or to make any other provisions
in regard to matters or questions arising hereunder that the Company and
HCFP
may deem necessary or desirable and that the Company and HCFP deem shall
not
adversely affect the interest of the Holders. All other modifications or
amendments shall require the written con-sent of the party against whom
enforcement of the modification or amendment is sought.
9.2 Headings.
The
headings contained herein are for the sole purpose of convenience of reference,
and shall not in any way limit or affect the meaning or interpretation of
any of
the terms or provisions of this Purchase Option.
9.3 Entire
Agreement.
This
Purchase Option (together with the registration rights provisions in the
Subscription Agreement referred to in this Purchase Option) constitutes the
entire agreement of the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and under-standings of the parties,
oral and written, with respect to the subject matter hereof.
9.4 Binding
Effect.
This
Purchase Option shall inure solely to the benefit of and shall be binding
upon,
the Holder and the Company and their respective successors, legal
representatives and assigns, and no other person shall have or be construed
to
have any legal or equitable right, remedy or claim under or in respect of
or by
virtue of this Purchase Option or any provisions herein contained.
9.5 Governing
Law; Submission to Jurisdiction.
This
Purchase Option shall be governed by and construed and enforced in accor-dance
with the laws of the State of New York, without giving effect to conflict
of
laws. Each of the Company and the Holder hereby agrees that any action,
proceeding or claim against it arising out of, or relating in any way to
this
Purchase Option shall be brought and enforced in the courts of the State
of New
York or of the United States of America for the Southern District of New
York,
and irrevocably submits to such jurisdiction, which jurisdiction shall be
exclusive. Each of the Company and the Holder hereby waives any objection
to
such exclusive jurisdiction and that such courts represent an inconvenient
forum. Any process or summons to be served upon the Company may be served
by
transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at its principal business offices.
Such mailing shall be deemed personal service and shall be legal and binding
upon the Company in any action, proceeding or claim. The prevailing party(ies)
in any such action shall be entitled to recover from the other party(ies)
all of
its reasonable attorneys' fees and expenses relating to such action or
proceeding and/or incurred in connection with the preparation therefor.
9.6 Waiver,
Etc.
The
failure of the Company or the Holder to at any time enforce any of the
provisions of this Purchase Option shall not be deemed or construed to be
a
waiver of any such provision, nor to in any way affect the validity of this
Purchase Option or any provision hereof or the right of the Company or any
Holder to thereafter enforce each and every provision of this Purchase Option.
No waiver of any breach, non-compliance or non-fulfillment of any of the
provisions of this Purchase Option shall be effective unless set forth in
a
written instrument executed by the party or parties against whom or which
enforcement of such waiver is sought; and no waiver of any such breach,
non-compliance or non-fulfillment shall be construed or deemed to be a waiver
of
any other or subsequent breach, non-compliance or non-fulfillment.
9.7 Exchange
Agreement.
As a
condition of the Holder’s receipt and acceptance of this Purchase Option, Xxxxxx
agrees that, at any time prior to the complete exercise of this Purchase
Option
by Holder, if the Company and HCFP enter into an agreement (“Exchange
Agreement”) pursuant to which they agree that all outstanding Purchase Options
will be exchanged for securities or cash or a combination of both, then Holder
shall agree to such exchange and become a party to the Exchange
Agreement.
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IN
WITNESS WHEREOF, the Company has caused this Purchase Option to be signed
by its
duly authorized officer as of the 28th
day of
January, 2005.
| GIGABEAM CORPORATION | ||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxxxxx | |
|
Name: Xxxxx X. Xxxxxxxxx |
||
| Title: Chairman of the Board and Chief Executive Officer | ||
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Notice
of Exercise
To
Be
Executed by the Registered Holder
In
Order
to Exercise this Purchase Option
The
undersigned registered Holder hereby irrevocably elects to exercise the attached
Purchase Option and to purchase ___ shares of Common Stock of GigaBeam
Corporation and hereby makes payment of $________ (at the rate of $____ per
Share) in payment of the Exercise Price pursuant thereto. Please issue the
securities comprising the shares as to which this Purchase Option is exercised
in accordance with the instructions given below. The undersigned acknowledges
that upon exercise of this Purchase Option, the Company will issue certificates
evidencing the shares.
or
The
undersigned Registered Holder hereby irrevocably elects to exercise the attached
Purchase Option and to purchase ___ shares of GigaBeam Corporation by surrender
of the unexercised portion of the attached Purchase Option. Please issue
the
securities comprising the shares as to which this Purchase Option is exercised
in accordance with the instructions given below.
PLEASE
ISSUE CERTIFICATES AS FOLLOWS:
_____________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
(please
print or type name and address)
and
be
delivered to
(please print or type name and address)
and
if
such number of Shares exercised shall not be all the Shares evidenced by
the
attached Purchase Option, that a new Purchase Option for the balance of such
Purchase Option be registered in the name of, and delivered to, the registered
Holder at the address stated below.
Dated:______________________
______________________________________
(Signature
of Registered Holder)
______________________________________
______________________________________
(Address)
______________________________________
(Taxpayer
Identification Number)
______________________________________
Signature
Guaranteed
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ASSIGNMENT
FORM
To
be
executed by the Registered Holder
In
order
to Assign Purchase Option
FOR
VALUE
RECEIVED,____________________________________ hereby sell, assigns and transfer
unto
_____________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
(please
print or type name and address)
______________________
of the Purchase Options represented by the attached instrument, and hereby
irrevocably constitutes and appoints ________________________ Attorney to
transfer these Purchase Options on the books of the Company, with full power
of
substitution in the premises.
Dated:________________
X______________________________
(Signature
of Registered Holder)
_______________________________
(Signature
Guaranteed)
THE
SIGNATURE ON THE ASSIGNMENT OR THE PURCHASE FORM MUST CORRESPOND TO THE NAME
AS
WRITTEN UPON THE FACE OF THIS PURCHASE OPTION CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE
GUARANTEED BY A COMMERCIAL BANK OR TRUST COMPANY OR A MEMBER FIRM OF THE
AMERICAN STOCK EXCHANGE, NEW YORK STOCK EXCHANGE, PACIFIC STOCK EXCHANGE
OR
MIDWEST STOCK EXCHANGE.
CERTIFICATION
OF STATUS OF TRANSFEREE
To
be executed by the Transferee of this Purchase Option
The
undersigned transferee hereby certifies to the registered Holder and to GigaBeam
Corporation that the transferee is an “accredited investor” within the meaning
of Rule 501 of Regulation D promulgated under the Securities Act of 1933,
as
amended.
Dated:________________ X__________________________________
(Signature
of Transferee)
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