EX-4.8 10 v030917_ex4-8.htm

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

130,219 shares of Common Stock

of

GigaBeam Corporation

(A Delaware Corporation)
 
1.             Purchase Option.
 
THIS CERTIFIES THAT, in consideration of $10 and other good and valuable consideration duly paid by or on behalf of HCFP/Brenner Securities, LLC (the “Holder”), as registered owner of this Purchase Option, to GigaBeam Corporation (the “Company”), Holder is entitled, at any time or from time to time commencing on the date hereof (the “Commencement Date”) and at or before 5:00 p.m., Eastern Time, November 7, 2010 (the “Expiration Date”), but not thereafter, to subscribe for, purchase and receive, in whole or in part, up to 130,219 shares (the “Shares”) of the common stock of the Company (the “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 Series B Convertible Preferred Stock (the “Series B Preferred Stock”) 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/Brenner Securities, LLC (“HCFP”) has acted as placement agent (“Private Placement”).
 
This Purchase Option is initially exercisable at a price per Share equal to $7.9827; 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 have been acquired for investment and have 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 (ithe 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 (iia 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.
 
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.
 
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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.
 
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.
 
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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: (iif to the registered Holder of the Purchase Option, to the address of such Holder as shown on the books of the Company, or (iiif 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 consent 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 succes-sors, 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 exclu-sive. 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, Holder 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 7th day of November, 2005.
 
     
  GIGABEAM CORPORATION
 
 
 
 
 
 
  By:   /s/ Douglas G. Lockie
 
Name: Douglas G. Lockie
  Title: President and Chief Technology 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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