Strategic Alliance Agreement - ThinKom Solutions Inc. and GigaBeam Corp.
STRATEGIC ALLIANCE AGREEMENT
This Strategic Alliance Agreement (the "Agreement") is entered into as
of the 5th day of January 2004 ("Effective Date"), by and between ThinKom
Solutions Inc., a California Corporation ("ThinKom"), and Gigabeam Corporation,
a Delaware Corporation ("Gigabeam").
RECITALS
WHEREAS, Gigabeam and ThinKom wish to enter into a strategic alliance
to enable Gigabeam to design, manufacture and market a commercial point-to-point
terrestrial wireless communications system (the "Product") utilizing a frequency
range of 71 GHz through 76 GHz and 81GHz through 86 GHz which incorporate
ThinKom's antenna component technologies that lead the market in performance and
are the most cost effective to produce in the marketplace (the "Antenna
Module"); and
WHEREAS, ThinKom will produce for Gigabeam Antenna Module research and
development, and Antenna Modules to be incorporated into Gigabeam's Product.
AGREEMENT
NOW, THEREFORE, the parties agree as follows:
1. Responsibilities of Parties
1.1 Gigabeam
Gigabeam shall perform the following duties during the term of
this Agreement:
1.1.1 Designate a Chief Technical Officer ("CTO") and Vice
President or Director of Engineering to be the
program manager to interface with ThinKom for the
Antenna Module.
1.1.2 Provide a Antenna Module Plan to be mutually agreed
and attached hereto as Exhibit A which shall be
amended in the future to accommodate product design
changes and as new products are developed.
1.1.3 Provide Antenna Module design schematics to be
mutually agreed and attached hereto as Exhibit B
which shall be amended in the future to accommodate
product design changes and as new products are
developed.
1.1.4 Provide Antenna Module Description and Minimum
Performance Specifications to be mutually agreed and
attached hereto as Exhibit C which shall be amended
in the future to accommodate product design changes
and as new products are developed.
Page 1 of 17
<PAGE>
1.1.5 Place Purchase Lot Orders for Antenna Modules with
ThinKom including a commitment to a Minimum Purchase
Lot order as specified in Exhibit D attached hereto
with down payments of XXXXX percent (XXXXX%) to be
made by Gigabeam prior to ThinKom's start of Antenna
Module product development or manufacturing
(estimated to be at least XXXXX but preferably XXXXX
prior to delivery by ThinKom to Gigabeam of the first
Purchase Lot Orders with this period to be reduced to
XXXXX for subsequent repeat Purchase Lot Orders of
previously developed Antenna Module products).
1.1.6 Pay ThinKom a License Fee as specified in Section 10.
1.1.7 Pay ThinKom a Antenna Manufacturing Fee as specified
in Section 10 upon cessation of payment of the
License Fee upon the occurrence of the Acquisition
Event specified in Section 10.
1.2 ThinKom
ThinKom shall perform the following duties, on a work-for-hire
basis, during the term of this Agreement:
1.2.1 Perform Antenna Module product development as more
fully described herein. ThinKom will designate a
Program manager for Gigabeam's representatives to
interface with for the design and development program
and if appropriate a production manager for
Gigabeam's representative to interface with for
manufacturing operations.
1.2.2 Assist and provide facilities and support as
described herein for the development, design,
manufacture and testing of Antenna Modules. This will
include access to ThinKom's subcontractors by
Gigabeam, including the manufacturing subcontractors.
1.2.3 Perform the work specified in Exhibit A hereto
(Antenna Module Plan), and Exhibit B hereto (the
Schematics), and to meet the provisions as outlined
in Exhibit C attached hereto (Description and Minimum
Specifications).
1.2.4 Perform manufacturing of the Antenna Modules to meet
Purchase Lot commitments by Gigabeam including the
Minimum Purchase Lot commitments pursuant to Section
1.1.5.
1.2.5 Team where desirable or necessary with other third
party companies identified by Gigabeam to improve the
design, performance, manufacturability and reduce the
cost of the Antenna Modules and overall Gigabeam
Product cost.
Page 2 of 17
<PAGE>
1.2.6 Perform testing for quality control and debugging as
necessary and appropriate of any Antenna Modules
prior to assembly, delivery to Gigabeam or returned
for service.
1.2.7 Provide appropriate reports, drawings, source codes,
reviews and updates of the project schedule, actual
costs incurred, commitments to third parties, raw
material inventories, work in process inventories,
finished good inventories and budget through
completion of the Program Plan on a bi-weekly basis
as such material becomes available.
2. Financing Required Prior to Commencement Of Work
Commencement of work by ThinKom, payments to ThinKom under the Program
Plan and any other payment by Gigabeam is subject to the successful
close of financing by Gigabeam. If financing is not obtained by
Gigabeam, this Agreement shall terminate without liability to either
party pursuant to Section 4.b. below.
3. Payments
3.1 Gigabeam shall pay ThinKom for amounts due for Purchase Lots
including down payments pursuant to Section 1.1.5 and Section
11, License Fees pursuant to Section 1.1.6 and Section 10 and
Antenna Manufacturing Fees pursuant to Section 1.1.7 and
Section 10.
3.2 Gigabeam shall pay ThinKom additional amounts for any
additional work and items to be mutually agreed and budgeted
in advance and approved in writing utilizing Purchase Orders
issued by Gigabeam or by Amendments to this Agreement.
4. Term and Termination.
This Agreement shall be effective as of the Effective Date and shall
continue for a minimum five year term from the date hereof and will
automatically extend on a year by year basis thereafter provided
Gigabeam satisfies its Minimum Purchase Lot commitments, payments of
License Fees and Payments of Manufacturing Fees as set forth in
Sections 1.1.5, 1.1.6, 1.1.7, 10 and Exhibit D with Minimum Purchase
Lot commitments for each year of extension of the Agreement to be the
same as the minimum purchase commitment for the preceding year or as
may be mutually agreed provided, however, that the Agreement may be
terminated for any of the following reasons:
a.) Nonperformance by either party of the terms and conditions of this
Agreement and failure to cure within 30 days of written notice
from the other party;
b.) Failure to close on financing by Gigabeam within 120 days from the
Effective Date hereof;
Page 3 of 17
<PAGE>
c.) Insolvency, bankruptcy or reorganization under bankruptcy laws, or
assignment for the benefit of creditors of either party; or
d.) Mutual agreement of both parties to terminate.
The termination of this Agreement does not suspend the obligation of
the parties with respect to confidentiality and proprietary
information.
5. License Agreement Between Gigabeam and ThinKom
Gigabeam and ThinKom will agree to cross license Technology on the
terms described below, and such other terms and conditions as may be
mutually agreed upon by the parties in writing.
5.1. License Grant to Gigabeam: ThinKom will grant to Gigabeam a
worldwide, exclusive, perpetual, right and license to use,
market, distribute, sell and otherwise commercialize the
Technology as developed by ThinKom within the Radio Frequency
Communications field (the "Licensed Field"). For purposes of
this Agreement, "Technology" means all component technologies
and combinations thereof into an Antenna Module and any
improvements thereto within the scope of this Agreement.
"Radio Frequency" or "RF" means any frequency that is or can
be used for commercial point-to-point wireless communications
in the frequency range of 71 GHz through 76 GHZ, 81GHz through
86 GHz. "Communications" shall include transmissions of any
form of simple keying or modulated digital signals including,
voice, data, video and holograms for terrestrial applications.
5.2 License Grant to ThinKom: Gigabeam will grant to ThinKom a
worldwide, exclusive, perpetual, right and license to use,
market, distribute, sell and otherwise commercialize the
Technology outside of the Licensed Field developed under the
scope of this Agreement and owned by Gigabeam or jointly
developed and owned by Gigabeam and ThinKom.
5.3 Ownership of Technology and Intellectual Property: ThinKom
will remain the owner of any Technology previously developed
by ThinKom. Gigabeam will remain the owner of any Technology
previously developed by Gigabeam. Any enhancements or
improvements to the Technology ("Improvements") reduced to
practice or writing by one or more employees, consultants or
sublicensees of Gigabeam will be owned by Gigabeam. Any
Improvements reduced to practice or writing by one or more
employees, consultants or sublicensees of ThinKom will be
owned by ThinKom. Any Improvements reduced to practice or
writing jointly by one or more employees, consultants or
sublicensees of Gigabeam and ThinKom, will be owned jointly by
Gigabeam and ThinKom.
5.4 Maintenance and Enforcement of Intellectual Property Rights:
ThinKom will be responsible for and will, at its expense
prepare, file, prosecute and maintain the patents and other
intellectual property rights relating to the Technology and
any Improvements which it owns which are developed under the
scope of this Agreement. Gigabeam will be responsible for and
will, at its expense prepare, file, prosecute and maintain the
patents and other intellectual property rights relating to the
Technology and any Improvements which it owns or jointly owns
with ThinKom which are developed under the scope of this
Agreement.
Page 4 of 17
<PAGE>
5.5 Technology Escrow. ThinKom agrees during the term of this
Agreement to create and maintain current copies of any
technical drawings or other technical documents relating to
the design and specifications of the Antenna Module developed
under this Agreement (such copies the "IP Materials"). Within
90 days after the Effective Date, ThinKom will enter into
binding contractual arrangement with a commercial escrow agent
mutually agreeable to the Parties (the "Escrow Agent")
according to which the Escrow Agent will agree (i) to hold and
safeguard the escrowed IP Materials during the term of this
Agreement, and (ii) to release a copy of such escrowed IP
Materials to Gigabeam if and when ThinKom enters into
bankruptcy, liquidates or winds up its business during the
term of this Agreement. Gigabeam acknowledges that the Escrow
Agent will not be authorized to deliver or otherwise provide
access to the escrowed IP Materials other than as described
above.
Subject to the delivery to Gigabeam of the escrowed IP
Materials in accordance with this Section 5.5, ThinKom hereby
grants to Gigabeam a non-exclusive, worldwide, royalty-bearing
right and license under any Intellectual Property Rights of
ThinKom to use such escrowed IP Materials for any purpose in
the Field of Exclusivity if provided to Gigabeam as
contemplated in this Section 5.5. Such license will continue,
notwithstanding any termination of this Agreement, until the
date upon which the then-current four year initial term or one
year renewal terms under Section 4, as the case may be, would
have expired.
In consideration for the foregoing license grant, for so long
as Gigabeam makes use of ThinKom's Antenna Module product
designs or any other form of ThinKom IP, Gigabeam agrees to
pay to ThinKom, any License Fees normally payable under this
Agreement as if ThinKom had not wound up or liquidated its
business but with such Fees payable to be net of any
incremental costs incurred by Gigabeam required to provide for
a continued supply of Antenna Modules to Gigabeam. GigaBeam
shall pay such License Fees, net of any incremental costs, on
a quarterly basis in arrears, which payments shall each be due
within XXXXX following the end of the XXXXX.
6. Confidentiality.
6.1 Obligation. Each party agrees to treat all non-public written
and oral information communicated to it by the other party in
connection with the activities contemplated by this Agreement
("Confidential Information"), including the existence or
nature of their discussions, as confidential, and neither
party will use or disclose such Confidential Information for
purposes other than the activities contemplated by this
Agreement; provided however that Gigabeam and ThinKom may
disclose such Confidential Information for the purposes of
obtaining financing.
Page 5 of 17
<PAGE>
6.2 Exceptions. Confidential Information will not include
information that (i) the receiving party independently
developed (as shown by documentary evidence) or obtained from
a source not under an obligation of confidentiality to the
disclosing party, (ii) is or becomes publicly available
through no act or omission of the receiving party, (iii) the
receiving party receives the prior written consent of the
disclosing party to disclose, or (iv) the receiving party is
required by law to disclose; provided the receiving party
promptly notifies the disclosing party and cooperates with the
disclosing party to protect the confidentiality of the
Confidential Information before any tribunal or governmental
agency; provided that only the specific Confidential
Information that meets the exclusion shall be excluded and not
any other Confidential Information that happens to appear in
proximity to such excluded portion (for example, a portion of
a document may be excluded without affecting the confidential
nature of those portions that do not themselves qualify for
exclusion). The burden of proving these exceptions shall rest
with the receiving party.
6.3 Termination of Agreement. Upon termination of this Agreement,
at the request of the disclosing party, the receiving party
will return all copies of the other party's Confidential
Information, or certify to the other party in writing that all
copies of the other party's Confidential Information have been
destroyed. The parties agree that any breach or threatened
breach of this Section 6 by a receiving party would cause not
only financial harm, but irreparable harm to the disclosing
party and that money damages will not provide an adequate
remedy. In the event of a breach or threatened breach of this
Section 6 by a receiving party, the disclosing party shall, in
addition to any other rights and remedies it may have, be
entitled to an injunction (without the necessity of posting
any bond or surety) restraining the receiving party from
disclosing or using, in whole or in part, any Confidential
Information.
7. Limitation of Liability.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF
PROFITS OR OTHER INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR
CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE
TO THE OTHER FOR CLAIMS OR DEMANDS BROUGHT AGAINST THE OTHER PARTY BY A
THIRD PARTY UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
GIGABEAM'S LIABILITY TO THINKOM, IN THE EVENT OF TERMINATION PURSUANT
TO SECTION 4 AND PROVIDED THINKOM IS NOT IN BREACH OF THIS AGREEMENT,
SHALL INCLUDE BUT NOT EXCEED THE AMOUNT DUE AND OWING UNDER THIS
AGREEMENT TO THINKOM BY GIGABEAM FOR WORK PERFORMED AND DELIVERED BY
THINKOM TO GIGABEAM, INVENTORIES PURCHASED BY THINKOM, WORK IN PROCESS,
FINISHED ANTENNA MODULES AND COMMITMENTS TO THIRD PARTIES BY THINKOM
WHICH WERE MADE KNOWN TO GIGABEAM IN WRITING PRIOR TO SUCH COMMITMENTS
BY THINKOM AND COVERED BY A PURCHASE ORDER LOT COMMITMENT BY GIGABEAM
Page 6 of 17
<PAGE>
8. Exclusivity.
ThinKom and Gigabeam agree that during the term of this Agreement that
ThinKom will not compete by offering similar Product to be offered by
GigaBeam and GigaBeam will not compete by offering antenna products
developed and available for sale by ThinKom and neither party will not,
nor will any affiliate of either party, nor will either party or their
respective stockholders, directors, officers, or other representatives
negotiate or pursue any other transaction or arrangement that
contemplates a relationship with any third party that will be in
conflict with the Licensed Field.
9. Cost Reduction and Pricing of Antenna Modules Sold to Gigabeam
ThinKom shall use its best and reasonable efforts to continue to reduce
the cost of Antenna Modules sold to Gigabeam. Where and when
appropriate, ThinKom shall jointly work with Gigabeam towards such cost
reductions including but not limited to expenditure on tooling and by
other means. Pricing of Antenna Modules sold to Gigabeam shall be at
XXXXX all of which shall be paid for by Gigabeam through its Purchase
Lot orders pursuant to Sections 1.1.5, Section 11 and 3.1 and by
separate payments pursuant to Section 3.2.
10. License Fee and Antenna Manufacturing Fee
Gigabeam shall pay to ThinKom a License Fee as specified in Section
1.1.6 subject to an Acquisition Event upon the occurrence of which the
License Fee will cease for all calendar quarters subsequent to the
Acquisition Event and in lieu thereof an Antenna Manufacturing Fee will
be paid to ThinKom pursuant to Section 1.1.7 commencing immediately
after the occurrence of the Acquisition Event. For the purpose of this
Agreement, Acquisition Event shall be a change in ownership of at least
seventy five percent (75%) of the Outstanding voting Stock of Gigabeam.
The License Fee is to be an amount equivalent to XXXXX percent (XXXXX%)
of Gigabeam's Revenue net of shipping costs, taxes, installation costs
and other costs, including reimbursable costs, directly associated with
generation of revenue. Revenue shall include sales of Gigabeam's
Products incorporating ThinKom's antennas and any service revenue
generated from maintenance and service of such Products. Payment of a
License Fee to ThinKom will commence upon generation of Revenue to
Gigabeam from sales of Gigabeam's Product incorporating ThinKom's
Antenna Modules. The Antenna Manufacturing Fee is to be an amount of
XXXXX times XXXXX (XXXXX X (XXXXX) to manufacture each Antenna Module.
The License Fee will be payable XXXXX with the License Fee due XXXXX
after the close of XXXXX. The Antenna Manufacturing Fee is payable
XXXXX within XXXXX following the end of XXXXX in which Antenna Modules
are shipped to Gigabeam or Gigabeam's designated location or facility
following the occurrence or closing by the parties involved in the
Acquisition Event.
Page 7 of 17
<PAGE>
11. Purchase Lot Orders
Gigabeam shall place Purchase Lot Orders with ThinKom for Antenna
Modules for Gigabeam's Product pursuant to Section 1.1.5. Gigabeam
commits during the Term of this Agreement to place Minimum Purchase Lot
Orders pursuant to Section 1.1.5 and as specified in Exhibit D. Each
Purchase Lot Order shall cover XXXXX for the production of the Antenna
Modules. Gigabeam shall place Purchase Lot Orders for new Antenna
Modules at least six months in advance but preferably eight months in
advance of expected delivery to Gigabeam or Gigabeam's designated
facility. After commencement of production of any Antenna Module
design, Gigabeam shall place subsequent Purchase Lot Orders at least
three months in advance. Upon placement of Purchase Lot Orders,
Gigabeam shall pay to ThinKom a down payment of XXXXX% of each Purchase
Lot Order. Remaining payments (less XXXXX%) are due XXXXX after receipt
by Gigabeam of each regular shipment from ThinKom of portions of the
total lot order quantity.
Gigabeam will cooperate with ThinKom to insure that ThinKom will be
cash flow positive after taking into account its costs and expenditures
relating to the performance of this Agreement and as compared to
License Fees, Manufacturing Fees, down payments and remaining payments
on Purchase Lot Orders received by ThinKom from Gigabeam. In the event
that ThinKom's cash flow is not positive, Gigabeam will agree to
restructure the amounts of and timing of its payments relating to
Purchase Lot Orders.
12. Equity Incentives
The parties have established performance incentives whereby each party
will issue to the other common stock.
Gigabeam shall issue to ThinKom Common Stock in Gigabeam in an amount
representing five percent (5%) of the Stock Outstanding on a fully
diluted basis (including this proposed Stock Grant) of Gigabeam within
fourteen days of the execution of this Agreement. The Price per Share
of the Stock shall be the same price as for the founders of Gigabeam.
ThinKom shall issue to Gigabeam Common Stock in ThinKom prior to the
end of each calendar year with the amount of Stock to be issued to be
calculated by dividing the amount of License Fee paid to ThinKom in the
same year by the price per share of the ThinKom Common Stock. The Price
per Share of ThinKom Common Stock shall be based upon outside
investments in ThinKom or by mutual agreement between ThinKom and
Gigabeam management. If ThinKom and Gigabeam management cannot mutually
agree on a price per share, then both parties shall mutually agree on a
third party agent to set the market price per share of the Stock.
Gigabeam shall pay any costs associated with the valuation of ThinKom's
Common Stock. The Price per Share of Thinkom Common Stock for the
purpose of this award shall be set no more than once per year and as
close as practical to the date of award of the Stock. Under this
program, Gigabeam shall acquire no more than five percent (5%) of
ThinKom's Common Stock with the calculation to be based upon the amount
of Stock outstanding on a fully diluted basis (including this proposed
Stock amount) as at execution of this Agreement.
Page 8 of 17
<PAGE>
All stocks and stock options shall be subject to the provisions of the
applicable corporate documents, including, but not limited to, the
appropriate shareholder agreements.
13. Advance of Working Capital
Gigabeam shall pay to ThinKom an amount of $250,000 (two hundred and
fifty thousand dollars) which is to be an Advance of Working Capital
with payment to be made within 30 days (thirty days) of close of
GigaBeam's funding by outside investors of at least $4 million (four
million dollars). This Advance of Working Capital will credited against
amounts payable by Gigabeam to ThinKom within or following the last
calendar quarter of year 2006.
14. Audit
Each party shall have the right to audit the books and accounts of the
other party for the sole purposes so that ThinKom can establish that
the License Fees pursuant to Section 10 as paid by Gigabeam are the
correct amounts and Gigabeam can establish that the costs pursuant to
Section 9 are the correct amounts.
15. Miscellaneous
15.1 Entire Agreement. This Agreement represents the entire
Agreement between the parties and supersedes any previous
understandings, whether written or oral, and may not be
amended, terminated, waived or rescinded except pursuant to a
written agreement duly executed by the parties.
15.2 Trademarks, Trade Names and Copyright. Except as expressly
provided herein, this Agreement does not give either party any
ownership rights or interest in the other party's trade name,
trademarks or copyrights.
15.3 Waiver. No failure or delay by either party in exercising any
of its rights or remedies hereunder will operate as a waiver
thereof, nor will any single or partial exercise of any such
right or remedy preclude any other or further exercise thereof
or the exercise of any other right or remedy. The rights and
remedies of the party's provided in this Agreement are
cumulative and not exclusive of any rights or remedies
provided under this Agreement, by law, in equity or otherwise.
15.4 Assignment. Neither party may assign or otherwise transfer any
of its rights, duties or obligations under this Agreement
without the prior written consent of the other party, except
either party may, upon prior written notice to the other party
(but without any obligation to obtain the consent of such
other party), assign this Agreement or any of its rights
hereunder to any person or entity who succeeds (by purchase,
merger, operation of law or otherwise) to all or substantially
all of the capital stock, assets or business of such party,
provided such person or entity agrees in writing to assume and
be bound by all of the obligations of such party under this
Agreement. Any attempted assignment or transfer in
contravention of this Subsection 15.4 shall be void and of no
force and effect. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective legal
representatives, successors and permitted assigns.
Page 9 of 17
<PAGE>
15.5 Independent Contractors. This Agreement shall not be construed
to establish any form of partnership, agency, or joint venture
of any kind between the parties; nor to constitute either
party as an agent, employee, or legal representative of the
other; and nothing in this Agreement shall create any
relationship between The parties other than that of an
independent contractor. Neither party shall have any
responsibility or liability for the actions of the other
party, except as specifically provided herein. Neither party
shall have any right or authority to bind or obligate the
other in any manner or make any representation or warranty on
behalf of the other. No profits, losses or costs will be
shared under any provision of this Agreement or as a result of
either party's efforts in connection with any Joint
Opportunity and securing an award of any Customer Contract.
15.6 Further Assurances. Without limiting the generality of any
provision of this Agreement, each party agrees that upon
request of the other party, it shall, from time to time, do
any and all other acts and things as may reasonably be
required to carry out its obligations hereunder, to consummate
the transactions contemplated hereby, and to effectuate the
purposes hereof.
15.7 Publicity. Neither party shall issue any press release, public
announcement or advertise or promote this Agreement without
the prior consent of the other party.
15.8 Expenses. Each party will pay its own expenses and costs
incidental to the negotiation of the transactions contemplated
by this Agreement, including legal and accounting fees.
15.9 Notices. Any notices contemplated hereunder or provided for in
this Agreement shall be made to the following in writing or by
facsimile with confirmation by Express Mail or Federal
Express:
Gigabeam:
L. Slaughter, CEO
GigaBeam Corporation
101 Ash Street
Weston, MA 02493
FAX: 888-460-3200
With a copy to:
Gregory L. White, Esq.
Seyfarth Shaw
World Trade Center East
Two Seaport Lane, Suite 300
Boston, MA 02210-2-28
Page 10 of 17
<PAGE>
ThinKom:
Michael A. Burke, CEO
ThinKom Solutions Inc.
3825 Del Amo Blvd., Suite 200
Torrance, CA 90503
Fax: 310 214-1066
With copy to:
Smith, Crane, Robinson, & Parker LLP
Attn: R. Scott Robinson
California Bank and Trust Tower
Suite 500
21515 Hawthorne Boulevard
Torrance, CA 90503-6568
Fax: 310 543-4507
15.10 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms
or provisions hereof in any other jurisdiction.
15.11 Headings and Interpretation. The headings used in this
Agreement are for convenience of reference only and shall not
affect the meaning or construction of this Agreement.
15.12 Survival. The provisions of Sections 6 and 12 shall survive
any termination of this Agreement.
15.13 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the substantive laws (other than
the conflicts of laws provisions) of Virginia.
15.14 Counterparts. This Agreement may be signed in counterparts,
each of which shall constitute an original but all of which
shall constitute one and the same instrument.
15.15 Exhibits. The exhibits and appendices attached hereto are made
a part of this Agreement as if fully set forth herein.
Page 11 of 17
<PAGE>
IN WITNESS WHEREOF, the parties, by their duly authorized
representatives, have caused this Agreement to be executed as of the date first
written above.
ThinKom Solutions Inc. Gigabeam Corporation
By: /s/ Michael A. Burke By: /s/ Louis S. Slaughter
--------------------- ----------------------
Name: Michael A. Burke Namee: Louis S. Slaughter
Title: President & CEO Title: CEO
Page 12 of 17
<PAGE>
EXHIBIT A
ANTENNA MODULE PLAN
Page 13 of 17
<PAGE>
EXHIBIT B
SCHEMATICS
Page 14 of 17
<PAGE>
EXHIBIT C
DESCRIPTION & MINIMUM PERFORMANCE SPECIFICATIONS
Page 15 of 17
<PAGE>
EXHIBIT D
MINIMUM PURCHASE LOTS OF ANTENNA MODULES
Quarter 1, 2004 $ 100,000
Quarter 2, 2004 $ 275,000
Quarter 3, 2004 $ 275,000
Quarter 4, 2004 $ 275,000
2005 $ 950,000
2006 $ 1,400,000
2007 $ 4,600,000
2008 and each year thereafter $ 8,800,000
Page 16 of 17
<PAGE>
EXHIBIT E
MINIMUM PURCHASE LOTS BY NUMBERS OF ANTENNA MODULES
For Reference Only
The Minimum Purchase Lots by numbers of Antenna Modules of different
configuration for budgeting purposes follows:
<CAPTION>
ANTENNA TYPE Q4 2004 2005 2006 2007 2008
XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX
XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX
XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX
XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX
XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX
XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX
XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX
XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX
XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX
XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX
XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX
XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX
XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX
Total XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX
Page 17 of 17
<PAGE>
THIS FIRST AMENDMENT TO THE STRATEGIC ALLIANCE AGREEMENT (this
"Amendment") made as of April 28, 2004, between GIGABEAM CORPORATION, a Delaware
corporation (the "Company"), having its principal executive office at 14225-C
Sullyfield Circle, Chantilly, Virginia 20151, and THINKOM SOLUTIONS, INC., a
California corporation ("ThinKom"), having its principal executive offices at
3825 Del Amo Blvd, Suite 200, Torrance, CA 90503.
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 (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 July 31, 2004, with the
completed Exhibits A, B and C, as mutually agreed upon by both
parties.
B. Exhibit D to the Agreement shall be deleted in its entirety and
replaced with the Amended Exhibit D (the "Amended Exhibit D"),
attached hereto as Appendix A.
C. All references to financing contained in Section 2 in the Agreement
shall mean the consummation of a financing in which the Company
receives gross proceeds of at least $4,000,000, with the proceeds
thereof designated for use to make Purchase Lot Order payments.
D. Section 4.b of the Agreement shall be deleted in its entirety and
shall be replaced with the following:
b.) Failure to consummate financing in which Gigabeam receives gross
proceeds of at least $4,000,000 with the proceeds thereof
designated for use to make Purchase Lot Order payments within
120 days from the date of this Amendment hereof;
1
<PAGE>
E. Section 9 of the Agreement shall be amended by adding the words
"XXXXX" after "XXXXX."
F. Section 10 of the Agreement shall be amended in accordance with the
following:
a. The words "XXXXX" shall be added after the phrase "XXXXX";
b. The phrase "associated with generation of revenue" shall be
removed and replaced with "associated with the sale of
products and services"; and
c. The phrase "commencing immediately after the occurrence of
the Acquisition Event" shall be removed and replaced with
"commencing immediately after the occurrence of the
Acquisition Event or four years after the effective date of
this Amendment, whichever shall occur first."
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.
2
<PAGE>
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/Louis Slaughter
-------------------------------
Name: Louis Slaughter
Title: Chief Executive Officer
THINKOM SOLUTIONS, INC.
By: /s/Michael A. Burke
-------------------------------
Name: Michael A. Burke
Title: President & Chief Executive Officer
3
<PAGE>
APPENDIX A
AMENDED EXHIBIT D
MINIMUM PURCHASE LOTS OF ANTENNA MODULES
Quarter ending June 30, 2004 $ 100,000
Quarter ending September 30, 2004 $ 275,000
Quarter ending December 31, 2004 $ 275,000
2005 $ 1,225,000
2006 $ 1,400,000
2007 $ 4,600,000
2008 and each year thereafter $ 8,800,000
A-1