Unassociated Document


    EXHIBIT
      10.2

     

    SECURITIES
      EXCHANGE AND AMENDMENT AGREEMENT

     

    This
      Securities Exchange and Amendment Agreement (this “Agreement”)
      is
      dated as of December 31, 2007, among GigaBeam Corporation, a Delaware
      corporation (the “Company”)
      and
      each holder identified on the signature pages hereto (each, including its
      successors and assigns, a “Holder”
and
      collectively the “Holders”).

     

    WHEREAS,
      each Holder is party to that certain Senior Convertible Note, dated January
      28,
      2005 (the “Note”)
      pursuant to that certain Securities Purchase Agreement, dated January 28, 2005
      (the “Purchase
      Agreement”
      (together, “Outstanding Transaction Documents”);

     

    WHEREAS,
      subject to the terms and conditions set forth in this Agreement and pursuant
      to
      Section 4(2) of the Securities Act of 1933, as amended (the “Securities
      Act”),
      the
      Company desires to issue and exchange with each Holder, and each Holder,
      severally and not jointly, desires to exchange with the Company, all outstanding
      principal, any unpaid interest and all other amounts payable under the Notes
      (“Outstanding Debt”) for Preferred Stock as more fully described in this
      Agreement; and

     

    WHEREAS,
      subject to the terms and conditions set forth in this Agreement, the Company
      and
      the Holders have agreed to amend certain terms of the Purchase
      Agreement;

     

    NOW,
      THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
      and for other good and valuable consideration the receipt and adequacy of which
      are hereby acknowledged, the Company and each Holder agree as
      follows:

     

    ARTICLE
      I

    DEFINITIONS

     

    1.1 Definitions.
      In
      addition to the terms defined elsewhere in this Agreement: (a) capitalized
      terms
      that are not otherwise defined herein have the meanings given to such terms
      in
      the Certificate of Designation (as defined herein), and (b) the following terms
      have the meanings set forth in this Section 1.1:

     

    “Affiliate”
means
      any Person that, directly or indirectly through one or more intermediaries,
      controls or is controlled by or is under common control with a Person, as such
      terms are used in and construed under Rule 144 under the Securities Act. With
      respect to a Holder, any investment fund or managed account that is managed
      on a
      discretionary basis by the same investment manager as such Holder will be deemed
      to be an Affiliate of such Holder.

     

    “Authorized
      Shares Deficiency”
shall
      have the meaning ascribed to such term in Section 4.3(b).

     

    “Authorized
      Share Action”
shall
      have the meaning ascribed to such term in Section 4.3(b).

     

    “Certificate
      of Designation”
means
      the Certificate of Designation to be filed prior to the Closing by the Company
      with the Secretary of State of Delaware in the form of Exhibit
      A.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “Closing”
means
      the closing of the exchange of the Notes and extinguishment of Outstanding
      Debt
      for Preferred Stock pursuant to Section 2.1.

     

    “Closing
      Date”
means
      the Trading Day when all of the Transaction Documents have been executed and
      delivered by the applicable parties thereto.

     

    “Commission”
means
      the Securities and Exchange Commission.

     

    “Common
      Stock”
means
      the common stock of the Company, par value $0.001 per share, and any other
      class
      of securities into which such securities may hereafter be reclassified or
      changed into.

     

    “Company
      Counsel”
means
      Trombly Business Law, with offices located at 1320 Centre Street, Suite 202,
      Newton, MA 02459.

     

    “Conversion
      Price”
shall
      have the meaning ascribed to such term in the Certificate of
      Designation.

     

    “Discussion
      Time”
shall
      have the meaning ascribed to such term in Section 3.2(f).

     

    “Exchange
      Act”
means
      the Securities Exchange Act of 1934, as amended, and the rules and regulations
      promulgated thereunder.

    


    “Exchange
      Amount”
shall
      mean, as to each Holder as applicable, as of the Closing, the Outstanding Debt
      to be exchanged for the Preferred Stock, in each case to the extent specified
      in
Schedule
      A
      attached
      hereto and incorporated herein by reference. 

    


    “Liens”
means
      a
      lien, charge, security interest, encumbrance, right of first refusal, preemptive
      right or other restriction.

     

    “Material
      Adverse Effect”
shall
      have the meaning assigned to such term in Section 3.1(b).

    


    “Maximum
      Rate”
shall
      have the meaning ascribed to such term in Section 4.16.

    


    “Person”
means
      an individual or corporation, partnership, trust, incorporated or unincorporated
      association, joint venture, limited liability company, joint stock company,
      government (or an agency or subdivision thereof) or other entity of any
      kind.

    


    “Preferred
      Stock”
means
      the Company’s Series D Convertible Preferred Stock issued hereunder, having the
      rights, preferences and privileges set forth in the Certificate of Designation,
      in the form of Exhibit
      A
      attached
      hereto.

    


    “Proceeding”
means
      an action, claim, suit, investigation or proceeding (including, without
      limitation, an investigation or partial proceeding, such as a deposition),
      whether commenced or threatened.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

       

    

    “Required
      Approvals”
shall
      have the meaning ascribed to such term in Section 3.1(e).

    


    “Required
      Minimum”
means,
      as of any date, the maximum aggregate number of shares of Common Stock then
      issued or potentially issuable in the future pursuant to the Transaction
      Documents, including any Underlying Shares issuable upon conversion in full
      of
      all shares of Preferred Stock, ignoring any conversion limits set forth
      therein.

     

    “Rule
      144”
means
      Rule 144 promulgated by the Commission pursuant to the Securities Act, as such
      Rule may be amended from time to time, or any similar rule or regulation
      hereafter adopted by the Commission having substantially the same effect as
      such
      Rule.

    


    “Securities”
means
      the Preferred Stock and the Underlying Shares.

    


    “Securities
      Act”
means
      the Securities Act of 1933, as amended, and the rules and regulations
      promulgated thereunder. 

    


    “Short
      Sales”
means
      all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange
      Act (but shall not be deemed to include the location and/or reservation of
      borrowable shares of Common Stock).

    


    “Subsidiary”
means
      any subsidiary of the Company as identified in Section 3.1(a).

    


    “Trading
      Day”
means
      a
      day on which the Common Stock is traded on a Trading Market; provided that
      if
      the Company is not listed or quoted for trading on a Trading Market, “Trading
      Day” shall mean “Business Day” unless the context otherwise
      requires.

    


    “Trading
      Market”
means
      the following markets or exchanges on which the Common Stock is listed or quoted
      for trading on the date in question: the American Stock Exchange, the Nasdaq
      Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market,
      the
      New York Stock Exchange or the OTC Bulletin Board.

    


    “Transaction
      Documents”
means
      this Agreement, the Certificate of Designation, and any other documents or
      agreements executed in connection with the transactions contemplated
      hereunder.

    


    “Underlying
      Shares”
means
      the shares of Common Stock issued and issuable upon conversion of the Preferred
      Stock.

     

    
      
        
        

      

      
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    ARTICLE
      II

    EXCHANGE,
      RESETS AND AMENDMENTS

     

    2.1 Agreements.
      

     

    (a) Exchange
      of All Outstanding Debt.
      On the
      Closing Date, upon the terms and subject to the conditions set forth herein,
      substantially concurrent with the execution and delivery of this Agreement
      by
      the parties hereto, the Company agrees to issue to each Holder shares of
      Preferred Stock, and each Holder agrees, severally and not jointly, to accept
      the shares of Preferred Stock in exchange for cancelling Outstanding Debt,
      as
      summarized on Schedule
      A
      attached
      hereto and incorporated herein by reference. Every $1,000 of Outstanding Debt
      shall be exchanged for one (1) share of Preferred Stock. Upon the consummation
      of the exchange hereunder, all obligations of the Company, including Outstanding
      Debt, under the Outstanding Transaction Documents shall be deemed satisfied
      in
      full and the Company shall have no other obligations thereunder.

     

    (b) Waiver
      of Existing Defaults.
      Each
      Holder hereby agrees to waive, forever more, amounts owed in respect of the
      Outstanding Debt and its right to enforce its rights in connection therewith.
      Additionally, the Holder hereby agrees to waive any breach of any of the
      Outstanding Transaction Documents that relate, directly or indirectly, to an
      existing default. Notwithstanding anything herein to the contrary, this waiver
      is limited only to the existing defaults and any other past or future Events
      of
      Default, including a breach of this Agreement. 

     

    
      
        2.2
          Deliveries.

      

    

     

    (a) On
      or
      prior to the Closing Date, the Company shall deliver or cause to be delivered
      to
      each Holder the following:

     

    
      
        (i)
          this
          Agreement duly executed by the Company;

      

    

     

    (ii) one
      or
      more certificates evidencing the shares of Preferred Stock issuable to such
      Holder pursuant to Section 2.1(a).

     

    (b) On
      the
      Closing Date, each Holder shall deliver or cause to be delivered to the Company
      the following:

     

    (i) this
      Agreement duly executed by such Holder; and

     

    (ii) such
      Holder’s Note representing the securities comprising the Exchange
      Amount.

     

    ARTICLE
      III

    REPRESENTATIONS
      AND WARRANTIES

     

    3.1
      Representations
      and Warranties of the Company.
      The
      Company hereby makes the following representations and warranties to each
      Holder:

     

    (a) Subsidiaries.
      All of
      the direct and indirect subsidiaries of the Company are set forth in the
      Company’s Annual Report on Form 10-KSB for the year ended December 31, 2006, as
      filed with the Commission. The Company owns, directly or indirectly, all of
      the
      capital stock or other equity interests of each Subsidiary free and clear of
      any
      Liens, and all of the issued and outstanding shares of capital stock of each
      Subsidiary are validly issued and are fully paid, non-assessable and free of
      preemptive and similar rights to subscribe for or purchase securities.


     

    
      
        
        

      

      
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    (b) Organization
      and Qualification.
      The
      Company and each of the Subsidiaries is an entity duly incorporated or otherwise
      organized, validly existing and in good standing under the laws of the
      jurisdiction of its incorporation or organization (as applicable), with the
      requisite power and authority to own and use its properties and assets and
      to
      carry on its business as currently conducted. Neither the Company nor any
      Subsidiary is in violation or default of any of the provisions of its respective
      certificate or articles of incorporation, bylaws or other organizational or
      charter documents. Each of the Company and the Subsidiaries is duly qualified
      to
      conduct business and is in good standing as a foreign corporation or other
      entity in each jurisdiction in which the nature of the business conducted or
      property owned by it makes such qualification necessary, except where the
      failure to be so qualified or in good standing, as the case may be, could not
      have or reasonably be expected to result in (i) a material adverse effect on
      the
      legality, validity or enforceability of any Transaction Document, (ii) a
      material adverse effect on the results of operations, assets, business,
      prospects or condition (financial or otherwise) of the Company and the
      Subsidiaries, taken as a whole, or (iii) a material adverse effect on the
      Company’s ability to perform in any material respect on a timely basis its
      obligations under any Transaction Document (any of (i), (ii) or (iii), a
“Material
      Adverse Effect”)
      and no
      Proceeding has been instituted in any such jurisdiction revoking, limiting
      or
      curtailing or seeking to revoke, limit or curtail such power and authority
      or
      qualification.

     

    (c) Authorization;
      Enforcement.
      The
      Company has the requisite corporate power and authority to enter into and to
      consummate the transactions contemplated by each of the Transaction Documents
      and otherwise to carry out its obligations hereunder and thereunder. The
      execution and delivery of each of the Transaction Documents by the Company
      and
      the consummation by it of the transactions contemplated hereby and thereby
      have
      been duly authorized by all necessary action on the part of the Company and
      no
      further action is required by the Company, its board of directors or its
      stockholders in connection therewith other than in connection with the Required
      Approvals. Each Transaction Document has been (or upon delivery will have been)
      duly executed by the Company and, when delivered in accordance with the terms
      hereof and thereof, will constitute the valid and binding obligation of the
      Company enforceable against the Company in accordance with its terms except
      (i)
      as limited by general equitable principles and applicable bankruptcy,
      insolvency, reorganization, moratorium and other laws of general application
      affecting enforcement of creditors’ rights generally, (ii) as limited by laws
      relating to the availability of specific performance, injunctive relief or
      other
      equitable remedies and (iii) insofar as indemnification and contribution
      provisions may be limited by applicable law.

     

    
      
        
        

      

      
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    (d) No
      Conflicts.
      The
      execution, delivery and performance of the Transaction Documents by the Company
      and the consummation by the Company of the transactions contemplated hereby
      and
      thereby do not and will not: (i) conflict with or violate any provision of
      the
      Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws
      or other organizational or charter documents, or (ii) conflict with, or
      constitute a default (or an event that with notice or lapse of time or both
      would become a default) under, result in the creation of any Lien upon any
      of
      the properties or assets of the Company or any Subsidiary, or give to others
      any
      rights of termination, amendment, acceleration or cancellation (with or without
      notice, lapse of time or both) of, any agreement, credit facility, debt or
      other
      instrument (evidencing a Company or Subsidiary debt or otherwise) or other
      understanding to which the Company or any Subsidiary is a party or by which
      any
      property or asset of the Company or any Subsidiary is bound or affected, or
      (iii) subject to the Required Approvals, conflict with or result in a violation
      of any law, rule, regulation, order, judgment, injunction, decree or other
      restriction of any court or governmental authority to which the Company or
      a
      Subsidiary is subject (including federal and state securities laws and
      regulations), or by which any property or asset of the Company or a Subsidiary
      is bound or affected; except in the case of each of clauses (ii) and (iii),
      such
      as could not have or reasonably be expected to result in a Material Adverse
      Effect.

     

    (e) Filings,
      Consents and Approvals.
      The
      Company is not required to obtain any consent, waiver, authorization or order
      of, give any notice to, or make any filing or registration with, any court
      or
      other federal, state, local or other governmental authority or other Person
      (other than the Holders) in connection with the execution, delivery and
      performance by the Company of the Transaction Documents, other than (i) the
      Authorized Share Action, (ii) the filing of Form D with the Commission and
      such
      filings as are required to be made under applicable state securities laws,
      (iii) filing of the registration statement contemplated hereby and
      (iv) filing of any of the foregoing with the appropriate Trading Market(s)
      (collectively, the “Required
      Approvals”).

     

    (f) Issuance
      of the Securities.
      As of
      the Closing Date, the Securities will be duly authorized and, when issued and
      paid for in accordance with the applicable Transaction Documents, will be duly
      and validly issued, fully paid and nonassessable, free and clear of all Liens
      imposed by the Company or any other Person other than restrictions on transfer
      provided for in the Transaction Documents and, if applicable, pledges or other
      actions taken by any particular Holder with respect to such Holder’s Securities.
      The Underlying Shares, when issued in accordance with the terms of the
      Transaction Documents, will be validly issued, fully paid and nonassessable,
      free and clear of all Liens imposed by the Company. 

     

    (g) Private
      Placement.
      Assuming the accuracy of the Holders’ representations and warranties set forth
      in Section 3.2, no registration under the Securities Act is required for the
      offer and sale of the Securities by the Company to the Holders as contemplated
      hereby. 

     

    (h)
      Listing
      and Maintenance Requirements.
      The
      Company’s Common Stock is registered pursuant to Section 12(b) or 12(g) of the
      Exchange Act.

     

    
      
        
        

      

      
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    (i)
      Disclosure.
      All
      disclosure furnished by or on behalf of the Company to the Holders regarding
      the
      Company, its business and the transactions contemplated hereby, including the
      disclosure Schedules to this Agreement, is true and correct and does not contain
      any untrue statement of a material fact or omit to state any material fact
      necessary in order to make the statements made therein, in light of the
      circumstances under which they were made, not misleading. The press releases
      disseminated by the Company during the twelve months preceding the date of
      this
      Agreement taken as a whole do not contain any untrue statement of a material
      fact or omit to state a material fact required to be stated therein or necessary
      in order to make the statements, in light of the circumstances under which
      they
      were made and when made, not misleading. The Company acknowledges and agrees
      that no Holder makes or has made any representations or warranties with respect
      to the transactions contemplated hereby other than those specifically set forth
      in Section 3.2 hereof.

     

    (j)
      No
      Integrated Offering.
      Assuming
      the accuracy of the Holders’ representations and warranties set forth in Section
      3.2, neither the Company, nor any of its Affiliates, nor any Person acting
      on
      its or their behalf has, directly or indirectly, made any offers or sales of
      any
      security or solicited any offers to buy any security, under circumstances that
      would cause this offering of the Securities to be integrated with prior
      offerings by the Company for purposes of the Securities Act or any applicable
      shareholder approval provision of any Trading Market on which any of the
      securities of the Company are listed or designated. 

     

    (k)
      No
      General Solicitation.
      Neither
      the Company nor any person acting on behalf of the Company has offered or sold
      (i) any of the Securities by any form of general solicitation or general
      advertising, or (ii) any other securities of the Company with comparable rights
      and preferences by any form of general solicitation or general advertising
      within two months of the date hereof. The Company has offered such Securities
      for sale only to the Holders and certain other “accredited investors” within the
      meaning of Rule 501 under the Securities Act.

     

    (l)
      Acknowledgment
      Regarding Holders’ Purchase of Securities.
      The
      Company acknowledges and agrees that, to the best of its knowledge, each of
      the
      Holders is acting solely in the capacity of an arm’s length purchaser with
      respect to the Transaction Documents and the transactions contemplated thereby.
      The Company further acknowledges that no Holder is acting as a financial advisor
      or fiduciary of the Company (or in any similar capacity) with respect to the
      Transaction Documents and the transactions contemplated thereby and any advice
      given by any Holder or any of their respective representatives or agents in
      connection with the Transaction Documents and the transactions contemplated
      thereby is merely incidental to the Holders’ purchase of the Securities. The
      Company further represents to each Holder that the Company’s decision to enter
      into this Agreement and the other Transaction Documents has been based solely
      on
      the independent evaluation of the transactions contemplated hereby by the
      Company and its representatives.

     

    
      
        
        

      

      
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    (m)
      Acknowledgement
      Regarding Holders’ Trading Activity.
      Anything in this Agreement or elsewhere herein to the contrary notwithstanding
      (except for Sections 3.2(f) and 4.16 hereof), it is understood and acknowledged
      by the Company (i) that none of the Holders have been asked to agree, nor has
      any Holder agreed, to desist from purchasing or selling, long and/or short,
      securities of the Company, or “derivative” securities based on securities issued
      by the Company or to hold the Securities for any specified term; (ii) that
      past
      or future open market or other transactions by any Holder, including Short
      Sales, and specifically including, without limitation, Short Sales or
“derivative” transactions, before or after the closing of this or future private
      placement transactions, may negatively impact the market price of the Company’s
      publicly-traded securities; (iii) that any Holder, and counter-parties in
“derivative” transactions to which any such Holder is a party, directly or
      indirectly, presently may have a “short” position in the Common Stock; and (iv)
      that each Holder shall not be deemed to have any affiliation with or control
      over any arm’s length counter-party in any “derivative” transaction.
The
      Company further understands and acknowledges that (a) one or more Holders may
      engage in hedging activities at various times during the period that the
      Securities are outstanding, including, without limitation, during the periods
      that the value of the Underlying Shares deliverable with respect to Securities
      are being determined and (b) such hedging activities (if any) could reduce
      the
      value of the existing stockholders' equity interests in the Company at and
      after
      the time that the hedging activities are being conducted.  The Company
      acknowledges that such aforementioned hedging activities do not constitute
      a
      breach of any of the Transaction Documents.

     

    (n)
      Regulation
      M Compliance. 
      The Company has not, and to its knowledge no one acting on its behalf has,
      (i)
      taken, directly or indirectly, any action designed to cause or to result in
      the
      stabilization or manipulation of the price of any security of the Company to
      facilitate the sale or resale of any of the Securities, (ii) sold, bid for,
      purchased, or paid any compensation for soliciting purchases of, any of the
      securities of the Company, or (iii) paid or agreed to pay to any Person any
      compensation for soliciting another to purchase any other securities of the
      Company, other than, in the case of clauses (ii) and (iii), compensation paid
      to
      the Company’s placement agent in connection with the placement of the
      Securities.

     

    3.2 Representations
      and Warranties of the Holders.
      Each
      Holder hereby, for itself and for no other Holder, represents and warrants
      as of
      the date hereof and as of the Closing Date to the Company as
      follows:

     

    (a) Organization;
      Authority.
      Such
      Holder is an entity duly organized, validly existing and in good standing under
      the laws of the jurisdiction of its organization with full right, corporate
      or
      partnership power and authority to enter into and to consummate the transactions
      contemplated by the Transaction Documents and otherwise to carry out its
      obligations hereunder and thereunder (or,
      as
      appropriate, is an individual with full right, power and authority to enter
      into
      and to consummate the transactions contemplated by the Transaction Documents
      and
      otherwise to carry out his obligations hereunder and thereunder).
      The
      execution, delivery and performance by such Holder of the transactions
      contemplated by this Agreement have been duly authorized by all necessary
      corporate or similar action on the part of such Holder. Each Transaction
      Document to which it is a party has been duly executed by such Holder, and
      when
      delivered by such Holder in accordance with the terms hereof, will constitute
      the valid and legally binding obligation of such Holder, enforceable against
      it
      in accordance with its terms, except (i) as limited by general equitable
      principles and applicable bankruptcy, insolvency, reorganization, moratorium
      and
      other laws of general application affecting enforcement of creditors’ rights
      generally, (ii) as limited by laws relating to the availability of specific
      performance, injunctive relief or other equitable remedies and (iii) insofar
      as
      indemnification and contribution provisions may be limited by applicable
      law.

     

    
      
        
        

      

      
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    (b) Own
      Account.
      Such
      Holder understands that the Securities are “restricted securities” and have not
      been registered under the Securities Act or any applicable state securities
      law
      and is acquiring the Securities as principal for its own account and not with
      a
      view to or for distributing or reselling such Securities or any part thereof
      in
      violation of the Securities Act or any applicable state securities law, has
      no
      present intention of distributing any of such Securities in violation of the
      Securities Act or any applicable state securities law and has no direct or
      indirect arrangement or understandings with any other persons to distribute
      or
      regarding the distribution of such Securities in violation of the Securities
      Act
      or any applicable state securities law (this representation and warranty not
      limiting such Holder’s right to sell the Securities in compliance with
      applicable federal and state securities laws). Such Holder is acquiring the
      Securities hereunder in the ordinary course of its business.

     

    (c) Holder
      Status.
      At the
      time such Holder was offered the Securities, it was, and at the date hereof
      it
      is, and on each date on which it converts any shares of Preferred Stock or
      exercises any Warrants, it will be either: (i) an “accredited investor” as
      defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities
      Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a) under
      the Securities Act. Such Holder is not required to be registered as a
      broker-dealer under Section 15 of the Exchange Act.

     

    (d) Experience
      of Such Holder.
      Such
      Holder, either alone or together with its representatives, has such knowledge,
      sophistication and experience in business and financial matters so as to be
      capable of evaluating the merits and risks of the prospective investment in
      the
      Securities, and has so evaluated the merits and risks of such investment. Such
      Holder is able to bear the economic risk of an investment in the Securities
      and,
      at the present time, is able to afford a complete loss of such
      investment.

     

    (e) General
      Solicitation.
      Such
      Holder is not purchasing the Securities as a result of any advertisement,
      article, notice or other communication regarding the Securities published in
      any
      newspaper, magazine or similar media or broadcast over television or radio
      or
      presented at any seminar or any other general solicitation or general
      advertisement.

     

    (f) Short
      Sales and Confidentiality Prior To The Date Hereof.
      Other
      than the transaction contemplated hereunder, such Holder has not directly or
      indirectly, nor has any Person acting on behalf of or pursuant to any
      understanding with such Holder, executed any disposition, including Short
      Sales, in the securities of the Company during the period commencing
      from
      the time
      that such Holder first received a term sheet (written or oral) from the Company
      or any other Person setting forth the material terms of the transactions
      contemplated hereunder until the date hereof (“Discussion
      Time”).
      Notwithstanding the foregoing, in the case of a Holder that is a multi-managed
      investment vehicle whereby separate portfolio managers manage separate portions
      of such Holder's assets and the portfolio managers have no direct knowledge
      of
      the investment decisions made by the portfolio managers managing other portions
      of such Holder's assets, the representation set forth above shall only apply
      with respect to the portion of assets managed by the portfolio manager that
      made
      the investment decision to purchase the Securities covered by this Agreement.
      Other than to other Persons party to this Agreement, such Holder has maintained
      the confidentiality of all disclosures made to it in connection with this
      transaction (including the existence and terms of this
      transaction).

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    (g) No
      Commission or Other Recommendation for Solicitation of Exchange.
      The
      Holder has not received any commission or other remuneration for the
      solicitation of any of the participants in, or recommendation with respect
      to,
      the share exchange contemplated by this Agreement.

     

    ARTICLE
      IV

    OTHER
      AGREEMENTS OF THE PARTIES

     

    4.1 Transfer
      Restrictions.

     

    (a) The
      Securities may only be disposed of in compliance with state and federal
      securities laws. In connection with any transfer of Securities other than
      pursuant to an effective registration statement or Rule 144, to the Company
      or
      to an Affiliate of a Holder or in connection with a pledge as contemplated
      in
      Section 4.1(b), the Company may require the transferor thereof to provide to
      the
      Company an opinion of counsel selected by the transferor and reasonably
      acceptable to the Company, the form and substance of which opinion shall be
      reasonably satisfactory to the Company, to the effect that such transfer does
      not require registration of such transferred Securities under the Securities
      Act. As a condition of transfer, any such transferee shall agree in writing
      to
      be bound by the terms of this Agreement and shall have the rights of a Holder
      under this Agreement. 

     

    (b) The
      Holders agree to the imprinting, so long as is required by this Section 4.1,
      of
      a legend on any of the Securities in the following form: 

     

    [NEITHER]
      THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS [EXERCISABLE]
      [CONVERTIBLE]] HAS [NOT] BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
      COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
      EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
      “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
      TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT
      TO
      AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
      REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
      APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL
      TO
      THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
      ACCEPTABLE TO THE COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON
      [EXERCISE] [CONVERSION] OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH
      A
      BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

    The
      Company acknowledges and agrees that a Holder may from time to time pledge
      pursuant to a bona fide margin agreement with a registered broker-dealer or
      grant a security interest in some or all of the Securities to a financial
      institution that is an “accredited investor” as defined in Rule 501(a) under the
      Securities Act and who agrees to be bound by the provisions of this Agreement
      and, if required under the terms of such arrangement, such Holder may transfer
      pledged or secured Securities to the pledgees or secured parties. Such a pledge
      or transfer would not be subject to approval of the Company and no legal opinion
      of legal counsel of the pledgee, secured party or pledgor shall be required
      in
      connection therewith. Further, no notice shall be required of such pledge.
      At
      the appropriate Holder’s expense, the Company will execute and deliver such
      reasonable documentation as a pledgee or secured party of Securities may
      reasonably request in connection with a pledge or transfer of the Securities,
      including, if the Securities are subject to registration, the preparation and
      filing of any required prospectus supplement under Rule 424(b)(3) under the
      Securities Act or other applicable provision of the Securities Act to
      appropriately amend the list of Selling Stockholders thereunder.

     

    (c) 
      Each
      Holder, severally and not jointly with the other Holders, agrees that the
      removal of the restrictive legend from certificates representing Securities
      as
      set forth in this Section 4.1 is predicated upon the Company’s reliance that the
      Holder will sell any Securities pursuant to either the registration requirements
      of the Securities Act, including any applicable prospectus delivery
      requirements, or an exemption therefrom, and that if Securities are sold
      pursuant to a Registration Statement, they will be sold in compliance with
      the
      plan of distribution set forth therein.

    


    4.2
      Acknowledgment
      of Dilution.
      The
      Company acknowledges that the issuance of the Securities will result in
      substantial dilution of the outstanding shares of Common Stock. The Company
      further acknowledges that its obligations under the Transaction Documents,
      including without limitation its obligation to issue the Underlying Shares
      pursuant to the Transaction Documents, are unconditional and absolute and not
      subject to any right of set off, counterclaim, delay or reduction, regardless
      of
      the effect of any such dilution or any claim the Company may have against any
      Holder and regardless of the dilutive effect that such issuance may have on
      the
      ownership of the other stockholders of the Company.

     

    4.3 Reservation
      and Listing of Securities.
      

     

    (a) Subject
      to Sections 4.3(b) and (c), the Company shall maintain a reserve from its duly
      authorized shares of Common Stock for issuance pursuant to the Transaction
      Documents in such amount as may be required to fulfill its obligations in full
      under the Transaction Documents.

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

     

    (b) Subject
      to Section 4.3(c), if, on any date, the number of authorized but unissued (and
      otherwise unreserved) shares of Common Stock is less than 100% of (i) the
      Required Minimum on such date, minus (ii) the number of shares of Common Stock
      previously issued pursuant to the Transaction Documents (an “Authorized
      Share Deficiency”)
      then
      the Company shall immediately take commercially reasonable efforts to provide
      the Company with authorized shares of Common Stock in an amount sufficient
      to
      allow the Company to reserve the Required Minimum. Without limiting the
      generality of the forgoing sentence, as soon as practicable after the date
      of
      the occurrence of an Authorized Share Deficiency, but in no event later than
      forty-five (45) days after the occurrence of such Authorized Share Deficiency,
      the Company shall use its best efforts to obtain stockholder approval of an
      increase in the number of authorized shares of Common Stock (such action, an
      “Authorized
      Share Action”);
      provided that the Company will not be required at any time to authorize a number
      of shares of Common Stock greater than the maximum remaining number of shares
      of
      Common Stock that could possibly be issued after such time pursuant to the
      Transaction Documents and any other agreements binding on the Company, including
      any Underlying Shares issuable upon conversion in full of all Preferred Stock,
      ignoring any conversion limits set forth therein.

     

    (c) The
      Holders acknowledge that the Company does not have sufficient Common Stock
      authorized as of the Closing Date to reserve the Required Minimum and meet
      its
      other reserve requirements. Notwithstanding Section 4.3(a) and 4.3(b) to the
      contrary, the parties agree that: (i) such failure shall not be considered
      an
      Authorized Share Deficiency until August 1, 2008; (ii) prior to such date,
      the
      Company shall use its best efforts to take an Authorized Share Action; (iii)
      the
      Holders, to the extent each owns any Common Stock or Preferred Stock, will
      vote
      in favor of the Authorized Share Action; and (iv) pending such Authorized Share
      Action, the Company will reserve all unreserved Common Stock with respect to
      the
      Securities.

    


    (d) The
      Company shall, if applicable: (i) in the time and manner required by the
      principal Trading Market, prepare and file with such Trading Market an
      additional shares listing application covering a number of shares of Common
      Stock at least equal to the Required Minimum on the date of such application,
      (ii) take all steps necessary to cause such shares of Common Stock to be
      approved for listing on such Trading Market as soon as possible thereafter,
      (iii) provide to the Holders evidence of such listing, and (iv) maintain the
      listing of such Common Stock on any date at least equal to the Required Minimum
      on such date on such Trading Market or another Trading Market. 

     

    4.4 Equal
      Treatment of Holders.
      No
      consideration shall be offered or paid to any Person to amend or consent to
      a
      waiver or modification of any provision of any of the Transaction Documents
      unless the same consideration is also offered to all of the parties to the
      Transaction Documents. For clarification purposes, this provision constitutes
      a
      separate right granted to each Holder by the Company and negotiated separately
      by each Holder, and is intended for the Company to treat the Holders as a class
      and shall not in any way be construed as the Holders acting in concert or as
      a
      group with respect to the purchase, disposition or voting of Securities or
      otherwise. 

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

     

    4.5
      Short
      Sales and Confidentiality After The Date Hereof.
      Each
      Holder severally and not jointly with the other Holders covenants that neither
      it nor any Affiliate acting on its behalf or pursuant to any understanding
      with
      it will execute any Short Sales during the period commencing at the Discussion
      Time and ending at the time that the transactions contemplated by this Agreement
      are first publicly announced. Each
      Holder, severally and not jointly with the other Holders, covenants that until
      such time as the transactions contemplated by this Agreement are publicly
      disclosed by the Company, such Holder will maintain the confidentiality of
      all
      disclosures made to it in connection with this transaction (including the
      existence and terms of this transaction). Each Holder understands and
      acknowledges, severally and not jointly with any other Holder, that the
      Commission currently takes the position that coverage of short sales of shares
      of the Common Stock “against the box” prior to the Effective Date of the
      Registration Statement with the Securities is a violation of Section 5 of the
      Securities Act, as set forth in Item 65, Section A, of the Manual of Publicly
      Available Telephone Interpretations, dated July 1997, compiled by the Office
      of
      Chief Counsel, Division of Corporation Finance. Notwithstanding
      the foregoing, no Holder makes any representation, warranty or covenant hereby
      that it will not engage in Short Sales in the securities of the Company after
      the time that the transactions contemplated by this Agreement are first publicly
      announced. Notwithstanding
      the foregoing, in the case of a Holder that is a multi-managed investment
      vehicle whereby separate portfolio managers manage separate portions of such
      Holder’s assets and the portfolio managers have no direct knowledge of the
      investment decisions made by the portfolio managers managing other portions
      of
      such Holder’s assets, the covenant set forth above shall only apply with respect
      to the portion of assets managed by the portfolio manager that made the
      investment decision to purchase the Securities covered by this Agreement.


     

    4.6 Form
      D; Blue Sky Filings.
      The
      Company agrees to timely file, if necessary, a Form D with respect to the
      Securities as required under Regulation D and to provide a copy thereof,
      promptly upon request of any Holder. The Company shall take such action as
      the
      Company shall reasonably determine is necessary in order to obtain an exemption
      for, or to qualify the Securities for, sale to the Holders at the Closing under
      applicable securities or “Blue Sky” laws of the states of the United States, and
      shall provide evidence of such actions promptly upon request of any
      Holder.

     

    ARTICLE
      V

    MISCELLANEOUS

     

    5.1
      Termination. 
      This Agreement may be terminated by any Holder, as to such Holder’s obligations
      hereunder only and without any effect whatsoever on the obligations between
      the
      Company and the other Holders, by written notice to the other parties, if the
      Closing has not been consummated on or before December 31, 2007; provided,
      however,
      that
      such termination will not affect the right of any party to sue for any breach
      by
      the other party (or parties).

     

    5.2
      Fees
      and Expenses.
      Except
      as expressly set forth in the Transaction Documents to the contrary, each party
      shall pay the fees and expenses of its advisers, counsel, accountants and other
      experts, if any, and all other expenses incurred by such party incident to
      the
      negotiation, preparation, execution, delivery and performance of this Agreement.
      The Company shall pay all transfer agent fees, stamp taxes and other taxes
      and
      duties levied in connection with the delivery of any Securities to the
      Holders.

     

    5.3
      Entire
      Agreement.
      The
      Transaction Documents, together with the exhibits and schedules thereto, contain
      the entire understanding of the parties with respect to the subject matter
      hereof and supersede all prior agreements and understandings, oral or written,
      with respect to such matters, which the parties acknowledge have been merged
      into such documents, exhibits and schedules.

     

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    

     

    5.4 Notices.
      Any and
      all notices or other communications or deliveries required or permitted to
      be
      provided hereunder shall be in writing and shall be deemed given and effective
      on the earliest of (a) the date of transmission, if such notice or communication
      is delivered via facsimile at the facsimile number set forth on the signature
      pages attached hereto prior to 5:30 p.m. (New York City time) on a Trading
      Day
      or via “.pdf” data file via e-mail at the e-mail address provided to the Company
      by a Holder, (b) the next Trading Day after the date of such transmission,
      if
      such notice or communication is delivered on a day that is not a Trading Day
      or
      later than 5:30 p.m. (New York City time) on any Trading Day, (c) the
      2nd
      Trading
      Day following the date of mailing, if sent by U.S. nationally recognized
      overnight courier service, or (d) upon actual receipt by the party to whom
      such
      notice is required to be given. The address for such notices and communications
      shall be as set forth on the signature pages attached hereto.

     

    5.5 Amendments;
      Waivers.
      No
      provision of this Agreement may be waived, modified, supplemented or amended
      except in a written instrument signed by the Company and all holders of
      Preferred Stock then outstanding, or, in the case of a waiver, by the party
      against whom enforcement of any such waived provision is sought. No waiver
      of
      any default with respect to any provision, condition or requirement of this
      Agreement shall be deemed to be a continuing waiver in the future or a waiver
      of
      any subsequent default or a waiver of any other provision, condition or
      requirement hereof, nor shall any delay or omission of any party to exercise
      any
      right hereunder in any manner impair the exercise of any such
      right.

     

    5.6 Headings.
      The
      headings herein are for convenience only, do not constitute a part of this
      Agreement and shall not be deemed to limit or affect any of the provisions
      hereof.

     

    5.7 Successors
      and Assigns.
      This
      Agreement shall be binding upon and inure to the benefit of the parties and
      their successors and permitted assigns. The Company may not assign this
      Agreement or any rights or obligations hereunder without the prior written
      consent of each Holder (provided that nothing herein shall prevent the Company
      from assigning the remaining obligations after the Closing Date through merger
      or comparable corporate transactions consummated in accordance with applicable
      law). Any Holder may assign any or all of its rights under this Agreement to
      any
      Person to whom such Holder assigns or transfers any Securities, provided such
      transferee agrees in writing to be bound, with respect to the transferred
      Securities, by the provisions of the Transaction Documents that apply to the
      “Holders.”

     

    5.8 No
      Third-Party Beneficiaries.
      This
      Agreement is intended for the benefit of the parties hereto and their respective
      successors and permitted assigns and is not for the benefit of, nor may any
      provision hereof be enforced by, any other Person.

     

    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

    

     

    5.9 Governing
      Law.
      All
      questions concerning the construction, validity, enforcement and interpretation
      of the Transaction Documents shall be governed by and construed and enforced
      in
      accordance with the internal laws of the State of New York, without regard
      to
      the principles of conflicts of law thereof. Each party agrees that all legal
      proceedings concerning the interpretations, enforcement and defense of the
      transactions contemplated by this Agreement and any other Transaction Documents
      (whether brought against a party hereto or its respective affiliates, directors,
      officers, shareholders, employees or agents) shall be commenced exclusively
      in
      the state and federal courts sitting in the City of New York. Each party hereby
      irrevocably submits to the exclusive jurisdiction of the state and federal
      courts sitting in the City of New York, borough of Manhattan for the
      adjudication of any dispute hereunder or in connection herewith or with any
      transaction contemplated hereby or discussed herein (including with respect
      to
      the enforcement of any of the Transaction Documents), and hereby irrevocably
      waives, and agrees not to assert in any suit, action or proceeding, any claim
      that it is not personally subject to the jurisdiction of any such court, that
      such suit, action or proceeding is improper or is an inconvenient venue for
      such
      proceeding. Each party hereby irrevocably waives personal service of process
      and
      consents to process being served in any such suit, action or proceeding by
      mailing a copy thereof via registered or certified mail or overnight delivery
      (with evidence of delivery) to such party at the address in effect for notices
      to it under this Agreement and agrees that such service shall constitute good
      and sufficient service of process and notice thereof. Nothing contained herein
      shall be deemed to limit in any way any right to serve process in any other
      manner permitted by law. The parties hereby waive all rights to a trial by
      jury.
      If either party shall commence an action or proceeding to enforce any provisions
      of the Transaction Documents, then the prevailing party in such action or
      proceeding shall be reimbursed by the other party for its reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation
      and prosecution of such action or proceeding.

     

    5.10 Survival.
      The
      representations and warranties shall survive the Closing and the delivery of
      Securities for the applicable statue of limitations. 

     

    5.11 Execution.
      This
      Agreement may be executed in two or more counterparts, all of which when taken
      together shall be considered one and the same agreement and shall become
      effective when counterparts have been signed by each party and delivered
      hereunder, it being understood that both parties need not sign the same
      counterpart. In the event that any signature is delivered by facsimile
      transmission or by e-mail delivery of a “.pdf” format data file, such signature
      shall create a valid and binding obligation of the party executing (or on whose
      behalf such signature is executed) with the same force and effect as if such
      facsimile or “.pdf” signature page were an original thereof.

     

    5.12 Severability.
      If any
      term, provision, covenant or restriction of this Agreement is held by a court
      of
      competent jurisdiction to be invalid, illegal, void or unenforceable, the
      remainder of the terms, provisions, covenants and restrictions set forth herein
      shall remain in full force and effect and shall in no way be affected, impaired
      or invalidated, and the parties hereto shall use their commercially reasonable
      efforts to find and employ an alternative means to achieve the same or
      substantially the same result as that contemplated by such term, provision,
      covenant or restriction.

     

    5.13 Rescission
      and Withdrawal Right.
      Notwithstanding anything to the contrary contained in (and without limiting
      any
      similar provisions of) any of the other Transaction Documents, whenever any
      Holder exercises a right, election, demand or option under a Transaction
      Document and the Company does not timely perform its related obligations within
      the periods therein provided, then such Holder may rescind or withdraw, in
      its
      sole discretion from time to time upon written notice to the Company, any
      relevant notice, demand or election in whole or in part without prejudice to
      its
      future actions and rights.

     

    5.14 Replacement
      of Securities.
      If any
      certificate or instrument evidencing any Securities is mutilated, lost, stolen
      or destroyed, the Company shall issue or cause to be issued in exchange and
      substitution for and upon cancellation thereof (in the case of mutilation),
      or
      in lieu of and substitution therefor, a new certificate or instrument, but
      only
      upon receipt of evidence reasonably satisfactory to the Company of such loss,
      theft or destruction. The applicant for a new certificate or instrument under
      such circumstances shall also pay any reasonable third-party costs (including
      customary indemnity) associated with the issuance of such replacement
      Securities.

     

    
      
        
        

      

      
        15

        
          

        

      

      
        
        

      

    

     

    5.15 Independent
      Nature of Holders’ Obligations and Rights.
      The
      obligations of each Holder under any Transaction Document are several and not
      joint with the obligations of any other Holder, and no Holder shall be
      responsible in any way for the performance or non-performance of the obligations
      of any other Holder under any Transaction Document. Nothing contained herein
      or
      in any other Transaction Document, and no action taken by any Holder pursuant
      thereto, shall be deemed to constitute the Holders as a partnership, an
      association, a joint venture or any other kind of entity, or create a
      presumption that the Holders are in any way acting in concert or as a group
      with
      respect to such obligations or the transactions contemplated by the Transaction
      Documents. Each Holder shall be entitled to independently protect and enforce
      its rights, including without limitation, the rights arising out of this
      Agreement or out of the other Transaction Documents, and it shall not be
      necessary for any other Holder to be joined as an additional party in any
      proceeding for such purpose. The Company has elected to provide all Holders
      with
      the same terms and Transaction Documents for the convenience of the Company
      and
      not because it was required or requested to do so by the Holders.

     

    5.16 Construction.
      The
      parties agree that each of them and/or their respective counsel has reviewed
      and
      had an opportunity to revise the Transaction Documents and, therefore, the
      normal rule of construction to the effect that any ambiguities are to be
      resolved against the drafting party shall not be employed in the interpretation
      of the Transaction Documents or any amendments hereto. 

     

    5.17 Effectiveness
      of Agreement.
      This
      Agreement shall not be effective unless and until all Holders shall have
agreed
      to
      the terms and conditions hereunder. Other than the indemnification provisions
      included therein, the rights and obligations of the Company to the Holders
      under
      this Agreement shall supersede and replace the rights and obligations of the
      Company to the Holders under the Purchase Agreements and the other agreements
      entered into in connection therewith.

     

    [Signature
      Page Follows]


    
      
        
        

      

      
        16

        
          

        

      

      
        
        

      

    


    IN
      WITNESS WHEREOF, the parties hereto have caused this Securities Exchange and
      Amendment Agreement to be duly executed by their respective authorized
      signatories as of the date first indicated above.

     

    


    
      	
              GIGABEAM
                CORPORATION

            	 	
              Address/Facsimile
                Number/E-mail 

              Address
                for Notice:

            
	
              By:

            	
              /s/
                S. Jay Lawrence

            	 	
              GigaBeam
                Corporation

            
	 	
              Name:
                S. Jay Lawrence

            	 	
              Attention:
                S. Jay Lawrence

            
	 	
              Title:
                Chief Executive Officer

            	 	
              4021
                Stirrup Creek Drive, Suite 400

            
	 	 	
              Durham,
                NC 27703

            
	 	 	
              Facsimile:
                (919) 544-8470

            
	
              With
                a copy to (which shall not constitute notice):

               

              Amy
                Trombly, Esq.

            	 	
              Trombly
                Business Law

              Attention:
                Amy Trombly, Esq.

              1320
                Centre Street, Suite 202

              Newton,
                MA 02459

              Facsimile:
                (617) 243-0066

            


    

    


    


    [REMAINDER
      OF PAGE INTENTIONALLY LEFT BLANK

    SIGNATURE
      PAGE FOR HOLDER FOLLOWS]

     


    
      
        
        

      

      
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    [HOLDER
      SIGNATURE PAGES TO GGBM SECURITIES EXCHANGE AGREEMENT]

    


    IN
      WITNESS WHEREOF, the undersigned have caused this Securities Exchange Agreement
      to be duly executed by their respective authorized signatories as of the date
      first indicated above.

     

    Name
      of
      Holder: ____________________________________________________

     

    Signature
      of Authorized Signatory of Holder:
      __________________________

     

    Name
      of
      Authorized Signatory: ____________________________________

     

    Title
      of
      Authorized Signatory: _____________________________________

     

    Email
      Address of Authorized Signatory:
      ___________________________________________

     

    Fax
      Number of Authorized Signatory:
      _________________________________________

    
 

    Address
      for Notice of Holder:

    


    


    Address
      for Delivery of Securities for Holder (if not same as above):

    


    


    Shares
      of
      Series D Preferred Stock: ____________

    
 

    [SIGNATURE
      PAGES CONTINUE]

     

    
      
        
        

      

      
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