EXHIBIT
4.4

 

WARRANT
AGREEMENT

 

Agreement
made as of January 28, 2005 effective as of the OTC Listing Date (as hereinafter
defined) between GigaBeam Corporation, a Delaware corporation, with offices at
470 Springpark Place, Suite 900, Herndon, Virginia 20170 (“Company”), and
Continental Stock Transfer & Trust Company, a New York corporation, with
offices at 17 Battery Place, New York, New York 10004 (“Warrant
Agent”).

 

WHEREAS,
the Company is engaged in a private placement (“Offering”) of up to $2.5 million
principal amount of its 8% senior convertible promissory notes (“Notes”) and
common stock purchase warrants (“Warrants”) and has determined to cause such
Warrants to become (i) registered under Section 12(g) of the Exchange Act of
1934 and (ii) listed on the OTC Bulletin Board; 

 

WHEREAS,
HCFP Brenner Securities LLC (“HCFP”) is serving as placement agent in connection
with the Offering for which it will receive, among other things, a number of
Warrants equal to 10% of the Warrants issued and sold to investors in the
Offering;

 

WHEREAS,
the Company desires that after the date on which the Warrants are listed on the
OTC Bulletin Board (“OTC Listing Date”), certain terms thereof automatically
change, and that upon any transfer of Warrants effectuated through the Warrant
Agent, certificates in customary, market tradeable form be issued and governed
by the terms of this Agreement; 

 

WHEREAS,
the Company intends to register the (a) resale by the initial purchasers
(including HCFP for purposes of this Agreement) thereof of the Warrants and the
shares of common stock issuable to such initial purchasers upon exercise of the
Warrants and (b) the issuance by the Company of shares of common stock upon
exercise of the Warrants by any purchasers of such Warrants in the open
market;

 

WHEREAS,
each such Warrant evidences the right of the holder thereof to purchase one
share of common stock of the Company (“Common Stock”) at an exercise price of
$7.00 per share, subject to adjustment as described herein;

 

WHEREAS,
any Warrants purchased in the open market on and after the OTC Listing Date
shall be referred to herein as the “Public Warrants” and, collectively, with the
Warrants, the “Warrants;”

 

WHEREAS,
the Company desires that the Warrant Agent act on behalf of the Company, and the
Warrant Agent is willing to so act, in connection with the registration,
transfer, exchange, redemption and exercise of the Warrants;

 

WHEREAS,
the Company desires to provide for the form and provisions of the Public
Warrants, the terms upon which they shall be issued and exercised, and the
respective rights and obligation of the Company, the Warrant Agent, and the
holders of the Warrants; and

 

WHEREAS,
all acts and things have been done and performed which are necessary to make the
Public Warrants, when executed on behalf of the Company and countersigned by or
on behalf of the Warrant Agent, as provided herein, the valid, binding and legal
obligations of the Company, and to authorize the execution and delivery of this
Agreement.

 




















 

NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the
parties hereto agree as follows:

 

1.  Appointment
of Warrant Agent. The
Company hereby appoints the Warrant Agent, effective as of the OTC Listing Date,
to act as agent for the Company for the Warrants, and the Warrant Agent hereby
accepts such appointment and agrees to perform the same in accordance with the
terms and conditions set forth in this Agreement.

 

2.  Warrants.

 

2.1  Forms
of Warrant. The
Warrants outstanding prior to the OTC Listing Date will have been issued in the
form attached hereto as Exhibit
A. Each
Public Warrant shall be issued in registered form only, shall be in
substantially the form attached hereto as Exhibit
B, the
provisions of which are incorporated herein and shall be signed by, or bear the
facsimile signature of, the Chairman of the Board or President and Treasurer,
Secretary or Assistant Secretary of the Company and shall bear a facsimile of
the Company’s seal. In the event the person whose facsimile signature has been
placed upon any Public Warrant shall have ceased to serve in the capacity in
which such person signed the Public Warrant before such Public Warrant is
issued, it may be issued with the same effect as if he or she had not ceased to
be such at the date of issuance.

 

2.2  Effect
of Countersignature. Unless
and until countersigned by the Warrant Agent pursuant to this Agreement, a
Public Warrant shall be invalid and of no effect and may not be exercised by the
holder thereof.

 

2.3  Registration.

 

2.3.1  Warrant
Register. The
Warrant Agent shall maintain books (“Warrant Register”), for the registration of
transfer of the Warrants. Upon any transfer of the Warrants, the Warrant Agent
shall issue the new Warrants in the form of Public Warrants only and shall
register the new Public Warrants in the names of the respective holders thereof
in such denom-inations and otherwise in accordance with instructions delivered
to the Warrant Agent by the Company.

 

2.3.2  Registered
Holder. Prior
to due presentment for registration of transfer of any Warrant, the Company and
the Warrant Agent may deem and treat the person in whose name such Warrant shall
be registered upon the Warrant Register (“registered holder”), as the absolute
owner of such Warrant and of each Warrant represented thereby (notwithstanding
any notation of ownership or other writing on the Warrant Certificate made by
anyone other than the Company or the Warrant Agent), for the purpose of any
exercise thereof, and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary.

 

3.  Terms
and Exercise of Warrants

 

3.1  Warrant
Price. Each
Warrant shall entitle the registered holder thereof, subject to the provisions
of such Warrant and of this Warrant Agreement, to purchase from the Company the
number of shares of Common Stock stated therein, at the price of $7.00 per whole
share, subject to the adjustments provided in Section 4 hereof, in the last
sentences of this Section 3.1 and in Section 5.1 hereof. The term “Warrant
Price” as used in this Warrant Agreement refers to the price per share at which
Common Stock may be purchased pursuant to the exercise of a Warrant at the time
such Warrant is exercised. The Company in its sole discretion may lower the
Warrant Price at any time prior to the Expiration Date. 

 

3.2  Duration
of Warrants. A
Warrant may be exercised from the date hereof through the period (“Exercise
Period”) commencing on the date hereof and terminating on the earlier of (i)
January 28, 2011 and (ii) the date fixed for redemption of the Warrants as
provided in Section 6 of this Agreement (“Expiration Date”). Except with respect
to the right to receive the Redemption Price (as set forth in Section 6
hereunder), each Warrant not exercised on or before the Expiration Date shall
become void, and all rights thereunder and all rights in respect thereof under
this Agreement shall cease at the close of business on the Expiration Date. The
Company in its sole discretion may extend the duration of the Warrants by
delaying the Expiration Date. 

 







-2-












 

3.3  Exercise
of Warrants.

 

3.3.1  Payment. Subject
to the provisions of the Warrant and this Warrant Agreement, a Warrant, when
countersigned by the Warrant Agent, may be exercised by the registered holder
thereof by surrendering it, at the office of the Warrant Agent, or at the office
of its successor as Warrant Agent, in the Borough of Manhattan, City and State
of New York, with the subscription form, as set forth in the Warrant, duly
executed, and by paying in full, in lawful money of the United States, in cash,
good certified check or good bank draft payable to the order of the Company (or
as otherwise agreed to by the Company), the Warrant Price for each full share of
Common Stock as to which the Warrant is exercised and any and all applicable
taxes due in connection with the exercise of the Warrant, the exchange of the
Warrant for the Common Stock, and the issuance of the Common Stock.

 

3.3.2  Issuance
of Certificates. As soon
as practicable after the exercise of any Warrant and the clearance of the funds
in payment of the Warrant Price, the Company shall issue to the registered
holder of such Warrant a certificate or certificates for the number of full
shares of Common Stock to which such holder is entitled, registered in such name
or names as may be directed by such holder, and if such Warrant shall not have
been exercised in full, a new countersigned Public Warrant for the number of
shares as to which such Warrant shall not have been exercised. Notwithstanding
the foregoing, the Company shall not be obligated to deliver any securities
pursuant to the exercise of a Warrant unless a registration statement under the
Act with respect to the Common Stock is effective. Warrants may not be exercised
by, or securities issued to, any registered holder in any state in which such
exercise would be unlawful.

 

3.3.3  Valid
Issuance. All
shares of Common Stock issued upon the proper exercise of a Warrant in
conformity with this Agreement shall be validly issued, fully paid and
nonassessable.

 

3.3.4  Date
of Issuance. Each
person in whose name any such certificate for shares of Common Stock issued upon
the proper exercise of a Warrant shall for all purposes be deemed to have become
the holder of record of such shares on the date on which the Warrant was
surrendered and payment of the Warrant Price was made, irrespective of the date
of delivery of such certificate, except that, if the date of such surrender and
payment is a date when the stock transfer books of the Company are closed, such
person shall be deemed to have become the holder of such shares at the close of
business on the next succeeding date on which the stock transfer books are
open.

 

3.4  Warrant
Solicitation and Warrant Solicitation Fee.

 

3.4.1  The
Company has engaged HCFP, on a non-exclusive basis, as its agent for the
solicitation of the exercise of the Public Warrants. The Company, at its cost,
will (i) assist HCFP with respect to such solicitation, if requested by HCFP,
and (ii) direct the Company’s transfer agent and the Warrant Agent to deliver to
HCFP, lists of the record and, to the extent known, beneficial owners of the
Public Warrants. The Company hereby instructs the Warrant Agent to cooperate
with HCFP in every respect in connection with HCFP’s solicitation activities,
including, but not limited to, providing to HCFP, at the Company’s cost, a list
of record and, to the extent known, beneficial owners of the Public Warrants and
circulating a prospectus or offering circular provided by the Company disclosing
the compensation arrangements referenced in Section 3.4.2 below to holders of
the Public Warrants at the time of exercise of the Public Warrants. In addition
to the conditions set forth in Section 3.4.2, HCFP shall accept payment of
the warrant solicitation fee provided in Section 3.4.2 only if it has
provided bona fide services to the Company in connection with the exercise of
the Public Warrants and only to the extent that an investor who exercises his
Public Warrants specifically designates, in writing, that HCFP solicited his
exercise. In addition to soliciting, either orally or in writing, the exercise
of Public Warrants by a holder, such services may also include disseminating
information, either orally or in writing, to holders about the Company or the
market for the Company’s securities, or assisting in the processing of the
exercise of Public Warrants.

 

3.4.2  In each
instance in which a Public Warrant is exercised, the Warrant Agent shall
promptly give written notice of such exercise to the Company and HCFP (“Warrant
Agent’s Exercise Notice”). If, upon the exercise of any Public Warrant more than
one year from the date hereof, (i) the market price of the Company’s Common
Stock is greater than the Warrant Price, (ii) disclosure of compensation
arrangements between the Company and HCFP with respect to the solicitation of
the exercise of the Public Warrants was made at the time of exercise (by
delivery of the Prospectus or as otherwise required by applicable law, rule or
regulation), (iii) the holder of the Public Warrant confirms in writing that the
exercise of the Public Warrant was solicited by HCFP, (iv) the Public Warrant
was not held in a discretionary account, and (v) the solicitation of the
exercise of the Public Warrant was not in violation of Regulation M (as such
rule or any successor rule may be in effect as of such time of exercise)
promulgated under the Securities Exchange Act of 1934, as amended, then the
Warrant Agent, simultaneously with the distribution of the Common Stock
underlying the Public Warrants so exercised in accordance with the instructions
from the Company following receipt of the proceeds to the Company received upon
exercise of such Public Warrant(s), shall, on behalf of the Company, pay a fee
of 5% of the Warrant Price to HCFP, provided that HCFP delivers to the Warrant
Agent within ten (10) business days from the date on which HCFP has received the
Warrant Agent’s Exercise Notice, a certificate that the conditions set forth in
the preceding clauses (iii), (iv) and (v) have been satisfied. Notwithstanding
the foregoing, no fee will be paid to HCFP with respect to the exercise by HCFP
or its affiliates or the Company’s officers or directors of Public Warrants
purchased by it or them and still held by them for its or their own account.
HCFP and the Company may at any time during business hours, examine the records
of the Warrant Agent, including its ledger of original Public Warrant
certificates returned to the Warrant Agent upon exercise of Public
Warrants.

 

3.4.3  The
provisions of this Section 3 may not be modified, amended or deleted
without the prior written consent of HCFP. 

 







-3-












4.  Adjustments.

 

4.1  Stock
Dividends - Split-Ups. If
after the date hereof, and subject to the provisions of Section 4.5, the number
of outstanding shares of Common Stock is increased by a stock dividend payable
in shares of Common Stock or by a split-up of shares of Common Stock or other
similar event, then, on the effective date thereof, the number of shares
issuable on exercise of each Warrant shall be increased in proportion to such
increase in outstanding shares and the then applicable Warrant Price shall be
correspondingly decreased.

 

4.2  Aggregation
of Shares. If
after the date hereof, and subject to the provisions of Section 4.5, the number
of outstanding shares of Common Stock is decreased by a consolidation,
combination or reclassification of shares of Common Stock or other similar
event, then, upon the effective date of such consolidation, combination or
reclassification, the number of shares issuable on exercise of each Warrant
shall be decreased in proportion to such decrease in outstanding shares and the
then applicable Warrant Price shall be correspondingly increased.

 

4.3  Replacement
of Securities Upon Reorganization, etc. If after
the date hereof any capital reorganization or reclassification of the Common
Stock of the Company, or consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets to another
corporation or other similar event shall be effected, then, as a condition of
such reorganization, reclassification, consolidation, merger, or sale, lawful
and fair provision shall be made whereby the holders shall thereafter have the
right to purchase and receive, upon the basis and upon the terms and conditions
specified in the Warrants and in lieu of the shares of Common Stock of the
Company immediately theretofore purchasable and receivable upon the exercise of
the rights represented thereby, such shares of stock, securities, or assets as
may be issued or payable with respect to or in exchange for the number of
outstanding shares of such Common Stock equal to the number of shares of such
stock immediately theretofore purchasable and receivable upon the exercise of
the rights represented by the Warrants, had such reorganization,
reclassification, consolidation, merger, or sale not taken place and in such
event appropriate provision shall be made with respect to the rights and
interests of the holders to the end that the provisions hereof (including,
without limitation, provisions for adjustments of the Warrant Price and of the
number of shares purchas-able upon the exercise of the Warrants) shall
thereafter be applicable, as nearly as may be in relation to any share of stock,
securities, or assets thereafter deliver-able upon the exercise hereof. The
Company shall not effect any such consolidation, merger, or sale unless prior to
the consummation thereof the successor corporation (if other than the Company)
resulting from such consolidation or merger, or the corporation purchasing such
assets, shall assume by written instrument executed and delivered to the Warrant
Agent the obligation to deliver to the holders such shares of stock, securities,
or assets as, in accordance with the foregoing provisions, such holders may be
entitled to purchase.

 

4.4  Notices
of Changes in Warrant. Upon
every adjustment of the Warrant Price or the number of shares issuable on
exercise of a Warrant, the Company shall give written notice thereof to the
Warrant Agent, which notice shall state the Warrant Price resulting from such
adjustment and the increase or decrease, if any, in the number of shares
purchasable at such price upon the exercise of a Warrant, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Upon the occurrence of any event specified in Sections
4.1, 4.2 or 4.3, the Company shall give written notice in the manner set forth
above of the record date for such dividend, distribution, or subscription
rights, or the effective date of such reorganization, reclassification,
con-solidation, merger, sale, dissolution, liquidation, winding up or issuance
or the adjustment date of the increase in the exercise price. Such notice shall
also specify the date as of which the holders of Common Stock of record shall
participate in such dividend, distribution, or subscription rights, or shall be
entitled to exchange their Common Stock for stock, securities, or other assets
deliverable upon such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation, winding up or issuance. Failure to give such
notice, or any defect therein, shall not affect the legality or validity of such
event.

 

4.5  No
Fractional Shares.
Notwithstanding any provision contained in this Warrant Agreement to the
contrary, the Company shall not issue fractional shares upon exercise of
Warrants. If, by reason of any adjustment made pursuant to this Section 4,
the holder of any Warrant would be entitled, upon the exercise of such Warrant,
to receive a fractional interest in a share, the number of shares of Common
Stock to be received shall be rounded up to the nearest whole
number.

 

4.6  Form
of Warrant. The
form of Warrant need not be changed because of any adjustment pursuant to this
Section 4, and Public Warrants issued after such adjustment may state the same
Warrant Price and the same number of shares as is stated in the original
Warrants. However, the Company may at any time in its sole discretion make any
change in the form of Public Warrant that the Company may deem appropriate and
that does not affect the substance thereof, and any Public Warrant thereafter
issued or countersigned, whether in exchange or substitution for an outstanding
Public Warrant or otherwise, may be in the form as so changed.

 







-4-












5.  Transfer
and Exchange of Warrants.

 

5.1  Registration
of Transfer. The
Warrant Agent shall register the transfer, from time to time, of any outstanding
Warrant upon the Warrant Register, upon surrender of such Warrant for transfer,
properly endorsed with signatures properly guaranteed and accompanied by
appropriate instructions for transfer. Upon any such transfer, a new certificate
in the Public Warrant form representing an equal aggregate number of Public
Warrants shall be issued and the old Warrant shall be cancelled by the Warrant
Agent. The Warrants so cancelled shall be delivered by the Warrant Agent to the
Company from time to time upon request. Following the OTC Listing Date, any
holder of Warrants shall be entitled to submit such Warrants to the Warrant
Agent in exchange for certificates evidencing Public Warrants (bearing
appropriate legend). Notwithstanding anything in this Agreement to the contrary,
the number of Warrant Shares issuable upon exercise of, and the Warrant Price
of, any Public Warrant issued upon exchange of an old Warrant shall be adjusted
to give effect to any adjustment made pursuant to Section 5 of the old
Warrant.

 

5.2  Procedure
for Surrender of Warrants.
Warrants may be surrendered to the Warrant Agent, together with a written
request for exchange or transfer, and there-upon the Warrant Agent shall issue
in exchange therefor one or more Warrants as requested by the registered holder
of the Warrants so surrendered, representing an equal aggregate number of
Warrants; provided, however, that in the event that a Warrant surrendered for
transfer bears a restrictive legend, the Warrant Agent shall not cancel such
Warrant and issue new Public Warrants in exchange therefor until the Warrant
Agent has received an opinion of counsel for the Company stating that such
transfer may be made and indicating whether the new Public Warrants must also
bear a restrictive legend.

 

5.3  Fractional
Warrants. The
Warrant Agent shall not be required to affect any registration of transfer or
exchange which will result in the issuance of a warrant certificate for a
fraction of a warrant.

 

5.4  Service
Charges. No
service charge shall be made for any exchange or registration of transfer of
Warrants.

 

5.5  Warrant
Execution and Countersignature. The
Warrant Agent is hereby authorized to countersign and to deliver, in accordance
with the terms of this Agreement, the Public Warrants required to be issued
pursuant to the provisions of this Section 5, and the Company, whenever required
by the Warrant Agent, will supply the Warrant Agent with Public Warrants duly
executed on behalf of the Company for such purpose.

 

6.  Redemption.

 

6.1  Redemption. Subject
to Section 6.4 hereof, not less than all of the outstanding Warrants may be
redeemed, at the option of the Company, at any time commencing 30 days after the
date of effectiveness of the Registration Statement and prior to their
expiration, at the office of the Warrant Agent, upon the notice referred to in
Section 6.2. at the price of $.05 per Warrant (“Redemption Price”),
provided that the last sales price of the Common Stock has been at least 180% of
the then-effective Exercise Price, on each of the ten (10) trading days ending
within three business days prior to the date on which notice of redemption is
given. 

 

6.2  Date
Fixed for, and Notice of, Redemption. In the
event the Company shall elect to redeem all of the Warrants, the Company shall
fix a date for the redemption. Notice of redemption shall be mailed by first
class mail, postage prepaid, by the Company not less than 14 days prior to the
date fixed for redemption to the registered holders of the Warrants to be
redeemed at their last addresses as they shall appear on the registration books.
Any notice mailed in the manner herein provided shall be conclusively presumed
to have been duly given whether or not the registered holder received such
notice.

 







-5-












6.3  Exercise
After Notice of Redemption. The
Warrants may be exercised in accordance with Section 3 of this Agreement at
any time after notice of redemption shall have been given by the Company
pursuant to Section 6.2. hereof and prior to the time and date fixed for
redemption. On and after the redemption date, the record holder of the Warrants
shall have no further rights except to receive, upon surrender of the Warrants,
the Redemption Price.

 

6.4  Outstanding
Warrants Only. The
Company understands that the redemption rights provided for by this Section 6
apply only to outstanding Warrants. To the extent a person holds rights to
purchase Warrants, such purchase rights shall not be extinguished by redemption.
However, once such purchase rights are exercised, the Company may redeem the
Warrants issued upon such exercise provided that the criteria for redemption are
met. 

 

7.  Other
Provisions Relating to Rights of Holders of Warrants.

 

7.1  No
Rights as Stockholder. A
Warrant does not entitle the registered holder thereof to any of the rights of a
stockholder of the Company, including, without limitation, the right to receive
divi-dends, or other distributions, exercise any preemptive rights to vote or to
consent or to receive notice as stockholders in respect of the meetings of
stockholders or the election of directors of the Company or any other
matter.

 

7.2  Lost,
Stolen, Mutilated, or Destroyed Warrants. If any
Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant
Agent may on such terms as to indemnity or otherwise as they may in their
discretion impose (which shall, in the case of a mutilated Warrant, include the
surrender thereof), issue a new Public Warrant of like denomination, tenor, and
date as the Warrant so lost, stolen, mutilated, or destroyed. Any such new
Public Warrants shall constitute a substitute contractual obligation of the
Company, whether or not the allegedly lost, stolen, mutilated, or destroyed
Warrant shall be at any time enforceable by anyone.

 

7.3  Reservation
of Common Stock. The
Company shall at all times reserve and keep available a number of its authorized
but unissued shares of Common Stock that will be sufficient to permit the
exercise in full of all outstanding Warrants issued pursuant to this
Agreement.

 

7.4  Registration
of Common Stock. The
Company will use its best efforts to maintain the effectiveness of the
registration statement covering the Public Warrants and the Warrant Shares at
the OTC Listing Date until the expiration of the Warrants in accordance with the
provisions of this Agreement. 

 

8.  Concerning
the Warrant Agent and Other Matters.

 

8.1  Payment
of Taxes. The
Company will from time to time promptly pay all taxes and charges that may be
im-posed upon the Company or the Warrant Agent in respect of the issuance or
delivery of shares of Common Stock upon the exercise of Warrants, but the
Company shall not be obligated to pay any transfer taxes in respect of the
Warrants or such shares.

 

8.2  Resignation,
Consolidation, or Merger of Warrant Agent.

 







-6-












8.2.1  Appointment
of Successor Warrant Agent. The
Warrant Agent, or any successor to it hereafter appointed, may resign its duties
and be discharged from all further duties and liabilities hereunder after giving
sixty (60) days’ notice in writing to the Company. If the office of the Warrant
Agent becomes vacant by resignation or incapacity to act or otherwise, the
Company shall appoint in writing a successor Warrant Agent in place of the
Warrant Agent. If the Company shall fail to make such appointment within a
period of 30 days after it has been notified in writing of such resignation or
incapacity by the Warrant Agent or by the holder of the Warrant (who shall, with
such notice, submit his Warrant for inspection by the Company), then the holder
of any Warrant may apply to the Supreme Court of the State of New York for the
County of New York for the appoint-ment of a successor Warrant Agent at the
Company’s cost. Any successor Warrant Agent, whether appointed by the Company or
by such court, shall be a corporation organized and existing under the laws of
the State of New York, in good standing and having its principal office in the
Borough of Manhattan, City and State of New York, and authorized under such laws
to exercise corporate trust powers and subject to supervision or examination by
federal or state authority. After appointment, any successor Warrant Agent shall
be vested with all the authority, powers, rights, immunities, duties, and
obligations of its predecessor Warrant Agent with like effect as if originally
named as Warrant Agent hereunder, without any further act or deed; but if for
any reason it becomes necessary or appropriate, the predecessor Warrant Agent
shall execute and deliver, at the expense of the Company, an instrument
transferring to such successor Warrant Agent all the authority, powers, and
rights of such predecessor Warrant Agent here-under; and upon request of any
successor Warrant Agent the Company shall make, exe-cute, acknowledge, and
deliver any and all instruments in writing for more fully and effectually
vesting in and confirming to such successor Warrant Agent all such authority,
powers, rights, immunities, duties, and obligations.

 

8.2.2  Notice
of Successor Warrant Agent. In the
event a successor Warrant Agent shall be appointed, the Company shall give
notice thereof to the predecessor Warrant Agent and the transfer agent for the
Common Stock not later than the effective date of any such
appointment.

 

8.2.3  Merger
or Consolidation of Warrant Agent. Any
corporation into which the Warrant Agent may be merged or with which it may be
consolidated or any corporation resulting from any merger or consolidation to
which the Warrant Agent shall be a party shall be the successor Warrant Agent
under this Agreement without any further act.

 

8.3  Fees
and Expenses of Warrant Agent.

 

8.3.1  Remuneration. The
Company agrees to pay the Warrant Agent reasonable remuneration for its services
as such Warrant Agent hereunder and will reim-burse the Warrant Agent upon
demand for all expenditures that the Warrant Agent may reasonably incur in the
execution of its duties hereunder.

 

8.3.2  Further
Assurances. The
Company agrees to perform, execute, acknowledge, and deliver or cause to be
performed, executed, acknowledged, and delivered all such further and other
acts, instruments, and assurances as may reason-ably be required by the Warrant
Agent for the carrying out or performing of the provisions of this
Agreement.

 

8.4  Liability
of Warrant Agent.

 

8.4.1  Reliance
on Company Statement.
Whenever in the performance of its duties under this Warrant Agreement, the
Warrant Agent shall deem it necessary or desirable that any fact or matter be
proved or estab-lished by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a statement signed by the President or Chairman of the Board of
the Company and delivered to the Warrant Agent. The Warrant Agent may rely upon
such statement for any action taken or suffered in good faith by it pursuant to
the provisions of this Agreement.

 

8.4.2  Indemnity. The
Warrant Agent shall be liable hereunder only for its own negligence, willful
mis-conduct or bad faith. The Company agrees to indemnify the Warrant Agent and
save it harmless against any and all liabilities, including judgments, costs and
reasonable counsel fees, for anything done or omitted by the Warrant Agent in
the execution of this Agreement except as a result of the Warrant Agent’s
negligence, willful miscon-duct, or bad faith.

 







-7-












8.4.3  Exclusions. The
Warrant Agent shall have no respons-ibility with respect to the validity of this
Agreement or with respect to the validity or execution of any Warrant (except
its countersignature thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any
Warrant; nor shall it be responsible to make any adjustments required under the
provisions of Section 4 hereof or responsible for the manner, method, or amount
of any such adjustment or the ascertaining of the existence of facts that would
require any such adjustment; nor shall it by any act hereunder be deemed to make
any represen-tation or warranty as to the authorization or reservation of any
shares of Common Stock to be issued pursuant to this Agreement or any Warrant or
as to whether any shares of Common Stock will when issued be valid and fully
paid and nonassessable.

 

8.5  Acceptance
of Agency. The
Warrant Agent hereby accepts the agency established by this Agreement and agrees
to perform the same upon the terms and condi-tions herein set forth and among
other things, shall account promptly to the Company with respect to Warrants
exercised and concurrently account for, and pay to the Company, all moneys
received by the Warrant Agent for the purchase of shares of the Company’s Common
Stock through the exercise of Warrants.

 

9.  Miscellaneous
Provisions.

 

9.1  Successors. All the
covenants and provisions of this Agreement by or for the benefit of the Company
or the Warrant Agent shall bind and inure to the benefit of their respective
successors and assigns.

 

9.2  Notices. Any
notice, statement or demand authorized by this Warrant Agreement to be given or
made by the Warrant Agent or by the holder of any Warrant to or on the Company
shall be sufficiently given when so delivered if by hand or overnight delivery
or if sent by certified mail or private courier service within five days after
deposit of such notice, postage prepaid, addressed (until another address is
filed in writing by the Company with the Warrant Agent), as
follows:

 

GigaBeam
Corporation

470
Springpark - Suite 900

Herndon,
Virginia 20170

Attn: Chairman




with a
copy to:




Blank
Rome LLP

405
Lexington Avenue - 23rd
Floor

New York,
New York 10174

Attn: Elise M.
Adams, Esq.










-8-















Any
notice, statement or demand authorized by this Agreement to be given or made by
the holder of any Warrant or by the Company to or on the Warrant Agent shall be
sufficiently given when so delivered if by hand or overnight delivery or if sent
by certified mail or private courier service within five days after deposit of
such notice, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company), as follows:

 

Continental
Stock Transfer & Trust Company 

17
Battery Place

New York,
New York 10004

Attn: Compliance
Department




with a
copy in each case to:




Graubard
Miller

405
Lexington Avenue - 19th
Floor

New York,
New York 10174

Attn: David
Alan Miller, Esq.

and

HCFP/Brenner
Securities LLC

888
Seventh Avenue, 17th
Floor

New York,
New York 10106

Attn: Ira Scott
Greenspan

 

9.3  Applicable
law. The
validity, interpretation, and performance of this Agreement and of the Warrants
shall be governed in all respects by the laws of the State of New York, without
giving effect to conflict of laws, except to the extent that the Delaware
General Corporation Law is mandatorily applicable. The Company hereby agrees
that any action, proceeding or claim against it arising out of or relating in
any way to this Agreement shall be brought and enforced in the courts of the
State of New York or the United States District Court for the Southern District
of New York, and irrevocably submits to such jurisdiction, which jurisdiction
shall be exclusive. The Company hereby waives any objection to such exclusive
jurisdiction and that such courts represent an inconvenience forum. Any such
process or summons to be served upon the Company may be served by transmitting a
copy thereof by registered or certified mail, return receipt requested, postage
prepaid, addressed to it at the address set forth in Section 9.2 hereof. Such
mailing shall be deemed personal service and shall be legal and binding upon the
Company in any action, proceeding or claim.

 

 

9.4  Persons
Having Rights under this Agreement. Nothing
in this Agreement expressed and nothing that may be implied from any of the
provisions hereof is intended, or shall be construed, to confer upon, or give
to, any person or corporation other than the parties here-to, the registered
holders of the Warrants and, as applicable, HCFP, any right, remedy, or claim
under or by reason of this Warrant Agreement or of any covenant, condition,
stipulation, promise, or agreement hereof. HCFP shall be deemed to be a
third-party beneficiary of this Agreement with respect to Sections 3.4, 7.4 and
9.2 hereof. All covenants, conditions, stipulations, promises, and agreements
contained in this Warrant Agreement shall be for the sole and exclusive benefit
of the parties hereto (and HCFP with respect to the Sections 3.4, 7.4 and 9.2
hereof) and their successors and assigns and of the registered holders of the
Warrants.

 

9.5  Examination
of the Warrant Agreement. A copy
of this Agreement shall be available at all reason-able times at the office of
the Warrant Agent in the Borough of Manhattan, City and State of New York, for
inspection by the registered holder of any Warrant. The Warrant Agent may
require any such holder to submit his Warrant for inspection by it.

 

9.6  Counterparts. This
Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.

 

9.7  Effect
of Headings. The
Section headings herein are for convenience only and are not part of this
Warrant Agreement and shall not affect the inter-pretation thereof.

 

 

[SIGNATURE
PAGE TO FOLLOW]

  








-9-













IN
WITNESS WHEREOF, this Warrant Agreement has been duly executed by the parties
hereto as of the day and year first above written.

 


		 	 
	Attest: 	GIGABEAM
      CORPORATION
	 
 	 
 	 
 
	/s/ Brad Shiffman 	By:  	/s/ Louis
  Slaughter
	
      

      	
      

    
	 	
      Name:  Louis
      Slaughter

      Title:  Chief Executive
Officer





 


		 	 
	Attest: 	CONTINENTAL
      STOCK TRANSFER & TRUST COMPANY
	 
 	 
 	 
 
	/s/ Brad Shiffman 	By:  	/s/ Steven
Nelson
	
      

      	
      

    
	 	
      Name:  Steven
      Nelson

      Title:  Chairman




 


	 	For
      Purposes of Section 3.4
		 	 
		HCFP BRENNER
      SECURITIES LLC
	 
 	 
 	 
 
		By:  	/s/ Ira Scott
    Greenspan
		
      

    
	 	
      Name:  Ira Scott
      Greenspan

      Title:  Vice Chairman - Corporate
      Counsel




 

 







-10-











 




	 	 	 	 	
       EXHIBIT
  B

	NUMBER

       

      __________

       
	 	(SEE
      REVERSE
      SIDE FOR LEGEND)

       

      (THIS
      WARRANT CERTIFICATE WILL BE VOID IF NOT EXERCISED PRIOR TO 5:00 P.M. NEW
      YORK CITY TIME, January , 2011 

       
	
       WARRANTS
	 

       

	 	 	GIGABEAM
      CORPORATION 	 	 
	 	 	 	CUSIP
      _______________	 
	 	 	CLASS B
      WARRANTS 	 	 





THIS
CERTIFIES THAT, for value received 

is the
registered holder of Class B Warrants expiring January ________, 2011 (the
“Warrants”) to purchase one fully paid and non-assessable share of Common Stock,
par value $.001 per share (“Shares”), of GigaBeam Corporation, a Delaware
corporation (the “Company”), for each Warrant evidenced by this Warrant
Certificate. The Warrants entitle the holder thereof to purchase from the
Company, at any time through the expiration of the Warrants such
number of Shares of the Company at the price of $7.00 per share, subject to
adjustment, upon surrender of this Warrant Certificate and payment of the
Warrant Price at the office or agency of the Warrant Agent, Continental Stock
Transfer & Trust Company (such payment to be made by check made payable to
the Warrant Agent), but only subject to the conditions set forth herein and in
the Warrant Agreement between the Company and Continental Stock Transfer &
Trust Company. The Warrant Agreement provides that upon the occurrence of
certain events the Warrant Price and the number of Warrant Shares purchasable
hereunder, set forth on the face hereof, may, subject to certain conditions, be
adjusted. The term Warrant Price as used in this Warrant Certificate refers to
the price per Share at which Shares may be purchased at the time a Warrant is
exercised.

No
fraction of a Share will be issued upon any exercise of a Warrant. If the holder
of a Warrant would be entitled to receive a fraction of a Share upon any
exercise of a Warrant, the Company shall, upon such exercise, round up to the
nearest whole number the number of Shares to be issued to such
holder.

Upon any
exercise of Warrants for less than the total number of Warrants represented by
this Warrant Certificate, there shall be issued to the registered holder hereof
or his assignee a new Warrant Certificate covering the number of Warrants that
have not been exercised.

This
Warrant Certificate, when surrendered at the office or agency of the Warrant
Agent by the registered holder hereof in person or by attorney duly authorized
in writing, may be exchanged in the manner and subject to the limitations
provided in the Warrant Agreement, but without payment of any service charge,
for another Warrant Certificate or Warrant Certificates of like tenor and
evidencing in the aggregate a like number of Warrants.

Upon due
presentment for registration of transfer of the Warrant Certificate at the
office or agency of the Warrant Agent, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any applicable tax or other governmental
charge.

The
Company and the Warrant Agent may deem and treat the registered holder as the
absolute owner of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, of any distribution to the registered holder, and for all other
purposes, and neither the Company nor the Warrant Agent shall be affected by any
notice to the contrary.

The
Warrants do not entitle the registered holder to any of the rights of a
stockholder of the Company.


The
Company reserves the right to call the Warrants for redemption, at any time
after __________ ___, 2005 [the
date that is 30 days after effectiveness of the registration statement required
under the Securities Purchase Agreement] and at
any time prior to their exercise, with a notice of call in writing to the
holders of record of the Warrants, giving 14 business days’ prior written notice
of such call, if, the last sale price of the Shares has been at least 180%
(initially $_____), of the price per Share at which Shares could then be
purchased upon exercise of the Warrant for all ten (10)of the consecutive
trading days ending within three business days prior to the date on which notice
of such call is given. The call price of the Warrants is to be $.05 per Warrant.
Any Warrant either not exercised or tendered back to the Company by the end of
the date specified in the notice of call shall be canceled on the books of the
Company and have no further value except for the $.05 call price.





	By:	 	By: 
	    	 	 
	
       Secretary
	 	
       Chairman of the Board 




                 






















SUBSCRIPTION
FORM

To Be
Executed by the Registered Holder in Order to Exercise Warrants




The
undersigned Registered Holder irrevocably elects to exercise
______________ Warrants represented by this Warrant Certificate, and to
purchase the shares of Common Stock issuable upon the exercise of such Warrants,
and requests that Certificates for such shares shall be issued in the name
of

 





	
      (PLEASE
      TYPE OR PRINT NAME AND ADDRESS)

	 
	 



(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)

 


	and be
      delivered to 	 
	
        (PLEASE PRINT OR TYPE NAME AND
      ADDRESS)

	 



and, if
such number of Warrants shall not be all the Warrants evidenced by this Warrant
Certificate that a new Warrant Certificate for the balance of such Warrants be
registered in the name of, and delivered to, the Registered Holder at the
address stated below:





	Dated:	 	 	 
	 	 	 	(SIGNATURE)
	 	 	 	 
	 	 	 	(ADDRESS)
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	 	
      (TAX
      IDENTIFICATION NUMBER)

	 	 	 	 



 

ASSIGNMENT

To Be
Executed by the Registered Holder in Order to Assign Warrants




For Value
Received, _______________________ hereby sell, assign, and transfer unto


 


	 
	
      (PLEASE
      TYPE OR PRINT NAME AND ADDRESS)

	 
	 



(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)


	and be
      delivered to 	 
	
        (PLEASE PRINT OR TYPE NAME AND
      ADDRESS)




 

______________________
of the Warrants represented by this Warrant Certificate, and hereby irrevocably
constitute and appoint _________________________________ Attorney to transfer
this Warrant Certificate on the books of the Company, with full power of
substitution in the premises.





	Dated: _________________________	 	 
	 	 	(SIGNATURE)
	 	 	 



 The
signature to the assignment of the Subscription Form must correspond to the name
written upon the face of this Warrant Certificate in every particular, without
alteration or enlargement or any change whatsoever, and must be guaranteed by a
commercial bank or trust company or a member firm of the American Stock
Exchange, New York Stock Exchange, Pacific Stock Exchange or Chicago Stock
Exchange.