EXHIBIT 10.13
HCFP/XXXXXXX SECURITIES, LLC
000 XXXXXXX XXXXXX, 00XX XXXXX
XXX XXXX, XXX XXXX 00000
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MERGER, ACQUISITION AND
OTHER BUSINESS ARRANGEMENT
AGREEMENT
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October 19, 2004
GigaBeam Corporation
00000-X Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx, Chief Executive Officer
Gentlemen:
This is to confirm our agreement whereby GigaBeam Corporation
("Company") will compensate HCFP/Xxxxxxx Securities, LLC ("Xxxxxxx") if the
Company engages in transactions with persons introduced to it by Xxxxxxx:
1. Agreement Regarding Mergers, Acquisitions and Other Business
Arrangements
(a) In the event that any acquisition of and/or merger with other
companies or joint ventures or other transaction with any third parties
including, without limitation, (i) the sale of the business, assets or stock of
the Company or any its subsidiaries or affiliates or any significant portion
thereof, (ii) the purchase of the business, assets or stock of a third party or
any significant portion thereof or (iii) entering into a commercial relationship
with a third party not involving a transaction of the type referred to in
clauses (i) or (ii) (collectively, a "Transaction"), occur which result from or
are caused by introductions made by Xxxxxxx within twelve (12) months prior
thereto, the Company shall pay Xxxxxxx 5% of the first $5 million of Legal
Consideration (hereinafter defined), 4% of the next $1million of Legal
Consideration, 3% of the next $1 million of Legal Consideration, 2% of the next
$1 million of Legal Consideration and 1% of the excess Legal Consideration, if
any, over $8 million paid in any such Transaction.
For purposes of this Agreement, the phrase "Legal Consideration"
shall mean the total value of the securities (valued as determined in the
applicable agreement governing the terms of the Transaction or, if not so
valued, at market on the day of closing, or if there is no public market, valued
as set forth herein for other property), cash and assets and property or other
benefits exchanged by the Company or received by the Company or its shareholders
as consideration as a result of or arising out of the Transaction, irrespective
of the period of payment or terms (all valued at fair market present value as
agreed or, if not, by an independent appraiser selected by the Company in good
faith).
(b) All fees payable under this Section 1 are due and payable to
Xxxxxxx, in cash or by certified check, at the closing or closings of any
Transaction; provided, that if the Legal Consideration on any Transaction is
other than all cash, the payment to Xxxxxxx shall be, at the option of the
Company, either the cash equivalent or such other consideration proportionate
with the types of Legal Consideration paid on such Transaction; and provided,
however, that if any Legal Consideration is to be paid or received at a future
date or is contingent upon a future event, the related fees shall be due and
payable on the business day after receipt or payment by the Company. No fees
shall be payable under this Section 1 or otherwise if, for any reason, the
Transaction is not consummated.
2. Term of Agreement
This Agreement shall be for a term of three years from the date hereof.
3. Expenses
The Xxxxxxx shall bear all costs and expenses incurred by Xxxxxxx
directly in connection with the introduction or attempted introduction(s) made
by Xxxxxxx in connection with Transactions and otherwise in connection with the
performance of its services hereunder, unless otherwise agreed to by the
Company.
4. Use of Name and Reports
Use of Xxxxxxx'x name in annual reports or any other reports of the
Company or press releases issued by the Company shall require the prior written
approval of Xxxxxxx, which shall not be unreasonably withheld or delayed.
5. Status as Independent Contractor
Xxxxxxx shall perform its services as an independent contractor and not
as an employee of the Company or affiliate thereof. It is expressly understood
and agreed to by the parties that Xxxxxxx, and any individual or entity that
Xxxxxxx shall employ in order to perform its services hereunder, shall have no
authority to act for, represent or bind the Company or any affiliate thereof in
any manner, except as may be expressly agreed to by the Company in writing from
time to time.
6. Entire Agreement
This Agreement constitutes the entire understanding between the parties
with respect to the subject matter hereof and supersedes all prior agreements
and understandings, oral or written, with respect thereto. This Agreement may
not be modified or terminated orally or in any manner other than by an agreement
in writing signed by the parties hereto.
7. Notices
Any notices required or permitted to be given hereunder shall be in
writing and shall be deemed given when mailed by certified mail or private
courier service, return receipt requested, addressed to each party at its
respective addresses set forth above, or such other address as may be given by
either party in a notice given pursuant to this Section 7.
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8. Successors and Assigns
This Agreement may not be assigned by either party without the written
consent of the other. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and, except where prohibited, to their
successors and assigns.
9. Non-Exclusivity
Nothing herein shall be deemed to restrict or prohibit the engagement
by the Company of other consultants providing the same or similar services or
the payment by the Company of fees to such parties.
10. Applicable Law
This Agreement shall be construed and enforced in accordance with the
laws of the State of New York without giving effect to conflict of laws.
11. Arbitration
In the event of any dispute under this Agreement, then and in such
event, each party hereto agrees that the dispute shall be submitted to the
American Arbitration Association in Nassau County, New York, for its decision
and determination in accordance with its rules and regulations then in effect.
Each of the parties agrees that the decision and/or award made by the
Association may be entered as judgment of the courts of the State of New York,
as shall be enforceable as such.
If the foregoing correctly sets forth the understanding between Xxxxxxx
and the Company with respect to the foregoing, please so indicate your agreement
by signing in the place provided below, at which time this letter shall become a
binding contract.
HCFP/XXXXXXX SECURITIES, LLC.
By: /s/ Xxx Xxxxx Xxxxxxxxx
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Xxx Xxxxx Xxxxxxxxx
Vice Chairman
AGREED AND ACCEPTED BY:
GIGABEAM CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
Chief Executive Officer
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