As filed with the Securities and Exchange Commission on January 3, 1996
Registration No. 33-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FASTCOMM COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
Virginia 54-1289115
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
45472 Holiday Drive
Sterling, Virginia 20166
Telephone: (703) 318-7750
(Address of principal place of business, and address and telephone number
of principal executive offices)
Copy to:
Mark H. Rafferty Thomas G. Amon, Esq.
Chief Financial Officer Amon & Sabatini
FastComm Communications Corporation 437 Madison Avenue
45472 Holiday Drive New York, New York 10022
Sterling, Virginia 20166 Telephone: (212) 759-9030
Telephone: (703) 318-7750 (Counsel for Registrant)
(Name, address and telephone number
of agent for service)
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered pursuant
to a dividend or interest reinvestment plans, please check the following box [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box [x].
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed maximum Proposed maximum
Title of each class of Amount to be offering price aggregate offering Amount of
securities to be registered registered per share(*) price registration fee
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Common Shares, par value $.01 per 456,206 $5.50 $2,509,133 $865.15
share ...............................
====================================================================================================================================
</TABLE>
(*) Estimated solely for the purpose of calculating the amount of
the registration fee and based, pursuant to Rule 457, on the
closing price of the Common Stock of the Company on the NASDAQ
on December 28, 1995.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a)P of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to Section 8(a), may determine.
================================================================================
<PAGE>
- --------------------------------------------------------------------------------
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
- --------------------------------------------------------------------------------
SUBJECT TO COMPLETION, DATED JANUARY 2, 1996
----------
456,206
Shares
FASTCOMM COMMUNICATIONS CORPORATION
Common Stock
----------
This Prospectus relates to the offer and sale of up to 456,206 shares of
Common Stock, par value $.01 per share, of FastComm Communications Corporation.
All of the Common Stock offered hereby may be sold from time to time by and for
the accounts of the selling stockholders named in this Prospectus (the "Selling
Stockholders"). See "Selling Stockholders." The methods of sale of the Common
Stock offered hereby are described under the heading "Plan of Distribution." The
Company will receive none of the proceeds from such sales. The Selling
Stockholders will pay all expenses in connection with this offering.
The Selling Stockholders and any broker-dealers that participate in the
distribution of the Common Stock offered hereby may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as amended (the
"1933 Act"), and any commission or profit on the resale of shares received by
such broker-dealers may be deemed to be underwriting commissions and discounts
under the 1933 Act. Upon the Company's being notified by a Selling Stockholder
that any material arrangement has been entered into with a broker or dealer for
the sale of shares through a secondary distribution, or a purchase by a broker
or dealer, a supplemental Prospectus will be filed, if required, disclosing
among other things the names of such broker-dealers, the number of shares
involved, the price at which such shares are being sold and the commissions paid
or the discounts or concessions allowed to such broker-dealers.
The Common Stock of the Company is listed on the NASDAQ-NMS System (Symbol:
FSCX).
----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------
The date of this Prospectus is ___________________________, 1996
1
<PAGE>
No person has been authorized to give any information or to make any
representation other than those contained in, or incorporated by reference into,
this Prospectus, and, if given or made, such information or representations must
not be relied upon as having been authorized by the Company or any Selling
Stockholders. This Prospectus does not constitute an offer to sell or
solicitation of an offer to buy, nor shall there be any sale of these securities
by anyone, in any state in which such offer, solicitation, or sale would be
unlawful prior to the registration or qualification under the securities laws of
any state, or in which the person making such offer or solicitation is not
qualified to do so, or to any person to whom it is unlawful to make such offer
or solicitation. Neither delivery of this Prospectus nor any sale made hereunder
shall, under any circumstances, create any implication that there has been no
change in the information herein or the affairs of the Company since the date
hereof.
A registration statement on Form S-3 in respect of the Common Stock offered
by this Prospectus (the "Registration Statement") has been filed with the
Securities and Exchange Commission (the "Commission"), Washington, D.C. 20549,
under the 1933 Act. This Prospectus does not contain all of the information
contained in the Registration Statement, certain portions of which have been
omitted pursuant to the rules and regulations of the Commission. Accordingly,
additional information concerning the Company and such securities can be found
in the Registration Statement, including various exhibits thereto, which may be
inspected at the Public Reference Section of the Commission.
AVAILABLE INFORMATION
The Company is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and in accordance therewith
files reports and other information with the Commission. Reports, proxy and
information statements, and other information filed by the Company with the
Commission can be inspected and copied, at prescribed rates, during normal
business hours at the public reference facilities maintained by the Commission
at 450 Fifth Street, N.W. Room 1024, Washington, D.C. 20549, and at the
following Regional Offices of the Commission: Chicago Regional Office,
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511; New York Regional Office, 75 Park Place, 14th Floor, New
York, New York 10007. Copies of such materials can also be obtained from the
Public Reference Section of the Commission, at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents are incorporated by reference into this Prospectus:
(1) The latest Annual Report of the Company on Form 10-K filed with the
Commission pursuant to Section (13)a of the 1934 Act;
(2) All other reports filed pursuant to Section 13(a) of the 1934 Act since
the end of the fiscal year covered by the Annual Report referred to above; and
(3) The description of the Company's Common Stock registered under the 1934
Act contained in the Company's Form 8-A filed with the Commission on September
8, 1988, including any amendments or reports filed for the purpose of updating
such description.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the 1934 Act subsequent to the date of this Prospectus and prior to the
termination of this offering, shall be deemed to be incorporated by reference
into this Prospectus. Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
2
<PAGE>
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon request, a copy of any or all of the foregoing
documents incorporated herein by reference (not including exhibits to the
information that is incorporated by reference unless such exhibits are
specifically incorporated by reference into the information that this Prospectus
incorporated). Requests should be directed to FastComm Communications
Corporation, 45472 Holiday Drive, Sterling, Virginia 20166 (703) 318-7750,
Attention: Investor Relations.
THE COMPANY
FastComm Communications Corporation, a Virginia corporation ("FastComm" or the
"Company"), participates in the networking industry, which divides logically
into two major areas:
1. Backbone components and systems: consisting of large switches and
multiplexers, plus the wide area network (WAN) transmission lines among
these devices. Generally, backbone components are connected to each other
by multiple lines. Public networks put backbone components in Central
Offices. Private networks place them at headquarters, major regional
centers, and the largest branch locations.
2. Access devices: typically smaller, located almost exclusively in remote
customer offices, and attached to the backbone network through a single
telephone line. An access device may be part of a local area network (LAN)
within a building or campus.
Networks may be analog, where the electrical signal varies continuously like the
volume of a speaker's voice, or digital, where the signal is either on or off (1
or 0).
FastComm Communications Corp. (FSCX, NASDAQ) designs, manufactures, and sells
access devices that allow computer users to connect to public and private
networks based on analog and digital transmission. Its products include a range
of devices aimed at the fast packet services (cell relay or ATM networks, X.25
packet switched networks, and frame relay networks) as well as the analog public
telephone network. The Company's access devices allow many types of terminal
equipment and computers to use these services.
The Company manufacturers the bulk of its products at its headquarter locations.
But it also resells several products manufactured by others under its label.
The Company does not make the backbone network components or systems, but is
focused on the much simpler access devices. The market potential (in units) is
greater for access products because there are so many small offices and
businesses that are increasingly able to justify a digital network connection.
PROCEEDS
The Company will not receive any of the proceeds from the sale of the
shares by the Selling Stockholders.
3
<PAGE>
SELLING STOCKHOLDERS
Certain of the shares offered hereby were issued to certain individuals in
connection with a private placement of the Company's stock in December 1994
including Mr. Dennis, the Company's co-founder. The remainder of the shares
offered hereby were issued in connection with acquisitions in 1992 and 1994.
SHARES ISSUED
The following table and text shows as to each Selling Stockholder, any
material relationship with the Company or its affiliates within the past three
years; the number of shares of the outstanding Common Stock of the Company owned
as of April 30, 1995; the number of such shares which may be sold for the
account of the Selling Stockholder; and the number of such shares that will be
owned by the Selling Stockholder assuming the sale of all shares offered hereby.
Except as noted below, no Selling Stockholder beneficially owned as of April 30,
1995, or will own as of the completion of this offering (unless additional
shares are purchased by a Selling Stockholder), one percent or more of the
outstanding Common Stock of the Company.
Number of
Number of Shares Shares Which Shares Owned
Selling Shareholder Owned Before Sale May Be Sold After Sale
- ------------------- ----------------- ----------- ----------
Danny G. Snow 91,250 60,000 31,250
Beacon North 10,000 10,000 -0-
Lawrence Dezenzo 16,000 10,000 6,000
Watch Hill Research 18,417 18,417 -0-
Estate of Robert N. Dennis 774,341 200,000 574,341
David Minker 54,000 27,750 26,250
Mark H. Rafferty 50,588 3,922 46,666
Peter C. Madsen 692,866 87,616 605,250
William Flanagan 217,421 3,922 213,499
Warren Belkin 4,579 4,579 -0-
Jerry Zeisler 5,000 5,000 -0-
ZyBel Microsystems Incorporated 25,000 25,000 -0-
Peter C. Madsen is President and William Flanagan is Vice President
Marketing-Technology and Mark Rafferty is Vice President and Chief Financial
Officer of the Company. Messrs. Madsen and Flanagan each own more than one
percent (1%) of the outstanding shares of the Company. Robert N. Dennis former
President and Chairman of the Company died on May 28, 1995. Each of these
individuals and the Estate of Mr. Dennis may be considered affiliates of the
Company. As such they are limited in the amount of shares which they may resell
pursuant to this Registration Statement.
4
<PAGE>
PLAN OF DISTRIBUTION
The shares offered hereby may be sold by the Selling Stockholders or by
pledgees, donees, transferees or other successors in interest. Such sales may be
made on one or more exchanges or in the over-the-counter market, or otherwise at
prices and at terms then prevailing or at prices related to the then-current
market price, or in negotiated transactions. The shares may be sold by one or
more of the following methods, without limitation: (a) a block trade in which
the broker or dealer so engaged will attempt to sell the shares as agent but may
position and resell a portion of the block as principal to facilitate the
transaction; (b) purchases by a broker or dealer as principal and resale by such
broker or dealer for its account pursuant to this Prospectus; (c) ordinary
brokerage transactions and transactions in which the broker solicits purchasers;
(d) an exchange distribution in accordance with the rules of such exchange; and
(e) face-to-face transactions between sellers and purchasers without a
broker-dealer. In effecting sales, brokers or dealers engaged by the Selling
Stockholders may arrange for other brokers or dealers to participate. Brokers or
dealers may receive commissions or discounts from Selling Stockholders in
amounts to be negotiated immediately prior to the sale. Such brokers or dealers
and any other participating brokers or dealers may be deemed to be
"underwriters" within the meaning of the 1933 Act, in connection with such
sales. In addition, any securities covered by this Prospectus that qualify for
sale pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to
this Prospectus.
Upon the Company's being notified by a Selling Stockholder that any
material arrangement has been entered into with a broker or dealer for the sale
of shares through a secondary distribution, or a purchase by a broker or dealer,
a supplemental Prospectus will be filed, if required, pursuant to Rule 424(b)
under the 1933 Act, disclosing (a) the names of such broker-dealers, (b) the
number of shares involved, (c) the price at which such shares are being sold,
(d) the commissions paid or the discounts or concessions allowed to such
broker-dealers, (e) where applicable, that such broker-dealers did not conduct
any investigation to verify the information set out or incorporated by reference
in this Prospectus, as supplemented, and (f) other facts material to the
transaction.
Each Selling Stockholder has agreed with the Company that, among other
things, for so long as the Registration Statement remains in effect, such
Selling Stockholder (1) will deliver a copy of this Prospectus, as amended or
supplemented, to any broker-dealer or other intermediary and any person or
entity purchasing any of such Selling Stockholder's shares hereunder, (2) will
give the Company certain specified notices with respect to any purchases or
sales by such Selling Stockholder of any Common Stock of the Company and (3)
will not engage in any stabilization activity in connection with the Company's
securities. In addition, each Selling Stockholder will pay such Selling
Stockholder's proportionate share of all expenses in connection with this
offering.
EXPERTS
The financial statements and supplemental schedules of the Company and its
consolidated subsidiaries as of April 30, 1995 and for the three years then
ended have been audited by BDO Seidman, Independent Auditors, whose report is
incorporated herein by reference from the Company's Annual Report on Form 10-K.
These financial statements and supplemental schedules are incorporated herein by
reference in reliance upon the reports of such independent certified public
accountants given upon their authority as experts in accounting and auditing.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby is being passed
upon by Amon & Sabatini, New York, New York, counsel to the Company.
5
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Expenses to be borne by the Selling Stockholders in connection with the
registration and distribution of the Common Stock being registered, other than
the commissions paid or the discounts or concessions allowed to broker-dealers,
are as follows:
SEC registration fee ................................... *$ 865.15
Blue Sky fees and expenses (including legal fees) ...... * 1,000.00
Legal fees and expenses ................................ * 10,000.00
Accounting fees and expenses ........................... * 5,000.00
Printing expenses ...................................... * 1,000.00
Miscellaneous .......................................... * 134.85
-----------
Total .................................................. *$18,000.00
===========
- ----------
* Estimated
Item 15. Indemnification of Directors and Officers.
Article Six of the By-Laws, as amended, of the Company empowers the Company
to indemnify current or former directors, officers, employees or agents of the
Company or persons serving by request of the Company in such capacities in any
other enterprise or persons who have served by the request of the Company in
such capacities in any other enterprise to the full extent permitted by the laws
of the Commonwealth of Virginia.
Article Tenth of the Virginia Stock Corporation Act contains provisions
authorizing indemnification by the Company of directors, officers, employees or
agents against certain liabilities and expenses which they may incur as
directors, officers, employees or agents of the Company or of certain other
entities. Section 13.1 - 699 also provides that such indemnification may include
payment by the Company of expenses incurred in defending a civil or criminal
action or proceeding in advance of the final disposition of such action or
proceeding upon receipt of an undertaking by the person indemnified to repay
such payment if he shall be ultimately found not to be entitled to
indemnification under the Section. Indemnification may be provided even though
the person to be indemnified is no longer a director, officer, employee or agent
of the Company or such other entities. Section 13.1 - 703 also contains
provisions authorizing the Company to obtain insurance on behalf of any such
director, officer employee or agent against liabilities, whether or not the
Company would have the power to indemnify such person against such liabilities
under the provisions of the Section. The Company currently maintains a policy of
insurance under which the directors and officers of the Company are insured,
within the limits and subject to the exclusions and limitations of the policy,
against certain expenses in connection with the defense of actions, suits or
proceedings, to which they are parties by reason of being or having been such
directors or officers.
The indemnification and advancement of expenses provided pursuant to
Section 13.1 - 699 are not exclusive, and subject to certain conditions, the
Company may make other or further indemnification or advancement of expenses of
any of its directors, officers, employees or agents. Because the Articles of
Incorporation, as amended, of the Company do not otherwise provide,
notwithstanding the failure of the Company to provide indemnification and
II-1
<PAGE>
despite a contrary determination by the Board of Directors or its shareholders
in a specific case, a director, officer, employee or agent of the Company who is
or was a party to a proceeding may apply to a court of competent jurisdiction
for indemnification or advancement of expenses or both, and the court may order
indemnification and advancement of expenses, including expenses incurred in
seeking court-ordered indemnification or advancement of expenses if it
determines that the petitioner is entitled to mandatory indemnification pursuant
to Section 13.1 - 698 because he has been successful on the merits, or because
the Company has the power to indemnify on a discretionary basis pursuant to
Section 13.1 - 699 or because the court determines that the petitioner is fairly
and reasonably entitled to indemnification or advancement of expenses or both in
view of all the relevant circumstances.
Section 13.1692.1 of the Act provides that the damages assessed against any
officer or director arising out of a single transaction, occurrence or course of
conduct shall not exceed the lesser of (1) the monetary amount specified i the
articles of incorporation; or (2) the greater of (i) $100,000 or the amount of
cash compensation received by the officer or director from the corporation for
the twelve (12) months immediately preceding the act or omission for which
liability was imposed. The liability of an officer or director shall not be
limited as provided above if the officer or director engaged in willful
misconduct or a knowing violation of criminal law or of any federal or state
securities law including without limit of any claim of unlawful insider trading
or manipulation of the market for any security.
The Agreement between the Company and the Selling Stockholders (filed as
Exhibit 4.1) provides that the Selling Stockholders and, under certain
circumstances, persons participating as underwriters in the offering or sale of
the Common Stock being registered will indemnify and hold harmless the Company
and each director, officer and controlling person of the Company with respect to
any statement or omission in the Registration Statement or the Prospectus based
upon written information furnished to the Company by or on behalf of the Selling
Stockholders or such underwriters, as the case may be, for inclusion therein.
Item 16. Exhibits
(a) Exhibits:
3.1 Restated Articles of Incorporation of the Company.(1)
3.2 By-Laws of the Company, as amended.(1)
4.1 Form of Agreement between the Company and the Selling Stockholders.(2)
5.1 Opinion of Amon & Sabatini.(2)
23.1 Consent of BDO Seidman, Independent Auditors.(2)
23.2 Consent of Amon & Sabatini (included in Exhibit 5.1).(2)
- ----------
(1) Previously filed as an Exhibit to the Company's Registration Statement
on Form S-18, File No. 33-19785.
(2) Filed herewith.
II-2
<PAGE>
Item 17. Undertakings.
A. The undersigned hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement; provided
however, that paragraphs A.(1)(i) do not apply if the information required
to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions or otherwise, the Company has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of express incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Sterling, Commonwealth of Virginia on December 29,
1995.
FASTCOMM COMMUNICATIONS CORPORATION
By: /s/ PETER C. MADSEN
Peter C. Madsen, President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature to this
Registration Statement appears below has appointed each of Peter C. Madsen and
Mark H. Rafferty as his attorney-in-fact to sign on his behalf individually and
in the capacity stated below and to file all amendments and post-effective
amendments, supplements to this Registration Statement, and any and all
instruments or documents filed as part of or in connection with this
Registration Statement or any amendment or supplement thereto, and any such
attorney-in-fact may make such changes and additions to this Registration
Statement as such attorney-in-fact may deem necessary or appropriate.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ PETER C. MADSEN President (Principal Executive Officer), December 29, 1995
Peter C. Madsen and Director
/s/ MARK H. RAFFERTY Chief Financial Officer (Principal Financial December 29, 1995
Mark H. Rafferty and Accounting Officer)
/s/ EDWARD R. OLSON Director December 29, 1995
Edward R. Olson
_______________________________ Director ___________, 1995
Gary H. Davison
/s/ THOMAS G. AMON Director December 29, 1995
Thomas G. Amon
</TABLE>
II-4
<PAGE>
FASTCOMM COMMUNICATIONS CORPORATION
Exhibit Index
3.1 Restated Articles of Incorporation of the Company.(1)
3.2 By-Laws of the Company, as amended.(1)
4.1 Form of Agreement between the Company and the Selling Stockholders.(2)
5.1 Opinion of Amon & Sabatini.(2)
23.1 Consent of BDO Seidman, Independent Auditors.(2)
II-5
<PAGE>
Consent Of Independent Certified Public Accountants
FastComm Communications Corporation
Sterling, Virginia
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement on Form S-3 of our report
dated July 28, 1995 relating to the consolidated financial statements and
schedule of FastComm Communications Corporation appearing in the Company's
Annual Report on Form 10-K for the year ended April 30, 1995.
We also consent to the reference to us under the caption "Experts" in
the Prospectus.
/s/ BDO SEIDMAN, LLP
Washington, D.C.
December 19, 1995
II-6
AGREEMENT
AGREEMENT, dated as of _______________________, 1995, between FastComm
Communications Corporation, a Virginia corporation (the "Company"), and each of
the other persons and entities listed on the signature pages hereto
(collectively, the "Shareholders").
WHEREAS, the Company has agreed to effect the registration under the
Securities Act of an aggregate of _______________ shares of Common Stock owned
by the Shareholders (the "Shares"); and
WHEREAS, to induce the Company to agree to the foregoing the Shareholders
have agreed to certain matters, as herein expressly set forth;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Definitions.
1.1 All capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to them under the Subscription Agreement by which each
Shareholder purchased its shares.
2. Registration.
2.1 The Company shall use its best efforts (i) to effect a Shelf
Registration under the Securities Act of 1933, as amended (the "Act") of the
Shares, and (ii) to keep the registration statement relating to the registration
of the Shares (the "Registration Statement") in
1
<PAGE>
effect through the earlier of January , 1996 and such time as the Shares
shall have been disposed of in accordance with the Registration Statement, or
such later date as the parties shall mutually agree upon.
3. Certain Undertakings of the Shareholders.
3.1 For so long as the Registration Statement remains in effect, each
Shareholder agrees to (i) deliver a copy of the Prospectus forming a part of the
Registration Statement, as such Prospectus may be amended or supplemented, to
any broker-dealer or other intermediary and any person or entity purchasing any
of such Shareholder's shares thereunder, (ii) give the Company prompt written
notice with respect to any proposed purchases or sales by such Shareholder of
any Common Stock, and in any event prior to the filing (if required) by the
Company of an amended or supplemented Prospectus, specifying the number of
shares of Common Stock involved and, in the case of sales of Shares, any
arrangement such Shareholder has entered into with a broker or dealer for such
sale through a secondary distribution or a purchase by a broker or dealer, the
name(s) of such broker-dealer(s), the price at which such Shares are to be sold
and the commissions paid or the discounts or concessions allowed to such
broker-dealer(s) and (iii) not engage in any action which is designed to or
which constitutes or might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
4. Expenses
4.1 Each Shareholder agrees to be responsible for its proportionate share
of all registration fees and expenses in connection with the registration of the
Shares
2
<PAGE>
5. Indemnification.
5.1 The Company will indemnify and hold harmless each person who
participates as an underwriter in the offering or sale of the Shares and each
other Person, if any, who controls such underwriter within the meaning of the
Act (herein and "Underwriter") and each Shareholder, and each person, if any,
who controls any Shareholder or any Underwriter within the meaning of the Act
against any losses, claims, damages or liabilities, joint or several, to which
such Shareholder, such Underwriter or such controlling person may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein no
misleading, and will reimburse each Shareholder, each Underwriter and each such
controlling person for any legal or other expenses, reasonably incurred by such
Shareholder, such Underwriter or such controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any of such documents in reliance upon and in conformity with
written information furnished to the Company by such Shareholder or Underwriter,
as the case may be, specifically for use therein.
3
<PAGE>
5.2 Each Shareholder will indemnify and hold harmless the Company, each
Underwriter and each person, if any, who controls the Company or any Underwriter
within the meaning of the Act against any losses, claims, damages or
liabilities, joint or several, to which the Company, such Underwriter or such
controlling person may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, the Prospectus or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Shareholder or Underwriter, as the case may be, specifically for use therein,
and will reimburse the Company, each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by the Company, each
Underwriter or such controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action.
5.3 Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section. In case any such action is brought against any indemnified party, and
4
<PAGE>
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
6. Miscellaneous.
6.1 This Agreement constitutes the entire understanding among the parties
relating to the subject matter hereof, and neither this Agreement nor any
provision hereof can be modified, changed, discharged or terminated except by an
instrument in writing signed by the party against whom any waiver, change,
discharge or termination is sought.
6.2 The provisions of this Agreement are binding upon the successors and
assigns of the parties hereto. This Agreement (including, without limitation,
the indemnification provisions contained in Section 5 hereof) shall be construed
and governed in all respects by the law applicable to contracts made and to be
performed in the State of New York.
6.3 Each of the parties to this Agreement hereby irrevocably and
unconditionally (i) consents to submit to the jurisdiction of the courts of the
State of New York for any proceeding arising in connection with this Agreement
(and each such party agrees not to commence any such proceeding, except in such
courts), (ii) to the extent such party is not a resident of the State of New
5
<PAGE>
York, agrees to appoint an agent in the State of New York as such party's agent
for acceptance of legal process in any such proceeding against such party with
the same legal force and validity as if served upon such party personally within
the State of Delaware, and to notify promptly each other party hereto of the
name and address of such agent, (iii) waives any objection to the laying of
venue of any such proceeding in the courts of the State of New York, and (iv)
waives, and agrees not to plead or to make, any claim that any such proceeding
brought in an improper or otherwise inconvenient forum.
IN WITNESS WHEREOF, this Agreement has been executed as of the day and year
first above written.
FASTCOMM COMMUNICATIONS CORPORATION
By:_________________________________
President
SELLING SHAREHOLDERS:
Name:_______________________________
No. of Shares Registered: __________
No. of Shares Owned: __________
6
EXHIBIT 5.1
December 29, 1995
FastComm Communications Corporation
45472 Holiday Drive
Sterling, Virginia 20166
Re: Registration Statement on Form S-3
----------------------------------
Dear Sirs:
We have acted as counsel to FastComm Communications Corporation, a Virginia
corporation (the "Company"), in connection with the preparation and filing with
the Securities an Exchange Commission under the Securities Act of 1933 of a
Registration Statement on Form S-3 (the "Registration Statement") relating to
the registration of 456,206 shares (the "Shares") of the Company's Common Stock,
par value $.01 per share.
In so acting, we have examined originals, or copies certified or otherwise
identified to our satisfaction, of such corporate records, documents,
certificates and other instruments as in our judgment are necessary or
appropriate to enable us to render the opinion expressed below.
We are of the following opinion:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the Commonwealth of Virginia.
2. The Shares have been duly authorized and validly issued, and are fully
paid and non-assesssable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and to the use of our name under the caption "Legal Matters" in the
Registration Statement. In giving this consent, we do not admit that we are
acting within the category of persons whose consent is required under Section 7
of the Securities Act of 1933.
Very truly yours,
/s/ AMON & SABATINI
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<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> APR-30-1996
<PERIOD-START> MAR-31-1995
<PERIOD-END> NOV-04-1995
<CASH> 2,003,366
<SECURITIES> 0
<RECEIVABLES> 1,966,437
<ALLOWANCES> 229,000
<INVENTORY> 1,958,677
<CURRENT-ASSETS> 5,765,005
<PP&E> 945,659
<DEPRECIATION> 579,630
<TOTAL-ASSETS> 6,584,086
<CURRENT-LIABILITIES> 1,487,059
<BONDS> 0
94,970
0
<COMMON> 0
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<TOTAL-LIABILITY-AND-EQUITY> 6,584,086
<SALES> 3,203,839
<TOTAL-REVENUES> 3,241,253
<CGS> 1,634,520
<TOTAL-COSTS> 2,824,787
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 229,000
<INTEREST-EXPENSE> 15,336
<INCOME-PRETAX> (1,173,540)
<INCOME-TAX> 0
<INCOME-CONTINUING> (1,173,540)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,173,540)
<EPS-PRIMARY> (.12)
<EPS-DILUTED> (.12)
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