As filed with the Securities and Exchange Commission on March 11, 1996
Registration No. 33-0045
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1 to 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].
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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
====================================================================================================================================
Common Shares, par value $.01 per 456,206 $5.50 $2,509,133 $865.15
share ...............................
====================================================================================================================================
(*) 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.
================================================================================
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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.
- --------------------------------------------------------------------------------
FastComm Communications Corporations
CROSS REFERENCE SHEET
Pursuant to Item 501 (b) of Regulation S-K Showing Location in Prospectus of
Information Required by Items of Form S-3
Item Number and Heading in
Form S-3 Registration Statement Caption or Location in Prospectus
- ------------------------------- ---------------------------------
1. Forepart of the Registration
Statement and Outside Front
Cover Page of Prospectus ........ Forepart of the Registration Statement;
Outside Front Cover Page of Prospectus
2. Inside Front and Outside Back
Cover Pages of Prospectus ....... Inside Front and Outside Back Cover
Page of Prospectus
3. Summary Information and Risk
Factors ......................... The Company; Risk Factors
4. Use of Proceeds ................. Use of Proceeds
5. Determination of Offering
Price ........................... Outside Front Cover Page of Prospectus
6. Dilution ........................ Not Applicable
7. Selling Security Holders ........ Selling Stockholders
8. Plan of Distribution ............ Outside Front Cover Page of Prospectus
Plan of Distribution
9. Description of Securities to be
Registered ...................... Not Applicable
10. Interests of Named Experts and
Counsel ......................... Experts
11. Material Change ................. Not Applicable
12. Incorporation of Certain
Information by Reference ........ Documents Incorporated By Reference
13. Disclosure of Commission
Position ........................ Not Applicable
SUBJECT TO COMPLETION, DATED MARCH 11, 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
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) Form 10-K for the fiscal year ended April 30, 1995, filed with the
Commission pursuant to Section (13)a of the 1934 Act;
(2) Form 10-Q for the fiscal quarters ended August 5, 1995, November 4,
1995 and February 3, 1996 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
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.
Certain Risk Factors
The securities offered hereby involve a high degree of risk. Each
prospective investor should carefully consider the following risk factors
inherent in, and affecting the business of, the Company before making an
investment decision.
1. Recent History of Losses. The Company incurred net losses of $1,999,000,
$4,084,000, and $1,179,940 for the years ended April 30, 1994 and 1995 and the
six months ended November 3, 1995 and a gain of $206,000 for the quarter ended
February 3, 1996. There can be no assurance that the Company will generate
sufficient revenues to meet expenses or to operate profitably in the future.
2. Competition. The Company competes with other companies involved in the
networking industry and the distribution of data communications equipment. These
competitors include computer manufacturers, software vendors, telephone
companies and distribution companies. This market is highly competitive, and
some companies with which the Company competes are substantially larger and have
significantly greater resources than the Company. There can be no assurance that
the Company will be able to continue to compete successfully in the future.
3. Fourth Quarter Adjustments. During the fourth quarter ended April 30,
1995, the Company increased its allowance for doubtful accounts by $200,000
($0.02 per share) to take account of products returned and credited to customers
in the fourth quarter as well as to provide for future sales returns and
allowances. The Company also increased its reserve for inventory obsolescence in
the fourth quarter by $295,000 ($0.04 per share) primarily to take account of
certain slow moving data compression and analog modem inventory.
During the fourth quarter ended April 30, 1994, the Company reversed a sale
in the amount of $580,000 which was originally recorded in the third quarter
ended February 5, 1994. The reversal of the sale was made after certain
technical difficulties arose in the fourth quarter regarding the project for
which the Company's precede was intended. These matters were not identified by
management at the time of sale. The effect on third quarter and fiscal 1994
operating results of the reversal of the sale was to increase net loss by
approximately $296,000, and to increase the per share net loss by ($0.04) per
share.
Also during the fiscal 1994 fourth quarter, the Company increased its
allowance for doubtful accounts to take account of products returned and
credited to customers in the fourth quarter as well as to provide for potential
future returns and allowances. The increase in the allowance includes $220,000
which management now believed was attributable to matters which existed at the
end of third quarter. The effect on third quarter and fiscal 1994 and operating
results of increasing the allowance for doubtful accounts by $220,000 was to
increase the net loss by $220,000 and to increase the net loss per share by
($0.03).
4. Restatement of Fiscal 1993 Financial Statements. The Company restated
its 1993 financial statements to reflect corrections to the accounts payable,
cost of goods sold and additional paid-in capital accounts, in connection with
the re-audit of the 1993 financial statements by the Company's accountants BDO
Seidman.
With respect to the 1993 financial statements, the restatement reduced the
pre-tax income and the net income by $90,000 ($0.01 per share). The restatement
had no effect on total stockholders' equity as originally reported.
5. Pending SEC Investigation. The United States Securities and Exchange
Commission ("SEC") is currently conducting a confidential inquiry pursuant to a
formal order directing a private investigation relating to certain prior public
disclosures and periodic reports of the Company. The Company is working with the
SEC staff. No assurance can be given concerning the outcome of this
investigation or that the inquiry will be resolved in the near future.
6. Weaknesses in Internal Accounting Controls. In 1993 the Registrant was
informed by its then independent public accounting firm, Deloitte & Touche LLP,
of certain weaknesses in its internal accounting controls, including interim
financial accounting valuation accounts, inventory accounting and account
receivable aging. Subsequently the Company has taken numerous steps, including
the hiring of a Chief Financial Officer and accounting staff, to respond to
these weaknesses.
7. Fluctuations in Quarterly Operating Results. The Company has
historically experienced substantial quarterly fluctuation in its operating
results. Due to changes to software and the relatively high revenues per units
sold, production or shipping delays or customer order rescheduling can
significantly affect quarterly revenues and profitability. The Company has
experienced and may again experience quarters during which a substantial portion
of the Company's net sales are realized near the end of the quarter.
Accordingly, delays in shipments near the end of a quarter can cause quarterly
net sales to fall significantly sort of anticipated levels. Since most of the
Company's expenses are fixed in the short term, such shortfalls in net sales
could have a material adverse effect on the Company's business and results of
operations. The Company's operating results may also vary from quarter to
quarter based upon numerous factors including the timing of new product
introductions, product mix, levels of sales, proportions of domestic and
international sales activities of competitors, acquisitions, international
events and problems in obtaining adequate materials or components on a timely
basis.
8. Shares Eligible for Future Sale. The Company has approximately 9,574,000
shares of Common Stock outstanding, of which approximately 7,400,000 shares are
freely tradeable without restriction. The Company's executive officers and
directors beneficially own 2,173,857 shares of Common Stock, including 205,000
shares issuable upon exercise of options.
Sales of a substantial number of shares in the public market could
adversely affect the market price of the Common Stock and the Company's ability
to raise additional capital at a price favorable to the Company.
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
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 February 15, 1996; 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
PLAN OF DISTRIBUTION
The shares offered hereby may be sold by the Selling Stockholders. 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
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
===========
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* 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
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).(3)
- ----------
(1) Previously filed as an Exhibit to the Company's Registration Statement
on Form S-18, File No. 33-19785.
(2) Filed herewith.
(3) Previously filed.
II-2
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.
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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 Amendment No. 1 to
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Sterling, Commonwealth of Virginia on March 11,
1996.
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.
Signature Title Date
--------- ----- ----
/s/ PETER C. MADSEN President (Principal Executive Officer), March 11, 1996
Peter C. Madsen and Director
/s/ MARK H. RAFFERTY Chief Financial Officer (Principal Financial March 11, 1996
Mark H. Rafferty and Accounting Officer)
/s/ EDWARD R. OLSON Director March 11, 1996
Edward R. Olson
_______________________________ Director ___________, 1996
Gary H. Davison
/s/ THOMAS G. AMON Director March 11, 1996
Thomas G. Amon
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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)
- ----------
(1) Previously filed.
(2) Filed herewith.
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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.
March 7, 1996
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