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EXHIBIT 10.2
FORM OF REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of March 31, 2000
between FastComm Communications Corporation, a Virginia corporation (the
"Company"), and _________________________ (the "Holder").
1. Introduction. Pursuant to an Agreement and Plan of
Reorganization dated as of March 27, 2000 among the Company, Cronus Technology,
Inc., Cronus Communications Inc, and certain Principal Stockholders of Cronus
Technology, Inc. (the "Seller") (the "Agreement"), the Board of Directors of
the Company has authorized the grant of certain registration rights to the
Holder on the terms and conditions set forth herein.
2. Registration under the Securities Act. The Holder
shall have the registration rights specified below:
2.1 Primary Registration. The Company will use
best efforts to affect the registration under the Securities Act of the
Registrable Shares within 45 days after the Company has filed its Annual Report
on form 10-K for the Company's year 2000 fiscal year. In that regard, the
Company will:
(a) prepare and file with the Commission
a registration statement on any form that the Company is eligible to use, such
form to be selected by the Company after consultation with counsel, with
respect to such Registrable Securities and use best efforts to cause such
registration statement to become effective as soon as practicable. If, for any
reason, such registration statement is not filed with the Commission on or
before September 30, 2000, the Holder shall have the right to demand
registration of his Registrable Securities. Upon receipt of such demand, the
Company shall, as promptly as practicable prepare and file with the Commission
a registration statement sufficient to permit the public offering of the
Registrable Securities and will use best efforts through it's officers,
directors, auditors, and counsel, in all matters necessary or advisable, to
cause such registration statement to become effective as promptly as
practicable; provided, however, the Company shall only be obligated to file one
such registration for the Registrable Securities;
(b) prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities
and other securities covered by such registration statement until the earlier
of such time as all of such Registrable Securities and securities have been
disposed of in accordance with the intended methods of disposition by the
Holder thereof set forth in such registration statement or the expiration of
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hundred and eighty (180) days after such registration statement becomes
effective; and will furnish, within a reasonable time prior to filing, to the
Holder's Representative prior to the filing thereof a copy of any amendment or
supplement to such registration statement or prospectus and shall not file any
such amendment or supplement to which the Holder's Representative shall have
reasonably objected on the grounds that such amendment or supplement does not
comply in all material respects with the requirements of the Securities Act or
of the rules or regulations thereunder;
(c) furnish to the Holder's
Representative of such Registrable Securities a copy of each such amendment and
supplement thereto (in each case including all exhibits), and such documents,
if any, incorporated by reference in such registration statement or prospectus,
and such other documents, as the Holder's Representatives may reasonably
request;
(d) use best efforts to register or
qualify all Registrable Securities and other securities covered by such
registration statement under such other securities or blue sky laws of the
States of the United States as the Holder shall reasonably request, to keep
such registration or qualification in effect for so long as such registration
statement remains in effect, and do any and all other acts and things which may
be necessary or advisable to enable the Holder to consummate the disposition in
such jurisdictions of his Registrable Securities offered by such registration
statement, except that the Company shall not for any such purpose be required
to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this subsection
(d) be obligated to be so qualified, or to subject itself to taxation in any
such jurisdiction, or to consent general service of process in any such
jurisdiction;
In addition, the Company shall not be
required to qualify the Registrable Shares or any portion thereof in any
jurisdiction where the Registrable Shares do not meet the requirements of such
jurisdiction.
(e) upon request, furnish to the Holder
of Registrable Securities a signed counterpart, addressed to the Holder, an
opinion of counsel for the Company, dated the effective date of such
registration statement covering such items that are customarily covered in the
opinion of issuer's counsel delivered to underwriters in underwritten public
offerings of securities;
(f) provide and cause to be maintained a
transfer agent and registrar for all Registrable Securities covered by such
registration statement from and after a date not later than the effective date
of such registration statement;
(g) use best efforts to list all
Registrable Securities covered by such registration statement on each
securities exchange on which any of the Company's Common Stock is then listed
or, if the Common Stock is not then quoted on NASDAQ or listed on any national
securities exchange, use its best efforts to have such Company's Common Stock
covered by such registration statement quoted by NASDAQ or, at the option of
the Company, listed on a national securities exchange; and
(h) Expenses. Except as otherwise
required by applicable law, the Company shall pay all Registration Expenses in
connection with the registration of the Registrable Securities pursuant to
Section 2.1.
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(i) Penalty. If the Company has not
filed the Registration Statement referenced in this Section 2.1 within the time
period specified above and such non-filing was not caused by force majeure,
then the Company will pay to the Holder's Representative a penalty of $100,000.
2.2 Piggy-Back Registration.
(a) Right to Include Registrable Shares.
If the Company at any time proposes to register any of its securities under the
Securities Act (other than a registration on Form S-4, S-8, or any successor or
similar forms and other than pursuant to Section 2.1), for sale to the public
whether on its own account or on account of the other holders or both, it will
each such time give prompt written notice to the Holder's Representative of its
intention to do so and of the Holder's rights under this Section 2.2. Upon the
written request of the Holder made within thirty (30) days after the receipt of
the notice (which request shall specify the Registrable Shares intended to be
disposed of by the Holder and the intended method of disposition thereof), the
Company will use its best efforts to effect the registration under the
Securities Act of all Registrable Shares which the Company has been so
requested to register by the Holder, to the extent requisite to permit the
disposition (in accordance with the intended methods thereof as aforesaid) of
the Registrable Shares so to be registered, by inclusion of such Registrable
Shares in the registration statement and, in the case of an underwritten
offering, the underwriting which covers the securities which the Company
proposes to register; provided, however, that if, at any time after giving
written notice or its intention to register any securities and prior to the
effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason either not to register
or to delay registration of such securities, the Company may, at its election,
give written notice of such determination to the Holder's Representative and,
upon the giving of such notice, (i) in the case of a determination not to
register, shall be relieved of its obligation to register any Registrable
Shares in connection with such registration (but shall pay all Registration
Expenses in connection therewith), and (ii) in the case of a determination to
delay registering, shall be permitted to delay registering such other
securities. No registration effected under this Section 2.2 shall relieve the
Company of its obligation to effect the Primary Registration under Section 2.1.
The Holder's participation in any such piggyback registration shall not require
that he or she pay any portion of the Registration Expenses incurred by the
Company but such Holder shall pay the proportional amount of all underwriting
discounts and commissions applicable to Registrable Shares sold by it and fees
and disbursements of any legal counsel or accountants retained by such Holder.
(b) Priority in Piggy-Back
Registrations. If (i) a registration pursuant to this Section 2.2 involves an
underwritten offering of the securities so being registered to be distributed
(on a firm commitment basis) by or through one or more underwriters of
recognized standing under underwriting terms appropriate for such a
transaction, and (ii) the managing underwriter of such underwritten offering
shall inform the Company and the Holder's Representative (if any Registrable
Shares held by the Holder have been requested to be included in such
underwritten offering) by letter of its belief that the distribution of all or
a specified number of the Registrable Shares requested to be included
concurrently with the securities being distributed by such underwriters would
interfere with the successful marketing of the securities being distributed by
such underwriters (such writing to state the basis of such belief and the
approximate number of
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the Registrable Shares requested to be included which may be distributed
without such effect), then the Company may, upon written notice to the Holder's
Representative, reduce (if and to the extent stated by such managing
underwriter to be necessary to eliminate such effect) the number of the
Registrable Shares, if any, requested to be included so that the resultant
aggregate number of the Registrable Shares requested to be included that will
be included in such registration shall be equal to the number of shares stated
in such managing underwriter's letter; provided, however, that the priority in
such registration shall be subject to the following restriction. The parties
who received Common Stock of the Company are divided into two classes: (1)
former creditors, and (ii) former stockholders of the Seller. See Attachment 1
hereto. To the extent that there is a limit on the number of shares that can
be registered, such shares shall be registered in the following order of
priority: (i) stockholder-creditors of the Seller, and (ii) non-creditor,
stockholder of the Seller.
(c) Expiration of Piggy-Back Rights.
The Company shall not be obligated to include Registrable Shares in any
registration statement pursuant to this Section 2.2 that will become effective
during a period when the Holder thereof is eligible to sell such Registrable
Shares pursuant to the Commission's Rule 144.
(d) Lack of Information. The Company
shall not be required to register or cause the registration of the Registrable
Shares or any portion thereof pursuant to this Section 2.2 hereof if the Holder
shall not promptly supply the Company with any information about the Holder or
his Registrable Shares which the Company may reasonably and timely request in
written form in order to permit the preparation, filing and effectiveness of a
registration statement in accordance with the Securities Act and any rules and
regulations promulgated by the Commission thereunder.
2.3 Registration Procedures. If and whenever the
Company is required to use best efforts to effect the registration of any
Registrable Shares under the Securities Act as provided in Sections 2.1 and 2.2
the Company shall, as expeditiously as possible:
(i) prepare and (within sixty (60) days
after the end of the period within which requests for registration may be given
to the Company or in any event as soon thereafter as possible) file with the
Commission the requisite registration statement to effect such registration and
thereafter use best efforts to cause such registration statement to become and
remain effective; provided, however, that the Company may discontinue any
registration of its securities which are not Registrable Shares (and, under the
circumstances specified in Section 2.2(a), its securities which are Registrable
Shares) at any time prior to the effective date of the registration statement
relating thereto;
(ii) prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Shares
covered by such registration statement until the earlier of such time as all of
such securities have been disposed of in accordance with the intended methods
of disposition by the Holder thereof set forth in such registration statement
or (a) in the case of a registration pursuant to Section 2.1, the period of
time specified in Section 2.1, or (b) in the case of a registration pursuant to
Section 2.2, the expiration of one hundred eighty (180) days after such
registration statement becomes effective;
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(iii) furnish to the Holder's
Representative of the Registrable Shares covered by such registration statement
and each underwriter, if any, of the securities being sold by such seller such
number of conformed copies of such registration statement and of each such
amendment and supplement thereto (in each case including all exhibits), such
number of copies of the prospectus contained in such registration statement
(including each preliminary prospectus and any summary prospectus) and any
other prospectus filed under Rule 424 under the Securities Act, in conformity
with the requirements of the Securities Act, and such other documents, as the
Holder and underwriter, if any, may reasonably request in order to facilitate
the public sale or other disposition of the Registrable Shares owned by such
seller;
(iv) use best efforts to register or
qualify all Registrable Shares and other securities covered by such
registration statement under such other securities laws or blue sky laws of
such jurisdiction the Holder and any underwriter of the securities being sold
by such underwriter and the Holder shall reasonably request, to keep such
registration statement in effect, and take any other action which may be
reasonably necessary or advisable to enable the Holder and underwriter to
consummate the disposition in such jurisdictions of the securities owned by
such seller, except that the Company shall not for any such purpose be required
to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this subdivision
(iv) be obligated to be so qualified, to subject itself to taxation in any such
jurisdiction or to consent to general service of process in any such
jurisdiction;
(v) notify each seller of Registrable
Shares covered by such registration statement and the Holder, at any time when
a prospectus relating thereto is required to be delivered under the Securities
Act, upon the Company's discovery that, or upon the happening of any event as a
result of which, the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made, and at the request of any such seller or the Holder promptly
prepare and furnish to such seller or the Holder and each underwriter, if any,
a reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
the light of the circumstances under which they were made; and
The Holder agrees that, upon receipt of any notice
from the Company of the occurrence of any event of the kind described in
subdivision (v) of this Section 2.3, the Holder will forthwith discontinue his
disposition of Registrable Shares until the Holder's receipt of the copies of
the supplemented or amended prospectus contemplated by subdivision (v) of this
Section 2.3 and, if so directed by the Company (at the Company's expense) all
copies, other than permanent file copies, then in the Holder's possession of
the prospectus relating to such Registrable Shares current at the time of
receipt of such notice. In the event the Company shall give any such notice,
the period mentioned in paragraph (ii) of this Section 2.3 shall be extended by
the length of the period from and including the date when each seller of any
Registrable Shares covered by such registration statement shall have received
such notice to the date on which each such seller has received the
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copies of the supplemented or amended prospectus contemplated by paragraph (v)
of this Section 2.3.
2.4 Underwritten Offerings.
(a) Underwritten Piggy-Back Offerings.
The Holder of Registrable Shares to be distributed by underwriters in a
registration pursuant to Section 2.2 shall be parties to the underwriting
agreement between the Company and such underwriters and may require that any or
all of the conditions precedent to the obligations of such underwriters under
such underwriting agreement also be conditions precedent to the obligations of
the Holder of Registrable Shares. The Holder agrees to make such
representations or warranties to or agreements with the Company or the
underwriters as are customarily given to the underwriters and any other
representation required by law.
(b) Holdback Agreements. Holder agrees,
if so required by the managing underwriter, not to effect any public sale or
distribution of any securities of the Company during the seven days prior to
and the one hundred eighty (180) days (or such longer period as the managing
underwriter may reasonably require for all holdback agreements entered into
with holders of Common Stock) after any underwritten registration pursuant to
Section 2.2 has become effective (the "Holdback"), except as part of such
underwritten registration, whether or not such Holder participates in such
registration; provided however, that if a Holder does not participate in a
registration, such Holder shall not be subject to the Holdback beyond the
expiration of this Agreement, unless agreed to in writing.
2.5 Preparation; Reasonable Investigation.
Notwithstanding Section 2.1 hereof and despite a Request, the Company shall not
be required to file any registration statement, or if filed cause any
registration statement to become effective, if at the time the Holder makes a
Request, or during the period after filing but before effectiveness, the
Company is engaged in negotiations to acquire the stock or assets of any
business entity which would be required to make any public announcement
thereof; provided, however, no such delay occasioned under this Section shall
exceed ninety (90) days. If, however, the Company shall take any action with
respect to the acquisition of the stock or assets of any business entity which
would require the Company to amend any prospectus included in a registration
statement which became effective under the provisions of Section 2.1 hereof by
including therein financial statements which conform to the requirements of
Regulation S-X promulgated by the Commission, the Holder agrees to suspend the
offering or sale of the Registrable Shares or any portion thereof for a period
not to exceed 90 days so that the Company may prepare such financial
statements, provided that the Company uses best efforts to prepare such
financial statements as promptly as possible and provided further that the
ninety (90) day period referred to in the first sentence of this Section shall
be extended for a period equivalent to the delay.
The Company shall furnish the Holder's Representative with a
printer's proof of Part I of any registration statement sufficiently in advance
of its filing with the Commission to provide the Holder and it's counsel with a
reasonable opportunity for review and comment, which proof shall not be
materially different in content from Part I of the registration statement as
filed. In addition, the Company shall furnish to the Holder's Representative,
within reasonable time prior to the filing
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thereof, a copy of any registration statement as filed with the Commission and
any amendments thereto, including if requested, copies of any exhibits and
consents filed therewith and of any exhibits incorporated therein by reference,
and shall not circulate any preliminary prospectus until five (5) days after a
copy of the same has been furnished to the Holder's Representative. In
addition, the Company shall furnish the Holder's Representative as many copies
of any prospectuses (and of any preliminary, amended or supplemented
prospectuses) in connection with such registration as the Holder's
Representative may reasonably request.
3. Definitions. As used herein, unless the context
otherwise requires, the following terms have the following respective meanings:
(a) Agreement: As defined in Section 1 of this
Agreement.
(b) Closing Date: As defined in Section 1 (c) of
the Agreement.
(c) Commission: The Securities and Exchange
Commission or any other Federal agency at the time administering the Securities
Act.
(d) Common Stock: The common stock, .01 par
value, of the Company.
(e) Company: As defined in the introductory
paragraph of this Agreement.
(f) Holder: As defined in the introductory
paragraph to this Agreement. "Holders" shall mean all of the former
stockholders of Seller listed on Attachment 1.
(g) Holder's Representative shall mean William J.
Dawson.
(h) Person: A corporation, an association, a
partnership, an organization, business, an individual, a governmental or
political subdivision thereof or a governmental agency.
(i) Registrable Shares or Registrable Securities:
(a) Any shares of Common Stock received by Holder pursuant to the Agreement,
and (b) any additional shares of Common Stock receivable or received by the
Holder upon the payment of stock dividends thereon and (c) any securities
issued or issuable with respect to the Common Stock referred to in the
foregoing subdivision by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise, excepting any of the aforementioned shares which,
in the opinion of Sokolow, Dunaud, Mercadier & Carreras, LLP (or if such firm
is not counsel to the Company, counsel to the Holder), may at the time of
proposed sale or registration be sold pursuant to Rule 144(k) of the Securities
Act or any exemption to the same effect which permits such shares to be freely
sold. Any particular Registrable Shares shall cease to be Registrable Shares
when (i) a registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (ii) they
may be distributed to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act, or (iii) three years shall have expired
since the Closing Date.
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(j) Registration Expenses: All expenses incident
to the Company's performance of or compliance with Section 2, including,
without limitation, all registration, filing Securities and Exchange commission
and National Association of Securities Dealers, Inc. fees, all fees and
expenses of complying with securities or blue sky laws, all word processing,
duplicating and printing expenses, messenger and delivery expenses, internal
expenses, the fees and disbursement of counsel for the Company and of its
independent public accountants any fees and disbursements of underwriters
customarily paid by issuers of securities, but excluding underwriting discounts
and commissions and fees and disbursements of legal counsel and accountants, if
any, retained by the Holders.
(k) Request: The act of the Holder or Holder's
Representative to either demand or request registration by the Company of
either all or any portion thereof of it's Registrable Shares.
(l) Securities Act: The Securities Act of 1933,
as amended, or any similar Federal statute, and the rules and regulations of
the Commission thereunder, all as of the same shall be in effect at the time.
References to a particular section of the Securities Act of 1933 shall include
a reference to the comparable section, if any, of any such similar Federal
statute.
4. Covenants and Representations of the Company.
(a) From the date of this Agreement, the Company
shall not, without the prior written consent of the holders of at least a
majority of the outstanding Registrable Securities held by the Holders, enter
into any agreement with any holder or prospective holder of any securities of
the Company which gives such holder or prospective holder rights that are
superior to, or which adversely affect, the rights granted under this
Agreement; provided however, that the foregoing covenant shall be null and void
upon the earlier of (i) the Registration of the Registrable Shares pursuant to
Section 2.1; (ii) the Registration of the Registrable Shares pursuant to
Section 2.2; (iii) the availability for resale of the Registrable Shares
pursuant to Rule 144, or other applicable rule.
(b) The Company hereby represents and warrants
that there are no other registration rights which it has previously granted
which are superior to those stated herein, except as set forth in Attachment 2
hereof.
5. Rule 144. The Company shall timely request and/or
file the reports required to be filed by it under the Securities Exchange Act
of 1934 (including but not limited to the reports under Sections 13 and 15(d)
of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by
the Commission under the Securities Act) and the rules and regulations adopted
by the Commission thereunder and will take such further action as any Holder of
Registrable Shares may reasonably request, all to the extent required from time
to time to enable such Holder to sell Registrable Shares without registration
under the Securities Act within the limitation of the exemptions provided by
(a) Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or (b) any similar rule or regulation hereafter adopted by the
Commission. Upon the request of the Holder, the Company will deliver to such
Holder a written statement as to whether it has complied with such
requirements.
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6. Amendments and Waivers. This Agreement may be
amended only by written instrument signed by the parties hereto.
7. Nominees for Beneficial Owners. In the event that
any Registrable Shares are held by a nominee for the beneficial owner thereof,
the beneficial owner thereof may, at his election, be treated as the Holder of
such Registrable Shares for purposes of any request or other action by any
Holder or the Holders pursuant to this Agreement. If the beneficial owner of
any Registrable Shares so elects, the Company may require assurance reasonably
satisfactory to it of such owner's beneficial ownership of such Registrable
Shares.
8. Notices. Any notice or other communication required
or permitted to be given hereunder shall be deemed to have been given if
delivered, or five (5) days after mailing by certified or registered mail,
return receipt requested, first class postage prepaid, or one business day
after the time dispatched by telecopy; in every case addressed as follows:
(a) If to the Company: FastComm Communications Corporation
45472 Holiday Drive
Sterling, Virginia 20166
(b) If to the Holder or the
Holder's Representative: William J. Dawson
4001 Prentice Lane
Austin, Texas 78746
(c) With Copies to: Robert B. Webb, III
Reed Smith Hazel & Thomas LLP
8251 Greensboro Drive - Suite 1100
Suite 1100
McLean, Virginia 22102
(which shall not constitute notice to Holder or Holder's Representative)
or at such address as the party addressed may from time to time designate in
writing to the other parties in like manner. Any communication dispatched by
telecopy shall be confirmed by letter.
9. Indemnification. The Company and the Holder agree to
indemnify each other on the terms and conditions set forth below:
(a) Indemnification by the Company. The Company
will indemnify and hold harmless the Holder and each underwriter (as defined in
the Securities Act) employed by the Holder (including any broker or dealer
through whom the shares may be sold) and each person, if any, who controls the
Holder or any such underwriter within the meaning of the Securities Act from
and against any and all losses, claims, damages, expenses or liabilities, joint
or several, to which they or any of them may become subject under the
Securities Act or under any other statute or at common law or otherwise,
including the Blue Sky laws of the various jurisdictions, and, except as
hereinafter
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provided, will reimburse the Holder and each of the underwriters and each such
controlling person, if any, for any legal or other expenses reasonably incurred
by them or any of them in connection with investigating or defending any
actions whether or not resulting in any liability, insofar as such losses,
claims, damages, expenses, liabilities or actions arise out of or are based
upon any untrue statement of a material fact, or omission to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading, contained in any registration statement, preliminary or
amended prospectus or any prospectus (or any registration statement or
prospectus as from time to time amended or supplemented by the Company) which
the Company shall file pursuant to either Sections 2.1 or 2.2 hereof, unless
such untrue statement or omission was made in such registration statement,
preliminary or amended preliminary prospectus or prospectus (or any
registration statement or prospectus as from time to time amended or
supplemented by the Company) in reliance upon and in conformity with
information furnished in writing to the Company by the Holder or any
underwriter employed by the Holder and arising out of any violations by the
Company of any rule or regulation promulgated under the Securities Act
applicable to the Company in connection with such registration. Promptly after
receipt by the Holder or any underwriter or any person controlling the Holder
or such underwriter of notice of the commencement of any action (but in no
event later than ten (10) days prior to the time any notice of appearance or
any response thereto is required) in respect of which indemnity may be sought
against the Company, the Holder or such underwriter, as the case may be, shall
notify the Company in writing of the commencement thereof, and, subject to the
provisions hereinafter stated, the Company shall assume the defense of such
action (including the employment of counsel) insofar as such action shall
relate to any alleged liability in respect of which indemnity may be sought
against the Company. The Holder or any underwriter or any such controlling
person shall have the right to employ separate counsel in any such action and
to participate in the defense thereof, but the fees and expenses of such
counsel shall not be at the expense of the Company unless the employment of
such counsel has been specifically authorized by it. The Company shall not be
liable to indemnify any person, as required by this Section, for any settlement
of any such action effected without its consent, nor shall it be liable to
indemnify any person unless it shall be notified of the commencement of any
action within the time limits and as set forth above.
(b) Indemnification by the Holder. The Holder
will indemnify and hold harmless the Company, each of its directors and
officers who have signed the registration statement and each person, if any,
who controls the Company with the meaning of Section 15 of the Securities Act
from and against any and all losses, claims, damages, expenses or liabilities,
joint or several, to which they or any of them may become subject under the
Securities Act or under any other statute or at common law or otherwise,
including the Blue Sky laws of the various jurisdictions, and except as
hereinafter provided, will reimburse the Company and each such director,
officer or controlling person for any legal or other expenses reasonably
incurred by them or any of them in connection with investigating or defending
any actions whether or not resulting in any liability, insofar as such losses,
claims, damages, expenses, liabilities or actions arise out of or are based
upon any untrue statement of material fact, or an omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, contained in any registration statement, any
preliminary or amended preliminary prospectus or in any prospectus (or the
registration statement or prospectus as from time to time amended or
supplemented) which the Company shall file pursuant to Sections 2.1 or 2.2
hereof, but only insofar as any such statement or
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omission was made in reliance upon and in conformity with information furnished
in writing to the Company by the Holder or any underwriter employed by the
Holder. Promptly after receipt of notice of the commencement of any action in
respect of which indemnity may be sought against the Holder (but in no event
later than ten (10) days prior to the time any notice of appearance or any
response thereto is required) the Company shall notify the Holder in writing of
the commencement thereof, and the Holder shall, subject to the provisions
hereinafter stated, assume the defense of such action (including the employment
of counsel) insofar as such action shall relate to any alleged liability in
respect of which indemnity may be sought against the Holder. The Company and
each director, officer or controlling person shall have the right to employ
separate counsel in any such action and to participate in the defense thereof,
but the fees and expenses of such counsel shall not be at the expense of the
Holder unless the employment of such counsel has been specifically authorized
by him. The Holder shall not be liable to indemnify any person, as required by
this Section, for any settlement of any such action effected without the
Holder's consent, nor shall he be liable to indemnify any person unless he
shall be notified of the commencement of any action within the time limits and
as set forth above.
10. Miscellaneous.
(a) Assignment. This Agreement and the rights,
interests and obligations hereunder shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns. In addition, and whether or not any express assignment
shall have been made, the provisions of this Agreement which are for the
benefit of the parties hereto other than the Company shall also be for the
benefit of and enforceable by any subsequent Holder of any Registrable Shares.
Any assignment pursuant hereto by either party shall be consented in writing,
and any such written consent shall not be unreasonably withheld by either
party.
(b) No Third-Party Beneficiaries. Except for the
provisions of Section 9(a) and (b) this Agreement is for the sole benefit of
the parties hereto and their respective successors and permitted assigns and
nothing herein expressed or implied shall give or be construed to give to any
Person, other than the parties hereto and such successors and assigns, any
legal or equitable rights hereunder, except to the extent otherwise provided in
this Agreement.
(c) Descriptive Headings. The descriptive
headings of the several sections and paragraphs of this Agreement are inserted
for reference only and shall not limit or otherwise affect the meaning hereof.
(d) Waivers. No failure or delay of any party in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the parties hereunder are
cumulative and are not exclusive of any rights or remedies which the parties
would otherwise have. No waiver of any provision of this Agreement or consent
to any departure by the Company therefrom shall in any event be effective
unless the same shall be effected in accordance with this Section 10(d), and
then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No notice or demand on the
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Company in any case shall entitle the Company to any other or further notice or
demand in similar or other circumstances. Neither this Agreement nor any
provision hereof may be waived, amended or modified except pursuant to prior
written consent of the Holders.
(e) Governing Law. This Agreement shall be
construed and enforced in accordance with, and the rights of the parties shall
be governed by, the laws of the Commonwealth of Virginia without reference to
the principles of conflicts of laws.
(f) Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, and may be executed in any number
of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
(g) Entire Agreement. This Agreement embodies
the entire agreement and understanding between the Company and each other party
hereto and supersedes all prior agreements and understandings related to the
subject matter hereof.
(h) Severability. In the event that any one or
more of the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions held invalid, illegal or
unenforceable shall substantially impair the benefits of the remaining
provisions hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered as of the date first above written.
THE COMPANY:
FASTCOMM COMMUNICATIONS CORPORATION
--------------------------------
Name:
Title:
THE HOLDER:
--------------------------------
HOLDER'S REPRESENTATIVE
--------------------------------
William J. Dawson
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ATTACHMENT 1
CREDITOR-STOCKHOLDERS
1. WILLIAM J. DAWSON
2. J.A. SUNKEL
3. WILLIAM F. FERGUSON
4. GEORGE CHEN
NON-CREDITOR STOCKHOLDERS:
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ATTACHMENT 2
1. REGISTRATION RIGHTS GRANTED TO KAUFMAN BROS. LLP
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