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As filed with the Securities and Exchange Commission on December 6, 1999
Registration No.: 333- 85665
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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FASTCOMM COMMUNICATIONS CORPORATION
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(Exact name of registrant as specified in its charter)
VIRGINIA 54-128 9115
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(State or other jurisdiction of (IRS Employer
incorporation or organization Identification No.)
45472 HOLIDAY DRIVE
DULLES, VIRGINIA 20166
(703) 318-7750
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(Address of principal executive offices) (Zip Code)
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1992 INCENTIVE STOCK OPTION PLAN
1992 NON-QUALIFIED STOCK OPTION PLAN
1991 EXECUTIVE NON-QUALIFIED OPTION PLAN
AND 1999 STOCK OPTION PLAN
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(Full title of the Plans)
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MARK H. RAFFERTY
CHIEF FINANCIAL OFFICER
FASTCOMM COMMUNICATIONS CORPORATION
45472 HOLIDAY DRIVE
DULLES, VIRGINIA 20166
(7003) 318-7750
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(Name and address of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed
Maximum Proposed
Offering Maximum Amount of
Amount to be Price Aggregate Registration
Title of Securities to be Registered Registered (1) Per share Offering Price Fee
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1992 Executive Non-Qualified
Option Plan, Common Stock,
$0.001 par value 1,020,372 $ 1 .375 $ 1,403,012 $421.00
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1992 Incentive and Non-
Qualified Stock Option
Plans, Common Stock,
$0.001 par value 789,236 $ 1 .375 $ 1, 085,200 $326.00
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1999 Stock Option Plan
Common Stock, $0.001 par value 1,500,000 $ 1.375 $ 2,062,500 $619.00
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Aggregate Registration Fee: $1,366.00
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1992 Executive Non-Qualified
Plan, 1992 Incentive Stock Option Plan, 1992 Non-Qualified Stock Option
Plan and 1999 Stock Option Plan (by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
Registrant's receipt of consideration which results in an increase in the
number of the outstanding shares of Registrant's Common Stock.)
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the
high and low selling prices per share of Registrant's Common Stock on
November 26, 1999 as reported on NASDAQ OTC Bulletin Board.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 is included in documents
sent or given to participants in the 1991 Executive Non-Qualified Stock Option
Plan, 1992 Employee Non-Qualified Stock Option Plan, 1992 Incentive Stock Option
Plan or 1999 Stock Option Plan of FastComm Communications Corporation (the
"Registrant") pursuant to Rule 428(b)(1) of the Securities Act of 1933, as
amended (the "Securities Act").
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
FASTCOMM COMMUNICATIONS CORPORATION (the "Registrant") hereby
incorporates by reference into this Registration Statement the following
documents previously filed with the Securities and Exchange Commission (the
"Commission"):
(a) The Registrant's Annual Report on forms 10-K for the fiscal year
ended April 30, 1999, filed with the Commission on July 28, 1999;
(b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarter ended July 31, 1999 filed with the Commission on September 13, 1999;
(c) The Registrant's Definitive Proxy Statement for the Registrant's
1999 Annual Meeting of Shareholder filed with the commission on October 6, 1999;
and
(d) The Registrant's Registration Statement on Form 8-A filed with the
Commission on September 8, 1988 in which the terms, rights and provisions
applicable to the Registrant's Common Stock are described.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities and Exchange Act
of 1934, as amended (the "1934 Act") after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by reference
into this Registration Statement and to be a part hereof from the date of filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed document which also 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 Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Six of the Company's By-Laws, as amended, empowers the
Company to indemnify current or former directors, officers, employees or agents
of the
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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 State of Virginia.
Article Tenth of the Virginia Stock Corporation Act (the "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 of 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
despite a contrary determination by the Board of Directors or its
Securityholders 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 indemnification or advancement of
expenses or both in view of all the relevant circumstances.
Section 13.1-692.1 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 in the
Articles of Incorporation; or (2) months immediately proceeding the act or
omission for which liability was imposed. The liability of an 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 is not
covered by such provision.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
Exhibit
Number Description
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4.1 Restated Articles of Incorporation of the Company (Previously
filed as Exhibit to Form S-18, Reg. No 33-19785)
4.2 Restated By-Laws of the company, as amended (Previously filed as
Exhibit to Form S-18, Reg. No 33-19785)
4.3 Specimen Certificate of Common Stock of the Registrant
(Previously filed as Exhibit to Form S-18, Reg. No 33-19785)
5 Opinion and consent of Sokolow, Dunaud, Mercadier & Carreras, LLP
23.1 Consent of BDO Seidman, LLP Independent Accountants
23.2 Consent of Sokolow, Dunaud, Mercadier & Carreras, LLP is
contained in Exhibit 5
24 Power of Attorney. Reference is made to page II-5 of this
Registration Statement
99.1 1999 Stock Option Plan
99.2 Form of Notice of Grant of Stock Option
99.3 Form of Stock Option Agreement
ITEM 9.UNDERTAKINGS
A. The undersigned Registrant hereby undertakes: 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 1933 Act, (ii) to reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof), which, individually or in the
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aggregate, represent a fundamental change in the information set forth in this
Registration Statement and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1) (i) and (1) (ii)
shall 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 1934 Act that are
incorporated by reference into this Registration Statement; (2) that for the
purpose of determining any liability under the 1933 Act 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 be the initial bona fide offering thereof; and (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 Registrant's 1992
Stock Option Plan, the 1992 Non-Qualified Stock Option Plan or the 1999 Stock
Option Plan.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act that is incorporated by reference into this 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
1933 Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the indemnification provisions summarized in Item 6 or
otherwise, the Registrant has been advised that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
1933 Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant 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 Registrant 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 1933 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, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8, and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Dulles. State of Virginia on this 6th day of
December, 1999.
FASTCOMM COMMUNICATIONS CORPORATION
By:
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Peter C. Madsen
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of FastComm Communications
Corporation, a Virginia corporation, do hereby constitute and appoint Peter C.
Madsen and Mark H. Rafferty and each of them, the lawful attorneys-in-fact and
agents with full power and authority to do any and all acts and things and to
execute any and all instruments which said attorneys and agents, and any one of
them, determine many be necessary or advisable or required to enable said
corporation to comply with the Securities Act of 1933, as amended, and any rules
or regulations or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
that all said attorneys and agents, or any one of them, shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
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NAME TITLE DATE
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President, Chief Executive
/s/ Peter C. Madsen Officer and Director
- ------------------- (Principal Executive Officer) December 6, 1999
Peter C. Madsen
Vice President and
/s/ Mark H. Rafferty Chief Financial Officer and Director
- ------------------- (Principal Accounting Officer) December 6, 1999
Mark H. Rafferty
/s/ Edward R. Olson Director December 6, 1999
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Edward R.Olsen
/s/ Thomas G. Amon Director December 6, 1999
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Thomas G. Amon
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
FASTCOMM COMMUNICATIONS CORPORATION
EXHIBIT INDEX
ITEM 8. EXHIBITS
Exhibit
Number Description
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4.1 Restated Articles of Incorporation of the Company (Previously filed as
Exhibit to Form S-18, Reg. No 33-19785)
4.2 Restated By-Laws of the company, as amended (Previously filed as Exhibit to
Form S-18, Reg. No 33-19785)
4.3 Specimen Certificate of Common Stock of the Registrant (Previously filed as
Exhibit to Form S-18, Reg. No 33-19785)
5 Opinion and consent of Sokolow, Dunaud, Mercadier & Carreras, LLP
23.1 Consent of BDO Seidman, LLP Independent Accountants
23.2 Consent of Sokolow, Dunaud, Mercadier & Carreras, LLP is contained in
Exhibit 5
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24 Power of Attorney. Reference is made to page II-5 of this Registration
Statement
99.1 1999 Stock Option Plan
99.2 Form of Notice of Grant of Stock Option
99.3 Form of Stock Option Agreement
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