SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of April 9,
1997, by and among FASTCOMM COMMUNICATIONS CORPORATION, a Virginia corporation,
with headquarters located at 00000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000 (the
"Company"), and the purchaser or the purchasers (collectively, the "Purchasers")
set forth on the execution page(s) hereof.
WHEREAS:
A. The Company and each Purchaser are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by the provisions of Regulation D ("Regulation D"), as promulgated by the United
States Securities and Exchange Commission (the "SEC") under the Securities Act
of 1933, as amended (the "Securities Act");
B. Each Purchaser desires to purchase, upon the terms and conditions stated
in this Agreement, (i) convertible debentures of the Company, in the form
attached hereto as Exhibit A (the "Debentures"), convertible into (a) (x) shares
of the Company's common stock, par value $.01 per share (the "Common Stock") and
(y) warrants (the "Warrants"), in the form attached hereto as Exhibit B, to
acquire shares of Common Stock or (b) if authorized by the Board of Directors
and the shareholders of the Company, shares of a to-be-created class of Series A
preferred stock of the Company (the "Preferred Shares" and, together with the
Debentures, the "Convertible Securities"), which shall have the rights,
preferences and privileges set forth in the Certificate of Designation in the
form attached hereto as Exhibit F (the "Certificate of Designation") or (ii) if
authorized by the Board of Directors and the shareholders of the Company,
Preferred Shares, which Preferred Shares are convertible into shares of Common
Stock and Warrants, upon the terms and subject to the limitations and conditions
set forth in the Certificate of Designation. The shares of Common Stock issuable
upon conversion of or otherwise pursuant to the Convertible Securities are
referred to herein as the "Conversion Shares" and the shares of Common Stock
issuable upon exercise of or otherwise pursuant to the Warrants are referred to
herein as the "Warrant Shares." The Debentures, Preferred Shares, Warrants,
Conversion Shares and Warrant Shares are collectively referred to herein as the
"Securities."
C. Contemporaneous with the execution and delivery of this Agreement, the
parties hereto are executing and delivering a Registration Rights Agreement, in
the form attached hereto as Exhibit C (the "Registration Rights Agreement"),
pursuant to which the Company has agreed to provide certain registration rights
under the Securities Act and the rules and regulations promulgated thereunder,
and applicable state securities laws;
NOW, THEREFORE, the Company and the Purchasers hereby agree as follows:
1. PURCHASE AND SALE OF CONVERTIBLE SECURITIES
a. Purchase of Convertible Securities. The issuance, sale and purchase of
the Convertible Securities shall take place in two (2) separate closings, the
first of which is hereinafter referred to as the "First Closing" and the second
of which is hereinafter referred to as the "Second Closing." The purchase price
(the "Purchase Price") per Convertible Security at each such closing shall be
equal to the principal amount of such Debenture or the face amount of such
Preferred Shares, whichever is applicable.
(i) On the date of the First Closing, subject to the satisfaction (or
waiver) of the conditions set forth in Section 6 and Section 7 below, the
Company shall issue and sell to each Purchaser and each Purchaser shall purchase
from the Company, 60% of the principal amount of Debentures or face amount of
Preferred Shares, whichever is applicable, set forth on the signature page
hereto executed by such Purchaser.
(ii) On the date of the Second Closing, subject to the satisfaction
(or waiver) of the conditions set forth in Section 6 and Section 7 below, the
Company shall issue and sell to each Purchaser and each Purchaser shall purchase
from the Company, 40% of the principal amount of Debentures or face amount of
Preferred Shares, whichever is applicable, set forth on the signature page
hereto executed by such Purchaser.
b. Form of Payment. At each of the First Closing and the Second Closing,
each Purchaser shall pay the aggregate Purchase Price for the Convertible
Securities being purchased by such Purchaser at such closing hereunder by wire
transfer to the Company, in accordance with the Company's written wiring
instructions, against delivery of the duly executed Debentures (or certificates
representing the Preferred Shares) being purchased by such Purchaser hereunder
and the Company shall deliver such Debentures (or certificates) against receipt
of such aggregate Purchase Price.
c. Closing Dates. Subject to the satisfaction (or waiver) of the conditions
thereto set forth in Section 6 and Section 7 below, the date and time of the
issuance and sale of the Convertible Securities pursuant to this Agreement shall
be (i) in the case of the First Closing, 12:00 noon Eastern Time on April 9,
1997, (ii) in the case of the Second Closing, 12:00 noon Eastern Time on the
fifth (5th) trading day following notification of satisfaction (or waiver) of
the conditions to such closing set forth in Section 7(b) hereof (subject, in
each case, to a two (2) business day grace period at either party's option, but,
in any event, not later than April 12, 1997 in the case of the First Closing),
or, in each case, such other time, as may be mutually agreed upon by the Company
and the Purchasers. The closings shall occur at the offices of Klehr, Harrison,
Xxxxxx, Xxxxxxxxx & Xxxxxx, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000.
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2. PURCHASER'S REPRESENTATIONS AND WARRANTIES
Each Purchaser severally represents and warrants to the Company that:
a. Investment Purpose. Purchaser is purchasing the Convertible Securities
for Purchaser's own account for investment only and not with a present view
towards the public sale or distribution thereof, except pursuant to sales that
are exempt from the registration requirements of the Securities Act and/or sales
registered under the Securities Act. Purchaser understands that Purchaser must
bear the economic risk of this investment indefinitely, unless the Securities
are registered pursuant to the Securities Act and any applicable state
securities or blue sky laws or an exemption from such registration is available,
and that the Company has no present intention of registering any such Securities
other than as contemplated by the Registration Rights Agreement. Notwithstanding
anything in this Section 2(a) to the contrary, by making the representations
herein, the Purchaser does not agree to hold the Securities for any minimum or
other specific term and reserves the right to dispose of the Securities at any
time in accordance with or pursuant to a registration statement or an exemption
under the Securities Act.
b. Accredited Investor Status. Purchaser is an "Accredited Investor" as
that term is defined in Rule 501(a) of Regulation D.
c. Reliance on Exemptions. Purchaser understands that the Convertible
Securities are being offered and sold to Purchaser in reliance upon specific
exemptions from the registration requirements of United States federal and state
securities laws and that the Company is relying upon the truth and accuracy of,
and Purchaser's compliance with, the representations, warranties, agreements,
acknowledgments and understandings of Purchaser set forth herein in order to
determine the availability of such exemptions and the eligibility of Purchaser
to acquire the Convertible Securities.
d. Information. Purchaser and its counsel, if any, have been furnished all
materials relating to the business, finances and operations of the Company and
materials relating to the offer and sale of the Convertible Securities which
have been requested by Purchaser or its counsel. Purchaser and its counsel have
been provided with all materials which the Company deemed to have been
reasonably requested and have had an opportunity to interview certain member's
of the Company's management, Company legal counsel and the Company's independent
public accountants regarding Xxxxxxx v. FastComm Communications Corporation and
Xxxxxx; (Circuit Court, Fairfax County, Virginia Case No. 159732), Xxxxxxx v.
FastComm Communications Corporation; (Circuit Court, Fairfax County, Virginia
Case No. 159733) and the inquiry by the United States Securities and Exchange
Commission pursuant to an order directing a private investigation, which
commenced in September 1994. In light of the aforementioned due diligence by the
Purchaser and its counsel, the Purchaser has decided to proceed with the
transaction, upon the terms stated herein. Purchaser understands that the
Company can give no assurance as to the outcome of these current and any future
events.
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Except as set forth above, neither such inquiries nor any other due
diligence investigation conducted by Purchaser or its counsel or any of its
representatives shall modify, amend or affect Purchaser's right to rely on the
Company's representations and warranties contained in Section 3 below. Purchaser
understands that Purchaser's investment in the Securities involves a high degree
of risk.
e. Governmental Review. Purchaser understands that no United States federal
or state agency or any other government or governmental agency has passed upon
or made any recommendation or endorsement of the Securities.
f. Transfer or Resale. Purchaser understands that (i) except as provided in
the Registration Rights Agreement, the Securities have not been and are not
being registered under the Securities Act or any state securities laws, and may
not be transferred unless (a) subsequently registered thereunder, or (b)
Purchaser shall have delivered to the Company an opinion of counsel (which
opinion shall be in form, substance and scope customary for opinions of counsel
in comparable transactions, the cost of which shall be borne by the Purchaser)
to the effect that the Securities to be sold or transferred may be sold or
transferred pursuant to an exemption from such registration or (c) sold pursuant
to Rule 144 promulgated under the Securities Act (or a successor rule) ("Rule
144"); (ii) any sale of such Securities made in reliance on Rule 144 may be made
only in accordance with the terms of said Rule and further, if said Rule is not
applicable, any resale of such Securities under circumstances in which the
seller (or the person through whom the sale is made) may be deemed to be an
underwriter (as that term is defined in the Securities Act) may require
compliance with some other exemption under the Securities Act or the rules and
regulations of the Securities and Exchange Commission (the "SEC") thereunder;
and (iii) neither the Company nor any other person is under any obligation to
register such Securities under the Securities Act or any state securities laws
or to comply with the terms and conditions of any exemption thereunder (in each
case, other than pursuant to, and in accordance with the terms and conditions
of, the Registration Rights Agreement). Purchaser agrees that it will not
transfer Convertible Securities having a total principal amount or face value
less than $200,000 to any transferee.
g. Legends. Purchaser understands that the Debentures, Preferred Shares,
Warrants and, until such time as the Conversion Shares and Warrant Shares have
been registered under the Securities Act as contemplated by the Registration
Rights Agreement or otherwise may be sold by Purchaser pursuant to Rule 144
without any restriction as to the public resale thereof, the certificates for
the Conversion Shares and Warrant Shares will bear a restrictive legend in
substantially the following form (and a stop-transfer order may be placed
against transfer of the certificates for such Securities):
The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended. The securities have been
acquired for investment and may not be sold, transferred or assigned in the
absence of an effective registration statement for the securities under
said Act, or an opinion of counsel, in form, substance and scope customary
for opinions of counsel in comparable
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transactions, that registration is not required under said Act or unless
sold pursuant to Rule 144(k) under said Act.
The legend set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of any Security upon which it is
stamped, if, unless otherwise required by state securities laws, (a) the sale of
such Security is registered under the Securities Act, or (b) such holder
provides the Company with an opinion of counsel, in form, substance and scope
customary for opinions of counsel in comparable transactions (the cost of which
shall be borne by such holder), to the effect that a public sale or transfer of
such Security may be made without registration under the Securities Act or (c)
such holder provides the Company with reasonable assurances that such Security
can be sold pursuant to Rule 144 without any restriction as to the number of
Securities acquired as of a particular date that can then be immediately sold.
Purchaser agrees to sell all Securities, including those represented by a
certificate(s) from which the legend has been removed, pursuant to an effective
registration statement and to deliver a prospectus in connection with such sale
or in compliance with an exemption from the registration requirements of the
Securities Act. In the event the above legend is removed from any Security and
thereafter the effectiveness of a registration statement covering such Security
is suspended or the Company determines that a supplement or amendment thereto is
required by applicable securities laws, then upon reasonable advance notice to
Purchaser the Company may require that the above legend be placed on any such
Security that cannot then be sold pursuant to an effective registration
statement or Rule 144 without any restriction as to the number of Securities
acquired as of a particular date that can then be immediately sold, which legend
shall be removed when such Security may be sold pursuant to an effective
registration statement or Rule 144 without any restriction as to the number of
Securities acquired as of a particular date that can then be immediately sold.
h. Authorization; Enforcement. This Agreement and the Registration Rights
Agreement have been duly and validly authorized, executed and delivered on
behalf of Purchaser and are valid and binding agreements of Purchaser
enforceable in accordance with their terms.
i. Residency. Purchaser is a resident of the jurisdiction set forth under
such Purchaser's name on the signature page hereto executed by such Purchaser.
j. No Brokers. Other than dealings with JMS and SFG (each, as defined
below), the Purchasers have taken no action which would give rise to any claim
by any person for brokerage commissions, finder fees or similar payments by the
Company relating to this Agreement or the transactions contemplated hereby.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Purchaser that:
a. Organization and Qualification. The Company and each of its subsidiaries
is a corporation duly organized and existing in good standing under the laws of
the jurisdiction in which
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it is incorporated, and has the requisite corporate power to own its properties
and to carry on its business as now being conducted. The Company and each of its
subsidiaries is duly qualified as a foreign corporation to do business and is in
good standing in every jurisdiction where the failure so to qualify would have a
Material Adverse Effect. "Material Adverse Effect" means any material adverse
effect on the operations, properties or financial condition of the Company and
its subsidiaries on a consolidated basis or on the transactions contemplated
hereby.
b. Authorization; Enforcement. (i) The Company has the requisite corporate
power and authority to enter into and perform this Agreement, the Debentures,
the Warrants and the Registration Rights Agreement, to issue and sell the
Debentures and Warrants in accordance with the terms hereof, to issue the
Conversion Shares and Warrants upon conversion of the Debentures and to issue
the Warrant Shares upon exercise of the Warrants, in accordance with the terms
thereof; (ii) the execution, delivery and performance of this Agreement, the
Debentures, the Warrants and the Registration Rights Agreement by the Company
and the consummation by it of the transactions contemplated hereby and thereby
(including without limitation the issuance of the Debentures, the issuance and
reservation for issuance of the Conversion Shares and Warrants issuable upon
conversion thereof and the issuance and reservation for issuance of the Warrant
Shares issuable upon exercise of the Warrants) have been duly authorized by the
Company's Board of Directors and, except as set forth on Schedule 3(b) hereof,
no further consent or authorization of the Company, its Board or Directors, and
its stockholders is required (under Rule 4460(i) promulgated by the National
Association of Securities Dealers or otherwise); (iii) this Agreement has been
duly executed and delivered by the Company; and (iv) this Agreement constitutes,
and, upon execution and delivery by the Company of the Registration Rights
Agreement, the Debentures and the Warrants, such agreements will constitute
valid and binding obligations of the Company enforceable against the Company in
accordance with their terms.
c. Capitalization. The capitalization of the Company as of the date hereof,
including the authorized capital stock, the number of shares issued and
outstanding, the number of shares reserved for issuance pursuant to the
Company's stock option plans, the number of shares reserved for issuance
pursuant to securities (other than the Debentures, the Preferred Shares and the
Warrants) exercisable for, or convertible into or exchangeable for any shares of
Common Stock and the number of shares to be reserved for issuance upon
conversion of the Debentures (or the Preferred Shares) and exercise of the
Warrants is set forth on Schedule 3(c). All of such outstanding shares of
capital stock have been, or upon issuance will be, validly issued, fully paid
and nonassessable. No shares of capital stock of the Company (including the
Conversion Shares and the Warrant Shares) are subject to preemptive rights or
any other similar rights of the stockholders of the Company or any liens or
encumbrances. Except as disclosed in Schedule 3(c) or as contemplated herein, as
of the date of this Agreement, (i) there are no outstanding options, warrants,
scrip, rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into or exercisable or
exchangeable for, any shares of capital stock of the Company or any of its
subsidiaries, or arrangements by which the Company or any of its subsidiaries is
or may become bound to issue additional shares of capital stock of the Company
or any of its subsidiaries, and (ii) there are no agreements or arrangements
under which the Company or any of its subsidiaries is
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obligated to register the sale of any of its or their securities under the
Securities Act (except the Registration Rights Agreement). The Company has
furnished to each Purchaser true and correct copies of the Company's Certificate
of Incorporation as in effect on the date hereof ("Certificate of
Incorporation"), the Company's By-laws as in effect on the date hereof (the
"By-laws"), and all other instruments and agreements governing securities
convertible into or exercisable or exchangeable for Common Stock of the Company.
The Company shall provide each Purchaser with a written update of this
representation signed by the Company's Chief Executive Officer or Chief
Financial Officer on behalf of the Company as of the date of each closing
hereunder.
d. Issuance of Shares. The Conversion Shares and Warrant Shares are duly
authorized and reserved for issuance, and, upon conversion of the Debentures
(and the Preferred Shares, when issued) and exercise of the Warrants in
accordance with the terms thereof, will be validly issued, fully paid and
non-assessable, and free from all taxes, liens, claims and encumbrances and will
not be subject to preemptive rights or other similar rights of stockholders of
the Company.
e. No Conflicts. The execution, delivery and performance of this Agreement,
the Registration Rights Agreement, the Debentures and the Warrants by the
Company, and the consummation by the Company of the transactions contemplated
hereby and thereby (including, without limitation, the issuance and reservation
for issuance, as applicable, of the Debentures, Warrants, Conversion Shares and
Warrant Shares) will not (i) result in a violation of the Certificate of
Incorporation or By-laws or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company or
any of its subsidiaries is a party, or result in a violation of any law, rule,
regulation, order, judgment or decree (including U.S. federal and state
securities laws and regulations) applicable to the Company or any of its
subsidiaries or by which any property or asset of the Company or any of its
subsidiaries is bound or affected (except for such conflicts, defaults,
terminations, amendments, accelerations, cancellations and violations as would
not, individually or in the aggregate, have a Material Adverse Effect). Neither
the Company nor any of its subsidiaries is in violation of its Certificate of
Incorporation, By-laws or other organizational documents and neither the Company
nor any of its subsidiaries is in default (and no event has occurred which, with
notice or lapse of time or both, would put the Company or any of its
subsidiaries in default) under, nor has there occurred any event giving others
(with notice or lapse of time or both) any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or instrument to which
the Company or any of its subsidiaries is a party, except for possible defaults
or rights as would not, individually or in the aggregate, have a Material
Adverse Effect. The businesses of the Company and its subsidiaries are not being
conducted, and shall not be conducted so long as a Purchaser owns any of the
Securities, in violation of any law, ordinance or regulation of any governmental
entity, except for possible violations the sanctions for which either singly or
in the aggregate would not have a Material Adverse Effect. Except as
specifically contemplated by this Agreement and as required under the Securities
Act and any applicable state securities laws, the Company is not required to
obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency or any regulatory or self
regulatory agency in
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order for it to execute, deliver or perform any of its obligations under this
Agreement, the Registration Rights Agreement, the Debentures or the Warrants, in
each case in accordance with the terms hereof or thereof. The Company is not in
violation of the listing requirements of the Nasdaq National Market ("NASDAQ")
and does not reasonably anticipate that the Common Stock will be delisted by
NASDAQ in the foreseeable future.
f. SEC Documents, Financial Statements. Except as disclosed in Schedule
3(f), since April 30, 1994, the Company has timely filed all reports, schedules,
forms, statements and other documents required to be filed by it with the SEC
pursuant to the reporting requirements of the Securities Exchange Act of 1934,
as amended (the "Exchange Act") (all of the foregoing filed prior to the date
hereof and after April 30, 1994, and all exhibits included therein and financial
statements and schedules thereto and documents (other than exhibits)
incorporated by reference therein, being hereinafter referred to herein as the
"SEC Documents"). The Company has delivered to each Purchaser true and complete
copies of the SEC Documents, except for such exhibits, schedules and
incorporated documents. As of their respective dates, the SEC Documents complied
in all material respects with the requirements of the Exchange Act and the rules
and regulations of the SEC promulgated thereunder applicable to the SEC
Documents, and none of the SEC Documents, as amended or supplemented, at the
time they were filed with the SEC, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. As of their respective dates, the
financial statements of the Company included in the SEC Documents complied as to
form in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto. Such financial
statements have been prepared in accordance with U.S. generally accepted
accounting principles, consistently applied, during the periods involved (except
(i) as may be otherwise indicated in such financial statements or the notes
thereto, or (ii) in the case of unaudited interim statements, to the extent they
may include footnotes or may be condensed or summary statements) and fairly
present in all material respects the consolidated financial position of the
Company and its consolidated subsidiaries as of the dates thereof and the
consolidated results of their operations and cash flows for the periods then
ended (subject, in the case of unaudited statements, to normal year-end audit
adjustments). Except as set forth in the financial statements of the Company
included in the SEC Documents, the Company has no liabilities, contingent or
otherwise, other than (i) liabilities incurred in the ordinary course of
business subsequent to the date of such financial statements and (ii)
obligations under contracts and commitments incurred in the ordinary course of
business and not required under generally accepted accounting principles to be
reflected in such financial statements, which, individually or in the aggregate,
are not material to the financial condition or operating results of the Company.
g. Absence of Certain Changes. Since February 1, 1997, there has been no
material adverse change and no material adverse development in the business,
properties, operations, financial condition or results of operations of the
Company, except as disclosed in Schedule 3(g) or in the SEC Documents.
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h. Absence of Litigation. Except as disclosed in the SEC Documents or
Schedule 3(h), there is no action, suit, proceeding, inquiry or investigation
before or by any court, public board, government agency, self-regulatory
organization or body pending or, to the knowledge of the Company or any of its
subsidiaries, threatened against or affecting the Company, any of its
subsidiaries, or any of their respective directors or officers in their
capacities as such.
i. Disclosure. All information relating to or concerning the Company set
forth in this Agreement or provided to the Purchasers pursuant to Section 2(d)
hereof and otherwise in connection with the transactions contemplated hereby is
true and correct in all material respects and the Company has not omitted to
state any material fact necessary in order to make the statements made herein or
therein, in light of the circumstances under which they were made, not
misleading. No event or circumstance has occurred or exists with respect to
Company or its subsidiaries or their respective businesses, properties,
operations or financial conditions, which, under applicable law, rule or
regulation, requires public disclosure or announcement by the Company but which
has not been so publicly announced or disclosed.
j. Acknowledgment Regarding Purchasers' Purchase of the Convertible
Securities. The Company acknowledges and agrees that none of the Purchasers are
acting as a financial advisor or fiduciary of the Company (or in any similar
capacity) with respect to this Agreement or the transactions contemplated
hereby, and any advice given by any Purchaser, or any of their representatives
or agents, in connection with this Agreement and the transactions contemplated
hereby is merely incidental to each Purchaser's purchase of Convertible
Securities. The Company further represents to each Purchaser that the Company's
decision to enter into this Agreement has been based solely on an independent
evaluation by the Company and its representatives.
k. Current Public Information. The Company is currently eligible to
register the resale of its Common Stock on a registration statement on Form S-3
under the Securities Act.
l. No General Solicitation. Neither the Company nor any distributor
participating on the Company's behalf in the transactions contemplated hereby
(if any) nor any person acting for the Company, or any such distributor, has
conducted any "general solicitation," as such term is defined in Regulation D,
with respect to any of the Securities being offered hereby.
m. No Integrated Offering. Neither the Company, nor any of its affiliates,
nor any person acting on its or their behalf, has directly or indirectly made
any offers or sales of any security or solicited any offerers to buy any
security under circumstances that would require registration of the Securities
being offered hereby under the Securities Act.
n. No Brokers. The Company has taken no action which would give rise to any
claim by any person for brokerage commissions, finder's fees or similar payments
by any Purchaser relating to this Agreement or the transactions contemplated
hereby, except for dealings with Xxxxxx Xxxxxxxxxx Xxxxx ("JMS") and Susquehanna
Financial Group, Inc. ("SFG") whose commissions
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and fees (in the aggregate amount of $250,000) will be paid by the Company to
JMS as follows: (i) $150,000 at the First Closing and (ii) $100,000 at the
Second Closing.
o. Acknowledgment of Dilution. The number of Conversion Shares and Warrants
issuable upon conversion of the Debentures and Preferred Shares may increase
substantially in certain circumstances, including the circumstance wherein the
trading price of the Common Stock declines. The Company acknowledges that its
obligation to issue Conversion Shares and Warrants upon conversion of the
Debentures and the Preferred Shares in accordance with the Debentures and the
Certificate of Designation, respectively, is absolute and unconditional,
regardless of the dilution that such issuance may have on the ownership
interests of other stockholders.
p. Intellectual Property. Each of the Company and its subsidiaries owns or
possesses adequate and enforceable rights to use all patents, patent
applications, trademarks, trademark applications, trade names, service marks,
copyrights, copyright applications, licenses, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) and other similar rights and proprietary
knowledge (collectively, "Intangibles") necessary for the conduct of its
business as now being conducted and as described in the Company's Annual Report
on Form 10-K for the fiscal year ended April 30, 1996. Neither the Company nor
any subsidiary of the Company infringes or is in conflict with any right of any
other person with respect to any Intangibles which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
have a Material Adverse Effect.
q. Foreign Corrupt Practices. Neither the Company, nor any of its
subsidiaries, nor any director, officer, agent, employee or other person acting
on behalf of the Company or any subsidiary has, in the course of his actions
for, or on behalf of, the Company, used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses relating to
political activity; made any direct or indirect unlawful payment to any foreign
or domestic government official or employee from corporate funds; violated or is
in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977;
or made any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment to any foreign or domestic government official or employee.
4. COVENANTS.
a. Commercially Reasonable Efforts. The parties shall use all commercially
reasonable efforts timely to satisfy each of the conditions described in Section
6 and 7 of this Agreement.
b. Form D; Blue Sky Laws. The Company agrees to file a Form D with respect
to the Securities as required under Regulation D and to provide a copy thereof
to the Purchasers promptly after such filing. The Company shall, on or before
the date of the First Closing, take such action as the Company shall reasonably
determine is necessary to qualify the Securities for sale to the Purchasers
pursuant to this Agreement under applicable securities or "blue sky" laws of the
states of the United States or obtain exemption therefrom, and shall provide
evidence of any such action so taken to the Purchasers on or prior to the date
of the First Closing.
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c. Reporting Status. So long as any Purchaser beneficially owns any of the
Securities, the Company shall timely file all reports required to be filed with
the SEC pursuant to the Exchange Act, and the Company shall not terminate its
status as an issuer required to file reports under the Exchange Act even if the
Exchange Act or the rules and regulations thereunder would permit such
termination.
d. Use of Proceeds. The Company shall use the proceeds from the sale of the
Convertible Securities as set forth on Schedule 4(d); provided, however, that
the Company shall not, directly or indirectly, use such proceeds for any loan to
or investment in any other corporation, partnership, enterprise or other person
(except in connection with its direct subsidiaries).
e. Additional Equity Capital; Right of First Offer. The Company agrees that
during the period beginning on the date of the First Closing and ending one
hundred and eighty (180) days following the First Closing (the "Lock-Up
Period"), the Company will not, without the prior written consent of SFG,
contract with any party to obtain additional equity financing (including debt
financing with an equity component) in any form having common stock registration
rights and/or public resale rights effective within 270 days of the date of the
First Closing ("Future Offerings"). In addition, the Company will not conduct
any Future Offering during the period beginning on the first day immediately
after the conclusion of the Lock-Up Period and ending 270 days thereafter unless
it shall have first delivered to each Purchaser at least five (5) business days
prior to the closing of such Future Offering, written notice describing the
proposed Future Offering, including the terms and conditions thereof, and
providing each Purchaser and its affiliates, an option during the five (5)
business day period following delivery of such notice to purchase all or any
portion of such Purchaser's Applicable Percentage (as defined below) of the
securities being offered in the Future Offering on the same terms as
contemplated by such Future Offering (the limitations referred to in this and
the immediately preceding sentence are collectively referred to as the "Capital
Raising Limitations"). The Capital Raising Limitations shall not apply to any
commercial bank loan or the issuance of securities in connection with a
strategic merger, consolidation, acquisition or sale of assets, or in connection
with any strategic partnership or joint venture, or in connection with the
disposition or acquisition of a business, product or license by the Company or
exercise of options by employees, consultants or directors. The Capital Raising
Limitations also shall not apply to (i) the issuance of securities pursuant to
an underwritten public offering, (ii) the issuance of securities upon exercise
or conversion of the Company's options, warrants or other convertible securities
outstanding as of the date hereof or (iii) the grant of additional options or
warrants, or the issuance of additional securities, under any Company stock
option or restricted stock plan for the benefit of the Company's employees,
directors or consultants. For purposes of this Section 4(e), "Applicable
Percentage" at any time with respect to any Purchaser shall mean the percentage
obtained by dividing (x) the aggregate number of Conversion Shares then owned
by, or issuable upon conversion of Debentures and Preferred Shares to, such
Purchaser by (y) the aggregate number of Conversion Shares then outstanding or
issuable to all Purchasers (determined as set forth in clause (x) of this
sentence).
-11-
f. Expenses. The Company shall pay all accountable expenses incurred by SFG
(excluding salaries of SFG employees) in connection with the negotiation,
preparation, execution, delivery and performance of this Agreement and the other
agreements to be executed in connection herewith, including, without limitation,
attorneys' fees and expenses. The Company's obligation to pay SFG's accountable
expenses under this Section 4(f) shall be limited to Twenty Thousand Dollars
($20,000) in the aggregate.
g. Financial Information. The Company agrees to send the following reports
to each Purchaser until such Purchaser transfers, assigns or sells all of its
Securities: (i) within ten (10) days after the filing with the SEC, a copy of
its Annual Report on Form 10-K, its Quarterly Reports on Form 10-Q, its proxy
statements and any Current Reports on Form 8-K; and (ii) within three (3) days
after release, copies of all press releases issued by the Company or any of its
subsidiaries. In addition, the Company shall send to each Purchaser a draft of
the Company's proxy statement for review, for informational purposes only,
(prior to the filing thereof with the SEC) with respect to the upcoming meeting
of shareholders at which the approval of blank check preferred stock will be
sought.
h. Reservation of Shares. The Company shall at all times have authorized
and reserved for the purpose of issuance a sufficient number of shares of Common
Stock to provide for the full conversion of the outstanding Debentures and
Preferred Shares and issuance of the Conversion Shares in connection therewith
and the full exercise of the Warrants and the issuance of the Warrant Shares in
connection therewith and as otherwise required by the Debentures, the
Certificate of Designation and the Warrants. The Company shall not reduce the
number of shares reserved for issuance upon conversion of the Debentures and
Preferred Shares and the full exercise of the Warrants without the consent of
the Purchasers holding a majority of the principal amount of the Debentures then
held by all Purchasers and the Purchasers holding a majority of the Preferred
Shares then held by all Purchasers.
i. Listing. The Company shall promptly secure the listing of the Conversion
Shares and Warrant Shares upon each national securities exchange or automated
quotation system, if any, upon which shares of Common Stock are then listed
(subject to official notice of issuance) and shall maintain, so long as any
other shares of Common Stock shall be so listed, such listing of all Conversion
Shares from time to time issuable upon conversion of the Debentures and
Preferred Shares and Warrant Shares from time to time issuable upon exercise of
the Warrants. The Company will take all action necessary to continue the listing
and trading of its Common Stock on the NASDAQ, the New York Stock Exchange
("NYSE") or the American Stock Exchange ("AMEX") and will comply in all respects
with the Company's reporting, filing and other obligations under the bylaws or
rules of the National Association of Securities Dealers ("NASD") and such
exchanges, as applicable.
j. Corporate Existence. So long as a Purchaser beneficially owns any
Debentures, Preferred Shares or Warrants, the Company shall maintain its
corporate existence, except in the event of a merger, consolidation or sale of
all or substantially all of the Company's assets, as long as the
-12-
surviving or successor entity in such transaction (i) assumes the Company's
obligations hereunder and under the agreements and instruments entered into in
connection herewith regardless of whether or not the Company would have had a
sufficient number of shares of Common Stock authorized and available for
issuance in order to effect the conversion of all Debentures and Preferred
Shares and exercise in full of all Warrants outstanding as of the date of such
transaction and (ii) is a publicly traded corporation whose common stock is
listed for trading on the NASDAQ, NYSE or AMEX.
k. No Dividends, Etc. So long as a Purchaser beneficially owns at least ten
percent (10%) of the original principal amount or face amount, as applicable, of
the Convertible Securities, the Company shall not redeem, or declare or pay any
cash dividend or distribution on, any capital stock of the Company (other than
the Preferred Shares).
l. Sales of Common Stock. So long as such Purchaser beneficially owns any
Convertible Securities, the Purchaser agrees to be responsive to reasonable
inquiries by the Company regarding sales of Common Stock.
5. TRANSFER AGENT INSTRUCTIONS.
The Company shall instruct its transfer agent to issue certificates,
registered in the name of each Purchaser or its nominee, for the Conversion
Shares and Warrant Shares in such amounts as specified from time to time by such
Purchaser to the Company upon conversion of the Debentures and Preferred Shares
or exercise of the Warrants. Prior to registration of the Conversion Shares and
Warrant Shares under the Securities Act or resale of such Securities under Rule
144, all such certificates shall bear the restrictive legend specified in
Section 2(g) of this Agreement. The Company warrants that no instruction other
than such instructions referred to in this Section 5, and stop transfer
instructions to give effect to Section 2(f) hereof in the case of the Conversion
Shares and Warrant Shares prior to registration of the Conversion Shares and
Warrant Shares under the Securities Act, will be given by the Company to its
transfer agent and that the Securities shall otherwise be freely transferable on
the books and records of the Company as and to the extent provided in this
Agreement and the Registration Rights Agreement. Nothing in this Section shall
affect in any way each Purchaser's obligations and agreement set forth in
Section 2(g) hereof to resell the Securities pursuant to an effective
registration statement and to deliver a prospectus in connection with such sale
or in compliance with an exemption from the registration requirements of
applicable securities law. If a Purchaser provides the Company with an opinion
of counsel, which opinion of counsel shall be in form, substance and scope
customary for opinions of counsel in comparable transactions (the cost of which
shall be borne by the Purchaser), to the effect that the Securities to be sold
or transferred may be sold or transferred pursuant to an exemption from
registration, the Company shall permit the transfer, and, in the case of the
Conversion Shares and Warrant Shares, promptly instruct its transfer agent to
issue one or more certificates in such name and in such denominations as
specified by a Purchaser. The Company acknowledges that a breach by it of its
obligations hereunder will cause irreparable harm to a Purchaser by vitiating
the intent and purpose of the transaction contemplated hereby. Accordingly, the
Company acknowledges that the remedy at law for a breach of its obligations
under this Section 5 will be inadequate and agrees,
-13-
in the event of a breach or threatened breach by the Company of the provisions
of this Section 5, that a Purchaser shall be entitled, in addition to all other
available remedies, to an injunction restraining any breach and requiring
immediate issuance and transfer, without the necessity of showing economic loss
and without any bond or other security being required.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell Convertible
Securities to a Purchaser at the closings is subject to the satisfaction, at or
before the appropriate closing, of each of the following conditions thereto,
provided that these conditions are for the Company's sole benefit and may be
waived by the Company at any time in its sole discretion. The obligation of the
Company to issue and sell the Convertible Securities to any Purchaser hereunder
is distinct and separate from its obligation to issue and sell Convertible
Securities to any other Purchaser hereunder and any failure by one or more
Purchasers to fulfill the conditions set forth herein or to consummate the
purchase of Convertible Securities hereunder will not relieve the Company of its
obligations with respect to any other Purchaser.
(a) With respect to the First Closing:
(i) The applicable Purchaser shall have executed the signature page to
this Agreement and the Registration Rights Agreement, and delivered the same to
the Company.
(ii) The applicable Purchaser shall have paid the Purchase Price for
the Convertible Securities purchased in accordance with Section 1(b) above.
(iii) The representations and warranties of the applicable Purchaser
shall be true and correct in all material respects as of the date when made and
as of the date and time of the First Closing as though made at that time (except
for representations and warranties that speak as of a specific date, which
representations and warranties shall be true and correct as of such date), and
the applicable Purchaser shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by the applicable
Purchaser at or prior to the First Closing.
(iv) No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any
court or governmental authority of competent jurisdiction or any self-regulatory
organization having authority over the matters contemplated hereby which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
(b) With respect to the Second Closing:
(i) The applicable Purchaser shall have executed the signature page to
this Agreement and the Registration Rights Agreement, and delivered the same to
the Company.
-14-
(ii) The applicable Purchaser shall have paid the Purchase Price for
the Convertible Securities purchased in accordance with Section 1(b) above.
(iii) The representations and warranties of the applicable Purchaser
shall be true and correct in all material respects as of the date when made and
as of the date and time of such closing as though made at that time (except for
representations and warranties that speak as of a specific date), and the
applicable Purchaser shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by the applicable
Purchaser at or prior to such closing.
(iv) No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any
court or governmental authority of competent jurisdiction or any self-regulatory
organization having authority over the matters contemplated hereby which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
7. CONDITIONS TO EACH PURCHASER'S OBLIGATION TO PURCHASE.
The obligation of each Purchaser hereunder to purchase Convertible
Securities at the closings is subject to the satisfaction, at or before the
appropriate closing date, of each of the following conditions, provided that
these conditions are for such Purchaser's sole benefit and may be waived by such
Purchaser at any time in the Purchaser's sole discretion:
(a) With respect to the First Closing:
(i) The Company shall have executed the signature page to this
Agreement and the Registration Rights Agreement, and delivered the same to such
Purchaser.
(ii) The Company shall have delivered duly executed Debentures (in
such denominations as such Purchaser shall request) to such Purchaser in
accordance with Section 1(b) above.
(iii) The Common Stock shall be authorized for quotation on NASDAQ and
trading in the Common Stock (or NASDAQ generally) shall not have been suspended
by the SEC or NASDAQ.
(iv) The representations and warranties of the Company shall be true
and correct in all material respects as of the date when made and as of the date
of the First Closing as though made at that time (except for representations and
warranties that speak as of a specific date) and the Company shall have
performed, satisfied and complied in all material respects with the covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Company at or prior to the date of the First Closing.
Such Purchaser shall have received a certificate, executed by the chief
executive officer of the Company, dated as of the date of the First
-15-
Closing, to the foregoing effect and as to such other matters as may be
reasonably requested by such Purchaser.
(v) No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any
court or governmental authority of competent jurisdiction or any self-regulatory
organization having authority over the matters contemplated hereby which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
(vi) Such Purchaser shall have received the officer's certificate
described in Section 3(c) above, dated as of the date of the First Closing.
(vii) Such Purchaser shall have received an opinion of the Company's
counsel, dated as of the date of the First Closing, in form, scope and substance
reasonably satisfactory to such Purchaser and in substantially the form of
Exhibit D-1 attached hereto.
(viii) The Company shall have delivered evidence reasonably
satisfactory to the Purchasers that the Company's transfer agent has agreed to
act in accordance with irrevocable instructions in the form attached hereto as
Exhibit E.
(b) With respect to the Second Closing:
(i) The Company shall have executed this Agreement and the
Registration Rights Agreement, and delivered the same to such Purchaser.
(ii) The Company shall have delivered duly executed Debentures (or
certificates representing the Preferred Shares) (each in such denominations as
such Purchaser shall request) to such Purchaser in accordance with Section 1(b)
above.
(iii) The Common Stock shall be authorized for quotation on NASDAQ and
trading in the Common Stock (or NASDAQ generally) shall not have been suspended
by the SEC or NASDAQ.
(iv) The representations and warranties of the Company shall be true
and correct in all material respects as of the date when made and as of the date
of the Second Closing as though made at that time (except for representations
and warranties that speak as of a specific date) and the Company shall have
performed, satisfied and complied in all material respects with the covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Company at or prior to the date of the Second Closing.
Such Purchaser shall have received a certificate, executed by the chief
executive officer of the Company, dated as of the date of the Second Closing, to
the foregoing effect and as to such other matters as may be reasonably requested
by such Purchaser (including, but not limited to, certifications related to and
with respect to the Preferred Shares and the Conversion Shares issuable upon
conversion thereof).
-16-
(v) No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any
court or governmental authority of competent jurisdiction or any self-regulatory
organization having authority over the matters contemplated hereby which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
(vi) Such Purchaser shall have received the officer's certificate
described in Section 3(c) above, dated as of the date of the Second Closing.
(vii) Such Purchaser shall have received an opinion of the Company's
counsel, dated as of the date of the Second Closing, in form, scope and
substance reasonably satisfactory to such Purchaser and in substantially the
form of Exhibit D-1 attached hereto (if Debentures are to be issued and sold) or
in the form of Exhibit D-2 attached hereto (if Preferred Shares are to be issued
and sold).
(viii) The Registration Statement required to be filed by the Company
pursuant to Section 2(a) of the Registration Rights Agreement shall have been
declared effective by the SEC no later than the one hundred and eightieth
(180th) day after the First Closing and shall be effective and available for use
by such Purchaser as of the date of the Second Closing.
(ix) No material adverse change or development in the business,
operations, financial condition or results of operations of the Company shall
have occurred since the First Closing.
(x) No Event of Default (as defined in Article VIII of the Debentures)
shall have occurred.
(xi) If Preferred Shares are to be issued and sold, the Certificate of
Designation shall have been accepted for filing with the Secretary of State of
Virginia, and a copy thereof certified by such Secretary of State shall have
been delivered to such Purchaser.
8. GOVERNING LAW; MISCELLANEOUS.
a. Governing Law; Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York. The Company and
each Purchaser irrevocably consent to the jurisdiction of the United States
federal courts located in New York, New York in any suit or proceeding based on
or arising under this Agreement and irrevocably agrees that all claims in
respect of such suit or proceeding may be determined in such courts. The Company
and each Purchaser irrevocably waive the defense of an inconvenient forum to the
maintenance of such suit or proceeding. The Company and each Purchaser further
agree that service of process upon the Company mailed by first class mail shall
be deemed in every respect effective service of process upon the Company in any
suit or proceeding based on or arising under this Agreement. Nothing
-17-
herein shall affect any party's right to serve process in any other manner
permitted by law. The Company agrees that a final non-appealable judgment in any
such suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on such judgment or in any other lawful manner.
b. Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party.
c. Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
d. Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
e. Entire Agreement; Amendments. This Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth
herein or therein, neither the Company nor the Purchasers make any
representation, warranty, covenant or undertaking with respect to such matters.
No provision of this Agreement may be waived other than by an instrument in
writing signed by the party to be charged with enforcement and no provision of
this Agreement may be amended other than by an instrument in writing signed by
the Company and the Purchasers.
f. Notices. Any notices required or permitted to be given under the terms
of this Agreement shall be sent by certified or registered mail (return receipt
requested) or delivered personally or by courier or by confirmed telecopy, and
shall be effective five days after being placed in the mail, if mailed, or upon
receipt or refusal of receipt, if delivered personally or by courier or
confirmed telecopy, in each case addressed to a party. The addresses for such
communications shall be:
If to the Company:
FastComm Communications Corporation
00000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attn: President
-18-
with a copy to:
Amon & Xxxxxxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Xxxxxx Xxxx, Esquire
If to Capital Ventures International:
Capital Ventures International
c/o Heights Capital Management
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
with a copy to:
Klehr, Harrison, Xxxxxx, Branzburg & Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esquire
If to any other Purchaser, to such address set forth under such Purchaser's
name on the signature page hereto executed by such Purchaser.
Each party shall provide notice to the other parties of any change in
address.
g. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and assigns. Neither the
Company nor any Purchaser shall assign this Agreement or any rights or
obligations hereunder without the prior written consent of the other.
Notwithstanding the foregoing, any Purchaser may assign its rights hereunder to
any of its "affiliates," as that term is defined under the Exchange Act, without
the consent of the Company. This provision shall not limit a Purchaser's right
to transfer the Securities pursuant to the terms and conditions of the
Debentures, the Certificate of Designation, the Warrants and this Agreement or
to assign such Purchaser's rights hereunder to any such transferee.
h. Third Party Beneficiaries. This Agreement is intended for the benefit of
the parties hereto and their respective permitted successors and assigns, and is
not for the benefit of, nor may any provision hereof be enforced by, any other
person.
-19-
i. Survival. The representations and warranties of the Company and the
Purchasers and the agreements and covenants set forth in Sections 2, 3, 4, 5 and
8 shall survive the closings hereunder notwithstanding any due diligence
investigation conducted by or on behalf of any Purchasers. The Company agrees to
indemnify and hold harmless each Purchaser and each of such Purchaser's
officers, directors, employees, partners, agents and affiliates for loss or
damage (including, without limitation, all legal costs and expenses and other
out-of-pocket expenses) arising as a result of or related to any material breach
by the Company of any of its representations or covenants set forth herein.
j. Publicity. The Company and each Purchaser shall have the right to
approve before issuance any press releases, SEC, NASDAQ or NASD filings, or any
other public statements with respect to the transactions contemplated hereby;
provided, however, that the Company shall be entitled, without the prior
approval of the Purchasers, to make any press release or SEC, NASDAQ or NASD
filings with respect to such transactions as is required by applicable law and
regulations (although the Purchasers shall be consulted by the Company in
connection with any such press release prior to its release and shall be
provided with a copy thereof).
k. Further Assurances. Each party shall do and perform, or cause to be done
and performed, all such further acts and things, and shall execute and deliver
all such other agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.
l. Termination. In the event that the First Closing shall not have occurred
on or before April 12, 1997, unless the parties agree otherwise, this Agreement
shall terminate at the close of business on such date.
m. Force Majeure. Neither the Company nor any Purchaser shall be
responsible for any delay or failure to perform any part of this Agreement to
the extent that such delay or failure is solely caused by fire, flood,
earthquake, explosion, war, labor strike, riot, act of governmental, civil or
military authority which imposes a moratorium on the performance of the specific
obligation in question or other comparable extraordinary event beyond the
Corporation's or Purchaser's control. Notice with full details of any such event
shall be given to the other party as promptly as practicable after its
occurrence. The affected party shall use its best efforts to minimize the
effects of or end any such event so as to facilitate the resumption of full
performance hereunder.
[Remainder of Page Intentionally Left Blank]
-20-
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused
this Agreement to be duly executed as of the date first above written.
PURCHASER:
CAPITAL VENTURES INTERNATIONAL
By: Heights Capital Management, as authorized agent
By:________________________________
Name:______________________________
Title:_____________________________
RESIDENCE: Cayman Islands
ADDRESS:
c/o Heights Capital Management
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
AGGREGATE SUBSCRIPTION AMOUNT(1)
Principal Amount of Debentures (or Face
Amount of Preferred Shares) $3,000,000(1)
----------
Purchase Price: $3,000,000(1)
----------
FASTCOMM COMMUNICATIONS CORPORATION
By:___________________________
Name:_________________________
Title:________________________
------------
(1) Note: 60% of the purchase price is due at the First Closing (at which
closing 60% of the Debentures will be issued) and 40% of the purchase price is
due at the Second Closing (at which closing the remainder of the Convertible
Debentures will be issued).
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused
this Agreement to be duly executed as of the date first above written.
PURCHASER:
XXXXXX PARTNERS
By:________________________________
Name:______________________________
Title:_____________________________
RESIDENCE: Bermuda
ADDRESS:
c/o Leeds Management Services, Ltd.
000 Xxxxx Xxxxxx
Xxxxxxxx XX00
AGGREGATE SUBSCRIPTION AMOUNT(1)
Principal Amount of Debentures (or Face
Amount of Preferred Shares) $500,000(1)
--------
Purchase Price: $500,000(1)
--------
FASTCOMM COMMUNICATIONS CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
--------------
(1) Note: 60% of the purchase price is due at the First Closing (at which
closing 60% of the Debentures will be issued) and 40% of the purchase price is
due at the Second Closing (at which closing the remainder of the Convertible
Debentures will be issued).
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused
this Agreement to be duly executed as of the date first above written.
PURCHASER:
OLYMPUS SECURITIES, LTD.
By:________________________________
Name:______________________________
Title:_____________________________
RESIDENCE: Bermuda
ADDRESS:
c/o Leeds Management Services, Ltd.
000 Xxxxx Xxxxxx
Xxxxxxxx XX00
AGGREGATE SUBSCRIPTION AMOUNT(1)
Principal Amount of Debentures (or Face
Amount of Preferred Shares) $500,000(1)
--------
Purchase Price: $500,000(1)
--------
FASTCOMM COMMUNICATIONS CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
------------
(1) Note: 60% of the purchase price is due at the First Closing (at which
closing 60% of the Debentures will be issued) and 40% of the purchase price is
due at the Second Closing (at which closing the remainder of the Convertible
Debentures will be issued).
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused
this Agreement to be duly executed as of the date first above written.
PURCHASER:
CC INVESTMENTS, LDC
By: CSS Corporation Ltd., Corporate Secretary
By:________________________________
Name:______________________________
Title:_____________________________
RESIDENCE: Cayman Islands
ADDRESS:
CC Investments, LDC
c/o Citco Fund Services (Cayman Islands) Ltd.
Corporate Center, West Bay Road
P.O. Box 31106
SMB Grand Cayman, Cayman Islands
AGGREGATE SUBSCRIPTION AMOUNT(1)
Principal Amount of Debentures (or Face
Amount of Preferred Shares) $1,000,000(1)
----------
Purchase Price: $1,000,000(1)
----------
FASTCOMM COMMUNICATIONS CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
------------
(1) Note: 60% of the purchase price is due at the First Closing (at which
closing 60% of the Debentures will be issued) and 40% of the purchase price is
due at the Second Closing (at which closing the remainder of the Convertible
Debentures will be issued).
