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EXHIBIT 10.3
FORM OF WARRANT AGREEMENT
ISSUED TO ▇▇▇▇▇▇ GROUP
VOID AFTER 5:00 P.M. NEW YORK CITY
TIME ON MARCH 31, 2002
THIS WARRANT CERTIFICATE AND THE SECURITIES ISSUABLE UPON CONVERSION HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITITES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES
REPRESENTED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED UNLESS THE
SECURITIES ARE REGISTERED UNDER THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS, OR ANY SUCH OFFER, SALE OR TRANSFER IS MADE PURSUANT TO AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS.
Right to Purchase __________ Shares of
Common Stock, par value $.01 per share
Date: March 31, 2000
FASTCOMM COMMUNICATIONS CORPORATION
STOCK PURCHASE WARRANT CERTIFICATE
THIS CERTIFIES THAT, for value received,
_______________________________("Holder") is entitled to purchase from FASTCOMM
COMMUNICATIONS CORPORATION, a Virginia corporation (the "COMPANY"), at any time
during the period specified in Section 2 hereof,
___________________________________________________ (________________) fully
paid and nonassessable shares of the Company's common stock, par value $.01 per
share (the "COMMON STOCK" or "WARRANT SHARES"), at an exercise price per share
(the "EXERCISE PRICE") of $7.30 per share. The term "WARRANTS" means this
Warrant and the other warrants of the Company issued in connection with the
satisfaction of certain indebtedness of the Holder and others to the Company
This Warrant is subject to the following terms, provisions, and
conditions:
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MANNER OF EXERCISE; ISSUANCE OF CERTIFICATES; PAYMENT FOR SHARES. Subject
to the provisions hereof, this Warrant may be exercised by the Holder
hereof, by the surrender of this Warrant, together with a completed
exercise agreement in the form attached hereto (the "EXERCISE
AGREEMENT"), to the Company during normal business hours on any business
day at the Company's principal executive offices (or such other office or
agency of the Company as it may designate by notice to the Holder
hereof), and upon payment to the Company in cash, by certified or
official bank check or by wire transfer for the account of the Company,
of the Exercise Price for all of the Warrant Shares. The Warrant Shares
so purchased shall be deemed to be issued to the Holder hereof, as the
record owner of such shares, as of the close of business on the date on
which this Warrant shall have been surrendered, the completed Exercise
Agreement shall have been delivered, and payment shall have been made for
such shares as set forth above. THE WARRANT SHARES SO PURCHASED WILL BE
"RESTRICTED" AND UNREGISTERED SHARES. Certificates for the Warrant Shares
so purchased, representing the aggregate number of shares specified in
the Exercise Agreement, shall be delivered to the Holder hereof within a
reasonable time, not exceeding twenty (20) business days, after this
Warrant shall have been so exercised. The certificates so delivered shall
be in such denominations as may be requested by the Holder hereof and
shall be registered in the name of such Holder.
1. PERIOD OF EXERCISE. This Warrant is exercisable at any time or from time
to time on or after the date on which this Warrant is issued and before
5:00 p.m. New York City time on the second (2nd) anniversary of the date
of issuance (the "EXERCISE PERIOD").
2. CERTAIN AGREEMENTS OF THE COMPANY. The Company hereby covenants and
agrees as follows:
(a) SHARES TO BE FULLY PAID. All Warrant Shares will, upon issuance in
accordance with the terms of this Warrant, be validly issued, fully paid,
and non-assessable and free from all taxes, liens, claims and
encumbrances.
(b) RESERVATION OF SHARES. During the Exercise Period, the Company shall at
all times have authorized, and reserved for the purpose of issuance upon
exercise of this Warrant, a sufficient number of shares of Common Stock
to provide for the exercise of this Warrant.
(c) LISTING. The Company will secure the listing of the shares of Common
Stock issuable upon exercise of this Warrant upon the automated quotation
system, the OTC Bulletin Board or on any other system or exchange on
which the Company shares may hereafter be listed or traded, upon which
shares of Common Stock are currently listed and shall maintain, so long
as any other shares of Common Stock shall be so listed, such listing of
all shares of Common Stock issuable upon the exercise of this Warrant;
and the Company shall so list on such automated quotation system and
shall maintain such listing of, any other shares of capital stock of the
Company issuable upon the exercise of this Warrant if and so long as any
shares of the same class shall be listed on such automated quotation
system.
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(d) CERTAIN ACTIONS PROHIBITED. The Company will not, by amendment of its
charter or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities, or any other voluntary
action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed by it hereunder, but will at all
times in good faith assist in the carrying out of all the provisions of
this Warrant and in the taking of all such action as may reasonably be
requested by the Holder of this Warrant in order to protect the exercise
privilege of the Holder of this Warrant during the exercise period.
Without limiting the generality of the foregoing, the Company (i) will
not increase the par value of any shares of Common Stock receivable upon
the exercise of this Warrant above the Exercise Price then in effect, and
(ii) will take all such actions as may be necessary or appropriate in
order that the Company may validly and legally issue fully paid and
non-assessable shares of Common Stock upon the exercise of this Warrant.
(e) SUCCESSORS AND ASSIGNS. This Warrant will be binding upon any entity
succeeding to the Company by merger, consolidation, or acquisition of all
or substantially all of the Company's assets (a "change in control"). In
the event of a change in control, the surviving entity may call all
outstanding ("in the money") warrants upon thirty (30) days notice.
3. ISSUE TAX. The issuance of certificates for Warrant Shares upon the
exercise of this Warrant shall be made without charge to the Holder of
this Warrant or such Warrant Shares for any issuance tax or other costs
in respect thereof, provided that the Company shall not be required to
pay any tax which may be payable in respect of any transfer involved in
the issuance and delivery of any certificate in a name other than the
Holder of this Warrant, or any tax due with respect to the resale of any
Warrant Shares.
4. NO RIGHTS OR LIABILITIES AS A SHAREHOLDER. This Warrant shall not entitle
the Holder hereof to any voting rights or other rights as a shareholder
of the Company. No provision of this Warrant, in the absence of
affirmative action by the Holder hereof to purchase Warrant Shares, and
no mere enumeration herein of the rights or privileges of the Holder
hereof, shall give rise to any liability of such Holder for the Exercise
Price or as a shareholder of the Company, whether such liability is
asserted by the Company or by creditors of the Company.
6. ANTIDILUTION PROVISIONS. After the initial issuance of this Warrant, the
Exercise Price and the number of Warrant Shares shall be subject to
adjustment from time to time as provided in this Section 6.
In the event that any adjustment of the Exercise Price as required herein
results in a fraction of a cent, such Exercise Price shall be rounded up
or down to the nearest cent.
(a) SUBDIVISION OR COMBINATION OF COMMON STOCK. If the Company, at any time
after the initial issuance of this Warrant, subdivides (by any stock
split, stock dividend, recapitalization, reorganization, reclassification
or otherwise) its shares of Common Stock into a greater number of shares,
then, after the date of record for effecting such subdivision, the
Exercise Price in effect immediately prior to such subdivision will be
proportionately reduced. If the Company, at any time after the initial
issuance of this Warrant, combines (by
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reverse stock split, recapitalization, reorganization, reclassification
or otherwise) its shares of Common Stock into a smaller number of shares,
then, after the date of record for effecting such combination, the
Exercise Price in effect immediately prior to such combination will be
proportionately increased.
(b) ADJUSTMENT IN NUMBER OF SHARES. Upon each adjustment of the Exercise
Price pursuant to the provisions of this Section 6, the number of shares
of Common Stock issuable upon exercise of this Warrant shall be adjusted
by multiplying a number equal to the Exercise Price in effect immediately
prior to such adjustment by the number of shares of Common Stock issuable
upon exercise of this Warrant immediately prior to such adjustment and
dividing the product so obtained by the adjusted Exercise Price.
(c) CONSOLIDATION, MERGER OR SALE. In case of any consolidation of the
Company with, or merger of the Company into any other corporation, or in
case of any sale or conveyance of all or substantially all of the assets
of the Company other than in connection with a plan of complete
liquidation of the Company at any time after the initial issuance of this
Warrant, then adequate provision will be made in such transaction whereby
the holder of this Warrant will have the right to acquire and receive
upon exercise of this Warrant in lieu of the shares of Common Stock
immediately theretofore acquirable upon the exercise of this Warrant,
such shares of stock, securities or assets as may be issued or payable
with respect to or in exchange for the number of shares of Common Stock
immediately theretofore acquirable and receivable upon exercise of this
Warrant had such consolidation, merger or sale or conveyance not taken
place. In any such case, the Company will make appropriate provision to
insure that the provisions of this Section 6 hereof will thereafter be
applicable as nearly as may be in relation to any shares of stock or
securities thereafter deliverable upon the exercise of this Warrant. The
Company will not effect any consolidation, merger or sale or conveyance
unless prior to the consummation thereof, the successor corporation (if
other than the Company) assumes by written instrument the obligations
under this Section 6 and the obligations to deliver to the holder of this
Warrant such shares of stock, securities or assets as, in accordance with
the foregoing provisions, the holder may be entitled to acquire.
(d) DISTRIBUTION OF ASSETS. In case the Company shall declare or make any
distribution of its assets (or rights to acquire its assets) to holders
of Common Stock as a partial liquidating dividend, by way of return of
capital or otherwise (including any dividend or distribution to the
Company's shareholders of cash or shares (or rights to acquire shares) of
capital stock of a subsidiary) (a "DISTRIBUTION"), at any time after the
initial issuance of this Warrant, then the holder of this Warrant shall
be entitled upon exercise of this Warrant for the purchase of any or all
of the shares of Common Stock subject hereto, to receive the amount of
such assets (or rights) which would have been payable to the holder had
such holder been the holder of such shares of Common Stock on the record
date for the determination of shareholders entitled to such Distribution.
(e) NOTICE OF ADJUSTMENT. Upon the occurrence of any event which requires any
adjustment of the Exercise Price, then, and in each such case, the
Company shall give notice thereof to the holder of this Warrant, which
notice shall state the Exercise Price resulting from such
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adjustment and the increase or decrease in the number of Warrant Shares
purchasable at such price upon exercise, setting forth in reasonable
detail the method of calculation and the facts upon which such
calculation is based. Such calculation shall be certified by the chief
financial officer of the Company.
(f) MINIMUM ADJUSTMENT OF EXERCISE PRICE. No adjustment of the Exercise Price
shall be made in an amount of less than 1% of the Exercise Price in
effect at the time such adjustment is otherwise required to be made, but
any such lesser adjustment shall be carried forward and shall be made at
the time and together with the next subsequent adjustment which, together
with any adjustments so carried forward, shall amount to not less than 1%
of such Exercise Price.
(g) NO FRACTIONAL SHARES. No fractional shares of Common Stock are to be
issued upon the exercise of this Warrant, but the Company shall pay a
cash adjustment in respect of any fractional share which would otherwise
be issuable in an amount equal to the same fraction of the Market Price
of a share of Common Stock on the date of such exercise.
(h) NO ADJUSTMENT. Notwithstanding anything in this Section 6 to the
contrary, no adjustment in the number of securities purchaseable on
exercise of this Warrant shall be made with respect to dilution which
would result from the issuance of Common Stock pursuant to the exercise
of outstanding warrants or options or warrants or options which may be
granted pursuant to an incentive plan of the Company, whether qualified
or nonqualified and for the benefit of employers and non-employees.
(i) OTHER NOTICES. In case at any time:
(i) the Company shall declare any dividend upon the Common Stock payable
in shares of stock of any class or make any other distribution (other than
dividends or distributions payable in cash out of retained earnings consistent
with the Company's past practices with respect to declaring dividends and making
distributions) to the holders of the Common Stock;
(ii) there shall be any capital reorganization of the Company, or
reclassification of the Common Stock, or consolidation or merger of the Company
with or into, or sale of all or substantially all of its assets to, another
corporation or entity; or
(iii) there shall be a voluntary or involuntary dissolution, liquidation
or winding-up of the Company;
then, in each such case, the Company shall give to the holder of this Warrant
(a) notice of the date on which the books of the Company shall close or a record
shall be taken for determining the holders of Common Stock entitled to receive
any such dividend, distribution, or subscription rights or for determining the
holders of Common Stock entitled to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up and (b) in the case of any such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding-up, notice of
the date (or, if not then known, a reasonable approximation thereof by the
Company) when the same shall take place. Such notice shall also
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specify the date on which the holders of Common Stock shall be entitled to
receive such dividend, distribution, or subscription rights or to exchange their
Common Stock for stock or other securities or property deliverable upon such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, or winding-up, as the case may be. Such notice shall be given at
least 30 days prior to the record date or the date on which the Company's books
are closed in respect thereto; provided, however, that the Company shall not be
required to disclose any material information to the holder hereof prior to the
public disclosure thereof. Failure to give any such notice or any defect therein
shall not affect the validity of the proceedings referred to in clauses (i),
(ii), and (iii) above.
7. TRANSFER, EXCHANGE, REDEMPTION AND REPLACEMENT OF WARRANT.
(a) RESTRICTION ON TRANSFER. This Warrant and the rights granted to the
Holder hereof are not transferable, in whole or in part, without the
written consent of the Company, and delivery of the form of transfer
attached hereto duly executed by the registered Holder hereof,
(b) WARRANT EXCHANGEABLE FOR DIFFERENT DENOMINATIONS. This Warrant is
exchangeable, upon the surrender hereof by the Holder hereof at the
office or agency of the Company referred to in Section 6(e) below, for
new Warrants of like tenor of different denominations representing in the
aggregate the right to purchase the number of shares of Common Stock
which may be purchased hereunder, each of such new Warrants to represent
the right to purchase such number of shares as shall be designated by the
Holder hereof at the time of such surrender.
(c) REPLACEMENT OF WARRANT. Upon receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction, or mutilation of this
Warrant and, in the case of any such loss, theft, or destruction, upon
delivery of an indemnity agreement reasonably satisfactory in form and
amount to the Company (which may, in the Company's discretion require
delivery of a bond), or, in the case of any such mutilation, upon
surrender and cancellation of this Warrant, the Company, at its expense,
will execute and deliver, in lieu thereof, a new Warrant of like tenor.
(d) CANCELLATION; PAYMENT OF EXPENSES. Upon the surrender of this Warrant in
connection with any transfer, exchange, or replacement as provided in
this Section 7, this Warrant shall be promptly canceled by the Company.
The Warrant Holder shall pay all taxes (including securities transfer
taxes) and all other expenses (including legal expenses, if any, incurred
by the Holder, the Company or transferees) and charges payable in
connection with the preparation, execution, and delivery of new Warrants
pursuant to this Section 7(d).
(e) WARRANT REGISTER. The Company shall maintain, at its principal executive
offices (or such other office or agency of the Company as it may
designate by notice to the Holder hereof), a register for this Warrant
and all Warrants of like term, in which the Company shall record the name
and address of the person in whose name this Warrant has been issued.
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8. REGISTRATION OF WARRANT SHARES.
(a) If the Company at any time or times proposes to register any of its
securities under the Securities Act (other than a registration effected
solely to implement an employee benefit plan or any other form or type of
registration in which Warrant Shares cannot be included pursuant to
Commission rule or practice), the Company will give written notice to the
Holder of its intention to do so and such registration shall be governed
by the terms and conditions of a certain Registration Rights Agreement of
even date hereof between the Holder and the Company.
(b) The Holder's right to require registration of the Warrant Shares under
this Section 8, shall cease and terminate as to any particular Warrant
Shares when such Warrant Shares shall have been effectively registered
under the Securities Act in accordance with the Registration Rights
Agreement. For purposes of this Warrant Certificate, shares of Common
Stock issued hereunder shall also cease to be Warrant Shares when such
shares have been sold to the public pursuant to an exemption from
registration thereunder.
(c) The Company covenants that it will, so long as any Warrant Shares or
Warrants exercisable for Warrant Shares remain outstanding, file all
reports required to be filed by it under the Securities Act and the
Securities Exchange Act of 1934 and the rules and regulations promulgated
by the Securities and Exchange Commission thereunder (or, if it is not
required to file such reports , it will upon the request of any Holder
make publicly available such information as will enable such Holder to
sell such Warrant Shares without registration within the limitations of
the exemptions provide by (i) Rule 144 promulgated under the Securities
Act, as such rule may be amended from time to time, or (ii) any similar
rule or regulation hereafter promulgated by the Securities Exchange
Commission.
9. NOTICES.
Any notices required or permitted to be given under the terms of this Warrant
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
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Chief Financial Officer
and if to the Holder, at such address as such Holder shall have provided in
writing to the Company, or at such other address as each such party furnishes by
notice given in accordance with this Section 8. The Company may deem and treat
the registered Holder of this certificate as
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the absolute owner of the Warrant Certificate for all purposes and shall not be
affected by any notice to the contrary.
10. GOVERNING LAW. This Warrant Certificate shall be governed by and
construed in accordance with the laws of the Commonwealth of Virginia
without regard to its conflicts of laws rules as applied to contracts
made and to be performed in the Commonwealth of Virginia.
11. MISCELLANEOUS.
(a) AMENDMENTS. This Warrant and any provision hereof may only be amended by
an instrument in writing signed by the Company and the Holder hereof.
(b) DESCRIPTIVE HEADINGS. The descriptive headings of the several sections of
this Warrant are inserted for purposes of reference only, and shall not
affect the meaning or construction of any of the provisions hereof.
(c) FORCE MAJEURE. Neither the Company nor the Holder hereof shall be
responsible for any delay or failure to perform any part of this Warrant
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, failure of transfer agent, postal
strike or other comparable extraordinary event beyond the Company's or
Holder'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.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate
to be signed by its duly authorized officer.
FASTCOMM COMMUNICATIONS
CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President & Chief Financial Officer
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FORM OF EXERCISE AGREEMENT
(TO BE EXECUTED BY THE HOLDER IN ORDER TO EXERCISE THE WARRANT)
The undersigned hereby irrevocably exercises the right to purchase
_____________ shares of common stock of FastComm Communications Corporation, a
Virginia corporation (the "COMPANY"), evidenced by the attached Warrant
Certificate, and herewith makes payment of the Exercise Price with respect to
such shares, in full, all in accordance with the conditions and provisions of
said Warrant.
The undersigned agrees not to offer, sell, transfer or otherwise dispose of any
Common Stock obtained on exercise of the Warrant, except under circumstances
that will not result in a violation of the Securities Act of 1933, as amended,
or any state securities laws.
The undersigned requests that stock certificates for such shares be issued,
pursuant to the Warrant in the name of the Holder and delivered to the
undersigned at the address set forth below:
Dated:___________,_____
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Signature of Holder
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Name of Holder (Print)
Address:
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TRANSFER OF WARRANT CERTIFICATE
For value received___________________________________________________
hereby sells, assigns and transfers unto __________________________ the rights
to purchase_______ shares of common stock, $.01 par value, of FastComm
Communications Corporation, which rights are represented by the within Warrant
Certificate, and does hereby irrevocably constitute and appoint
__________________________attorney to transfer said rights on the books of the
within named Corporation, with full power of substitution in the premises.
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Dated:
In the Presence of
Social Security or Other identifying
Number of Assignee:
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Address of Assignee:
Street -----------------
City, State and Zip Code
Approved by the Company:
By:
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