1
EXHIBIT 10.2
EXHIBIT A
TO SECURITIES PURCHASE AGREEMENT
VOID AFTER 5:00 P.M., NEW YORK CITY TIME
ON SEPTEMBER 8, 2005
(UNLESS EXTENDED PURSUANT TO ARTICLE II HEREOF)
THIS WARRANT AND THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE SECURITIES
REPRESENTED HEREBY MAY NOT BE OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER APPLICABLE SECURITIES
LAWS UNLESS OFFERED, SOLD OR TRANSFERRED UNDER AN AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
PREPAID COMMON STOCK PURCHASE WARRANT
September 8, 2000 Right to Purchase $3,500,000 of
Common Stock, par value $.01 per share
FOR VALUE RECEIVED, FASTCOMM COMMUNICATIONS CORPORATION, a corporation
organized under the laws of the Commonwealth of Virginia (hereinafter called the
"CORPORATION") hereby promises to issue to _______________ or its registered
assigns (the "HOLDER"), at any time or from time to time upon its receipt of a
Notice of Exercise (as defined in Article I.B below), up to Three Million Five
Hundred Thousand Dollars ($3,500,000) (the "PREPAID AMOUNT") of the
Corporation's common stock, par value $.01 per share (the "COMMON STOCK"), in
the manner provided in Article II hereof. This Warrant is being issued by the
Corporation along with similar prepaid common stock purchase warrants (the
"OTHER PREPAID WARRANTS" and, together with this Warrant, the "PREPAID
WARRANTS") pursuant to that certain Securities Purchase Agreement, dated as of
September ___, 2000, by and among the Corporation, the Holder and the other
parties named therein (the "SECURITIES PURCHASE AGREEMENT").
2
ARTICLE I
CERTAIN DEFINITIONS
For purposes hereof, the following terms shall have the following
meanings:
A. "CLOSING BID PRICE" means, for any security as of any date, the
closing bid price of such security on the principal securities exchange or
trading market where such security is listed or traded as reported by Bloomberg
Financial Markets or a comparable reporting service of national reputation
selected by the Corporation and reasonably acceptable to holders of a majority
of the aggregate Prepaid Amount represented by the then outstanding Prepaid
Warrants ("MAJORITY HOLDERS") if Bloomberg Financial Markets is not then
reporting closing bid prices of such security (collectively, "BLOOMBERG"), or if
the foregoing does not apply, the last reported sale price of such security in
the over-the-counter market on the electronic bulletin board for such security
as reported by Bloomberg, or, if no sale price is reported for such security by
Bloomberg, the average of the bid prices of any market makers for such security
as reported in the "pink sheets" by the National Quotation Bureau, Inc., in each
case for such date or, if such date was not a trading date for such security, on
the next preceding date which was a trading date. If the Closing Bid Price
cannot be calculated for such security as of either of such dates on any of the
foregoing bases, the Closing Bid Price of such security on such date shall be
the fair market value as reasonably determined by an investment banking firm
selected by the Corporation and reasonably acceptable to the Majority Holders,
with the costs of such appraisal to be borne by the Corporation.
B. "EXERCISE AMOUNT" means the portion of the Prepaid Amount of this
Warrant being exercised and any Exercise Default Payments payable with respect
thereto, each as specified in the notice of exercise in the form attached hereto
(the "NOTICE OF EXERCISE").
C. "EXERCISE DATE" means, for any Exercise (as defined below), the
date specified in the Notice of Exercise so long as the copy of the Notice of
Exercise is faxed (or delivered by other means resulting in actual notice) to
the Corporation at or before 11:59 p.m., New York City time, on the Exercise
Date indicated in the Notice of Exercise; provided, however, that if the Notice
of Exercise is not so faxed or otherwise delivered before such time, then the
Exercise Date shall be the date the holder faxes or otherwise delivers the
Notice of Exercise to the Corporation.
D. "EXERCISE PRICE" means, with respect to any Exercise Date, the
lower of the Fixed Exercise Price and the Variable Exercise Price, each in
effect as of such date and subject to adjustment as provided herein.
E. "CLOSING DATE" means the date of the Closing under the Securities
Purchase Agreement.
F. "FIXED EXERCISE PRICE" means $2.00 and shall be subject to
adjustment as provided herein.
2
3
G. "VARIABLE EXERCISE PRICE" means, as of any date of determination,
the average of the lowest five (5) Closing Bid Prices for the ten (10)
consecutive trading day period ending on the trading day immediately preceding
the date of determination, provided, however, in no event shall the Variable
Exercise Price exceed the Closing Bid Price on the date of determination
(subject to equitable adjustment for any stock splits, stock dividends,
reclassifications or similar events during such ten (10) trading day period),
and shall be subject to adjustment as provided herein.
H. "PREMIUM" means an amount equal to (.04) x (N/365) x the Prepaid
Amount, where N equals the number of days from (i) the Issuance Date until the
date the Premium is redeemed in accordance with Article II.A (the "PREMIUM
DATE") or (ii) the immediately preceding Premium Date until the current Premium
Date.
I. "ISSUANCE DATE" means the date of issuance of this Warrant.
ARTICLE II
EXERCISE
A. Exercise by the Holder. (i) Subject to the limitations on exercise
contained in Paragraph C of this Article II, the Holder may, at any time and
from time to time, exercise all or any part of the outstanding Prepaid Amount of
this Warrant in accordance with the procedures set forth in Paragraph B of this
Article II for a number of fully paid and nonassessable shares of Common Stock
determined in accordance with the following formula if the Corporation timely
redeems the Premium thereon in cash in accordance with subparagraph (ii) below:
EXERCISE AMOUNT
---------------
EXERCISE PRICE
or in accordance with the following formula if the Corporation does not timely
redeem the Premium thereon in accordance with subparagraph (ii) below:
EXERCISE AMOUNT + THE PREMIUM
-----------------------------
EXERCISE PRICE
(ii) (a) Subject to subparagraph (b) of this Article
II.A(ii), the Corporation shall have the right, in its sole discretion, upon
receipt of a Notice of Exercise, to redeem the Premium subject to such
conversion for a sum of cash equal to the amount of the Premium being so
redeemed. All cash redemption payments hereunder shall be paid in lawful money
of the United States of America at such address for the Holder as appears on the
record books of the Corporation (or at such other address as such Holder shall
hereafter give to the Corporation by written notice). In the event the
Corporation so elects to redeem the Premium in cash and fails to pay such holder
the applicable redemption amount to which such holder is entitled within four
(4) business days of receipt by the Corporation of a Notice of Exercise, the
Corporation shall thereafter forfeit its right
3
4
to redeem such Premium in cash and such Premium shall thereafter be converted
into shares of Common Stock in accordance with Article II.A(i).
(b) The Corporation shall provide not less than two (2)
business days advance notice, in writing, to the holders stating that it will
elect to redeem the Premium, relating to any Exercise Amount covered by a Notice
of Exercise received by the Corporation after such second business day, in cash
pursuant to the Corporation's redemption rights discussed in subparagraph (a) of
this Article II.A(ii) in connection with an exercise pursuant to a Notice of
Exercise delivered over the ten (10) business day period beginning on the third
(3rd) business day after the Holder's receipt of such notice, which election
shall be binding and irrevocable for such period. If the Corporation does not
provide such notice, the Corporation shall forfeit its right to redeem such
Premium in accordance with subparagraph (a) of this Article II.A(ii) for any
such period and shall be required to issue shares of Common Stock as payment of
Premium.
B. Mechanics of Exercise. (i) In order to exercise this Warrant,
Holder shall: (x) fax (or otherwise deliver) a copy of the fully executed Notice
of Exercise to the Corporation and (y) surrender or cause to be surrendered this
Warrant along with a copy of the Notice of Exercise as soon as practicable
thereafter to the Corporation. Upon receipt by the Corporation of a facsimile
copy of a Notice of Exercise from Holder, the Corporation shall immediately
send, via facsimile, a confirmation to Holder stating that the Notice of
Exercise has been received, the date upon which the Corporation expects to
deliver the Common Stock issuable upon such exercise and the name and telephone
number of a contact person at the Corporation regarding the exercise. The
Corporation shall not be obligated to issue shares of Common Stock upon an
exercise hereof unless either this Warrant is delivered to the Corporation as
provided above, or Holder notifies the Corporation that this Warrant has been
lost, stolen or destroyed (subject to the requirements of Article IX.G).
(ii) Delivery of Common Stock Upon Exercise. The Corporation
shall, on or before the later of (a) the third (3rd) business day following the
Exercise Date and (b) the business day following the date of the Corporation's
receipt of this Warrant (or, if this Warrant is lost, stolen or destroyed, the
date on which indemnity pursuant to Article IX.G is provided) (the "DELIVERY
PERIOD"), issue and deliver to the Holder or its nominee (x) that number of
shares of Common Stock issuable upon exercise of the portion of this Warrant
being exercised and (y) a new Warrant in the form hereof representing the
balance of the Prepaid Amount hereof not being exercised, if any. If the
Corporation's transfer agent is participating in the Depository Trust Company
("DTC") Fast Automated Securities Transfer program, and so long as the
certificates therefor are not required to bear a legend, the Corporation shall
cause its transfer agent to electronically transmit the Common Stock issuable
upon exercise to the Holder by crediting the account of Holder or its nominee
with DTC through its Deposit Withdrawal Agent Commission system ("DTC
TRANSFER"). If the aforementioned conditions to a DTC Transfer are not
satisfied, the Corporation shall deliver to Holder physical certificates
representing the Common Stock issuable upon such exercise. Further, Holder may
instruct the Corporation to deliver to Holder physical certificates representing
the Common Stock issuable upon such exercise in lieu of delivering such shares
by way of DTC Transfer.
4
5
(iii) Taxes. The Corporation shall pay any and all taxes which
may be imposed upon it with respect to the issuance and delivery of the shares
of Common Stock upon the exercise of this Warrant.
(iv) No Fractional Shares. If any exercise of this Warrant would
result in the issuance of a fractional share of Common Stock, such fractional
share shall be disregarded and the number of shares of Common Stock issuable
upon exercise of this Warrant shall be the nearest whole number of shares.
(v) Exercise Disputes. In the case of any dispute with respect
to an exercise of this Warrant, the Corporation shall promptly issue such number
of shares of Common Stock as are not disputed in accordance with subparagraph
(ii) above. The Corporation and the Holder shall seek to resolve any such
dispute in good faith. If such dispute involves the calculation of the Exercise
Price, the Corporation shall immediately submit the disputed calculations to
B.D.O. Xxxxxxx, its independent outside accountants or to another firm of
independent outside accountants of national reputation selected by the
Corporation and reasonably acceptable to the Holder via facsimile within two (2)
business days of receipt of the Notice of Exercise. The accountant, at the
Corporation's sole expense (except that if the Corporation's calculation is
correct, the Holder shall bear such expense), shall audit the calculations and
notify the Corporation and Holder of the results no later than two (2) business
days from the date it receives the disputed calculations. The accountant's
calculation shall be deemed conclusive, absent manifest error. The Corporation
shall then issue the appropriate number of shares of Common Stock in accordance
with subparagraph (i) above.
C. Limitations on Exercise. The exercise of this Warrant shall be
subject to the following limitations (each of which limitations shall be applied
independently):
(i) Cap Amount. Unless permitted by the applicable rules and
regulations of the principal securities market on which the Common Stock is
listed or traded, in no event shall the total number of shares of Common Stock
issued upon exercise of the Prepaid Warrants exceed the maximum number of shares
of Common Stock that the Corporation can so issue pursuant to Rules
4310(c)(25)(H) or 4460(i) of the National Association of Securities Dealers
("NASD") (or any successor rules) (the "CAP AMOUNT"). The Cap Amount shall be
allocated pro-rata to the holders of the Prepaid Warrants as provided in Article
IX.H. In the event the Corporation is prohibited from issuing shares of Common
Stock as a result of the operation of this subparagraph (i), the Corporation
shall comply with Article V.
(ii) No Five Percent Holders. Unless Holder delivers a waiver
in accordance with the last sentence of this subparagraph (ii), in no event
shall Holder be entitled to receive shares of Common Stock upon an exercise of
this Warrant to the extent that the sum of (x) the number of shares of Common
Stock beneficially owned by Holder and its affiliates (exclusive of shares
issuable upon exercise of the unexercised portion of any Prepaid Warrants or the
unexercised or unconverted portion of any other securities of the Corporation
(including, without limitation, the Incentive Warrants (as defined in the
Securities Purchase Agreement) issued by the Corporation pursuant to
5
6
the Securities Purchase Agreement) subject to a limitation on conversion or
exercise analogous to the limitations contained herein) and (y) the number of
shares of Common Stock issuable upon the exercise of the portion of this Warrant
with respect to which the determination of this subparagraph is being made,
would result in beneficial ownership by Holder and its affiliates of more than
4.99% of the then outstanding shares of Common Stock. For purposes of this
subparagraph, beneficial ownership shall be determined in accordance with
Section 13(d) of the Securities Exchange Act of 1934, as amended, and Regulation
13 D-G thereunder, except as otherwise provided in clause (x) above.
Notwithstanding the foregoing, Holder may, by providing written notice to the
Company, (xx) adjust the restrictions set forth in this paragraph so that the
limitations on beneficial ownership of 4.99% of the outstanding shares of Common
Stock referred to above shall not be applicable to Holder, which adjustment
shall not take effect until the 61st day after the date of such notice and (yy)
irrevocably waive the right to deliver a waiver in accordance with clause (xx)
of this sentence- provided, however, that if such adjustment would result in
beneficial ownership greater than 9.99% of the outstanding shares of Common
Stock, by Holder and its affiliates then such adjustment shall not take effect
until the 75th day after the date of such notice.
D. Required Exercise at Maturity. Subject to the limitations set
forth in Article II.C(i) and provided all shares of Common Stock issuable upon
exercise of all outstanding Prepaid Warrants are then (i) authorized and
reserved for issuance, and (ii) registered under the Securities Act of 1933, as
amended, for resale by the holders of Prepaid Warrants, each Prepaid Warrant
issued and outstanding on the fifth (5th) anniversary of the Issuance Date
thereof (the "MATURITY DATE"), automatically shall be exercised into shares of
Common Stock on such date in accordance with the exercise formulas set forth in
Article II.A (the "REQUIRED EXERCISE AT MATURITY"); provided, however, the
Maturity Date shall be extended for a period equal to the number of days any
Event of Default (as herein defined) or Trading Market Trigger Event (as herein
defined) is in existence. If the Required Exercise at Maturity occurs, the
Corporation and the holders of Prepaid Warrants shall follow the applicable
exercise procedures set forth in Article II.B; provided, however, that the
holders of Prepaid Warrants are not required to deliver a Notice of Exercise to
the Corporation or its transfer agent.
ARTICLE III
RESERVATION OF SHARES OF COMMON STOCK
A. Reserved Amount. On the Closing Date, the Corporation shall have
reserved 3,500,000 shares (200% of number of shares which would be issuable if
all Prepaid Warrants issued or issuable pursuant to the Securities Purchase
Agreement are exercised in their entirety on the Closing Date) of the authorized
but unissued shares of Common Stock for issuance upon the full exercise of all
Prepaid Warrants issued or issuable pursuant to the Securities Purchase
Agreement (the "RESERVED AMOUNT") and thereafter the number of authorized but
unissued shares of Common Stock so reserved shall not be decreased and shall at
all times be sufficient to provide for the full exercise of all Prepaid Warrants
issued or issuable pursuant to the Securities Purchase Agreement at the then
current Exercise Price. The Reserved Amount shall be allocated to the holders of
Prepaid
6
7
Warrants as provided in Article IX.H.
B. Increases to Reserved Amount. If, at any time after the date
hereof, the Reserved Amount for any three (3) consecutive trading days (the last
of such three (3) trading days being the "AUTHORIZATION TRIGGER DATE") shall be
less than 135% of the number of shares of Common Stock issuable upon the full
exercise of all Prepaid Warrants issued or issuable pursuant to the Securities
Purchase Agreement, the Corporation shall immediately notify the holders of
Prepaid Warrants of such occurrence and shall take immediate action (including,
if necessary, seeking stockholder approval to authorize the issuance of
additional shares of Common Stock) to increase the Reserved Amount to 200% of
the number of shares of Common Stock then issuable upon the full exercise of all
Prepaid Warrants issued or issuable pursuant to the Securities Purchase
Agreement. In the event the Corporation fails to so increase the Reserved Amount
within ninety (90) days after an Authorization Trigger Date, and thereafter
Holder is unable to exercise all or any portion of the outstanding Prepaid
Amount of this Warrant because the Corporation does not have a sufficient number
of shares of Common Stock authorized and reserved for issuance upon exercise
hereof, Holder shall thereafter have the option, exercisable at any time by
delivery of a Default Notice (as defined in Article VI.C) to the Corporation, to
require the Corporation to pay to Holder an amount in cash equal to the Default
Amount (as defined in Article VI.B). Upon payment by the Corporation of the
Default Amount, this Warrant shall be null and void. If the Corporation fails to
deliver the Default Amount to Holder within five (5) business days after its
receipt of such Default Notice, then Holder shall be entitled to the remedies
provided in Article VI.C.
ARTICLE IV
FAILURE TO SATISFY EXERCISES
A. Exercise Default Payments. If, at any time, (x) Holder submits a
Notice of Exercise and the Corporation fails for any reason (other than because
such issuance would exceed Holder's allocated portion of the Reserved Amount or
Cap Amount, for which failures Holder shall have the remedies set forth in
Articles III and V, respectively) to deliver, on or prior to the fifth (5th)
business day following the expiration of the Delivery Period for such exercise,
such number of freely tradeable shares of Common Stock to which Holder is
entitled upon such exercise, or (y) the Corporation provides notice to any
holder of Prepaid Warrants (together with all other holders of Prepaid Warrants
and the Holder referred to herein, the "HOLDERS") at any time of its intention
not to issue freely tradeable shares of Common Stock upon the exercise by any
Holder of a Prepaid Warrant in accordance with the terms of the Prepaid Warrants
(other than because such issuance would exceed such Holder's allocated portion
of the Reserved Amount or Cap Amount) (each of (x) and (y) being an "EXERCISE
DEFAULT"), then the Corporation shall pay to Holder, in the case of an Exercise
Default described in clause (x) above, and to all Holders, in the case of a
Exercise Default described in clause (y) above, an amount equal to:
7
8
(.24) x (D/365) x (Exercise Default Amount)
where:
"D" means the number of days after the expiration of the Delivery Period
through and including the Default Cure Date;
"EXERCISE DEFAULT AMOUNT" means the Prepaid Amount of the Warrants
subject to the Exercise Notice delivered to the Corporation; and
"DEFAULT CURE DATE" means (i) with respect to an Exercise Default
described in clause (x) of its definition, the date the Corporation effects the
exercise of the portion of this Warrant submitted for exercise, and (ii) with
respect to an Exercise Default described in clause (y) of its definition, the
date the Corporation begins to issue freely tradeable shares of Common Stock in
satisfaction of all exercises of Prepaid Warrants in accordance with their terms
and (iii) with respect to either type of Exercise Default, the date on which the
Corporation pays to Holder the Default Amount (as defined in Article VI.B)
pursuant to Paragraph D of this Article IV.
The payments to which Holder shall be entitled pursuant to this Paragraph
A are referred to herein as "EXERCISE DEFAULT PAYMENTS." Holder may elect to
receive accrued Exercise Default Payments in cash or to convert all or any
portion of such accrued Exercise Default Payments, at any time, into Common
Stock at the lowest Exercise Price in effect during the period beginning on the
date of the Exercise Default through the Exercise Date for such exercise. In the
event Holder elects to receive any Exercise Default Payments in cash, it shall
so notify the Corporation in writing. Such payment shall be made in accordance
with and be subject to the provisions of Article IX.J. In the event Holder
elects to convert all or any portion of the Exercise Default Payments into
Common Stock, Holder shall indicate on a Notice of Exercise such portion of the
Exercise Default Payments which Holder elects to so convert and such exercise
shall otherwise be effected in accordance with the provisions of Article II.
B. Adjustment to Exercise Price. If Holder has not received
certificates for all shares of Common Stock prior to the tenth (10th) business
day after the expiration of the Delivery Period with respect to an exercise of
any portion of any of Holder's Prepaid Warrants for any reason (other than
because such issuance would exceed Holder's allocated portion of the Reserved
Amount or Cap Amount, for which failures Holder shall have the remedies set
forth in Articles III and V, respectively), then the Fixed Exercise Price in
respect of all Prepaid Warrants held by Holder (including any Prepaid Warrants
or portions thereof submitted to the Corporation for exercise, but for which
shares of Common Stock have not been issued to Holder) shall thereafter be the
lesser of (i) the Fixed Exercise Price on the Exercise Date specified in the
Notice of Exercise which resulted in the Exercise Default and (ii) the lowest
Exercise Price in effect during the period beginning on, and including, such
Exercise Date through and including the day such shares of Common Stock are
delivered to the Holder. If there shall occur an Exercise Default of the type
described in clause (y) of Article IV.A, then the Fixed Exercise Price with
respect to any exercise thereafter shall be the
8
9
lowest Exercise Price in effect at any time during the period beginning on, and
including, the date of the occurrence of such Exercise Default through and
including the Default Cure Date. The Fixed Exercise Price shall thereafter be
subject to further adjustment for any events described in Article VII.
C. Buy-In Cure. Unless the Corporation has notified Holder in writing
prior to the delivery by Holder of a Notice of Exercise that the Corporation is
unable to honor exercises, if (i) (a) the Corporation fails for any reason to
deliver during the Delivery Period shares of Common Stock to Holder upon an
exercise of this Warrant or (b) there shall occur a Legend Removal Failure (as
defined in Article VI.A(ii) below) and (ii) thereafter, Holder purchases (in an
open market transaction or otherwise) shares of Common Stock to make delivery in
satisfaction of a sale by Holder of the unlegended shares of Common Stock (the
"SOLD SHARES") which Holder anticipated receiving upon such exercise (a
"BUY-IN"), the Corporation shall pay Holder (in addition to any other remedies
available to Holder up until that date in which the Corporation makes payment
pursuant to this provision) the amount by which (x) Holder's total purchase
price (including brokerage commissions, if any) for the unlegended shares of
Common Stock so purchased exceeds (y) the net proceeds received by Holder from
the sale of the Sold Shares. For example, if Holder purchases unlegended shares
of Common Stock having a total purchase price of $11,000 to cover a Buy-In with
respect to shares of Common Stock it sold for $10,000, the Corporation will be
required to pay Holder $1,000. Holder shall provide the Corporation written
notification indicating any amounts payable to Holder pursuant to this Paragraph
C, together with evidence supporting such calculation. The Corporation shall
make any payments required pursuant to this Paragraph C in accordance with and
subject to the provisions of Article IX.X.
X. Right to Require Payment of Default Amount. If the Corporation
fails, and such failure continues uncured for five (5) business days after the
Corporation has been notified thereof in writing by Holder, for any reason
(other than because such issuance would exceed Holder's allocable portion of the
Reserved Amount or Cap Amount, for which failures Holder shall have the remedies
set forth in Articles III and V, respectively) to issue shares of Common Stock
within ten (10) business days after the expiration of the Delivery Period with
respect to any exercise of this Warrant, then Holder may elect at any time prior
to the Default Cure Date for such Exercise Default by delivery of a Default
Notice (as defined in Article VI.C) to the Corporation, to require the
Corporation to pay to Holder an amount in cash equal to the Default Amount (as
defined in Article VI.B). Upon payment by the Corporation of the Default Amount,
this Warrant shall be null and void. If the Corporation fails to pay such
Default Amount within five (5) business days after its receipt of a Default
Notice, then Holder shall be entitled to the remedies provided in Article VI.C.
ARTICLE V
INABILITY TO EXERCISE DUE TO CAP AMOUNT
A. Obligation to Cure. If at any time the then unissued portion of
any Holder's Cap Amount is less than 135% of the number of shares of Common
Stock then issuable upon the full
9
10
exercise of all Prepaid Warrants owned by such Holder (a "TRADING MARKET TRIGGER
EVENT"), the Corporation shall immediately notify the Holders of Prepaid
Warrants of such occurrence and shall take immediate action (including, if
necessary, seeking the approval of its stockholders to authorize the issuance of
the full number of shares of Common Stock which would be issuable upon the full
exercise of all Prepaid Warrants issued or issuable pursuant to the Securities
Purchase Agreement but for the Cap Amount) to eliminate any prohibitions under
applicable law or the rules or regulations of any stock exchange, interdealer
quotation system or other self-regulatory organization with jurisdiction over
the Corporation or any of its securities on the Corporation's ability to issue
shares of Common Stock in excess of the Cap Amount. In the event the Corporation
fails to eliminate all such prohibitions within ninety (90) days after the
Trading Market Trigger Event and thereafter Holder is unable to exercise all or
any portion of the outstanding Prepaid Amount of this Warrant as a result of the
operation of Article II.C(i), then Holder shall thereafter have the option,
exercisable at any time until such date that all such prohibitions are
eliminated, by delivery of a Default Notice (as defined in Article VI.C) to the
Corporation, to require the Corporation to pay to Holder an amount in cash equal
to the Default Amount (as defined in Article VI.B). Upon payment by the
Corporation of the Default Amount, this Warrant shall be null and void. If the
Corporation fails to deliver the Default Amount within five (5) business days
after its receipt of such Default Notice, then such holder shall be entitled to
the remedies provided in Articles V.B and VI.C.
B. Remedies. If the Corporation fails to pay the Default Amount
pursuant to Article V.A within five (5) business days after its receipt of such
Default Notice, Holder may, as an additional remedy, elect to require the
Corporation to issue shares of Common Stock in accordance with Holder's Notice
of Exercise at an Exercise Price equal to the average of the Closing Bid Prices
for the Common Stock during the five (5) consecutive trading days ending on the
trading day immediately preceding the date of Holder's written notice to the
Corporation of its election to receive shares of Common Stock pursuant to this
subparagraph (subject to equitable adjustment for any stock splits, stock
dividends, reclassifications or similar events during such five (5) trading day
period).
ARTICLE VI
EVENTS OF DEFAULT
A. Events of Default. If any of the following events of default
(each, an "EVENT OF DEFAULT") shall occur:
(i) the Common Stock (including any of the shares of Common
Stock issuable upon exercise of this Warrant) is suspended from trading on any
of, or is not listed (and authorized) for trading on at least one of, the NASDAQ
Over-the-Counter Bulletin Board, the New York Stock Exchange, the American Stock
Exchange or the Nasdaq SmallCap Market for an aggregate of ten (10) trading days
in any one hundred eighty (180) day period;
(ii) any Registration Statement required to be filed by the
Corporation pursuant
10
11
to Sections 2(a) or 3(b) of that certain Registration Rights Agreement by and
among the Corporation and the other signatories thereto entered into in
connection with the Securities Purchase Agreement (the "REGISTRATION RIGHTS
AGREEMENT") has not been declared effective by the one hundred eightieth (180th)
day following the date on which such Registration Statement is required to be
declared effective pursuant to the Registration Rights Agreement, or any such
Registration Statement, after being declared effective, cannot be utilized by
Holders for the resale of all of its Registrable Securities (as defined in the
Registration Rights Agreement) for an aggregate of more than thirty (30) days;
(iii) the Corporation fails to remove any restrictive legend
on any certificate or any shares of Common Stock issued to Holder upon exercise
of any Prepaid Warrant owned by Holder and when required by the Prepaid
Warrants, the Securities Purchase Agreement or the Registration Rights Agreement
(a "LEGEND REMOVAL FAILURE"), and any such failure continues uncured for ten
(10) business days after the Corporation has been notified thereof in writing by
the holder;
(iv) the Corporation provides notice to any of the Holders of
Prepaid Warrants, including by way of public announcement, at any time, of its
intention not to issue shares of Common Stock to any of the Holders of Prepaid
Warrants upon exercise in accordance with the terms of the Prepaid Warrants
(other than due to the circumstances contemplated by Articles III or V for which
the Holders shall have the remedies set forth in such Articles);
(v) the Corporation shall:
(a) sell, convey or dispose of all or substantially all
of its assets;
(b) merge, consolidate or engage in any other business
combination with any other entity (other than pursuant to a migratory merger
effected solely for the purpose of changing the jurisdiction of incorporation of
the Corporation, other than pursuant to a merger in which the Corporation is the
surviving or continuing entity and its authorized capital stock is unchanged and
other than pursuant to a merger in which the surviving or continuing entity (if
other than the Corporation) assumes the Corporation's obligations under the
Securities Purchase Agreement, the Prepaid Warrants, the Incentive Warrants and
the Registration Rights Agreement and (x) is a publicly-traded corporation whose
common stock is listed for trading on the New York Stock Exchange, the American
Stock Exchange, the Nasdaq National Market or the Nasdaq SmallCap Market) or (y)
the consideration paid to the Corporation in such merger is entirely in cash and
the Holder of this Warrant shall be entitled to receive, in connection with such
transaction, cash consideration at a per share price equal to the other
stockholders' per share price; or
(c) have fifty percent (50%) or more of the voting power
of its capital stock owned beneficially by one person, entity or "group" (as
such term is used under Section 13(d) of the Securities Exchange Act of 1934, as
amended);
11
12
(vi) the Corporation otherwise shall breach any material term
hereunder (other than as specifically provided in subparagraphs (i)-(iv) of this
Paragraph A) or under the Securities Purchase Agreement or the Registration
Rights Agreement and such breach continues uncured for ten (10) business days
after the Corporation has been notified thereof in writing by the Holder, or the
applicable cure period provided therein;
(vii) any representation or warranty of the Corporation made
herein or in any agreement, statement or certificate given in writing pursuant
hereto or in connection herewith (including, without limitation, the Securities
Purchase Agreement and the Registration Rights Agreement), shall be false or
misleading in any material respect when made and the breach of which would have
a Material Adverse Effect (as defined in the Securities Purchase Agreement);
(viii) the Corporation shall make an assignment for the benefit of
creditors, or apply for or consent to the appointment of a receiver or trustee
for it or for a substantial part of its property or business; or such a receiver
or trustee shall otherwise be appointed; or
(ix) bankruptcy, insolvency, reorganization or liquidation
proceedings or other proceedings for relief under any bankruptcy law or any law
for the relief of debtors shall be instituted by or against the Corporation or
any subsidiary of the Corporation;
then, upon the occurrence and during the continuation of any Event of Default
specified in subparagraphs (i)-(vi) of this Paragraph A, at the option of Holder
exercisable through the delivery of a Default Notice (as defined in Paragraph C
below), and upon the occurrence of an Event of Default specified in
subparagraphs (vii) or (viii) of this Paragraph A, the Corporation shall pay
Holder, in satisfaction of its obligation to issue shares of Common Stock upon
exercise of this Warrant, an amount equal to the Default Amount and such Default
Amount, together with all other ancillary amounts payable hereunder, shall
immediately become due and payable, all without demand, presentment or notice,
all of which hereby are expressly waived, together with all costs, including,
without limitation, legal fees and expenses of collection, and Holder shall be
entitled to exercise all other rights and remedies available at law or in
equity; provided, however, that if the Corporation pays the Default Amount to
Holder within thirty (30) business days after the Corporation's receipt of a
Default Notice from Holder delivered as a result of the occurrence of an Event
of Default specified in subparagraph (iv)(a) of this Paragraph A, Holder shall
have no other rights or remedies, at law or in equity, with respect to such
Event of Default. For the avoidance of doubt, the occurrence of any event
described in clauses (i), (ii), (iii), (iv), (vi) (vii) or (viii) above shall
immediately constitute an Event of Default and there shall be no cure period.
B. Definition of Default Amount. The "DEFAULT AMOUNT" with respect to
this Warrant means an amount equal to:
(i) A
---------------------------------- X M
EP
12
13
where:
"A" means the outstanding Prepaid Amount of this Warrant on the date on
which the Corporation receives the Default Notice plus all outstanding and
unpaid Premium and any unpaid Exercise Default Payments owing (if any) with
respect thereto through the date of payment of the Default Amount;
"EP" means the Exercise Price in effect on the date on which the
Corporation receives the Default Notice; and
"M" means (i) with respect to all Events of Default other than an Event
of Default specified in Article VI.A(iv) hereof, the highest Closing Bid Price
of the Corporation's Common Stock during the period beginning on the date on
which the Corporation receives the Default Notice and ending on the date
immediately preceding the date of payment of the Default Amount and (ii) with
respect to an Event of Default specified in Article VI.A(iv) hereof, the greater
of (a) the amount determined pursuant to clause (i) of this definition or (b)
the fair market value, as of the date on which the Corporation receives the
Default Notice, of the consideration payable to the holder of a share of Common
Stock pursuant to the transaction which triggers the Event of Default. For
purposes of this definition, "fair market value" shall be determined by an
investment banking firm selected by the Corporation and reasonably acceptable to
the Majority Holders, with the costs of such appraisal to be borne by the
Corporation.
C. Failure to Pay Default Amount. If the Corporation fails to pay the
Default Amount within thirty (30) business days of its receipt of a notice
requiring such payment (a "DEFAULT NOTICE"), then the Holder (i) shall be
entitled to interest on the Default Amount at a per annum rate equal to the
lower of twelve percent (12%) and the highest interest rate permitted by
applicable law from the date on which the Corporation receives the Default
Notice until the date of payment of the Default Amount hereunder, and (ii) shall
have the right, at any time and from time to time, to require the Corporation,
upon written notice, to immediately convert (in accordance with the terms of
Paragraph A of Article II) all or any portion of the Default Amount, plus
interest as aforesaid, into shares of Common Stock at the lowest Exercise Price
in effect during the period beginning on the date on which the Corporation
receives the Default Notice and ending on the Exercise Date with respect to the
conversion of such Default Amount. In the event the Corporation is not able to
pay all amounts due and payable with respect to all Prepaid Warrants subject to
Default Notices, the Corporation shall pay the Holders of such Prepaid Warrants
which are the subject of Default Notices such amounts pro rata, based on the
total amounts payable to each such Holder relative to the total amounts payable
to all such Holders.
13
14
ARTICLE VII
ADJUSTMENTS TO THE EXERCISE PRICE
The Exercise Price shall be subject to adjustment from time to time as
follows:
A. Stock Splits, Stock Dividends, Etc. If, at any time on or after
the Closing Date, the number of outstanding shares of Common Stock is increased
by a stock split, stock dividend, combination, reclassification or other similar
event, the Fixed Exercise Price shall be proportionately reduced, or if the
number of outstanding shares of Common Stock is decreased by a reverse stock
split, combination or reclassification of shares, or other similar event, the
Fixed Exercise Price shall be proportionately increased. In such event, the
Corporation shall notify the Corporation's transfer agent of such change on or
before the effective date thereof.
B. Adjustment Due to Merger, Consolidation, Etc. If, at any time
after the Closing Date, there shall be (i) any reclassification or change of the
outstanding shares of Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
a subdivision or combination), (ii) any consolidation or merger of the
Corporation with any other entity (other than a migratory merger effected solely
for the purpose of changing the jurisdiction of incorporation of the Corporation
and other than a merger in which the Corporation is the surviving or continuing
entity and its authorized capital stock is unchanged), (iii) any sale or
transfer of all or substantially all of the assets of the Corporation or (iv)
any share exchange pursuant to which all of the outstanding shares of Common
Stock are converted into other securities or property (each of (i) - (iv) above
being a "CORPORATE CHANGE"), then the Holders shall thereafter have the right to
receive upon exercise hereof, in lieu of the shares of Common Stock otherwise
issuable, such shares of stock, securities and/or other property as would have
been issued or payable in such Corporate Change with respect to or in exchange
for the number of shares of Common Stock which would have been issuable upon
exercise hereof (without giving effect to the limitations contained in Article
II.C) had such Corporate Change not taken place, and in any such case,
appropriate provisions shall be made with respect to the rights and interests of
Holder to the end that the provisions hereof (including, without limitation,
provisions for adjustment of the Exercise Price and of the number of shares of
Common Stock issuable upon exercise of this Warrant) shall thereafter be
applicable, as nearly as may be practicable in relation to any shares of stock
or securities thereafter deliverable upon the exercise thereof. The Corporation
shall not effect any Corporate Change unless (i) Holder has received written
notice of such transaction at least seventy- five (75) days prior thereto, but
in no event later than twenty (20) days prior to the record date for the
determination of stockholders entitled to vote with respect thereto, and (ii)
the resulting successor or acquiring entity (if not the Corporation) assumes by
written instrument the obligations of the Corporation under this Warrant. The
above provisions shall apply regardless of whether or not there would have been
a sufficient number of shares of Common Stock authorized and available for
issuance upon exercise of the Prepaid Warrants outstanding as of the date of
such transaction, and shall similarly apply to successive reclassifications,
consolidations, mergers, sales, transfers or share exchanges.
14
15
C. Adjustment Due to Major Announcement. In the event the Corporation
at any time after the Closing Date (i) makes a public announcement that it
intends to consolidate or merge with any other entity (other than a migratory
merger effected solely for the purpose of changing the jurisdiction of
incorporation of the Corporation and other than a merger in which the
Corporation is the surviving or continuing entity and its capital stock is
unchanged) or to sell or transfer all or substantially all of the assets of the
Corporation or (ii) any person, group or entity (including the Corporation)
publicly announces a tender offer, exchange offer or another transaction to
purchase 50% or more of the Corporation's Common Stock or otherwise publicly
announces an intention to replace a majority of the Corporation's Board of
Directors by waging a proxy battle or otherwise (the date of the announcement
referred to in clause (i) or (ii) of this Paragraph C is hereinafter referred to
as the "ANNOUNCEMENT DATE"), then the Exercise Price shall, effective upon the
Announcement Date and continuing through the sixth (6th) trading day following
the earlier of the consummation of the proposed transaction or tender offer,
exchange offer or another transaction or the Abandonment Date (as defined
below), be equal to the lower of (x) the Exercise Price which would have been
applicable for an exercise occurring on the Announcement Date and (y) the
Exercise Price determined in accordance with Article I.D on the Exercise Date
set forth in the applicable Notice of Exercise. From and after the sixth (6th)
trading day following the Abandonment Date, the Exercise Price shall be
determined as set forth in Article I.D "ABANDONMENT DATE" means with respect to
any proposed transaction or tender offer, exchange offer or another transaction
for which a public announcement as contemplated by this Paragraph C has been
made, the date upon which the Corporation (in the case of clause (i) above) or
the person, group or entity (in the case of clause (ii) above) publicly
announces the termination or abandonment of the proposed transaction or tender
offer, exchange offer or another transaction which caused this Paragraph C to
become operative.
D. Adjustment Due to Distribution. If, at any time after the Closing
Date, the Corporation 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 Corporation's shareholders in cash or shares (or
rights to acquire shares) of capital stock of a subsidiary (i.e. a spin-off)) (a
"DISTRIBUTION"), then Holder shall be entitled, upon any exercise of this
Warrant after the date of record for determining stockholders entitled to such
Distribution, to receive the amount of such assets which would have been payable
to Holder with respect to the shares of Common Stock issuable upon such exercise
(without giving effect to the limitations contained in Article II.C) had Holder
been the holder of such shares of Common Stock on the record date for the
determination of stockholders entitled to such Distribution.
E. Purchase Rights. If, at any time after the Closing Date, the
Corporation issues any Convertible Securities or rights to purchase stock,
warrants, securities or other property (the "PURCHASE RIGHTS") pro rata to the
record holders of any class of Common Stock, then Holder will be entitled to
acquire, upon the terms applicable to such Purchase Rights, the aggregate
Purchase Rights which Holder could have acquired if Holder had held the number
of shares of Common Stock acquirable upon complete exercise of this Warrant
(without giving effect to the limitations contained in Article II.C) immediately
before the date on which a record is taken for the grant, issuance or sale
15
16
of such Purchase Rights, or, if no such record is taken, the date as of which
the record holders of Common Stock are to be determined for the grant, issue or
sale of such Purchase Rights.
F. Notice of Adjustments. Upon the occurrence of each adjustment or
readjustment of the Exercise Price pursuant to this Article VII, the
Corporation, at its expense, shall promptly compute such adjustment or
readjustment and prepare and furnish to Holder a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. The Corporation shall, upon the written
request at any time of Holder, furnish to Holder a like certificate setting
forth (i) such adjustment or readjustment, (ii) the Exercise Price at the time
in effect and (iii) the number of shares of Common Stock and the amount, if any,
of other securities or property which at the time would be received upon
exercise of this Warrant.
ARTICLE VIII
REDEMPTION
A. (a) At any time or times on or after the date hereof, provided the
Corporation is not in material violation of any of its obligations under this
Prepaid Warrant, the Securities Purchase Agreement or the Registration Rights
Agreement and so long as no Event of Default shall have occurred and be
continuing other than any Event of Default provided in Article VI.A.(v)(a) or
(c) (and the Holder does not waive such violation or Event of Default), the
Corporation shall have the right, in its sole discretion, to redeem any or all
of the Exercise Amounts of outstanding Prepaid Warrants which Exercise Amounts
("ELIGIBLE EXERCISE AMOUNTS") at such time are exercisable on the date the
Corporation delivers a Notice of Call to the Holders (a "CALL"); provided that
the Conditions to a Call (as set forth below) are satisfied, provided, however,
that in the event of a Call in connection with an Event of Default provided for
in Article VI.A.(v)(a) or (c) the only Condition to Call shall be clause (vi) in
the definition thereof. The Corporation shall exercise its right to Call by
providing each holder of Prepaid Warrants written notice ("NOTICE OF CALL") at
least thirty (30) days prior to the date selected by the Corporation for a Call
(the "CALL DATE"). On the Call Date the Corporation shall pay the Call Amount
(as defined below) to each Holder. If the Corporation elects to so Call some,
but not all, of the Eligible Exercise Amounts, the Corporation shall Call a pro
rata amount of the Eligible Exercise Amounts from each Holder of Prepaid
Warrants (based on the dollar amount of the Eligible Exercise Amounts of Prepaid
Warrants held by such holder relative to the total dollar amount of Prepaid
Warrants outstanding on the date of the Corporation's delivery of the Notice of
Call). The Notice of Call shall indicate (x) the dollar amount of the Eligible
Exercise Amounts of Prepaid Warrants the Corporation has selected for Call, (y)
the Call Date, which date shall not be less than 30 or more than 40 days after
each holder's receipt of such notice, and (z) each Holder's pro rata share of
the Eligible Exercise Amounts of outstanding Prepaid Warrants which the
Corporation elects to Call. All Holders of Prepaid Warrants shall thereupon and
within two (2) business days after the Call Date surrender all of the Eligible
Exercise Amounts of Prepaid Warrants selected for call to the Corporation
provided the Corporation has paid the Call Amount. "CONDITIONS TO CALL" means
the following conditions: (i) on each day during the period beginning 20 trading
days prior to the Notice of Call and ending on and including the date of the
Call Date, the
16
17
Registration Statement shall be effective and available for the sale of no less
than 150% of the sum of (A) the number of shares of Common Stock then issuable
upon the exercise of all outstanding Prepaid Warrants (without regard to any
limitations on exercise herein or elsewhere) and (B) the number of shares of
Common Stock issued upon exercise of Prepaid Warrants that are then held by the
holders of the Prepaid Warrants, (ii) on each day during the period beginning 20
trading days prior to the date of the Notice of Call and ending on and including
the Call Date, the Common Stock is designated for quotation on the Nasdaq
Over-the-Counter Bulletin Board or a national securities exchange or market and
is not suspended from trading; (iii) during the period beginning on the Issuance
Date and ending on and including the Call Date, the Corporation shall have
delivered shares upon exercise of the Prepaid Warrants to the Investors (as that
term is defined in the Securities Purchase Agreement) on a timely basis as set
forth in Article II of the Prepaid Warrants; (iv) none of an Event of Default,
an Exercise Default, a Trading Market Triggering Event or any event that with
the passage of time would constitute an Event of Default or a Trading Market
Triggering Event (assuming it was not cured) shall have occurred; (v) the
Corporation otherwise has satisfied its obligations and is not in default under
this Warrant, the Securities Purchase Agreement and the Registration Rights
Agreement; and (vi) the Corporation has sufficient funds immediately available
to satisfy its obligations to pay the Call Amount as set forth herein.
Notwithstanding the above, any holder of Prepaid Warrants may exercise such
Prepaid Warrants for Common Stock pursuant to Article II on or prior to the
Corporation's Election Call Date.
(b) In the event of a Call, the Call Amount (as defined below)
in immediately available funds shall be paid to the holders of Prepaid Warrants
being called on the applicable Call Date; provided, however, that the
Corporation shall not be obligated to deliver any portion of the Call Amount
until either the certificates evidencing the Prepaid Warrants being redeemed are
delivered to the office of the Corporation or the Holder notifies the
Corporation that such certificates have been lost, stolen or destroyed and
delivers the documentation in accordance with Article IX.G hereof.
Notwithstanding anything herein to the contrary, in the event that the
certificates evidencing the Prepaid Warrants being redeemed are not delivered to
the Corporation prior to the third business day following the Call Date, the
call of the Prepaid Warrants pursuant to this Article VIII shall still be deemed
effective as of the Call Date and the Call Amount shall be paid to the Holder of
Prepaid Warrants being called within five (5) business days of the date the
certificates evidencing the Prepaid Warrants being called actually delivered to
the Corporation or the escrow agent. "CALL AMOUNT" shall mean and amount equal
to the greater of (i) the product of 1.15 and the Eligible Exercise Amount of
all Prepaid Warrants being called plus all outstanding and unpaid Premium and
any Exercise Default Payments payable with respect thereto and (ii) the product
of 1.10 and the Default Amount.
17
18
(c) If the Corporation fails to pay, when due and owing, any
Call Amount, then the holder of Prepaid Warrants entitled to receive such Call
Amount shall have the right, at any time and from time to time during the twenty
(20) trading day period following the Call Date to require the Corporation, upon
written notice, to immediately exercise (in accordance with the terms of
paragraph A of Article II) any or all of the Prepaid Amount which is the subject
of such call, into shares of Common Stock at the lowest Exercise Price in effect
during the period beginning on the
date the Corporation elected to call such Prepaid Warrants and ending on
expiration of such twenty trading day period. From and after the expiration of
such twenty (20) trading day period, the holders may exercise Prepaid Warrants
at the Exercise Price then in effect and in accordance with Article II.
ARTICLE IX
MISCELLANEOUS
A. Failure or Indulgency Not Waiver. No failure or delay on the part
of the Holder in the exercise of any power, right or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or privilege preclude other or further exercise thereof or of
any other right, power or privilege.
B. Notices. Any notice herein required or permitted to be given shall
be in writing and may be personally served or delivered by courier and shall be
deemed to have been given upon receipt (which shall include telephone line
facsimile transmission). The addresses for such communications shall be:
If to the Company:
FastComm Communications Corporation
00000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, President
with a copy simultaneously transmitted by like means to:
Xxxxxxx, Dunaud, Mercadier & Carreras, LLP
000 Xxxxxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn.: Xxxxxx X. Xxxx, Esq.
18
19
If to the Holder, at such address as such Holder shall have provided in
writing to the Corporation.
C. Amendment Provision. Except as otherwise provided herein, this
Warrant and any provision hereof may only be amended by an instrument in writing
signed by the Corporation and the Majority Holders. The term "WARRANT" and all
references thereto, as used throughout this instrument, shall mean this
instrument as originally executed, or if later amended or supplemented, then as
so amended or supplemented.
D. Assignability. This Warrant shall be binding upon the Corporation
and its successors and assigns and shall inure to the benefit of the Holder and
its successors and assigns.
E. Governing Law. This Warrant 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 Corporation irrevocably
consents to the jurisdiction of the United States federal courts located in the
City of New York in the State of New York in any suit or proceeding based on or
arising under this Warrant and irrevocably agrees that all claims in respect of
such suit or proceeding may be determined in such courts. The Corporation
irrevocably waives the defense of an inconvenient forum to the maintenance of
such suit or proceeding. The Corporation further agrees that service of process
upon the Corporation mailed by first class mail shall be deemed in every respect
effective service of process upon the Corporation in any such suit or
proceeding. Nothing herein shall affect Holder's right to serve process in any
other manner permitted by law. The Corporation 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.
F. Denominations. At the request of Holder, upon surrender of this
Warrant, the Corporation shall promptly issue new Warrants in the aggregate
outstanding Prepaid Amount hereof, in the form hereof, in such denominations as
Holder shall request.
G. Lost or Stolen Warrants. Upon receipt by the Corporation of (i)
evidence of the loss, theft, destruction or mutilation of this Warrant and (ii)
(y) in the case of loss, theft or destruction, of indemnity and affidavit
reasonably satisfactory to the Corporation, or (z) in the case of mutilation,
upon surrender and cancellation of this Warrant, the Corporation shall execute
and deliver new Warrants, in the form hereof, in such denominations as Holder
may request. However, the Corporation shall not be obligated to reissue such
lost or stolen Warrants if Holder contemporaneously requests the Corporation to
exercise this Warrant.
H. Allocation of Cap Amount and Reserved Amount. The initial Cap
Amount and Reserved Amount shall be allocated pro rata among the Holders of
Prepaid Warrants based on the aggregate Prepaid Amount of the Prepaid Warrants
issued to each Holder. Each increase to the Cap Amount and the Reserved Amount
shall be allocated pro rata among the Holders of Prepaid Warrants based on the
aggregate Prepaid Amount of the Prepaid Warrants held by each Holder at
19
20
the time of the increase in the Cap Amount or Reserved Amount. In the event a
Holder shall sell or otherwise transfer any of such Holder's Prepaid Warrants,
each transferee shall be allocated a pro rata portion of such transferor's Cap
Amount and Reserved Amount. Any portion of the Cap Amount or Reserved Amount
which remains allocated to any person or entity which does not hold any Prepaid
Warrants shall be allocated to the remaining Holders of Prepaid Warrants pro
rata based on the aggregate Prepaid Amount of the Prepaid Warrants then held by
such Holders.
I. Quarterly Statements of Available Shares. The Corporation shall
deliver (or cause its transfer agent to deliver) to Holder a written report
notifying Holder of any occurrence which prohibits the Corporation from issuing
Common Stock upon any exercise of Prepaid Warrants. The Corporation (or its
transfer agent) shall also provide, within fifteen (15) days after delivery to
the Corporation of a written request by any Holder, any of the following
information as of the date of such request: (i) the total outstanding Prepaid
Amount of all Prepaid Warrants, (ii) the total number of shares of Common Stock
issued upon all exercises of all Prepaid Warrants prior to such date, (iii) the
total number of shares of Common Stock which are reserved for issuance upon
exercise of the Prepaid Warrants which are then outstanding, and (iv) the total
number of shares of Common Stock which may thereafter be issued by the
Corporation upon exercise of the Prepaid Warrants before the Corporation would
exceed the Reserved Amount and the Cap Amount.
J. Payment of Cash; Defaults. Whenever the Corporation is required to
make any cash payment to Holder under this Warrant (as an Exercise Default
Payment or otherwise), such cash payment shall be made to Holder within fifteen
(15) business days after delivery by Holder of a notice specifying that Holder
elects to receive such payment in cash and the method (e.g., by check, wire
transfer) in which such payment should be made. If such payment is not delivered
within such fifteen (15) business day period, Holder shall thereafter be
entitled to interest on the unpaid amount at a per annum rate equal to the lower
of twelve percent (12%) and the highest interest rate permitted by applicable
law until such amount is paid in full to Holder.
K. Restrictions on Shares. The shares of Common Stock issuable upon
exercise of this Warrant may not be sold or transferred unless (i) they first
shall have been registered under the Securities Act and applicable state
securities laws, (ii) the Corporation shall have been furnished with an opinion
of legal counsel (in form, substance and scope customary for opinions in such
circumstances) to the effect that such sale or transfer is exempt from the
registration requirements of the Securities Act or (iii) they are sold under
Rule 144 under the Act. Except as otherwise provided in the Securities Purchase
Agreement, each certificate for shares of Common Stock issuable upon exercise of
this Warrant that have not been so registered and that have not been sold under
an exemption that permits removal of the legend, shall bear a legend
substantially in the following form, as appropriate:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES. THE SECURITIES REPRESENTED HEREBY MAY NOT
BE OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION
20
21
STATEMENT FOR THE SECURITIES UNDER APPLICABLE SECURITIES LAWS UNLESS
OFFERED, SOLD OR TRANSFERRED UNDER AN AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
Upon the request of a holder of a certificate representing any shares of Common
Stock issuable upon exercise of this Warrant, the Corporation shall remove the
foregoing legend from the certificate and issue to such holder a new certificate
therefor free of any transfer legend, if (i) with such request, the Corporation
shall have received either (A) an opinion of counsel, in form, substance and
scope customary for opinions in such circumstances, to the effect that any such
legend may be removed from such certificate, or (B) satisfactory representations
from Holder that Holder is eligible to sell such security under Rule 144 or (ii)
a registration statement under the Securities Act covering the resale of such
securities is in effect. Nothing in this Warrant shall (i) limit the
Corporation's obligation under the Registration Rights Agreement, or (ii) affect
in any way Holder's obligations to comply with applicable securities laws upon
the resale of the securities referred to herein.
L. Status as Warrantholder. Upon submission of a Notice of Exercise
by Holder, the Prepaid Amount of this Warrant (other than any portion of this
Warrant, if any, which cannot be exercised because the exercise thereof would
exceed Holder's allocated portion of the Reserved Amount or Cap Amount) shall be
deemed exercised for shares of Common Stock as of the Exercise Date and Holder's
rights as a holder of this Warrant shall cease and terminate, excepting only the
right to receive certificates for such shares of Common Stock and to any
remedies provided herein or otherwise available at law or in equity to Holder
because of a failure by the Corporation to comply with the terms of this
Warrant. Notwithstanding the foregoing, if Holder has not received certificates
for all shares of Common Stock prior to the tenth (10th) business day after the
expiration of the Delivery Period with respect to an exercise for any reason,
then (unless Holder otherwise elects to retain its status as a holder of Common
Stock by so notifying the Corporation) the portion of the Prepaid Amount subject
to such exercise shall be deemed outstanding under this Warrant and the
Corporation shall, as soon as practicable, return this Warrant to Holder. In all
cases, Holder shall retain all of its rights and remedies (including, without
limitation, (i) the right to receive Exercise Default Payments pursuant to
Article IV.A to the extent required thereby for such Exercise Default and any
subsequent Exercise Default and (ii) the right to have the Exercise Price with
respect to subsequent exercises determined in accordance with Article IV.B) for
the Corporation's failure to honor the exercise of this Warrant.
M. Remedies Cumulative. The remedies provided in this Warrant shall
be cumulative and in addition to all other remedies available under this
Warrant, at law or in equity (including a decree of specific performance and/or
other injunctive relief), no remedy contained herein shall be deemed a waiver of
compliance giving rise to such remedy and nothing herein shall limit Holder's
right to pursue actual damages for any failure by the Corporation to comply with
the terms of this Warrant. The Corporation acknowledges that a breach by it of
its obligations hereunder will cause irreparable harm to the Holder and that the
remedy at law for any such breach may be inadequate. The Corporation therefore
agrees, in the event of any such breach or threatened breach, the Holder
21
22
shall be entitled, in addition to all other available remedies, to an injunction
restraining any breach, without the necessity of showing economic loss and
without any bond or other security being required.
N. Liquidation Treatment. In the event of a liquidation of the
Corporation, this Warrant shall be considered equity of the Corporation without
a defined claim amount on the proceeds of such liquidation, provided, however,
that nothing contained in this provision shall limit in any way any of the
Holders' rights or remedies under applicable law or the terms set forth in this
Prepaid Warrant which are not inconsistent with the intention of this provision
to treat the holder as an equity holder in the event of a liquidation.
IN WITNESS WHEREOF, the Corporation has caused this Warrant to be signed
by its duly authorized officer.
FASTCOMM COMMUNICATIONS CORPORATION
By: /s/ XXXXX X. XXXXXX
----------------------------
Name: Xxxxx X. Xxxxxx
Title: President
22
23
EXHIBIT 1
NOTICE OF EXERCISE
To: FastComm Communications Corporation
00000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, President
The undersigned hereby irrevocably elects to exercise $____________ of the
Prepaid Amount of this Warrant (the "EXERCISE") into shares of common stock
("COMMON STOCK") of FastComm Communications Corporation (the "CORPORATION")
according to the conditions of the Prepaid Common Stock Purchase Warrant dated
____, 2000 (the "WARRANT"), as of the date written below. If securities are to
be issued in the name of a person other than the undersigned, the undersigned
will pay all transfer taxes payable with respect thereto. No fee will be charged
to the holder for any Exercise, except for transfer taxes, if any. A copy of the
Warrant is attached hereto (or evidence of loss, theft or destruction thereof).
If the Corporation's transfer agent is participating in the Depository Trust
Company ("DTC") Fast Automated Securities Transfer program, the Corporation
shall electronically transmit the Common Stock issuable pursuant to this Notice
of Exercise to the account of the undersigned or its nominee (which is
________________) with DTC through its Deposit Withdrawal Agent Commission
System ("DTC TRANSFER"). If the Corporation's transfer agent does not
participate in the DTC program as aforementioned, or if Holder checks the box
set forth below, the Corporation shall deliver to Holder physical certificates
representing the Common Stock issuable upon exercise of the Warrant.
The undersigned represents and warrants that all offers and sales by the
undersigned of the securities issuable to the undersigned upon exercise of this
Warrant shall be made pursuant to registration of the Common Stock under the
Securities Act or pursuant to an exemption from registration under the Act.
In the event of partial exercise, please reissue an appropriate Warrant(s) for
the portion of the Prepaid Amount which shall not have been exercised.
Check Box if Applicable:
[ ] In lieu of receiving the shares of Common Stock issuable pursuant to
this Notice of Exercise by way of DTC Transfer, the undersigned hereby
requests that the Corporation issue and deliver to the undersigned
physical certificates representing such shares of Common Stock.
Date of Exercise:
-----------------------------------------
Applicable Exercise Price:
--------------------------------
Portion of Prepaid Amount to be exercised:
----------------
Amount of Exercise Default
Payments to be exercised, if any:
-------------------------
Number of Shares of
Common Stock to be Issued:
--------------------------------
Signature:
------------------------------------------------
Name:
-----------------------------------------------------
Address:
--------------------------------------------------
