<PAGE>
As filed with the Securities and Exchange Commission on May 13, 1998
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
REGISTRATION STATEMENT
ON FORM S-8
UNDER THE
SECURITIES ACT OF 1933
____________________
WAVERIDER COMMUNICATIONS INC.
(Exact name of registrant as specified in its charter)
NEVADA 33-0264030
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
____________________
604 Edward Avenue, Unit No. 3
Richmond Hill, Ontario, Canada L4C 9Y7
(Address of Principal Executive Offices,
including Zip Code)
EMPLOYEE STOCK OPTION (1997) PLAN WAVERIDER COMMUNICATIONS INC.
(Full title of the plan)
T. SCOTT WORTHINGTON Copy to:
604 Edward Avenue, Unit No. 3 BRIAN G. LLOYD
Richmond Hill, Ontario, Canada L4C 9Y7 Parr, Waddoups, Brown, Gee & Loveless
(416) 410-4843 185 South State Street, Suite 1300
(Name, address and telephone Salt Lake City, Utah 84111
number, including area code, (801) 532-7840
of agent for service)
____________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE(1)
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock ........................ 1,250,000 shares $1.72 $2,150,375 $634
========================================================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457(h)(2) for purposes of calculating the
registration fee. With respect to 891,997 shares of the Common Stock being
registered, the Proposed Maximum Offering Price per Share, Proposed Maximum
Aggregate Offering Price and Registration Fee have been calculated upon the
basis of the exercise price at which such options may be exercised, pursuant to
Rule 457(h)(1) ($1.15 being the average exercise price of options that have been
issued). With respect to the remaining 358,003 shares being registered, for
which the exercise price is not known, the Proposed Maximum Offering Price per
Share, Aggregate Offering Price and Registration Fee are computed on the basis
of the average of the high and low sales prices on May 6, 1998 as reported on
the OTC Bulletin Board maintained by the National Association of Securities
Dealers on May 6, 1998 ($3.15 being the average of the high and the low sales
prices).
================================================================================
<PAGE>
INCORPORATION OF DOCUMENTS BY REFERENCE
The Registrant has previously filed a Registration Statement on Form
S-8 (Registration No. 33-334647) (the "Previous Registration Statement") with
respect to 5,000,000 shares of Common Stock to be issued pursuant to certain
options granted under the Employee Stock Option (1997) Plan WaveRider
Communications Inc. (the "Plan"). The Registrant is filing this Registration
Statement to register an additional 1,250,000 shares of Common Stock for
issuance pursuant to the Plan. In accordance with General Instruction E of Form
S-8, the contents of the Previous Registration Statement are hereby incorporated
by reference. Any statement contained in the Previous Registration Statement
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein modifies or
supersedes such statement. Without limiting the foregoing, Part I and Part II,
Item 3 of the Previous Registration Statement incorporated by reference in this
herein shall be deemed to be modified and superseded for purposes hereof by Part
I and Part II, Item 3 hereof.
PART I
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended, and Note to Part I of Form S-
8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents filed by WaveRider Communications Inc. (the
"Registrant") with the Securities and Exchange Commission are hereby
incorporated by reference in this Registration Statement:
(1) The Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 1997.
(2) The Registrant's Current Report on Form 8-K filed on May 4, 1998.
(3) The Registrant's Current Report on Form 8-K filed on February 25,
1998.
(4) The Registrant's Current Report on Form 8-K filed on February 10,
1998.
(5) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A as modified and updated by the
Registrant's Current Report on Form 8-K filed on May 4, 1998 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), including any
amendment or report filed under the Exchange Act for the purpose of updating
such description.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes hereof to the extent that a
statement contained herein (or in any other subsequently filed document which
also is incorporated by reference herein) modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed to constitute a part
hereof except as so modified or superseded.
The financial statements of the Registrant included in the
Registrant's Annual Report on Form 10-KSB for the year ended December 31, 1997,
and incorporated by reference in this Registration Statement, have been audited
2
<PAGE>
by Johnson, Holscher & Company, P.C., independent public accountants, as
indicated in their report with respect thereto, and are included herein in
reliance upon the authority of said firm as experts in giving said report.
Future financial statements of the Registrant and the reports thereon
by Johnson, Holscher & Company, P.C. also will be incorporated by reference in
the Registration Statement in reliance upon the authority of that firm as
experts in giving those reports; provided, however, only to the extent that said
firm has audited those financial statements and consented to the use of their
reports thereon.
Item 8. Exhibits.
--------
See the Exhibit Index on page 5.
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Toronto, Province of Ontario, Canada on May
8, 1998.
WAVERIDER COMMUNICATIONS INC.
By /s/ Bruce Sinclair
-------------------------
Bruce Sinclair, President
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this to
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature to this
Registration Statement appears below hereby constitutes and appoints T. Scott
Worthington and William E. Krebs, and each of them, as his true and lawful
attorney-in-fact and agent, with full power of substitution, to sign on his
behalf individually and in the capacity stated below and to perform any acts
necessary to be done in order to file all amendments and post-effective
amendments to this Registration Statement, and any and all instruments or
documents filed as part of or in connection with this Registration Statement or
the amendments thereto and each of the undersigned does hereby ratify and
confirm all that said attorney-in-fact and agent, or his substitutes, shall do
or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
<S> <C> <C>
Signature Title Date
--------- ----- ----
/s/ Bruce Sinclair President, Chief Executive Officer and Director May 8, 1998
- -----------------------------
Bruce Sinclair (Principal Executive Officer)
/s/ William E. Krebs Secretary and Director May 12, 1998
- -----------------------------
William E. Krebs
/s/ T. Scott Worthington Vice President, Finance and Administration May 8, 1998
- ------------------------------
T. Scott Worthington (Principal Financial Officer)
/s/ William H. Laird Director May 12, 1998
- ------------------------------
William H. Laird
</TABLE>
4
<PAGE>
WAVERIDER COMMUNICATIONS INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
Regulation S-K Description Sequential
Exhibit No. Page No.
- -------------- -------------------------------------------------------------- -------------
<C> <S> <C>
4.1 Articles of Incorporation of the Company.
4.2* Certificate of Amendment to the Articles of Incorporation of
the Company filed with the Nevada Secretary of State on
October 8, 1993, incorporated by reference to Exhibit 3.3 to
the Company's Quarterly Report on Form 10-QSB for the
period ended September 30, 1994.
4.3* Certificate of Amendment to the Articles of Incorporation of
the Company filed with the Nevada Secretary of State on
October 25, 1993, incorporated by reference to Exhibit 2(d) to
the Company's Registration Statement on Form 8-A, file No.
0-25680.
4.4* Certificate of Amendment to the Articles of Incorporation of
the Company filed with the Nevada Secretary of State on
March 2, 1995, incorporated by reference to Exhibit 2(e) to
the Company's Registration Statement on Form 8-A, file No.
0-25680.
4.5* Certificate of Designation of the Company relating to the
Series A Voting Convertible Preferred Stock of the Company
filed with the Nevada Secretary of State on March 24, 1997,
incorporated by reference to Exhibit 3.6 to the Company's
Annual Report on Form 10-KSB for the year ended December
31, 1996.
4.6* Certificate of Designation of the Company relating to the
Series B Voting Convertible Preferred Stock of the Company
filed with the Nevada Secretary of State on May 16, 1997,
incorporated by reference to Exhibit 3.7 to the Company's
Annual Report on Form 10-KSB for the year ended December
31, 1997.
4.7* Certificate of Amendment to the Articles of Incorporation of
the Company filed with the Nevada Secretary of State on May
27, 1997, incorporated by reference to Exhibit 3.8 to the
Company's Annual Report on Form 10-KSB for the year
ended December 31, 1997.
</TABLE>
5
<PAGE>
4.8* Certificate of Amendment to the Certificate of Designation
of the Company relating to the Series B Voting Convertible
Preferred Stock of the Company filed with the Nevada
Secretary of State on April 23, 1998, incorporated by
reference to Exhibit 99.1 to the Company's Current Report on
Form 8-K filed on May 4, 1998.
4.9* Bylaws of the Company, filed as Exhibit No. 3.2 to the
Company's Annual Report on Form 10-KSB for the year
ended December 31, 1996.
4.10 Specimen Certificate of the Company's Common Stock,
$0.001 par value.
4.11 Employee Stock Option (1997) Plan, as amended February
16, 1998.
5 Opinion of Woodburn and Wedge, as to the legality of the
securities offered.
23.1 Consent of Johnson, Holscher & Company, P.C.
23.2 Consent of Woodburn and Wedge (included in Exhibit No. 5).
24 Powers of Attorney (included on page 4 hereof).
_________________________________
* Incorporated by reference
6
<PAGE>
FILING FEE: $150.00
BY: ROBERT E. WEAVER
7515 CABRILLO AVE.
LA JOLLA, CA 92037
ARTICLES OF INCORPORATION
OF
ATHENA VENTURES, INC.
I
The name of the corporation is ATHENA VENTURES, INC.
II
The principal office in the State of Nevada is located at 1310 Alpine Drive,
Boulder City, County of Clark, State of Nevada. The name and address of the
corporation's resident agent is: Investment Control Services, Inc., 1310 Alpine
Drive, Boulder City, NV 89005.
III
The purpose of this corporation is to engage in any lawful activity for which a
corporation may be organized under the laws of Nevada other than the banking
business, the trust company business or the practice of a profession.
IV
This corporation is authorized to issue only one class of shares of stock and
the total number of shares which this corporation is authorized to issue is
100,000,000, each having a par value of $0.001.
V
The governing board shall be known as directors, the number of directors may
from time to time be increased or decreased in such manner as shall be provided
by the bylaws, provided that the number of directors shall not be reduced to
less than three, except in cases where all the shares of the corporation are
owned beneficially and of record by one or two stockholders, the number of
directors may be less than three but not less than the number of stockholders.
<PAGE>
VI
The capital stock of the corporation, after the amount of the subscription price
has been paid in money, property, or services, as the directors shall determine,
shall not be subject to assessment to pay the debts of the corporation, nor for
any other purpose, and no stock issued as fully paid up shall ever be assessable
or assessed, and the Articles of Incorporation shall not be amended in this
particular.
VII
The name and post office address of the incorporator signing the Articles of
Incorporation is as follows: Robert C. Weaver, Jr., P.O. Box 1841, La Jolla, CA
92038.
VIII
The corporation is to have perpetual existence.
THE UNDERSIGNED, being the incorporator hereinbefore named for the purpose
of forming this corporation, does make and file these Articles of Incorporation,
hereby declaring and certifying that the facts herein stated are true.
/s/ Robert C. Weaver
------------------------
ROBERT C. WEAVER, JR.
State of California
County of San Diego
On Aug 3, 1987, personally appeared before me, a notary public, who acknowledged
that Robert C. Weaver, Jr. executed the above instrument.
/s/ Joanne K. Walker
----------------------------------
Signature of Notary
---------------------------------
- OFFICIAL SEAL -
- JOANNE K WALKER -
- Notary Public - California -
- SAN DIEGO COUNTY -
- My Comm Exp Nov 13, 1990 -
---------------------------------
ARTICLES OF INCORPORATION - ATHENA VENTURES, INC.
<PAGE>
S P E C I M E N
WAVERIDER COMMUNICATIONS INC.
ORGANIZED UNDER THE LAWS OF NEVADA
The Company is authorized to issue shares of more than one class, namely
100,000,000 Common Shares and 5,000,000 Preferred Shares. Pursuant to the
General Corporation Law of Nevada, the Company will furnish to any shareholder
upon request (addressed to the attention of the Secretary of the Company) and
without charge a full statement of the designations, preferences, limitations
and relative rights of the shares of each class authorized to be issued by the
Company and of variations in the relative rights and preferences between the
shares of each series of Preferred Shares of the Company insofar as any such
series has been fixed and determined, and a statement of the authority of the
Board of Directors of the Company to fix and determine the relative rights and
preferences of subsequent series of Preferred Shares.
THE FOLLOWING ABBREVIATIONS, WHEN USED IN THE INSCRIPTION ON THE FACE OF
THIS CERTIFICATE, SHALL BE CONSTRUED AS THOUGH THEY WERE WRITTEN OUT IN FULL
ACCORDING TO THE APPLICABLE LAWS OR REGULATIONS:
TEN COM --as tenants in common UNIF GIFT MIN ACT-- Custodian
..................
TEN ENT --as tenants by entireties (Cust) (Minor)
under Uniform Gifts
JT TEN --as joint tenants with to Minors Act
rights of survivorship
and not as tenants in ..................
common (State)
Additional abbreviations may also be used though not in the above list.
For value received ................... hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
------------------------------
------------------------------ .........................................
PLEASE PRINT OR TYPE NAME AND ADDRESS OF ASSIGNEE
................................................................................
................................................................................
..........................................................................Shares
of the Common Stock represented by the within Certificate and to hereby
constitute and appoint .........................................................
................................................................................
................................................................................
Attorney to transfer the said stock on the books of the within-named
Corporation, with full power of substitution in the premises.
Dated ...................., 19 ......
SIGNATURE GUARANTEED X .....................................
X .....................................
(All Registered Owners must sign)
THE SIGNATURES(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) AS WRITTEN
UPON THE FACE OF THIS CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ANY
OTHER CHANGE WHATEVER. The SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (Banks, Stockbrokers, Savings and Loan Associations and
Credit Unions) WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION
PROGRAM)
S P E C I M E N
<PAGE>
SPECIMEN
A NEVADA CORPORATION
NUMBERS SHARES
- -------------------- WAVERIDER (TM) --------------------
COMMUNICATIONS INC.
- -------------------- --------------------
COMMON STOCK SEE REVERSE SIDE
$.001 PAR VALUE FOR CERTAIN DEFINITIONS
CUSIP 943570101
- --------------------------------------------------------------------------------
This certifies that
is the owner of
- --------------------------------------------------------------------------------
fully paid and non-assessable shares of Common Stock, $.001 par value, of
WaveRider Communications Inc. transferable on the books of the Corporation by
the holder hereof in person or by duly authorized attorney upon surrender of the
Certificate properly endorsed. This Certificate and shares represented hereby
are issued and shall be subject to all the provisions of the Corporation's
Certificate of Incorporation and all amendments thereof (copies of which are on
file with the Transfer Agent and in the office of the Secretary of State of
Nevada), to all of which the holder, by acceptance hereof, assents. This
Certificate is not valid unless countersigned by the Transfer Agent.
Witness the facsimile seal of the Corporation and the facsimile signatures of
its duly authorized officers.
Dated:
/s/ [SIGNATURE ILLEGIBLE] [SEAL OF WAVERIDER /s/ [SIGNATURE ILLEGIBLE]
PRESIDENT COMMUNICATIONS SECRETARY
INC. APPEARS HERE
STATE OF NEVADA
1987]
Countersigned:
CORPORATE STOCK TRANSFER, INC.
370 17th Street, Suite 2350, Denver, CO 80202
By __________________________________________
Authorized Officer
<PAGE>
Exhibit 4.11
EMPLOYEE STOCK OPTION (1997) PLAN
WAVERIDER COMMUNICATIONS INC.
(AS AMENDED BY DIRECTORS' RESOLUTIONS DATED FEBRUARY 16/TH/, 1998)
1. PURPOSE OF THE PLAN.
This Employee Stock Option (1997) Plan, (the "Plan") is intended to further
the growth and advance the best interests of WAVERIDER COMMUNICATIONS INC., (the
"Company"), and affiliated companies, by supporting and increasing the Company's
ability to attract and retain persons of experience and ability, and whose
services are considered valuable, to encourage the sense of proprietorship in
such persons, and to stimulate the active interest of such persons in the
development and success of the Company and affiliated companies. This plan
provides for the issuance of non-statutory stock options ("Option" or
"Options"), which are not intended to qualify as "incentive stock options"
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended, (the "Code").
2. DEFINITIONS.
Whenever used in this plan, except where the context might clearly indicate
otherwise, the following terms shall have the meanings ascribed to them:
a) "Act" means the U.S. Securities Act of 1933, as amended.
b) "Affiliate" means any Parent or Subsidiary of the Company.
c) "Award" or "Grant" means any grant of an Option made under this Plan.
d) "Board" means the Board of Directors of the Company and where applicable
includes any Committee to whom any powers of the Board have been delegated in
accordance with this Plan.
e) "Code" means the Internal Revenue Code of 1986, as amended.
f) "Date of Grant" means the day the Board authorizes the grant of an Option
or such later date as may be specified by the Board as the date a particular
grant will become effective.
g) "Employee" means and includes the following persons: i) executive officers,
officers and directors, (including advisory and other special directors), of the
Company or an Affiliate; ii) full-time and part-time employees of the Company or
an Affiliate; iii) any person or entity engaged by the Company or an Affiliate,
as a consultant, advisor or agent; and iv) a lawyer, law firm, accountant,
accountant firm, or other professional or professional firm, engaged by the
Company or an Affiliate.
h) "Optionee" means an Employee to whom an Option has been granted.
i) "Parent" means any corporation owning 50% or more of the total combined
voting stock of all classes of the Company or another company qualifying as a
Parent within this definition.
j) "Participant" means an Employee to whom an award of Stock has been made.
k) "Plan Shares" means shares of Stock from time to time subject to this Plan.
l) "Stock" means the Common shares of the Company, or in the event that the
outstanding Common shares are hereafter changed into or exchanged for different
shares or securities of the Company, such other shares or securities.
m) "Subsidiary" means a company more than 50% of whose total combined capital
stock of all classes is held by the Company or another company qualifying as a
Subsidiary within this definition.
<PAGE>
3. TERM.
This Plan shall be effective as of the 10/th/ day of June, 1997, and no
Options shall be granted pursuant to this Plan after its expiration. This Plan
shall expire on the 10/th/ day of June, 1999, unless sooner terminated in
accordance with the terms herein, with the exception of any Options then
outstanding which shall remain in effect until they have expired or have been
exercised.
4. ADMINISTRATION OF THE PLAN.
This Plan shall be administered by the Board; provided however, that the Board
may delegate administration of the Plan to a committee composed of no fewer than
two (2) non-employee members of the Board, (the "Committee").
If administration is delegated to a Committee, that Committee shall have, in
connection with the administration of the Plan, the powers possessed by the
Board. The Board may abolish or change the Committee at any time and revest in
the Board the administration of the Plan.
A majority of the members of a Committee shall constitute a quorum. All
decisions and selections made by the Committee pursuant to this Plan's
provisions shall be made by a majority of its members. Any decision reduced to
writing and signed by all of the members of the Committee shall be fully
effective as if it had been made by a majority at a meeting duly held.
Subject to the terms herein, "Administration" shall include the full authority
and sole and absolute discretion to designate Plan participants, to determine
the provisions, restrictions, conditions and terms of the Options, (which need
not be identical as to number of shares covered by any Option, the method or
exercise as related to exercise in whole or in installments, or otherwise),
including the Option price, and to interpret the provisions and supervise the
administration of this Plan. Administration shall also include the authority to
provide that certain Options not vest (that is, become exercisable), until
expiration of a certain period after issuance or until other conditions are
satisfied, so long as not contrary to this Plan.
Each Option shall be evidenced by an agreement in writing containing the
provisions, terms and conditions of each such Option granted consistent with the
provisions of this Plan.
5. STOCK SUBJECT TO THE PLAN.
A total of 6,250,000 Plan Shares shall be subject to this Plan. The Plan
Shares shall consist of unissued shares of Common stock or previously issued
shares of Common stock reacquired and held by the Company or any Affiliate and
such number of Plan Shares shall be and are hereby reserved for such purpose.
Any Plan Shares which may remain unsold and which are not subject to outstanding
Options at the termination of this Plan shall cease to be reserved for the
purpose of this Plan, but until termination of this Plan, the Company shall at
all times reserve a sufficient number of shares to meet the requirements of this
Plan. Should any Option expire or be cancelled prior to its exercise in full,
the unexercised Plan Shares subject to such Option may again be subjected to an
Option under this Plan.
6. PERSONS ELIGIBLE TO PARTICIPATE.
Options under this Plan may be granted to Employees only. The Board, (or the
Committee, as the case may be), shall have the full power to designate from
among the eligible parties, those to whom Options may be granted. A person who
has been granted an Option hereunder may be granted and additional Option or
Options. Persons eligible under this Plan additionally may be granted one or
more options under any other compensatory or stock option plan or awarded shares
under any other benefit plan of the Company. No Option shall confer any right
upon the Optionee with respect to the continuation of his employment (or his
position as an officer, director, employee, agent
2
<PAGE>
or consultant), with the Company or any Affiliate, and shall not interfere with
the right of the Company or any Affiliate to terminate such relationship(s) at
any time in accordance with law and any other agreements in force.
7. OPTION EXERCISE PRICE.
The purchase price of each Plan Share shall not be less than one hundred
per cent (100%), of the fair market value of a share of Common stock on the date
the Option is granted. The fair market value on a particular date shall be
deemed to be the average of either i) the highest and lowest prices at which
shares of Common stock were sold on the date of grant, if traded on a national
securities exchange, ii) the high and low sale prices reported on the date of
grant if traded on the Nasdaq Small Cap Market or National market System, or
iii) the high bid and low asked price, or if available, the closing high bid and
low asked price, on the date of grant, if quoted on the OTC Electronic Bulletin
Board. If no transactions in the Common stock occur on the date of grant, the
fair market value shall be determined as of the next earliest day for which
reports or quotations are available. If the Common stock is not then quoted on
any exchange or in any quotation medium at the time of grant, then the Board of
Directors (or Committee, as the case may be), will use its discretion in
selecting in good faith a value believed to represent the fair market value
based on factors then known to them. The cash proceeds for the sale of Plan
Shares are to be added to the general funds of the Company.
8. EXERCISE PERIOD; VESTING.
a) The Option exercise period shall be a term of not more than three (3) years
from the date of granting of each Option and shall automatically terminate: i)
30 days following termination of the Optionee's employment with the Company for
cause, defined as termination for reasons other than Layoff due to lack of work,
injury, illness, disability or due to economic reasons unrelated to the
Optionsee's job performance, or for a reason stated in subparagraph (b) below;
ii) Subject to subparagraph (c) below, at the expiration of a period to be
determined by the Board (or Committee as the case may be), at the time of grant,
which shall be not less than 30 days and not more than 365 days following the
date of termination of the Optionee's employment with the Company without cause
for any reason other than death, provided that if the Optionee dies within such
period, subclause iii) below shall apply; or iii) at the expiration of twelve
(12) months after the date of death of the Optionee.
b) "Employment with the Company" as used in this Plan shall include: i)
employment with, ii) or as to a consultant, advisor, or agent, engagement by,
or; iii) service as a director of the Company or any Affiliate, in any such
capacity, even if employment or engagement in another capacity ceases, and
Options granted under this Plan shall not be affected by an Employee's transfer
of employment within the Company or between it and any Affiliate or between any
Affiliates. An Optionee's employment shall not be deemed interrupted or
terminated by a bona fide leave of absence, such as sabbatical leave, military
or other services required by the Government, or sick leave.
c) The Board (or Committee, as the case may be), may determine at the time of
grant that the Option granted shall not vest immediately, but over a specified
time, in specified amounts per time period, or subject to other restrictions or
limitations. Unless otherwise set forth in the granting resolution, an Option
shall vest immediately upon grant. If employment ceases before an Option vests,
then vesting shall never take place and unvested Options shall then be lost
forever. Nothing contained in this Section shall be construed to extend the term
of any Option or to permit anyone to exercise an Option after the expiration of
its term, nor shall it be construed to increase the number of shares as to which
any Option is exercisable from the amount exercisable on the date of termination
of the Optionee's employment or relationship as a consultant, advisor, director
or officer.
9. EXERCISE OF OPTIONS.
a) The Board (or Committee as the case may be), in granting Options shall have
discretion to determine the terms upon which the Options shall be exercisable,
subject to applicable provisions of this Plan. Once available for purchase,
unpurchased Plan Shares shall remain subject to purchase until the Option
expires or terminates in accordance with the terms herein. Unless otherwise
stipulated in an Option, an Option may be exercised in whole
3
<PAGE>
or in part, one or more times, but no Option may be exercised for a fractional
share. Resulting fractions shall be rounded up or down as appropriate.
b) Options may be exercised solely by the Optionee or a permitted transferee
during his lifetime or by a spouse or former spouse pursuant to a qualified
domestic relations order, or after his death (with respect to the number of
shares which the Optionee could have purchased at the time of death) by the
person or persons entitled thereto under the decedent's Will or the laws of
descent and distribution.
c) The purchase price of the Plan Shares to which an Option is exercised shall
be paid in full at the time of exercise and no Plan Shares shall be issued until
full payment is made therefor. Payment shall be made either i) in cash,
represented by a bank or cashier's check, certified check or money order, or
made by bank wire transfer; ii) by delivering shares of the Company's Common
stock which have been beneficially owned by the Optionee, the Optionee's spouse
or both of them for a period of at least six (6) months prior to the time of
exercise (the "Delivered Stock"), in a number equal to the number of Plan Shares
being purchased upon exercise of the Options; iii) a combination of cash and
delivered stock; iv) by delivery of shares of corporate stock which are freely
tradeable without restriction and which are part of a class of securities which
has been listed for trading on the NASDAQ system or a national securities
exchange, with an aggregate fair market value equal to or greater than the
exercise price of the Plan Shares being purchased under the Option, (the "Other
Shares"), or v) a combination of cash, Delivered Stock and Other Shares. An
Option shall be deemed exercised when written notice thereof, accompanied by the
appropriate payment in full, is received by the Company. No holder of an Option
shall be or have any of the rights and privileges of a shareholder of the
Company, in respect of any Plan Shares purchased upon exercise of an Option
unless and until certificates representing such shares have been issued by the
Company to him or her. The Board (or Committee as the case may be), shall have
absolute discretion whether to accept Other Shares offered and in valuing such
shares.
10. OPTIONS IN SUBSTITUTION FOR OTHER OPTIONS.
The Board, (or Committee, as the case may be), may in its sole discretion, at
any time during the term of this Plan, grant new Options to an Employee under
this Plan or any other stock option plan of the Company, on the conditions that
such Employee shall surrender for cancellation one or more outstanding Options
which represent the right to purchase, (after giving effect to any previous
partial exercise thereof), a number of shares, in relation to the number of
shares to be covered by the new conditional grant hereunder. No such new
conditional grant shall become exercisable in the absence of such Employee's
consent to the condition, surrender and cancellation, as appropriate. New
conditional Options shall be treated in all respects under this Plan as newly
granted Options. Options may be granted under this Plan from time to time in
substitution for similar rights held by Employees of other corporations who are
about to become Employees of the Company or an Affiliate as a result of a merger
or consolidation of the employing corporation with the Company or an Affiliate,
or the acquisition by the Company or an Affiliate of the assets of the employing
corporation, or the acquisition by the Company or an Affiliate, of stock of the
employing corporation as the result of which such other corporation becomes an
Affiliate.
11. ASSIGNABILITY.
Except with the express written consent of the Board, an Option for Plan
Shares may not be assigned nor otherwise transferred except by Will or by
operation of law, pursuant to a qualified domestic relations order (as defined
in Rule 16B-3 of the Securities and Exchange Commission, or any successor rule),
or pursuant to Title 1 of the Employee Retirement Income Security Act of 1974,
as amended (ERISA) or rules thereunder. No Option shall be pledged or
hypothecated in any manner, whether by operation of law or otherwise, and no
Options shall be subject to execution, attachment or similar process . Plan
Shares themselves may be assigned only after such shares have been awarded,
issued and delivered, and only in accordance with law and any transfer
restrictions imposed at the time of Option.
12. REORGANIZATIONS AND RECAPITALIZATIONS OF THE COMPANY.
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a) The existence of this Plan and Options granted hereunder shall not affect
in any way the right or power of the Company or its shareholders to make or
authorize any and all adjustments, recapitalizations, reorganizations, or other
changes in the Company's capital structure or its business, or any merger or
consolidation of the Company or any issue of bonds, debentures or other
indebtedness, or any preferred or prior preference stocks senior to or affecting
the Company's Common stock or the rights thereof, or the dissolution or
liquidation of the Company, or any sale, exchange or transfer of all or any part
of its assets or business, or any other corporate act or proceeding, whether of
a similar character or otherwise.
b) The Plan Shares in respect to which Options may be granted hereunder are
shares of Common stock currently constituted. If, and whenever, prior to
delivery by the Company of all of the Plan Shares which are subject to Options
granted hereunder, the Company shall effect a subdivision or consolidation of
shares or other capital readjustment, a stock split, combination of shares
(reverse stock split), or recapitalization or other increase or reduction in the
number of shares of the Common stock outstanding without receiving compensation
therefore in money, services or property, and other than as a dividend, then the
number of Plan Shares with respect to which Options granted hereunder may
thereafter be exercised shall i) in the event of an increase in the number of
outstanding shares, be proportionately increased and the cash consideration
payable per share shall be proportionately reduced; and ii) in the event of a
reduction in the number of outstanding shares, be proportionately reduced and
the cash consideration payable per share shall be proportionately increased
c) If the Company is reorganized, merged, consolidated or party to a plan of
exchange with another company pursuant to which shareholders of the Company
receive any shares of stock or other securities, in exchange for the Common
stock, there shall be substituted for the Plan Shares subject to the unexercised
portions of outstanding Options, an appropriate number of shares of each class
of stock or other securities which were distributed to the shareholders of the
Company in respect of the Common stock in the case of a reorganization, merger,
consolidation or plan of exchange; provided however, that all outstanding
Options may be cancelled by the Company as of the effective date of a
reorganization, merger, consolidation, plan of exchange, or any dissolution or
liquidation of the Company, by giving notice to each Optionee or his personal
representative of its intention to do so and by permitting the purchase of all
the Plan Shares subject to such outstanding Options for a period of not less
than thirty (30) days during the sixty (60) days immediately preceeding such
effective date.
d) Except as expressly provided above, the Company's issuance of shares of
capital stock of any class, or securities convertible into shares of capital
stock of any class, as dividends or for cash, property, labor or services,
either upon direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company convertible
into or exchangeable for shares of capital stock or other securities, shall not
affect, and no adjustment by reason thereof shall be made with respect to the
number of Plan Shares subject to Options granted hereunder or the purchase price
of such shares.
13. PURCHASE FOR INVESTMENT.
Unless the Plan Shares covered by this Plan have been registered under the Act
prior to issuance, each person exercising an Option under this Plan may be
required by the Company to give a representation in writing that he is acquiring
such shares for his or her own account for investment and not with a view to or
for sale in connection with the distribution of any part thereof.
14. LAWS AND REGULATIONS.
This Plan and the granting and exercise of Options hereunder, and the
obligation of the Company to sell and deliver Plan Shares under such Options,
shall be subject to all applicable laws, rules and regulations and to such
approvals by any governmental agencies or national securities exchanges as may
be required.
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15. WITHHOLDING OF TAXES.
If subject to withholding tax, the Company may be required to collect
withholding taxes upon the exercise of an Option. The Company may require, as a
condition to the exercise of an Option that the Optionee concurrently pay to the
Company the entire amount or a portion of any taxes which the Company is
required to withhold by reason of such exercise, in such amount as the Company
in its discretion may determine. In lieu of part or all of any such payment, the
Optionee may elect to have the Company withhold from the Plan Shares to be
issued hereunder, a sufficient number of shares to satisfy withholding
obligations.
16. RESERVATION OF SHARES.
The stock subject to this Plan, shall, at all times, consist of authorized but
unissued Common shares, or previously issued shares of Common stock reacquired
or held by the Company or an Affiliate, equal to the maximum number of shares
the Company may be required to issue under this Plan, and such number of Common
shares is hereby reserved for such purpose. The Board, (or Committee, as the
case may be), may decrease the number of shares subject to this Plan, but an
increase in such number may only occur as a consequence of a stock split or
other reorganization or recapitalization affecting all Common shares.
17. TERMINATION OF THE PLAN.
The Board may suspend or terminate this Plan at any time or from time to time,
but no such action shall adversely affect the rights of a person granted an
Option under this Plan prior to that date. Otherwise, this Plan shall terminate
on the earlier of the date previously specified herein, or the date when all the
Plan shares have been issued.
18. AMENDMENT OF THE PLAN.
The Board may amend or alter this Plan at any time in such respects as it
shall deem advisable in order to conform to any change in any other applicable
law, or in order to comply with the provisions of any rule or regulation of the
Securities and Exchange Commission required to exempt this Plan or any Options
granted hereunder from the operation of Section 16(b) of the Securities Exchange
Act of 19934, as amended, (the "Exchange Act"), or in any other respect not
inconsistent with Section 16(b) of the Exchange Act; provided that no amendment
or alteration shall be made which would impair the rights of any participant
under any Option theretofore granted, without his consent (unless made solely to
conform such Option to and necessary because of changes in the foregoing laws,
rules or regulations).
19. DELIVERY OF A COPY OF THE PLAN.
A copy of this Plan shall be delivered to every person to whom an Option is
granted.
20. LIABILITY.
No member of the Board of Directors, the Committee (where applicable), or any
other Committee of Directors, Officers, Employees, or agents of the Company or
any Affiliate, shall be personally liable for any action, omission or
determination made in good faith in connection with this Plan.
21. MISCELLANEOUS PROVISIONS.
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The place of administration of this Plan shall be wherever the Company's
principal executive offices are located and the validity, construction,
interpretation and effect of this Plan and of its rules, regulations and rights
relating to it, shall be determined solely in accordance with the laws of the
State of Nevada. Without amending this Plan, the Board, (or Committee as the
case may be), may issue Plan Shares to employees who are foreign nationals or
employed outside the United States or both, on such terms and conditions
different from those specified in this Plan but consistent with the purpose of
this Plan, as it deems necessary and desirable to create equitable
opportunities, given the difference in tax laws in such other countries. All
expenses of administering this Plan and issuing Plan Shares shall be borne by
the Company.
By Signature below, the undersigned officers of the Company hereby certify that
the foregoing is a true and correct copy of the Employee Stock Option (1997)
Plan of the Company.
Originally Dated:
June 10/th/, 1997.
Amendment* Dated:
February 16/th/, 1998. WAVERIDER COMMUNICATIONS INC.
By: /s/ Bruce Sinclair
--------------------------
Authorized Officer
(SEAL)
By: /s/ William E. Krebs
--------------------------
Secretary
*Amendment dated February 16/th/, 1998 increased the total number of Plan Shares
subject to this Plan from 5,000,000 to 6,250,000 (see Sec. 5 supra).
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Exhibit 5
[LETTERHEAD OF WOODBURN AND WEDGE APPEARS HERE]
May 8, 1998
Board of Directors
Waverider Communications Inc.
#700 - 555 West Hastings Street
Vancouver, B.C. V6B 4N5
RE: REGISTRATION STATEMENT ON FORM S-8
1997 EMPLOYEE STOCK OPTION PLAN
Gentlemen:
We have acted as special Nevada counsel to Waverider Communications Inc., a
Nevada corporation ("Company"), in connection with the preparation and filing
with the U.S. Securities and Exchange Commission ("Commission") under the
Securities Act of 1933, as amended ("Act"), of the Company's registration
statement on Form S-8 (together with all amendments, supplements and exhibits,
the "Registration Statement"). This Registration Statement relates to the
registration under the Act of 1,250,000 shares of the Company's common stock,
$.001 par value ("Shares"), which may be issued pursuant to the Company's 1997
Employee Stock Option Plan ("Plan").
In connection with the opinion herein expressed, we have reviewed the Plan
and the Registration Statement and included prospectus, and have examined and
relied upon, as to factual matters, originals or certified or photostatic copies
of such corporate records, including, without limitation, minutes of the Board
of Directors and other instruments, certificates of corporate officers and such
other documents as we have deemed necessary or appropriate for the opinions
expressed herein. In making such examinations, we have assumed the genuineness
of all signatures, the legal capacity of natural persons, the authenticity of
documents submitted to us as originals, the conformity to original documents of
documents submitted to us as certified or photostatic copies, and the
authenticity of originals of such photostatic copies.
We have examined and relied upon, as to matters of law, such statutes,
rules and judicial precedents and such other considerations of law as we, in our
judgment, have deemed necessary or appropriate for the purposes of rendering the
opinions expressed herein.
Based upon and in reliance upon the foregoing, as subject to the
qualifications and limitations herein set forth, we are of the opinion that,
when the Registration Statement shall have become effective pursuant to the
rules and regulations of the Commission, and the Shares have been sold and
issued as contemplated in the Registration Statement, such Shares will be
legally issued, fully paid and nonassessable.
This opinion is limited to the laws of the United States of America and the
laws of the State of Nevada, and we express no opinion with respect to the laws
of any other jurisdiction.
We consent to the filing of this opinion with the Commission as an exhibit
to the Registration Statement and to all references made to our firm in the
Registration Statement. However, in rendering this opinion, we do not hereby
admit that we are acting within the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Commission under the Act.
This opinion is being delivered and is intended for use solely in regard to
the transactions contemplated by the Registration Statement and may not be used,
circulated, quoted in whole or in part or otherwise referred to for any purpose
without our prior written consent and may not be relied upon by any person or
entity other than the Company, its successors and assigns. This opinion is based
upon our knowledge of law and facts as of its date. We assume no duty to
communicate to you with respect to any matter which comes to our attention
hereafter.
Very truly yours,
WOODBURN and WEDGE
By: /s/ Kirk S. Schumacher
----------------------------
Kirk S. Schumacher
<PAGE>
Exhibit 23.1
[LETTERHEAD OF JOHNSON, HOLSCHER & COMPANY, P.C. APPEARS HERE]
Stockholders and Board of Directors
WaveRider Communications Inc.
Securities and Exchange Commission
Washington, D.C.
We have audited the consolidated balance sheet of WaveRider Communications Inc.
as of December 31, 1997 and 1996, and the related consolidated statements of
loss and deficit, stockholders' equity (deficit) and cash flows for the years
ended December 31, 1997 and 1996 and the period from inception to December 31,
1997. These financial statements are included in the filing of the S-8 with the
Securities and Exchange Commission. In this connection we hereby state:
We are independent public accountants with respect to the Company within the
meaning of Rule 101 of the Rule of Conduct of the American Institute of
Certified Public Accounts.
We consent to the inclusion of our report dated March 20, 1998, in the S-8
filing.
/s/ Johnson, Holscher & Company p.c.
May 10, 1998
