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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
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Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
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Date of Report (Date of earliest event reported): June 3, 1998
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WAVERIDER COMMUNICATIONS INC.
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(Exact name of registrant as specified in its charter)
Nevada 0-25680 33-0264030
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(State or other jurisdiction of (Commission File No.) (IRS Employer
incorporation) Identification No.)
235 Yorkland Blvd., Suite 1101
Toronto, Ontario, Canada M2J 4Y8
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(Address of principal executive offices, including zip code)
(416) 502-3200
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(Registrant's telephone number, including area code)
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TABLE OF CONTENTS
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<S> <C> <C>
Item 5. Other Events.................................................................................. 1
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Item 7. Financial Statements and Exhibits............................................................. 1
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Exhibits ..................................................................................... 1
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Item 9. Sales of Equity Securities Pursuant to Regulation S........................................... 1
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SIGNATURE....................................................................................................... 2
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Item 5. Other Events
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On May 28, 1998, the Company's Board of Directors (the "Board") adopted
a resolution providing for the designation of the Company's Series C Voting 8%
Convertible Preferred Stock, par value $.001 per share (the "Series C Preferred
Stock"). On June 3, 1998, the Company filed a Certificate of Designation (the
"Certificate") with the Secretary of State of Nevada. A copy of the Certificate
is attached as an exhibit to this Current Report on Form 8-K as Exhibit 4.
Item 7. Financial Statements and Exhibits.
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Exhibits.
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4 -- Certificate of Designation, dated May 28, 1998 and filed June
3, 1998
Item 9. Sales of Equity Securities Pursuant to Regulation S
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(a) During the period beginning on June 3, 1998, and ending on June 11,
1998 the Company sold 600,000 Units (each "Unit" consisting of one share of the
Preferred Stock and one Class F Warrant) in an offering of such Units. Pursuant
to Instruction 7 of Regulation D of the Securities Act of 1933 (the "Securities
Act"), the Company sold an additional 200,000 Units as part of a separate
offering within the United States.
(b) The Units were not sold through an underwriter nor did the Company
enter into any agreement with any underwriter concerning the Units. The Units
were issued to purchasers that were not U.S. persons (as defined in the
Securities Act).
(c) The Units were offered at the price of $2.50 per Unit for a total
offering price of $1,500,000.00.
(d) The Company claims exemption from registration of the sale of such
shares of the Common Stock pursuant to Regulations 230.901 through 230.905 to
the Securities Act ("Regulation S"). None of the Units were offered or sold to
any U.S. persons (as defined in the Securities Act) and were sold only in
off-shore transactions. Neither the Company, its affiliates nor any of their
respective representatives engaged in any directed selling efforts with respect
to the Units. The Company implemented the appropriate offering restrictions with
respect to the Units.
(e) Each share of the Series C Preferred Stock is convertible into a
share of the common stock, par value $.001 per share, of the Company (the
"Common Stock"), at any time after issuance thereof but no later than April 30,
2000. Each share of the Series C Preferred Stock shall automatically be
converted into one share of the Common Stock upon the effective date of a
registration statement under the Securities Act of 1933, as amended, covering
the offer and sale of at least 800,000 shares of the Common Stock and which
registration statement indicates that it covers shares of the Common Stock
relating to the Series C Preferred Stock. The conversion rate of the Series C
Preferred Stock is subject to the additional terms set forth in the Certificate.
Each Class F Warrant is exercisable in respect of one share of the Common Stock
at an exercise price of $2.50 per share of the Common Stock at any time after
issuance but no later than June 11, 2000.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Report to be signed on its behalf by the
undersigned thereunto duly authorized.
WAVERIDER COMMUNICATIONS INC.
/s/ D. Bruce Sinclair
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Name: D. Bruce Sinclair
Title: Chief Executive Officer and President
Date: June 17, 1998
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Exhibit 4
WAVERIDER COMMUNICATIONS INC.
CERTIFICATE OF DESIGNATION
OF
SERIES C VOTING 8% CONVERTIBLE PREFERRED STOCK
Nevada Revised Statutes Section 78.1955
1. WaveRider Communications Inc., a Nevada corporation (the
"corporation"), certifies by and through its undersigned
President or Vice-President and Secretary or Assistant
Secretary that the Board of Directors of the corporation,
pursuant to Nevada Revised Statutes Section 78.1955 and
Article FIFTH, Part II(b) of the Articles of Incorporation of
the corporation, has adopted a resolution establishing a
series of the corporation's authorized preferred stock
designated as Series C Voting 8% Convertible Preferred Stock
(the "Series C Preferred Stock").
2. The number of shares of the Series C Preferred Stock which the
Company is authorized to issue is 800,000.
3. The voting powers, designations, preferences, limitations,
restrictions and relative rights of the Series C Preferred
Stock are set forth in the Unanimous Consent of the Directors
of WaveRider Communications Inc. set forth in Exhibit A
attached hereto and made a part hereof.
In witness whereof, the undersigned have executed this Certificate of
Amendment as of the 28th day of May, 1998.
/s/ D. Bruce Sinclair
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President (or Vice-President)
/s/ T. Scott Worthington
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Secretary (or Assistant Secretary)
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PROVINCE OF ONTARIO )
) ss.
This instrument was acknowledged before me on May 29th, 1998, by D.
Bruce Sinclair as President (or Vice President) of Waverider Communications Inc.
/s/ John Kin Cheong Au
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NOTARY PUBLIC
My Commission Expires: No Expiry
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PROVINCE OF ONTARIO )
) ss.
This instrument was acknowledged before me on May 29th, 1998, by T.
Scott Worthington as Secretary (or Assistant Secretary) of Waverider
Communications Inc.
/s/ John Kin Cheong Au
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NOTARY PUBLIC
My Commission Expires: No Expiry
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Exhibit A
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UNANIMOUS CONSENT OF THE DIRECTORS
OF
WAVERIDER COMMUNICATIONS INC.
TO
ACTIONS TAKEN WITHOUT A MEETING
Pursuant to Section 78.315 of the Nevada Revised Statutes and Article
FIFTH, Part II(b) of the Articles of Incorporation (the "Articles of
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Incorporation") of WaveRider Communications Inc., a Nevada corporation (the
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"Company"), the undersigned, being all of the directors (the "Directors") of the
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Company, hereby take the following actions by unanimous consent (this "Consent")
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in lieu of a meeting of the Directors, by consent of said Directors, as set
forth in the following resolutions, as if taken by unanimous vote of the
directors at a special meeting of the directors at which all of the directors
were present:
WHEREAS, the Directors desire to establish and designate a series of shares
of Preferred Stock of the Company and to fix and determine the designation,
number, voting powers, preferences, limitations, restrictions and relative
rights thereof in accordance with the following resolutions; be it hereby
RESOLVED: That the Company shall be, and hereby is, authorized to issue up
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to 800,000 shares of a series of the Preferred Stock, par value $.001, of the
Company with the following voting powers, designation, preferences, limitations,
restrictions and relative rights:
1. Designation and Consideration.
The designation of the series of the Preferred Stock created by this
resolution shall be, and hereby is, the "Series C Voting 8% Convertible
Preferred Stock." Shares of this series are hereinbelow referred to as
the "Series C Preferred Stock." Each share of the Series C Preferred Stock
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shall be issued for such consideration as the Directors may determine.
Shares of the Series C Preferred Stock may be issued in tandem with
warrants or other securities of the Company. Once duly issued for the
consideration called for by resolution of the Directors, shares of the
Series C Preferred Stock shall be deemed fully paid and nonassessable.
2. Dividends.
2.1 Subject to the rights of the holders of any shares of any series
of Preferred Stock (or any similar stock) ranking prior and superior to the
Series C Preferred Stock with respect to dividends, each of the holders of
shares of Series C Preferred Stock, in preference to the holders of shares
of the common stock, par value $.001 per share, of the Company ("the Common
Stock"), and of any other junior stock, shall be entitled to receive, when,
as and if declared by the Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the first day of each month
during which such holder holds shares of the Series C Preferred Stock (each
such date being referred to herein as a "Monthly Dividend Payment Date"),
commencing on the first
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Monthly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series C Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to eight percent (8%) per annum of the
purchase price paid to the Company for the Series C Preferred Shares held
by such holder.
2.2 The corporation shall declare a dividend or distribution on the
Series C Preferred Stock as provided in paragraph (i) of this Section
immediately after it declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock); provided
that, in the event no dividend or distribution shall have been declared on
the Common Stock during the period between any Monthly Dividend Payment
Date and the next subsequent Monthly Dividend Payment Date, a dividend of
eight percent (8%) per share per annum on the Series C Preferred Stock
shall nevertheless be payable on such subsequent Monthly Dividend Payment
Date.
2.3 Dividends shall begin to accrue and be cumulative on outstanding
shares of Series C Preferred Stock from the Monthly Dividend Payment Date
next preceding the date of issue of such shares, unless the date of issue
of such shares is prior to the record date for the first Monthly Dividend
Payment Date, in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue is a
Monthly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series C Preferred Stock entitled to
receive a quarterly dividend and before such Monthly Dividend Payment Date,
in either of which events such dividends shall begin to accrue and be
cumulative from such Monthly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Series
C Preferred Stock in an amount less than the total amount of such dividends
at the time accrued and payable on such shares shall be allocated pro rata
on a share-by-share basis among all such shares at the time outstanding.
The Directors may fix a record date for the determination of holders of
shares of Series C Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be not
more than 60 days prior to the date fixed for the payment thereof.
3. Redemption.
The shares of the Series C Preferred Stock shall not be subject to
redemption.
4. Conversion Right.
4.1 Conversion Rate. Each share of the Series C Preferred Stock may,
subject to the terms hereof and subject to adjustment as provided below, at
any time after issuance, but no later than April 30, 2000, be converted at
the option of the holder thereof into one (1) fully paid, nonassessable
share of the Common Stock. Conversion of the shares of the Series C
Preferred Stock shall be deemed to occur on the date a certificate or
certificates evidencing shares of the Series C Preferred Stock being
converted are presented to the Company or to the Company's transfer agent
and registrar, properly endorsed and accompanied by the proper fee payable
to the transfer agent.
4.2 Adjustments to the Conversion Rate. If the Company is
reorganized, merged, consolidated or party to a plan of exchange with
another business organization pursuant to which the shareholders of the
Company receive any shares of stock or other securities, or the Company
sells or otherwise transfers all or substantially all of its assets, or in
case of any reclassification of or reverse split or split of the Common
Stock, holders of the shares of the Series C Preferred Stock shall be
entitled, after the occurrence of any such event, to receive on conversion
thereof the kind
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an amount of shares of stock or other securities, cash or other property
receivable upon such event by a holder of the number of shares of the
Common Stock into which the shares of the Series C Preferred Stock might
have been converted immediately prior to occurrence of the event. For
purposes of this paragraph, the term "shareholder" means a holder of the
Common Stock.
4.3 Common Stock Authorized. The Company shall be, and hereby is,
authorized to issue an aggregate of 800,000 shares of the Common Stock upon
conversion of the Series C Preferred Stock; provided, however, that if any
adjustment to the conversion rate established in Section 4.1 hereof should
require the issuance of a greater number of shares of the Common Stock,
then the issuance of such greater number of shares of the Common Stock
hereby is authorized.
4.4 No Fractional Shares Issuable. No fractional shares of the
Common Stock, scrip or other instrument representing a fractional share of
the Common Stock, shall be issued upon conversion of any share of the
Series C Preferred Stock. The number of shares issuable upon the
conversion of the Series C Preferred Stock shall be rounded to the nearest
whole share. No payment shall be made for fractional shares which are not
issued due to such rounding.
4.5 Automatic Conversion. Each share of the Series C Preferred Stock
shall automatically be converted into one share of the Common Stock upon
the effective date of a registration statement under the Securities Act of
1933, as amended, covering the offer and sale of at least 800,000 shares of
the Common Stock and which registration statement is indicates that it
covers shares of the Common Stock relating to the Series C Preferred Stock.
5. Status of Shares.
Unless otherwise provided by the articles of incorporation of the Company:
5.1 Prior to the issuance of any shares of Series C Preferred Stock,
unless the articles of incorporation of the Company provide otherwise, the
Directors, by resolution thereof, may
(a) amend the designation, number, voting powers, preferences,
limitations, restrictions and relative rights of such Series C
Preferred Stock, or
(b) rescind, retire or otherwise cancel such Series C Preferred
Stock and the establishment thereof.
5.2 In the event that shares of Series C Preferred Stock have been
issued and are outstanding, the Directors, by resolution thereof, may amend
the designation, number, voting powers, preferences, limitations,
restrictions and relative rights of the Series C Preferred Stock subject to
approval by the vote of stockholders holding shares of the Company
entitling them to exercise a majority of the voting power, or such greater
proportion of the shares as may be required by the articles of
incorporation of the Company, of Series C Preferred Stock and each class
and each series of stock which, before amendment, is senior to Series C
Preferred Stock as to the payment of distributions upon dissolution of the
corporation.
5.3 Shares of Series C Preferred Stock that have been issued and
thereafter redeemed, converted, exchanged, purchased, retired or
surrendered to the Company, or otherwise reacquired by the Company, shall
have the status of authorized and unissued shares and unless the articles
of incorporation of the Company provide otherwise, the Directors, by
resolution thereof, may
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redesignate, rescind, retire or otherwise cancel such Series C Preferred
Stock and the establishment thereof.
6. Rights on Liquidation, Dissolution or Winding Up.
6.1 Payment of Liquidation Preference. In the event of any voluntary
or involuntary liquidation, dissolution or winding up of the Company, the
holders of shares of the Series C Preferred Stock then outstanding shall be
subordinate to all claims of the Company's creditors but shall share
ratably with the holders of every other series of the Company's preferred
stock then issued and outstanding.
6.2 Effect of Reorganization. Neither the consolidation nor the
merge of the Company with or into any other company nor the lease,
exchange, sale or transfer of all or substantially all of the Company's
assets shall be deemed to be a liquidation, dissolution or winding up of
the Company, whether voluntary or otherwise, within the meaning of this
Section 6.
7. Voting Rights.
The shares of the Series C Preferred Stock shall have the right to
vote in the election of directors of the Company and on all other matters
upon which shareholders of the Company may or must vote. Whenever the
shares of the Series C Preferred Stock are entitled to vote, each share of
the Series C Preferred Stock shall be entitled to one (1) vote, and the
shares of Series C Preferred Stock shall vote with the Common Stock and not
as a separate class, except when voting on matters with respect to which
holders of the Common Stock are not entitled to vote.
8. Certain Corporate Actions.
The Company shall not amend the Articles of Incorporation or the
Certificate of Designation designating the Series C Preferred Stock without
the prior approval of the holders of the Series C Preferred Stock, voting
as a separate class, if such amendment would directly or indirectly effect
any adverse change in any of the rights, preferences or privileges of, or
limitations provided for herein for the benefit of, the holders of the
Series C Preferred Stock.
9. Tax Matters.
The holders of the Series C Preferred Stock shall be solely liable for
and shall pay any and all taxes and other governmental charges, of every
kind, that may be imposed in respect of the issuance or delivery of shares
of the Common Stock upon conversion of the Series C Preferred Stock. The
Company may withhold certain of such shares of the Common Stock in order to
satisfy the Company's tax withholding obligations or take similar steps to
ensure that such taxes and charges are duly paid. If the Company becomes
liable for or pays any such taxes due to acts of a holder of the Series C
Preferred Stock, it may, in order to recoup the amount of such tax or tax
liability:
(i) withhold the amount of such tax or tax liability from any
funds whatever in or coming into the Company's possession and
belonging to such holder, including dividends declared on the Series C
Preferred Stock and payable to such holder; and/or
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(ii) cancel and reissue in the Company's name such number of
shares of the Series C Preferred Stock, based upon the original issue
price per share, the aggregate price of which is equal to the tax paid
or the tax liability incurred.
FURTHER RESOLVED: That all actions taken and transactions entered into by
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the Company and its officers, directors, stockholders and duly authorized
agents on its behalf, and any act or failure to act concerning all matters
referred to in the foregoing resolutions, are hereby ratified, confirmed
and approved in all respects.
FURTHER RESOLVED: That the officers of the Company be, and each of them
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hereby is, authorized, empowered and directed, on behalf of the Company and
in its name, to take all actions necessary or advisable to carry out the
intent and the purposes of the foregoing resolutions, to execute and
deliver any and all certificates, agreements and other documents and take
all such further action that they, or any of them, may deem necessary,
advisable or appropriate in order to effectuate the intent and accomplish
the purposes of the foregoing resolutions.
FURTHER RESOLVED: That this Consent to the adoption of the foregoing
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resolution may be executed in counterparts, all of which taken together
shall constitute but one and the same original.
FURTHER RESOLVED: That the authority given in these resolutions is
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retroactive and any and all acts authorized herein performed before the
passage of these resolutions are hereby ratified and affirmed.
Each of the Directors, by his signature below, hereby:
1. Waives written notice of the time, place and purposes of a
Special Meeting of the Directors of the Company;
2. Consents to the transaction of the business set forth herein;
3. Affirms that he has read the foregoing resolutions; and
4. Approves, adopts and ratifies the resolutions and all acts taken
or authorized therein.
IN WITNESS WHEREOF, each of the undersigned has executed this
Unanimous Consent of the Directors to Actions Taken Without a Meeting to be
effective as of the 28th day of May, 1998.
DIRECTORS:
/s/ D. Bruce Sinclair
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Bruce Sinclair
/s/ William E. Krebs
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William E. Krebs
/s/ William H. Laird
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William H. Laird
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