As filed with the Securities and Exchange Commission on _ _________
Registration No. __________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-3
REGISTRATION STATEMENT 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 Identification
incorporation or organization) Number)
255 Consumers Road, Suite 500
Toronto, Ontario Canada M2J 1R4
(416) 502-3200
(Address, including zip code, and telephone number, including area code,
of principal executive offices)
T. SCOTT WORTHINGTON
255 Consumers Road, Suite 500
Toronto, Ontario Canada M2J 1R4
(416) 502-3200 / Facsimile No.: (416) 502-2968
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of all communications to:
DAVID A. BROADWIN, ESQ.
FOLEY, HOAG & ELIOT LLP
One Post Office Square
Boston, Massachusetts 02109-2170
(617) 832-1000 / Facsimile No.: (617) 832-7000
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================================================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of each class of Amount to be offering price Aggregate registration
securities to be registered Registered per share (1) offering fee
price
--------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Common Stock, $.001 par value 1,600,000(2) $1.625 $2,600,000 $723
================================================================================================================================
</TABLE>
(1) Estimated solely for the purposes of determining the registration fee. In
accordance with Rule 457(c) under the Securities Act of 1933, the above
calculation is based on the closing bid price reported on the OTC Bulletin
Board on July 8, 1999.
(2) Assumes that all the warrants are exercised and that WaveRider is required
to issue the shares required under the reset provisions of the agreements
with selling shareholders.
In accordance with Rule 416 under the Securities Act of 1933, this
Registration Statement also covers such indeterminate number of additional
shares of WaveRider's common stock, $0.001 par value, as may become issuable to
prevent dilution resulting from stock splits, stock dividends or similar
transactions as set forth in WaveRider's Articles of Incorporation and the terms
of the warrants referred to above.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said section 8(a),
may determine.
<PAGE>
Waverider Communications Inc.
1,600,000 Shares of Common Stock
This prospectus provides for the sale of up to 1,600,000 shares of
commons stock of WaveRider by certain selling stockholders.
WaveRider's common stock is currently quoted on the OTC Bulletin Board,
under the symbol "WAVC". On July 13, 1999, the last reported sale price of
WaveRider's common stock was $1.50 per share.
The mailing address, the telephone and facsimile numbers and the e-mail
address of WaveRider's executive offices is:
255 Consumers Road, Suite 500
Toronto, Ontario Canada M2J 1R4
(416) 502-3200; Facsimile No.: (416) 502-2968
e-mail address: [email protected]
home page: http://www.waverider.com
Information contained in WaveRider's website shall not be deemed part of this
prospectus.
Investing in the common stock involves risks.
See "Risk Factors" beginning on page 3.
The Securities and Exchange Commission and state securities regulators
have not approved or disapproved these securities, or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is ***, 1999
<PAGE>
TABLE OF CONTENTS
Page
----
Risk Factors 3
Where You Can Find More Information 6
Use of Proceeds 7
Dividend Policy 7
Selling Stockholders 8
Plan of Distribution 10
Disclosure of SEC Position on Indemnification
for Securities Act Liabilities 11
Legal Matters 12
Experts 12
In purchasing the shares under this prospectus, you should rely only on
the information provided to you in this prospectus. WaveRider has not authorized
anyone else to provide you with different information. Neither WaveRider nor any
of the selling stockholders is making an offer of these securities in any state
where the offer is not permitted. You should not assume that the information in
this prospectus is accurate as of any date other than the date on the front page
of this prospectus. In this prospectus, reference to "we", "us" and "our" refer
to Waverider Communications Inc.
<PAGE>
RISK FACTORS
Investment in our shares of common stock is risky. In addition to the
information contained in this prospectus, including information incorporated by
reference, you should consider carefully the following risk factors, before
purchasing the shares offered under this prospectus.
We Have No Operating History, Therefore There Is A High Degree Of Uncertainty
Whether Our Business Plans Or Our Products Will Be Successful
Up to the present time, our company has been entirely a research and
development entity with insignificant sales or revenues. There can be no
assurance that the products that we offer will meet with market acceptance. In
addition, there is no guarantee that even if there proves to be a market for our
products, such market will be able to sustain our profitability requirements.
None of our current products have achieved widespread distribution or
customer acceptance. Although, some of our products have passed the development
stage, we have not yet established market for them. Although we believe that we
have the expertise to commercialize our products and establish a market for
them, there is no assurance that we will be successful or that such products
will prove to have widespread customer appeal.
We Have A History Of Losses, And Our Future Profitability Is Uncertain
Due to our limited operating history, we are subject to the
uncertainties and risks associated with any new business. Until recently we had
no product that could be commercialized, and therefore we experienced
significant operating losses every year since incorporation. Our net losses for
the fiscal quarter that ended March 31, 1999 and the year that ended December
31, 1998 were $1,332,228 and $4,477,518 respectively, and for the fiscal quarter
that ended March 31, 1998 and the year that ended December 31, 1997 were
$628,574 and $1,324,960 respectively. We have an accumulated deficit of
$10,627,018 as of March 31, 1999.
There can be no assurance that we will ever generate profit from our
products or that we will ever reach profitability on a sustained basis.
We Need Additional Financing And There Is Uncertainty We Can Get It
Management believes the Company will need to draw on the additional
funding arranged on December 29, 1998 in order to finalize development and
market its products. The ability to draw on this additional funding is dependent
on a number of factors including share pricing and volumes which are outside the
Company's control. If the Company is unable to draw on the additional funding
then the Company will need to raise the additional funds through the sale of its
equity or debt securities in private or public financing or through strategic
partnerships in order to fully exploit the potential of its products. There can
be no assurance that the funds required can be raised.
Competition In The Data Communication Industry Is Intense And There Is
Uncertainty That Given Our New Technology And Limited Resources That We Will Be
Able To Succeed.
Although our products are based on a wireless technology, we compete
not only against companies that base their products on wireless technology, but
also against companies that base their products on hard-wired technology (wire
or fiber optic cable). There can be no assurance that we will be able to compete
successfully in the future against existing or new competitors or that our
operating results will not be adversely affected by increased price competition.
Competition is based on design and quality of the products, product performance,
price and service, with the relative importance of such factors varying among
products and markets. Competition, in the various markets we serve, comes from
companies of various sizes, many of which are larger and have greater financial
and other resources than we do and, thus, can better withstand adverse economic
or market conditions than we can.
3
<PAGE>
Our technology is at an early stage of development. As a result, we
have no historical financial information upon which you as an investor could
make an evaluation of your investment. Our future operating results are subject
to a number of risks, including our ability or inability to implement our
strategic plan, to attract qualified personnel and to raise sufficient financing
as required. Inability of our management to guide growth effectively, including
implementing appropriate systems, procedures and controls, could have a material
adverse effect on our business, financial condition and operating results.
The Data Communication Industry Is In A State Of Rapid Technological Change
And We May Not Be Able To Keep Up
We may be unable to keep up with technological advances in the data
communications industry. As a result, our products may become obsolete or
unattractive. The data communications industry is characterized by rapid
technological change. In addition to frequent improvements of existing
technology, there is frequent introduction of new technologies leading to more
complex and powerful products. Keeping up with these changes requires
significant management, technological and financial resources. As a small
company, we do not have the management, technological and financial resources
that larger companies in our industry may have. There can be no assurance that
we will be able or successful in enhancing our existing products, or in
developing, manufacturing and marketing new products. An inability to do so
would adversely effect our business, financial condition and results of
operation.
We Have Limited Intellectual Property Protection And There Is Risk That
Our Competitors Will Be Able To Appropriate Our Technology
Our ability to compete depends to a significant extent on our ability
to protect our intellectual property and to operate without infringing the
intellectual property rights of others. We regard our technology as proprietary.
We have no issued patents or pending patent applications, nor do we have any
registered copyrights with respect to our intellectual property rights, but we
intend to file patent applications. We rely on employee and third party
non-disclosure agreements and on the legal principles restricting the
unauthorized disclosure and use of trade secrets. Despite our precautions, it
might be possible for a third party to copy or otherwise obtain our technology,
and use it without authorization. Although we intend to defend our intellectual
property, we can not assure you that the steps we have taken or that we may take
in the future will be sufficient to prevent misappropriation or unauthorized use
of our technology. In addition, there can be no assurance that foreign
intellectual property laws will protect our intellectual property rights. There
is no assurance that patent application or copyright registration that may be
filed will be granted, or that any issued patent or copyrights will not be
challenged, invalidated or circumvented. There is no assurance that the rights
granted under patents that may be issued or copyrights that may be registered
will provide sufficient protection to our intellectual property rights.
Moreover, we can not assure you, that our competitors will not independently
develop technologies similar or even superior to our technology.
Use Of Our Products Is Subordinated To Other Uses And There Is Risk That Our
Customers May Have To Limit Or Discontinue The Use Of Our Products.
License-free operation of our products, in certain radio frequency
bands, is subordinated to certain licensed and unlicensed uses of these bands.
This subordination means that our products must not cause harmful interference
to other equipment operating in the band, and must accept potential interference
from any of such other equipment. If our equipment is unable to operate without
any such harmful interference, or is unable to accept interference caused by
others, our customers could be required to cease operations in some or all of
these bands in the locations affected by the harmful interference. As well, in
the event these bands become unacceptably crowded, and no additional frequencies
are allocated to unlicensed use, our business could be adversely affected.
4
<PAGE>
Currently, our products are designed to operate in frequency bands for
which licenses are not required in the United States, Canada and other countries
that we view as our potential market. Extensive regulation of the data
communications industry by U.S. or foreign governments, and in particular
imposing license requirements in the frequency bands of our products, could
materially and adversely affect us through the effect on our customers and
potential customers. Continued license-free operation will depend upon the
continuation of existing U.S., Canadian and such other countries' government
policy and, while no planned policy changes have been announced or are expected,
this cannot be assured.
Adverse Consequences And Possible Dilution Are Associated With Our Obligation
To Issue Substantial Shares Of Common Stock Upon Conversion Of Convertible
Securities
We are obligated to issue a substantial number of shares of common
stock upon the conversion or exercise of our outstanding warrants and
convertible preferred stock. The price which we may receive for the common stock
issuable upon conversion or exercise of such convertible securities will be less
than the market price of the common stock at the time of such exercise.
Consequently, for the life of such convertible securities the holders of such
convertible securities may have been given, at nominal cost, the opportunity to
profit from a rise in the market price of the common stock.
The exercise of all of the aforementioned securities may also adversely
affect the terms under which we could obtain additional equity capital. In
addition, should a significant number of these securities be exercised or
converted, the resulting increase in the amount of the common stock in the
public market could have a substantial dilutive effect on our outstanding common
stock.
We May Be Subject To Product Liability Claims, And We Lack Product Liability
Insurance
We face an inherent risk of exposure to product liability claims in the
event that the products designed and sold by us contain errors, "bugs" or
defects. There can be no assurance that we will avoid significant product
liability exposure. We do not currently have a product liability insurance, and
there can be no assurance that insurance coverage will be available in the
future on commercially reasonable terms, or at all. Further, there can be no
assurance that such insurance, if obtained, will be adequate to cover potential
product liability claims, or that a loss of insurance coverage or the assertion
of a product liability claim or claims would not materially adversely affect our
business, financial condition and results of operations.
We Depend Upon A Single Third Party Manufacturer And There Is Risk That If This
Supplier Becomes Unavailable For Any Reason We Will Have No Product To Sell
We depend upon a single third party manufacturer to make our products.
We do not have a second source. If our single supplier is not able to
manufacture for us for any reason, we will have no products to sell.
Accordingly, no assurance can be given that manufacturing capacity will continue
to be available to us, on commercially reasonable terms or otherwise. Inability
to obtain manufacturing capacity will have a material adverse effect on our
business, financial condition and results of operation.
5
<PAGE>
Some of the information in this prospectus contains forward-looking
statements that involve substantial risks and uncertainties. Any statement, in
this prospectus and in the documents incorporated by reference into this
prospectus, that is not a statement of an historical fact constitutes a
"forward-looking statement". Further, when we use the words "may", "expect",
"anticipate", "plan", "believe", "seek", "estimate", "internal", and similar
words, we intend to identify statements and expressions that may be
forward-looking statements. We believe it is important to communicate certain of
our expectations to our investors. Forward-looking statements are not guarantees
of future performance. They involve risks, uncertainties and assumptions that
could cause WaveRider's future results to differ materially from those expressed
in any forward-looking statements. Many factors are beyond our ability to
control or predict. You are accordingly cautioned not to place undue reliance on
such forward-looking statements. We have no obligation or intent to update
publicly any forward-looking statements whether in response to new information,
future events or otherwise. Important factors that may cause our actual results
to differ from such forward-looking statements include, but are not limited to,
the risk factors discussed below. Before you invest in our common stock, you
should be aware that the occurrence of any of the events described under "Risk
Factors" below or elsewhere in this prospectus could have a material adverse
effect on our business, financial condition and results of operation. In such a
case, the trading price of our common stock could decline and you could lose all
or part of your investment.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is a part of a registration statement on Form S-3 ,
WaveRider filed with the Securities and Exchange Commission, or the SEC, under
the Securities Act of 1933. This prospectus omits certain information contained
in the registration statement and the exhibits to the registration statements.
Reference is made to the registration statement and the exhibits to the
registration statement for further information with respect to WaveRider and the
shares offered under this prospectus. You may read and copy the registration
statement at the SEC's public reference room at Room 1024, Judiciary Plaza, 450
Fifth Street, N.W., Washington D.C. 20549, and at the regional offices of the
SEC located at Seven World Trade Center, 13th Floor, New York, New York 10048
and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. You can
request copies of these documents by writing to the SEC and paying a fee for the
copying costs. Please call the SEC at 1-800-SEC-0330 for more information about
the operation of the public reference rooms. WaveRider files certain documents
with the SEC electronically and these documents may be inspected and copied at
the SEC's Web site at http://www.sec.gov. WaveRider is a reporting company under
the Securities Exchange Act of 1934, and consequently, files reports, proxy
statements and other information with the SEC. You may read and copy these
reports, proxy statements and other information at the SEC's public reference
rooms appears above.
The SEC allows us to "incorporate by reference" the information we file
with them. Incorporation by reference means that we can disclose important
information to you by referring you to the information we filed with the SEC.
The information incorporated by reference is considered to be part of this
prospectus, and later information filed with the SEC will update and supercede
this information.
We incorporate by reference the information listed below and any future
information we file with the SEC pursuant to sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act of 1934.
(a) WaveRider's periodic report, filed with the SEC on Form 8-K, on June 30,
1999;
(b) WaveRider's quarterly report, filed with the SEC on Form 10-Q, for the
fiscal quarter ended March 31, 1999;
(c) WaveRider's Registration Statement on Form S-3, filed with the SEC on April
27, 1999 and declared effective by the SEC on April 29, 1999;
(d) WaveRider's annual report, filed with the SEC on Form 10-KSB, for the
fiscal year ended December 31, 1998;
(e) WaveRider's amendment to its annual report, filed with the SEC on Form
10-KSB/A, for the fiscal year ended December 31, 1998; and
(f) The description of WaveRider's common stock contained in the registration
statement on Form 8-A filed with the SEC on March 18, 1995 under section 12
of the Exchange Act, including all amendments and reports subsequently
filed for the purpose of updating such description.
6
<PAGE>
You may request and receive, at no cost, copies of these filings by writing
or telephoning us at the following address:
T. Scott Worthington
Waverider Communications Inc.
255 Consumers Road, Suite 500
Toronto, Ontario Canada M2J 1R4
(416) 502-3200; Facsimile No.: (416) 502-2968
E-mail Address: [email protected]
USE OF PROCEEDS
Any money received by WaveRider upon the sale of shares of common stock
to the selling stockholders will be used for working capital and general
corporate purposes. The aggregate maximum amount of proceeds that WaveRider
received and could receive upon the sale of shares of common stock to the
selling stockholders is $1,000,000.
WaveRider will not receive any proceeds from the sale of the shares of
common stock by the selling stockholders. WaveRider will, however, receive the
proceeds of the private sale of the common stock to certain selling
shareholders.
The costs associated with this offering are approximately $10,000.
DIVIDEND POLICY
To date, WaveRider has not paid dividends on any shares of our common
stock and we do not plan to pay any dividends on our common stock in the
foreseeable future. The decision to pay dividends on the common stock in the
future is up to WaveRider's Board of Directors. Such decision to pay dividends
depends upon, among other things, our earnings, our capital requirements and our
financial condition. Although dividends are not limited currently by any
agreements, it is anticipated that future agreements, if any, with institutional
lenders or others may also limit our ability to pay dividends on the common
stock.
7
<PAGE>
SELLING STOCKHOLDERS
THE FORMER SHAREHOLDER OF TRANSFORMATION TECHNIQUES INC.
Of the 1,600,000 shares of common stock offered by this prospectus,
500,000 shares are being registered and may be offered for sale from time to
time during the period the effectiveness of the registration statement of which
this prospectus is part, for the account of Mr. Peter Bonk, who acquired common
stock as part of the proceeds of the sale of his shares of Transformation
Techniques Inc. to WaveRider.
WaveRider will not receive any portion of the proceeds from the sale of
shares by Mr. Peter Bonk pursuant to this prospectus.
SERIES H WARRANT HOLDER
Of the 1,600,000 shares of common stock offered by this prospectus,
500,000 shares are being registered and may be offered for sale from time to
time during the period of the effectiveness of the registration statement of
which this prospectus is part, for the account of International Advisory
Services Ltd. On June 29, 1999, WaveRider sold to International Advisory
Services Ltd. a Series H Warrant to purchase up to 500,000 shares of common
stock of WaveRider for $500 in cash and services rendered. The warrants are
exercisable for up to five years at an exercise price of $2.00 per share.
WaveRider will not receive any portion of the proceeds from the sale of
shares by the selling stockholders pursuant to this prospectus, but will receive
up to $1,000,000 on the exercise of the Series H Warrant.
DECEMBER SELLING STOCKHOLDERS
COMMON STOCK PURCHASE AGREEMENT
1. Additional Shares related to Reset Requirement
As previously reported, on December 29, 1998, WaveRider entered into a
Common Stock Purchase Agreement with Sovereign Partners LP and Canadian
Advantage Limited Partnership. Under the terms of that agreement, WaveRider
agreed to ensure that sufficient shares were registered for resale to cover the
potential additional shares that might be issued subject to certain share price
resets. Based on the terms of the Common Stock Purchase Agreement, we are
registering an additional 500,000 shares of common stock.
The Price Per Share and Reset of the Price Per Share
The purchase price per share of the common stock sold pursuant to the
First and Second Tranches and potentially to the Third Tranche is based on the
average of the closing bid prices for the common stock for the five consecutive
trading days prior to the closing of such Tranche. In each case, the issuance
price is subject to reset, as described below.
The price per share upon which WaveRider may sell the common stock in
the each one of the Tranches is subject to reset. As a result of such reset,
WaveRider may be required to issue additional shares to the December Selling
Stockholders. The Common Stock Purchase Agreement provides for three "reset
periods" per Tranche, each such reset period consists of 30 calendar days.
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<PAGE>
For each reset period, the "reset price" shall be equal to the average
of the closing bid prices for the trading days during such period. The number of
shares of common stock to be issued upon the expiration of each reset period
shall be calculated in accordance with the following formula:
A x B x 117.5% - C = N
-----------------------
C
Where: A = number of shares subject to repricing; B =
issuance price of shares subject to repricing; C =
reset price; and N = reset shares.
2. Agreement to defer sale of Common Stock
On June 14, 1999 WaveRider entered into a collateral agreement with the
December Selling Stockholders and their assignee, to induce them to withhold
selling of any of the shares issued upon sale of the second Tranche of common
stock on June 15, 1999. Under the terms of this agreement, WaveRider would pay
the holders a deferral fee of approximately $90,000 to hold the stock until all
of the reset shares from the first Tranche had been issued. In addition, the
reset period for the second Tranche was deferred and expires 30 days after the
date of the final reset of the first Tranche.
It is WaveRider's intention to pay the deferral fee in the form of
issuance of additional shares of common stock to the December Selling
Stockholders based on the calculation included in the agreement. To this end
WaveRider is registering 100,000 shares of common stock to cover the potential
issuance.
SELLING STOCKHOLDERS
TABLE OF HOLDINGS
Based on the information supplied to WaveRider by each selling
stockholder, the following table sets forth, as of June 30, 1999, certain
information regarding the beneficial ownership of each selling stockholder and
number of shares owned by each selling stockholder. The table assumes the
exercise in full of the Series H warrant and all of the other warrants held by
certain of the selling stockholders, and that WaveRider exercises in full its
right to sell common stock under the Common Stock Purchase Agreement.
The beneficial ownership is determined in accordance with the rules of
the SEC and generally includes voting or investment power with respect to
securities. Except as indicated, each person possesses sole voting and
investment power with respect to all of the shares of common stock owned by such
person, subject to community property laws where applicable. In computing the
number of shares beneficially owned by a person and the percentage ownership of
that person, shares of common stock subject to options held by that person that
are currently exercisable or exercisable within 60 days are deemed outstanding.
Such shares, however, are not deemed outstanding for the purpose of computing
the percentage ownership of any other person.
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<TABLE>
<CAPTION>
Shares Shares
Beneficially Owned Beneficially Owned
Prior to Offering Number After Offering (1)
------------------- of Shares ----------------------
Name and Address Number Percent Offered Number Percent
- ---------------- --------- ------- ------- --------- -------
<S> <C> <C> <C> <C> <C>
International Advisory Services Ltd. 1,515,000 3.68 500,000 1,015,000 2.46
Sovereign Partners L.P. 2,425,733 5.81 450,000 1,975,733 4.73
Canadian Advantage Limited Partnership 439,226 1.06 125,000 314,226 0.76
Southshore Capital Funds Ltd. 553,648 1.34 25,000 528,648 1.28
Mr. Peter Bonk 517,102 1.25 500,000 17,102 0.04
</TABLE>
(1) The number of shares beneficially owned after the offering only takes into
account the number of shares registered under this Form S-3. Shares for
International Advisory Services Ltd., Sovereign Partners L.P., Canadian
Advantage Limited Partnership and Southshore Capital Funds Ltd (as assignee
for Canadian Advantage Limited Partnership) have been registered under a
registration statement on Form S-3 dated April 27, 1999. In addition, the
majority of the shares held by Mr. Bonk have been registered under a
registration statement on Form S-8 dated August 29, 1997. As a result, upon
the effective date of this registration statement all of the shares held by
the selling shareholders may be available for sale.
PLAN OF DISTRIBUTION
This prospectus covers the sale of shares of common stock by WaveRider
to certain selling stockholders and, from time to time, by the selling
stockholders.
The shares of common stock offered by this prospectus may be sold from
time to time by the selling stockholders, or by pledgees, donees, transferees or
other successors in interest. The selling stockholders will act independently of
WaveRider in making decisions with respect to the timing, manner and size of
each sale. The sales may be made on the OTC Bulletin Board (or on one or more
exchanges on which WaveRider's common stock may then be listed) or in the
over-the-counter market, or otherwise. The sales will be made at prices and at
terms then prevailing, or at prices related to the then current market price, or
in negotiated transactions. The shares of common stock may be sold by one or
more of the following types of transactions:
(a) a block trade in which the broker or dealer so engaged will
attempt to sell the shares as agent but may position and resell a
portion of the block as principal to facilitate the transaction;
(b) purchases by a broker or dealer as principal and resale by such
broker or dealer for its account pursuant to this prospectus;
(c) an exchange distribution in accordance with the rules of such
exchange;
(d) ordinary brokerage transactions and transactions in which the
broker solicits purchasers;
(e) privately negotiated transactions;
(f) short sales;
(g) if such a sale qualify, in accordance with Rule 144 promulgated
under the Securities Act rather than pursuant to this prospectus;
and
(h) any other method permitted pursuant to applicable law.
In effecting sales, brokers or dealers engaged by the selling
stockholders may arrange for other brokers or dealers to participate. Brokers or
dealers will receive commissions or discounts from selling stockholders in
amounts to be negotiated immediately prior to the sale. Such brokers or dealers
and any other participating brokers or dealers may be deemed to be
"underwriters" within the meaning of section 2(11) of the Securities Act in
connection with such sales. Accordingly any commission received by them and
profit on any resale of the shares as principal, might be deemed to be
underwriting discounts and commissions under the Securities Act. In addition,
because selling stockholders will be deemed to be "underwriters" they will be
subject to prospectus delivery requirements under the Securities Act of 1933.
10
<PAGE>
Upon WaveRider being notified by a selling stockholder that any
material arrangement has been entered into with a broker-dealer for the sale of
the shares through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer, a supplement to this
prospectus will be filed, if required, pursuant to Rule 424(c) under the
Securities Act of 1933. Such supplement will disclose:
(1) the name of each selling stockholder and of the participating
broker-dealer(s);
(2) the number of shares involved;
(3) the price at which such shares were sold;
(4) the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable;
(5) that such broker-dealer(s) did not conduct any investigation to
verify the information set out or incorporated by reference in
this prospectus; and
(6) other facts material to the transaction.
WaveRider has agreed to pay the expenses incurred in connection with
preparing and filing this prospectus and the Registration Statement of which it
is a part (other than selling commissions). WaveRider has agreed to indemnify
the selling stockholders against certain liabilities, including liabilities
under the Securities Act.
In addition, in the event the selling stockholders sell short the
common stock of WaveRider, this prospectus may be delivered in connection with
such short sales and the shares offered by this prospectus may be used to cover
such short sales. It is the view of the SEC that the December Selling
Stockholders are "underwriters" within the meaning of the Securities Act. In
making sales, broker-dealers or agents engaged by the selling stockholders may
arrange for other broker-dealers or agents to participate. Such broker-dealers
or agents may receive commissions or discounts from the selling stockholders in
amounts to be negotiated immediately prior to the sale. These broker-dealers or
agents, and any other participating broker-dealers or agents, as well as the
selling stockholders, may be considered "underwriters" within the meaning of the
Securities Act of 1933.
WaveRider has informed the selling stockholders that the
anti-manipulative rules under the Exchange Act of 1934, including Regulation M,
may apply to their sales in the market. WaveRider has furnished the selling
stockholders with a copy of Regulation M. WaveRider has also informed the
selling stockholders that they must deliver a copy of this prospectus with any
sale of their shares.
DISCLOSURE OF SEC POSITION
ON INDEMNIFICATION FOR SECURITIES ACTS LIABILITIES
WaveRider's amended and restated Articles of Incorporation and By-Laws
provide that WaveRider shall indemnify its directors and officers, to the
fullest extent permitted under Nevada law, including in circumstances in which
indemnification is otherwise discretionary under Nevada law.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or controlling persons of WaveRider,
pursuant to the foregoing provisions, or otherwise, WaveRider has been advised
that, in the opinion of the SEC, such indemnification is against public policy
as expressed in the Securities Act, and is, therefore, unenforceable.
11
<PAGE>
LEGAL MATTERS
Foley, Hoag & Eliot LLP, of One Post Office Square, Boston,
Massachusetts 02109-2170 will issue an opinion, for WaveRider and the selling
stockholders, about the legality and validity of the shares. WaveRider knows of
no members of Foley, Hoag & Eliot who are beneficial owners of common stock of
WaveRider.
EXPERTS
The financial statements as at December 31, 1998 and for the year then
ended incorporated in this registration by reference to the Annual Report on
Form 10-KSB for the year ended December 31, 1998 have been so incorporated in
reliance on the report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of the said firm as experts in auditing and accounting.
The financial statements as at December 31, 1997 and for the year then
ended incorporated in this registration by reference to the Annual Report on
Form 10-KSB for the year ended December 31, 1998 have been so incorporated in
reliance on the report of Johnson, Holscher & Company, P.C., independent public
accountants, given on the authority of said firm as experts in auditing and
accounting.
12
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the estimated expenses in connection
with the sale of the shares being registered hereby:
SEC registration fee $ 1,350
Printing and engraving $ 500
Accountants' fees and expenses $ 5,000
Legal fees $ 2,500
Miscellaneous $ 650
-------
Total $10,000
=======
Item 15. Indemnification of Directors and Officers
Article VI of WaveRider's By-Laws provides that: "Every Director,
officer, employee and agent of the Company, and every person serving at the
Company's request as a director, officer (or in a position functionally
equivalent to that of officer or director), employee or agent of another
corporation, partnership, joint venture, trust or other entity, shall be
indemnified to the extent and in the manner provided by the Company's Charter,
as it may be amended, and in the absence of any such provision therein, in
accordance with Nevada law."
WaveRider's Charter contains no provisions regarding the
indemnification of directors and officers.
Section 78.7502 of Nevada General Corporation Law ("Nevada Corporation
Law") provides, that:
1. A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
except an action by or in the right of the corporation, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, including attorneys' fees, judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with the action, suit or proceeding if he acted in good faith and in
a manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, does not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and that, with respect to any criminal action or
proceeding, he had reasonable cause to believe that his conduct was unlawful.
2. A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if he acted in
good faith and in a manner in which he reasonably believed to be in or not
opposed to the best interests of the corporation. Indemnification may not be
made for any claim, issue or matter as to which such a person has been adjudged
by a court of competent jurisdiction, after exhaustion of all appeals therefrom,
to be liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which the action or
suit was brought or other court of competent jurisdiction determines upon
application that in view of all the circumstance of the case, the person is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper.
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<PAGE>
3. To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections 1 and 2, or in defense of
any claim, issue or matter therein, the corporation shall indemnify him against
expenses, including attorneys' fees, actually and reasonably incurred by him in
connection with the defense.
Section 78.751 of Nevada Corporation Law provides, that: Any
discretionary indemnification under Section 78.7502, unless ordered by a court
or advanced pursuant to subsection 2, may be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances. The
determination must be made:
(a) By the stockholders;
(b) By the board of directors by majority vote of a quorum consisting
of directors who were not parties to the action, suit or proceeding;
(c) If a majority vote of a quorum consisting of directors who were not
parties to the action, suit or proceeding so orders, by independent legal
counsel in a written opinion; or
(d) If a quorum consisting of directors who were not parties to the
action, suit or proceeding cannot be obtained, by independent legal counsel in a
written opinion.
The indemnification and advancement of expenses authorized or ordered
by a court pursuant to this section:
(a) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the articles of
incorporation or any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, for either an action in his official capacity or an
action in another capacity while holding his office, except that
indemnification, unless ordered by a court pursuant to Section 78.7502 or for
the advancement of expenses made pursuant to subsection 2, may not be made to or
on behalf of any director or officer if a final adjudication establishes that
his acts or omissions involved intentional misconduct, fraud or a knowing
violation of the law and was material to the cause of action.
(b) Continues for a person who has ceased to be a director, officer,
employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person.
In accordance with the provisions of Section 78.752 of Nevada
Corporation Law, WaveRider purchased and maintains insurance coverage on certain
liabilities of its directors and officers.
II-2
<PAGE>
Item 16. Exhibits
Exhibit No. Description
3.1 Articles of Incorporation of WaveRider, incorporated by reference to
Exhibit 3.1 registration statement on Form S-18, File no. 33-25889-LA.
3.2 Bylaws of the Company, incorporated by reference to Exhibit 3.2 to the
annual report on Form 10-KSB for the year ended December 31, 1996.
3.3 Certificate of Amendment to the Articles of Incorporation of the Company
filed with the Nevada Secretary of State on October 8th, 1993,
incorporated by reference to Exhibit 3.3 to the quarterly report on Form
10-QSB for the period ended September 30th, 1994.
3.4 Certificate of Amendment to the Articles of Incorporation of the Company
filed with the Nevada Secretary of State on October 25th, 1993,
incorporated by reference to Exhibit 2(d) to the registration statement on
Form 8-A, File No. 0-25680.
3.5 Certificate of Amendment to the Articles of Incorporation of WaveRider
filed with the Nevada Secretary of State on March 25th, 1995, incorporated
by reference to Exhibit 2(e) to registration statement on Form 8-A, File
no. 0-25680.
3.6 Certificate of Amendment to the Articles of Incorporation of the Company,
designating the Series A Voting Convertible Preferred Stock, filed with
the Nevada Secretary of State on March 24th, 1997, incorporated by
reference to Exhibit 3.6 on Form 10KSB for the year ended December 31,
1996.
3.7 Certificate of Amendment to the Articles of Incorporation of the Company
designating the Series B Voting Convertible Preferred Stock, filed with
the Nevada Secretary of State on May 16, 1997.
3.8 Certificate of Amendment to the Memorandum of WaveRider changing the name
to WaveRider Communications Inc., filed with the Nevada Secretary of State
on May 27, 1997.
4.1 Specimen common stock certificate, incorporated by reference to Exhibit
4.1 to registration statement on Form S-18, File no. 33-25889-LA.
4.2 Specimen Class A Common Stock Purchase Warrant Certificate, incorporated
by reference to Exhibit 4.2 on Form 10KSB for the year ended December 31,
1996.
4.3 Specimen Class B Common Stock Purchase Warrant Certificate, incorporated
by reference to Exhibit 4.3 on Form 10KSB for the year ended December 31,
1996.
4.4 Specimen Class C Common Stock Purchase Warrant Certificate, incorporated
by reference to Exhibit 4.4 on Form 10KSB for the year ended December 31,
1996.
4.5 Specimen Class D Common Stock Purchase Warrant Certificate, incorporated
by reference to Exhibit 4.5 on Form 10KSB for the year ended December 31,
1996.
4.6 Warrant Terms dated February 10th, 1997, relating to the Class A, Class B,
Class C and Class D, Common Stock Purchase Warrants, incorporated by
reference to Exhibit 4.6 on Form 10KSB for the year ended December 31,
1996.
II-3
<PAGE>
4.7 Warrant Terms dated April 15, 1998, relating to the Class E Common Stock
Purchase Warrants, incorporated by reference to Exhibit 4.7 on Form 10KSB
for the year ended December 31, 1998.
4.8 Warrant Terms dated June 11, 1998, relating to the Class F Common Stock
Purchase Warrants, incorporated by reference to Exhibit 4.8 on Form 10KSB
for the year ended December 31, 1998.
4.9 Warrant Terms dated December 15, 1998, relating to the Class G Common
Stock Purchase Warrants, incorporated by reference to Exhibit 4.9 on Form
10KSB for the year ended December 31, 1998.
4.10 Warrant Terms dated December 29, 1998, relating to the Common Stock
Purchase Warrants, incorporated by reference to Exhibit 4.10 on Form 10KSB
for the year ended December 31, 1998.
4.11 Warrant Terms dated June, 1999, relating to the Class H Common Stock
Purchase Warrants.
5.1 Opinion of Foley, Hoag & Eliot LLP.
10.1 Agreement dated February 2nd, 1997, between Ray Hoag and WaveRider,
incorporated by reference to Exhibit 10.2 on Form 10KSB for the year ended
December 31, 1996.
10.2 Agreement dated February 2nd, 1997, between C. Jeremy Renton and
WaveRider, incorporated by reference to Exhibit 10.21 on Form 10KSB for
the year ended December 31, 1996.
10.3 Stock Option Agreement dated January 22nd, 1997 between WaveRider and
Charlie Rodriguez, incorporated by reference to Exhibit 10.22 on Form
10KSB for the year ended December 31, 1996.
10.4 Stock Option Agreement dated January 22nd, 1997 between WaveRider and C.
Jeremy Renton, incorporated by reference to Exhibit 10.23 on Form 10KSB
for the year ended December 31, 1996.
10.5 Stock Option Agreement dated January 22nd, 1997, between WaveRider and Ray
Hoag, incorporated by reference to Exhibit 10.24 on Form 10KSB for the
year ended December 31, 1996.
10.6 Share Exchange Agreement executed the 13th day of May, 1997 between
WaveRider and the shareholders of Major Wireless Communications Inc.,
("Major Wireless"), with respect to the purchase by the Company of all the
issued and outstanding shares in the capital stock of Major Wireless,
incorporated by reference to Exhibit 2.1 in Form 8-K filed May 29, 1997.
10.7 Agreement supplemental to the Share Exchange Agreement executed the 13th
day of May, 1997 (see 10.6 supra) incorporated by reference to Exhibit
10.1 in Form 8-K filed May 29, 1997.
10.8 Employee Stock Compensation (1997) Plan incorporated by reference to
Exhibit 99 in Form S-8 filed August 29th, 1997.
10.9 Employee Stock Option (1997) Plan incorporated by reference to Exhibit 99
in Form S-8 filed August 29th, 1997.
10.10 Employment Agreement between WaveRider and D. Bruce Sinclair dated
November 18, 1997 incorporated as Exhibit 10.10 to WaveRider's annual
report on Form 10-KSB, for the year ended December 31, 1997.
II-4
<PAGE>
10.11 Convertible Debenture Agreement between WaveRide and International
Advisory Services Ltd. And Wyndel Consulting Ltd. Dated December 15, 1998.
10.12 Letter of termination of the Convertible Debenture Agreement contained in
Exhibit 10.11, dated January 8, 1999.
10.13 Common Stock Purchase Agreement between WaveRider and Sovereign Partners
LP and Canadian Advantage Limited Partnership, dated December 31, 1998,
including the exhibits to such agreement.
10.14 Amendment to the Common Stock Purchase Agreement between WaveRider and
Sovereign Partners LP and Canadian Advantage Limited Partnership, dated
June 14, 1999.
10.15 Merger Agreement between WaveRider Communications Inc and TTI Merger Inc
and Transformation Techniques, Inc. and Peter Bonk, incorporated by
reference to Exhibit 10.1 in Form 8-K filed June 30, 1999
10.16 Employment agreement between Mr. Peter Bonk and WaveRider Communications
(USA) Inc., dated June 11, 1999, incorporated by reference to Exhibit 10.2
in Form 8-K filed June 30, 1999.
23.2 Consent of Johnson, Holscher & Company P.C., independent auditors.
23.3 Consent of PricewaterhouseCoopers LLP, independent auditors
23.4 Consent of Foley, Hoag & Eliot LLP (included in last sentence of Exhibit
5.1).
24.1 Power of Attorney (contained in the signature page).
Item 17. Undertakings
WaveRider hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(2) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(3) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement;
(4) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
(5) For determining liability under the Securities Act, to treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering.
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<PAGE>
(6) To remove from the registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(7) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or controlling persons of
the registrant, pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that, in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Securities Act, and is therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered hereunder, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
(8) For determining any liability under the Securities Act, to treat
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the issuer under Rule 424(b)(1), or (4) or 497(h) under the
Securities Act as part of this registration statement as of the time the
Commission declared it effective.
(9) For determining any liability under the Securities Act, to treat
each post-effective amendment that contains a form of prospectus as a new
registration statement for the securities offered in the registration statement,
and that offering of the securities at that time as the initial bona fide
offering of those securities.
II-6
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe it meets all the
requirements of filing on Form S-3 and authorized this Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, on July
14, 1999.
WAVERIDER COMMUNICATIONS INC.
By: /s/ D. Bruce Sinclair
------------------------------
Bruce Sinclair, President and
Chief Executive Officer
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on July 14, 1999.
Signature Title Date
--------- ------- ------
/s/ D. Bruce Sinclair President, Chief Executive Officer July 14, 1999
----------------- (Principal Executive Officer)
D. Bruce Sinclair and Director
/s/ Cameron A. Mingay Secretary/Director July 14, 1999
-------------------
Cameron A. Mingay
/s/ Gerry Chastelet Director July 14, 1999
-----------------
Gerry Chastelet
/s/ William E. Krebs Director July 14, 1999
-----------------
William E. Krebs
/s/ William H. Laird Director July 14, 1999
-----------------
William H. Laird
II-7
EXHIBIT 4.11
THE WARRANTS OF THE COMPANY EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, AND PARAGRAPH (13) OF
CODE SECTION 10-5-9 OF THE GEORGIA SECURITES ACT OF 1973. THE WARRANTS MAY NOT
BE SOLD, TRANSFERRED, PLEDGED OR ASSIGNED OR A SECURITY INTEREST CREATED
THEREIN, UNLESS THE PURCHASER, TRANSFEREE, ASSIGNEE, PLEDGEE OR HOLDER OF SUCH
SECURITY INTEREST COMPLIES WITH ALL STATE (INCLUDING THE GEORGIA SECURITIES ACT
OF 1973) AND FEDERAL SECURITIES LAWS (I.E., SUCH SHARES ARE REGISTERED UNDER
SUCH LAWS (INCLUDING THE GEORGIA SECURITIES ACT OF 1973) OR AN EXEMPTION FROM
REGISTRATION IS AVAILABLE THEREUNDER) AND UNLESS THE SELLER, TRANFEROR,
ASSIGNOR, PLEDGOR OR GRANTOR OF SUCH SECURITY INTEREST PROVIDES AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT THE TRANSACTION CONTEMPLATED
WOULD NOT BE IN VIOLATION OF THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
APPLICABLE STATE SECURITIES LAWS. TRANSFERABILITY OF THE WARRANTS IS THEREFORE
LIMITED AND INVESTORS MUST BEAR THE ECONOMIC RISK OF THEIR INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME;
WAVERIDER COMMUNICATIONS INC.
Organized under the laws of the State of Nevada
CLASS H COMMON STOCK PURCHASE WARRANT
No.WH-1 WARRANTS TO PURCHASE ** 500,000 COMMON SHARES
THIS CERTIFIES that, for value received INTERNATIONAL ADVISORY SERVICES LTD.
Or registered assigns ("Warrantholder") is entitled to purchase from WAVERIDER
COMMUNICATIONS INC., a Nevada corporation ("Company"), at any time from the date
of issuance and during the period (the "Exercise Period") expiring on June 29th,
2004 (the "Expiration Date"), unless extended, the number of fully paid,
nonassessable shares shown above of the Company's common stock. $.001 par value
(the "Common Shares"), in the manner stated below, at the purchase price of
US$2.00 (two dollars) per Common Share (the "Exercise Price").
EXERCISE. Subject to the provisions of the Warrant Terms, this Class H
Warrant may be exercised in whole or in part at any time during the Exercise
Period for a whole number of shares, by surrendering it with the Exercise Form
on the reverse side duly completed at the offices of the Company, or any
successor, and by paying in full the Exercise Price for all Common Shares being
purchased, together with all transfer fees and transfer taxes and other
governmental charges due, if any. Payment shall be made in lawful money of the
United States of America, in cash or by bank check, cashier's check, certified
check, or postal or express money order made payable to the order of the
Company. Upon partial exercise hereof, a new Class H Warrant of like tenor shall
be issued to the registered holder hereof evidencing the number of Common Shares
not purchased. No fractional shares or scrip certificate evidencing fractional
shares will be issued upon exercise hereof, nor will any cash be paid in lieu of
any fractional share not issued.
ASSIGNMENT. This Class H Warrant may be assigned or transferred by the
registered holder or by attorney duly authorized in writing, in whole or in
part, at the offices of the Company with the Assignment Form on the reverse side
duly completed, upon payment of the applicable transfer fee and any transfer tax
or other governmental charges due, if any. Upon any such assignment or transfer,
a new Class H Warrant Certificate or certificates of like tenor and representing
in the aggregate the right to purchase a like number of Common Shares, subject
to any adjustments made in accordance with the provisions of the Warrant Terms,
will be issued in accordance with the registered holder's lawful instructions.
EXCHANGE. This Class H Warrant Certificate may at any time be exchanged
for one or more Class H warrant Certificates of like tenor and representing in
the aggregate the right to purchase a like number of Common Shares, subject to
any adjustments made in accordance with the provisions of the Warrant Terms,
upon presentation therefor at the offices of the Company and upon payment of the
requisite fees.
ADJUSTMENTS. Under the Warrant Terms, the Exercise Price is subject to
adjustment if the Company effects any stock split or combination (reverse stock
split) or recapitalization with respect to the Common Shares and in certain
other circumstances. Any adjustment of the Exercise Price probably will result
in a corresponding adjustment of the number of Common Shares purchasable
hereunder. Further, the Exercise Price may be reduced, irrespective of whether a
stock split, combination or other adjustment is effected, and the Expiration
Date may be extended one or more time, from time to time, for an indefinite
period at the Company's discretion upon giving at least two days' notice thereof
to registered holders of the Class H Warrants.
STATUS OF HOLDER. The Company may deem and treat the registered holder
of this Class H Warrant Certificate as the absolute owner hereof for all
purposes, notwithstanding any notation of ownership or other writing made hereon
by any person, and the Company shall not be affected by any notice to the
contrary. No registered holder of Class H Warrants, as such, shall have any
rights as a shareholder of the Company, either at law or at equity, and the
rights of each such registered holder, as such, are limited to those expressly
provided in the Warrant Terms and this Certificate.
WITNESS the facsimile seal of the Company and the facsimile signatures
of its duly authorized officers.
DATED: June 29th, 1999 WAVERIDER COMMUNICATIONS INC.
------------------------------------
Secretary
<PAGE>
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 applicable laws or regulations:
TEN COM - as tenants in common UNIFORM GIFTS TO MINORS ACT
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of _____________Custodian _______________
survivorship and not as tenants (Custodian) (Minor)
in common and not as community under the Uniform Gifts of
property Minors Act of the State
of_________________________
EXERCISE
I or we hereby irrevocably elect to exercise the right of purchase
represented by this certificate to purchase ______ Common Shares of the Company
and hereby make payment of _______________ (number of shares purchased
multiplied by US$2.00) payable to the order of WAVERIDER COMMUNICATIONS INC. in
payment of the exercise price for such shares, and request that certificates for
the Common Shares shall be issued in the name of:
Please insert social security or EIN number (Insert name address,
or other identifying number: including zip code):
- ----------------------------------------- -------------------------------
-------------------------------
And, if such number of Common Shares shall not be all of the shares purchasable
hereunder, that a new Class H Warrant Certificate or like tenor for the balance
of the remaining Common Shares purchasable hereunder be delivered to the
undersigned at the address above. I hereby certify that I am not a "U.S. Person"
as defined in Regulation S of the United States Securities and Exchange
Commission and that I am not exercising this Class H Warrant to purchase shares
for or on behalf of any U.S. Person. I understand that the term "U.S. Person"
includes, among other persons, and individual resident in the United States, any
corporation, partnership or other entity organized under United States law, any
agency or branch of a corporation, partnership or other entity organized under
the laws of a country other than the United States which is located in the
United States, any trust or state of which any trustee, administrator or
executor is a U.S. Person, and any account held for the benefit of a U.S..
Person. IMPORTANT: The name of the person exercising this warrant must
correspond with the name of the Warrantholder written on the face of this
Certificate in every particular, without alteration or any change whatever,
unless it has been assigned by completing the Assignment form below.
DATED: __________________ 19___ X_______________________________________
Signature of Registered Holder
X_______________________________________
Signature of Registered Holder
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
Please insert social security or EIN number (Insert name address,
or other identifying number: including zip code):
- ----------------------------------------- -------------------------------
-------------------------------
The right to purchase _____________ Common Shares of the Company evidenced by
this Class H Warrant, and does hereby irrevocably constitute and appoint any
officer of the Company or its transfer agent and registrar as lawful Attorney to
transfer such right on the books of the Company with full power of substitution
in the premises. I hereby certify that, to the best of my knowledge, the person
or persons to whom these Class H Warrants are being assigned in NOT a "U.S.
Person" as defined in Regulation S of the U.S. Securities and Exchange
Commission.
DATED: __________________ 19___ X_______________________________________
Signature of Registered Holder
X_______________________________________
Signature of Registered Holder
IMPORTANT: Every registered owner of this Certificate must sign it to assign or
otherwise transfer Class H Warrants. The above signature or signatures must
correspond with the name or names written on the face of this Certificate in
every particular, without alteration, enlargement or any change whatever. Each
signature should be "medallion" guaranteed by an eligible guarantor institution
(Banks, Stockbrokers, Savings and Loan Associations and Credit Unions) with
membership in an approved signature guarantee Medallion Program pursuant to Rule
17Ad-15 of the Securities and Exchange Commission.
SIGNATURE GUARANTEE:
II-9
EXHIBIT 5.1
To be filed by an amendment
Exibit 10.14
AMENDMENT AND AGREEMENT
WHEREAS, WaveRider Communications Inc. ("WaveRider"), Canadian
Advantage Limited Partnership, and Sovereign Partners, L.P. (referred to as the
"Investor") entered into a Common Stock Purchase Agreement (the "Purchase
Agreement") dated December 29, 1998; and
WHEREAS, in or about June, 1999 Canadian Advantage Limited Partnership
assigned its rights to participate in the second tranche to Southshore Capital
Fund Ltd. (along with Sovereign Partners, LP referred to as "Investors");
WHEREAS, WaveRider and Investors desire to amend certain terms of the
Purchase Agreement as follows:
NOW, THEREFORE, in consideration of the mutual promises herein
contained, WaveRider and the investors, intending to be legally bound, hereby
amend the Purchase Agreement as follows:
1. The Second Tranche Purchase Price shall be $3,000,000, and the Closing of the
Secondary Shares in the amount of Three Million ($3,000,000) Dollars shall occur
upon the execution of this Agreement.
2. The first Reset Period for the Secondary Shares shall expire on the 30th
calendar day after the expiration of the third and final Reset Period for the
Initial Shares.
3. The Investors agree that they shall not sell the Secondary Shares until the
expiration of the third and final Reset Period for the Initial Shares.
4. WaveRider agrees that it will pay to the Investors, in consideration for the
Investors amending the Purchase Agreement as set forth herein, the sum of two
percent (2%) of the Second Tranche Purchase Price for each thirty calendar day
period (pro rata for any period less than thirty calendar days) after the date
of this Agreement until the expiration of the third and final Reset Period for
the Initial Shares. The foregoing shall be paid in cash or in shares of Common
Stock (at the Bid Price for the five consecutive Trading Days immediately
preceding the date such payment is due), at the option of WaveRider, within five
Business Days of when due. If WaveRider chooses to pay such amount in shares of
Common Stock, WaveRider agrees that it shall file a registration statement with
the SEC including such shares of Common Stock within 30 calendar days of when
such shares are due to the investors, and such registration statement shall be
declared effective within 120 calendar days of when such shares are due to the
Investors. In the event such registration statement is not filed and/or declared
effective in a timely manner as set forth herein, WaveRider shall be responsible
for liquidated damages as set forth in the Registration Rights Agreement.
5. The capitalized terms used herein and not otherwise defined herein shall have
the meanings given to them in the Purchase Agreement.
<PAGE>
6. Except for the provisions of this Agreement, all other terms of the Purchase
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, this Agreement was duly executed on this 14th day
of June, 1999.
WAVERIDER COMMUNICATIONS INC.
By _________________________________
Name:
Title:
SOVEREIGN PARTNERS, L.P.
By_______________________________
Name:
Title:
SOUTHSHORE CAPITAL FUND LTD.
By_______________________________
Name:
Title:
Exhibit 23.1
Johnson, Holscher & Company, P.C.
Certified Public Accountants
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-3 of Waverider Communications Inc. (the "Company") to register 1,600,000
shares of common stock, of our report dated March 20, 1998 and March 22, 1999,
Note 4. Prior Period Adjustment, on our audits of the consolidated financial
statements of the Company as of December 31, 1997 and 1996.
We also consent to the reference to our firm under the caption "Experts".
Johnson, Holscher & Company, P.C.
July 12, 1999
[Letterhead]
Exhibit 23.2
July 13, 1999
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Prospectus dated July
14, 1999 constituting part of the Registration Statement on Form S-3 of
WaveRider Communications Inc. of our report dated February 5, 1999 appearing on
page 18 of WaveRider Communications Inc.'s Annual Report on Form 10-KSB for the
year ended December 31, 1998.
We also consent to the references to us under the heading "Experts" in such
Registration Statement.
/s/ PricewaterhouseCoopers LLP
Chartered Accountants
PricewaterhouseCoopers LLP is a Canadian member firm of PricewaterhouseCoopers
International Limited, an English company limited by guarantee.
