SECURITIES AND EXCHANGE COMMISSION
Washington, D.C., 20549
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
WAVERIDER COMMUNICATIONS INC.
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(Exact Name of Registrant as Specified in its Charter)
NEVADA 33-0264030
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(State or other jurisdiction of (IRS Employer Identification No.)
Incorporation or Organization)
255 Consumers Road, Suite 500, Toronto, Ontario, Canada M2J 1R4
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(Address of Principal Executive Offices) (Zip Code)
1999 INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN
(Full Title of the Plan)
T. SCOTT WORTHINGTON
255 Consumers Road, Suite 500
Toronto, Ontario Canada M2J 1R4
(416) 502-3200 / Facsimile No.: (416) 502-2968
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(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
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 other than securities offered only in connection with Dividend or Interest
Reinvestment Plans, check the following: __X__.
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CALCULATION OF REGISTRATION FEE
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Title of Securities to Amount to be Proposed Maximum Proposed Maximum Amount of
Be Registered Registered Offering Price per Aggregate Offering Registration
Share(1) Price(1) Fee
<S> <C> <C> <C> <C>
Common Shares 3,000,000 $6.25 $18,750,000 $5,164.00
</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 February 3, 2000.
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PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
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 supersede
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) The description of WaveRider's form of warrant contained in the
registration statement on Form 8-A filed with the SEC on December 20,
1999 under section 12(g) of the Exchange Act, including all amendments
and reports subsequently filed for the purpose of updating such
description.
(b) WaveRider's quarterly report, filed with the SEC on Form 10-Q, for the
fiscal quarter ended September 30, 1999;
(c) WaveRider's amendment to its quarterly report, filed with the SEC on Form
10-Q/A, for the fiscal quarter ended June 30, 1999;
(d) WaveRider's quarterly report, filed with the SEC on Form 10-Q, for the
fiscal quarter ended June 30, 1999;
(e) WaveRider's current report, filed with the SEC on Form 8-K, on June 30,
1999;
(f) WaveRider's Proxy Statement, filed with the SEC on DEF 14A, on April 29,
1999;
(g) WaveRider's quarterly report, filed with the SEC on Form 10-Q, for the
fiscal quarter ended March 31, 1999;
(h) WaveRider's annual report, filed with the SEC on Form 10-KSB, for the
fiscal year ended December 31, 1998;
(i) 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
(j) 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.
These together with all other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered by the Prospectus have been awarded or
which deregisters all securities then remaining.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Foley, Hoag & Eliot LLP, of One Post Office Square, Boston, Massachusetts
02109-2170 will issue an opinion, for WaveRider, 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.
ITEM 6. 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.
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.
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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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
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ITEM 8. EXHIBITS.
All of the following exhibits, except those designated with an asterisk, are
incorporated herein by reference to a prior registration statement filed under
the Securities Act or a periodic report filed by the Registrant pursuant to
Section 13 or 15(d) of the Exchange Act. Those exhibits designated with an
asterisk are filed as an exhibit to this Registration Statement.
Number Description
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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.
5 * Legal opinion of Foley, Hoag & Eliot.
23.1 * Consent of Foley, Hoag & Eliot LLP (included in Opinion filed
Exhibit 5)
23.2 * Consent of PricewaterhouseCoopers LLP
23.3 * Consent of Johnson, Holscher & Company, P.C.
24 * Power of Attorney (contained in the signature page)
99 1999 Incentive and Nonqualified Stock Option Plan, incorporated
by reference to Appendix A of Proxy Statement, filed on form
DEF 14A, file no. 000-25680
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which awards are being made, a
post-effective amendment to this Registration Statement:
i) To include any prospectus required by Section 10(a) (3) of the
Securities Act.
ii) 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, and
iii) 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.
2. That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment any
of the securities being registered which remains undisbursed at the
termination of the Plan.
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The undersigned Registrant hereby undertakes, that, for the purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) of the Exchange Act that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
The undersigned Registrant hereby undertakes to deliver or cause to be delivered
with the Prospectus, to each person to whom the Prospectus is sent or given, the
latest annual report to security holders that is incorporated by reference in
the Prospectus and furnished pursuant to and meeting the requirements of Rule
14a-3 or Rule 14c-3 under the Exchange Act; and , where interim financial
information required to be presented by Article 3 of Regulation S-X is not set
forth in the prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the Prospectus to provide such interim
financial information.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and 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 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, 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 itself is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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-8 and authorized this Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, on
February 4, 2000.
WAVERIDER COMMUNICATIONS INC.
By: /s/ D. Bruce Sinclair
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Bruce Sinclair, President and
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Bruce Sinclair and Cameron A. Mingay, and
each of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and re-substitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits and schedules thereto, and all other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing, which they, or either of them, may
deem necessary or advisable to be done in connection with this Registration
Statement, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their substitute or substitutes or any of them, may
lawfully do or cause to be done by virtue hereof.
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 February 4, 2000.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ D. Bruce Sinclair President, Chief Executive Officer February 4, 2000
- ------------------------ (Principal Executive Officer)
D. Bruce Sinclair and Director
/s/ Cameron A. Mingay Secretary/Director February 4, 2000
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Cameron A. Mingay
/s/ Gerry Chastelet Director February 4, 2000
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Gerry Chastelet
/s/ John Curry Director February 4, 2000
-----------------
John Curry
/s/ Guthrie Stewart Director February 4, 2000
-----------------
Guthrie Stewart
/s/ Dennis Wing Director February 4, 2000
- -----------------
Dennis Wing
</TABLE>
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EXHIBIT 5.1
February 4, 2000
WaveRider Communications Inc.
255 Consumers Road, Suite 500
Toronto, Ontario Canada
M2J 1R4
Ladies and Gentlemen:
We are familiar with the Registration Statement on Form S-8 filed on
February 4, 2000 by WaveRider Communications Inc., a Nevada corporation (the
"Company"), with the Securities and Exchange Commission under the Securities Act
of 1933 (the "S-8 Registration Statement"). The S-8 Registration Statement
relates to the registration of a total of 3,000,000 shares of the Company's
Common Stock, $0.001 par value ("Shares") which may be issued pursuant to the
Company's 1999 Incentive and Nonqualified Stock Option Plan (the "Plan").
In arriving at the opinions expressed below, we have examined and
relied on the following documents: (a) the Articles of Incorporation of the
Company, as amended; (b) the Amended and Restated By-Laws of the Company; (c)
the Plan; and (d) the records of meetings and consents of the Board of Directors
and stockholders of the Company provided to us by the Company. In addition, we
have examined and relied on the originals or copies certified or otherwise
identified to our satisfaction of all such corporate records of the Company and
such other instruments and other certificates of public officials, officers and
representatives of the Company and such other persons, and we have made such
investigations of law, as we have deemed appropriate as a basis for the opinions
expressed below. We have further assumed that a sufficient number of duly
authorized and unissued shares of Common Stock will be available for issuance at
the time options under the Plan are exercised, in accordance with the terms
thereof; and that the consideration received by the Company in respect of each
Share will be no less than its par value.
Based upon the foregoing, and subject to the qualifications set forth
herein, we are of the opinion that when the S-8 Registration Statement shall
have become effective and the Shares have been sold and issued pursuant to the
Plan and as contemplated in the S-8 Registration Statement, such Shares will be
validly and legally issued, and fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
S-8 Registration Statement.
This opinion is being delivered and is intended for use solely in
regard to the transactions contemplated by the S-8 Registration Statement and
may not be used, circulated, quoted in whole or in part or otherwise referred to
for any purpose without our prior written consent and may not be relied upon by
any person or entity other than the Company, its successors and assigns. This
opinion is based upon our knowledge of law and facts as of its date. We assume
no duty to communicate to you with respect to any matter which comes to our
attention hereafter.
Very truly yours,
FOLEY, HOAG & ELIOT LLP
By:/s/ David Broadwin
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A Partner
EXHIBIT 23.2
February 4, 2000
Consent of Independent Accountants
We hereby consent to the incorporation by reference in Registration Statement on
Form S-8 of WaveRider Communications Inc. (the "Company"), 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.
/s/ PricewaterhouseCoopers LLP
Chartered Accountants
PricewaterhouseCoopers LLP is a Canadian member firm of PricewaterhouseCoopers
International Limited, an English company limited by guarantee.
Exhibit 23.3
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-8 of WaveRider Communications Inc. (the "Company"), 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.
Johnson, Holscher & Company, P.C.
February 4, 2000
