As filed with the Securities and Exchange Commission on December 28, 2000
Registration No. 333-49458
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
AMENDMENT #1
FORM S-3/A
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 incorporation (I.R.S. Employer Identification
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. |_|
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
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 price fee
----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 1,000,000(2) $3.59 $3,590,000 $989.00
----------------------------------------------------------------------------------------------
</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 Nasdaq
National Market system on November 2, 2000.
(2) Assumes that WaveRider is required to pay the maximum consideration under
the Share Sale and Subscription Agreement and the Employment Agreement and
chooses to issue shares to satisfy the payment requirement.
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.
1,000,000 Shares of Common Stock
This prospectus provides for the sale of up to 1,000,000 shares of
common stock of WaveRider by certain selling stockholders.
WaveRider's common stock is currently quoted on the NASDAQ National
Market system, under the symbol "WAVC". On November 2, 2000, the last reported
sale price of WaveRider's common stock was $3.59 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]
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 December 22, 2000.
<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 ...................................................... 9
Disclosure of SEC Position on Indemnification
for Securities Act Liabilities ........................................ 10
Legal Matters ............................................................. 11
Experts ................................................................... 11
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 A Limited Operating History, Therefore There Is A High Degree
Of Uncertainty Whether Our Business Plans Or Our Products Will Be Successful
Up to the beginning of the year, our company had been mainly focused on
the research and development of our products as a result had limited 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 has achieved widespread distribution or
customer acceptance. Although, some of our products have passed the development
stage, we have not yet established a commercially viable 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 have experienced significant
operating losses every year since incorporation and are subject to the
uncertainties and risks associated with any new business. Our net losses for the
fiscal quarter that ended September 30, 2000 and the year that ended December
31, 1999 were $15,738,357 and $7,447,850 respectively, and for the fiscal
quarter that ended September 30, 1999 and the year that ended December 31, 1998
were $1,673,377 and $4,477,518 respectively. We have an accumulated deficit of
$41,317,141 as of September 30, 2000.
There can be no assurance that we will ever generate an overall profit
from our products or that we will ever reach profitability on a sustained basis.
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.
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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
operations.
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 cannot 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.
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<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
policies 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 may 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 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, would 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 Third Party Manufacturers And There Is Risk That, If These
Suppliers Become Unavailable For Any Reason, We May For An Unknown Period Of
Time Have No Product to Sell
We depend upon a limited number of third party manufacturers to make
our products. If our suppliers are not able to manufacture for us for any
reason, we would, for an unknown period of time, have difficulty finding
alternate sources of supply. 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 would
have a material adverse effect on our business, financial condition and results
of operations.
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
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<PAGE>
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 current report, filed with the SEC on Form 8-K/A, on
December 27, 2000;
(b) WaveRider's current report, filed with the SEC on Form 8-K/A, on
December 15, 2000;
(c) WaveRider's current report, filed with the SEC on Form 8-K, on December
14, 2000;
(d) WaveRider's quarterly report, filed with the SEC on Form 10-Q, for the
fiscal quarter ended September 30, 2000;
(e) WaveRider's current report, filed with the SEC on Form 8-K, on October
16, 2000;
(f) WaveRider's quarterly report, filed with the SEC on Form 10-Q, for the
fiscal quarter ended June 30, 2000;
(g) WaveRider's Proxy Statement, filed with the SEC on DEF 14A, on May 25,
2000;
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<PAGE>
(h) WaveRider's quarterly report, filed with the SEC on Form 10-Q, for the
fiscal quarter ended March 31, 2000;
(i) WaveRider's annual report, filed with the SEC on Form 10-K, for the
fiscal years ended December 31, 1999 and 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.
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
WaveRider will not receive any proceeds from the sale of the shares of
common stock by the selling stockholders.
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.
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SELLING STOCKHOLDERS
THE FORMER SHAREHOLDERS OF ADE NETWORK TECHNOLOGY PTY LTD
Of the 1,000,000 shares of common stock offered by this prospectus,
780,000 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 Mrs Maureen Anderson, Mr. Philip
William Anderson and Mr. Wayne Anderson, who may acquire common stock as part of
the proceeds of the sale of their shares of ADE Network Technology Pty Ltd. to
WaveRider.
Under the terms of the Share Sales and Subscription Agreement,
WaveRider committed to pay a minimum of $4,000,000 Australian (approximately
$2.13 Million US) in four equal quarterly installments commencing on the closing
date. In addition, the former shareholders of ADE will receive 40% of ADE's
revenue in excess of $7.5 Million Australian (approximately $4 Million US) for
the 12 months ended September 30, 2001, up to a maximum of $900,000 Australian
(approximately $480,000 US). Payment of the first installment of $1,000,000
Australian was made in cash. Payment of the balance of the consideration, after
the initial payment at closing, can be made, at WaveRider's sole discretion, in
the form of shares, cash or a combination of each.
WaveRider will not receive any portion of the proceeds from the sale of
shares by the former shareholders of ADE pursuant to this prospectus.
OFFICER OF ADE NETWORK TECHNOLOGY PTY LTD
Of the 1,000,000 shares of common stock offered by this prospectus,
220,000 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 Mr. William Anderson, Managing
Director of ADE. On October 1, 2000, WaveRider entered into an employment
contract with Mr. Anderson which included provisions that provided for the
payment of up to $1,100,000 Australian (approximately $600,000 US) in
commissions based on ADE's sales during the 12 months ended September 30, 2001.
WaveRider at is discretion can pay these commissions through cash, stock or a
combination of each.
WaveRider will not receive any portion of the proceeds from the sale of
shares by Mr. Anderson pursuant to this prospectus.
SELLING STOCKHOLDERS
TABLE OF HOLDINGS
Based on the information supplied to WaveRider by each selling
stockholder, the following table sets forth, as of October 1, 2000, certain
information regarding the beneficial ownership of each selling stockholder and
number of shares owned by each selling stockholder. The table assumes that the
full amount of the contingent consideration, for the former ADE shareholders,
and the special commissions, for the officer of ADE, are required to be made by
WaveRider and that WaveRider exercises in full its right to settle the
consideration and commission through the issue of common stock.
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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.
<TABLE>
Shares Shares
Beneficially Owned Beneficially Owned
Prior to Offering Number After Offering
------------------------- of Shares ------------------
Name and Address Number Percent Offered Number Percent
----------------------------------- ------- ------- --------- --------- -------
<S> <C> <C> <C> <C> <C>
Maureen Anderson 658,228 1.03% 658,228 0 0%
Ferntree Gully, Victoria, Australia
William Anderson 220,000 0.35% 220,000 0 0%
Ferntree Gully, Victoria, Australia
Wayne Anderson 82,278 0.13% 82,278 0 0%
Rowville, Victoria, Australia
Philip William Anderson 39,494 0.06% 39,494 0 0%
Bayswater, Victoria, Australia
</TABLE>
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 NASDAQ National Market System (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.
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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.
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. 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.
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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.
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, 1999 and 1998 and for the
years then ended incorporated in this registration by reference to the Annual
Report on Form 10-K for the year ended December 31, 1999 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.
The financial statements of ADE Network Technology Pty. Ltd. as at June
30, 2000 and for the year then ended incorporated in this registration by
reference to the Report on Form 8-K/A, dated December 27, 2000 have been so
incorporated in reliance on the report of Lundstrom Dickson Barbanti,
independent public accountants, given on the authority of said firm as experts
in auditing and accounting.
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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 $ 989
Printing and engraving $ 500
Accountants' fees and expenses $ 5,000
Legal fees $ 2,500
Miscellaneous $ 1,011
-------------
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.
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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.
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.
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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 16. Exhibits
The exhibits below marked with an asterisk (*) are included with and filed as
part of this report.
Exhibit No. Description
3.1 Articles of Incorporation of the Company, 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.
3.3 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 the Company
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 incorporated by reference to
Exhibit 3.7 on Form 10KSB for the year ended December 31, 1997.
3.8 Certificate of Amendment to the Memorandum of the Company changing the
name to WaveRider Communications Inc., filed with the Nevada Secretary of
State on May 27, 1997 incorporated by reference to Exhibit 3.8 on Form
10KSB for the year ended December 31, 1997.
3.9 Certificate of Amendment to the Certificate of Designation of the Series B
Voting Convertible Preferred Stock, filed with the Nevada Secretary of
State on May 16, 1997 incorporated by reference to Exhibit 99.1 on Form
8-K filed May 5, 1998.
3.10 Certificate of Amendment to the Articles of Incorporation of the Company
designating the Series C Voting 8% Convertible Preferred Stock, filed with
the Nevada Secretary of State on June 3, 1998 incorporated by reference to
Exhibit 4 on Form 8-K filed June 18, 1998.
3.11 Certificate of Amendment to the Articles of Incorporation of the Company
filed with the Nevada Secretary of State on July 17, 2000, incorporated by
reference to Appendix D on Form DEF 14A filed May 25, 2000.
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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.
4.2 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.
4.3 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.
4.4 Warrant Terms dated June, 1999, relating to the Class H Common Stock
Purchase Warrants, incorporated by reference to Exhibit 4.11 on a
registration statement on Form S-3, File no. 333-82855
4.5 Warrant Terms dated December 1999, relating to Common Stock Purchase
Warrants, incorporated by reference to Exhibit 4.13 on a registration
statement on Form S-3, File no. 333-92591.
5.1* Opinion of Foley, Hoag & Eliot LLP.
23.1* Consent of Johnson, Holscher & Company P.C., independent auditors.
23.2* Consent of PricewaterhouseCoopers LLP, independent auditors
23.3* Consent of Lundstrom Dickson Barbanti, 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.
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(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.
(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.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Bruce Sinclair, 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 November 3, 2000.
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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
December 22, 2000.
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 December 22, 2000.
<TABLE>
Signature Title Date
<S> <C> <C>
/s/ D. Bruce Sinclair President, Chief Executive Officer December 22, 2000
-------------------------- (Principal Executive Officer)
D. Bruce Sinclair and Director
/s/ Cameron A. Mingay* Secretary/Director December 22, 2000
--------------------------
Cameron A. Mingay
/s/ Gerry Chastelet* Director December 22, 2000
--------------------------
Gerry Chastelet
/s/ John Curry* Director December 22, 2000
--------------------------
John Curry
/s/ Guthrie Stewart* Director December 22, 2000
--------------------------
Guthrie Stewart
/s/ Dennis Wing* Director December 22, 2000
--------------------------
Dennis Wing
</TABLE>
* By D. Bruce Sinclair, Attorney in fact
6
