UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
1. Pursuant to Sections 13 or 15(d) of the Securities and Exchange Act of
1934
Date of Report (Date of earliest event reported): October 1, 2000
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WAVERIDER COMMUNICATIONS INC.
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(Exact name of registrant as specified in charter)
NEVADA
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(State or other jurisdiction of incorporation or organization)
0-25680 33-0264030
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(Commission File Number) (I.R.S. Employer Identification Number)
255 Consumers Road, Suite 500, Toronto, Ontario, Canada M2J 1R4
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(Address of principal executive offices) (Zip Code)
(416) 502-3200
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(Registrant's telephone number, including area code)
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(Former name or former address, if changed since last report)
<PAGE>
Item 2. Acquisition or Disposal of Assets
Acquisition of ADE Network Technology Pty Ltd
Effective October 1, 2000, WaveRider Communications Inc. ("WaveRider" or the
"Company") acquired ADE Network Technology Pty of Melbourne, Australia, ("ADE")
a privately-held wireless infrastructure company. The Company undertook this
acquisition to provide a sales presence in Australia and South East Asia where
it believes a strong growing potential market for its products exists.
Under the terms of the 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.
ADE Network Technology operates offices in Melbourne, Sydney, Canberra, Brisbane
and Perth in Australia. In addition to marketing WaveRider's fixed wireless
Internet access products, ADE's team of 27 sales, engineering, administration
and management professionals will provide professional planning, installation
and maintenance services to wireless Internet Service Providers throughout the
continent.
As a wholly-owned subsidiary of WaveRider, ADE Network Technology's financial
results will be reported on a consolidated basis with WaveRider's results. The
purchase has been completed for a combination of shares and cash, which have no
material impact on WaveRider's cash and equity position.
Item 7. Financial Statements
Financial Statements will be filed on or before December 15, 2000, sixty (60)
days from the required date of this filing, as provided in Rule 3-05 of
Regulation S-X
Exhibits
10.1 Share Sale and Subscription Agreement between WaveRider Communications
Inc. and ADE Network Technology Pty Ltd and Philip William Anderson,
Maureen Anderson and Wayne Anderson dated September 29, 2000.
10.2 Amendment No. 1 to the Share Sale and Subscription Agreement between
WaveRider Communications Inc. and ADE Network Technology Pty Ltd and
Philip William Anderson, Maureen Anderson and Wayne Anderson dated
October 9, 2000.
Signatures:
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this current report on Form 8-k to be signed on its
behalf by the undersigned thereunto duly authorized.
Dated: October 13, 2000
WaveRider Communications Inc.
Per: /s/ Bruce Sinclair
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Bruce Sinclair, President
<PAGE>
EXHIBIT 10.1
PHILIP WILLIAM ANDERSON, MAUREEN ANDERSON AND
WAYNE ANDERSON
(collectively, the Vendors)
and
WAVERIDER COMMUNICATIONS INC.
(Purchaser)
and
ADE NETWORK TECHNOLOGY PTY LTD
ACN 006 395 026
(ADE)
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SHARE SALE AND SUBSCRIPTION AGREEMENT
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<PAGE>
THIS AGREEMENT is made the 29th day of September 2000
BETWEEN
PHILIP WILLIAM ANDERSON of 6 Lemon Grove, Bayswater, Victoria (Philip);
AND
MAUREEN ANDERSON of 37 Francis Crescent, Ferntree Gully, Victoria (Maureen);
AND
WAYNE ANDERSON of 4 Finsbury Close, Rowville, Victoria (Wayne),
(together the Vendors);
AND
ADE NETWORK TECHNOLOGY PTY LTD (ACN 006 395 026) of 2 Dublin Street, East
Oakleigh, Victoria (ADE);
AND
WAVERIDER COMMUNICATIONS INC., a company incorporated in Nevada, of Suite 500,
255 Consumers Road, Toronto, Ontario, Canada (Purchaser).
RECITALS:
A. Philip, Maureen and Wayne (collectively, the Vendors) are the legal and
beneficial owners of the Vendor Shares in the proportions set out
below:
Philip: 12,000 Shares;
Maureen: 200,000 Shares; and
Wayne: 25,000 Shares.
B. The Vendors wish to sell and the Purchaser wishes to purchase the
Vendor Shares on the terms and conditions of this Agreement.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATIONS
1.1 Definition
In this Agreement:
Accounts means the accounts in respect of ADE which has been disclosed
to the Purchaser.
<PAGE>
Accounts Date means 30 June 2000.
Adjustment Amount means the amount which is the difference between the amount
received in Australian dollars by reason of the disposal of Sale Shares by a
Vendor (less reasonable costs of the disposal incurred by the Vendor) and the
equivalent Consideration amount payable to the Vendors.
Agreement means the agreement constituted by this document and includes the
recitals.
Authorisation means any permit, approval, authorisation, consent, exemption,
filing, licence, notarisation, registration or waiver however described and any
renewal or variation to any of them.
Business means the business of wireless network communications carried on by
ADE.
Business Day means a day that is not a Saturday, Sunday or public holiday in
Victoria.
Claim means in relation to any person, a claim, action or proceeding, judgment,
damage, loss, cost, expense or liability incurred by or to or made or recovered
by or against the person, however arising and whether present, unascertained,
immediate, future or contingent.
Consideration means the consideration in respect of the Transaction set out in
clause 4.
Encumbrance means any encumbrance, mortgage, pledge, charge, lien, assignment,
hypothecation, security interest, title retention, preferential right or trust
arrangement and any other security or agreement of any kind given or created and
including any possessory lien in the ordinary course of business whether arising
by operation of law or by contract.
Escrow Agreement means an agreement entered into between the Vendors and the
Purchaser in relation to WaveRider Shares issued to the Vendors limiting the
number of WaveRider Shares that the Vendors may sell on any one day to no more
than 10% of the average daily number of WaveRider Shares sold during the
previous 10 days of trading on the NASDAQ National Market System.
Execution Date means the date of this Agreement.
Governmental Agency means a government or government department, a governmental
or semi-governmental or judicial person (whether autonomous or not) charged with
the administration of any applicable law.
Guarantees means the guarantees made by any or all of the Vendors and set out in
Schedule C.
<PAGE>
Incremental Revenue means that proportion of the Revenue which is greater than
$7.5 million but not more than $9.75 million for the year ending 30 September
2001 which amount shall be increased by an amount equal to any decrease in the
capacity of ADE to earn revenue during the relevant year caused by Purchaser
diverting current revenue generating resources of ADE to non-revenue activities,
reducing ADE's current expenditure levels or breach of the covenant set out in
clause 9.6 of this Agreement, without the express written consent of the
Managing Director of ADE.
Party means a party to this Agreement.
Revenue means, in relation to a period of time, the revenue of ADE as calculated
in accordance with generally accepted Australian accounting standards and
practices.
Satisfaction Period means the period commencing on the Execution Date and
expiring 30 September 2000, or such other date as is agreed to in writing by the
Parties.
Securities means the securities given by any or all of the Vendors and set out
in Schedule C.
Settlement means the settlement on the Settlement Date of the sale
and purchase of the Vendor Shares.
Settlement Date means 30 September 2000 unless otherwise agreed between the
Parties.
Share means a fully paid ordinary share in the capital of ADE.
Tax means any tax, levy, charge, impost, duty, fee, deduction, compulsory loan,
withholding, stamp, transaction, registration, duty or similar charge which is
assessed, levied, imposed or collected by any government agency and includes,
but is not limited to, any interest, fine, penalty, charge, fee or any other
accounting imposed on, or in respect of any of the above.
Transaction means the sale and purchase of the Vendor Shares as set out in
clause 3.
Vendor Proportions means in, relation to WaveRider Shares issued to the Vendors
or cash paid to the Vendors, the allocation of WaveRider Shares or the payment
of cash (as appropriate) in the following proportions:
Name of Vendor Proportion of total WaveRider Shares/cash
Philip 12/237
Maureen 200/237
Wayne 25/237
<PAGE>
Vendor Shares means 100% of the fully paid issued capital of ADE, being 237,000
Shares.
WaveRider Share means a common share in the capital of Purchaser.
1.2 Interpretation
In this Agreement unless the context otherwise requires:
(a) headings are for convenience only and do not affect its interpretation;
(b) an obligation or liability assumed by, or a right conferred on, 2 or
more Parties binds or benefits all of them jointly and each of them
severally;
(c) the expression person includes an individual, the estate of an
individual, a corporation, an authority, an association or joint
venture (whether incorporated or unincorporated), a partnership and a
trust;
(d) a reference to any party includes that party's executors,
administrators, successors and permitted assigns, including any person
taking by way of novation;
(e) a reference to any document (including this Agreement) is to that
document as varied, novated, ratified or replaced from time to time;
(f) a reference to any statute or to any statutory provision includes any
statutory modification or re-enactment of it or any statutory provision
substituted for it, and all ordinances, by-laws, regulations, rules and
statutory instruments (however described) issued under it;
(g) words importing the singular include the plural (and vice versa) and
words indicating a gender include every other gender;
(h) reference to parties, clauses, schedules, exhibits or annexures are
references to parties, clauses, schedules, exhibits and annexures to or
of this Agreement and a reference to this Agreement includes any
schedule, exhibit or annexure to this Agreement;
(i) where a word or phrase is given a defined meaning, any other part of
speech or grammatical form of that word or phrase has a corresponding
meaning; and
(j) a reference to $ or dollar is to Australian currency.
2. CONDITIONS
2.1 This Agreement is subject to and conditional on the satisfaction of the
following conditions precedent:
<PAGE>
(a) the Vendors, using their best endeavours, to procure that the employees
specified in Schedule D enter into employment agreements with ADE on
terms that are satisfactory to the Purchaser; and
(b) receipt of:
(i) any necessary consents in relation to the leases set out in
Schedule E; and
(ii) any other third party approvals, consents, waivers, orders,
exemptions and agreements reasonably necessary for the ongoing
operation of the Business, including in relation to material
contracts with suppliers and customers, each in form and
substance satisfactory to the Purchaser and the Vendors.
2.2 The conditions precedent to this Agreement in clause 2.1 are inserted
in this Agreement solely for the benefit of the Purchaser and the
Purchaser may, by notice in writing to the Vendors on or before the
due date for satisfaction of each of the conditions precedent, either
waive or grant an extension of time for satisfaction of any one or
more of the conditions or part or parts of any one or more of the
conditions.
2.3 Subject to clause 2.2, if all of the conditions precedent set out in
clause 2.1 are not satisfied or waived by the Purchaser in accordance
with the provisions of this Agreement by the expiry of the
Satisfaction Period, this Agreement shall be deemed to be at an end
and of no force or effect with none of the Parties being subject to
any of the obligations contained in this Agreement and with none of
the Parties claiming any right, at law or in equity, against any
other Party save for the performance of those covenants and
agreements (if any) which should have already have been performed and
all damages for breach of the same.
2.4 The Parties shall use their best endeavours to satisfy all conditions
precedent referred to in clause 2.1 as soon as possible after the
Execution Date.
2.5 Settlement of this Agreement is subject to and conditional on the
Purchaser being satisfied that no material change has occurred in the
financial position or affairs of ADE between the date of satisfaction
of the conditions precedent to this Agreement referred to in clause
2.1 and the Settlement Date.
2.6 Settlement of this Agreement is subject to and conditional on the
Vendors being satisfied that no material change has occurred in the
financial position or affairs of the Purchaser between the date of
satisfaction of the conditions precedent to this Agreement referred
to in clause 2.1 and the Settlement Date.
3. TRANSACTION
Each of the Vendors, as legal and beneficial owners of the Vendor
Shares, in the proportions set out in Recital A above, agree to sell
free from Encumbrances and the Purchaser agrees to purchase the
Shares owned by each Vendor for the Consideration and on the further
terms and conditions set out in this Agreement.
<PAGE>
4. CONSIDERATION
4.1 The consideration payable by the Purchaser to the Vendor is as follows:
(a) $1,000,000 in cash payable to the Vendors on the Settlement Date;
(b) $3,000,000 payable to the Vendors in 3 equal quarterly instalments
of $1,000,000 each, payable on the following dates:
(i) that date which is 3 months after the Settlement Date;
(ii) that date which is 6 months after the Settlement Date; and
(iii) that date which is 9 months after the Settlement Date; and
(c) that amount which is 40% of Incremental Revenue, payable on
31 October 2001.
4.2 The Purchaser may elect to satisfy its obligations referred to in
clauses 4.1(b) and 4.1 (c) by the payment of cash only, by the issue
of WaveRider Shares, or by a combination of cash and WaveRider
Shares.
4.3 If:
(a) the Purchaser elects to partly or fully satisfy its
obligations referred to in clause 4.1(b) or 4.1(c) by the
issue of WaveRider Shares;
(b) a Vendor sells some or all of his or her WaveRider Shares
(Sale Shares) within 30 days of the issue of the Sale Shares
on market at arms length; and
(c) the Vendor, by reason of such a bona fide on market sale at
arms length, recovers (after taking account of reasonable
costs of the sale incurred by the Vendor) other than the cash
amount the Vendor would have received if the Purchaser had
elected to satisfy its obligations by the payment of cash
rather than satisfying its obligations by the issue of the
Sale Shares, the Purchaser shall pay to or claim from that
Vendor the Adjustment Amount.
4.4 The Adjustment Amount is payable to or claimed from a Vendor at the
following times:
(a) if the Adjustment Amount relates to Sale Shares issued
pursuant to clause 4.1(b), at the same time as the immediately
following instalment of the Consideration pursuant to clause
4.1(b) or 4.1(c) if payable (or if no Consideration is payable
pursuant to clause 4.1(c), on 31 October 2001); and
<PAGE>
(b) if the Adjustment Amount relates to Sale Shares issued
pursuant to clause 4.1(c), on 31 December 2001.
4.5 In the event that the Purchaser is required to pay to a Vendor an
Adjustment Amount:
(a) the Purchaser may elect to pay the Adjustment Amount in the
manner referred to in clause 4.2 if the Adjustment Amount
relates to Sale Shares issued pursuant to clause 4.1(b); and
(b) the Purchaser must pay the Adjustment Amount in cash if the
Adjustment Amount relates to Sale Shares issued pursuant to
clause 4.1(c).
4.6 In the event that the Purchaser is entitled to claim from a Vendor an
Adjustment Amount:
(a) the Adjustment Amount shall be offset against the immediately
following instalment of the Consideration payable pursuant to
clause 4.1(b) or 4.1(c) if the Adjustment Amount relates to
Sale Shares issued pursuant to clause 4.1(b); and
(b) the Adjustment Amount shall be paid in cash by the respective
Vendor if it relates to Sale Shares issued pursuant to clause
4.1(c).
4.7 All calculations relating to the number of WaveRider Shares to be
issued to the Vendors as part of the Consideration will be determined
in accordance with the following formula:
X = Y x Z
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SP
where:
X = the number of WaveRider Shares to be issued to the Vendors
as part of the Consideration;
Y = the equivalent Consideration amount payable to the Vendors
in Australian dollars;
Z = the AUD$:US$ exchange rate sell rate as published in the
Australian Financial Review on the day prior to the date on
which any WaveRider Shares are to be issued to the Vendors as
part of the Consideration; and
SP = the average trading price of WaveRider Shares on the NASDAQ
Composite Index at the close of trading on the last 5 trading
days prior to the date on which any WaveRider Shares are to be
issued to the Vendors as part of the Consideration.
<PAGE>
5. SETTLEMENT
5.1 Settlement of the Transaction shall take place on the Settlement Date
at the offices of ADE or at such other offices as the Parties may
otherwise agree and at such time as shall be agreed by the Parties.
Irrespective of the date on which Settlement actually takes place,
Settlement shall be deemed to have taken place on 30 September 2000.
5.2 At Settlement, the Vendors must confer on the Purchaser title to the
Vendor Shares and place the Purchaser in effective possession and
control of ADE. To this end, at or prior to Settlement, the Vendors
must:
(a) if required by the Purchaser, deliver or cause to be delivered
to the Purchaser in a form and substance satisfactory to the
Purchaser:
(i) share certificates in respect of the Vendor Shares;
(ii) separate instruments of transfer in registrable form
of the Vendor Shares in favour of the Purchaser (as
transferee) which have been duly executed by each of
the Vendors in relation to their respective Vendor
Shares (as transferor);
(iii) the common seal (and any duplicate common seal, share
seal or official seal) of ADE;
(iv) all available copies of the constitution of ADE;
(v) the minute books and other records of meetings or
resolutions of members and directors of ADE;
(vi) all registers of ADE (including the register of
members, register of options, register of directors,
register of charges) in proper order and condition
and fully entered up to the Settlement Date;
(vii) all cheque books, financial and accounting books and
records, copies of tax returns and assessments,
mortgages, leases, agreements, insurance policies,
title documents, licences, indicia of title,
contracts, certificates and all other records,
papers, books and documents of ADE;
(viii) a duly completed authority for the alteration of the
signatories of each bank account of ADE in the manner
required by the Purchaser by written notice before
the Settlement Date; and
(ix) all current Authorisations and other documents issued
to ADE under any legislation or ordinance relating to
its business activities;
(b) procure that duly convened meetings of the directors of ADE
are held and procure at those meetings (as applicable):
<PAGE>
(i) the approval of the registration (subject to payment
of stamp duty) of the transfers of the Vendor Shares
and the issue of a new share certificate for the
Vendor Shares in the name of the Purchaser;
(ii) if required by the Purchaser, the appointment as
additional directors and secretaries of ADE of those
persons nominated by the Purchaser by written notice
before the Settlement Date;
(iii) if required by the Purchaser, the retirement, by
written notice, of the Vendors' representatives as
secretary and directors of ADE with effect from the
end of that meeting acknowledging that each of them
has no Claim of any kind whatsoever against ADE by
way of compensation or entitlement for loss of office
including (without limitation) in respect of his or
her legal entitlements to accrued long service leave
and annual pay (if any);
(iv) if required by the Purchaser, the revocation of all
existing authorities to operate bank accounts; and
(v) the transaction of any other reasonable business of
which the Purchaser may give notice before the
Settlement Date; and
(c) deliver possession and place the Purchaser in operating
control of ADE.
5.3 At Settlement, the Purchaser must pay to the Vendors a total of
$1,000,000, to be allocated amongst each of the Vendors in the Vendor
Proportions. Such payment will be in the form of a trust account
cheque from the trust account of Steinepreis Paganin, Lawyers and
Consultants. In addition, Purchaser must present an executed
counterpart of the employment agreement for Mr. William Anderson, in
the form of Schedule F and an executed counterpart of the employment
agreement for Mr. Wayne Anderson, in the form of Schedule G.
6. ANNOUNCEMENTS
The Purchaser and ADE agree that there will be no public announcement
or other disclosure of the matters dealt with in this Agreement or
that discussions and negotiations concerning the Transaction are
occurring between them until they have both agreed thereto or unless
otherwise required by law or by regulatory law or regulatory rule or
policy. If either the Purchaser or ADE is required by law or
regulatory rule or policy to make a public announcement, it will
provide as much notice to the other of them as reasonably possible,
including the proposed text of the announcement.
7. COVENANTS BY THE VENDORS AND ADE
7.1 The Vendors and ADE covenant with the Purchaser that during the
period commencing on the Execution Date and expiring on the
Settlement Date, ADE will not, except as contemplated by this
Agreement, without the prior written consent of the Purchaser:
<PAGE>
(a) enter into, terminate or alter any term of any material
contract or commitment;
(b) other than in the ordinary course of its Business, incur any
material liability;
(c) other than in the ordinary course of its Business, acquire any
asset or authorise any material capital expenditure;
(d) other than in the ordinary course of its Business, dispose of,
agree to dispose of, assign, agree to assign, encumber or
grant any option over any of its assets or any interest in any
of them;
(e) other than in the ordinary course of its business, hire or
terminate the employment of or pay or agree to pay any bonus
or allowance to any employee or alter the terms of employment
(including the terms of superannuation or any other benefit)
of any employee;
(f) grant any option to subscribe for any security in ADE or allot
or issue or agree to allot or issue any security, share or
loan capital or any security convertible into any share or
loan capital in ADE other than as set out in this Agreement;
(g) resolve to reduce its share capital in any way;
(h) enter into a buy-back agreement or resolve to approve the
terms of a buy-back agreement;
(i) declare or pay any dividend or make any other distribution of
its assets or profits;
(j) alter or agree to alter its constitution other than as
provided for in this Agreement;
(k) pass any resolution other than in the ordinary course of
business; or
(l) resolve any programs or budgets in relation to ADE.
7.2 For the purposes of this Agreement and until Settlement, the Vendors
must use their best endeavours to:
(a) give the Purchaser all such assistance and information in
regard to the property and affairs of ADE; and
(b) make available for access to the Purchaser or its
representatives all books, records and documents (whether in
written, electronic or other form) in its possession or under
its control,
as the Purchaser may require to enable the Purchaser to gain further
knowledge about the Business (and its operation and conduct) and take
control of ADE.
<PAGE>
7.3 If, before the Settlement Date, an event occurs which has or may have
a material effect of the profitability or value of the Vendor Shares,
the Vendors must, immediately upon becoming aware of that event, give
written notice to the Purchaser fully describing the event.
7.4 In the event that all or any of the Vendors are issued WaveRider
Shares pursuant to clause 4, the Vendors jointly and severally
covenant that they will, on the date of issue of such WaveRider
Shares, each enter into an Escrow Agreement.
7.5 The Vendors jointly and severally covenant that they will provide all
reasonable assistance to the Purchaser as is required to enable the
Purchaser to satisfy its obligations under clause 9.3.
8. REPRESENTATIONS AND WARRANTIES BY THE VENDORS AND ADE
8.1 Each of the Vendors and ADE jointly and severally warrant and
represent to the Purchaser, as an inducement to the Purchaser to
enter into this Agreement and it is a condition of this Agreement
that each of the statements set out in Schedule A are true, complete
and accurate, both at the Execution Date and at the Settlement Date.
8.2 Each of the Vendors and ADE jointly and severally indemnify and agree
to indemnify the Purchaser against any Claim against the Purchaser to
the extent that the Claim arises from or is connected with any breach
of any warranty by such Vendor set out in Schedule A or any other
terms of this Agreement.
8.3 The warranties set out in Schedule A will remain in full force for a
period of one year from Settlement, except for clauses 6.7, 13 and 16
in Schedule A which will remain in full force for a period of five
years, and the provisions of clauses 8.1 and 8.2 will remain in full
force with respect to each warranty for the corresponding time
period, and be binding notwithstanding Settlement and shall continue
for the benefit of the Purchaser and shall not be extinguished or
merged on Settlement.
8.4 The matters set out in Schedule A and clause 8.2 will be taken to be
repeated by the Vendors and ADE on the Settlement Date with reference
to the facts and circumstances existing at that date.
9. COVENANTS BY THE PURCHASER
9.1 To the extent to which the Purchaser elects to pay to the Vendors
some or all of the Consideration set out in clause 4 in cash, it
shall pay such Consideration by bank cheque, to be allocated amongst
each of the Vendors in the Vendor Proportions.
9.2 To the extent to which the Purchaser elects to pay to the Vendors
some or all of the Consideration set out in clause 4 in WaveRider
Shares, the Purchaser shall deliver or cause to be delivered to each
of the Vendors share certificates together totalling such
Consideration, which share certificates shall allocate WaveRider
Shares between the Vendors in the Vendor Proportions.
9.3 The Purchaser covenants with the Vendors that:
<PAGE>
(a) during the period commencing on the Settlement Date and
expiring 90 days thereafter, the Purchaser will, at its own
cost, obtain a release of the guarantee and indemnity for
$357,036 given by William Anderson and Maureen supported by a
registered mortgage over property situated at 37 Francis
Crescent, Ferntree Gully, Victoria which guarantees and
indemnity forms part of the Guarantees and Securities ; and
(b) subject to clause 9.3(a), during the period commencing on the
Settlement Date and expiring 6 months thereafter, the
Purchaser will, at its own cost, obtain a release of the
Guarantees and Securities made by any or all of the Vendors
and/or William Anderson,
provided that it will use its best endeavours to obtain a release of
Guarantees and Securities as soon as practicable after Settlement.
Until such time as a full and complete release has been obtained, the
Purchaser and ADE agree to indemnify the Vendors and William Anderson
against any Claim against any or all of those persons made under the
Guarantees and Securities.
9.4 If, before the Settlement Date, an event occurs which has or may have a
material effect on the profitability or value of WaveRider Shares, the
Purchaser must, immediately upon becoming aware of that event, give
written notice to the Vendors fully describing the event.
9.5 The Purchaser covenants with the Vendors that it will by no later than
30 days after the Settlement Date file with the Securities Exchange
Commission of the United States of America:
(a) a registration statement with respect to the initial issuance
of WaveRider Shares to the Vendors as contemplated by this
Agreement; and
(b) a registration statement with respect to such sale or disposal
of the WaveRider Shares by the Vendors as may occur pursuant
to this Agreement,
and will do all other things necessary to ensure that the Vendors are
able to hold, dispose of or otherwise deal with the WaveRider Shares as
they think fit subject only to the terms of the Escrow Agreement.
9.6 WaveRider covenants to provide cash or credit facilities to a minimum
of $1,000,000 for the ongoing operations and growth of ADE, within
ninety (90) days following Settlement in accordance with appropriate
spending and budgetary controls to be implemented by ADE and approved
by the Purchaser.
9.7 The Purchaser covenants to use its reasonable endeavours to enable ADE
to achieve a revenue of $12,500,000 during the year ending 30 September
2001.
<PAGE>
10. REPRESENTATIONS AND WARRANTIES BY THE PURCHASER
10.1 The Purchaser warrants and represents to the Vendor, as an inducement
to the Vendors to enter into this Agreement and it is a condition of
this Agreement that each of the statements are set out in Schedule B
are true, complete and accurate, both at the Execution Date and at
the Settlement Date.
10.2 The Purchaser indemnifies and agrees to indemnify the Vendors against
any Claim against any Vendor to the extent that the Claim arises from
or is connected with any breach of any warranty by the Purchaser set
out in Schedule B or any other terms of this Agreement.
10.3 The warranties set out in Schedule B and the provisions of clauses
10.1 and 10.2 will remain in full force and be binding
notwithstanding Settlement and shall continue for the benefit of the
Vendors and shall not be extinguished or merged on Settlement.
10.4 The matters set out in Schedule B and clause 10.2 will be taken to be
repeated by the Purchaser on the Settlement Date with reference to
the facts and circumstances existing at that date.
11. NOTICES
11.1 Each notice authorised or required to be given to a Party shall be in
writing and may be delivered personally or sent by properly addressed
and prepaid mail or facsimile in each case addressed to the Party at
its address set out in clause 11.2, or as the case may be to such
other address as it may from time to time notify to the other Parties
pursuant to clause 11.3.
11.2 The initial address of the Parties shall be as follows:
In the case of the Purchaser:
WaveRider Communications Inc.
Suite 500, 255 Consumers Road
Toronto, Ontario
Canada
Facsimile:INT + (416) 502 2968
Attention:Mr J Chapman
In the case of the Vendors or ADE:
2 Dublin Street
East Oakleigh
Victoria 3166
Facsimile:INT + (61 3) 9543 5582
Attention:Mr W Anderson
<PAGE>
11.3 Each Party may from time to time change its address by giving notice
pursuant to clause 11.1 to the other Parties.
11.4 Any notice given pursuant to clause 11.1 will be conclusively deemed to
have been received:
(a) in the case of personal delivery, on the actual day of
delivery if delivered prior to 5 pm (local time) on a Business
Day or on the next following Business Day if delivered after 5
pm (local time) on a Business Day or on other than a Business
Day;
(b) if sent by mail, on the fifth clear Business Day after the day
of posting; or
(c) if sent by facsimile, on the day after the facsimile was sent
by clear transmission.
12. NON-ASSIGNMENT
No Party may assign any or all of its rights and obligations under
this Agreement to any person except with the prior written consent of
the other Party which consent shall not unreasonably be withheld.
13. FURTHER ASSURANCE
Each Party shall sign, execute and do all deeds, acts, documents and
things as may reasonably be required by the other Party to
effectively carry out and give effect to the terms and intentions of
this Agreement.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the law from time to time in the State of Victoria and the Parties
agree to submit to the non-exclusive jurisdiction of the courts of
Victoria and the courts which hear appeals therefrom.
15. VARIATION
No modification or alteration of the terms of this Agreement shall be
binding unless made in writing dated subsequent to the date of this
Agreement and duly executed by the Parties.
16. COSTS
16.1 All stamp duty assessed on or in respect of this Agreement shall be
paid by the Purchaser.
16.2 It is acknowledged that:
(a) the Purchaser shall bear its own legal costs of and incidental
to the preparation, negotiation and execution of this
Agreement; and
<PAGE>
(b) the Vendors shall bear their own costs and the costs of ADE of
and incidental to the preparation, negotiation and execution
of this Agreement, together with all fees paid or payable by
ADE to third parties directly or indirectly involved in
facilitating the Transaction, provided that such costs are
incurred after 15 July 2000.
17. MISCELLANEOUS
17.1 If any provision of this Agreement is invalid and not enforceable in
accordance with its terms, all other provisions which are
self-sustaining and capable of separate enforcement without regard to
the invalid provision, shall be and continue to be valid and forceful
in accordance with their terms.
17.2 This Agreement shall constitute the sole understanding of the Parties
with respect to the subject matter and replaces all other agreements
with respect thereto.
17.3 This Agreement may be executed in any number of counterparts
(including by way of facsimile) each of which shall be deemed for all
purposes to be an original and all such counterparts taken together
shall be deemed to constitute one and the same instrument.
17.4 Time shall be of the essence in this Agreement in all respects.
EXECUTED by the Parties as a Agreement.
SIGNED by )
PHILIP WILLIAM ANDERSON )
in the presence of: ) ______________________________
(Signature)
--------------------------------------------
Signature of Witness
--------------------------------------------
Full Name of Witness
--------------------------------------------
Address:
--------------------------------------------
Occupation:
<PAGE>
SIGNED by )
MAUREEN ANDERSON )
in the presence of: ) ______________________________
(Signature)
--------------------------------------------
Signature of Witness
--------------------------------------------
Full Name of Witness
--------------------------------------------
Address:
--------------------------------------------
Occupation:
SIGNED by )
WAYNE ANDERSON )
in the presence of: ) ______________________________
(Signature)
--------------------------------------------
Signature of Witness
--------------------------------------------
Full Name of Witness
--------------------------------------------
Address:
--------------------------------------------
Occupation:
<PAGE>
SIGNED for and on behalf of )
WAVERIDER COMMUNICATIONS INC. by its duly )
authorised Signatory in the presence of: ) ____________________________
(Signature)
--------------------------------------------
Signature of Witness
--------------------------------------------
Full Name of Witness
--------------------------------------------
Address:
--------------------------------------------
Occupation:
EXECUTED BY ADE NETWORK TECHNOLOGY PTY LTD ACN 006 395 026 )
in accordance with the Corporations Law: )
)
--------------------------------------------------------------
Director
--------------------------------------------------------------
Director/Secretary
<PAGE>
SCHEDULE A
VENDOR WARRANTIES
1. SHARES AND CAPITAL
1.1 Title
The Vendors are together the legal and beneficial owner of the Vendor
Shares which are free from Encumbrances.
1.2 Consents
Each of the Vendors are able to sell and transfer the Vendor Shares
without the consent of any other person and free of any pre-emptive
rights or rights of first refusal (subject to the directors of ADE
approving the registration of the transfer of the Vendor Shares).
1.3 Issued capital
The Vendor Shares constitute all of the issued share capital of ADE.
1.4 Fully paid
The Vendor Shares are fully paid and no money is owing in respect of
them.
1.5 Issue of other securities
ADE is not under any obligation to allot and issue and has not
granted any person the right to call for the allotment and issue of
any shares in ADE or other securities convertible into shares of ADE
at any time.
1.6 Encumbrances
The Vendor Shares are not, and will not be, on Settlement, subject to
any Encumbrance or other liability which would attach to the Vendor
Shares to bind the Purchaser.
1.7 Proceedings
The Vendors are not involved in, or aware of, any current or
threatened civil or criminal proceedings, arbitration or dispute,
relating to the Vendor Shares.
1.8 Judgments
The Vendors are not aware of any unsatisfied judgments, orders or
writs of execution against the Vendors or ADE or affecting the Vendor
Shares.
<PAGE>
2. AUTHORITY AND CORPORATE STATUS
2.1 Corporate existence
ADE:
(a) is a proprietary limited company;
(b) has the power to own its assets and carry on its business as
it is now being conducted; and
(c) is not registered and is not required to be registered in any
place other than its present place of incorporation.
2.2 Compliance with constituent documents
The business affairs of ADE have been conducted in accordance with
the constitution of ADE.
2.3 Judgments
Neither the Vendors nor ADE are aware of any unsatisfied judgments,
orders or writs of execution against ADE or affecting its business,
assets or affairs.
2.4 Proceedings
To the best of the Vendors' knowledge, there is no current or
threatened civil or criminal proceeding, arbitration or dispute,
involving ADE.
3. ACCURACY OF INFORMATION
3.1 Information accurate
All information given by or on behalf of the Vendors and/or ADE to
the Purchaser or its advisers in respect of ADE and the sale of the
Vendor Shares, is accurate and complete and not misleading in all
material respects.
3.2 Material information disclosed
All information which is material to a buyer for value of the Vendor
Shares has been disclosed to the Purchaser.
4. THE ACCOUNTS
4.1 Basis of preparation
In all material respects, the Accounts:
(a) show a true and fair view of the financial position and the
assets and liabilities of ADE at the Accounts Date subject to
the qualification of the Company's auditors, Messrs Lundstrom
Dickson Barbarti, set out in their audit report of the
Company's financial reports for the year ended 30 June 2000,
which report is dated on or about 28 September 2000;
<PAGE>
(b) are not affected by any unusual or non-recurring item;
(c) include all reserves and provisions for taxation that are
necessary to cover all Tax liabilities of ADE in respect of
any period up to the Accounts Date;
(d) take account of all gains and losses, whether realised or
unrealised, arising from foreign currency transactions;
(e) include all liabilities of ADE at the Accounts Date; and
(f) set out all contingent liabilities of ADE at the Accounts
Date.
5. POSITION SINCE ACCOUNTS DATE
5.1 Position since Accounts Date
Since the Accounts Date:
(a) the business of ADE has been conducted in the ordinary course
of ordinary business and in a proper and efficient manner;
(b) ADE has not disposed of any of its assets other than in the
ordinary course of business;
(c) ADE has not acquired any material assets other than in the
ordinary course of business;
(d) ADE has not incurred any liabilities other than in the
ordinary course of business;
(e) there has been no material adverse change affecting the
business of ADE, the assets of ADE or the financial or trading
position or prospects of ADE; and
(f) no dividends, bonus issues or other distributions or
repayments of shareholders' loans have been declared, made or
paid by ADE.
6. ASSETS
6.1 Title of Assets
Otherwise than as previously disclosed to the Purchaser in writing, all
of the assets of ADE are:
(a) fully paid for;
(b) in the possession of ADE;
<PAGE>
(c) used solely by ADE;
(d) the absolute property of ADE free of all Encumbrances and
other third party rights; and
(e) not the subject of any lease or hire purchase agreement or
agreements for purchase on deferred terms.
6.2 Assets of Business
All of the assets used in conducting the Business and which are
reasonably necessary for the continuing conduct of the Business:
(a) are in adequate condition and state of repair rendering them
fit for use and suitable in the conduct of the Business; and
(b) comprising plant and equipment have been maintained and
repaired by ADE as required and are, at the Execution Date, in
reasonable working condition.
6.3 Sale of its assets
ADE has no legally binding commitment to sell or dispose of any of its
assets.
6.4 Orders
No orders or notices have been served on ADE in respect of its assets
which are currently unsatisfied and would seriously impair and
interfere with the use of any of those assets or the conduct of the
Business.
6.5 Investigation or inquiry
To the best of the Vendors' knowledge, there has not been, during the
3 years immediately preceding the Execution Date, and there is no
existing investigation or enquiry by or on behalf of any governmental
or state authority relating to the Business, transactions or affairs
of ADE other than has been previously disclosed in writing to the
Purchaser.
6.6 Compliance
As far as the Vendors are aware:
(a) ADE complies with local government, environmental, health,
safety and other regulations for lawful conduct of the
Business; and
(b) ADE has filed the necessary returns, information or notices
with the relevant statutory authorities with regard to the
Business.
<PAGE>
6.7 Regulatory
ADE did not do or omit to do, by itself, its agents or employees, any
act which may render ADE liable for prosecution for any offence, and
for any fine, penalty, damages and costs, under any of the following:
(a) the Corporations Law;
(b) the Trade Practices Act 1974 (Cth); and
(c) any other statutory regulations affecting the conduct of the
Business.
7. RECEIVABLES
7.1 Collectability
To the best of the Vendors' knowledge, all debts owing to and amounts
due to ADE are collectable within three (3) months for their full
amounts and are not subject to any counter-claim or set off except to
the extent described or provided in the Accounts.
7.2 Amounts owing
ADE is not owed any money other than trade debts incurred in the
ordinary course of business and cash at bank.
8. SECURITY INTERESTS
ADE has granted or created, or agreed to grant or create, and is a
party to only those loans, guarantees, letter of comfort,
indemnities, finance leases, hire purchase agreements, or
Encumbrances which are disclosed in the Accounts.
9. CONTRACTS
9.1 Nature of contracts
Save for as previously disclosed in writing to the Purchaser, any
agreement binding on ADE:
(a) is within the ordinary course or ordinary business of ADE; and
(b) is at arm's length.
9.2 Losses under contracts
Except as disclosed in the Accounts, no losses are expected to be
incurred under contracts currently being undertaken by ADE, having
regard to all expected revenue from, and the cost to be incurred in
providing services under those contracts.
<PAGE>
9.3 No restrictive covenants
ADE is not a party to any agreement which restricts its freedom to
engage in any activity or business in any area.
9.4 Change of control
ADE is not a party to any agreement under which any third party is
entitled or likely, as a result of a change in ownership of the
Vendor Shares:
(a) to terminate the agreement; or
(b) to require the adoption of terms which are less favourable to
ADE than the current terms.
9.5 No default
To the best of the Vendors' knowledge, no party to any agreement with
ADE is in default under it or would be in default, but for the
requirements of notice or lapse of time, or both.
9.6 No notices
ADE has not received any notice which might affect any rights of the
Purchaser or the exercise of any rights by the Purchaser in respect
of any agreement.
10. SHAREHOLDINGS AND MEMBERSHIPS
10.1 Shareholdings
ADE is not the holder or the beneficial owner of any shares or other
capital or securities convertible into shares or other capital in any
other company.
10.2 Memberships
ADE is not a member of any joint venture, partnership or unincorporated
association.
11. EMPLOYEES
11.1 Disclosure
The following have been fully and accurately disclosed by the Vendors
to the Purchaser and are correctly recorded in ADE's wages and
financial records in respect of each employee of ADE:
(a) duration of employment;
(b) terms and conditions of employment;
(c) wages, salary, benefits and entitlements of each employee; and
<PAGE>
(d) details of annual holidays, long service leave and
superannuation in respect of each employee.
11.2 Records
ADE maintains adequate records as required by law relating to existing
and former employees.
11.3 Liabilities
To the best of the Vendors' knowledge, ADE has no present or
contingent liability to any former employee for any entitlements
arising out of the employment by ADE, including for compensation or
damages for wrongful or unfair dismissal or for redundancy.
11.4 ADE's obligations
ADE has complied with its financial obligations to employees imposed
under any agreement, award, legislation or otherwise. ADE is not a
party to any collective bargain, enterprise or similar agreement with
any employers, labour unions or associations.
11.5 Remuneration
ADE has not materially altered the remuneration or conditions of
employment of its employees since the Account Date.
11.6 Superannuation
ADE contributes to a superannuation for the benefit of employees. The
Vendors warrant that to the best of their knowledge and belief:
(a) the superannuation fund is a complying superannuation fund
within the Superannuation Industry (Supervision) Act 1993
(Cth) and complies with other relevant legislation; and
(b) ADE has made all contributions to the fund it is required to
make to comply with any contractual obligation with employees
or under an industrial award or agreement, and in accordance
with the Superannuation Guarantee Scheme, in respect of all
employees, up to the Execution Date.
12. COMPLIANCE WITH LEGISLATION
(a) To the best of ADE's and the Vendor's knowledge and belief,
ADE has all necessary licences, consents, permission,
authorities and permits required to conduct the Business and
has paid all fees due in relation to them and complied with
all conditions under them; and
(b) To the best of their knowledge and belief, the Vendors and ADE
do not know of any factor which might prejudice the
continuance or renewal of any licence, consent, permission,
authority or permit required under Warranty 12(a).
<PAGE>
13. LITIGATION
13.1 ADE not a party to any litigation
ADE is not, nor has it in the last 6 months been a party or subject
to any investigation, prosecution, litigation, arbitration
proceedings or any other form of mediation or dispute resolution in
respect of the business, the assets of ADE or its employees.
13.2 No litigation pending or threatened
To the best of the Vendors' knowledge, no investigation, prosecution,
litigation, proceeding or any other form of mediation or dispute
resolution is pending or threatening.
13.3 No circumstances
To the best of the Vendor's and ADE's knowledge and belief, there are
no circumstances which might given rise to any investigation,
prosecution, litigation, proceeding or any other form of mediation.
13.4 No writ of execution
No writ of execution has been issued against ADE.
13.5 No receiver
No receiver and manager of any part of the undertaking or assets of
ADE has been appointed or is threatened to be appointed.
14. SOLVENCY
14.1 No liquidation or winding up
ADE has not gone into liquidation or passed a winding-up resolution
nor received a notice to liquidate or be wound up.
14.2 No petition
No petition or other process for winding-up has been presented or
threatened against ADE and there are not circumstances justifying a
petition or other process.
15. RECORDS AND CONSTITUENT DOCUMENTS
15.1 Records
All accounts, registers, books, ledgers and financial and other records
of ADE:
<PAGE>
(a) are in all material respects up-to-date;
(b) have in all material respects been fully and accurately
maintained;
(c) comply in all material respects with all legal requirements;
(d) to the best of the Vendors' knowledge and belief, are in the
possession or under the control of ADE; and
(e) will be delivered to the Purchaser on or before Settlement.
15.2 Constitution
ADE has supplied accurate and up-to-date copies of its constitution to
the Purchaser.
15.3 Register of members
ADE has not received any notice of any application or intended
application for the rectification of its register of members or any
other register which it is required by law to maintain.
15.4 Australian Securities & Investments Commission
ADE has lodged with the Australian Securities & Investments
Commission all returns, particulars, resolutions and documents which
are relevant to indicate the position relating to ADE at the
Execution Date and the information contained in those returns and
documents is accurate and complete.
16. TAXES AND DUTIES
16.1 Tax paid
Any Tax payable in respect of any transaction, income or asset of ADE
has been paid up to 30 June 1999.
16.2 Provision in Accounts
Adequate provision has been made in the Accounts for any Tax on ADE
which the Vendor or ADE is aware is payable or may become payable but
which is unpaid.
16.3 Withholding tax
Any obligation under any applicable tax law to withhold as Tax
amounts at source including but not limited to withholding tax,
prescribed payments system tax and royalties has been complied with.
<PAGE>
16.4 Documents stamped
Any duty payable in respect of any Tax law in relation to any
transaction or agreement to which ADE is or has been a party or by
which ADE derives, or has derived a substantial benefit has been
paid.
16.5 Records
ADE has maintained, in all material respects, proper and adequate
records to enable it to comply with obligations to:
(a) prepare and submit any information, notices, computations,
returns and payments required in respect of any applicable Tax
law;
(b) prepare any accounts necessary for the compliance of any
applicable Tax law; and
(c) retain necessary records as required by any applicable Tax
law.
16.6 Returns submitted
ADE has submitted any necessary information, notices, computations
and returns to the relevant government agency in respect of any Tax
or duty relating to ADE.
16.7 Returns accurate
To the best of the Vendor's knowledge and belief having made due
enquiry, any information, notice, computation and return which has
been submitted to a government agency in respect of any Tax or duty:
(a) discloses all material facts that should be disclosed under
the relevant tax law;
(b) is not misleading; and
(c) has been submitted on time.
16.8 Copies accurate
All copies of any information, notice, computation or return
submitted by ADE in respect of any Tax or duty which have been
supplied by the Vendor to the Purchaser or its advisers are true and
complete copies of the originals.
16.9 Public officer
The office of public officer as required under any applicable tax law
has always been occupied.
<PAGE>
16.10 No Tax audit
ADE is not aware of any pending or threatened Tax or duty audit.
16.11 No disputes
There are no undisclosed disputes with any government agency in respect
of any Tax or duty.
16.12 Availability of future income tax benefits
To the best of the Vendor's knowledge and belief, no event has
occurred which has prevented or could prevent ADE obtaining the
benefit of any future income tax benefit provided for in the
accounts.
16.13 No tax arrangements
ADE has not entered into any arrangement, agreement or Tax ruling
with any relevant government agency under any applicable Tax law.
16.14 No third party liability
ADE is not liable to pay, reimburse or indemnify any person in
respect of any Tax or duty relating to any act or omission occurring
before Completion because of the failure of any other person to
discharge that Tax or duty.
16.15 Events since Accounts Date
(a) Since the Accounts Date, ADE has not:
(i) made or incurred or committed to make or incur any
payment or expenditure which will not be wholly
deductible in computing its taxable income, other
than expenditure on assets;
(ii) disposed of any asset or supplied any service or
business facility (including a loan of money or the
letting, hiring or licensing of any property) in
circumstances where the consideration actually
received or receivable for the disposal or supply is
less than the consideration regarded as received for
Tax purposes;
(iii) acquired any asset or received any service or
business facility in circumstances where the
consideration actually paid for the acquisition or
receipt is more than the consideration which could be
regarded as paid for Tax purposes; and
(iv) entered into or been a party to any transaction which
will or could give rise to any capital gain accruing
to ADE under any applicable Tax law;
<PAGE>
(b) Since the Accounts Date, no event has occurred which gives
rise to a Tax liability in respect of ADE on deemed (as
opposed to actual) income, profits or gains or which results
in ADE becoming liable to pay or bear a Tax liability directly
or primarily chargeable against or attributable to another
person.
16.16 Disclosure
All information necessary for the calculation of any Tax liabilities of
ADE:
(a) up to the Accounts Date, has been disclosed to the Purchaser
before the date of this Agreement; and
(b) between the Accounts Date and the Settlement Date has been or
will be disclosed to the Purchaser before the Settlement Date.
17. INSURANCE CLAIMS
17.1 Claims
(a) there are no claims outstanding, pending, threatened or
capable of arising against ADE (to the knowledge of the
Vendors) in respect of any accident or injury which are not
covered by insurance;
(b) the Vendors are unaware of ADE's insurance policies being
subject to unusual terms or restrictions or that the premium
is at a rate exceeding normal rates charged by the particular
insurer for those types of policies and risks; and
(c) to the best of the Vendors' knowledge, no act, omission or
circumstance has occurred which would render any of the
insurance policies void or voidable, or entitle the insurer to
cancel a policy or to refuse a claim.
<PAGE>
SCHEDULE B
PURCHASER WARRANTIES
1. AUTHORITY
The Purchaser:
(a) is a public company incorporated in Nevada and listed on the
NASDAQ National Market System;
(b) has the power to own its assets and carry on its business as
it is now being conducted; and
(c) is not registered and is not required to be registered in any
place other than its present place of incorporation.
2. ACCURACY OF INFORMATION
All information given by or on behalf of the Purchaser to the Vendors
or their advisers in respect of itself and the issue of WaveRider
Shares is accurate and complete and not misleading in all material
respects.
3. CORPORATE POWER
The Purchaser has corporate power and has obtained all necessary
approvals of shareholders, creditors and regulatory authorities to
enter into this Agreement and to do the things contemplated by this
Agreement.
4. waverider shares
(a) Listing Status
WaveRider Shares are listed on the NASDAQ National Market
System and the Purchaser has no basis for believing that
WaveRider Shares will not continue to be so listed following
the Settlement Date.
(b) Fully Paid Up
The WaveRider Shares issued to the Vendors pursuant to this
Agreement will be fully paid and will be transferable at the
election of the Vendors subject to the Escrow Agreement and
registration of such WaveRider Shares with the Securities
Exchange Commission of the United States of America.
<PAGE>
--------------------------------------------------------------------------------
<TABLE>
SCHEDULE C
Securities and Guarantees
Properties Guarantors Outstanding Amounts Guaranteed
<S> <C> <C> <C>
VIC
MRK PTY LTD William John Anderson $127,875
PO Box 225 commitment as at 30/09/00
CAULFIELD VIC 3162 to the end of the lease
ACT
AM CAPEZIO PTY LTD Wayne Anderson William Anderson $5,400
PO Box 28 commitment as at 30/09/00
MAWSON ACT 2607 to the end of the lease
Car Lease
NAB ADE02 471843119 Wayne Anderson William Anderson $22,775.95 until 25/10/00
ADE994 471843100 Wayne Anderson William Anderson $10,419.65 until 30/09/00
ADE010 466503662 Wayne Anderson William Anderson $20,774.36 until 12/10/00
GE YAX43Y 1137277 Wayne Anderson William Anderson $43,397.42 until 26/09/00
OQV445 1064734 Wayne Anderson William Anderson $9,176.17 until 01/10/00
Test Equipment 001-0089426-00V
Hewlet Packard Microwave Frequency Counter Wayne Anderson William Anderson $8,026.35 remaining HP inst.
MERCEDES BENZ ADE999 14847 Wayne Anderson William Anderson $81,716.37 until 01/10/00
Bank Finance
National Australia Bank
Overdraft 150,000 Guarantee & Indemnity for $357,036 given
by William Anderson and Maureen Anderson
supported by
Term Loan 200,000 Registered Mortgage over property
Credit Card 25,000 37 Francis Crescent, Ferntree Gully
</TABLE>
<PAGE>
SCHEDULE D
Employees
William (Bill) Anderson
Wayne Anderson
Ian Deas
Richard Janczuk
David Finn
John Ebbott
Larry Gray
Ali Ghassani
Himanshu Mishra
Carey Rudd
George Barton
David Buck
John Hewitt
Ung Tran
Angela Mardas
Angela Langford
Terry Kavanagh
Handyo Rusliano
Cameron Vance
Robert Gater
Adam Magnisalis
Robert Domanski
<PAGE>
SCHEDULE E
Leases
Address of Premises Name and Address of Lessor
2 Dublin Street MRK Pty Ltd
EAST OAKLEIGH VIC 3166 PO box 224
CAULFIELD VIC 3162
Unit 1/10 Gladstone Road Anderson Corporation
CASTLE HILL NSW 2154 Unit 3, 15-16 Nichole Close
BAYSWATER NORTH VIC 3153
Unit 37/2 Benson Street B&K Brenton Holding Pty Ltd
TOOWONG QLD 4066 6 Spinkaker Drive
Mt COOLUM QLD 4573
Unit 2/30 Lyell Street A M Capezio Pty Ltd
FYSHWICK ACT 2609 PO Box 28
MAWSON ACT 2607
Unit 18/123A Colin Steet Ratko Klanjscek and Michael Walter
WEST PERTH WA 6005 Klanjscek
4 Glider Court
AUSTRALIND WA 6233
<PAGE>
SCHEDULE F
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the 29th day of September, 2000
B E T W E E N:
ADE Network Technology Pty Ltd, ACN 006 395 026 a corporation
incorporated pursuant to the laws of the State of Victoria,
Australia
(herein called the "Corporation")
OF THE FIRST PART
And
WaveRider Communications Inc., a corporation incorporated
pursuant to the laws of Nevada,in the United States of America
(herein called "WaveRider")
OF THE SECOND PART
And
W. J. (Bill) Anderson, residing in the City of Ferntree Gully,
in the State of Victoria, Australia
(herein called the "the Executive")
OF THE THIRD PART
WHEREAS the Corporation is a wholly owned subsidiary of
WaveRider;
WHEREAS the Corporation desires to employ the Executive and to
enter into an agreement (the "Employment Agreement") embodying the terms of such
employment;
AND WHEREAS the Executive has accepted such employment on the
basis of the terms and conditions set forth herein;
IN CONSIDERATION of the recitals and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. EMPLOYMENT
The Corporation hereby employs the Executive and the Executive
hereby accepts employment with the Corporation for the term of this Employment
Agreement set forth in Section 2 below, in a position and with the duties,
responsibilities and authority as the Corporation may from time to time assign
to him including, without limitation, those duties, responsibilities and
authority more particularly set forth in Section 3 below, and upon all other
terms and conditions in this Employment Agreement set forth herein.
<PAGE>
2. TERM
This agreement shall be for an initial term of twelve months
for the date herein. After the initial term, until terminated, this agreement
shall be deemed to be automatically renewed from month to month without any
action required on behalf of any party.
3. POSITION, RESPONSIBILITY
It is intended that the Executive shall serve as the Managing
Director of the Corporation with responsibility for performing such duties for
the Corporation as the Executive shall reasonably be directed to perform by the
President and Chief Executive Officer of WaveRider.
Throughout the term of this Employment Agreement, the
Executive shall devote his full business time and undivided attention during
normal business hours to the business and affairs of the Corporation, except for
vacations and except for illness or incapacity, but, subject to Section 9 and
subject to the approval of the board of directors of the Corporation, which will
not be unreasonably withheld, nothing in this Employment Agreement shall
preclude the Executive from devoting reasonable periods required for serving, as
appropriate, on boards of directors of other corporations, from engaging in
charitable and public service activities, and from managing his personal
investments, provided such activities do not materially interfere with the
performance of his duties and responsibilities under this Employment Agreement
and do not constitute a conflict of interest with respect to his employment
herein.
4. SALARY, CASH AND STOCK COMPENSATION PLAN
a) For services rendered by the Executive during the term of this
Agreement, the Executive shall be entitled to receive an
annual remuneration package of $300,000, which shall be paid
as to the sum of $18,333.33 (before deductions) per month
commencing as of the date hereof and a bonus in the amount of
$20,000 payable quarterly, such bonus to be paid upon the
achievement of certain performance objectives mutually agreed
upon by the Executive and the President and Chief Executive
Officer of WaveRider and ratified by the board of directors of
the WaveRider.
The Executive's salary shall be reviewed annually and may be
adjusted taking into account, among other things, individual
performance and general business conditions.
<PAGE>
b) The Executive shall be eligible to participate in WaveRider's
Employee Stock Option (2000) Plan (the "Stock Option Plan")
and any successor plans thereto established by the Corporation
for the general benefit of employees. Pursuant to the Stock
Option Plan, the Executive shall be awarded options (the
"Stock Options") to acquire 25,000 common shares ("Common
Shares") in the capital of the Corporation at an exercise
price being the closing price of the Common Shares on NASDAQ
national market system on the date of this Agreement. The
Stock Options will vest as to 33 1/3% per year from the date
of this Agreement.
c) The Executive shall be entitled to receive a commission equal
to 40% of the Corporation's revenue in excess of $9,750,000
and up to $12,500,000 for the 12 month period ending September
30, 2001. Payment of the commission will be under the same
terms and on the same basis as the payment to be made to the
Vendors as part of the Share sale agreement and will be net of
ADE's payroll tax, work cover component and any other taxes
related to the payment of such commission.
Notwithstanding anything to the contrary in this agreement,
the commission amount payable under this clause 4(c) shall be
due and payable even if the Executive's employment with the
Company is terminated for any reason.
d) In addition to the remuneration specified elsewhere in this
clause 4, to comply with the superannuation guarantee levy,
superannuation will be paid by the Company into the
Executive's nominated scheme or the scheme maintained by the
Company at the then minimum prevailing contribution.
5. PERQUISITES AND BUSINESS EXPENSES
The Executive will be reimbursed for all reasonable expenses
incurred by him or her in connection with the conduct of the Corporation's
business upon presentation of sufficient evidence that such expenditures are
authorized expenditures pursuant to policies adopted by the board of directors
of the Corporation from time to time.
The Corporation shall provide the Executive with an automobile
at its expense for the Executive's business and personal use, such automobile to
have a monthly lease expense not to exceed $1,800. The Corporation shall also be
responsible for insurance, gas, maintenance and repair expenses generated by the
use of the automobile on behalf of the Corporation
6. BENEFIT PROGRAMS
The Executive will be entitled to participate in the benefit
programs of the Corporation from time to time in effect under the terms and
conditions of such programs, including, but not limited to, pension and other
retirement plans, group life insurance, hospitalization and surgical and major
medical coverages, dental insurance, sick leave, including salary continuation
arrangements, vacations and holidays, long-term disability, and such other
fringe benefits as are or may be available from time to time to other employees
of the Corporation.
<PAGE>
7. VACATION
The Executive shall be entitled to all usual public holidays
and, in addition, to twenty (_20_) days paid vacation, during each year of the
Executive's employment hereunder. Such vacation shall be utilized by the
Executive at such time or times as do not materially interfere with the ongoing
conduct of the Corporation's business and operations.
8. TERMINATION OF EMPLOYMENT
a) Death - In the event of the death of the Executive during the
term of this Employment Agreement, the Executive's salary will
be paid to the Executive's designated beneficiary, and in the
absence of such designation, to the estate or other legal
representatives of the Executive, through the end of the month
in which death occurs. Rights and benefits of the Executive
under the Executive benefit plans and programs of the
Corporation, including life insurance, will be determined in
accordance with the terms and conditions of such plans and
programs.
b) Disability - The Executive's employment shall terminate
automatically upon written notice from the Corporation in the
event of the Executive's absence or inability to render the
services required hereunder due to disability, illness,
incapacity or otherwise for an aggregate of one hundred and
eighty days during any 12 month period during the term. In the
event of any such absence or inability, the Executive shall be
entitled to receive the compensation provided for herein for
such period, and thereafter the Executive shall be entitled to
receive compensation in accordance with the Corporation's
long-term disability plan, if any, together with such
compensation, if any, as may be determined by the board of
directors of the Corporation.
c) Termination by the Corporation for Cause - In the event of a
termination for cause, there will be no continued salary
payments by the Corporation to the Executive and any rights
and benefits of the Executive under the Executive benefit
plans and programs of the Corporation will be determined in
accordance with the terms of such plans and programs. For the
purposes of this Section 8(c) and of the Executive's
employment with the Corporation, "cause" shall mean that:
i) The Executive has committed a felony or indictable
offence or has improperly enriched himself at the
expense of the Corporation or has committed an act
evidencing dishonesty or moral turpitude, including
without limitation an act of theft;
ii) The Executive, in carrying out his duties hereunder,
(A) has been wilfully or grossly negligent, or (B)
has committed wilful and gross misconduct or, (C) has
failed to comply with a clear instructions or
directives from the board of directors of the
Corporation after having been informed of a failure
to so comply;
<PAGE>
iii) The Executive has breached a material term of this
Employment Agreement;
iv) The Executive becomes bankrupt or in the event a
receiving order (or any analogous order under any
applicable law) is made against the Executive or in
the event the Executive makes any general disposition
or assignment for the benefit of his creditors; or
v) The Executive commits any other act giving the
Corporation cause to terminate the Executive's
employment, including, but not limited to chronic
alcoholism or drug addiction, material malfeasance or
non-feasance with respect to the Executive's duties
hereunder.
Prior to any termination of the Executive for cause due to any
occurrence described in subparagraphs 8(c)(ii), (iii), (iv) and (v) above, the
Corporation shall notify the Executive in writing of the particulars of the
occurrence upon which termination would be based and shall in such notice advise
the Executive as to whether, in the Corporation's sole discretion, the default
of the Executive occasioned by such occurrence is capable of being cured or
rectified in full without loss or damage to the Corporation, in which case the
Corporation shall afford the Executive a reasonable period of not less than five
business days in which to cure or rectify such default. In such event and
provided the Executive cures or rectifies such default in full without loss or
damage to the Corporation, the Executive's employment shall not be terminated on
the basis of such occurrence.
d) Resignation or Termination by the Corporation without Cause -
Either party may terminate this agreement upon three month's
written notice to the other.
In the event of resignation by the Executive, there will be no
continued salary payments by the Corporation to the Executive after the last day
actually worked and any rights and benefits of the Executive under the Executive
benefit plans and programs of the Corporation will be determined in accordance
with the terms of such plans and programs.
9. NON-COMPETITION
The Executive agrees that during the period of the Executive's
employment with the Corporation and for any period of continued compensation
(with the exception of any commission override payable under Section 4 iii) to
the Executive by the Corporation, as outlined in Section 8(d), the Executive
shall not engage in or participate in any business activity that competes,
directly or indirectly, in the North American market, with the businesses of the
Corporation, or its subsidiaries or affiliates.
<PAGE>
For the purposes of this Section 9, the Executive shall be
deemed to "compete, directly or indirectly, with the business of the
Corporation, or its subsidiaries or affiliates" if the Executive is or becomes
engaged, otherwise than at the request of the Corporation, as an officer,
director or the Executive of, or is or becomes associated in a management or
ownership, consultant or agent, capacity with any corporation, partnership or
other enterprise or venture whose business includes the distribution of
competing products (other than as the beneficial owner or registered holder of
not more than 5% of a company's issued and outstanding shares of the relevant
class in the capital stock of any such company listed on any recognized stock
exchange).
It is the desire and intent of the parties that the provisions
of this Section 9 shall be enforceable to the fullest extent permissible under
the laws and public policies applied in each jurisdiction in which enforcement
is sought. Accordingly, if any particular portion of this Section 9 is
adjudicated unenforceable in any jurisdiction such adjudication shall apply only
in that particular jurisdiction in which such adjudication is made.
10. NON-SOLICITATION
The Executive agrees that for a period of one year following
the termination of the Executive's employment with the Corporation for any
reason whatsoever, the Executive will not, whether as principal, agent,
employee, employer, director, officer, shareholder or in any other individual or
representative capacity, solicit or induce employees, consultants, suppliers or
customers of the Corporation, either directly or indirectly, to leave their
employment or engagement with the Corporation or otherwise sever or alter their
association with the Corporation or its respective subsidiaries or affiliates.
11. CONFIDENTIAL INFORMATION
All confidential records, material and information and copies
thereof and any and all trade secrets concerning the business or affairs of the
Corporation or any of its affiliates obtained by the Executive in the course and
by the reason of his employment shall remain the exclusive property of the
Corporation. During the Executive's employment or at any time thereafter, the
Executive shall not divulge the contents of such confidential records or any of
such confidential information or trade secrets to any person or persons, and the
Executive shall not, following the termination of his employment hereunder, for
any reason use the contents of such confidential records or other confidential
information or trade secrets for any purpose whatsoever.
12. ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS
During the term of this agreement the Executive shall disclose
promptly to the Corporation in writing:
<PAGE>
a) All inventions, developments and discoveries; and,
b) All writings or other artistic or creative visual expressions
or integrated circuit layouts or topographies;
that can be protected by patent, copyright, mask work or trademark laws, which
during the period of the Executive's engagement by the Corporation the Executive
has or may make, conceive or contribute to, either solely or jointly with
others, that:
i) relate to matters which the Executive's work for the
Corporation may be concerned; or,
ii) relate to or are connected with the business, products, or
projects of the Corporation; or,
iii) involve the use of the Corporation's inventions, concepts,
trade secrets, time, material or facilities.
The Executive hereby assigns and agrees to assign to the
Corporation and its nominees all rights to such inventions, developments,
discoveries, writings or other artistic or creative visual expressions or
integrated circuit layouts or topographies discovered or developed during the
Executive's engagement with the Corporation, and any copyrights, patents or mask
work rights therein and any applications therefor.
At all times during and after the Executive's engagement by
the Corporation, and at no expense to the Executive, but without entitlement to
further compensation beyond the payment of the Executive's usual hourly, daily
or other rate for time reasonably spent, upon request, the Executive will
execute and deliver such assignments, declarations, and other documents, and to
perform such other acts, (including appearance as a witness in any contest), as
may be requested by the Corporation to obtain or uphold, for the benefit of the
Corporation, patents in any and all countries, for inventions, developments and
discoveries within the categories defined above. Such inventions, developments
and discoveries, and any writings or other artistic or creative visual
expressions and integrated circuit layouts and topographies, as well as any
copyrights or mask work rights therein, are to be and remain the property of the
Corporation or its nominees.
The Executive represents that the Executive has no agreement
with or obligation to any third party that conflicts with this Section 12.
13. WITHHOLDING
Anything to the contrary notwithstanding, all payments
required to be made by the Corporation hereunder to the Executive or his estate
or beneficiaries, shall be subject to the withholding of such amounts relating
to taxes as the Corporation may reasonably determine, after consultation with
the Executive, it should withhold pursuant to any applicable law or regulation.
In lieu of withholding such amounts, in whole or in part, the Corporation may,
in its sole discretion, accept other provisions for payment of taxes and
withholdings as required by law, provided the Corporation is satisfied that all
requirements of law affecting the Corporation's responsibilities to withhold
have been complied with.
<PAGE>
14. ENTIRE AGREEMENT
This Employment Agreement contains the entire agreement
between the parties hereto with respect to matters herein and supersedes all
prior agreements and understandings, oral or written, between the parties hereto
relating to such matters.
15. ASSIGNMENT
Except as herein expressly provided, the respective rights and
obligations of the Executive and the Corporation under this Employment Agreement
shall not be assignable by either party without the written consent of the other
party and shall enure to the benefit of and be binding upon the Executive and
the Corporation and their permitted successors or assigns, including, in the
case of the Corporation, any other corporation or entity with which the
Corporation may be merged or otherwise combined or which may acquire the
Corporation or its assets in whole or in substantial part, and, in the case of
the Executive, his estate or other legal representatives. Nothing herein
expressed or implied is intended to confer on any person other than the parties
hereto any rights, remedies, obligations or liabilities under or by reason of
this Employment Agreement.
16. APPLICABLE LAW
This Employment Agreement shall be deemed a contract under,
and for all purposes shall be governed by and construed in accordance with, the
laws of the State of Victoria without regard to the conflicts of laws rules
thereof. The Corporation and the Executive hereby each irrevocably consent and
attorn to the jurisdiction of the courts of the State of Victoria with respect
to any dispute or proceeding arising in connection with this Employment
Agreement.
17. AMENDMENT OR MODIFICATION: WAIVER
No provision of this Employment Agreement may be amended or
waived unless such amendment or waiver is authorized by the Corporation
(including any authorized officer or committee of the board of directors) and is
in writing signed by the Executive and by a duly authorized officer of the
Corporation. Except as otherwise specifically provided in this Employment
Agreement, no waiver by either party hereto of any breach by the other party of
any condition or provision of this Employment Agreement to be performed by such
other party shall be deemed a waiver of a similar or dissimilar breach,
condition or provision at the same time or at any prior or subsequent time.
18. RESIGNATIONS
The Executive hereby agrees that, upon termination of this
employment for any reason whatsoever, the Executive shall thereupon be deemed,
upon the request of the Corporation, to have immediately resigned any position
the Executive may have as an officer and/or director of the Corporation,
together with any other office, position or directorship which the Executive may
hold with any of the Corporation's subsidiaries or related entities in
connection with or arising from the performance of the Executive duties of
employment under this Employment Agreement. In such event, the Executive shall,
at the reasonable request of the Corporation, forthwith execute any and all
documents appropriate to evidence such resignations which are consistent with
the terms of this Employment Agreement.
<PAGE>
19. PROVISIONS SURVIVING TERMINATION
It is expressly agreed that notwithstanding termination of the
Executive's employment with and by the Corporation for any reason or cause or in
any circumstances whatsoever, such termination shall be without prejudice to the
rights and obligations of the Executive and the Corporation, respectively, in
relation or arising up to the time up to and including the date of termination;
and the provisions of Sections 4(c), 8(d), 9, 10, 11, 12, 13, 17, 18, 19 and 20
of this Employment Agreement, all of which shall remain and continue in full
force and effect unless and until the board of directors of the Corporation at
its absolute discretion resolves otherwise and so notifies the Executive in
writing.
20. THE WORKPLACE RELATIONS ACT 1996 (CTH)
If any clause contained in this Employment Agreement is
inconsistent with any provision of the Workplace Relations Act 1996 (Cth) (the
"WRA"), the WRA will be deemed to apply to the extent that the clause contained
in this Employment Agreement is inconsistent with the WRA.
For the avoidance of doubt, this clause 20 is inserted in this
Employment Agreement to ensure that the Corporation complies with section 505 of
the WRA.
21. SEVERABILITY
In the event that any provision or portion of this Employment
Agreement shall be determined to be invalid or unenforceable for any reason, the
remaining provisions and portions of this Employment Agreement shall be
unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by law.
22. COUNTERPARTS
This Employment Agreement may be executed in counterparts, each of which shall
be an original, but all of which together shall constitute one and the same
instrument.
<PAGE>
23. REFERENCES
In the event of the Executive's death or a judicial determination of his
incompetency, reference in this Employment Agreement to the Executive shall be
deemed, where appropriate, to refer to his beneficiary or beneficiaries.
24. CAPTIONS
Captions to the Sections of this Employment Agreement are solely for convenience
and no provision of this Agreement is to be construed by reference to the
captions of that Section.
25. CURRENCY
Unless otherwise specified herein, all dollar amounts referred to herein shall
mean Australian dollars.
IN WITNESS WHEREOF this Employment Agreement has been executed
by a duly authorized officer of the Corporation, WaveRider and the Executive as
of the day first above written.
ADE NETWORK TECHNOLOGY PTY LTD
By: _______________________________________
WAVERIDER COMMUNICATIONS INC.
By: _______________________________________
D. BRUCE SINCLAIR
President and Chief Executive Officer
SIGNED, SEALED and )
DELIVERED in the presence of: )
)
)
)
Witness W. J. (Bill) Anderson
<PAGE>
SCHEDULE G
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the 1st day of October, 2000
B E T W E E N:
ADE Network Technology Pty Ltd, ACN 006 395 026 a corporation
incorporated pursuant to the laws of the State of Victoria, Australia
(herein called the "Corporation")
OF THE FIRST PART
And
WaveRider Communications Inc., a corporation incorporated pursuant to
the laws of Nevada, in the United States of America
(herein called "WaveRider")
OF THE SECOND PART
And
Wayne Anderson, residing in the City of Rowville, in the State of
Victoria, Australia
(herein called the "the Executive")
OF THE THIRD PART
WHEREAS the Corporation is a wholly owned subsidiary of WaveRider;
WHEREAS the Corporation desires to employ the Executive and to
enter into an agreement (the "Employment Agreement") embodying the terms of such
employment;
AND WHEREAS the Executive has accepted such employment on
the basis of the terms and conditions set forth herein;
IN CONSIDERATION of the recitals and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. EMPLOYMENT
The Corporation hereby employs the Executive and the Executive
hereby accepts employment with the Corporation for the term of this Employment
Agreement set forth in Section 2 below, in a position and with the duties,
responsibilities and authority as the Corporation may from time to time assign
to him including, without limitation, those duties, responsibilities and
authority more particularly set forth in Section 3 below, and upon all other
terms and conditions in this Employment Agreement set forth herein.
<PAGE>
2. TERM
This agreement shall be for an initial term of twelve months
for the date herein. After the initial term, until terminated, this agreement
shall be deemed to be automatically renewed from month to month without any
action required on behalf of any party.
3. POSITION, RESPONSIBILITY
It is intended that the Executive shall serve as the National
Sales Director of the Corporation with responsibility for performing such duties
for the Corporation as the Executive shall reasonably be directed to perform by
the President and Chief Executive Officer of WaveRider.
Throughout the term of this Employment Agreement, the
Executive shall devote his full business time and undivided attention during
normal business hours to the business and affairs of the Corporation, except for
vacations and except for illness or incapacity, but, subject to Section 9 and
subject to the approval of the board of directors of the Corporation, which will
not be unreasonably withheld, nothing in this Employment Agreement shall
preclude the Executive from devoting reasonable periods required for serving, as
appropriate, on boards of directors of other corporations, from engaging in
charitable and public service activities, and from managing his personal
investments, provided such activities do not materially interfere with the
performance of his duties and responsibilities under this Employment Agreement
and do not constitute a conflict of interest with respect to his employment
herein.
4. SALARY, CASH AND STOCK COMPENSATION PLAN
For services rendered by the Executive during the term of this
Agreement, the Executive shall be entitled to receive a compensation package
consisting of: (i) an annual salary; (ii) a commission package; and, (iv) a
stock option award.
The Executive's salary and commission package shall be
reviewed at a minimum annually and may be adjusted to take into account, among
other things, individual performance and general business conditions.
i) The Executive's annual salary shall be $160,000, which shall
be paid as to the sum of $13,333.33 (before deductions) per
month.
ii) The Executive shall receive a commission package calculated
based on 1% of the Corporation's sales within the territory,
payable quarterly. The commission calculation will be subject
to a performance multiplier, of at least a factor of 1, based
on achievement of certain performance objectives mutually
agreed upon by the Executive and the President of WaveRider
and ratified by the board of directors of WaveRider.
<PAGE>
iii) In addition to the remuneration specified elsewhere in this
clause 4, to comply with the superannuation guarantee levy,
superannuation will be paid by the Company into the
Executive's nominated scheme or the scheme maintained by the
Company at the then minimum prevailing contribution.
The Executive's salary and commission package shall be
reviewed annually and may be adjusted taking into account, among other things,
individual performance and general business conditions. In addition, the
Executive shall be eligible to participate in WaveRider's Employee Stock Option
(2000) Plan (the "Stock Option Plan") and any successor plans thereto
established by the Corporation for the general benefit of employees. Pursuant to
the Stock Option Plan, the Executive shall be awarded options (the "Stock
Options") to acquire 25,000 common shares ("Common Shares") in the capital of
the Corporation at an exercise price being the closing price of the Common
Shares on NASDAQ national market system on the date of this Agreement. The Stock
Options will vest as to 33 1/3% per year from the date of this Agreement.
5. PERQUISITES AND BUSINESS EXPENSES
The Executive will be reimbursed for all reasonable expenses
incurred by him or her in connection with the conduct of the Corporation's
business upon presentation of sufficient evidence that such expenditures are
authorized expenditures pursuant to policies adopted by the board of directors
of the Corporation from time to time.
The Corporation shall pay monthly, all automobile related
expenses for the Executive's business and personal use, the automobile is to
have a monthly lease expense not to exceed $1,200. The Corporation shall also be
responsible for insurance, gas, maintenance and repair expenses generated by the
use of the automobile on behalf of the Corporation
6. BENEFIT PROGRAMS
The Executive will be entitled to participate in the benefit
programs of the Corporation from time to time in effect under the terms and
conditions of such programs, including, but not limited to, pension and other
retirement plans, group life insurance, hospitalization and surgical and major
medical coverages, dental insurance, sick leave, including salary continuation
arrangements, vacations and holidays, long-term disability, and such other
fringe benefits as are or may be available from time to time to other employees
of the Corporation.
7. VACATION
The Executive shall be entitled to all usual public holidays
and, in addition, to twenty (_20__) days paid vacation, during each year of the
Executive's employment hereunder. Such vacation shall be utilized by the
Executive at such time or times as do not materially interfere with the ongoing
conduct of the Corporation's business and operations.
<PAGE>
8. TERMINATION OF EMPLOYMENT
a) Death - In the event of the death of the Executive during the
term of this Employment Agreement, the Executive's salary will
be paid to the Executive's designated beneficiary, and in the
absence of such designation, to the estate or other legal
representatives of the Executive, through the end of the month
in which death occurs. Rights and benefits of the Executive
under the Executive benefit plans and programs of the
Corporation, including life insurance, will be determined in
accordance with the terms and conditions of such plans and
programs.
b) Disability - The Executive's employment shall terminate
automatically upon written notice from the Corporation in the
event of the Executive's absence or inability to render the
services required hereunder due to disability, illness,
incapacity or otherwise for an aggregate of one hundred and
eighty days during any 12 month period during the term. In the
event of any such absence or inability, the Executive shall be
entitled to receive the compensation provided for herein for
such period, and thereafter the Executive shall be entitled to
receive compensation in accordance with the Corporation's
long-term disability plan, if any, together with such
compensation, if any, as may be determined by the board of
directors of the Corporation.
c) Termination by the Corporation for Cause - In the event of a
termination for cause, there will be no continued salary
payments by the Corporation to the Executive and any rights
and benefits of the Executive under the Executive benefit
plans and programs of the Corporation will be determined in
accordance with the terms of such plans and programs. For the
purposes of this Section 8(c) and of the Executive's
employment with the Corporation, "cause" shall mean that:
The Executive has committed a felony or indictable offence or
has improperly enriched himself at the expense of the Corporation or has
committed an act evidencing dishonesty or moral turpitude, including without
limitation an act of theft;
d) The Executive, in carrying out his duties hereunder, (A) has
been wilfully or grossly negligent, or (B) has committed
wilful and gross misconduct or, (C) has failed to comply with
a clear instructions or directives from the board of directors
of the Corporation after having been informed of a failure to
so comply;
e) The Executive has breached a material term of this Employment
Agreement;
f) The Executive becomes bankrupt or in the event a receiving
order (or any analogous order under any applicable law) is
made against the Executive or in the event the Executive makes
any general disposition or assignment for the benefit of his
creditors; or
<PAGE>
g) The Executive commits any other act giving the Corporation
cause to terminate the Executive's employment, including, but
not limited to chronic alcoholism or drug addiction, material
malfeasance or non-feasance with respect to the Executive's
duties hereunder.
Prior to any termination of the Executive for cause due to any
occurrence described in subparagraphs 8(c)(ii), (iii), (iv) and (v) above, the
Corporation shall notify the Executive in writing of the particulars of the
occurrence upon which termination would be based and shall in such notice advise
the Executive as to whether, in the Corporation's sole discretion, the default
of the Executive occasioned by such occurrence is capable of being cured or
rectified in full without loss or damage to the Corporation, in which case the
Corporation shall afford the Executive a reasonable period of not less than five
business days in which to cure or rectify such default. In such event and
provided the Executive cures or rectifies such default in full without loss or
damage to the Corporation, the Executive's employment shall not be terminated on
the basis of such occurrence.
h) Resignation or Termination by the Corporation without Cause -
Either party may terminate this agreement upon three month's
written notice to the other.
In the event of resignation by the Executive, there will be no
continued salary payments by the Corporation to the Executive after the last day
actually worked and any rights and benefits of the Executive under the Executive
benefit plans and programs of the Corporation will be determined in accordance
with the terms of such plans and programs.
9. NON-COMPETITION
The Executive agrees that during the period of the Executive's
employment with the Corporation and for any period of continued compensation
(with the exception of any commission override payable under Section 4 iii) to
the Executive by the Corporation, as outlined in Section 8(d), the Executive
shall not engage in or participate in any business activity that competes,
directly or indirectly, in the North American market, with the businesses of the
Corporation, or its subsidiaries or affiliates.
For the purposes of this Section 9, the Executive shall be
deemed to "compete, directly or indirectly, with the business of the
Corporation, or its subsidiaries or affiliates" if the Executive is or becomes
engaged, otherwise than at the request of the Corporation, as an officer,
director or the Executive of, or is or becomes associated in a management or
ownership, consultant or agent, capacity with any corporation, partnership or
other enterprise or venture whose business includes the distribution of
competing products (other than as the beneficial owner or registered holder of
not more than 5% of a company's issued and outstanding shares of the relevant
class in the capital stock of any such company listed on any recognized stock
exchange).
<PAGE>
It is the desire and intent of the parties that the provisions
of this Section 9 shall be enforceable to the fullest extent permissible under
the laws and public policies applied in each jurisdiction in which enforcement
is sought. Accordingly, if any particular portion of this Section 9 is
adjudicated unenforceable in any jurisdiction such adjudication shall apply only
in that particular jurisdiction in which such adjudication is made.
10. NON-SOLICITATION
The Executive agrees that for a period of one year following
the termination of the Executive's employment with the Corporation for any
reason whatsoever, the Executive will not, whether as principal, agent,
employee, employer, director, officer, shareholder or in any other individual or
representative capacity, solicit or induce employees, consultants, suppliers or
customers of the Corporation, either directly or indirectly, to leave their
employment or engagement with the Corporation or otherwise sever or alter their
association with the Corporation or its respective subsidiaries or affiliates.
11. CONFIDENTIAL INFORMATION
All confidential records, material and information and copies
thereof and any and all trade secrets concerning the business or affairs of the
Corporation or any of its affiliates obtained by the Executive in the course and
by the reason of his employment shall remain the exclusive property of the
Corporation. During the Executive's employment or at any time thereafter, the
Executive shall not divulge the contents of such confidential records or any of
such confidential information or trade secrets to any person or persons, and the
Executive shall not, following the termination of his employment hereunder, for
any reason use the contents of such confidential records or other confidential
information or trade secrets for any purpose whatsoever.
12. ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS
During the term of this agreement the Executive shall disclose
promptly to the Corporation in writing:
a) All inventions, developments and discoveries; and,
b) All writings or other artistic or creative visual expressions
or integrated circuit layouts or topographies;
that can be protected by patent, copyright, mask work or trademark
laws, which during the period of the Executive's engagement by the
Corporation the Executive has or may make, conceive or contribute to,
either solely or jointly with others, that:
c) relate to matters which the Executive's work for the
Corporation may be concerned; or,
d) relate to or are connected with the business, products, or
projects of the Corporation; or,
<PAGE>
e) involve the use of the Corporation's inventions, concepts,
trade secrets, time, material or facilities.
The Executive hereby assigns and agrees to assign to the
Corporation and its nominees all rights to such inventions, developments,
discoveries, writings or other artistic or creative visual expressions or
integrated circuit layouts or topographies discovered or developed during the
Executive's engagement with the Corporation, and any copyrights, patents or mask
work rights therein and any applications therefor.
At all times during and after the Executive's engagement by
the Corporation, and at no expense to the Executive, but without entitlement to
further compensation beyond the payment of the Executive's usual hourly, daily
or other rate for time reasonably spent, upon request, the Executive will
execute and deliver such assignments, declarations, and other documents, and to
perform such other acts, (including appearance as a witness in any contest), as
may be requested by the Corporation to obtain or uphold, for the benefit of the
Corporation, patents in any and all countries, for inventions, developments and
discoveries within the categories defined above. Such inventions, developments
and discoveries, and any writings or other artistic or creative visual
expressions and integrated circuit layouts and topographies, as well as any
copyrights or mask work rights therein, are to be and remain the property of the
Corporation or its nominees.
The Executive represents that the Executive has no agreement
with or obligation to any third party that conflicts with this Section 12.
13. WITHHOLDING
Anything to the contrary notwithstanding, all payments
required to be made by the Corporation hereunder to the Executive or his estate
or beneficiaries, shall be subject to the withholding of such amounts relating
to taxes as the Corporation may reasonably determine, after consultation with
the Executive, it should withhold pursuant to any applicable law or regulation.
In lieu of withholding such amounts, in whole or in part, the Corporation may,
in its sole discretion, accept other provisions for payment of taxes and
withholdings as required by law, provided the Corporation is satisfied that all
requirements of law affecting the Corporation's responsibilities to withhold
have been complied with.
14. ENTIRE AGREEMENT
This Employment Agreement contains the entire agreement
between the parties hereto with respect to matters herein and supersedes all
prior agreements and understandings, oral or written, between the parties hereto
relating to such matters.
15. ASSIGNMENT
Except as herein expressly provided, the respective rights and
obligations of the Executive and the Corporation under this Employment Agreement
shall not be assignable by either party without the written consent of the other
party and shall enure to the benefit of and be binding upon the Executive and
the Corporation and their permitted successors or assigns, including, in the
case of the Corporation, any other corporation or entity with which the
Corporation may be merged or otherwise combined or which may acquire the
Corporation or its assets in whole or in substantial part, and, in the case of
the Executive, his estate or other legal representatives. Nothing herein
expressed or implied is intended to confer on any person other than the parties
hereto any rights, remedies, obligations or liabilities under or by reason of
this Employment Agreement.
<PAGE>
16. APPLICABLE LAW
This Employment Agreement shall be deemed a contract under,
and for all purposes shall be governed by and construed in accordance with, the
laws of the State of Victoria without regard to the conflicts of laws rules
thereof. The Corporation and the Executive hereby each irrevocably consent and
attorn to the jurisdiction of the courts of the State of Victoria with respect
to any dispute or proceeding arising in connection with this Employment
Agreement.
17. AMENDMENT OR MODIFICATION: WAIVER
No provision of this Employment Agreement may be amended or
waived unless such amendment or waiver is authorized by the Corporation
(including any authorized officer or committee of the board of directors) and is
in writing signed by the Executive and by a duly authorized officer of the
Corporation. Except as otherwise specifically provided in this Employment
Agreement, no waiver by either party hereto of any breach by the other party of
any condition or provision of this Employment Agreement to be performed by such
other party shall be deemed a waiver of a similar or dissimilar breach,
condition or provision at the same time or at any prior or subsequent time.
18. RESIGNATIONS
The Executive hereby agrees that, upon termination of this
employment for any reason whatsoever, the Executive shall thereupon be deemed,
upon the request of the Corporation, to have immediately resigned any position
the Executive may have as an officer and/or director of the Corporation,
together with any other office, position or directorship which the Executive may
hold with any of the Corporation's subsidiaries or related entities in
connection with or arising from the performance of the Executive duties of
employment under this Employment Agreement. In such event, the Executive shall,
at the reasonable request of the Corporation, forthwith execute any and all
documents appropriate to evidence such resignations which are consistent with
the terms of this Employment Agreement.
19. PROVISIONS SURVIVING TERMINATION
It is expressly agreed that notwithstanding termination of the
Executive's employment with and by the Corporation for any reason or cause or in
any circumstances whatsoever, such termination shall be without prejudice to the
rights and obligations of the Executive and the Corporation, respectively, in
relation or arising up to the time up to and including the date of termination;
and the provisions of Sections 8(d), 9, 10, 11, 12, 13, 17, 18, 19 and 20 of
this Employment Agreement, all of which shall remain and continue in full force
and effect unless and until the board of directors of the Corporation at its
absolute discretion resolves otherwise and so notifies the Executive in writing.
<PAGE>
20. THE WORKPLACE RELATIONS ACT 1996 (CTH)
If any clause contained in this Employment Agreement is
inconsistent with any provision of the Workplace Relations Act 1996 (Cth) (the
"WRA"), the WRA will be deemed to apply to the extent that the clause contained
in this Employment Agreement is inconsistent with the WRA.
For the avoidance of doubt, this clause 20 is inserted in this
Employment Agreement to ensure that the Corporation complies with section 505 of
the WRA.
21. SEVERABILITY
In the event that any provision or portion of this Employment
Agreement shall be determined to be invalid or unenforceable for any reason, the
remaining provisions and portions of this Employment Agreement shall be
unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by law.
22. COUNTERPARTS
This Employment Agreement may be executed in counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
23. REFERENCES
In the event of the Executive's death or a judicial
determination of his incompetency, reference in this Employment Agreement to the
Executive shall be deemed, where appropriate, to refer to his beneficiary or
beneficiaries.
24. CAPTIONS
Captions to the Sections of this Employment Agreement are
solely for convenience and no provision of this Agreement is to be construed by
reference to the captions of that Section.
25. CURRENCY
Unless otherwise specified herein, all dollar amounts referred
to herein shall mean Australian dollars.
<PAGE>
IN WITNESS WHEREOF this Employment Agreement has been executed
by a duly authorized officer of the Corporation, WaveRider and the Executive as
of the day first above written.
ADE NETWORK TECHNOLOGY PTY LTD
By: ____________________________
WAVERIDER COMMUNICATIONS INC.
By: ____________________________
D. BRUCE SINCLAIR
President and Chief Executive
Officer
SIGNED, SEALED and )
DELIVERED in the presence of: )
)
)
)
)
)
Witness Wayne Anderson
<PAGE>
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EXHIBIT 10.2
SHARE SALE AND SUBSCRIPTION AGREEMENT
AMENDMENT #1
RECITALS:
WHEREAS Phillip William Anderson, Maureen Anderson and Wayne Anderson (together
the Vendors), ADE Network Technology Pty Ltd CAN 006 395 026 (ADE) and WAVERIDER
COMMUNICATIONS INC. (Purchaser) did enter into a Share Sale and Subscription
Agreement (the Agreement) dated the 29th day of September 2000;
AND WHEREAS under paragraph 5.1 of the Agreement the Settlement was deemed to
have taken place on 30 September 2000;
AND WHEREAS the Vendors and the Purchaser have determined that the Settlement
date should have taken place on 1 October 2000;
NOW, THEREFORE, in consideration of good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
Paragraph 5.1 of the Agreement shall be amended to read:
Settlement of the Transaction shall take place on the Settlement Date
at the offices of ADE or at such other offices as the Parties may
otherwise agree and at such time as shall be agreed by the Parties.
Irrespective of the date on which Settlement actually takes place,
Settlement shall be deemed to have taken place on 1 October 2000.
DATED: October 9, 2000
/s/ W. Anderson /s/ Bruce Sinclair
---------------------------------------- -----------------------------
ADE Network Technology Pty Ltd CAN WaveRider Communications Inc.
006 395 026 by its authorised signatory: by its authorised signatory;
W. Anderson Bruce Sinclair
---------------------------------------- -----------------------------
Signatory Name Signatory Name
Secretary and Director President, CEO & Director
---------------------------------------- -----------------------------
Signatory Title Signatory Title
/s/ Phillip William Anderson /s/ Maureen Anderson
------------------------------------ -------------------------
Phillip William Anderson Maureen Anderson
/s/ Wayne Anderson
------------------------------------
Wayne Anderson
